Pascoe v. Pascoe

• Decision Date: 05 June 2007
• Docket Number: No. COA06-1004.,COA06-1004.
• Citation: 645 S.E.2d 156
• Parties: Claudia H. PASCOE, Plaintiff, v. Dale G. PASCOE, Defendant.
• Court: North Carolina Court of Appeals

645 S.E.2d 156

Claudia H. PASCOE, Plaintiff, v. Dale G. PASCOE, Defendant.

No. COA06-1004.

Court of Appeals of North Carolina.

June 5, 2007.

Appeal by defendant from order entered 24 March 2006 by Judge Anne B. Salisbury in Wake County District Court. Heard in the Court of Appeals 7 March 2007.

Tharrington Smith L.L.P., by Jill Schnabel Jackson, Raleigh, for plaintiff-appellee.

Charles H. Montgomery, Cary, for defendant-appellant.

ELMORE, Judge.

Defendant appeals the district court's 24 March 2006 order requiring defendant to pay child support in the amount of $1,745.00.

Plaintiff and defendant were married in 1987, and are the parents of one daughter, Kristen, born 7 August 1991. The parties separated on 15 September 2002. On 27 June 2003, the parties entered into a separation agreement providing for joint custody of Kristen, with plaintiff having primary residential custody (the agreement).

The agreement provides for defendant to pay $500.00 per month in child support, half of all non-reimbursed medical expenses, and half of all extraordinary child expenses upon which the parties mutually agreed. Defendant voluntarily increased his monthly child support payments to $825.00 in September, 2005. The parties agreed that the increased payments would be retroactive to the date of the agreement. Defendant paid a lump sum representing the increased amount for each intervening month.

Following the separation and divorce, plaintiff brought a claim for additional child support. The hearing on that claim was held on 15 December 2005. At the time of the hearing, each party's net worth exceeded one million dollars. Additionally, both parties maintained full-time employment and earned average monthly incomes in excess of $10,000.00. The trial court's treatment of the case using an above-the-guidelines, high income family standard was therefore uncontested.

The trial court found that since the agreement, defendant's income had increased substantially, while plaintiff's income had increased by only a small amount. Despite these financial changes, the agreement split Kristen's expenses evenly between the parties. Additionally, the trial court determined that Kristen's reasonable needs were almost three times the amount covered by the agreement. The trial court found that by presenting these changed financial circumstances, plaintiff had effectively rebutted the presumption that the child support amount agreed to in the agreement was reasonable.

The trial court's findings of fact include an updated analysis of Kristen's total reasonable needs while in plaintiff's care, which totaled $3,206.85 per month. The court found that plaintiff's pro rata share of the parties' gross income at the time of the hearing was 45.6 percent; plaintiff's pro rata share of Kristen's reasonable needs while in her custody was therefore $1,462.00 per month. Per these calculations, the court ordered defendant to pay the remaining $1,745.00 in monthly support for Kristen as well as expenses incurred while Kristen is in his custody. It is from this order that defendant appeals.

Defendant first contends that the trial court did not properly consider Kristen's needs at the houses of both parents and focused solely on her needs while in plaintiff's care. Specifically, defendant notes that the trial court did not give him an offset for the expenses he paid while Kristen was in his custody. Moreover, defendant urges, the trial court erred in determining that some of plaintiff's insurance expenses should be considered as part of the shared expenses. "Absent a clear abuse of discretion, a judge's determination of what is a proper amount of support will not be disturbed on appeal." Plott v. Plott, 313 N.C. 63, 69, 326 S.E.2d 863, 868 (1985).

Under N.C. Gen.Stat. § 50-13.4(c), child support must meet the reasonable needs of the child. In determining the amount of support, the court should consider "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." N.C. Gen.Stat. § 50-13.4(c) (2005).

In this case, defendant has not assigned error to the trial court's findings of fact Nos. 11-18 (with the exception of the inclusion of half of plaintiff's monthly insurance premium in finding of fact No. 12). These findings of fact include a detailed analysis of Kristen's reasonable needs while in both plaintiff's and defendant's custody, as well as a finding that the amount in the agreement was inadequate and therefore did not influence the trial court's decision. Significantly, defendant does not assign error to the overall determination of Kristen's reasonable needs in finding of fact No. 14. Nor did defendant assign error to finding of fact No. 17, which describes Kristen's monthly needs while in defendant's custody. The finding also states, "The reasonable monthly expenses paid by Dale Pascoe . . . have been considered by the [c]ourt in determining defendant's ability to pay an appropriate amount of child support to plaintiff for the benefit of the minor child."

Findings of fact to which no error is assigned "are presumed to be supported by competent evidence and are binding on appeal." In re A.S., ___ N.C.App. ___, ___, 640 S.E.2d 817, 819 (2007) (citing Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)). Though defendant did assign error to the trial court's finding of fact No. 12, which included the insurance payments made by plaintiff, defendant failed to assign error to the court's total calculated reasonable expenses. Defendant does not assign error to the overall determination of Kristen's reasonable...