Rawls v. Rawls

381 S.E.2d 179 (1989)

Jean Sellars RAWLS
v.
George Whitfield RAWLS.

No. 885DC1366.

Court of Appeals of North Carolina.

July 18, 1989.

James L. Nelson, Wilmington, for plaintiff-appellee.

Larrick & Mason by James K. Larrick, Wilmington, for defendant-appellant.

WELLS, Judge.

I. CHILD SUPPORT

Defendant first assigns error to the trial court's order that he pay $100.00 per week in child support. In determining the amount of support necessary for a minor child the trial court must consider specific factors and circumstances; child support payments shall be sufficient "to meet 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, the child care and homemaker contributions of each party, and other facts of the particular case." N.C.Gen. Stat. § 50-13.4(c) (1987).

The trial court's findings on these issues must be sufficiently detailed to support its conclusions of law. This specificity enables appellate tribunals to examine the court's findings to determine whether they support its order; appellate courts do not make factual findings but rather review the trial court's conclusions of law to decide whether they are amply supported by the facts as found. Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985); Boyd v. Boyd, 81 N.C.App. 71, 343 S.E.2d 581 (1986).

With respect to an order for child support, the factual findings must be sufficiently specific to enable the appellate court to determine that the trial court "took `due regard' of the particular `estates, earnings, conditions, [and] accustomed standard of living' of both the child and the parents" in determining "(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."

Boyd, supra (quoting Coble v. Coble, 300 N.C. 708, 268 S.E.2d 185 (1980)).

Defendant contends that the trial court erred in its findings of fact with respect to the child's support needs by including sums expended on behalf of plaintiff's home as a whole. We do not believe that the evidence supports this assertion. During plaintiff's testimony regarding her computation of the child's living expenses the following discussions took place:

THE COURT: Are those expenses for your child alone?

A. Yes.

THE COURT: It's not including yours for anything, just the child, you need $290.

A. Right. For instance, for food, that was just his food, not total food there.

* * * * * *

CROSS EXAMINATION (By Mr. Larrick)

Q. Mrs. Rawls, the figures you just went through starting $150 for electricity, $36 for phone, $10 for trash. And you talked about insurance on the house and you said that was part of the utility bill. What do you mean by that? Do you understand what I am asking you about? What you just testified to.

A. Actually I cut myself out $200. It should be $400.

We believe that this evidence supports the trial court's finding regarding the child's total reasonable expenses.

Defendant also contends that the trial court failed to make sufficient factual findings regarding his monthly expenses. In determining the proper amount of child support payments the trial court must make findings regarding the non-custodial parent's living expenses. Plott, supra. The court found that defendant's expenses are $52.00 per month, and that any expenses in excess of this amount are provided for by his mother and brother. Defendant's evidence did not contradict this finding. We hold that the trial court made the required findings and that they were supported by the evidence presented at the hearing.

Defendant next contends that the trial court abused its discretion by requiring him to pay an excessive amount of child support. Although the order requires him to expend a rather large percentage of his stated weekly income for the support and maintenance of his son, we note that the trial court found that defendant had been paying $100.00 per week voluntarily for several months prior to the hearing and testified that he would continue to do so. This finding is supported by the evidence and is relevant to the trial court's inquiry, as a fact "of the particular case." N.C. Gen.Stat. § 50-13.4(c) (1987). We emphasize, however, that the primary inquiry is always the child's reasonable needs rather than the parties' abilities to pay. Warner v. Latimer, 68 N.C.App. 170, 314 S.E.2d 789 (1984). The court made extensive findings regarding the child's needs and his parents' estates and earnings, including its findings regarding defendant's job skills and improving educational qualifications. Its resulting order for current child support does not require that defendant exhaust his savings, but appears to be fair and reasonable as to all parties. See Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976). We overrule this assignment of error.

Defendant next assigns error to the trial court's order that plaintiff recover $15,100.00 from him in reimbursement of past child support. This sum reflects credits awarded to defendant for the amounts previously contributed to plaintiff for the child's support. Retroactive child support payments are recoverable for amounts actually expended on the child's behalf; "[t]he measure of defendant's liability to plaintiff is the amount actually expended by plaintiff which represented the defendant's share of support...." Warner, supra (emphasis retained) (quoting Hicks v. Hicks, 34 N.C.App. 128, 237 S.E.2d 307 (1977)).

The trial court specifically found that prior to filing this action plaintiff expended at least $400.00 per month for the support of the parties' child. It also found that defendant had the capacity to pay one-half of this amount toward the child's support during this time. See Buff v. Carter, 76 N.C.App. 145, 331 S.E.2d 705 (1985) (trial court must consider defendant's ability to pay during the time for which reimbursement for child support is sought). In light of these findings, which are supported by the evidence and thus are binding on appeal, we hold that the trial court correctly awarded plaintiff reimbursement for past child support. We overrule this assignment of error.

II. EQUITABLE DISTRIBUTION

Defendant next assigns error to the trial court for ordering that plaintiff recover $43,812.21 "in equity" for the depletion of her separate estate for the benefit of defendant's separate estate. The court found that the parties had acquired no marital property, and therefore concluded that there was no "estate to be adjusted pursuant to [N.C.Gen.Stat. §] 50-20(c) [1987]." In reaching this conclusion the trial court neglected, however, to consider the debts incurred by the parties during their marriage.

"Debt, as well as assets, must be classified as marital or separate property." Byrd v. Owens, 86 N.C.App. 418, 358 S.E.2d 102 (1987). In effectuating an equitable distribution the trial court must consider the parties' debts. Geer v. Geer, 84 N.C.App. 471, 353 S.E.2d 427 (1987); N.C.Gen.Stat. § 50-20(c)(1) (1987). If it finds that a particular debt is marital, that is, "a debt incurred during the marriage for the joint benefit of the parties," it possesses discretion to equitably apportion or distribute the debt between the parties. Geer, supra.

The parties in this case incurred the debt jointly. In its limited factual findings on this issue, the trial court found that "the savings and loan made [a loan] to defendant for the purpose of enhancing and/or maintaining the defendant's separate property...." It made few findings, however, concerning the actual use of the loan proceeds: the court discussing defendant's use of only $5,000.00 out of the total amount borrowed of $50,400.00. It is impossible from these incomplete findings to determine whether the debt was a marital debt, i.e. one incurred for the joint benefit of the parties. Because of the trial court's failure to make the findings necessary to properly establish the classification of the debt, in accordance with the authorities cited above, we reverse and remand the cause for further factual findings on this issue and for an appropriate order based on such findings. Such order may include a requirement that defendant reimburse plaintiff for such portion of the marital debt as the court finds equitable. See N.C.Gen.Stat. § 50-20(e) (1987).

III. CUSTODY AND VISITATION

In his final assignment of error defendant challenges the trial court's authority to order him to consult with a psychologist or psychiatrist before awarding specific visitation rights. Visitation rights orders, along with other matters related to child custody, are governed by the standard of "promot[ing] the interest and welfare of the child." N.C.Gen.Stat. § 50-13.2(b) (1987). The trial court has wide discretion to protect the child's best interests and welfare. Craig v. Kelley, 89 N.C.App. 458, 366 S.E.2d 249 (1988).

The trial court found that defendant's contact with his minor child had been minimal, and although he was fit and proper to have visitation rights, consultation with plaintiff and defendant by a third-party professional could benefit the court in awarding specific visitation rights. The court's factual findings support its order, and we perceive no abuse of discretion. We overrule this assignment of error.

Affirmed in part, reversed in part and remanded.

HEDRICK, C.J., and ARNOLD, J., concur.