Opinion
No. COA13–126.
2013-06-18
Phyllis BRAFFORD, Plaintiff, v. Paul BRAFFORD, Defendant.
No brief filed by plaintiff. Paul Brafford, pro se.
Appeal by defendant from judgment entered 9 August 2012 by Judge N. Hunt Gwyn in Union County District Court. Heard in the Court of Appeals 23 May 2013. No brief filed by plaintiff. Paul Brafford, pro se.
ELMORE, Judge.
Paul Brafford (defendant) appeals from a judgment granting Phyllis Brafford (plaintiff) temporary child support payments for their son, granting post separation support (PSS) in favor of, and ordering defendant to pay plaintiff's attorneys fees. We affirm.
I. Background
Defendant and plaintiff were married on 13 April 1991 and separated on 29 March 2009. They have one son, whose birthday is 8 January 1994 and who at the date of the hearing relevant to this appeal was not yet eighteen years old. In October 2009 plaintiff filed for divorce from bed and board, PSS, alimony, child custody, child support, equitable distribution, and attorney's fees. The subject of the dispute central to this appeal is an order entered 9 August 2012, granting plaintiff temporary child support payments for their son, granting PSS in favor of plaintiff, and ordering defendant to pay plaintiff's attorneys fees. On appeal, defendant alleges judicial misconduct and challenges several findings and conclusions of the trial court.
II. Analysis
A. Alleged improper judicial actions
Defendant first argues that Judge Gwyn committed judicial misconduct by 1) failing to recuse himself from the case given that he and plaintiff's attorney had previously worked together in Union County, 2) engaging in alleged improper ex parte communication with plaintiff's attorney, and 3) allowing plaintiff's attorney to commit libel against defendant. We decline to address these arguments, as we find them to be based merely on speculation. Further, defendant has failed to support these arguments with any legal authority. This Court dismisses arguments when a defendant fails to “present our Court with an argument, supported by citations to relevant law, for every issue Defendant would like our Court to address.” Reams v. Riggan, –––, N.C.App. ––––, ––––, 735 S.E.2d 407, 412 (2012) (citation omitted).
B. Defendant as supporting spouse
Defendant next argues that the trial court erred in finding that he was a supporting spouse under N.C. Gen.Stat. § 50–16.2A. We disagree.
“The issues of who is a dependent spouse and who is a supporting spouse are mixed questions of law and fact which can be best determined by the trial judge” and whose decision “will not be disturbed absent a clear abuse of discretion.” Vandiver v. Vandiver, 50 N.C.App. 319, 328, 330, 274 S.E.2d 243, 249, 250 (1981) (quotations and citations omitted). “ ‘Supporting spouse’ “ means a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support. N.C. Gen.Stat. § 50–16.1A (2012)). “Factors such as the parties' standard of living, income, income earning abilities, debt, living expenses and legal obligations to support other persons are considered in determining the financial needs of the parties.” Evans v. Evans, 169 N.C.App. 358, 364–65, 610 S.E.2d 264, 270 (2005) (citation omitted).
Here, it is clear from the face of the judgment that the trial court considered such relevant factors and made a reasoned decision in finding defendant to be the supporting spouse. Findings of fact 9, 10, 11, and 12 address plaintiff's income and income earning abilities. Likewise findings of fact 16, 17, 18, and 19 address the same for defendant. It is also clear that the trial court considered the living expenses of both parties, as a detailed list of plaintiff's living expenses is summarized by finding of fact 42, while defendant's living expenses are summarized by finding of fact 44. The trial court also examined the debt of both parties, and included that information in findings of facts 43 and 45. As such, we are unable to agree with defendant that the trial court abused its discretion in finding him to be the supporting spouse.
C. Income of the parties
Defendant next argues 1) that the trial court failed to consider the present income of the parties when determining child support payments and 2) that the trial court failed to consider all of plaintiff's income when determining the PSS and child support payments. A review of the judgment indicates that the trial court considered the incomes of both parties in reaching its determination, as evident by findings of fact 9, 10, 11, 12, 16, 17, 18, and 19. However, defendant appears to argue that these findings are not supported by the evidence. We disagree.
In determining plaintiff's income, the trial court found that plaintiff earns “an hourly rate there of eight dollars and eighty two cents” and imputed a 40 hour work week to her, although she does not always work 40 hours. According to the judgment, this finding was based on plaintiff's testimony. However, defendant has failed to include in the record those portions of the transcript documenting plaintiff's testimony regarding her income. Therefore, we may and will presume the findings of fact regarding plaintiff's income are supported by competent evidence. See Potts v. Potts, 19 N.C.App. 193, 194, 198 S.E.2d 203, 204 (1973) (Holding that when an appellant argues that “the evidence does not support the findings of fact by the trial judge, but does not include the evidence in the record on appeal, we will presume the facts found are supported by competent evidence.”).
Defendant further contends that the trial court should have found plaintiff's income to be much higher, and that the trial court failed to consider plaintiff's other sources of income or “forgot or just didn't put her other recurring earnings in.” We are not persuaded by this argument, as it is not our role to weigh the evidence. As long as there is competent evidence to support the trial court's findings we must uphold the trial court's findings of facts. See Raynor v. Odom, 124 N.C.App. 724, 729, 478 S.E.2d 655, 658 (1996) (Holding that “on appeal from a case heard without a jury, the trial court's findings of fact are conclusive if there is evidence to support them, even though the evidence might sustain a finding to the contrary.”) (citations omitted).
Turning to the findings regarding defendant's income, the trial court found that defendant “[b]y virtue of his last tax filing,” had an “adjusted gross annual salary” of $38,492.00 plus he also claimed income from pensions and annuities. We conclude that these findings are supported by defendant's own testimony, where he stated that according to his most recent tax return, he earned $38,000.00 and also “inherited stuff from my mother and probably something I turned in.” Thus, the findings concerning defendant's income are supported by competent evidence and the trial court did not err in determining defendant's income.
D. Allowance for living expenses
Defendant next argues that the trial court erred when it failed to make an allowance for his living expenses. The crux of defendant's argument is that the trial court erred by determining his income to be $4,311.00 per month, and that based on an income of $2,348.00 per month, the ordered support payments when combined with his monthly needs and expenses “produces a gross deficit.” We decline to address this argument because, as we have explained herein, the trial court did not err in determining the amount of defendant's monthly income.
E. Credit for prior payments and evidence of disability
Turning to defendant's next two arguments, he contends 1) that the trial court erred when it failed to grant him credit for prior child support and PSS payments and 2) that the trial court failed to consider evidence that he is disabled. However, again, defendant has failed to support these arguments with any relevant law or authority, and we therefore again dismiss these arguments.
F. PSS when no pending divorce or alimony action
Defendant next argues that the trial court erred in granting PSS because there was no pending divorce or alimony action. We disagree.
Under our General Statutes, postseparation support “may be ordered in an action for divorce, whether absolute or from bed and board, for annulment, or for alimony without divorce.” N.C. Gen.Stat. § 50–16.1A(4) (2012). Here, according to the judgment, plaintiff filed a complaint in October 2009 for, among other things, divorce from bed and board, PSS, and alimony. Thus, defendant appears confused in his argument that no action for divorce or alimony existed between the parties. In his brief, defendant references a mediation agreement entered into by the parties which he contends, at the time, resolved all issues between them except divorce. We are unable to review this document, as defendant has failed to include it in the record. However, he further argues in his brief that the mediation agreement was subsequently set aside. Thus, by the logic of defendant's own argument, it is clear that a divorce and alimony action were still pending between the parties at the time the judgment at issue was entered. Accordingly, defendant's argument here fails.
H. Attorney's fees
Lastly, defendant argues that the trial court erred in awarding plaintiff attorney's fees because the judgment contains no findings of fact to support the award. We disagree.
Defendant is correct that “[a]n order for attorney's fees ... in an action for child custody or support, or both, must be supported by findings, required by the statute, that the party seeking the award is (1) an interested party acting in good faith and (2) has insufficient means to defray the expense of the suit.” Cobb v. Cobb, 79 N.C.App. 592, 595, 339 S.E.2d 825, 828 (1986). Here, the judgment states that “Plaintiff is an interested party, acting in good faith, without the means and ability to advance the prosecution of this action but for an award of attorney's fees.” Although this language is classified as a conclusion of law in the judgment, we nonetheless find it to be sufficient as a finding of fact to support the award. See North Carolina State Bar v. Key, 189 N.C.App. 80, 88, 658 S.E.2d 493, 499 (2008) ( “[C]lassification of an item within the order is not determinative, and, when necessary, the appellate court can reclassify an item[.]”) (citation omitted).
III. Conclusion
In sum, we decline to address a number of defendant's arguments as they are not supported by law or authority. Regarding the rest, we affirm.
Affirmed. Judges GEER and DILLON concur.
Report per Rule 30(e).