Opinion
No. COA12–1043.
2013-05-7
Jeffrey BLEDSOE, Plaintiff v. Wendy BLEDSOE, Defendant.
Lori W. Rosbrugh, for plaintiff-appellant. No brief filed for defendant-appellee.
Appeal by plaintiff from order entered 24 April 2012 by Judge Melinda H. Crouch in New Hanover County District Court. Heard in the Court of Appeals 28 January 2013. Lori W. Rosbrugh, for plaintiff-appellant. No brief filed for defendant-appellee.
CALABRIA, Judge.
Jeffrey Bledsoe (“plaintiff”) appeals from the trial court's order modifying custody and child support. We dismiss in part and reverse and remand in part.
I. Background
Plaintiff and Wendy Bledsoe (“defendant”) were married on 2 May 1991. The parties separated on 15 January 2006. During daughter born in 1995, and a son born in 2000 (collectively “the children”). On 25 October 2007, the trial court entered an order which incorporated a mediated parenting agreement which established the terms of child custody between the parties. Defendant was awarded primary custody of the children and plaintiff was awarded visitation every other weekend, alternating holidays, and three weeks during the summer. The trial court also entered a consent order which required plaintiff to pay $1,345.00 per month in child support.
On 22 December 2009, the trial court, with consent of the parties, entered an order modifying the terms of custody (“the 2009 custody order”). Under the terms of this order, plaintiff was awarded primary custody of the parties' oldest son, with defendant having visitation every other weekend. Plaintiff was also awarded additional visitation with his other two children. On 30 March 2010, the trial court entered a consent order which modified plaintiff's child support obligation to $366.00 per month based upon the new custody arrangement.
On 13 September 2011, defendant filed a motion to modify the 2009 custody order and the 30 March 2010 child support order. Defendant's motion alleged that plaintiff had “consistently failed to exercise visitation as provided for in the [2009 consent] order,” that the parties' children were “of suitable age and discretion to express a preference as to how they spend time with [their parents] and have expressed a desire to reduce their overnight visitation with the Plaintiff,” and that plaintiff only sought overnight visitation in order to reduce his child support obligation. Defendant also moved to modify child support on the basis that the parties' eldest child had reached the age of majority and that the remaining minor children “d[id] not exercise sufficient visitation with the Plaintiff to justify” plaintiff's current child support obligation.
The trial court held a hearing on defendant's motions beginning 27 March 2012. On 24 April 2012, the trial court entered an order which concluded that there was a substantial change in circumstances that affected the welfare of the parties' minor children such that a modification of the 2009 custody order was in their best interests. The trial court ordered that the parties would share joint legal custody of the minor children, with defendant having primary physical custody and plaintiff exercising secondary physical custody by way of a revised visitation schedule. Specifically, the trial court granted plaintiff visitation of both children every other weekend. The court's order additionally reduced plaintiff's weekday visitation with his youngest son from two days per week to one day per week. Based upon the new custody arrangement, the trial court's order also increased plaintiff's child support obligation to $1,451.00 per month. Plaintiff appeals.
II. Modification of Custody
Plaintiff argues that the trial court erred by modifying custody because there was no evidence of a substantial change in circumstances which affected the welfare of the minor children. We agree.
As an initial matter, we note that the parties' daughter, who the record reflects was born in February 1995, has turned eighteen years old during the pendency of this appeal. Since she is no longer a minor child, plaintiff's appeal of the portion of the trial court's order regarding her custody has been rendered moot and must be dismissed. See Swanson v. Herschel, 174 N.C.App. 803, 805, 622 S.E.2d 159, 160 (2005). Accordingly, we dismiss the portion of plaintiff's appeal which involves the custody of his daughter, and only address plaintiff's arguments regarding his youngest son.
“When reviewing a trial court's decision to grant or deny a motion for the modification of an existing child custody order, the appellate courts must examine the trial court's findings of fact to determine whether they are supported by substantial evidence.” Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003). “In addition to evaluating whether a trial court's findings of fact are supported by substantial evidence, this Court must determine if the trial court's factual findings support its conclusions of law.” Id. at 475, 586 S.E.2d at 254. “Absent an abuse of discretion, the trial court's decision in matters of child custody should not be upset on appeal.” Everette v. Collins, 176 N.C.App. 168, 171, 625 S.E.2d 796, 798 (2006).
“[A]n order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.” N.C. Gen.Stat. § 50–13.7(a) (2011).
The trial court's examination of whether to modify an existing child custody order is twofold. The trial court must determine whether there was a change in circumstances and then must examine whether such a change affected the minor child. If the trial court concludes either that a substantial change has not occurred or that a substantial change did occur but that it did not affect the minor child's welfare, the court's examination ends, and no modification can be ordered. If, however, the trial court determines that there has been a substantial change in circumstances and that the change affected the welfare of the child, the court must then examine whether a change in custody is in the child's best interests. If the trial court concludes that modification is in the child's best interests, only then may the court order a modification of the original custody order.
Shipman, 357 N.C. at 474, 586 S.E.2d at 253. “[S]everal factors ... can be considered in determining whether a substantial change of circumstances has occurred. Factors include, but are not limited to (1) ‘a move on the part of a parent’; (2) the remarriage of a parent; (3) ‘a parent's cohabitation’; and (4) a child's mental health.” Wolgin v. Wolgin, ––– N.C.App. ––––, ––––, 719 S.E.2d 196, 203 (2011)(quoting Shipman, 357 N.C. at 478, 586 S.E.2d at 256). “Moreover, our Courts have broad discretion ... in weighing evidence that may impact the welfare of minors.” Id.
In the instant case, the trial court made the following findings of fact relevant to the custody of the parties' youngest son:
9. Defendant testified that the parties had not adhered to the visitation schedule in that the minor children have not spent the time afforded to Plaintiff in the Custody Order of December, 2009. She testified that the children are at her home the majority of the time and even on days that they go to Plaintiff's home they are at her home until evening or late at night. She indicated that both children are involved in a number of athletic and extracurricular activities and often stay at the Defendant's residence or with friends during Plaintiff's periods of custody.
10. After Defendant filed her Motion to Modify, Plaintiff demanded that the children adhere to the Parenting Agreement of December, 2009, by sleeping at his house on his visitation periods.
11. Defendant testified that the minor children have expressed to her their desire to have their visitation with the Plaintiff modified in order to accommodate their school, extracurricular and social schedules.
...
19. Plaintiff takes [his youngest son] to his practices after school....
20. Plaintiff disputes that [his youngest son] desires to have his visitation modified.
21. Both children are now of sufficient age (17 and 12) to pursue appropriate activities of their own choosing and the Defendant has demonstrated that she is supportive, both emotionally and financially, of the children's interests and that her primary concern is for their well being.
22. It appears to the Court that plaintiff's motives for visitation with the minor children are based more upon the amount of his child support obligation then (sic) the emotional health and well being of the children.
In his brief, plaintiff challenges findings of fact 10, 21, and 22. However, we find it unnecessary to address plaintiff's arguments regarding the lack of support for these findings, because even assuming, arguendo, that all of the trial court's findings are supported by competent evidence, they still do not support the trial court's conclusion that there has been a substantial change in circumstances which affected the welfare of the parties' youngest son.
Findings of fact 9, 11, and 20 are merely recitations of the evidence presented at the modification hearing and thus, cannot be used to support the trial court's conclusion. See Williamson v. Williamson, 140 N.C.App. 362, 364, 536 S.E.2d 337, 339 (2000) (“[M]ere recitations of the evidence ... are not the ultimate facts required to support the trial court's conclusions of law ....”). The remaining findings reflect that plaintiff attempted to enforce the terms of the 2009 custody order, that plaintiff takes his son to his practices, that the son is old enough to pursue appropriate activities of his own choosing, and that plaintiff's motives for enforcing his visitation rights with his children was suspect. None of these findings support a conclusion that a substantial change of circumstances affecting the minor child has occurred.
There is nothing in the trial court's order which indicates that the minor child has been unable to pursue his desired activities due to the 2009 custody order. Moreover, although the trial court's order criticizes plaintiff's motives regarding visitation, the order does not explain whether his motives toward visitation have changed since the entry of the 2009 custody order or how those motives have affected the minor child. Ultimately, there are no findings which reflect a substantial change in circumstances affecting the welfare of the parties' youngest son, and so the trial court's custody modification order must be reversed. See Shipman, 357 N.C. at 474, 586 S.E.2d at 253 (“If the trial court concludes either that a substantial change has not occurred or that a substantial change did occur but that it did not affect the minor child's welfare, the court's examination ends, and no modification can be ordered.”).
III. Modification of Child Support
Plaintiff argues that the trial court erred in calculating the amount of his child support obligation. 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) (citations omitted).
A. Plaintiff's Income
Plaintiff contends that the trial court failed to properly determine defendant'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.” 2013 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 citation 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 found that defendant's gross monthly income was $5,289.00. It appears from the record that this number is approximately one-twelfth of defendant's 2011 gross income of $63,472.25, as certified by defendant's employer. However, defendant specifically testified at the modification hearing in March 2012 regarding her earnings to date in 2012. The trial court's order does not reflect that it took those earnings into consideration when it calculated defendant's income. Moreover, the trial court's order did not contain any findings to justify failing to consider defendant's 2012 income when it determined her current gross income. Since the trial court failed to calculate plaintiff's child support obligation using defendant's “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 child support portion of the trial court's order must be reversed and remanded for further proceedings.
B. Extracurricular Activities
Finally, plaintiff argues that the trial court miscalculated the amount defendant contributed to the minor children's extracurricular expenses when determining his child support obligation. In its order, the trial court found that defendant incurred $4,440.00 per year for her minor children's extracurricular activities, or $370.00 per month. However, in the Child Support Obligation Worksheet which formed the basis of its child support award, the court only credited defendant with $360.00 per month in extraordinary expenses. There is nothing in the record which explains this discrepancy, and it should be corrected on remand as part of the trial court's overall recalculation of child support.
IV. Conclusion
The parties' daughter turned eighteen during the pendency of this appeal, and as a result, any arguments regarding the custody of the daughter are moot and must be dismissed. The trial court's order fails to establish a substantial change in circumstances which affected the welfare of the parties' youngest son, and therefore the court's custody modification order must be reversed. In addition, the trial court failed to follow the Guidelines when it calculated defendant's income for purposes of determining the amount of plaintiff's child support. Consequently, the trial court's child support modification order must also be reversed. The case is remanded for a new hearing regarding custody of the parties' youngest son and child support.
Dismissed in part and reversed and remanded in part. Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).