Smith v. Smith

• Citation: 89 N.C.App. 232,365 S.E.2d 688
• Decision Date: 15 March 1988
• Docket Number: No. 8722DC745,8722DC745
• Parties: Gail Johnson SMITH v. Keith Eugene SMITH.
• Court: Court of Appeal of North Carolina (US)

Page 688

365 S.E.2d 688

89 N.C.App. 232

Gail Johnson SMITH v. Keith Eugene SMITH.

No. 8722DC745.

Court of Appeals of North Carolina.

March 15, 1988.

Harris, Pressly and Thomas by Edwin A. Pressly and Genevieve M. Howard, Statesville, for plaintiff-appellee.

Homesley, Jones, Gaines and Fields by T.C. Homesley, Jr., and Clifton W. Homesley, Statesville, for defendant-appellant.

PARKER, Judge.

In this appeal, defendant argues that the trial court erred by making inadequate findings of fact to support its conclusions of law, that the trial court erred by making findings of fact not supported by sufficient evidence, that the trial court erred in placing undue weight upon the District Court Judges' Guidelines, and that the trial judge abused his discretion in ordering defendant to pay $1,400.00 per month in child support. For the reasons that follow, we find that defendant's assignments of error are without merit, and we affirm the order of the trial court.

Defendant first argues that the trial court made inadequate findings of fact. Specifically, defendant argues that the court failed to make any affirmative findings regarding some of his asserted monthly expenses and failed to make any specific findings as to the actual past expenses of the two minor children.

Before ordering a modification of child support, the trial court must determine the present reasonable needs of the children. Such a determination must be based upon specific findings of fact as to actual past expenditures for the minor children, the present reasonable expenses of the minor children, and the parties' relative abilities to pay. Mullen v. Mullen, 79 N.C.App. 627, 630, 339 S.E.2d 838, 840 (1986); Norton v. Norton, 76 N.C.App. 213, 216, 332 S.E.2d 724, 727 (1985). Moreover, findings of fact regarding the parties' incomes, estates, and present reasonable expenses are necessary to determine their relative abilities to pay. Mullen v. Mullen, 79 N.C.App. at 630, 339 S.E.2d at 840; Norton v. Norton, 76 N.C.App. at 218, 332 S.E.2d at 728.

In its order, the court below found as fact:

That defendant has reasonable monthly expenses of $900.00 for rent, $299.00 for telephone, $69.65 for utilities, $400.85 for automobile payment, $250.00 for food, $104.08 for health insurance, $59.94 for automobile insurance, $100.00 for clothing, $100.00 for entertainment and $40.00 for child medical expenses, totalling $2,323.52 per month.

Defendant contends that the court erred in failing to make affirmative findings as to some of his asserted monthly expenses, such as $500.00 per month for debt repayment to his father, $371.52 per month for meals while travelling as part of his job, $400.00 per month for transportation to visit his children in North Carolina, $115.14 per month for life insurance; $237.44 per month for "hotel marketing expenses," $43.65 per month for cable television, and $166.67 per month for the children's vacation.

Credibility, contradictions, and discrepancies in the evidence are matters to be resolved by the trier of fact, here the trial judge, and the trier of fact may accept or reject the testimony of any witness. Laughter v. Lambert, 11 N.C.App. 133, 180 S.E.2d 450 (1971). Moreover, in an action involving a determination of child support, the trial judge is not required to make detailed findings of fact upon every item of evidence offered at trial. The trial judge is required, however, to make material findings of fact that resolve the issues raised. In each case, the findings of fact must be sufficient to allow the appellate courts to determine upon what facts the trial judge predicated his judgment. Ebron v. Ebron, 40 N.C.App. 270, 271, 252 S.E.2d 235, 236 (1979); Morgan v. Morgan, 20 N.C.App. 641, 642, 202 S.E.2d 356, 357 (1974).

In the case before us, the trial court accepted as reasonable a monthly total of $2,323.52 in expenses for defendant. The trial judge must be given broad discretion in making factual determinations, for the trial judge has the opportunity to see the parties in person and to hear the witnesses. See Pruneau v. Sanders, 25 N.C.App. 510, 516, 214 S.E.2d 288, 292, cert. denied, 287 N.C. 664, 216 S.E.2d 911 (1975); Greer v. Greer, 5 N.C.App. 160, 163, 167 S.E.2d 782, 784 (1969). The trial judge accepted as reasonable certain of defendant's asserted expenses and rejected as unreasonable the remainder.

Defendant cites Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985), to support his contention. However, in Plott v. Plott, the trial judge had summarily drawn a conclusion as to the total monthly reasonable living expenses of the defendant, without "a mathematical worksheet reflecting the amounts that were allowed or disallowed by the judge for reasonable living expenses." 313 N.C.App. at 70, 326 S.E.2d at 868. The case before us is clearly distinguishable.

The court below also found as fact that the current reasonable expenses of plaintiff and the children are in excess of $3,000.00 per month and that approximately $1,850.00 of this amount is directly attributable to the minor children. In its finding, the court accepted as "reasonably necessary to maintain the health, welfare and enjoyment of the minor children" two thirds of the household expenses listed on plaintiff's financial affidavit as well as the total expenses listed on the affidavit that were directly attributable to the children. At trial, when asked how she arrived at the expenses she had listed, plaintiff testified that the figures were based primarily on actual expenditures, although there were some items for her children and for their home that she could not currently afford.

Defendant contends that the court erred in not stating specifically the "actual past expenses" of the minor children. We disagree. The figures listed in plaintiff's financial affidavit and adopted by the court were figures based on actual past expenditures. Moreover, it was not improper for the court to include in its finding estimated expenses for certain items that plaintiff could not currently afford; simply because a custodial parent is unable to afford a certain item or expense is no reason to disqualify that item as a reasonable need of the child. Findings of fact as to actual past expenditures are meant to aid the trial court in determining the reasonable needs of the children, not to hamper the court's ability to assess the children's reasonable needs. Therefore, we find that the court made findings of fact sufficient to support its conclusions of law.

Defendant next argues that certain findings of fact made by the trial judge are not supported by sufficient evidence. We will address each contested finding briefly.

Defendant contends that the trial court's finding number four, that the reasonable monthly expenses of plaintiff and the parties' children are in excess of $3,000.00 per month and that two thirds of plaintiff's household expenses were attributable to the children, is based on speculation rather than on evidence in the record. This contention is without merit.

Plaintiff's financial affidavit listed "Individual Needs," "Fixed Expenses," and "Debt Payments" totalling $2,969.08 per month. In addition, plaintiff listed approximately $8,000 in household repairs that were necessary at that time or would be necessary in the near future. This evidence alone is sufficient to support the trial judge's finding that the current reasonable needs of plaintiff and the children total $3,000.00 per month. Moreover, the trial court's allocation of two thirds of plaintiff's household expenses to the minor children of the parties is not necessarily error. Included in plaintiff's listed household expenses are housing costs, electricity, water, telephone, fuel oil, and automobile expenses. While it is true that plaintiff would have to make expenditures for these items even if the parties' minor children were not residing with her, it would be a time-consuming if not impossible task for the trial court to determine with any degree of accuracy the portions of these expenses attributable to each of the three residents of plaintiff's house. Compare Evans v. Craddock, 61 N.C.App. 438, 300 S.E.2d 908 (1983) (allocation to minor child of one-third total living expenses of custodial parent, her current spouse, and the minor child is impermissible use of a mathematical formula to calculate the child's needs) with Gibson v. Gibson, 68 N.C.App. 566, 316 S.E.2d 99 (1984) (allocation to minor child of one-third total fixed expenses of custodial parent and the minor child not error where figure did not include any new spouse of custodial parent and court found expenses reasonable). We find no error in the trial court's finding of fact number four.

Defendant also contends that there is insufficient evidence to support the court's finding of fact number five, that plaintiff obtained insurance for the minor children because of her fear that defendant would not maintain his health insurance on the minor children. This contention is also without merit.

At trial, plaintiff testified that although defendant was required to carry medical insurance covering the parties' children pursuant to the 1984 consent judgment and although to her knowledge he had thus far complied with that requirement, on occasion, defendant had...