Opinion
No. COA15-562
08-02-2016
PERQUIMANS COUNTY BY AND THROUGH THE ALBERMARLE CHILD SUPPORT ENFORCEMENT AGENCY, EX. REL., AERIAL L. SEHLEMEYER, Plaintiff, v. BRANDON S. VANHORN, Defendant.
Windy H. Rose, for plaintiff-appellee. Frank P. Hiner, IV and Brett A. Lewis, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Perquimans County, No. 14CVD154 Appeal by defendant from order entered 22 January 2015 by Judge Eula E. Reid in District Court, Perquimans County. Heard in the Court of Appeals 4 November 2015. Windy H. Rose, for plaintiff-appellee. Frank P. Hiner, IV and Brett A. Lewis, for defendant-appellant. STROUD, Judge.
Defendant appeals from a child support order contending that the trial court did not have personal jurisdiction over him, and even if it did, the trial court erred in imputing income to him and failing to consider his ability to pay the amount ordered. Because the complaint was unverified and there was no evidence presented upon which the trial court could make findings of fact and a conclusion of law regarding the existence of personal jurisdiction over defendant, we vacate and remand for further proceedings.
I. Background
In September of 2014, Perquimans County filed an unverified complaint on behalf of Aerial Sehlemeyer seeking child support from defendant, alleging that defendant was a resident of Georgia. Defendant was properly served with the summons and complaint on 23 September 2014. In November of 2014, the trial court entered an "ENTRY OF DEFAULT" as defendant had "failed to plead or appear[;]" this same month the trial court held a hearing to establish the child support obligation, but defendant did not appear. On 22 January 2015, the trial court entered an order requiring defendant to pay child support. Defendant appeals the order.
II. Personal Jurisdiction
Defendant first contends that
[t]he trial court committed reversible error where it had no competent evidence to make a finding on personal jurisdiction over the defendant, where it failed to make a finding as to personal jurisdiction over the defendant, and where it failed to make a conclusion of law that the courts of North Carolina had personal jurisdiction over the defendant.(Original in all caps.) Plaintiff contends that defendant has waived any argument regarding personal jurisdiction. But because defendant never appeared before the trial court, he did not waive his personal jurisdiction argument. See Barnes v. Wells, 165 N.C. App. 575, 579, 599 S.E.2d 585, 588 (2004) ("Petitioner cites several cases in support of his argument that respondent waived his objections to personal jurisdiction. However, we find these cases are also inapplicable because respondent never made a general appearance before entry of the final order.") Therefore, we address defendant's argument on appeal.
When this Court reviews a decision as to personal jurisdiction, it considers only whether the findings of fact by the trial court are supported by competent evidence in the record; if so, this Court must affirm the order of the trial court. Under Rule 52(a)(2) of the Rules of Civil Procedure, however, the trial court is not required to make specific findings of fact unless requested by a party. When the record contains no findings of fact, it is presumed that the court on proper evidence found facts to support its judgment.Banc of Am. Secs. LLC v. Evergreen Int'l Aviation, Inc., 169 N.C. App. 690, 694, 611 S.E.2d 179, 183 (2005) (citations, quotation marks, ellipses, and brackets omitted). Furthermore, "[i]f the findings of fact are supported by competent evidence, we conduct a de novo review of the trial court's conclusions of law and determine whether, given the facts found by the trial court, the exercise of personal jurisdiction would violate defendant's due process rights." Deer Corp. v. Carter, 177 N.C. App. 314, 321-22, 629 S.E.2d 159, 165 (2006).
Plaintiff argues that the trial court had personal jurisdiction over defendant through the specific avenues allowed pursuant to North Carolina General Statute § 52C-2-201. And perhaps the trial court could have personal jurisdiction, but there was no evidence submitted regarding personal jurisdiction over defendant. Plaintiff did not file an affidavit or verified complaint, and no evidence was presented at the hearing which tended to establish personal jurisdiction over defendant pursuant to North Carolina General Statute § 1-75.11. See N.C. Gen. Stat. § 1-75.11(1) (2013) ("Where a defendant fails to appear in the action within apt time the court shall, before entering a judgment against such defendant, require proof of service of the summons in the manner required by G.S. 1-75.10 and, in addition, shall require . . . proof by affidavit or other evidence, to be made and filed, of the existence of any fact not shown by verified complaint which is needed to establish grounds for personal jurisdiction over the defendant."); see also Hill v. Hill, 11 N.C. App. 1, 8-10, 180 S.E.2d 424, 429-30 ("[P]ersonal jurisdiction over a nonappearing defendant for the purpose of the entry of a judgment by default is not presumed by the service of summons and an unverified complaint but must be proven and appear of record as required by G.S. 1-75.11. . . . . We hold that the summons, the certificate of the officer serving it, and the unverified complaint are insufficient to establish the jurisdictional requirements for the judgment entered herein. If the necessary proof required by G.S. 1-75.11 was made, it was not filed as required. For the failure of the record to show, as required by G.S. 1-75.11, personal jurisdiction of the defendant by the court, the judgment entered herein was void and could be considered and treated as a nullity." (quotation marks omitted)), cert. denied, 279 N.C. 348, 182 S.E.2d 580 (1971). Furthermore, at the hearing regarding child support, there was no evidence presented regarding personal jurisdiction; the entire transcript of the hearing is two pages and one line wherein an employee of child support services testified regarding the child support worksheet. No findings of fact were made regarding plaintiff's argued bases for personal jurisdiction, nor any other bases, and there was no evidence presented such as an affidavit, verified complaint, or testimony regarding personal jurisdiction. As there was no evidence of personal jurisdiction over defendant, we vacate and remand.
The General Assembly amended North Carolina General Statute and repealed subsection (a)(7), effective June 2015. See N.C. Gen. Stat. § 52C-2-201 (2015). Furthermore, as to North Carolina General Statute § 52C-2-201(a)(7), before repealed, our record does contain a North Carolina affidavit of parentage signed by defendant, but nothing on the document or in our record shows that it was "filed with the clerk of superior court[,]" and thus it cannot be a basis for personal jurisdiction on its face. N.C. Gen. Stat. § 52C-2-201(a)(7) (2013).
III. Imputing Income
Although we are vacating the order and need not address defendant's additional issues, we will do so in the interest of judicial economy and to provide guidance to the trial court upon remand in the event it should find personal jurisdiction over defendant. Defendant next contends that the trial court erred in imputing income to him because "there was no finding of bad faith for a deliberate suppression of income." (Original in all caps.) The trial court found that as a self-employed electrician helper defendant "has the ability to earn $13.00 an hour for thirty-five hours per week for a monthly gross income of $1,970.00 based upon his prior work history in this field." Plaintiff contends that despite the use of the word "ability" in the trial court's finding of fact, the trial court did not impute income but was basing the amount on the actual income defendant earned as testified to by the child support services employee:
[Defendant] is a self-employed electrician. He's not licensed but he does do electrical work. His last wages before he left North Carolina was thirteen dollars an hour and he agreed on the phone that he could earn thirteen dollars an hour where he is currently living. We only used 35 hours a week, Your Honor, because his work is weather dependent.
Though the trial court did not make findings which would indicate that it was imputing income, we are also uncertain if this testimony supports a finding of actual income. The testimony seems to address what defendant could earn if working, and not whether he was actually working any particular job or schedule. On remand, if the trial court finds that it may exercise personal jurisdiction over defendant, it should also clarify whether it is imputing income or basing its determination on actual income. If the trial court imputes income it must make the necessary findings of fact, including bad faith, to do so. See generally Pataky v. Pataky, 160 N.C. App. 289, 306, 585 S.E.2d 404, 415-16 (2003) ("Normally, a party's ability to pay child support is determined by that party's income at the time the award is made. However, capacity to earn may be the basis for an award where the party deliberately depressed his income or deliberately acted in disregard of his obligation to provide support. Before earning capacity may be used as the basis of an award, there must be a showing that the actions which reduced the party's income were taken in bad faith, to avoid family responsibilities. Bowers v. Bowers, 141 N.C. App. 729, 732, 541 S.E.2d 508, 510 (2001) (noting rule that absent a finding that defendant deliberately suppressed his income to avoid his support obligation, the trial court could not employ defendant's earning capacity in determining child support)[.]" (citations, quotation marks, and brackets omitted)), aff'd per curiam, 359 N.C. 65, 602 S.E.2d 360 (2004).
IV. Ability to Pay
Lastly, defendant contends that the trial court erred in determining that he had the ability to pay $394.00 a month because that finding was not supported by the evidence. Plaintiff argues that the child services support employee's testimony regarding defendant's statements that he was able to pay $394.00 a month was evidence of his ability to pay the ordered amount. We will not analyze this issue, since we must remand, but on remand if the trial court determines that it has personal jurisdiction over defendant, it should make the appropriate findings and conclusions regarding defendant's ability to pay any child support ordered. See generally Cauble v. Cauble, 133 N.C. App. 390, 394, 515 S.E.2d 708, 711 (1999) ("The ultimate objective in setting awards for child support is to secure support commensurate with the needs of the children and the ability of the . . . [obligor] to meet the needs." (citation and brackets omitted)).
V. Conclusion
For the foregoing reasons, we vacate the trial court's order and remand for further proceedings.
VACATED and REMANDED.
Judges STEPHENS and DAVIS concur.
Report per Rule 30(e).