Crews v. Paysour , 261 N.C. App. 557 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-72
Filed: 2 October 2018
Pitt County, No. 12 CVD 641
WILLIAM S. CREWS, JR., Plaintiff
v.
NYSA MARINDA PAYSOUR, Defendant.
Appeal by defendant from orders entered 7 August 2017 by Judge G. Galen
Braddy in District Court, Pitt County. Heard in the Court of Appeals 5 September
2018.
Kurtz Evans Whitley Guy & Simos, PLLC, by Jon B. Kurtz, for plaintiff-
appellee.
Tharrington Smith, LLP, by Steve Mansbery, for defendant-appellant.
STROUD, Judge.
Defendant appeals from an order establishing child support. The trial court
limited the presentation of evidence based upon a misapprehension of the law at the
only evidentiary hearing held in this case and received no additional evidence on
remand, and both parties have requested remand based upon several errors in the
order. The trial court also made findings of fact and conclusions of law on remand
regarding the time period after the hearing without receiving any new evidence. We
vacate the order and remand for a new evidentiary hearing and new order
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Opinion of the Court
establishing child support and addressing the other issues discussed below, including
birth expenses, attorney fees, and any reimbursement or arrears of past prospective
child support payments needed based upon plaintiff-father’s actual payments made
prior to the hearing on remand and the child support as established by the new order
on remand.
I. Background
The background of this case may be found in Crews v. Paysour,
Plaintiff William S. Crews, Jr. and Defendant Nysa
Marinda Paysour are the parents of a minor child, but were
never married. On 7 March 2012, Crews filed a complaint
for child custody and child support. On 13 August 2012, the
trial court entered an order for child support titled
“Temporary IV-D Order” which stated this order is a
temporary order for support by consent of parties and that
both parties shall return to court upon motion filed by
either party.
Applying the North Carolina Child Support
Guidelines, the court ordered Crews to pay $898.00 per
month in child support. This figure was based on Crews’s
gross monthly income of $4,331.67.
___ N.C. App. ___, ___, 797 S.E.2d 380, *2-3 (March 21, 2017) (COA16-604)
(unpublished) (quotation marks and brackets omitted) (“Crews I”).
Defendant-mother (“Mother”) and plaintiff-father (“Father”) were in medical
school when a temporary child support order was entered in 2012; the income of both
parties increased substantially after they completed their residencies.
On 5 May 2014, Paysour filed a notice of hearing for
permanent child support and permanent custody. The trial
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court held that hearing on 30 September 2014 and heard
evidence on the parties’ incomes, expenses and other
information relevant to the award of child support. After
the hearing, the trial court sent a letter dated 4 December
2014 to the parties’ counsel with a “Rendition of Judgment”
from the child support hearing but not a written order
awarding permanent child support.
Ultimately, the parties scheduled a conference with
the court on 22 October 2015 regarding the entry of a
written child support order. At the conference, the parties
discussed the 4 December 2014 letter from the court and
their draft proposed orders. The parties later submitted
additional proposed orders and objections.
On 7 December 2015, the trial court entered a
permanent child support order. In the order, the trial court
made findings regarding both parties’ incomes and
expenses. The trial court ordered Crews to pay $3,037.00
per month in child support prospectively, and $23,529.00
in child support arrears for the period from December 2014
through October 2015, to be paid in monthly installments
of $750.00. Crews timely appealed.
Id. at *3-4.
Crews I was based upon Father’s appeal from the 7 December 2015 child
support order but it did not address all of the issues he raised. See id. at *5-7. Mother
conceded some errors argued by Father in his appeal. See id. at *6. Crews I did not
address the details of Father’s “series of arguments concerning the trial court’s
findings and resulting calculations concerning his child support obligations.” Id. at
*5.
The first issue addressed in Crews I was Father’s argument regarding the trial
court’s subject matter jurisdiction to modify child support award; we determined the
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trial court had subject matter jurisdiction to act. See id. at *4-5. The second issue
addressed in Crews I was the calculation of non-guideline child support, but instead
of addressing the details of Father’s arguments regarding the findings of fact of the
numbers used in the calculation and how the support was calculated, we vacated the
child support order and remanded for entry of a new order “because the trial court’s
order expressly indicate[d] that the court was operating under a misapprehension of
the law—a fact conceded by [Mother] on appeal.” Id. at *5-6. This Court did not
address the details of the arguments regarding the actual calculation of the child
support, because “[t]he trial court’s analysis of those issues may be different when
applying the proper legal standard for a child support award in a high-income case
such as this one.” Id. at *7. We also directed that “[o]n remand, the trial court is free
to decide, in its discretion, whether additional evidence or a hearing is necessary, or
whether the case may be decided based on the existing record.” Id. On remand, the
trial court did not receive any additional evidence, but counsel for both parties
presented arguments regarding their proposed calculations of child support.
Mother appealed from the order on remand, and once again, in this appeal,
although Mother is now the appellant and Father did not cross appeal, both parties
note various errors in the trial court’s calculation of child support, and Father
concedes that the order must be remanded at least on some issues.
It is apparent from the record that much of the difficulty in this child support
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order was caused by the delay in entry of an order, and certainly the passage of more
time for appeals has only made matters worse. The child support hearing was held
on 30 September 2014; this was the only evidentiary hearing. On 22 October 2015, a
hearing was held to address the fact that it was thirteen months after the hearing
and no order had been entered. The first order was entered 7 December 2015, over a
year after the hearing. The order on remand was entered almost three years after
the hearing. At the time of this opinion, over four years have passed since the
hearing. Based upon the variety of issues arising from the trial court’s order and the
need to remand, we will address a few key concerns of this Court.
II. Lack of Competent Evidence
Here, the trial court did not receive any evidence on remand, but despite the
lack of evidence entered findings of fact regarding child support payments. Mother
challenges these findings of fact as unsupported by the evidence, and since the only
evidentiary hearing was in September 2014, any findings about any events after
September 2014 are obviously unsupported by the record. At the hearing on remand
in May of 2017, the trial court discussed the child support payments since the first
order with counsel and counsel informed the court about these payments since the
prior order. And although counsel discussed the issue with the trial court, the parties
did not stipulate to amounts paid since the prior order or agree on how any
overpayment by Father should be addressed. And arguments of counsel are not
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evidence: “[I]t is axiomatic that the arguments of counsel are not evidence.” Basmas
v. Wells Fargo Bank, Nat. Ass’n, 236 N.C. App. 508, 513, 763 S.E.2d 536, 539
(2014)(citation and quotation marks omitted).
Father argues that Crews I left it in the trial court’s discretion as to whether
to receive additional evidence on remand, so the trial court properly made findings
addressing the time period after the evidentiary hearing. But when this Court leaves
the matter of receiving additional evidence to the discretion of the trial court, this
does not mean that the trial court can make findings of fact regarding something not
addressed by the evidence at the hearing. It is equally axiomatic that findings of fact
must be based upon competent evidence. See Romulus v. Romulus, 215 N.C. App.
495, 498, 715 S.E.2d 308, 311 (2011) (“[W]hen the trial court sits without a jury, the
standard of review on appeal is whether there was competent evidence to support the
trial court’s findings of fact and whether its conclusions of law were proper in light of
such facts.” (emphasis added) (citations and quotation marks omitted)). When we
leave it in the discretion of the trial court as to whether to receive additional evidence
on remand, we mean only that the trial court may receive additional evidence on
remand if it determines this would be helpful, but the trial court is not required to
receive additional evidence on remand. See generally Holland v. Holland, 169 N.C.
App. 564, 572, 610 S.E.2d 231, 237 (2005). (“Additionally, on remand, the trial court
shall rely upon the existing record, but may in its sole discretion receive such further
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evidence and further argument from the parties as it deems necessary and
appropriate to comply with the instant opinion.” (citation and quotation marks
omitted)). Since the trial court is aware of the circumstances at the time of remand,
and we are not, we often leave this decision to the trial court’s discretion because it
is in a better position to determine how to proceed.
In other cases, we limit the trial court’s discretion to some extent. For example,
we recognize the possibility that sometimes counsel for the parties may agree on
certain issues after remand so that no additional evidence is needed. We may also
allow the parties to determine if they need to present additional evidence. See, e.g.,
Lasecki v. Lasecki, 246 N.C. App. 518, 543, 786 S.E.2d 286, 304 (2016) (“We therefore
remand the case to the trial court for further proceedings consistent with this opinion
and direct that if either party requests to present additional evidence for the trial
court’s consideration on remand as may be needed to address the issues discussed in
this opinion, the trial court shall allow presentation of evidence, although the trial
court may in its discretion set reasonable limitations on the extent of new evidence
presented.”). And further, because of the specific issues addressed by the opinion,
sometimes we do expressly require additional evidence on remand. See, e.g., Dixon
v. Dixon, 67 N.C. App. 73, 79, 312 S.E.2d 669, 673 (1984) (“We do hold, however, that
the nature of child abuse, it being such a terrible fate to befall a child, obligates a
trial court to resolve any evidence of it in its findings of fact. This was not done and
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the order is therefore vacated and the case remanded for a new hearing on the issue
of custody.”) And in other cases, where the record contains sufficient evidence to
support the findings of fact and conclusions of law the trial court must make on
remand, the trial court must make the required findings based upon the existing
record without taking further evidence. See, e.g., Carpenter v. Carpenter, 225 N.C.
App. 269, 279, 737 S.E.2d 783, 790 (2013) (“On remand, the trial court shall make
additional findings of fact based upon the evidence presented at the trial.” (footnote
omitted)).
But in any case, including this one, if no additional evidence is presented on
remand, the trial court can make its findings of fact and conclusions of law only based
upon the existing record. The order on remand can address only the facts as of the
last date of the evidentiary hearing because that is the only evidence in the record.
Evidence is always required to support findings of fact, unless the parties have
stipulated to the fact or the finding is subject to judicial notice, neither of which is
present here.1 Thus, we cannot review the order to determine if the findings of fact
are supported by the evidence because there is no competent evidence for the time
1 “N.C. Gen. Stat. § 8C–1, Rule 201 controls when the court may take judicial notice of adjudicative
facts. Rule 201 provides that a judicially noticed fact must be one not subject to reasonable dispute in
that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable
of accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned. A fact is considered indisputable if it is so well established as to be a matter of common
knowledge. Conversely, a court cannot take judicial notice of a disputed question of fact.” Hensey v.
Hennessy, 201 N.C. App. 56, 68–69, 685 S.E.2d 541, 550 (2009) (citations and quotation marks
omitted).
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period covered by those findings of fact.
We also note this case is unusual, particularly for a non-guideline child support
case, because during the September 2014 hearing, the parties presented little
evidence regarding their living expenses, minimal evidence regarding the child’s
needs and expenses, and they were only allotted thirty minutes each. Upon review
of the entire transcript and proceedings on remand, we are concerned that the trial
court’s misapprehension of the law, as discussed in Crews I, see Crews I, at *5-6, also
caused the trial court to limit the evidence presented at the hearing. The trial court
was “mistaken in Finding of Fact number 14 wherein the court cited Loosvelt v.
Brown as standing for the proposition that the amount of child support awarded could
not be in an amount lower than the maximum basic child support obligations.” Id. at
*6 (quotation marks and ellipses omitted). In other words, based upon its
misinterpretation of Loosvelt, the trial court determined the guideline calculation
addressed all of the usual and ordinary living expenses of the child, so evidence was
needed only to address any needs above those basic needs deemed extraordinary
expenses. At the beginning of the hearing, the trial court stated this limitation on
the evidence:
The Court: -- and I -- I gave, for the parties, I gave them the
minimum standard amount under the law based upon your
combined incomes is -- the reasonable needs of the child
under the Guidelines will be $2,059. That means that’s
what the Guidelines will say for a combined income of
$25,000. Now, reasonable needs is going to have to be
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proven beyond that 2,059 for me to consider something more
‘cause I can lean on that very heavily, even the Guidelines
say that, so that’s going to kind of be the issue I'm going to
be looking at, can it be established, you know, more than
2,059, so, each side is going to have 30 minutes, and that
includes witnesses, opening, closing. Do either of y'all want
to make an opening or you just want to get right to your
evidence?
(Emphasis added).
Thus, in the hour of evidence and argument, the parties presented the evidence
as the trial court directed, and almost no evidence of the ordinary living expenses and
needs of the child. This case did begin as a guideline child support case, since in 2012,
both parties had lower incomes. See id. at *2. Although now this is a high-income
case, the only financial affidavit in our record is the one-page “Child Support
Financial Affidavit,” which includes only the numbers required to calculate guideline
child support: monthly gross income; pre-existing child support payments;
responsibility for other children; work-related child care costs; health insurance
premium costs for the child; and other “extraordinary [c]hild-[r]elated expenses.”2 As
directed by the trial court at the beginning of the hearing, much of the evidence was
about the extraordinary expenses such as Father’s travel costs and lessons for soccer,
2 The entry for “[p]re-existing [c]hild [s]upport [p]ayments” on this form by Father was likely the
reason for the trial court’s error in the first order, since Father listed his temporary child support
obligation for this child. The pre-existing child support payments as intended on the affidavit would
be a child support obligation for another child of the parent completing the affidavit. There is no
evidence of other child support obligations or other children. In the Crews I order, the trial court found
that “The Plaintiff should also get half credit for existing child support payments of $898.00 per month,
or $450.00 rounded up.” But $898.00 was Father’s temporary child support obligation, not support for
another child.
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music, and swimming. Accordingly, the misapprehension of law may explain the
evidence, and lack thereof, in the record.
In a non-guideline child support case, the trial court must consider the needs
of the child, specifically based upon the “accustomed standard of living” of that child,
and must make findings of fact to address these needs:
where the parties’ income exceeds the level set by the
Guidelines, the trial court’s support order, on a case-by-
case basis, must be based upon the interplay of the trial
court’s conclusions of law as to (1) the amount of support
necessary to meet the reasonable needs of the child and (2)
the relative ability of the parties to provide that amount.
The determination of a child’s needs is largely measured by
the accustomed standard of living of the child.
Smith v. Smith, 247 N.C. App. 135, 145–46, 786 S.E.2d 12, 21 (2016) (citations and
quotation marks omitted). On remand, based upon the evidence presented at the
original hearing and on remand, the new order should include the required findings
of fact to address the financial circumstances of both parties and the reasonable needs
of the child.
III. Effect of Holding of Crews I
And we have one more general concern. Based upon the trial court’s comments,
the trial court may have been under the impression that because this court vacated
and remanded the first order, we approved Father’s arguments regarding various
findings in the first order, including the amounts of travel costs and medical
insurance costs challenged by Mother in this appeal. In other words, this appeal is
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largely a mirror image of the last appeal on these issues. Father was the appellant
from the first order and challenged certain findings, see Crews I, *1-7, and Mother
was the appellant in this appeal and challenged findings on some of those same
issues, since the findings are in accord with Father’s arguments in the first appeal.
But this Court did not address the findings of fact in Crews I; we addressed only the
legal error. See id. at *7. So if the trial court made any findings in the order on
appeal based upon the belief this Court tacitly approved Father’s arguments in Crews
I, the trial court again made the findings of fact under a misapprehension of the law
of the case.
IV. This Appeal
Finally, we have reviewed Mother’s arguments in this appeal, and, without
addressing each in detail, some have merit, including obvious mathematical errors in
the order.
A. Mathematical Errors
The trial court noted in the findings it would allocate half of the cost of Mother’s
lease and car payment to the child’s needs but actually included the entire amount.
Also, the trial court found it would allocate the parties’ responsibility for the child’s
needs based upon their percentages of the total income, so 53.41% of the child’s
support would be allocated to Mother and 46.59% to Father. But the trial court gave
Father a “credit” against his percentage of the child’s expenses for the full amount of
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the travel expenses for visitation, which means that Mother bears responsibility for
100% of the travel expense, not her percentage based upon her income. Although we
do not endorse the arguments on appeal of either party on the correct calculations of
the medical insurance costs and travel expenses, these calculations were issues in
both appeals and in the order after remand, the trial court should make its findings
and mathematical calculations on these issues clear.
B. Pregnancy and Birth Expenses
Mother brought a counterclaim for the expenses under North Carolina General
Statute § 49-15, and Father concedes she presented evidence of these expenses at the
trial. The trial court did not address this claim at all, and again even Father concedes
the trial court “should have . . . addressed” the issue. On remand, the trial court shall
address this claim.
C. Attorney Fees
Mother also sought attorney fees in her answer and counterclaims. The trial
court made only two findings regarding her claim for attorney fees:
38. Defendant submitted an Attorney Fee Affidavit
which contained billing for this proceeding as well as
evidence of counsel fees paid to Attorney Amy
Edwards during the prior proceeding in this cause.
39. Since both parties appear to be on fairly equal status
as to their abilities to provide for the child, the Court
declines to award counsel fees in this matter.
Mother argues that the “trial court erred by failing to make adequate findings
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of fact and any conclusions of law regarding [Mother’s] claim for attorney’s fees.”
In an action or proceeding for the custody or support,
or both, of a minor child, including a motion in the cause
for the modification or revocation of an existing order for
custody or support, or both, the court may in its discretion
order payment of reasonable attorney’s fees to an
interested party acting in good faith who has insufficient
means to defray the expense of the suit. Before ordering
payment of a fee in a support action, the court must find as
a fact that the party ordered to furnish support has refused
to provide support which is adequate under the
circumstances existing at the time of the institution of the
action or proceeding; provided however, should the court
find as a fact that the supporting party has initiated a
frivolous action or proceeding the court may order payment
of reasonable attorney’s fees to an interested party as
deemed appropriate under the circumstances.
N.C. Gen. Stat. § 50-13.6 (2011) (emphasis added).
Although the amount of an award of attorney fees is in the trial court’s
discretion, whether Mother has met the statutory requirements for an award of
attorney fees is a question of law. See Atwell v. Atwell, 74 N.C. App. 231, 237, 328
S.E.2d 47, 51 (1985) (“While whether the statutory requirements have been met is a
question of law, reviewable on appeal, the amount of attorney’s fees is within the
sound discretion of the trial judge and is only reviewable for an abuse of discretion.”)
The trial court did not make the required findings of fact to allow us to review the
denial of attorney fees, and findings of fact are required to show the basis for either
the award or denial of attorney fees:
Where an award of attorney’s fees is prayed for, but
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denied, the trial court must provide adequate findings of
fact for this Court to review its decision. Although the trial
court denied Ms. Diehl’s request for attorneys’ fees, it made
no findings relating to that denial, such as whether Ms.
Diehl acted in good faith or whether she had insufficient
means to defray the expense of the suit. Consequently, we
must remand for entry of proper factual findings to support
the trial court’s decision regarding Ms. Diehl’s request for
attorneys’ fees.
Diehl v. Diehl, 177 N.C. App. 642, 653, 630 S.E.2d 25, 32 (2006) (citation and
quotation marks omitted).
Under North Carolina General Statute § 50-13.6, the trial court must make
findings addressing (1) whether mother is an interested party; (2) whether she was
acting in good faith; (3) whether she had insufficient means to defray the expenses of
the suit; and (4) whether the party ordered to pay support. Here, Father refused to
provide support adequate under the circumstances existing at the time of institution
of the action. See N.C. Gen. Stat. § 50-13.6. The trial court’s findings should address
each of these four factors. See Gibson v. Gibson, 68 N.C. App. 566, 575, 316 S.E.2d
99, 105 (1984) (“Under the principles set forth in Hudson, supra, however, this action
is one for support only and the additional finding requirement of G.S. 50-13.6 is
thereby invoked. Our examination of the judgment discloses that the trial court did
not find that plaintiff has refused to provide adequate support under the
circumstances existing at the time the action was initiated. Such a finding is required
in order to award attorney’s fees in this case. Its absence compels us to vacate the
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award of attorney’s fees and remand this case for additional findings as required by
G.S. 50-13.6. We note incidentally that the expenses on which the award of counsel
fees was based appear to relate solely to defendant’s child support claim.”)
Based upon the evidence, it appears Mother may have met the “statutory
requirements of G.S. Sec. 50–13.6” but the trial court made no findings on these
factors. Atwell, 74 N.C. App. at 237, 328 S.E.2d at 51. Mother presented evidence
that at the time of institution of this action, she was still in medical school, receiving
public assistance, and had a much lower income. In fact, the initial child support
order against Father was entered in a IV action brought on Mother’s behalf. Mother
testified that she had to borrow money from her brother to pay her attorney fees.
On remand, the trial court may either allow or deny an award of attorney fees
in its discretion, but it still must make the findings of fact required for appellate
review. See Diehl, 177 N.C. App. at 653, 630 S.E.2d at 32. The trial court must
consider whether Mother was “unable to employ adequate counsel in order to proceed
as litigant to meet the other spouse as litigant in the suit. If the action is for child
support alone, there must be an additional finding that the party ordered to furnish
support has refused to provide support which is adequate under the circumstances
existing at the time of the institution of the proceeding.” Belcher v. Averette, 152 N.C.
App. 452, 454-55, 568 S.E.2d 630, 632 (2002) (citations and quotation marks omitted).
The trial court made no findings about whether Father had provided “support which
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is adequate under the circumstances existing at the time of the institution of the
proceeding” or Mother’s ability to employ counsel to defend against Father in this
action. Id. On remand, the trial court shall make findings of fact regarding Mother’s
claim for attorney fees under North Carolina General Statute § 50-13.6, keeping in
mind that it must consider the circumstances at the time of institution of the action,
as to whether Father was providing support adequate under the circumstances at the
time of institution of the proceeding, and may also consider current circumstances in
its discretion. See generally id. We express no opinion on whether the trial court
should or should not award attorney fees; that decision is in the trial court’s
discretion. But whatever the decision, the trial court must make the required
findings of fact for either a denial of attorney fees or an award of attorney fees.
D. Summary
Based upon the lack of an evidentiary hearing since September 2014, possible
misinterpretations of Crews I, the mathematical errors, the failure to address all of
Mother’s claims, and the failure to make necessary findings of fact for Mother’s
attorney fee claim, we must vacate the order and remand for a new order without
addressing the substance of each argument on appeal because as noted by Crews I,
“[t]he trial court’s analysis of th[e] issues may be different when applying the proper
legal standard [and considering the new evidence] for a child support award in a high-
income case such as this one.” Crews I at *7.
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V. Conclusion
We vacate the order and remand for a new trial on all issues. The parties may
rely upon the evidence presented at the September 2014 hearing but may also present
additional evidence for the entire time period covered by the hearing, from March
2012, the date the child support claim was filed, to the date of the hearing on remand.
We note based upon the arguments on appeal, the trial court should clarify its
calculations of certain expenses. The trial court shall then enter a new order
addressing all of the claims and issues.
VACATED and REMANDED.
Judges ZACHARY and MURPHY concur.
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