Plott v. Plott

• Decision Date: 27 February 1985
• Docket Number: No. 27PA84,27PA84
• Citation: 313 N.C. 63,326 S.E.2d 863
• Parties: Gene Edward PLOTT v. Sylvia Faye Evans PLOTT.
• Court: North Carolina Supreme Court

Page 863

326 S.E.2d 863

313 N.C. 63

Gene Edward PLOTT v. Sylvia Faye Evans PLOTT.

No. 27PA84.

Supreme Court of North Carolina.

Feb. 27, 1985.

Morrow & Reavis by John F. Morrow and Clifton R. Long, Jr., Winston-Salem, for plaintiff-appellant.

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

FRYE, Justice.

The primary issues involved in this appeal are whether a trial court during a child support hearing must make factual findings to support its conclusion that only a part of the expenses claimed by a party are reasonable, and whether a trial court abuses its discretion by applying a formula to determine the non-custodial parent's proportionate share of child support. We answer the first question yes and the second question, no.

I.

Plaintiff husband and defendant wife were married on 11 January 1964 and divorced almost seventeen years later on 22 September 1980. One child, Timothy, was born of the marriage on 14 September 1969. Timothy has continuously been in the custody of plaintiff since the parties separated on 12 August 1979. On 26 November 1980, a consent order was entered granting custody of the child to plaintiff and granting defendant visitation privileges. On that same day, Judge William H. Freeman entered an order requiring the non-custodial mother, the defendant, to pay $135.00 monthly as child support. The plaintiff was also given possession of the couple's homeplace as part of the child support.

Defendant appealed from Judge Freeman's order and on 3 November 1981 the North Carolina Court of Appeals, in an unpublished opinion, reversed the order for child support and remanded the case for further proceedings. 54 N.C.App. 493, 285 S.E.2d 879. In its decision, the Court of Appeals quoted from and applied G.S. 50-13.4(b) (amended 1981), which made the father primarily responsible for support of his children. The Court of Appeals concluded that the trial court erred in compelling defendant to share in supporting the child because: 1) the findings indicated her net income equaled her expenses; and 2) an inordinate proportion of the total resources, combined earnings, and the residence of the parties was allocated to the plaintiff and child.

At a second hearing on 7 July 1982, before Judge Gary B. Tash, defendant was ordered to pay $150.00 a month child support, commencing 1 October 1982 and retroactive child support from 18 June 1981 totaling $1,687.50.

Judge Tash, after considering all the evidence contained in the parties' financial affidavits and their limited oral testimony, made certain findings of facts and conclusions of law. Contained in Judge Tash's order are the following relevant findings and conclusions:

(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 and maintenance is approximately $625.00 per month....

(10) ... that the plaintiff further provides child care and homemaker contributions in the homeplace of the plaintiff and minor child of a value of approximately $130.00 per month;

(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;

(13) Neither party presented evidence concerning his or her estate, and the Court, therefore, did not take into consideration the estates of the parties in entering its order herein;

(14) The reasonable expenses of the parties and the child referred to above represent expenses that are consistent with the accustomed standard of living of the child and the parties prior to the separation of the parties;

(15) In ordering the defendant to provide financial support for the minor child of the parties, the Court should and has taken into consideration the value of the defendant's interest in the former homeplace of the parties and the household and kitchen furnishings located in said former homeplace, for which the plaintiff is being granted a writ of possession;

Based upon the foregoing findings of fact, the Court makes the following conclusion 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 (sic) 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 to the (sic) disbursed to the plaintiff at Post Office Box 276, Clemmons, North Carolina, 27012.

(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 (sic) 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 17th day of September, 1982;

It was also stipulated between the parties that the plaintiff would be awarded a writ of possession of the former homeplace and all household and kitchen furnishings located therein and that this property would be considered as part of the child support.

Again, the defendant appealed to the Court of Appeals. For reasons explained hereafter, that court vacated Judge Tash's order and remanded the cause for further proceedings not inconsistent with its opinion. Plott v. Plott, 65 N.C.App. 657, 310 S.E.2d 51 (1983). Additional facts deemed relevant to our resolution of the issues before us will be incorporated in this opinion.

II.

The issues raised by the plaintiff generally relate to the appropriateness of the amount of child support to be paid by the mother, who is the non-custodial parent. Before considering this question, some attention must be devoted to the law that governs actions for support of a minor child. The Court of Appeals correctly concluded that at the time of the second hearing G.S. 50-13.4(b) (Cumm.Supp.1981) imposed primary liability upon both the father and mother to support a minor child. ¹ That statute, in pertinent part, states:

(b) In the absence of pleading and proof that the circumstances otherwise warrant, the father and mother shall be primarily liable for the support of a minor child.... Such other circumstances may include, but shall not be limited to, the relative ability of all 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. The judge may enter an order requiring any one or more of the above-mentioned parties to provide for the support of the child as may be appropriate in the particular case....

Today, the equal duty of both parents to support their children is the rule rather than the exception in virtually all states. H. Krause, Child Support in America: The Legal Perspective 4-5 (1981). "[T]he parental obligation for child support is not primarily an obligation of the father but is one shared by both parents." Rand v. Rand, 280 Md. 508, 516, 374 A.2d 900, 905 (1977); see generally, Kurtz, The State Equal Rights Amendments and Their Impact on Domestic Relations Law, 11 Fam.L.Q. 101 (1977-78) (discussing ramifications of the equal duty of support on the mother). This equal duty to support, however, does not impose upon both parties an equal financial contribution when such an allocation would be unfair or place too great a burden on a party. Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976). In fact, it has been recognized that the equal duty to support does not necessarily mean the amount of child support is to be automatically divided equally between the parties. "Rather, the amount of each parent's obligation varies in accordance with their respective financial resources." German v. German, 37 Md.App. 120, 123, 376 A.2d 115, 117 (1977).

The amount of each party's contribution to child support is generally determined by the judge on a case-by-case basis. The judge must evaluate the circumstances of each family and also consider certain statutory requirements in fixing the amount of child support. Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982). G.S. 50-13.4(c) mandates that the trial judge consider the following factors in setting child support amounts:

(c) Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to 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.

To comply with G.S. 50-13.4(c), the order for child support must be premised upon the interplay of the trial court's conclusions of law as to the amount...