Head v. Mosier

• Decision Date: 02 June 2009
• Docket Number: No. COA08-1132.,COA08-1132.
• Citation: 677 S.E.2d 191
• Parties: Timothy Daniel HEAD, Plaintiff, v. Shelly H. MOSIER, Defendant.
• Court: North Carolina Court of Appeals

677 S.E.2d 191

Timothy Daniel HEAD, Plaintiff, v. Shelly H. MOSIER, Defendant.

No. COA08-1132.

Court of Appeals of North Carolina.

June 2, 2009.

Appeal by plaintiff from orders entered 15 April 2008 and 28 May 2008 by Judge J. Thomas Davis in Rutherford County Superior Court. Heard in the Court of Appeals 25 March 2009.

Timothy Daniel Head, pro se, plaintiff appellant.

King Law Offices, PLLC, by Brian W. King, Rutherfordton, for Rutherford County Department of Social Services, petitioner appellees.

ROBERT N. HUNTER, JR., Judge.

Background

Timothy Daniel Head ("obligor")¹ and Shelly H. Mosier ("Mosier") are the parents of two children, Charity Amanda Head, born 9 October 1998, and Joshua Aaron Head, born 14 August 1993. Both children are in the custody of Mosier and continue to be in need of child support. The trial court entered a child support order against obligor on 16 April 2004 nunc pro tunc to 6 February 2004, requiring him to pay child support in the monthly amount of $298.57 of which $20.00 per month was to be applied toward the arrearage. The Rutherford County Department of Social Services Child Support Enforcement Agency ("CSEA") was allowed to intervene in an action to enforce this child support obligation.

Following entry of the prior orders, Mosier had another child, who lives in her home and for whom she is responsible. Obligor is not the father of that child. Mosier stays home with the child, and the court imputed to her a minimum wage salary of $1,065.92 per month.

On 26 February 2008, the CSEA on Mosier's behalf (collectively, the "movants"), brought a motion to modify obligor's child support based on a substantial change of circumstances and an increase in the calculation of child support over fifteen percent after three years.

Obligor appeared pro se at the 9 April 2008 hearing to contest the motion. At the hearing, the trial court allowed obligor to submit certain business deductions.

In its 15 April 2008 order, the court entered the following relevant findings of fact which are the subject of this appeal:

5. The [obligor] since November 09, 2007 has been employed as a truck driver with Heartland Trucking Company on a full time basis five days a week. For the first 13 weeks of the year 2008 the [obligor] was paid $13,072.52 in gross income. Based thereon the [obligor] is grossing $4,357 per month from this employment. The [obligor] contends that the IRS allows $40 per day as an income tax deduction without substantiation for job related expenses to be deducted from this income for income tax purposes, for which he claims a reduction for the calculation of his gross income for the calculation of child support. Assuming the [obligor] was entitled to a deduction for his employment related expenses for child support purposes, there would be required a showing of the actual expenses incurred. The IRS allowance at best is only an income tax deduction for which substantiation is not required, which is inapplicable to child support determinations. The only expense actually shown was $10 per day five days a week for showers and $25 per week for cell phone expenses. Hygiene expenses however are personal expenses for which all individuals incur and is not a proper deduction for the calculation of income. The cell phone expense would appear to be business related for both the trucking and locksmith business as hereinafter set out.

6. The [obligor] is self employed as a locksmith for which he now works primarily on weekends, and was previously operating this business on a full time basis prior to his trucking employment. The only income over the last thirteen weeks from the business has been $246.50 or $82 per month. From this business the [obligor] continues to incur expenses such as phone service in the monthly amount of $120 per month, phonebook advertising in the monthly amount of $180 per month, and cell phone costs of $108 per month. No other valid business expenses have been shown. From this locksmith business the [obligor] is currently incurring a loss of $326 per month. ($82-$120-$180-108). The truck debt and other debt expenses would not be appropriate to reduce income for calculation of child support under the guidelines.

7. The [obligor] currently has monthly gross income of $4,031 ($4,357-$326) for purposes of determining child support under the guidelines.

8. Based on the guidelines the [obligor] should pay child support in the amount of $935.92 per month as calculated on the attached exhibit A.

The relevant conclusions thereupon included:

2. There has been a substantial change in circumstances in that it has been more than three years since the calculation of the [obligor's] child support obligation and the current obligation is greater than fifteen percent (15%) of the prior obligation;

3. The [obligor] should pay child support to the defendant based on the guidelines in the monthly amount of $935.92 beginning April 1, 2008; and

4. Except as modified herein the court's prior order of November 29, 2005 should remain in full force and effect including the payment of an additional amount of $20 toward the arrearage.

On 25 April 2008, obligor filed a "Motion for New Trial, Findings, and Conclusions of Law, and Move to Strike Order of April 15, 2008." On 28 May 2008, the trial court denied obligor's motion. Obligor appeals.

Issues

The issues presented are whether, under the applicable North Carolina Child Support Guidelines (the "Guidelines"), the trial court improperly computed the obligor's child support obligation by: (I) failing to make any findings of changes in the needs of the minor children; (II) considering obligor's earning capacity without considering legitimate business expenses, or in the alternative, without finding obligor had deliberately depressed his income in bad faith, or had otherwise disregarded his child support obligations; (III) refusing to consider a requested deviation from the Guidelines and not following the required four-step process to determine the need to deviate; (IV) failing to separate its findings of fact and conclusions of law when requested by obligor to facilitate meaningful appellate review; and (V) failing to follow case law, failing to make any findings on the issues raised, and thus issuing an improper order via errors in findings of fact numbered 5-8 and conclusions of law numbered 1-4.

Standard of Review

"`Child support orders entered by a trial court are accorded substantial deference by appellate courts and our review is limited to a determination of whether there was a clear abuse of discretion.'" Mason v. Erwin, 157 N.C.App. 284, 287, 579 S.E.2d 120, 122 (2003) (citation omitted). To support a reversal, "an appellant must show that the trial court's actions were manifestly unsupported by reason." State ex rel Godwin v. Williams, 163 N.C.App. 353, 356, 593 S.E.2d 123, 126 (2004) (citing Bowers v. Bowers, 141 N.C.App. 729, 731, 541 S.E.2d 508, 509 (2001)).

Discussion

Preliminarily, we note that resolution of this appeal is determined under the 2006 version of the Guidelines, which were in effect at the time of the trial court's order. N.C. Child Support Guidelines 2009 Ann. R. N.C. 41 ("2006 Guidelines").

I.

Obligor first contends the trial court erred by failing to make any findings regarding any changes in the needs of the minor children. He submits that such findings would have allowed this court, on review, to weigh the children's needs against his ability to pay the amount of support ordered.

N.C. Gen.Stat. § 50-13.7(a)(2007) authorizes a North Carolina court to modify or vacate an order of a North Carolina court providing for the support of a minor child at any time upon motion in the cause by an interested party and showing of changed circumstances. Modification of an order requires a two-step process. McGee v. McGee, 118 N.C.App. 19, 26, 453 S.E.2d 531, 536, disc. review denied, 340 N.C. 359, 458 S.E.2d 189 (1995); Trevillian v. Trevillian, 164 N.C.App. 223, 224, 595 S.E.2d 206, 207 (2004). First, a court must determine whether there has been a substantial change in circumstances since the date the existing child support order was entered. McGee, 118 N.C.App. at 26-27, 453 S.E.2d at 535-36; Newman v. Newman, 64 N.C.App. 125, 128, 306 S.E.2d 540, 541-42, disc. review denied, 309 N.C. 822, 310 S.E.2d 351 (1983). The 2006 Guidelines provide:

In a proceeding to modify the amount of child support payable under a child support order that was entered at least three years before the pending motion to modify was filed, a difference of 15% or more between the amount of child support payable under the existing order and the amount of child support resulting from application of the guidelines based on the parents' current incomes and circumstances shall be presumed to constitute substantial change of circumstances warranting modification of the existing child support order.

2006 Guidelines at 46. When the moving party has presented evidence that satisfies the requirements of the fifteen percent presumption, they do not need to show a change of circumstances by other means. Garrison v. Connor, 122 N.C.App. 702, 706, 471 S.E.2d 644, 647, disc. review denied, 344 N.C. 436, 476 S.E.2d 116 (1996) (finding a change of circumstances warranting an increase in defendant's child support when plaintiff presented evidence satisfying the requirements of the fifteen percent presumption and defendant presented no evidence). The Court's "determination of whether changed circumstances exist is a conclusion of law." Brooker v. Brooker, 133 N.C.App. 285, 289, 515 S.E.2d 234, 237 (1999).

Upon finding a substantial change in circumstances, the second step is for the court to enter a new child support order that modifies and supersedes the existing child support order. McGee, 118 N.C.App. at 26-27, 453 S.E.2d at 535-36. "Once a substantial change in circumstances has been shown by the party seeking modification, the trial court then ...