Sain v. Sain

• Decision Date: 03 August 1999
• Docket Number: No. COA98-1024.,COA98-1024.
• Citation: 134 NC App. 460,517 S.E.2d 921
• Court: North Carolina Court of Appeals
• Parties: Donna Ellen SAIN, Plaintiff, v. James Phillip SAIN, Defendant.

517 S.E.2d 921

134 NC App. 460

Donna Ellen SAIN, Plaintiff, v. James Phillip SAIN, Defendant.

No. COA98-1024.

Court of Appeals of North Carolina.

August 3, 1999.

Daniel R. Green, Jr., Hickory, for plaintiff-appellant.

H. Kent Crowe, P.A., by H. Kent Crowe, Newton, for defendant-appellee.

GREENE, Judge.

Donna Ellen Sain (Plaintiff) appeals from the trial court's child custody and support order.

On 18 June 1992, the trial court entered an order awarding Plaintiff and her ex-husband, James Phillip Sain (Defendant) joint custody of their minor child (Melissa). The order set Defendant's child support obligation, provided that Plaintiff would have primary custody of Melissa, and provided that Defendant would have physical custody of Melissa every other weekend during the school year and at additional times during vacations and holidays. At that time, Defendant's gross monthly income was $1,720.00, and Plaintiff's gross monthly income was $726.00.

On 12 June 1997, Plaintiff filed a motion in the cause seeking modification of the custody and support order. In her motion, Plaintiff sought sole custody of Melissa, limitation of Defendant's visitation privileges, and "adequate" child support. Defendant filed a motion in the cause on 20 August 1997 seeking a reduction in his child support obligation because he was no longer able to work due to a disability, his income had decreased to disability payments of $800.00 per month and "$412.00 per month on behalf of the minor child as income," ¹ and Plaintiff's income had increased.

In February 1998, the trial court heard testimony from both parties, ten-year-old Melissa, several counselors, Carol Blevins (Blevins) and Sandra Robbins (Robbins) of the Department of Social Services (DSS), and various other individuals. Melissa's school counselor, who never noticed any unusual bruises on Melissa, testified that Melissa would "say that her mother told her she needed to come and see me" concerning allegations of abuse and neglect by Defendant. Blevins testified that she had investigated the allegations on behalf of DSS and that Melissa "could not give me any clear details" to support the allegations. Melissa was "very inconsistent" in her statements and would not maintain "good eye contact" during the interviews. Blevins further testified that "[n]o injuries ha[d] ever been observed by DSS." Robbins had substantiated one report of neglect for DSS. Robbins testified she "couldn't get a clear understanding from either [Defendant or Melissa]" as to the circumstances supporting the allegation, and that she found Melissa to be very bright and manipulative. Robbins stated that Melissa had apparently "hit [Defendant] with a belt" during an argument, and Defendant acknowledged to Robbins that, in response to this behavior, he had "grabbed [Melissa] and held her." Robbins testified that although she did not consider this to be appropriate discipline, "some psychologists ... will actually give that as an option to a parent."

Based on the evidence presented, the trial court found that Melissa is "strong-willed," has become "the tail wagging the dog," and that some of her testimony was "hard to believe." The trial court made several findings to the effect that Plaintiff had repeatedly attempted to manipulate Melissa in order to remove Defendant from their lives. In addition, the trial court found that Plaintiff had instigated, through her daughter, seven separate DSS investigations of Defendant for abuse and neglect. The trial court found that Melissa had given DSS "inconsistent statements and answers ... as to what had happened and how it happened ... [and] fluctuated in her answers, and ... had no good eye contact [with the DSS investigator]." DSS closed all but one of these investigations without substantiating either abuse or neglect. As to the one investigation substantiating neglect based on Robbins' report, the trial court found the neglect to be a "technical" violation, that it may have been an "accidental" occurrence, and that the DSS recommendation was only for counseling to "try[ ] to prevent future reports [and to] get[ ] everyone to get along." The parties and Melissa underwent counseling pursuant to the DSS recommendation.

Based on these findings, the trial court concluded "[t]here has not been a material and substantial change of circumstance justifying a modification of the joint custody arrangement in this matter, other than as stated hereinbelow." (emphasis added). Nothing stated "hereinbelow" in the trial court's conclusions of law relates to custody modification. The trial court then ordered the following modification:

Defendant will consult with [Plaintiff], but the final decisions in these particular areas involving the minor child rests with [Defendant]:

(A) Where the child is to go to school;

(B) Extracurricular activities that the child will participate in; and

(C) Any out of state travel in which the minor child will participate.

Consultation shall take into account [Plaintiff's] interest, [Melissa's] interest and the best interests of [Melissa].

As to each party's motions for a modification in Defendant's child support obligations, the trial court found:

(12) [Plaintiff] had $13,000.00 income for 10 months, then worked at a conference center making $4,000.00 during the summer of 1997. The child care is about $50.00 per week during the summertime....

....

(14) [Defendant] is now totally disabled, with disability income of $799.00 per month. As a result of his total disability, he received checks for $412.00 per month on behalf of [Melissa]. He was declared permanently disabled in February, 1997. He ceased full-time employment in 1994, when the company was sold. He has not worked part-time, and had no income from August, 1994, until February of 1997.

... In or about November of 1995, [Plaintiff] began getting the Social Security Administration to re-route the checks for Melissa on the part of [Defendant's] social security disability of $412.00 per month directly to her. Worksheet B should be the appropriate calculation of child support in this matter. However, calculations being made on Worksheet B results [sic] in what was supposed to be joint custody. The income of [Defendant] each month at this time does put him in the poverty level. The parties have income of $17,000.00 annually for [Plaintiff], and $9,600.00 annually for [Defendant]. The Court determines that the social security checks which [Plaintiff] had re-routed from the Social Security Administration to her, being paid on behalf of the minor child of now [$421.00] per month, should be re-routed back to [Defendant] to help him make the child support payments.

There is no Worksheet B attached to the trial court's order or included in the record on appeal.

Based on these findings, the trial court concluded "[t]here has been a material and substantial change of circumstance justifying a modification of the child support ordered in this matter." Accordingly, the trial court directed that Defendant should receive the $421.00 disability check (paid "on behalf of" Melissa), and reduced Defendant's child support obligation to $95.00 per month.

The issues are whether: (I) there was a substantial change in circumstances since entry of the prior custody order justifying its modification; (II) the trial court's findings justify deviation from the North Carolina Child Support Guidelines (Guidelines); and (III) disability checks received for the benefit of a child may warrant deviation from the Guidelines.

I

Plaintiff contends the evidence of neglect and abuse required the trial court to conclude changed circumstances existed affecting Melissa's welfare. We disagree.

The trial court "is vested with broad discretion in cases involving child custody." Pulliam v. Smith, 348 N.C. 616, 624, 501 S.E.2d 898, 902 (1998). The trial court "has the opportunity to see the parties in person and to hear the witnesses," Falls v. Falls, 52 N.C.App. 203, 209, 278 S.E.2d 546, 551, disc. review denied, 304 N.C. 390, 285 S.E.2d 831 (1981), and its findings "turn in large part on the credibility of the witnesses," Brandon v. Brandon, ___ N.C.App. ___, ___, 513 S.E.2d 589, 593 (1999). Accordingly, where the trial court's findings of fact are supported by competent evidence, they are binding on appeal. Harris v. Harris, 51 N.C.App. 103, 105, 275 S.E.2d 273, 275, disc. review denied, 303 N.C. 180, 280 S.E.2d 452 (1981). The trial court's findings must, in turn, support its conclusions of law. Blanton v. Blanton, 40 N.C.App. 221, 225, 252 S.E.2d 530, 533 (1979).

In this case, the trial court heard both parties and Melissa testify as to the allegations of abuse and neglect. In addition, the trial court heard testimony that Plaintiff urged Melissa to tell her school counselor that she was abused and neglected by Defendant, and that DSS got "inconsistent statements" and poor eye contact from Melissa when interviewing her concerning these allegations. As to the one substantiated allegation of neglect, Robbins testified that she did not get a "clear understanding" of what had occurred, and that, although she did not personally believe grabbing and holding a child was an appropriate disciplinary measure, some psychologists did. This competent evidence supports the trial court's findings that Plaintiff was manipulating Melissa; that six of the seven allegations of abuse and neglect were unsubstantiated following DSS investigations; and that the one instance of neglect which had been substantiated was "technical" in nature and resulted only in a recommendation for counseling (which the parties and Melissa underwent). These findings, in turn, support the trial...