Evans v. Craddock

• Decision Date: 05 April 1983
• Docket Number: No. 821DC401,821DC401
• Citation: 300 S.E.2d 908,61 N.C.App. 438
• Court: North Carolina Court of Appeals
• Parties: Diane D. EVANS v. Jerald G. CRADDOCK.

Page 908

300 S.E.2d 908

61 N.C.App. 438

Diane D. EVANS v. Jerald G. CRADDOCK.

No. 821DC401.

Court of Appeals of North Carolina.

April 5, 1983.

W.T. Culpepper, III, Edenton, for plaintiff-appellee.

Earnhardt & Busby by Charles T. Busby, Edenton, for defendant-appellant.

ARNOLD, Judge.

Defendant's Appeal

The defendant first attacks the reasonableness of the trial court's award. G.S. 50-13.4(c) states the standard for setting the amount of child support:

Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case.

The conclusions of the court must

"be based upon factual findings specific enough to indicate to the appellate court that the judge below took ... [the factors listed in the statute into consideration] ....

It is not enough that there may be evidence in the record sufficient to support findings which could have been made. The trial court must itself determine what pertinent facts are actually established by the evidence before it, and it is not for an appellate court to determine de novo the weight and credibility to be given to evidence disclosed by the record on appeal.

Coble v. Coble, 300 N.C. 708, 712-13, 268 S.E.2d 185, 189 (1980) (emphasis in the original).

An order for child support is a question of fairness to all parties involved. Walker v. Walker, 38 N.C.App. 226, 228, 247 S.E.2d 615, 616 (1978). It will not be disturbed on appeal absent an abuse of discretion by the trial judge, Wyatt v. Wyatt, 32 N.C.App. 162, 164, 231 S.E.2d 42, 43 (1977), or if there is competent evidence to support it, even if there is conflicting evidence. Crosby v. Crosby, 272 N.C. 235, 238, 158 S.E.2d 77, 80 (1967).

Our examination of the record leads us to conclude that a number of the findings of fact and conclusions of law are unsupported by competent evidence.

First, finding of fact 10 states that the defendant's net monthly income is $1910 and that his reasonable monthly expenses do not exceed $1200. These figures are not supported by the evidence.

The defendant's affidavit of financial standing listed his net monthly wages as $1626 and expenses at $1620. In fact, a certified statement of the defendant's salary by the Coast Guard, plaintiff's exhibit four, listed defendant's net wages as $1625.66.

Second, the plaintiff's amended financial affidavit uses an impermissible mathematical formula to calculate the child's needs. The trial judge found as a fact that the child had reasonable needs of $725 per month, which is the figure in the plaintiff's affidavit.

In arriving at that figure, the plaintiff totaled the expenses for herself, her current husband and the child and then divided by three. This is unfair to the defendant because it requires him to pay for the support of others than the child.

The trial judge should have made findings about the reasonableness of the plaintiff's figures in her affidavit. As Coble stated, a mere showing in an affidavit that expenses are greater than income does not mean that they are reasonable. "While a lack of a specific conclusion as to reasonableness will not necessarily be held for error, the better practice is for the order to contain such a conclusion." 300 N.C. at 714, 268 S.E.2d at 190.

The evidence showed that the child resides with the defendant for four to five weeks each year. The defendant argues that he should be given credit on any child support payments for time that the child spends with him.

In Jones v. Jones, 52 N.C.App. 104, 278 S.E.2d 260 (1981), the court considered this question. In upholding a reduction in child support for time spent with a supporting spouse, Jones said "The trial court has a wide discretion in deciding initially whether justice requires that a credit be given under the facts of each case and then in what amount the credit is to be awarded." 52 N.C.App. at 109, 278 S.E.2d at 264.

Jones relied on Goodson v. Goodson, 32 N.C.App. 76, 231 S.E.2d 178 (1977), a case which considered this issue. According to Goodson, "the better view allows credit when equitable considerations exist which would create an injustice if credit were not allowed." 32 N.C.App. at 81, 231 S.E.2d at 182.

Although the defendant argues that the facts here justify credit for the time the child spent with him, we find no abuse of discretion by the trial judge in not giving him that credit. As Goodson stated and as Jones repeated, "Credit is not likely to be appropriate for frivolous expenses or for expenses incurred in entertaining or feeding the child during visitation periods." 32 N.C.App. at 81, 231 S.E.2d at 182; 52 N.C.App. at 108, 278 S.E.2d at 263 (emphasis added).

The defendant makes two additional arguments. He first contends that he should have been allowed to present evidence on why the plaintiff left him and took the child when the parties separated in 1977. This contention has no bearing on the child support issue and it was proper not to consider it.

Finally, the defendant argues that he cannot be required to pay his child's private school expenses. The evidence shows that the defendant paid the tuition for the semester prior to the hearing and that he paid the enrollment fee of $150 for the previous year.

G.S. 50-13.4(c) does not directly address this issue. But it does provide that child support payments shall "meet the reasonable needs of the child for ... education ... having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties ... and other facts of the particular case."

The evidence to support an award of private school tuition is not clear from the record before us. Although there is evidence to show that the defendant voluntarily paid part of the tuition in the past, the defendant's financial affidavit does not show clearly that he can pay the entire tuition in the future.

In addition, the trial judge found as a fact that the child has been hyperactive since birth in the same finding in which he stated the cost of the private school. By implication, this indicates that the private school education is a reasonable need of the child.

But the only evidence supporting the finding that the child was hyperactive was an unsupported statement by the plaintiff that the child "was classified as super hyperactive when she was born." This is insufficient evidence upon which a finding of hyperactivity can be based and that such hyperactivity requires a private school education for the child.

On remand, the G.S. 50-13.4(c) factors should be considered to determine if the defendant should pay private school tuition. The trial judge should also determine if the defendant agreed to pay the tuition and if public schools in the area could provide any special needs of the child. See also Annot., 56 A.L.R.2d 1207, 1215 § 4 (1957) (lists the factors to consider in this decision).

In conclusion, we reverse and remand this case for the trial judge to determine if there is competent evidence to support the new order. Although trial judges in these support cases must tred with the angels to find the correct words to put in the orders, the basic rule remains: "Evidence must support findings; findings must support conclusions; conclusions...