Jain v. Jain

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-408
No. COA21-468
Filed 21 June 2022
Cumberland County, No. 17 CVD 3664
NEELIMA JAIN, Plaintiff,
v.
ASHOKKUMAR JAIN, AA BUSINESS PROPERTIES, LLC and INDIA
FOUNDATION, and KIDZCARE PEDIATRICS PC KIDZ CARE PLAZA
CONDOMINIUM OWNERS ASSOCIATION, INC. and JAIN PROPERTIES, LLC
and JAIN STERLING PROPERTIES, LLC and 4A PROPERTIES, LLC and
PEDIATRIC FRANCHISING INC., Defendants.
Appeal by Defendant Ashokkumar Jain from order entered 22 April 2021 by
Judge Toni S. King in Cumberland County District Court. Heard in the Court of
Appeals 9 February 2022.
The Armstrong Law Firm, P.A., by L. Lamar Armstrong, III, for
Plaintiff-Appellee Neelima Jain.
Adams Burge & Boughman, by Harold Lee Boughman, Jr., for
Defendant-Appellant Ashokkumar Jain.
COLLINS, Judge.
¶1 Defendant Ashokkumar Jain appeals from an order requiring him to pay
$6,196.50 per month in child support to his former wife, Plaintiff Neelima Jain.
Defendant argues that the trial court made unsupported findings of fact, failed to
make sufficient findings of fact, and erred and abused its discretion in its award of
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2022-NCCOA-408
Opinion of the Court
child support. Because the trial court’s findings of fact concerning the minor child’s
reasonable needs for shelter, clothing, electricity, and utilities were unsupported by
competent evidence adduced at the child support hearing, we vacate the order and
remand to the trial court.
I. Background
¶2 Plaintiff and Defendant married in October 1994, had two children during
their marriage, and separated in March 2016. Plaintiff filed this action in May 2017
seeking child support, equitable distribution, alimony, post separation support
(“PSS”), and attorneys’ fees.1 Plaintiff and Defendant’s older child reached the age of
majority before they separated but their younger child, the subject of the child
support claim, reached the age of majority during the pendency of this appeal.
¶3 On 1 February 2018, the trial court entered an order obligating Defendant to
pay Plaintiff $2,370.00 per month for temporary child support for their minor child
and $4,000 per month for PSS.
¶4 On 20 January 2021, the parties appeared before the trial court to address
numerous issues. Plaintiff initially requested, “Administratively, can we proceed
with the child support first since it’s by testimony?” The trial court answered
affirmatively. Defendant noted that he had an oral motion to dismiss PSS review
1 Plaintiff and Defendant have been divorced in a separate proceeding in Cumberland
County.
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2022-NCCOA-408
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because there was no substantial change in circumstances. The trial court stated
that it would hold Defendant’s motion until after addressing child support and
confirmed that Plaintiff was “going to move forward with the permanent child
support” claim. Plaintiff answered yes, and the trial court proceeded to hear
Plaintiff’s claim for permanent child support. The Exhibits/Evidence Log reflects that
the trial court received the following as exhibits during the child support hearing:
Defendant’s 2019 W-2, Defendant’s paystub for the first two weeks of May 2020,
statements of Defendant’s 2019 K-1 distribution income, a statement of Plaintiff and
Defendant’s joint BB&T account, a statement acknowledging payment of a First
Citizens Bank loan, an insurance policy for a car driven by the minor child, copies of
passports for Defendant and the minor child, a Wells Fargo credit card statement,
and documentation of travel and basketball expenses for the minor child. After
hearing testimony and argument, the trial court stated that it would “have to take
this under advisement.”
¶5 The trial court next held a hearing on motions to modify Defendant’s PSS
payment.2 During this hearing, the trial court reminded the parties, “Generally we
do the post-separation support by affidavits.” The trial court and the parties referred
to multiple financial affidavits including two executed by Plaintiff: a Post Separation
The parties referred to multiple motions pertaining to PSS before the trial court, but
2
those motions were not included in the record for the present appeal.
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Support Affidavit filed in September 2020 (“2020 PSS Affidavit”) and another Post
Separation Support Affidavit filed in July 2017 (“2017 PSS Affidavit”). The trial court
marked the 2020 PSS Affidavit, 2017 PSS Affidavit, and other documents as “PSS
Exhibits” in the Exhibits/Evidence Log under a separate heading from the exhibits
received during the child support hearing. No live testimony was offered during the
PSS hearing. At the conclusion of the PSS hearing, the trial court declined to modify
Defendant’s PSS payment. Immediately thereafter, the trial court rendered an oral
ruling on child support. The trial court subsequently addressed issues concerning
scheduling, discovery, expert witnesses, and interim equitable distribution.
¶6 On 22 April 2021, the trial court entered a Permanent Child Support Order
and Interim Equitable Distribution Order (“Child Support Order”). The Child
Support Order required Defendant to pay $6,196.50 per month for permanent child
support, pay 70% of the minor child’s healthcare costs not covered by insurance,
provide private health insurance coverage for the minor child, and provide an insured
vehicle for the benefit of the minor child. Defendant appealed.
II. Discussion
¶7 Defendant argues that the trial court made findings of fact unsupported by
evidence properly before the trial court at the child support hearing; failed to make
sufficiently specific findings concerning the minor child’s reasonable needs; and erred
and abused its discretion by ordering Defendant to pay $6,196.50 for child support.
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¶8 Child support payments “shall be 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, the child care and homemaker contributions of each party, and other facts of
the particular case.” N.C. Gen. Stat. § 50-13.4(c) (2021). Ordinarily, the trial court
“shall determine the amount of child support payments by applying the presumptive
guidelines[.]” Id. However, where “the parents’ combined adjusted gross income is
more than $30,000 per month ($360,000 per year), the supporting parent’s basic child
support obligation cannot be determined by using the child support schedule.”
Determination of Support in Cases Involving High Combined Income, N.C. Child
Support Guidelines (2021).
[W]here 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) (quotation marks
and citations omitted). “[O]ur appellate courts have long recognized that a child’s
reasonable needs are not limited to absolutely necessary items if the parents can
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afford to pay more to maintain the accustomed standard of living of the child.” Id. at
146, 786 S.E.2d at 22 (citations omitted).
¶9 “[T]o determine the reasonable needs of the child, the trial court must hear
evidence and make findings of specific fact on the child’s actual past expenditures and
present reasonable expenses.” Jackson v. Jackson, 280 N.C. App. 325,
2021-NCCOA-614, ¶ 16 (quotation marks and citation omitted). “These findings
must, of course, be based upon competent evidence[.]” Atwell v. Atwell, 74 N.C. App.
231, 234, 328 S.E.2d 47, 49 (1985). We review a trial court’s child support order for
an abuse of discretion. Jonna v. Yarmada, 273 N.C. App. 93, 122, 848 S.E.2d 33, 54
(2020).
¶ 10 Here, the trial court made the following pertinent findings of fact in support of
its award of $6,196.50 in monthly child support:
12. . . . Defendant’s gross yearly income for 2019 is
$1,945,664.60, giving Defendant a gross monthly income of
$162,138.71.
13. The court has reviewed the financial affidavits, the
prior order and findings, and the court further explained
that it is taking judicial notice of the findings in prior
orders in addition to the evidence presented.
14. The Court finds the minor child does have reasonable
needs with regards to shelter, clothing, electricity and
utilities.
15. The minor child also has reasonable needs for food,
transportation, subscriptions to gym memberships and
other recreational activities that the child was accustomed
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to when the parties had an intact marriage.
16. The minor child has reasonable expenses to travel to
include trips to India at approximately $4,000.00 a ticket
per year, trips to different countries of an average cost of
$1,500.00 per year, and local trips within the United States
at an average yearly cost of approximately $600.00.
17. The court finds the reasonable expenses for shelter for
the minor child is approximately $1,850.00, and the minor
child does reside with the Plaintiff mother, as well as the
utilities expenses incurred in the home.
18. The minor child has a reasonable expense for a vehicle
payment for a Nissan Altima. That the minor child
previously had a vehicle, a 2020 Honda Civic, that
Defendant was paying $434.48 per month, but that vehicle
has since been sold. The current vehicle payment for the
Altima is approximately $300.00.
19. There is a vehicle insurance premium of $342.80 per
month, and that the Court concludes the premium is based
on the minor child’s maturity and lack of experience in
driving.
20. That the minor child does have issues with his knee
since he is an avid basketball player. The minor child has
been referred to physical therapy for his knee, where there
is [a] $70 co-pay for each visit. The minor child needs to go
twice a week, but has been going one time per week.
21. The Court will find that the minor child has reasonable
expenses that suit his accustomed standard of living of
approximately $6,885.00 and therefore the court is going to
order said amount.
22. The Court will find that Defendant has the means and
ability to pay the child support based on the income that he
earns. And the court will enter an order requiring the
parties share in the minor child’s reasonable expense.
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....
24. The Court finds the Defendant’s share of the minor
child’s expenses will be 90% which is $6,196.50. . . .
¶ 11 Defendant challenges Finding 14 and Finding 17 as unsupported by competent
evidence. We agree. Both Plaintiff and Defendant testified at the child support
hearing, but neither testified concerning the minor child’s expenses for shelter,
clothing, electricity, or utilities. Plaintiff instead argues that values listed in her 2020
PSS Affidavit support the trial court’s findings and underscores the trial court’s
statement that it “reviewed the financial affidavits” prior to making the child support
award.3
¶ 12 This Court has recognized that parties may introduce affidavits in support of
claims for child support. See Smith, 247 N.C. App. at 151, 786 S.E.2d at 25
(“Affidavits are acceptable means by which a party can establish” past expenditures
for a child); Row v. Row, 185 N.C. App. 450, 460, 650 S.E.2d 1, 7 (2007) (holding that
the parties’ financial affidavits “were competent evidence [] which the trial court was
allowed to rely on in determining the cost of raising the parties’ children”); Savani v.
Savani, 102 N.C. App. 496, 502, 403 S.E.2d 900, 904 (1991) (“[A]n affidavit is
recognized by this court as a basis of evidence for obtaining support.”). However, such
3 Plaintiff’s argument that the trial court’s findings of fact are properly supported does
not rely on the 2017 PSS Affidavit.
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affidavits must be properly before the trial court because the trial court is constrained
to “determine what pertinent facts are actually established by the evidence before it[.]”
Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980) (emphasis added).
¶ 13 In this case, the trial court held a child support hearing and a PSS review
hearing on the same day. But, as both the parties and the trial court acknowledged
on that day, the child support and PSS hearings were distinct proceedings. The trial
court first held the child support hearing, took the issue under advisement, and then
heard motions to modify PSS. While the parties and the trial court relied on the PSS
Affidavits at the PSS hearing, neither Plaintiff nor Defendant sought to admit either
affidavit during the child support hearing. As a result, the affidavits were not before
the trial court during the child support hearing and cannot be considered competent
evidence in support of the trial court’s findings concerning the minor child’s
reasonable needs.
¶ 14 Plaintiff contends that a “plethora of cases hold that financial affidavits . . . are
proper filings from which trial courts may compute child support.” While true, none
of the cases cited by Plaintiff stand for the proposition that a financial affidavit relied
upon during a different proceeding, and not submitted at the hearing on child
support, is sufficient to support findings in an order for permanent child support. See
Koufman v. Koufman, 330 N.C. 93, 98-99, 408 S.E.2d 729, 731-32 (1991) (holding that
the trial court’s adjustment of eleven fixed expenses claimed by the plaintiff was
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supported by plaintiff's affidavit of financial standing, filed with the trial court prior
to the completion of the child support hearing); Smith, 247 N.C. App. at 151-52, 786
S.E.2d at 25-26 (affirming the trial court’s findings of fact because the inconsistency
in defendant’s testimony explaining her financial affidavits was “only [a] credibility
issue[] to be resolved by the trial court” and the “evidence before the court otherwise
established [defendant’s] expenditures for the relevant time period”); Savani, 102
N.C. App. at 501-02, 403 S.E.2d at 903-04 (rejecting “defendant’s assertion that
plaintiff’s affidavit did not constitute evidence of actual expenditures” where plaintiff
testified in explanation of the figures in the affidavit); Byrd v. Byrd, 62 N.C. App. 438,
440-41, 303 S.E.2d 205, 207-08 (1983) (rejecting plaintiff’s argument that findings in
the child support order were not sufficiently specific where the trial court “made
specific reference to the defendant’s affidavit” itemizing the children’s expenses
“rather than setting forth the specific facts regarding the needs of the children”);
McLeod v. McLeod, 43 N.C. App. 66, 66-68, 258 S.E.2d 75, 76-77 (1979) (affirming
child support and alimony awards where the trial court made findings “[o]n the basis
of extended exhibits and testimony,” including an affidavit of the wife’s expenses, and
“[n]o exception was taken from these findings of fact”).
¶ 15 Plaintiff characterizes Defendant’s argument as a “highly technical
evidentiary argument.” We recognize that trial courts may hear motions for child
support and PSS concurrently, or may hear such motions consecutively with the
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parties agreeing, explicitly or implicitly, to have the trial court consider all evidence
presented for both issues. See, e.g., Gilmartin v. Gilmartin, 263 N.C. App. 104,
106-07, 822 S.E.2d 771, 773 (2018) (concluding it was clear from the conduct of the
parties that the trial court heard claims for alimony and equitable distribution during
the same hearing). But here, the trial court held clearly distinct child support and
PSS review hearings on the same day and nothing in the record supports a conclusion
that the parties agreed to have the trial court consider all evidence presented at each
hearing for both issues. It is far from a technicality, and in fact it is a requirement,
that the trial court is bound to “determine what pertinent facts are actually
established by the evidence before it[.]” Coble, 300 N.C. at 712, 268 S.E.2d at 189.
¶ 16 For the same reasons, we strike Plaintiff’s supplement to the record on appeal
pursuant to N.C. R. App. P. 9(b)(5)(a), containing (1) an 18 November 2021 affidavit
of her trial counsel seeking to explain the proceedings before the trial court, (2) the
2020 PSS Affidavit, and (3) the 2017 PSS Affidavit, and deny Plaintiff’s motion to
amend the record to incorporate these documents pursuant to N.C. R. App. P.
9(b)(5)(b). See State v. McGaha, 274 N.C. App. 232, 238, 851 S.E.2d 659, 663 (2020)
(holding that a form which had never been filed with or presented to the trial court
“could not supplement the record on appeal pursuant to Rule 9(b)(5)(a)” and “cannot
be added to the record on appeal pursuant to Rule 9(b)(5)(b)”).
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¶ 17 Because the 2020 PSS Affidavit was not introduced during the child support
hearing, it is not competent evidence in support of the trial court’s findings concerning
the minor child’s reasonable needs. No other evidence in the record supports the trial
court’s findings concerning the minor child’s reasonable needs for shelter, clothing,
electricity, and utilities.
¶ 18 Even if we consider all the findings of fact, including those challenged by
Defendant, the findings do not support the trial court’s finding of $6,885.00 in
reasonable expenses for the minor child and the consequent $6,196.50 award of
monthly child support payments. Our Supreme Court has emphasized that in an
order for child support,
[e]vidence must support findings; findings must support
conclusions; conclusions must support the judgment. Each
step of the progression must be taken by the trial judge, in
logical sequence; each link in the chain of reasoning must
appear in the order itself. Where there is a gap, it cannot
be determined on appeal whether the trial court correctly
exercised its function to find the facts and apply the law
thereto.
Coble, 300 N.C. at 714, 268 S.E.2d at 190. Here, the trial court found the following
specific expenses for the minor child: travel expenses of $4,000 per year for trips to
India, $1,500 per year for trips internationally, and $600 per year for trips
domestically; shelter expenses of $1,850 per month; a $300 monthly car payment; a
$342.80 monthly car insurance premium; and a $70 copay for physical therapy, which
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the minor child needed to attend twice weekly. These values total only $3,561.13
monthly. While the trial court found that “the minor child does have reasonable
needs with regards to . . . clothing, electricity and utilities[,]” as well as “food,
transportation, subscriptions to gym memberships and other recreational activities,”
the trial court did not find what those needs were. Contrary to Plaintiff’s suggestion
that the trial court’s permanent child support award is supported in part by her
testimony that the $2,370 in temporary support was insufficient to meet the minor
child’s needs, there is no indication that the expenses found by the trial court in the
Child Support Order were additional to, and not overlapping with, the expenses
reflected in the previous award of temporary child support.
¶ 19 As Defendant argues, “there is no indication of any methodology applied by the
trial court” to reach the finding of $6,885 in reasonable expenses for the minor child
and the award of $6,196.50 in monthly child support payments. See Diehl v. Diehl,
177 N.C. App. 642, 653, 630 S.E.2d 25, 32 (2006) (concluding that it was “impossible
to determine on appeal where the figures used by the trial court came from at all”
where the trial court found only lump sum values for the children’s reasonable needs
and there was “no indication of what methodology or facts the trial court considered”).
III. Conclusion
¶ 20 The trial court’s findings concerning the minor child’s reasonable needs for
shelter, clothing, electricity, and utilities were unsupported by competent evidence in
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the record before the trial court in the child support hearing. Additionally, the trial
court’s findings concerning the minor child’s reasonable needs did not support its
award of child support. Accordingly, we vacate the Child Support Order and remand
to the trial court. “On remand, the trial court, in its discretion, may enter a new order
based on the existing record, or may conduct further proceedings including a new
evidentiary hearing if necessary.” Kaiser v. Kaiser, 259 N.C. App. 499, 511, 816
S.E.2d 223, 232 (2018) (citation omitted).
VACATED AND REMANDED.
Judges ZACHARY and CARPENTER concur.