Foss v. Miller

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1451
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
JULIA M. FOSS,
Plaintiff
Iredell County
v.
No. 05 CVD 2831
ROGER MILLER, JR.,
Defendant
Appeal by plaintiff from order entered 2 May 2013 by Judge
H. Thomas Church in Iredell County District Court. Heard in the
Court of Appeals 8 May 2014.
Julia M. Foss, pro se.
Pressly, Thomas & Conley, P.A., by Gary Thomas, for
Defendant.
ERVIN, Judge.
Plaintiff Julia M. Foss appeals from an order awarding
custody of the parties’ children to Defendant Roger Miller, Jr.,
and establishing an amount of child support that Plaintiff was
required to pay to Defendant. On appeal, Plaintiff argues that
the trial court erred by refusing to deviate from the child
support guidelines, by failing to consider evidence relating to
the difference between the cost of living in California and the
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cost of living in North Carolina, and by failing to allow for
Plaintiff’s extraordinary expenses in calculating the amount of
child support that she owed to Defendant. After careful
consideration of Plaintiff’s challenges to the trial court’s
order in light of the record and the applicable law, we conclude
that the trial court’s order should be affirmed in part and
reversed in part and that this case should be remanded to the
Iredell County District Court for further proceedings not
inconsistent with this opinion.
I. Factual Background
A. Substantive Facts
Plaintiff and Defendant were married on 15 July 1995,
separated on 30 October 2004, and divorced on 11 January 2006.
The parties are the parents of two minor children, Aaron and
Martin.1 On 25 January 2005, the parties entered into a
separation agreement which provided that they were to have joint
legal and physical custody of the children; that “[h]usband and
[w]ife shall equally divide all day care expenses, school
expenses and expenses relating to the needs of the minor
children”; and that, “[b]ased upon the divisions of the
expenses, the reasonable needs of the minor children and the
fact that [h]usband and [w]ife earn a comparable wage, the
1
“Aaron” and “Martin” are pseudonyms used for ease of
reading and to protect the children’s privacy.
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parties agree that neither party shall be required to pay the
other child support.” The parties’ separation agreement was
subsequently incorporated into the divorce judgment.
In 2010, Plaintiff moved from North Carolina to California
and married her current husband, Raymond Foss. After moving to
California, Plaintiff saw the children periodically and made
several trips to visit them in North Carolina. At one point in
2012, Plaintiff refused to return the children to North Carolina
after visiting with them in California, an action which required
Defendant to come to California for the purpose of retrieving
them.
B. Procedural History
On 17 July 2012, Plaintiff filed a motion to modify the
existing child custody and support arrangements. On 13 August
2012, Defendant filed a response to Plaintiff’s motion and a
counter-motion for child custody and support. On 29 August
2012, Plaintiff voluntarily dismissed her modification motion.
On 19 November 2012, Plaintiff filed a new motion in which she
sought to have the existing custody and support arrangements
modified. On 5 March 2013, Plaintiff filed a motion for child
support and a motion to deviate from the child support
guidelines in the event that the trial court awarded custody to
Defendant.
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In early 2013, Plaintiff’s motions came on for hearing
before the trial court in Iredell County District Court. On 2
May 2013, the trial court entered an order denying Plaintiff’s
motion to deviate from the child support guidelines, granting
Defendant primary legal and physical custody of the children,
and ordering Plaintiff to pay child support to Defendant in the
amount of $1,033.00 per month. Plaintiff noted an appeal to
this Court from the trial court’s order.
II. Substantive Legal Analysis
A. Deviation from Child Support Guidelines
In her first challenge to the trial court’s order,
Plaintiff argues that the trial court erred by refusing to
deviate from the child support guidelines in calculating the
amount of support that she owed Defendant. More specifically,
Plaintiff argues that the trial court erroneously failed to make
findings of fact that addressed the children’s need for support
in the course of making its deviation decision. Plaintiff’s
argument has merit.
1. Standard of Review
“Child 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
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834, 837 (2002). Similarly, “[a] trial court’s deviation from
the [child support] [g]uidelines is reviewed under an abuse of
discretion standard.” Beamer v. Beamer, 169 N.C. App. 594, 597,
610 S.E.2d 220, 223 (2005). “Under this standard of review, the
trial court’s ruling will be overturned only upon a showing that
it was so arbitrary that it could not have been the result of a
reasoned decision.” Ludlam v. Miller, __ N.C. App. __, __, 739
S.E.2d 555, 558 (2013) (quoting Spicer v. Spicer, 168 N.C. App.
283, 287, 607 S.E.2d 678, 682 (2005)). “The trial court must,
however, make sufficient findings of fact and conclusions of law
to allow the reviewing court to determine whether a judgment,
and the legal conclusions that underlie it, represent a correct
application of the law.” Id. at __, 739 S.E.2d at 558.
2. Sufficiency of Trial Court’s Findings
“Child support is to be set in such amount ‘as 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.’” Buncombe Cnty. ex rel. Blair v. Jackson, 138 N.C.
App. 284, 287, 531 S.E.2d 240, 243 (2000) (quoting N.C. Gen.
Stat. § 50-13.4(c)). “Child support set consistent with the
Guidelines is conclusively presumed to be in such amount as to
meet the reasonable needs of the child and commensurate with the
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relative abilities of each parent to pay support.” Id. at 287,
531 S.E.2d at 243.
“If the trial court imposes the presumptive amount of child
support under the Guidelines, it is not . . . required to take
any evidence, make any findings of fact, or enter any
conclusions of law ‘relating to the reasonable needs of the
child for support and the relative ability of each parent to
[pay or] provide support.’” Biggs v. Greer, 136 N.C. App. 294,
297, 524 S.E.2d 577, 581 (2000) (quoting Browne v. Browne, 101
N.C. App. 617, 624, 400 S.E.2d 736, 740 (1991)). “However, upon
a party’s request that the trial court deviate from the
Guidelines . . . or the court’s decision on its own initiative
to deviate from the presumptive amounts . . . [,] the court must
hear evidence and find facts related to the reasonable needs of
the child for support and the parent’s ability to pay[.]” Id.
at 297, 524 S.E.2d at 581; Gowing v. Gowing, 111 N.C. App. 613,
618, 432 S.E.2d 911, 914 (1993) (stating that “[t]he second
paragraph of N.C. [Gen. Stat.] § 50–13.4(c) provides that[,]
when a request to deviate is made and such evidence is taken,
the court should hear the evidence and ‘find the facts relating
to the reasonable needs of the child for support and the
relative ability of each parent to provide support’”). In
making the required findings, “the trial court must consider
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‘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.’” Beamer, 169
N.C. App. at 598, 610 S.E.2d at 224 (quoting State ex rel.
Fisher v. Lukinoff, 131 N.C. App. 642, 645, 507 S.E.2d 591, 594
(1998)). As a result, given that Plaintiff requested the trial
court to deviate from the child support guidelines, the trial
court was required to “hear evidence and find facts related to
the reasonable needs of the child for support and the parent’s
ability to pay.” Biggs, 136 N.C. App. at 297, 524 S.E.2d at
581.
In its order, the trial court found as fact that:
18. The Defendant has a Bachelor of Arts
Degree in Accounting and works full
time at Inmar, Inc. as a computer
programmer. He currently has a monthly
gross income of $8,333.00. He pays
health insurance premiums for the minor
children in the amount of $230.00 per
month.
19. The Plaintiff is employed as a
Respiratory Therapy Instructor at San
Joaquin Valley College in Rancho
Cordova, California. She currently has
a monthly gross income of $6,265.00.
20. [Aaron] attends Mooresville Middle
School and will begin Mooresville High
School next year. He is very active in
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sports, particularly baseball, where he
participates in travel baseball.
21. [Martin] attends Mooresville
Intermediate School and will attend
Mooresville Middle School next year.
Both boys have attended schools in the
Mooresville area since kindergarten and
both are A/B students.
22. The Court, outside the presence of the
Plaintiff and Defendant and his
counsel, interviewed the boys and both
expressed the desire to remain in the
primary custody of the Defendant. Both
also stated that they would like to
have more interaction with their
mother.
23. The Court would find that both the
Plaintiff and the Defendant love their
sons. The Court would also find that
it is in the best interest of the minor
children that they remain in the
primary custody of the Defendant with
the Plaintiff having secondary custody
in the form of visitation as set out
below.
24. Both parties owe a duty of support for
the minor children. As noted above the
Plaintiff filed a Motion asking the
Court to deviate from the child support
guidelines. The Court held a hearing
and heard evidence from both the
Plaintiff and Defendant on Plaintiff’s
motion. After hearing this evidence
the Court finds that the Plaintiff’s
Motion to Deviate should be denied.
Thus, the Court would find that the
Plaintiff should begin paying the sum
of $1033.00 per month as support for
the two minor children. This sum being
determined from the Worksheet A as
submitted by the Defendant.
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25. The Custody and Support Order below is
in the best interest of the minor
children.
A careful examination of these findings establishes that the
trial court failed to make specific findings regarding the
reasonable needs of the children for support as required by N.C.
Gen. Stat. § 50–13.4(c). Aside from the amount of the premiums
needed to ensure that the children had adequate health coverage,
the trial court made no specific findings concerning the amount
of expenses that needed to be incurred in order to meet the
children’s needs. More specifically, the trial court’s findings
do not establish the amount necessary to provide for the
children’s education, maintenance, or other expenses. As was
the case in Beamer, the trial court’s order, while addressing
the amount needed to provide the children with health insurance
coverage, was devoid of any findings relating to the amount
needed to ensure that the children’s educational, maintenance-
related, and other needs were met. As a result, the trial
court’s order did not contain sufficient findings of fact to
permit a proper determination of whether the trial court abused
its discretion in denying Plaintiff’s request for deviation from
the child support guidelines. Beamer, 169 N.C. App. at 599, 610
S.E.2d at 224.
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In seeking to persuade us to reach a different result,
Defendant argues that the trial court’s findings of fact
“reflect the evidence presented by [Defendant] as to the
expenses associated with the children’s needs, including basic
living expenses, transportation to school and sports events,
healthcare and vacations.” However, as the Supreme Court has
stated, “[i]t is not enough that there may be evidence in the
record sufficient to support findings which could have been
made[;] [instead,] [t]he trial court must itself determine what
pertinent facts are actually established by the evidence before
it[.]” Beamer, 169 N.C. App. at 599, 610 S.E.2d at 224 (quoting
Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)).
Thus, the fact that the record contains evidence from which the
necessary findings could have been made does not absolve the
trial court from the responsibility for actually making the
required findings.
As we have previously held, the “failure of the lower court
to make findings regarding the reasonable needs of the
child[ren] for support mandates remand for further findings of
fact.” State v. McGuire, 174 N.C. App. 347, 351, 620 S.E.2d
899, 902 (2005); Spicer, 168 N.C. App. at 294-95, 607 S.E.2d at
686 (holding that the case before the Court should be remanded
to the trial court for the making of additional findings of fact
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given the trial court’s failure to make specific findings
concerning the reasonable needs of the child); Coble, 300 N.C.
at 713, 268 S.E.2d at 189 (holding that, without sufficient
factual findings regarding the amount of support necessary to
meet the reasonable needs of the child, an appellate court lacks
the ability to determine whether the trial court’s order has
adequate evidentiary support). As a result, the trial court’s
order must be reversed and this case must be remanded to the
Iredell County District Court for the entry of a new order
addressing Plaintiff’s request for a deviation from the child
support guidelines that contains adequate findings of fact
concerning the reasonable needs of the minor children.
B. Cost of Living Differential
Secondly, Plaintiff contends that the trial court abused
its discretion by failing to consider the difference between the
cost of living in California and the cost of living in North
Carolina. More specifically, Plaintiff contends that the trial
court erred by sustaining Defendant’s objection to the admission
of evidence that she contends would have reflected this cost of
living differential. Plaintiff’s argument lacks merit.
At the hearing held before the trial court, Plaintiff
attempted to introduce a document comparing the cost of living
in California and the cost of living in North Carolina. The
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trial court sustained Defendant’s objection to the admission of
this evidence. In her brief, Plaintiff states that she was
prepared to elicit evidence that the cost of living in
California was substantially higher than the cost of living in
North Carolina so that her income had less value in California
than would have been the case in the event that she lived in
North Carolina. Although “the significance of the excluded
evidence must be made to appear in the record” “[i]n order for a
party to preserve for appellate review [a challenge to the
exclusion of evidence],” State v. Jacobs, 363 N.C. 815, 818, 689
S.E.2d 859, 861 (2010) (citation, quotation marks, and brackets
omitted), Plaintiff does not appear to have made an offer of
proof or taken any other action sufficient to establish the
nature of the evidence that she sought to have the trial court
consider. As a result, since Plaintiff has not properly
preserved her challenge to the exclusion of this evidence for
appellate review, she is not entitled to relief from the trial
court’s order on the basis of this argument.
C. Extraordinary Expense Adjustment
Finally, Plaintiff contends that the trial court
erroneously failed to take certain extraordinary expenses that
Plaintiff claims to have incurred into account in establishing
the amount of child support that she was required to pay to
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Defendant. More specifically, Plaintiff argues that the trial
court abused its discretion by failing to treat the travel-
related expenses that she incurred in order to visit with the
children as extraordinary expenses in the course of calculating
the amount of child support that she was obligated to pay to
Defendant. We disagree.
1. Standard of Review
“The trial court is vested with discretion to make
adjustments to the guideline amounts for extraordinary expenses,
and the determination of what constitutes such an expense is
likewise within its sound discretion.” Doan v. Doan, 156 N.C.
App. 570, 574, 577 S.E.2d 146, 149 (2003) (citing Biggs, 136
N.C. App. at 298, 524 S.E.2d at 581). As part of that process,
the trial court has the discretion to determine “how the
expenses are to be apportioned between the parties.” Mackins v.
Mackins, 114 N.C. App. 538, 549, 442 S.E.2d 352, 359, disc.
review denied, 337 N.C. 694, 448 S.E.2d 527 (1994). “It is well
established that where matters are left to the discretion of the
trial court, appellate review is limited to a determination of
whether there was a clear abuse of discretion.” White v. White,
312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). As a result, we
will review the trial court’s decision to refrain from adjusting
the child support award approved in its prior order to reflect
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Plaintiff’s visitation-related travel expenses utilizing an
abuse of discretion standard of review.
2. Validity of Trial Court’s Expense Adjustment Decision
According to the child support guidelines, the trial court
“may make adjustments for extraordinary expenses and order
payments for such term and in such manner as the [c]ourt deems
necessary.” Mackins, 114 N.C. App. at 548, 442 S.E.2d at 358.
The “extraordinary expenses [contemplated by the child support
guidelines] include . . . [a]ny expenses for transportation of
the child(ren) between the homes of the parents.” Id. at 549,
442 S.E.2d at 359.
At the hearing, Plaintiff testified that the cost of the
children’s travel between North Carolina and California would
amount to approximately $250.00 per month. However, Plaintiff
acknowledged that the children had only visited her in
California on two occasions between 2010 and 2013 and that the
travel cost estimate set out in her testimony was based on the
assumption that the children would make three trips to
California each year. In addition, Defendant claimed to have
spent $4,000 for the purpose of going to California and bringing
the children back to North Carolina after Plaintiff’s refusal to
return them at the conclusion of the 2012 visit. Finally, the
trial court absolved Plaintiff of any responsibility for paying
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child support during the eight week summer period when the
children were scheduled to be with her in California. After
thoroughly reviewing the entire record, we are unable to
conclude that the trial court’s decision to refrain from
adjusting the amount of child support that Plaintiff was
obligated to pay to Defendant to account for these estimated
transportation costs was “so arbitrary that it could not have
been the result of a reasoned decision.” Ludlam, __ N.C. App.
at __, 739 S.E.2d at 558.
Although the child support guidelines treat expenses
incurred to transport children between their parents’ homes as
extraordinary expenses that may be utilized to adjust the trial
court’s ultimate child support award, the trial court is not
required to adjust the amount of child support owed by one
parent to another solely because one party claims to have
incurred or to expect to incur such extraordinary travel
expenses. Instead, the extent to which such expenses should be
recognized and the manner in which they should be recognized is
a matter committed to the sound discretion of the trial court.
Doan, 156 N.C. App. at 574, 577 S.E.2d at 149; Mackins, 114 N.C.
App. at 549, 442 S.E.2d at 359. In view of the fact that the
record provided a substantial basis for questioning the accuracy
of Plaintiff’s cost estimate, the fact that both parties appear
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to have incurred and absorbed such extraordinary visitation-
related expenses, and the fact that the trial court absolved
Plaintiff from any obligation to make support payments to
Defendant for the eight week summer period during which the
children were to be visiting with Plaintiff in California, we
are unable to conclude, based on the present record, that the
trial court abused its discretion by failing to adjust
Plaintiff’s support obligation to reflect her estimate of the
cost of bringing the children to California to visit with her.
In seeking to persuade us to reach a different result,
Plaintiff directs our attention to our decision in Meehan v.
Lawrance, 166 N.C. App. 369, 602 S.E.2d 21 (2004), in which we
held that the trial court’s decision to adjust the amount of
child support that the defendant was obligated to pay to the
plaintiff to account for visitation-related travel expenses did
not constitute an abuse of discretion. In making that
determination, we concluded that the trial court’s extraordinary
expense adjustment had sufficient evidentiary support given that
the record contained evidence tending to show that the defendant
had actually incurred between $300.00 to $500.00 in monthly
visitation-related expenses. Id. at 384, 602 S.E.2d at 30. The
record support for the adjustment that Plaintiff sought in this
case was, as we have already noted, much weaker than that at
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issue in Meehan given that the adjustment amount upon which
Plaintiff relied was clearly an approximation and that Plaintiff
admitted that her proposed extraordinary expense adjustment
assumed a much greater level of visitation-related travel than
had actually occurred in the past. In light of this set of
circumstances and the fact that the procedural posture before
the Court in this case is the exact opposite of the procedural
posture in which we were called upon to decide the issue
addressed in Meehan, Meehan does not provide any basis for a
decision to overturn the trial court’s decision with respect to
this issue. As a result, Plaintiff’s final challenge to the
trial court’s order has no merit.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
Plaintiff’s challenge to the sufficiency of the trial court’s
findings of fact relating to the issue of whether Plaintiff’s
request for a deviation from the child support guidelines should
have been allowed has merit and that Plaintiff’s remaining
challenges to the trial court’s order do not. As a result, the
trial court’s order should be, and hereby is, affirmed in part
and reversed in part and this case should be, and hereby is,
remanded to the Iredell County District Court for further
proceedings not inconsistent with this opinion.
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AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Judges ROBERT N. HUNTER, JR., and DAVIS concur.
Report per Rule 30(e).