Savani v. Savani

• Citation: 403 S.E.2d 900,102 N.C.App. 496
• Decision Date: 16 April 1991
• Docket Number: No. 9010DC773,9010DC773
• Parties: Razia SAVANI v. Noorali K. SAVANI.
• Court: Court of Appeal of North Carolina (US)

Page 900

403 S.E.2d 900

102 N.C.App. 496

Razia SAVANI v. Noorali K. SAVANI.

No. 9010DC773.

Court of Appeals of North Carolina.

April 16, 1991.

A. Larkin Kirkman, Raleigh, for plaintiff-appellee.

Donald H. Solomon, P.A. by Meredith J. McGill, Raleigh, for defendant-appellant.

WYNN, Judge.

This appeal was instituted by defendant following an order granting plaintiff child support, attorney's fees, and modified visitation. For the reasons which follow, we affirm.

Plaintiff and defendant were married on 28 January 1983. One child was born of the marriage, Junaid Noorali Savani, on 7 February 1984. The parties separated in 1986 and an order awarding custody of their child to defendant was entered on 26 May 1986. In October 1986, plaintiff and defendant reconciled, and lived together until 9 December 1987.

On 15 January 1988, plaintiff filed a motion for change of custody, attorney's fees and child support. After four days of hearings during the 22 August 1988 Session of the District Court of Wake County, Judge Leonard entered an order on 24 October 1988 granting custody of the child to plaintiff and awarding child support in an amount to be determined after submission of financial affidavits by the parties to the court. A visitation schedule was also included in the order. Attorney's fees were not awarded in this order. Defendant gave notice of appeal on 28 October 1988 and dismissed his appeal on 1 January 1989.

On 22 May 1989, plaintiff filed a motion for hearing and entry of order setting child support and attorney's fees. Prior to a hearing on plaintiff's motion, plaintiff filed an additional motion to modify visitation on 28 June 1989. After several continuances requested by the defendant, a hearing was held on both motions on 24 October 1989. An order was entered 1 November 1990, granting plaintiff retroactive and prospective child support, attorney's fees and a modified visitation schedule. This appeal followed.

I

Defendant raises eight issues within seven assignments of error. First, defendant assigns error to the trial judge's refusal to recuse himself from hearing the case at bar. Defendant advances the following three arguments in support of this motion: 1) the trial judge presided over the modification of custody hearing in November 1988, which transferred custody of the child from defendant to plaintiff, 2) the trial judge had presided over a hearing on 22 September 1989 concerning child support, the same issue to be tried on 24 October 1989, in which defendant was scheduled to be present but failed to appear due to inclement weather, and 3) the trial judge and plaintiff's counsel of record shared office space at some earlier point in time while the judge was in private practice.

Canon 3(C)(1) of the Code of Judicial Conduct directs that, "[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned...." The test to apply in deciding what is reasonable is whether "a reasonable man knowing all the circumstances would have doubts about the judge's ability to rule on the motion to recuse in an impartial manner." McClendon v. Clinard, 38 N.C.App. 353, 356, 247 S.E.2d 783, 785 (1978).

A careful review of the record and defendant's basis for his recusal motion shows that the circumstances here do not reasonably warrant questioning Judge Leonard's impartiality. During the custody hearing of November 1988, Judge Leonard found as a fact and concluded that the child was in need of support. A later hearing to determine the amount was to be scheduled following the parties submitting financial affidavits to the court. Judge Leonard ordered the parties to submit these affidavits no later than 25 November 1988. Plaintiff submitted her affidavit on 28 November 1988, and defendant did not submit his affidavit until almost one year later. We fail to see how the trial judge's impartiality could reasonably be questioned in the second hearing when he had already ordered defendant to pay support during the first hearing.

The fact that Judge Leonard heard evidence on the support issue on 22 September 1989 in defendant's absence is also not adequate grounds to require findings of fact on the issue of recusal. "A trial judge should recuse himself or refer the recusal motion to another judge if there is 'sufficient force in the allegations contained in defendant's motion to proceed to find facts.' " Koufman v. Koufman, 97 N.C.App. 227, 234, 388 S.E.2d 207, 211 (1990) (quoting Bank v. Gillespie, 291 N.C. 303, 311, 230 S.E.2d 375, 380 (1976)). The record reflects that both plaintiff and defendant had notice of this hearing and both were prepared to attend. Defendant did not attend due to Hurricane Hugo, but was not able to notify Judge Leonard of this fact until 26 September 1989. As soon as Judge Leonard learned of defendant's excusable absence, he set aside the proceedings of that hearing. Defendant's claim that he was prejudiced by this hearing because he did not get to cross examine plaintiff's testimony nor present his testimony is without merit. Both parties had a full and fair opportunity to present evidence and cross examine proffered testimony during the October 1989 hearing.

Next, defendant argues that Judge Leonard should have recused himself on the ground that he had shared office space with plaintiff's counsel when Judge Leonard was in private practice. At first glance, this argument poses a closer question than defendant's other recusal arguments. We do not believe, however, when all the circumstances are considered, that defendant was prejudiced by Judge Leonard's refusal to recuse himself on this ground. See Lowder v. All Star Mills, Inc., 60 N.C.App. 275, 300 S.E.2d 230 (1983), modified on other grounds, 309 N.C. 695, 309 S.E.2d 193 (1983).

During the custody hearing, plaintiff's lead counsel was an attorney from Georgia who obtained permission to represent plaintiff in the modification of custody proceeding. Mr. Lebowski's affidavit for attorney's fees states that he represented plaintiff in this capacity until 26 August 1988. At that point, Judge Leonard had already determined that custody should be awarded to plaintiff, and that the child was in need of support. Defendant's testimony during the hearing of October 1989 also acknowledged that the child was in need of support. Therefore, the primary issue before Judge Leonard by the time Mr. Kirkman became plaintiff's lead counsel was the amount of support to be provided. Based on all the circumstances, we do not agree that a reasoning person would question Judge Leonard's impartiality. This assignment of error is overruled.

II

Defendant by his second assignment of error alleges that there was insufficient findings of fact to support the court's award of retroactive child support.

A party requesting retroactive child support can seek an order for reimbursement of the nonsupporting parent's share of reasonably necessary expenditures made in the past for support of the child. See Buff v. Carter, 76 N.C.App. 145, 331 S.E.2d 705 (1985); Warner v. Latimer, 68 N.C.App. 170, 314 S.E.2d 789 (1984). A trial court must make specific factual findings to support an award of reimbursement for past support. Sloan v. Sloan, 87 N.C.App. 392, 360 S.E.2d 816 (1987). The party seeking retroactive child support must present sufficient evidence of the expenditures made in the past on behalf of the child, and that these expenditures were reasonably necessary. See generally, Buff at 146, 331 S.E.2d at 706; see also, Rawls v. Rawls, 94 N.C.App. 670, 675, 381 S.E.2d 179, 182 (1989) (stating that "retroactive child support payments are recoverable for amounts actually expended on the child's behalf...."). An award of retroactive child support must also take into account the defendant's ability to pay during the period in the past for which reimbursement is sought. Buff, supra, at 146, 331 S.E.2d at 706 (citations omitted).

Here, the plaintiff presented an affidavit of the expenses she incurred following the child's placement in her custody. Contrary to defendant's assertion that plaintiff's affidavit did not constitute evidence of actual expenditures, an affidavit is recognized by this court as a basis of evidence for obtaining support. See Koufman v. Koufman, 97 N.C.App. 227, 388 S.E.2d 207 (1990). Here, plaintiff enumerated expenses for the child in the amount of $681.00 per month as of 28 November 1988. She then testified that her monthly expenses for the child as of 24 October 1989 were $770.00 per month, and that this was an increase of $89.00 from her November 1988 affidavit due to early school care of $15.00 per month and $75.00 per month for additional child care. Based on this evidence, the trial court found that the plaintiff had expenses for the child of at least $7,627.20 for the period 19 November 1988 through 24 October 1989. The Court found this amount to be reasonable under the circumstances taking into account plaintiff's income, the needs of the child, the income of the defendant and the accustomed standard of living of the child with defendant. Since there is evidence in the record to support the trial judge's findings of fact and subsequent conclusions of law, this assignment of error is overruled.

III

Defendant's next two assignments of error address the sufficiency of the evidence to support the trial court's award of prospective child support. For the reasons which follow we find no error.

Under G.S. 50-13.4(c) ... 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. These conclusions must themselves be based upon 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...