Wise v. Wise

• Decision Date: 02 April 2019
• Docket Number: No. COA18-858,COA18-858
• Citation: 264 N.C.App. 735,826 S.E.2d 788
• Parties: LeAnne Michelle WISE, Plaintiff, v. Robert John WISE, Defendant.
• Court: North Carolina Court of Appeals

264 N.C.App. 735

826 S.E.2d 788

LeAnne Michelle WISE, Plaintiff,

v.Robert John WISE, Defendant.

No. COA18-858

Court of Appeals of North Carolina.

Filed: April 2, 2019

Horn, Pack, Brown & Dow, P.A., by Carol Walsburger Dow, for plaintiff-appellee.

The Jonas Law Firm, P.L.L.C., Lincolnton, by Rebecca J. Yoder, for defendant-appellant.

ARROWOOD, Judge.

Robert John Wise ("defendant") appeals from child support and alimony order in favor of his ex-wife, LeAnne Michelle Wise ("plaintiff"). For the following reasons, we reverse and remand to the trial court.

I. Background

Plaintiff and defendant were married on 19 September 2009 and had two children during their marriage in November 2010 and September 2015. The parties separated on 6 June 2017. On 12 July 2017, plaintiff filed a complaint seeking child custody, child support, equitable distribution, divorce from bed and board, and post-separation support and alimony. Both plaintiff and defendant filed financial affidavits subsequent to the filing of the complaint. On 7 September 2017, defendant filed an answer, defenses, and counterclaims seeking child custody and equitable distribution.

For the benefit of their children, the parties entered into a parenting agreement, which was signed by defendant on 7 September 2017 and by plaintiff on 18 September 2017. The parties then entered into a consent order that was filed 18 October 2017. The consent order resolved child custody in accordance with the terms of the parenting agreement and required defendant to pay temporary child support in the amount of $1,376.07 per month and post-separation support in the amount of $300.00 per month. The consent order also appointed a mediator to address issues of alimony, permanent child support, and equitable distribution. During a mediation on 1 November 2017, the parties came to an agreement on equitable distribution and a mediated settlement agreement was filed on 2 November 2017. The parties were unable to reach an agreement on alimony and permanent child support.

In December 2017 and early January 2018, the parties filed amended financial affidavits. On 10 January 2018, plaintiff's attorney filed an affidavit of attorney fees and court costs.

The issues of alimony and child support were heard by Judge Meredith A. Shuford in Lincoln County District Court on 10 and 11 February 2018. The trial court took the matter under advisement, and later filed an order on 5 February 2018. The trial court ordered defendant to pay child support in the amount of $1,551.24 per month and ordered defendant to pay alimony until 1 September 2021 in the amount of $1,850.00 per month. Defendant filed notice of appeal from the order on 28 February 2018.

II. Discussion

On appeal, defendant challenges the trial court's award of alimony, child support, and attorney's fees. We address the issues in the order they are raised.

1. Alimony and Child Support

"The amount of alimony is determined by the trial judge in the exercise of his sound discretion and is not reviewable on appeal in the absence of an abuse of discretion." Quick v. Quick , 305 N.C. 446, 453, 290 S.E.2d 653, 658 (1982) (citing Sayland v. Sayland , 267 N.C. 378, 148 S.E.2d 218 (1966) ).

In determining the amount of alimony the trial judge must follow the requirements of the applicable statutes. Consideration must be given to the needs of the dependent spouse, but the estates and earnings of both spouses must be considered. "It is a question of fairness and justice to all parties."

Id. (quoting Beall v. Beall , 290 N.C. 669, 674, 228 S.E.2d 407, 410 (1976) ).

A trial court's award of alimony is addressed in N.C. Gen. Stat. § 50-16.3A ..., which provides in pertinent part that in "determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors" including, inter alia , the following: marital misconduct of either spouse; the relative earnings and earning capacities of the spouses; the ages of the spouses; the amount and sources of earned and unearned income of both spouses; the duration of the marriage; the extent to which the earning power, expenses, or financial obligations of a spouse are affected by the spouse's serving as custodian of a minor child; the standard of living of the spouses during the marriage; the assets, liabilities, and debt service requirements of the spouses, including legal obligations of support; and the relative needs of the spouses.

Hartsell v. Hartsell , 189 N.C. App. 65, 69, 657 S.E.2d 724, 727 (2008) (quoting N.C. Gen. Stat. § 50-16.3A (2017) ).

Child support is governed by N.C. Gen. Stat. § 50-13.4. This Court has explained that "[t]he ultimate objective in setting awards for child support is to secure support commensurate with the needs of the children and the ability of the [obligor] to meet the needs." Smith v. Smith , 247 N.C. App. 135, 150, 786 S.E.2d 12, 25 (2016) (quotation marks and citations omitted). Like the determination of the amount of alimony, "[c]hild support orders entered by a trial court are accorded substantial deference by appellate courts and our review is limited to a determination of whether there was a clear abuse of discretion." Leary v. Leary , 152 N.C. App. 438, 441, 567 S.E.2d 834, 837 (2002).

"A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason ... [or] upon a showing that [the trial court's decision] was so arbitrary that it could not have been the result of a reasoned decision." White v. White , 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).

Moreover, for both alimony and child support, the trial court is required to make findings of fact and conclusions of law. See N.C. Gen. Stat. § 50-16.3A ; N.C. Gen. Stat. § 50-13.4 (2017). To support the trial court's award of alimony and child support, the trial court's findings must be sufficiently specific to allow the reviewing court to determine if they are supported by competent evidence and support the trial court's award. See Rhew v. Rhew , 138 N.C. App. 467, 470, 531 S.E.2d 471, 473 (2000) ("The trial court must at least make findings sufficiently specific to indicate that the trial judge properly considered each of the factors ... for a determination of an alimony award. In the absence of such findings, appellate courts cannot appropriately determine whether the order of the trial court is adequately supported by competent evidence, and therefore such an order must be vacated and the case remanded for necessary findings.") (quotation marks and citations omitted); Plott v. Plott , 313 N.C. 63, 68-69, 326 S.E.2d 863, 867 (1985) (Explaining that for an award of child support pursuant to N.C. Gen. Stat. § 50-13.4, specific findings are necessary to allow an appellate court to determine if the trial court's order is sufficiently supported by competent evidence.)

Gross and Net Income Calculations

Defendant makes various arguments that the trial court erred in awarding child support and alimony because it erred in calculating his gross and net incomes.

In the order, the trial court made the following findings showing its considerations in calculating defendant's gross and net incomes:

25. The defendant's total gross income for calculation of child support should include his salary from CMPD ($7,171.97), his average off duty wages ($1[,]870.00) and his average income from his business, Wiseguys ($212.00) for a total of $9[,]253.97.

....

33. For calculation of alimony, the court finds the defendant's gross income from his employment with CMPD, off duty work and Wiseguys is $9,253.97. The court considered the defendant's withholdings for his taxes in the amount of $1[,]452.00 and his monthly child support obligation of $1,551.24, where he received credit for the medical insurance withheld for the children. The 401(k) loan is related to his business. The defendant has approximate net income of $5,690.00 and approximate monthly living expenses of $3,600.00. He has the ability to provide support for the plaintiff.

Based on these findings, the trial court concluded in conclusions of law numbers 2 and 7 that defendant "has the present financial ability and duty to contribute to the support and maintenance of the children" and "has the ability to provide spousal support to ... [p]laintiff." The trial court ordered defendant to make child support payments in the amount of $1,551.24 per month, to continue to provide hospital and health insurance for the children and pay 100% of uninsured health costs, and to pay alimony in the amount of $1,850.00 per month, beginning 15 February 2018 and continuing until 1 September 2021.

The first issue raised by defendant concerns the trial court's calculation of net income for purposes of determining alimony. Defendant contends the trial court erred in calculating net income by disregarding mandatory deductions from his CMPD paycheck totaling over $900.00 per month. Those alleged mandatory monthly deductions not included in the trial court's calculation are $429.97 for law enforcement officer retirement ("LEO retirement") and $509.35 for defendant's portion of the health insurance premium.

Defendant asserts, and the record shows, that he brought these deductions to the trial judge's attention when the court sought comment on a proposed order. In response to defendant's request that the trial court correct finding of fact number 33 to account for the deductions for LEO retirement and his portion of the health insurance premium, the trial court replied that, "[a]s to #33, the court ‘considered’ the deductions totaling $1[,]452[.00] (all of the taxes). I addressed the health insurance. I did not consider the LEO deduction or any other voluntary deductions."

It is evident from a review of finding of fact number 33 that the trial court did not account for the LEO retirement or defendant's portion of the health insurance premium in the calculations of defendant's net income. Defendant now asserts that the trial...