Stanley v. Stanley
| Decision Date | 17 March 1981 |
| Docket Number | No. 8026DC627,8026DC627 |
| Citation | 275 S.E.2d 546,51 N.C.App. 172 |
| Parties | Sarah W. STANLEY v. Lacey Gardner STANLEY, Jr. |
| Court | North Carolina Court of Appeals |
Farris, Mallard & Underwood by David B. Hamilton, Charlotte, for plaintiff-appellee.
McConnell, Howard, Pruett & Toth by Rodney Shelton Toth, Charlotte, for defendant-appellant.
First, we note that defendant failed to set out and discuss his first and seventh assignments of error in his appellate grief, therefore, they are deemed abandoned. Rule 28(a), N.C.Rules App.Proc. In addition, defendant's brief is utterly void of argument or authority in support of his third assignment of error, therefore, it is also deemed abandoned. "App.R. 28(a) requires that a question be presented and argued in the brief in order to obtain appellate review." Love v. Pressley, 34 N.C.App. 503, 514, 239 S.E.2d 574, 581 (1977), rev. denied 294 N.C. 441, 241 S.E.2d 843 (1978).
Defendant's second assignment of error is that the trial court erred in denying defendant's Rule 12(b)(6) motion to dismiss plaintiff's complaint for failing to state a claim upon which relief could be granted.
A complaint is sufficient to withstand a motion to dismiss pursuant to N.C.Gen.Stat. § 1A-1, Rule 12(b)(6) for failure to state a claim upon which relief can be granted where no insurmountable bar to recovery on the claim alleged appears on the face of the complaint and the allegations contained therein are sufficient to give the defendant sufficient notice of the nature and basis of the plaintiff's claim to enable him to answer and prepare for trial. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Bank v. McCarley & Co., 34 N.C.App. 689, 239 S.E.2d 583 (1977). For purposes of the motion, the allegations of the complaint must be treated as true. Presnell v. Pell, 298 N.C. 715, 260 S.E.2d 611 (1979). Measuring plaintiff's complaint by the foregoing rules, we find that the trial court did not err in denying defendant's Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief could be granted because the complaint clearly contains allegations of facts which, if true, would entitle plaintiff to the relief sought and does not contain any allegation which would act as an insurmountable bar to her recovery on the claims alleged. Defendant's second assignment of error is therefore overruled.
Defendant's sixth assignment of error reads as follows: "(t)he trial court (erred) and violated the Defendant's constitutional rights to due process of law and equal protection of the law by ordering the Defendant to pay Two Hundred Dollars ($200.00) per month to the support of the child based upon the findings of fact in the evidence." This assignment of error is based on 19 exceptions to the judge's findings of fact, on seven exceptions to the judge's conclusions of law and on an exception to the signing and entry of the order. Defendant presents three arguments in his brief regarding this assignment of error.
First, defendant argues that the award of future child support is erroneous because part of that award will be used to educate his child in a private school, an expenditure to which he has not consented. We note that although defendant excepted to the trial court's finding of fact that the child has individual financial needs well in excess of the sum of $200.00 per month, he failed to set out that exception in his brief, thereby abandoning it. Rule 28(b)(3), N.C.Rules App.Proc. Therefore he has no exception on which to base his argument regarding the use of future child support payments to finance the private education of the child.
Second, defendant argues that because the trial court considered the same evidence for both the past and future child support awards, it violated his rights to due process and equal protection by awarding plaintiff $400.00 per month for the thirty-six months immediately preceding the suit and $200.00 per month in the future. The record does not reflect that this constitutional argument, if, indeed, it is a constitutional question, was presented to or considered by the trial court. As a general rule, this Court will not pass upon a constitutional question not raised and considered in the court from which the appeal is taken. Brice v. Moore, 30 N.C.App. 365, 226 S.E.2d 882 (1976); Carpenter v. Carpenter, 25 N.C.App. 235, 212 S.E.2d 911, cert. denied, 287 N.C. 465, 215 S.E.2d 623 (1975). Moreover, we fail to see any merit in defendant's argument on this point. The trial court obviously based the two awards in question on different evidence, as will be more fully discussed later.
Third, defendant argues that the court erroneously based its award on defendant's earning capacity rather than on his ability to pay. With regard to an award of prospective child support, as a general rule, the court should consider, among other things, the amount which the defendant is earning when the award is made. Robinson v. Robinson, 10 N.C.App. 463, 179 S.E.2d 144 (1971). Robinson v. Robinson, supra, 10 N.C.App. at 468, 179 S.E.2d at 147.
The trial court in the present case made such a finding of fact, finding number 26, as quoted previously. The evidence in the record clearly supports finding number 26 and findings numbers 19-25, also quoted previously. The record indicates that defendant has displayed a continuous and intentional course of conduct designed to allow him to remain free of, ignore, and avoid his parental responsibilities. After paying nominal sums to plaintiff for the child's support for two years, defendant has paid nothing for the child's support since 1966, despite the fact that defendant was employed during this period of time, earning as much as $1,500.00 per month. Moreover, defendant evidenced his intent to avoid his parental responsibilities by constantly changing places of residence and employment and by repeatedly failing to inform plaintiff of his address. In short, the record is replete with evidence supporting the trial court's finding that defendant was failing to exercise his earning capacity because of a disregard of his parental obligation to provide reasonable support for his child. Thus the trial court was correct in basing its award of prospective child support on defendant's earning capacity rather than on defendant's present ability to pay. As noted above, the defendant has abandoned his exception to the finding that the child has financial needs in excess of $200.00 per month which we note is also clearly supported by the evidence. All of these findings, in turn, support the trial court's conclusion that plaintiff is entitled to $200.00 per month from defendant for the support, maintenance, health, education and welfare of the child. Therefore we affirm the court's award as to prospective child support.
Defendant's fourth and fifth assignments of error attack the trial court's award of $14,400.00 to plaintiff as reimbursement for expenditures by her during the three-year period preceding the suit in support of the child. Defendant's fourth assignment of error reads as follows: "(t)he trial court erred and deprived the Defendant of his constitutional rights of due process of law and equal protection of the law by awarding the Plaintiff back support for three (3) years prior to the institution of the action based upon the evidence and findings of fact." We have discussed defendant's constitutional argument above and have found it to be without merit.
It is clear that a mother is entitled to bring an action against the nonsupporting father for reimbursement of sums expended in support of a minor child after the parties were divorced. Hicks v. Hicks, 34 N.C.App. 128, 237 S.E.2d 307 (1977). The father's liability in such a case is predicated upon N.C.Gen.Stat. § 50-13.4 which states in part:
(a) Any parent, ... having custody of a minor child, ... may institute an action for the support of such child as hereinafter...
To continue reading
Request your trial
-
Warner v. Latimer, 835DC648
...in G.S. 50-13.4(c), the trial court may consider the conduct of the parties and the equities of a given case, Stanley v. Stanley, 51 N.C.App. 172, 275 S.E.2d 546, review denied, 303 N.C. 182, 280 S.E.2d 454, appeal dismissed, 454 U.S. 959, 102 S.Ct. 496, 70 L.Ed.2d 374 (1981), and any other......
-
Lawrence v. Tise
...of the parents) and any "indirect support" made by either parent for the child during the period in question. Stanley v. Stanley, 51 N.C.App. 172, 181, 275 S.E.2d 546, 552, disc. rev. denied, 303 N.C. 182, 280 S.E.2d 454, cert. denied, 454 U.S. 959, 102 S.Ct. 496, 70 L.Ed.2d 374 (1981); Plo......
-
Environmental Management Com'n Final Order Granting A Certificate of Authority to the Orange Water and Sewer Authority Pursuant to G.S. Sec. 162A-7, Matter of
...by an assignment of error or exception be presented and argued in the brief in order to obtain appellate review. Stanley v. Stanley, 51 N.C.App. 172, 275 S.E.2d 546, disc. rev. denied, 303 N.C. 182, 280 S.E.2d 454, app. dismissed, 454 U.S. 959, 102 S.Ct. 496, 70 L.Ed.2d 374 (1981); Love v. ......
-
Buff v. Carter
...to pay during the time for which reimbursement is sought, Hicks, 34 N.C.App. at 130, 237 S.E.2d at 309; Stanley v. Stanley, 51 N.C.App. 172, 181-83, 275 S.E.2d 546, 552-53, disc. rev. denied 303 N.C. 182, 280 S.E.2d 454 In the present case, the trial judge awarded plaintiff an "arrearage in......