Roberts v. McAllister

Decision Date15 November 2005
Docket NumberNo. COA04-1045.,COA04-1045.
Citation621 S.E.2d 191
CourtNorth Carolina Supreme Court
PartiesSusan Sinclair McAllister ROBERTS, Plaintiff-Appellant, v. Michael W. McALLISTER, Defendant-Appellee.

Wyrick, Robbins, Yates & Ponton, L.L.P., by K. Edward Greene, and Heidi C. Bloom, Raleigh, for plaintiff-appellant.

Ingrid K. Friesen, P.A., by Ingrid K. Friesen, Asheville, for defendant-appellee.

BRYANT, Judge.

Susan Sinclair McAllister Roberts (plaintiff) appeals from an order dated 23 December 2003 awarding Michael W. McAllister (defendant) child support in the amount of $800.00 per month for their three children, half of the uninsured medical expenses for their children and attorneys' fees in the amount of $2,500.00.

Plaintiff and defendant were married on 7 February 1987 and separated on 7 July 1999 when defendant left the marital home. Plaintiff and defendant are the parents of three minor children: a son born 25 May 1993; a daughter born 29 January 1995; and another daughter born 4 October 1997. Plaintiff has a bachelor's degree in journalism from the University of North Carolina and for the first five years of the parties' marriage, she worked in various public relations positions. The maximum income plaintiff earned was $25,000.00 in 1993, which was the last year plaintiff worked during the marriage. By mutual agreement of the parties, plaintiff did not work outside the home following the birth of their first child in 1993. During the marriage, plaintiff was a homemaker, the children's primary caregiver, and their home-school teacher. For the duration of the marriage, plaintiff, defendant and the three minor children lived solely on defendant's income, which at the time of the parties' separation was $39,000.00. Following their separation, plaintiff and defendant agreed plaintiff would not return to work until the youngest child started kindergarten in August 2003.

Defendant remarried in March 2001 and lives in Charlotte. Together, defendant and his wife have a daughter who was born 21 May 2000. Defendant's wife has primary custody of her two children from her first marriage. Following the entry of the McAllister custody order in September 2002, defendant, his wife and their six children all live primarily together. Defendant is employed at York Technical College, earning approximately $40,000.00 per year. Defendant's gross income per month is $3,351.33 and his net income is $2,575.00 per month. Defendant maintains health insurance for his wife and their six children at a cost of $254.00 per month.

In December 2000, plaintiff remarried a physician, Scott Roberts and moved to Rockville, Maryland. After a few years, they returned to Asheville, North Carolina, where Dr. Roberts earned approximately $300,000.00 per year. In June 2003, plaintiff and Dr. Roberts had a son. Plaintiff intends to stay home and provide full time care for their son, until he is at least school age. Plaintiff's estate consists of a savings account of $3,500.00 and a checking account with approximately $30,000.00, both of which are joint accounts with Dr. Roberts. Plaintiff and Dr. Roberts also have a joint account containing $50,000.00 in proceeds from the sale of their Maryland house. Dr. Roberts also receives $300.00 per month from the sale of the home he owned prior to his marriage to plaintiff. Plaintiff has no income, and aside from the joint accounts, she has a one-fifth interest of undetermined value in her deceased mother's home.

On 20 August 1999 plaintiff filed a complaint against defendant seeking child custody, child support, postseparation support, alimony, equitable distribution and attorneys' fees. Defendant filed an answer and counterclaim on 7 October 1999, asserting his own claims for child custody, child support and equitable distribution. On 13 July 2000 plaintiff and defendant entered into a consent judgment resolving the issues of equitable distribution, child custody, child support arrearages, prospective child support, postseparation support, and alimony. Pursuant to the 13 July 2000 order: plaintiff was awarded, inter alia, primary custody of the parties' three children; $18,800.00 from defendant for the payment of back child support and lump sum alimony; a portion of the proceeds from the sale of their home; and defendant was ordered to pay plaintiff $875.00 per month in child support.

On 11 April 2002 defendant filed a motion to modify the custody order of 13 July 2000. Plaintiff filed her own motion to modify child custody on 8 May 2002. On 3 September 2002, the trial court entered an order modifying the July 2000 order by awarding the parties joint legal and physical custody. The 3 September 2002 order suspended defendant's obligation to pay child support.

On 9 October 2002 plaintiff filed a motion in the cause requesting a modification of the 3 September 2002 order to clarify the circumstances of her parenting time; specifically, whether the children could visit her in Maryland. On 16 October 2002, defendant filed a response as well as a motion for child support. On 30 July 2003 defendant filed a notice of intent to deviate from guidelines and on 18 September 2003 counsel for defendant filed an affidavit of attorneys' fees. On 23 December 2003, the trial court entered an order requiring plaintiff to pay defendant $800.00 per month as prospective child support. The trial court further ordered plaintiff to pay defendant $10,400.00 for child support arrearages accruing from September 2002 through the date of the support hearing and attorneys' fees in the amount of $2,500.00. Plaintiff appeals.

The issues on appeal are whether the trial court: (I) abused its discretion in deviating from the N.C. Child Support Guidelines; (II) erred by entering an order requiring plaintiff to pay child support; (III) erred by awarding defendant $800.00 per month in child support for the thirteen months between the date of entry of the custody order and the date of the support hearing; (IV) erred in requiring plaintiff to pay one-half of the uninsured medical expenses for the minor children; and (V) abused its discretion in ordering plaintiff to reimburse defendant for his attorneys' fees.

I

The first issue plaintiff raises on appeal is whether the trial court abused its discretion in deviating from the N.C. Child Support Guidelines (Guidelines). Plaintiff argues the trial court erred in imputing minimum income to plaintiff and then concluding application of the Guidelines would not meet the reasonable needs of the children.

Under N.C. Gen.Stat. § 50-13.4(c), a court "shall determine the amount of child support payments by applying the presumptive guidelines established pursuant to subsection (c1) of this section." N.C.G.S. § 50-13.4(c) (2003). Child support set in accordance with the Guidelines "is conclusively presumed to be in such amount as to meet the reasonable needs of the child and commensurate with the relative abilities of each parent to pay support." Buncombe County ex rel. Blair v. Jackson, 138 N.C.App. 284, 287, 531 S.E.2d 240, 243 (2000). The trial court may, however, deviate from the Guidelines if:

after considering the evidence, the Court finds by the greater weight of the evidence that the application of the guidelines would not meet or would exceed the reasonable needs of the [children] considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate....

N.C.G.S. § 50-13.4(c) (2003). In deviating from the Guidelines, the trial court must follow a four-step process:

First, the trial court must determine the presumptive child support amount under the Guidelines. Second, the trial court must hear evidence as to the reasonable needs of the [children] for support and the relative ability of each parent to provide support. Third, the trial court must determine, by the greater weight of this evidence, whether the presumptive support amount would not meet or would exceed the reasonable needs of the [children] considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate. Fourth, following its determination that deviation is warranted, in order to allow effective appellate review, the trial court must enter written findings of fact showing the presumptive child support amount under the Guidelines; the reasonable needs of the [children]; the relative ability of each party to provide support; and that application of the Guidelines would exceed or would not meet the reasonable needs of the [children] or would be otherwise unjust or inappropriate.

Spicer v. Spicer, 168 N.C.App. 283, 292, 607 S.E.2d 678, 685 (2005) (citation omitted). Our Supreme Court has explained that "an order for child support must be based upon the interplay of the trial court's conclusions of law as to (1) the amount of support necessary to `meet the reasonable needs of the child' and (2) the relative ability of the parties to provide that amount." Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980). These conclusions must in turn be based on factual findings "specific enough to indicate to the appellate court that the judge below took due regard of the particular estates, earnings, conditions, [and] accustomed standard of living of both the child and the parents." Id. (internal quotation marks omitted). In reviewing child support orders, our review is limited to a determination whether the trial court abused its discretion. Leary v. Leary, 152 N.C.App. 438, 441, 567 S.E.2d 834, 837 (2002). Under this standard of review, the trial court's ruling will be overturned only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision. Id. The trial court must, however, make sufficient findings of fact and...

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  • Lafrance v. Lafrance
    • United States
    • South Carolina Court of Appeals
    • 2 Octubre 2006
    ...to impute income to a parent who is voluntarily unemployed is a determination based in part on the conduct of the parent." Roberts v. McAllister, 621 S.E.2d 191, 198. (N.C.Ct.App.2005) (citing Wolf v. Wolf, 151 N.C.App. 523, 566 S.E.2d 516 (2002)). The "earning capacity rule" is the basis f......
  • McKyer v. McKyer
    • United States
    • North Carolina Court of Appeals
    • 15 Agosto 2006
    ...Yet, this showing may be met by a sufficient degree of indifference to the needs of a parent's children. In Roberts v. McAllister, ___ N.C.App. ___, 621 S.E.2d 191 (2005), appeal dismissed, 360 N.C. 364, 629 S.E.2d 608 (2006), the supporting spouse had remarried a wealthy doctor and ceased ......
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    • North Carolina Court of Appeals
    • 20 Octubre 2009
    ...to [the children's] need for financial support" is a sufficient basis from which to impute income. Roberts v. McAllister, 174 N.C. App. 369, 379, 621 S.E.2d 191, 198 (2005) (internal quotation marks omitted), appeal dismissed, 360 N.C. 364, 629 S.E.2d 608 The findings of fact stated above d......
  • Nicks v. Nicks
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    ...a party and thereby lower the amount of a child support award based on that party's earning capacity. See, e.g., Roberts v. McAllister, 174 N.C.App. 369, 621 S.E.2d 191 (2005), appeal dismissed, 360 N.C. 364, 629 S.E.2d 608 (2006). However, "[b]efore the earnings capacity rule is imposed, i......
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