Gavia v. Gavia

• Docket Number: COA22-651
• Decision Date: 05 July 2023
• Parties: JACOB GAVIA, Plaintiff, v. MIKEN GAVIA, Defendant
• Court: North Carolina Court of Appeals

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JACOB GAVIA, Plaintiff, v. MIKEN GAVIA, Defendant

No. COA22-651

Court of Appeals of North Carolina

July 5, 2023

Heard in the Court of Appeals 8 February 2023.

Appeal by defendant from order entered 19 April 2022 by Judge Stephen A. Bibey in Hoke County District Court No. 18 CVD 756.

No brief filed for plaintiff-appellee mother.

Jody Stuart Foyles for defendant-appellant father.

STADING, JUDGE.

Miken Gavia ("mother") appeals from an order entered in Hoke County District Court awarding her joint child custody and monthly child support.

I. Background

Mother and Jacob Gavia ("father") married on 16 July 2011 and have two minor children together. On 8 October 2018 father filed for divorce, child custody, child support equitable distribution, and attorney's fees. Mother answered and counterclaimed for the same. The trial court subsequently entered an order granting father's claim for absolute divorce. Mother has since remarried. A hearing was held on 13 April 2022 to determine child custody and child support. After the hearing, the trial court entered an "order on permanent child custody and child support" on 19 April 2022. Thereafter, mother filed her notice of appeal.

II. Jurisdiction

The 19 April 2022 order fully resolves the issues of child custody and child support, and no other claims remain pending. Therefore, our Court has jurisdiction to hear this appeal pursuant to N.C. Gen. Stat. § 7A-27(b) (2023).

III. Analysis

On appeal, we address: (1) whether findings of fact nos. 12, 13, 15, 16, 17, 18, and 19 are supported by competent evidence, (2) whether the trial court erred in ordering child support in the amount of $461.00 per month, (3) whether a valid consent order existed between the parties, and (4) whether the trial court erred by failing to order arrears.

A. Findings of Fact Nos. 12, 13, 15, 16, 17, 18, and 19

"The trial court is given broad discretion in child custody and support matters" and the court's "order will be upheld if substantial competent evidence supports the findings of fact." Meehan v. Lawrence, 166 N.C.App. 369, 375, 602 S.E.2d 21, 25 (2004) (citation omitted). Thus, on appeal, this Court must determine "whether a trial court's findings of fact are supported by substantial evidence [and also] must determine if the trial court's factual findings support its conclusions of law." State v. Smart, 198 N.C.App. 161, 165, 678 S.E.2d 720, 723 (2009) (citation omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003) (citation omitted).

1. Findings of Fact Nos. 12, 13, 15, 16, and 17

We first consider mother's argument that findings of fact nos. 12, 13, 15, 16, and 17 are not supported by competent evidence. Mother maintains that the record lacks evidence to support the dollar amounts in each cited finding. In relevant part, the trial court's order contained the following findings of fact:

12. That Plaintiff father is employed with Lee Electric with a monthly gross income of $7,494.00.

13. That Defendant mother is employed with a law firm with a monthly gross income of $2,665.00. ...

15. That Plaintiff father provides monthly healthcare premium expenses for the minor children in the amount of $270.90.

16. That Plaintiff father provides monthly daycare expenses for the minor children in the amount of $967.50.

17. That based upon Worksheet B of the North Carolina Child Support Guidelines, the recommended child support amount of $461.00 payable from Plaintiff father to Defendant mother.

At trial, both parties testified to approximations of their monthly incomes. Father testified that he made between $4,000 and $5,000 monthly before taxes. Mother testified that she made $2,800 monthly before taxes, and her annual salary was $37,000. Mother gave the only testimony about insurance, stating that "[father] carries the insurance through his employer." Any testimony about daycare only referenced times, explaining that it was before and after school. No other evidence contradicted this testimony from either party.

The only evidence of the parties' respective incomes is the unrebutted testimony of each witness providing general dollar amounts of the earnings before taxes that do not match the gross incomes found by the trial court. Other than the fact that "[father] carries the insurance through his employer," there is no evidence of the amount paid as found in the trial court's order. Likewise, there was no evidence of the amount paid for daycare expenses. Consequently, there is no evidence to support the trial court's inputs resulting in "the recommended child support amount of $461.00 payable from . . . father to . . . mother." If documents substantiating income and expenses were produced to the trial court, they were not admitted into evidence. Thus, there is not substantial evidence adequate to support these contested findings of fact. Accordingly, we vacate the order and remand to the trial court. "On remand, the trial court, in its discretion, may enter a new order based on the existing record, or may conduct further proceedings including a new evidentiary hearing if necessary." Jain v. Jain, 284 N.C.App. 69, 77, 874 S.E.2d 663, 669 (2022) (citation omitted).

2. The Trial Court's Finding of Fact No. 19

Next, we consider mother's argument that competent evidence does not support finding of fact no. 19, that requires her current husband-a nonparty to the suit-to provide medical insurance to the parties' children. At the 13 April 2022 hearing, mother testified that her current husband was a member of the military.

Subsequently, the trial court announced in its ruling:

In regards to mom being married now to a military member . . . because . . . I have ordered that there is continued legal as well as shared custody would mean that these two children would be available to be registered [in DEERS] through your spouse's insurance and a program in . . . TRICARE . . . and . . . would be eligible for supplemental insurance to the insurance coverage meaning that you will still have the primary responsibility, but should for some reason or another . . . his company doesn't provide the opportunity, you're still under the obligation.

The trial court memorialized this portion of its ruling as finding of fact no. 19 in its order:

19. That Defendant mother shall, through her military husband, enroll the minor children into the DEERs system so that they may be enrolled into Tricare for supplemental insurance coverage. Defendant mother shall provide Plaintiff father with any identification cards or health insurance information necessary to allow Plaintiff father to utilize such coverage.

"Generally, a judgment is in a form that contains findings, conclusions, and a decree. The decretal portion of a judgment is that portion which adjudicates the rights of the parties." Spencer v. Spencer, 156 N.C.App. 1, 13-14, 575 S.E.2d 780, 788 (2003) (citation omitted). Comparatively, "[f]indings of fact are statements of what happened in space and time." Dunevant v. Dunevant, 142 N.C.App. 169, 173, 542 S.E.2d 242, 245 (2001) (citation omitted). Finding of fact no. 19 contains an "unequivocal directive" that mother's new husband "enroll [the parties' child] into Tricare." Spencer, 156 N.C.App. at 14, 575 S.E.2d at 788. Thus, although this directive was listed as a finding of fact, it is properly classified as a decree of the trial court.

Regardless of the classification of finding of fact no. 19, for judicial efficiency on remand, we first address whether the trial court erred by decreeing an unequivocal directive to a nonparty. At the hearing, mother's testimony indicated that she was a dependent on her current husband's health insurance. Therefore, this decree listed as finding of fact no. 19 commanded mother's current husband-an individual not named as a party in the pending litigation-to act pursuant to the trial court's order. In Geoghagan v. Geoghagan, this Court stated that a "necessary party is a party that is so vitally interested in the controversy involved in the action that a valid judgment cannot be rendered in the action completely and finally determining the controversy without [its] presence as a party." 254 N.C.App. 247, 249-50, 803 S.E.2d 172, 175 (2017) (internal quotation marks and citation omitted). This Court has also described a necessary party as "one whose interest will be directly affected by the outcome of the litigation." Id. (internal quotation marks and citation omitted). While couched in terms suggesting the order was directed at mother, the trial court's decree required her current husband to obtain supplemental health insurance through his employer and assume any resulting financial implications. Therefore, her current husband is a necessary party since his interests are directly affected by the outcome of the litigation.

Assuming arguendo, that mother's current husband was a party to the current suit, N.C. Gen. Stat. § 50-13.4(b) (2023) provides that "the judge may not order support to be paid by a person who is not the child's parent or an agency, organization or institution standing in loco parentis absent evidence and a finding that such person, agency organization or institution has voluntarily assumed the obligation of support in writing." Moreover, if found to be liable, "any other person, agency, organization or institution standing in loco parentis shall be secondarily liable for such support." Id. Accordingly, in North Carolina, a stepparent can voluntarily assume secondary child support obligations if the evidence supports finding they are in loco parentis to a child. "The term 'in loco parentis' has been defined...