Brinkley v. Brinkley ( 1999 )

HORTON, Judge.

Plaintiff assigns as error the deviation from the child support guidelines by the trial court, as well as the findings of fact made by the trial court.

At the time this matter was heard in the trial court, plaintiff had gross monthly income of $1,775.00 and defendant had gross monthly income of $7,080.00. The trial court applied the guidelines and determined that the defendant’s portion of the child’s monthly support was $927.00. Neither party objected to that calculation. The trial court then ordered that the defendant pay the sum of $927.00 each month to be disbursed to plaintiff as support for their child. Thus, the trial court did not deviate from the amount of child support which resulted from application of the child support guidelines. The question actually raised by plaintiff’s argument is whether defendant is entitled to a “credit” against his future child support payments for the $12,435.50 defendant paid over and above his court-ordered obligation and credit for the $500.00 plaintiff owes him as a result of the equitable distribution judgment. The trial court made the following findings with regard to this issue:

5. That the plaintiff was ordered by Judge Roda on September 26, 1990 to reimburse the defendant $500.; the plaintiff did not do so and it would be equitable for the defendant to get a $500.00 credit on his child support obligation.

6. That the defendant has paid $12,435.50 as of July 10, 1998 in excess on the child support obligation that was ordered. The defendant testified that he did so because the plaintiff and defendant agreed the extra sums would be applied to a college fund on behalf of the minor child. The plaintiff testified it was pursuant to an oral agreement between the plaintiff and defendant to increase child support. That there are no written agreements or court orders addressing the overpayments and how they should be considered. That there is insufficient evidence to find meeting of the minds on this issue.

(Emphasis added.)

Based on those findings, the trial court concluded as a matter of law:

2. That the defendant is entitled to a credit in the amount of $12,435.50 on his child support obligation. There is insufficient evidence to conclude there was a contractual agreement by the parties for an increase in support. A $500 credit should be applied to the child support obligation to satisfy the requirements of Judge Roda’s order.

Plaintiff contends, among other things, that the findings of the court are not supported by evidence of record. We agree.

In this case the parties did not submit a transcript of the motion hearing, but included in the record on appeal a narrative summary of the testimony at that hearing. According to the narrative, plaintiff testified that in 1995 she contacted the Buncombe County Child Support Enforcement Office (Buncombe CSE) to seek assistance in obtaining an increase in child support. Plaintiff was informed by that agency that defendant should be paying $787.00 as child support pursuant to the guidelines. The Buncombe CSE in turn contacted defendant. Plaintiff further testified that defendant contacted her and agreed to pay the sum of $750.00 per month if she disengaged the Buncombe County CSE; that plaintiff accepted the offer, and that defendant began paying $750.00 per month. Plaintiff testified that at no time did she agree that a part of the child support payment would be for college expenses and that she would not have agreed to such an arrangement. Defendant testified as follows:

I was ordered to pay child support in the amount of $420.00 per month and I have exceeded those payments. I thought Mrs. Harvey was investing the extra money into a college fund for Brittany. I have overpaid child support and should have a credit.

Plaintiff has not paid the $500.00 she owes to me pursuant to the Equitable Distribution Judgment for the ITT debt and I should receive a credit against child support.

(Emphasis added.)

Defendant’s testimony that he “thought” plaintiff was investing the increased amount of child support in a college fund of some sort does not support the finding of the trial court that the defendant testified that the parties agreed that the excess payments would be invested in a college fund. Plaintiff testified clearly and unequivocally about the agreement between the parties. If the trial court found her testimony to be credible, there was ample evidence from which the trial court could find that the parties agreed on an increase in child support just as plaintiff testified. Furthermore, even if we accept, for the purposes of argument, the defendant’s contention that there was a contractual agreement between plaintiff and defendant regarding the establishment of a separate college fund for the parties’ child, any breach of such an agreement would be more properly the subject of an action for breach of contract, not part of this child support action.

Our legislature has declared that the purpose of child support is to provide for the “reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties . . . .” N.C. Gen. Stat. § 50-13.4(c) (Cum. Supp. 1998). Child support may not be used as a bargaining chip in the resolution of property or custody disputes. Our view is supported by the fact that equitable distribution actions are decided independently of support actions. See N.C. Gen. Stat. § 50-20(f) (Cum. Supp. 1998) (“[t]he court shall provide for an equitable distribution without regard to . . . support of the children of both parties []”). As a matter of sound public policy, child support obligations may not be offset by other obligations owed by one spouse to the other spouse.

We further note that the imposition of a credit is not an automatic right even when the trial court finds that one party has overpaid his child support obligation. We held in Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178 (1977), that there are no “hard and fast rules” when dealing with the issue of child support credits. Instead, “the controlling principle is that credit is appropriate only when an injustice would exist if credit were not given.” Id. at 81, 231 S.E.2d at 182. See, in accord, Jones v. Jones, 52 N.C. App. 104, 278 S.E.2d 260 (1981). Thus, in those rare cases in which the trial court properly awards a credit against a child support award, it should conclude in its written order that, as a matter of law, an injustice would exist if the credit were not allowed and should support that conclusion by findings of fact based on competent evidence.

In Goodson, the payor father contended that he was entitled to credit for “certain expenses incurred for clothing, food, recreation, and medical treatment [for the child].” Id. In Jones, the payor father claimed credit for amounts expended for clothing, food, day-care costs, YMCA fees, and medical expenses for the children. Jones, 52 N.C. App. at 106-07, 278 S.E.2d at 262. Neither case supports the proposition that a child support payor could be entitled to credit for the alleged breach by the child support recipient of a contract to establish an education fund for the child. Here, defendant does not contend that he paid his child support in advance, or that he paid the additional amounts as child support, but contends that he was paying an amount to be used to establish a college education fund for the child. Since the defendant could not be required to pay college expenses for his child, any such amounts voluntarily paid by him could not be considered child support within the normal meaning of that term. Bridges v. Bridges, 85 N.C. App. 524, 528, 355 S.E.2d 230, 232 (1987) (“[I]n the absence of an enforceable contract otherwise obligating a parent, North Carolina courts have no authority to order child support for children who have attained the age of majority unless the child has not completed secondary schooling . . . .”); see N.C. Gen. Stat. § 50-13.4(b) (Cum. Supp. 1998).

In conclusion, we affirm that portion of the judgment establishing child support of $927.00 each month pursuant to the child support guidelines, but reverse that portion of the judgment giving defendant a credit for the amount he paid above his 1989 court-ordered child support obligation, and for that amount due defendant under the parties’ equitable distribution judgment.

Affirmed in part, reversed in part.

Judges WYNN and EDMUNDS concur.