Opinion
No. COA11–1396.
2012-07-3
Simone E. GRECO, Plaintiff v. Judy Lee GRECO, Defendant.
No brief filed for plaintiff-appellee. Daughtry, Woodard, Lawrence & Starling, by Kelly Daughtry, for defendant-appellant.
Appeal by defendant from order entered 19 July 2011 by Judge Jimmy Love in Johnston County District Court. Heard in the Court of Appeals 7 March 2012. No brief filed for plaintiff-appellee. Daughtry, Woodard, Lawrence & Starling, by Kelly Daughtry, for defendant-appellant.
CALABRIA, Judge.
Judy Lee Greco (“defendant”) appeals the trial court's order modifying the amount of child support Simone E. Greco (“plaintiff”) was ordered to pay defendant for the benefit of their minor child. We vacate and remand.
I. Background
Plaintiff and defendant were married on 11 October 1997. During their marriage, they had one child, born in October 2000. The parties separated in May 2002, and on 22 August 2002, the trial court entered an order requiring plaintiff to pay defendant child support. Over the next several years, the order was modified on multiple occasions to reflect changes in the parties' respective incomes.
On 30 December 2010, plaintiff filed a motion to modify the current child support order. The motion was supported by an affidavit in which plaintiff averred that his income had substantially decreased. He additionally stated that due to the economy, medical problems involving his back, and a prior criminal record, he had been unable to find additional means of earning income.
Beginning 27 April 2011, a hearing on plaintiff's modification motion was conducted in Johnston County District Court. On 5 July 2011, the trial court entered an order reducing plaintiff's child support obligation from $689.00 to $474.00 per month (“the modification order”). The trial court based its calculation on plaintiff's 2010 income as established at the hearing.
On 6 July 2011, plaintiff filed a motion seeking relief from the trial court's modification order pursuant to N.C. Gen.Stat. § 1A–1, Rule 60(b)(2) on the basis of newly discovered evidence. Specifically, plaintiff had discovered that the health insurance premium for the parties' child listed in the modification order was inaccurate. The actual amount of the premium was several hundred dollars less than the amount found by the trial court in the modification order.
On 8 July 2011, defendant filed a notice of appeal from the modification order. However, at 2:13 p.m. on 19 July 2011, defendant withdrew her appeal “so that the District Court will have jurisdiction to rule on the Rule 60(b)(2) motion.” In her notice of withdrawal, defendant specifically noted that she “intend[ed] to appeal from any order entered whether it be the order entered on July 5, 2011 or any order entered following the hearing on Plaintiff's Rule 60(b)(2) motion.”
Later that afternoon, at 3:55 p.m., the trial court entered an order modifying its previous modification order to accurately reflect the health care costs of the parties' minor child (“the Rule 60(b) order”). The Rule 60(b) order reduced plaintiff's child support obligation to $326.00 per month. The trial court's order additionally stated that “the remaining portions of the [modification] order hereby modified are hereby reaffirmed.” At 3:56 p.m., defendant filed a notice of appeal “from the Order entered and filed on July 19, 2011.”
II. Appellate Jurisdiction
As an initial matter, we must determine if defendant's appeal is properly before this Court. “In order to confer jurisdiction on the state's appellate courts, appellants of lower court orders must comply with the requirements of Rule 3 of the North Carolina Rules of Appellate Procedure.” Stephenson v. Bartlett, 177 N.C.App. 239, 241, 628 S.E.2d 442, 443 (2006) (internal quotations and citation omitted). Rule 3 states, inter alia, that “[t]he notice of appeal ... shall designate the judgment or order from which appeal is taken....” N.C.R.App. P. 3(d) (2011).
In the instant case, defendant gave notice of appeal “from the Order entered and filed on July 19, 2011[.]” Consequently, that order, in which the trial court only ruled upon plaintiff's Rule 60(b) motion, is the only order properly before this Court. However, defendant does not assert any error in the Rule 60(b) order in her brief. Instead, defendant argues that the trial court erred in determining plaintiff's current income, an issue which was decided in the modification order, filed 5 July 2011. The trial court's Rule 60(b) order did not address plaintiff's current income in any way.
A notice of appeal from a Rule 60(b) order which does not also specifically appeal the underlying judgment or order is insufficient to secure appellate review of that underlying judgment or order. Croom v. Hedrick, 188 N.C.App. 262, 270, 654 S.E.2d 716, 722 (2008). Thus, in the instant case, because the trial court's 5 July 2011 modification order was not an order which was specifically appealed, it is not properly before this Court. Since defendant's argument focuses solely on that order, her appeal is subject to dismissal.
Nonetheless, this Court has the discretionary authority under N.C .R.App. P. 21 (2011) to issue a writ of certiorari to review the trial court's 5 July 2011 modification order. See, e.g., In re Will of Durham, 206 N.C.App. 67, 74, 698 S.E.2d 112, 119 (2010). In the instant case, defendant had previously filed a notice of appeal from the trial court's original modification order. However, defendant withdrew that appeal “so that the District Court will have jurisdiction to rule on the Rule 60(b)(2) motion,” which was filed prior to defendant giving her notice of appeal. In her notice of withdrawal, defendant specifically noted that she “intend [ed] to appeal from any order entered whether it be the order entered on July 5, 2011 or any order entered following the hearing on Plaintiff's Rule 60(b)(2) motion.” Nonetheless, her subsequent notice of appeal, filed less than two hours after the withdrawal of the initial appeal, failed to properly preserve defendant's right to appeal the 5 July 2011 modification order. Under these circumstances, we believe it is appropriate to grant certiorari to permit review of that order. Therefore, we will address the merits of defendant's appeal.
III. Modification of Child Support
Defendant argues that the trial court erred in computing plaintiff's income when it reduced plaintiff's child support obligation. Specifically, defendant contends that the trial court failed to utilize evidence of plaintiff's current income at the time the modification order was entered. We agree.
Child support obligations are governed by the guidelines established pursuant to N.C. Gen.Stat. § 50–13.4(c1) (2011) (“the Guidelines”). “We review a trial court's child support orders under an abuse of discretion standard, and failure to follow the Child Support Guidelines without support of proper findings of fact constitutes reversible error.” Holland v. Holland, 169 N.C.App. 564, 567, 610 S.E.2d 231, 234 (2005) (citation omitted).
Defendant contends that the trial court failed to properly determine plaintiff's income under the Guidelines. The relevant provision of the Guidelines provides that “[c]hild support calculations under the guidelines are based on the parents' current incomes at the time the order is entered.” 2012 Ann. R. N.C. 52 (emphasis added); see also Ellis v. Ellis, 126 N.C.App. 362, 364, 485 S.E.2d 82, 83 (1997). Thus, under the Guidelines, the trial court “must determine [the parent's] gross income as of the time the child support order was originally entered, not as of the time of remand nor on the basis of [the parent's] average monthly gross income over the years preceding the original trial.” Holland, 169 N.C.App. at 568, 610 S.E.2d at 234 (internal quotations and citations omitted).
In Holland, the trial court expressly calculated the plaintiff's child support obligation by using a prior year's income rather than his income from the current year. 169 N.C.App. at 568, 610 S.E.2d at 235. This Court stated that while it may be permissible to use an earlier year's income when a more recent year's income would be difficult to determine, the trial court must make explicit findings to establish that fact. Id.
In the instant case, the trial court made the following findings regarding plaintiff's income in the modification order:
13. The Plaintiff has not worked since the end of 2010 with the exception of work with Gold Construction and earning $1,300.00 painting a bed for his sister and keeping her children.
14. The Plaintiff's yearly income based on the bank deposits in 2009 was $17,482.39 and in 2010 was $17,084.23.
15. The court based the Plaintiff's income on the bank deposits made in 2009 and 2010. The Plaintiff produced bank statements for January and February, 2011.
...
26. In payment for work done, Plaintiff testified that his father gave him $6,000.00 which was one half of the sale price of a camper that he sold. The court did not include this sum because it was deposited January 18, 2011.
Based upon these findings, the trial court determined plaintiff's gross monthly income to be “$1,423.68 per month which is 1/12th of the 2010 annual income figure of $17,084.23.”
The modification order was entered on 5 July 2011. When the trial court determined plaintiff's current gross income in the modification order, it was required to consider all evidence of plaintiff's income as of the time that order was entered. Instead, the modification order reflects that the trial court only considered plaintiff's 2010 income when it calculated his child support obligation, even though the trial court specifically made findings which reflected that plaintiff had earned income in 2011 from his sister and his father. Moreover, the trial court's order did not contain adequate findings to justify failing to consider plaintiff's 2011 income when it determined plaintiff's current gross income. Since the trial court failed to calculate plaintiff's child support obligation using his “actual income at the time the order [wa]s ... modified,” Ellis, 126 N.C.App. at 364, 485 S.E.2d at 83, the trial court's order does not comply with the Guidelines. Therefore, the trial court's order must be vacated and remanded for further proceedings.
IV. Conclusion
Since defendant's notice of appeal only referenced the trial court's 19 July 2011 Rule 60(b) order, that is the only order that is properly before this Court. However, in our discretion, we have issued a writ of certiorari in order to review the trial court's 5 July 2011 modification order. The trial court failed to follow the Guidelines when it modified plaintiff's child support obligation. As a result, we vacate the order and remand for further proceedings.
Vacated and remanded. Judges ERVIN and THIGPEN concur.
Report per Rule 30(e).