Weisberg v. Griffith, No. COA04-380 (NC 7/19/2005)
| Decision Date | 19 July 2005 |
| Docket Number | No. COA04-380,COA04-380 |
| Court | North Carolina Supreme Court |
| Parties | WILLIAM J. WEISBERG, Plaintiff-Appellee, v. LOU ANN GRIFFITH (Formerly Weisberg), Defendant-Appellant. |
Lea, Rhine & Rosbrugh, by Lori W. Rosbrugh, for plaintiff-appellee.
Smith, Smith & Harjo, by Jennifer Harjo, for defendant-appellant.
William Weisberg (plaintiff) and Lou Ann Griffith (defendant) were married on 24 December 1983. Two children were born of the marriage. The parties entered into a separation agreement on 18 December 2001 wherein defendant received primary custody of the children. The separation agreement also provided that plaintiff would pay $1,500.00 per month in child support and half of the cost of the children's extracurricular activities and uninsured medical expenses. The parties further agreed to be "equally responsible for providing a complete college education for the children." In addition, the separation agreement contained the following relevant provisions:
PROPERTY SETTLEMENT
. . . .
9. PERSONAL AND OTHER PROPERTY DIVISION AND SETTLEMENT. . . .
. . . .
f. Stocks and Bonds. The parties have stipulated and agreed that [plaintiff] shall, contemporaneously with the execution of this [separation] [a]greement, transfer one-half or approximately $90,000.00 from his 401(k) Plan to [defendant's] 401(k) Plan. . . .
. . . .
CHILD CUSTODY AND SUPPORT
. . . .
13. PARTIES' RELOCATION. . . . [T]he parties stipulate and agree that, in the event either or both of the parties relocate their residences, and reside more than 50 miles apart (door to door) the parties shall make mutual arrangements for transporting the children for visitation . . . . The parties also recognize that the distance between their residences may result in extraordinary transportation costs to either or both parties, and that such costs may be considered by the [c]ourt in reviewing [plaintiff's] child support obligation, in accordance with the . . . Guidelines then in effect.
The parties were divorced on 1 February 2002. The separation agreement was not incorporated into the judgment of divorce. Defendant subsequently informed plaintiff that she intended to move with the children from North Carolina to West Virginia. In response, plaintiff filed a complaint for child custody and for child support in accordance with the North Carolina Child Support Guidelines (the Guidelines). Defendant counterclaimed for breach of contract, anticipatory breach of contract and specific performance for plaintiff's failure to: (1) transfer funds from his 401(k) plan to defendant's plan, (2) reimburse defendant for costs of the children's extracurricular and uninsured medical expenses, and (3) contribute to the children's prepaid college fund. Plaintiff also counterclaimed for child custody, child support and attorney's fees.
In an order entered 16 September 2003, nunc pro tunc 9 January 2003, the trial court denied defendant's request that plaintiff contribute to the children's prepaid college fund. The trial court also ordered that plaintiff transfer one-half of his 401(k) account to defendant, based on the value of the fund on 9 January 2003. The trial court then ordered that, as of the date that defendant removed the children from North Carolina, defendant was only entitled to child support in the amount prescribed by the Guidelines. Finally, the trial court denied defendant's claim for attorney's fees. Defendant appeals.
We first address whether defendant's appeal is interlocutory. The trial court's order expressly left open the issue of a claim for child support up until the time that defendant removed the children from North Carolina:
FINDINGS OF FACT
. . . .
19. As to [d]efendant's claim for a judgment in the difference in the amount the [separation] [a]greement calls for and the Guideline[s] amount, this [c]ourt finds that the [G]uideline[s] amount would be the entire amount . . . [d]efendant is entitled to from the point she intends to move the children from the State of North Carolina, as per the agreement states. . . . However, as to the issue of a judgment from the date of the filing of this action until such time that [d]efendant removes the children from this [S]tate, this [c]ourt reserves this issue for a further ruling.
. . . .
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED as follows:
. . . .
6. Defendant is not entitled to an Order of Specific Performance requiring . . . [p]laintiff to pay any monies to her as to the difference of the amount in the Agreement and the Guideline[s] amount at any time. However, as to the issue of a judgment from the date of the filing of this action until such time that [d]efendant removes the children from this [S]tate, this [c]ourt reserves this issue for a further ruling.
An order that does not determine all of the issues, but rather leaves the case open for further determination, is interlocutory. Dunlap v. Dunlap, 81 N.C. App. 675, 676, 344 S.E.2d 806, 807, disc. review denied, 318 N.C. 505, 349 S.E.2d 859 (1986). Normally, an appeal from an interlocutory order is premature and will be dismissed. Stanback v. Stanback, 287 N.C. 448, 453, 215 S.E.2d 30, 34 (1975).
We find that the order appealed from in this case is not interlocutory. Defendant did not counterclaim for any unpaid child support prior to the date she planned to leave North Carolina. Moreover, the record does not indicate that plaintiff failed to make any of his scheduled child support payments in the amount of $1,500.00 per month. Therefore, the trial court's order determined all the issues before the trial court and the order was not interlocutory.
Defendant assigns error to the trial court's order that child support be set in accordance with the Guidelines. Defendant argues she was entitled to a rebuttable presumption that the child support, as set forth in the parties' separation agreement, was just and reasonable, and that the trial court erred by failing to apply this presumption.
It has long been the law of this State that "where parties to a separation agreement agree upon the amount for the support and maintenance of their minor children, there is a presumption in the absence of evidence to the contrary, that the amount mutually agreed upon is just and reasonable." Fuchs v. Fuchs, 260 N.C. 635, 639, 133 S.E.2d 487, 491 (1963); see also Williams v. Williams, 261 N.C. 48, 59, 134 S.E.2d 227, 235 (1964). In order to rebut this presumption, a party must Boyd v. Boyd, 81 N.C. App. 71, 76, 343 S.E.2d 581, 585 (1986). In Pataky v. Pataky, 160 N.C. App. 289, 585 S.E.2d 404 (2003), aff'd per curiam, 359 N.C. 65, 602 S.E.2d 360 (2004), our Court recently held that:
[W]here the parties have executed a separation agreement that includes [a] provision for child support, the [trial] court must apply a rebuttable presumption that the amount set forth is just and reasonable and therefore application of the [G]uidelines would be inappropriate. Accordingly, before it applies the . . . [G]uidelines, the trial court must first consider the child support allowances in a separation agreement between the parties.
Id. at 301-02, 585 S.E.2d at 412-13 (emphasis added). When applying this test, the trial court must make specific findings of fact regarding the needs of the child at both the time of the hearing and the time when the separation agreement was entered into, and whether a party has rebutted the presumption of reasonableness. Id. at 306, 585 S.E.2d at 415; see also Bottomley v. Bottomley, 82 N.C. App. 231, 237, 346 S.E.2d 317, 321 (1986) (); and Boyd, 81 N.C. App. at 80, 343 S.E.2d at 587 (). Without adequate findings, a child support order must be remanded for further findings, even when a whole record review by this Court would support the necessary findings. Pataky, 160 N.C. App. at 306, 585 S.E.2d at 415.
In this case, the trial court's order does not indicate whether the trial court considered a presumption that the $1,500.00 in monthly child support provided for in the separation agreement was reasonable. Similarly, the order fails to show that the trial court evaluated whether plaintiff had rebutted this presumption. The trial court made no specific findings regarding the presumption, whether the presumption was rebutted, or what the reasonable needs of the children were at the time of the separation agreement and at the time of trial. The trial court's order does not conform with the Pataky requirements, and we thus vacate the child support order and remand for further findings of fact and conclusions of law. Pataky, 160 N.C. App. at 301-02, 585 S.E.2d at 412-13; see also Boyd, 81 N.C. App. at 82, 343 S.E.2d at 588.
Plaintiff counters that specific findings were not required since the relocation clause in the separation agreement provides for a recalculation of child support in accordance with the Guidelines in the event that one of the parties moved...
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