Morris v. Morris ( 1988 )

374 S.E.2d 441 (1988) 92 N.C. App. 359

Betty Smith MORRIS (Plott)
v.
Michael Christopher MORRIS.

No. 8821DC383.

Court of Appeals of North Carolina.

December 20, 1988.

David F. Tamer, Winston-Salem, for plaintiff-appellant.

Morrow, Alexander, Tash, Long & Black by John F. Morrow and Clifton R. Long, Jr., Winston-Salem, for defendant-appellee.

WELLS, Judge.

Defendant's brief contains a section which is denominated, "Motion to dismiss and Defendant-Appellee's Brief." The record on appeal contains no motion to dismiss filed in accordance with Rule 37 of the North Carolina Rules of Appellate Procedure. Therefore, we decline to address the motion as presented in defendant's brief.

Plaintiff assigns error to finding of fact seven of the trial court's order. Finding of fact seven is as follows:

(7) The guidelines of the conference of Chief District Court Judges are not practical to apply herein due to the shared physical custody arrangement herein.

This "finding" is more properly denominated a conclusion of law, as it decides a question of law rather than one of fact, namely, the applicability of guidelines prescribed by the Conference of Chief District Court Judges for use in child support cases to the facts and circumstances of the instant case. N.C.Gen.Stat. § 50-13.4(c1) (1987) states in part:

The Conference of Chief District Judges shall prescribe uniform statewide advisory guidelines for the computation of child support obligations of each parent as provided in Chapter 50 or elsewhere in the General Statutes.

Such advisory guidelines may provide for variation of the amount of support recommended based on one or more of the following:

(2) any shared physical custody arrangements....

An examination and interpretation of the statute as written clearly indicates that the guidelines prescribed by the Conference of Chief District Court Judges are not mandatory and binding but rather advisory in nature.

We note that the guidelines adopted pursuant to the statute provide for support payments to be based on a percentage of the non-custodial parent's gross income (presently 25 percent for two children). Plaintiff contends that the trial court erred in making this disputed "finding" because it did not "find" how or why the shared custody arrangements rendered the guidelines not practical to apply in this case. We reject this argument. The fact that defendant had sole custody of one of the children and furnished his sole support, while defendant contributed to the support of the two children in plaintiff's custody, clearly justified the trial court's consideration of the "shared custody" factor.

In another assignment of error, plaintiff contends that the trial court erred in making and entering the following findings of fact and conclusions of law:

(10) The Court specifically finds that the plaintiff has failed to rebut the presumption that the amount mutually agreed upon in the June, 1985, amended separation agreement is a just and reasonable amount of child support for the defendant to pay to the plaintiff; that the Court finds that said amount is fair and reasonable, taking into consideration the estates, earnings, conditions and accustomed standard of living of the children and the parties, the child care and homemaker contributions of each party and other facts of this particular case, including, inter alia, the remarriages of the parties.

(11) As the defendant has received two five percent cost of living pay increases since the execution of the June, 1985, amended separation agreement, and as the defendant actually nets an increase in pay, after taxes, of approximately six percent of said increases in pay, the Court finds that it would be just and reasonable for the child support as agreed upon by the parties in the June, 1985, amended separation agreement to be increased by the sum of six percent for a total of $19.80 per month, or $9.90 per month per child.

. . . . .

Based upon the foregoing findings of fact, the Court concludes that, as there is a presumption in the absence of evidence to the contrary that the amount mutually agreed upon by the parties in the June, 1985, amended separation agreement is just and reasonable, and as the plaintiff has failed to rebut said presumption by the greater weight of the evidence, and as the Court finds the amount agreed upon to be just and reasonable, taking into consideration the estates, earnings, conditions and accustomed standard of living of the children and the parties, the child care and homemaker contributions of each party and other facts of this particular case, including, inter alia, the remarriages of the parties, the defendant should be ordered to increase his child support payments by the sum of $9.90 per month per child,....

This Court's opinion in Boyd v. Boyd, 81 N.C.App. 71, 343 S.E.2d 581 (1986) contains an excellent analysis of the appropriate weight to be given child support payments agreed upon in separation agreements when a trial court is called upon for the first time to determine the appropriate level of such payments. See also this Court's opinion in Holderness v. Holderness, 91 N.C.App. 118, 370 S.E.2d 602 (1988). We perceive that the teachings of Boyd and Holderness and the opinions of our Supreme Court reviewed and relied upon therein is that the "presumption" of reasonableness of the agreed upon level of support in such cases is one of evidence only; that is, the agreed upon level of support constitutes some evidence of the appropriate level of support, but that this evidence must be weighed and considered by the trial court together with all other relevant and competent evidence bearing upon the statutory factors set out in N.C. Gen.Stat. § 50-13.4(c) (1987). In other words, in cases such as the one now before us, the trial court is writing upon a clean slate, and the previously agreed upon level of support is but one factor to be considered.

In this case, plaintiff filed a financial affidavit which tended to show that her two daughters required support in the amount of $2,023.00 per month. At trial, plaintiff testified that as her daughters grew older, it cost more to maintain them and that the cost of food, clothing, and personal upkeep had gone up considerably since her separation from defendant.

We conclude that in this case the trial court may have improperly weighed or relied upon the agreed upon level of support, the clear implication being that it may have failed to properly consider and weigh all of the evidence bearing upon the statutory factors. Because it must be properly addressed on remand, we note and emphasize that the trial court's order does not contain a specific finding as to level of support needed "to meet the reasonable needs of the [children] for health, education, and maintenance ...," G.S. 50-13.4(c), a necessary aspect of such an order.

For the reasons stated, we vacate the order of the trial court and remand this case for further proceedings consistent with this opinion. There being no questions urged upon us as to the record of evidence adduced at the previous hearing, we do not order a new trial.

VACATED AND REMANDED.

ARNOLD and COZORT, JJ., concur.