Rose v. Rose

• Decision Date: 17 November 1992
• Docket Number: No. 9112DC735,9112DC735
• Citation: 108 N.C.App. 90,422 S.E.2d 446
• Parties: Gail B. ROSE, Plaintiff, v. Robert Thomas ROSE, Defendant.
• Court: North Carolina Court of Appeals

Page 446

422 S.E.2d 446

108 N.C.App. 90

Gail B. ROSE, Plaintiff, v. Robert Thomas ROSE, Defendant.

No. 9112DC735.

Court of Appeals of North Carolina.

Nov. 17, 1992.

Bobby G. Deaver, Fayetteville, for plaintiff-appellee.

Harris, Mitchell, Hancox, & VanStory by Ronnie M. Mitchell, Ellen B. Hancox, and Kathleen G. Sumner, Fayetteville, for defendant-appellant.

LEWIS, Judge.

Plaintiff and defendant were married on 4 March 1972. Two children were born of the marriage, both of whom are minors. On 24 January 1986 the parties executed a separation agreement, the terms of which included provisions for child support, child custody and visitation, and for the division of their property. According to our review of the record, we are unable to ascertain the date the divorce decree was entered. However, the separation agreement was not incorporated into the divorce order. The record indicates that only the defendant has remarried, and the plaintiff continues to reside in the marital residence with the two minor children.

On 28 March 1990 plaintiff-wife filed a complaint with the Cumberland County District Court, alleging that the defendant had breached the terms of the separation agreement. She asked for specific performance of the agreement and that the court incorporate the separation agreement into the judgment. This action came to trial, and an order was signed by the District Court judge on 13 May 1991. The defendant-husband appeals.

The court expressly declined to incorporate the separation agreement into the 13 May 1991 order. The provisions in the order relating to custody, visitation and the obligations of the parties with regard to extraordinary medical and dental expenditures for the minor children are not in dispute.

The findings of fact pertinent to the present case are set out below:

10. That under the separation agreement which was entered into between the parties, the Defendant has been paying expenses toward the maintenance of the family residence as child support in the sum of $1,386.00 per month.

11. That based upon the child support guidelines which were enacted on July 1, 1990, the basic child support for the two minor children should be $890.00 per month; that the Defendant should pay to the Plaintiff as child support an amount equal to the first and second mortgages of the marital residence, the Cumberland County ad valorem taxes, and the property insurance which said amount is in the sum of $1,009.70 per month; that the difference in said sum of $1,386.00 per month which the Defendant was paying pursuant to the separation agreement and the sum of $1,009.70 will be deducted from the Defendant's equity in the marital residence.

The conclusions of law reflected these findings, and the court therefore ordered:

2. That the Defendant be and is hereby ordered to pay directly to the Plaintiff each month an amount equal to the first and second mortgages on the marital residence, the Cumberland County ad valorem taxes and the property insurance which amount is in the total sum of $1,009.70 per month as support for the two minor children; that the difference in said sum of $1,386.00 per month which the Defendant was paying pursuant to the separation agreement and the sum of $1,009.70 shall be deducted from the Defendant's equity in the marital residence at the rate of $376.30 per month, as a further portion of child support.

Defendant brings several arguments to this Court. First, he asserts that the lower court erred by deviating from the North Carolina Child Support Guidelines when it determined the amount of support for which defendant is responsible. Defendant further contends that the order's findings of fact are insufficient to support the amount of child support ordered, and as a result the presumptive amount as determined by application of the Child Support Guidelines constitutes the appropriate amount of his obligation for child support.

The present North Carolina Child Support Guidelines have been in place since 1 October 1990 and are therefore applicable to the order presently before us. The guidelines are presumptive and are used by courts to properly determine child support obligations. Greer v. Greer, 101 N.C.App. 351, 352, 399 S.E.2d 399, 400 (1991). Failure to follow the guidelines constitutes reversible error. Id. at 354, 399 S.E.2d at 401. Trial courts are permitted to deviate from the guidelines only after a party requests the court hear evidence "relating to the reasonable needs of the child for support and the relative ability of each parent to provide support." N.C.G.S. § 50-13.4(c) (Cum.Supp.1991). If the court finds, after examination of the evidence, that

application of the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate the Court may vary from the guidelines. If the court orders an amount other than the amount determined by application of the presumptive guidelines, the court shall make findings of fact as to the criteria that justify varying from the guidelines and the basis for the amount ordered.

N.C.G.S. § 50-13.4(c).

Defendant contends that the court improperly deviated from the presumptive guidelines because there was no notice of a request for a hearing to determine the reasonable needs of the children or the relative ability of the parents to pay support. However, the record indicates that evidence was...