Plott v. Plott, 8221DC1069

• Decision Date: 20 December 1983
• Docket Number: No. 8221DC1069,8221DC1069
• Citation: 65 N.C.App. 657,310 S.E.2d 51
• Court: North Carolina Court of Appeals
• Parties: Gene Edward PLOTT v. Sylvia Faye Evans PLOTT.

Page 51

310 S.E.2d 51

65 N.C.App. 657

Gene Edward PLOTT v. Sylvia Faye Evans PLOTT.

No. 8221DC1069.

Court of Appeals of North Carolina.

Dec. 20, 1983.

David F. Tamer, Winston-Salem, for defendant-appellant.

Morrow & Reavis by John F. Morrow, Winston-Salem, for plaintiff-appellee.

JOHNSON, Judge.

In this appeal from an order requiring her to contribute to the financial support of the parties' minor child, the defendant mother challenges the trial court's finding of fact regarding her reasonable living expenses and available income, as well as the entry of the order requiring her to pay $150.00 in monthly child support and the sum of $1,687.50 in retroactive child support to the plaintiff father. We hold that the payments required of defendant by the order appealed from must be vacated and the cause remanded to the District Court for further proceedings.

The record discloses that this is the second time defendant's case has been presented to this Court. The facts are as follows: plaintiff and defendant were formerly husband and wife, having been married on 11 January 1964. On 12 August 1979 the parties separated and they did not thereafter resume the marital relationship. A judgment of absolute divorce was entered on 22 September 1982.

One child, Timothy Eugene Plott, was born of the marriage on 14 September 1969. The minor child has remained in the custody of the plaintiff father since the parties' separation. On 26 September 1980 the plaintiff moved for a determination of child custody and support. The parties entered into a consent order on 26 November 1980, under which plaintiff received custody of their minor child. The motion regarding support was heard in District Court, Forsyth County. On that same date, Judge Freeman entered an order containing findings of fact that the plaintiff's net income was $1800.00 per month; that his reasonable monthly living expenses were $1400.00; that the child's reasonable monthly living expenses were $615.00; and that defendant's net income was $850.00 per month and her reasonable monthly living expenses were $850.00. Based upon these findings of fact, the court concluded that the defendant mother should be required to pay as child support $135.00 per month and that plaintiff should be awarded a writ of possession of the parties' marital home. The defendant gave notice of appeal and on 3 November 1981, this Court, in an unpublished opinion 54 N.C.App. 493, 285 S.E.2d 879, reversed Judge Freeman's order and remanded the cause for further proceedings.

The first order compelling defendant to share in the financial responsibility of child support was reversed on two grounds: (1) the court's finding that defendant's reasonable needs equaled her net income tended to negate, rather than support, the conclusion that she is capable of providing support payments and (2) the order manifestly allocated an inordinate proportion of the total resources of the parties, the residence and combined earnings, to the plaintiff and the child.

We note that at the time of the first hearing, the relevant statute governing an action for the support of a minor child, G.S. 50-13.4(b) provided, in pertinent part:

In the absence of pleading and proof that circumstances of the case otherwise warrant, the father, the mother, or any person, agency, organization or institution standing in loco parentis shall be liable, in that order, for the support of a minor child. Such other circumstances may include, but shall not be limited to, the relative ability of all of the above-mentioned parties to provide support or the inability of one or more of them to provide support, and the needs and estate of the child.... (Emphasis added.)

The provision was construed to place the primary duty of providing child support on the father, in the absence of circumstances that "otherwise warrant." Accordingly, the mother's duty was held to be secondary, and a determination that the father could not reasonably provide all of the support had to precede the placing of any support obligation In June, 1981, these statutory provisions were amended to make both the father and mother primarily liable for the support of a minor child. See Session Laws, 1981, c. 613, s. 1. At the time of the second hearing, the relevant sentence of G.S. 50-13.4(b) (Cum.Supp.1981) read:

                on the mother.   In re Register, 303 N.C. 149, 277 S.E.2d 356 (1981);  Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).  Read in conjunction with its companion section, G.S. 50-13.4(c), 1 the "two statutes clearly contemplate a mutuality of obligation on the part of both parents to provide material support for their minor children where circumstances preclude placing the duty of support upon the father alone."  Coble v. Coble, 300 N.C. 708, 711, 268 S.E.2d 185, 188 (1980)
                

In the absence of peading and proof that the circumstances otherwise warrant, the father and mother shall be primarily liable for the support of a minor child, and any other person, agency, organization or institution standing in loco parentis shall be secondarily liable for such support. (Emphasis added.)

Subsection (c) was likewise amended to require that the court give due regard to "the child care and homemaker contributions of each party" in setting the amount of child support payments.

Thus, in hearings and trials held after 1981, both parents have equal support duties under the law, absent pleading and proof that circumstances otherwise warrant. In a survey of 1981 family law, 60 N.C.L.Rev. 1379, 1394 (1982), the author remarked, "Although many others cannot actually contribute equally to support their children, this amendment reflects the reality that more mothers are now financially able to share childraising responsibilities with the father." It is noteworthy that although the amendment had the effect of changing the previous rule that the mother was only secondarily liable for child support, in all other relevant respects involving the relative ability or inability of the mother and father to provide such support, the relevant statutory provisions remained unchanged. This Court, in Wilkes County v. Gentry, 63 N.C.App. 432, 305 S.E.2d 207 (1983), noted in passing that although G.S. 50-13.4(b) now places the primary liability for the support of a minor child on both parents, other circumstances may properly be considered, including the relative ability of the parties to pay. G.S. 50-13.4(c). Against this backdrop, the second hearing to determine defendant's support obligation was conducted.

Both parties testified before Judge Tash and both parties submitted affidavits of financial standing. Based upon this evidence, the trial court made the following pertinent findings of fact and conclusions of law:

FINDINGS OF FACT

(5) The gross income of the plaintiff is $2,916.67 per month; that the plaintiff's net income after taxes is $1,980.65; that the reasonable living expenses of the plaintiff, including payments due on the outstanding loans, are $1,114.25 per month; that the available income of the plaintiff over and above his reasonable expenses is approximately $886.00 per month;

(6) The gross income of the defendant is $1,285.00 per month; that the defendant's net income after taxes if (sic) $957.48 per month; that the reasonable living expenses of the defendant, including payments due on outstanding loans, is $777.00 per month; that the available income of the defendant over and above her reasonable expenses is approximately $180.00 per month;

(7) The reasonable needs of the minor child of the parties for health, education (12) The relative ability of the plaintiff to provide support for the minor child of the parties is approximately four times the ability of the defendant to provide said support;

and maintenance is approximately $625.00 per month ...

(16) The defendant has savings in her credit union in an amount of approximately $2,500.00, and that said amount is in excess of monies owed to said credit union; that the defendant owes her attorney $5,276.00 for legal services.

CONCLUSIONS OF LAW

(1) Taking into consideration the reasonable needs of the minor child for health, education and maintenance and having due regard to the earnings, conditions, accustomed standard of living of the child of the parties, the child care and homemaker contributions of each party, and other facts of this particular case, including, inter alia, the fact that the plaintiff is being awarded a writ of possession of the former homeplace of the parties and the household and kitchen furnishings therein as part of the order of child support herein, the defendant should be ordered to pay child support into the Office of the Clerk of Superior Court of Forsyth County, North Carolina, in the amount of $150.00 per month ...

(3) As the defendant has not provided financial support for the minor child of the parties since the hearing conducted herein in November, 1980, and as the terms and provisions of N.C.G.S. 50-13.3(b) were amended and became effective on June 18, 1981, while the previous order entered herein was being appealed from by the defendant and while said case was pending appeal, the defendant should be ordered to pay retroactive child support from June 18, 1981, and not from the date of the original hearing herein;

(4) Taking into consideration the reasonable needs of the minor child for health, education and maintenance and having due regard to the earnings, conditions, accustomed standard of living of the child of the parties, the child care and homemaker contributions of each party, and other facts of this particular case, the defendant should be ordered to pay $135.00 per month retroactive support payments, a total of $1,687.50 for 12 1/2 months, on or before the 17 day of September, 1982.

Defendant assigns error to the trial court's finding of fact related to her reasonable living expenses and available income and to the conclusions of law fixing her child support...