Leary v. Leary

• Decision Date: 20 August 2002
• Docket Number: No. COA01-1020.,COA01-1020.
• Parties: James Mitchell LEARY, Plaintiff, v. Susan Mullis LEARY, Defendant.
• Court: North Carolina Court of Appeals

567 S.E.2d 834

152 NC App. 438

James Mitchell LEARY, Plaintiff, v. Susan Mullis LEARY, Defendant.

No. COA01-1020.

Court of Appeals of North Carolina.

August 20, 2002.

Henry T. Drake, Wadesboro, for plaintiff-appellant.

No brief filed by defendant-appellee.

WALKER, Judge.

Plaintiff and defendant were married on 25 November 1988 and were separated on 8 June 1998. There were two children born of the marriage. On 16 October 1998, plaintiff filed a complaint seeking custody, child support, divorce from bed and board, and equitable distribution. On 9 November 1998, defendant counterclaimed for post-separation support, permanent alimony, equitable distribution, and reasonable attorney's fees. On 20 October 2000, based upon his income and his perceived needs of the children, plaintiff petitioned the trial court to deviate from the North Carolina Child Support Guidelines (Guidelines). Both parties filed affidavits of financial standings with the trial court.

On 17 January 2001, the trial court heard evidence and arguments of counsel on the issues of child support and attorney's fees. All other matters were previously resolved through a consent order. The trial court issued an order, signed 5 February 2001 and filed 9 February 2001, which found the following in part:

8. That this Court has specifically reviewed the incomes of the parties, the expenses of the parties, and the reasonable needs of the minor children.

9. That the Plaintiff has a gross monthly income from his employment with Leary Brothers Logging, Inc. of $2,816.64; that the Court imputes to the Plaintiff as additional monthly income the sum of $250.00 due to the fact that the Plaintiff has the use and benefit of a company vehicle pursuant to his employment, and based on the fact that the Plaintiff testified he has no personal vehicle and uses the Company vehicle for all driving; the Plaintiff's adjusted monthly adjusted gross income is $3,066.64[.]

10. That the Defendant is employed by CMH Flooring in Wadesboro, North Carolina, and has a gross monthly income of $1,733.32.

11. The Plaintiff carries health insurance on behalf of the minor children through his employment at Leary Brothers Logging, Inc., at no monthly expense to the Plaintiff.

12. That Plaintiff's and Defendant's combined gross monthly income, rounded to the nearest dollar is $4,801.00. The basic support amount pursuant to the North Carolina Child Support Guidelines is $997.00.

13. The Defendant pays for after school care and summer care for the minor children at Peachland Polkton after school program. Seventy-five percent of the Defendant's average monthly expense is $108.00.

14. The Court, based upon the evidence presented, specifically declines to deviate from the North Carolina Child Support Guidelines in this case.

15. The Plaintiff earns sixty-three (63%) of the total combined support, and the Defendant earns thirty-seven (37%) of the total combined support.

16. The Plaintiff's share of monthly support to be paid to the Defendant for the use and benefit of the minor children is $706.00 per month.

The trial court ordered the following in part:

1. The Plaintiff shall pay child support to the Defendant for the use and benefit of the minor children in the amount of $706.00 per month....

...

3. The Plaintiff shall maintain health insurance on behalf of the minor children.

4. The Plaintiff shall be responsible to pay sixty-three percent of all uninsured medical and dental expenses incurred on behalf of the minor children....

In response to defendant's request for reasonable attorney's fees, the trial court found and awarded the following in part:

17. The Defendant, since the entry of the Order on temporary custody and child support, has paid one-hundred percent of all day care costs and uninsured medical expenses incurred on behalf of the minor children.

18. The Defendant is still making monthly payments for at least two medical bills incurred by the children, with balances outstanding to date.

...

20. The Defendant, based upon her payment of all uninsured medical expenses for the children for the past two years, and based upon the fact that at least two such bills have outstanding balances to be paid, does not have the means or ability to pay her reasonable attorney's fees.

21. The Plaintiff has the means and ability to pay the Defendant's attorney's fees for the establishment of permanent child support.

22. The Court finds that the sum of six hundred dollars ($600.00) is a reasonable attorney's fee, and such amount shall be paid by the Plaintiff to attorney Donna B. Stepp at the rate of $50.00 per month until paid in full. Such payment is to be made monthly to the Anson County Clerk of Superior Court for dispersal to Donna B. Stepp until $600.00 is paid in full.

Plaintiff first assigns error to the award of child support. 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. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). Under this standard of review, the trial court's ruling "will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." Id. In a case for child support, the trial court must make specific findings and conclusions. Dishmon v. Dishmon, 57 N.C.App. 657, 660, 292 S.E.2d 293, 295 (1982). The purpose of this requirement is to allow a reviewing court to determine from the record whether a judgment, and the legal conclusions which underlie it, represent a correct application of the law. Id. at 659, 292 S.E.2d at 295.

Plaintiff contends the facts, as found by the trial court, are not supported by competent evidence. Specifically, defendant contends that the trial court erred in imputing $250.00 per month to plaintiff's gross income since he had the benefit of the company vehicle.

The Guidelines stipulate that "[e]xpense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business should be counted as income if they are significant and reduce personal living expenses. Such payments might include a company car...." N.C. Child Support Guidelines, Annotated Rules of North Carolina 35 (2002). Here, the record indicates that the vehicle driven by plaintiff was owned by Leary Brothers Logging, Inc. (Leary Brothers). The record further shows that Leary Brothers pays for the vehicle's maintenance, insurance, and, according to plaintiff's testimony, "around three hundred dollars for gas" monthly. Thus, there is sufficient evidence to support the trial court's finding that plaintiff's benefit of an all expense paid company vehicle was worth $250.00 per month to him.

In addition, plaintiff contends the trial court failed to make proper findings upon his request for a deviation from the Guidelines. "Although section 50-13.4(c) and the Guidelines require findings of fact only when the trial court deviates from the Guidelines, effective appellate review also requires findings to support a denial of a party's request for deviation." Buncombe County ex rel Blair v. Jackson, 138 N.C.App. 284, 288, fn. 7, 531 S.E.2d 240, 243, fn. 7 (2000).

Here, the trial court made findings as to the incomes of both parties and the presumptive reasonable needs of the children. The trial court was presented with affidavits of financial standings from both parties. Plaintiff's affidavit reflected that the reasonable needs of the children to be $765.00 per month. On the other hand, defendant's affidavit reflected the reasonable needs of the children were in excess of $1,000.00 per month. The trial court specifically declined to deviate from the Guidelines, finding the presumptive support amount for the children to be $997.00 per month. Plaintiff's share would be $706.00 per month. Thus, the evidence supports the findings which in turn support the denial of the request for deviation from the Guidelines.

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