Opinion
No. COA11–1536.
2012-08-7
Bernitta M. CABBS, Plaintiff, v. Lawrence O. CABBS, Defendant.
Christian R. Troy for plaintiff-appellee. The Law Office of Richard B. Johnson, PA, by Richard B. Johnson, for defendant-appellant.
Appeal by defendant from order entered 29 April 2011 by Judge Paige B. McThenia in Mecklenburg County District Court. Heard in the Court of Appeals 26 April 2012. Christian R. Troy for plaintiff-appellee. The Law Office of Richard B. Johnson, PA, by Richard B. Johnson, for defendant-appellant.
GEER, Judge.
Defendant Lawrence O. Cabbs appeals from an order finding a substantial change of circumstances and modifying his monthly child support obligation. Mr. Cabbs' sole argument on appeal is that the trial court erred in deciding to use Worksheet A instead of Worksheet B when calculating his monthly child support obligation. Because the trial court's findings of fact are supported by competent evidence and because we find that the court did not abuse its discretion when, based on those findings, it employed Worksheet A, we affirm.
Facts
The trial court made the following findings of fact not challenged on appeal. Plaintiff Bernitta M. Cabbs and defendant Lawrence O. Cabbs were married in 1993. They had two sons, one born in 1997 and one born in 2000. The Cabbs separated in 2007 and divorced in 2010. A consent order filed 10 November 2008 granted Ms. Cabbs “custody, care and control of the minor children.” Mr. Cabbs was granted visitation every other weekend, every other Thursday, up to three weeks during the summer, and Father's Day. The parents would alternate having custody of the children for Christmas, Thanksgiving, and spring break.
The 2008 consent order indicated that the parties stipulated that Worksheet A of the North Carolina Child Support Guidelines was the correct worksheet to determine the parties' child support obligation—the worksheet was attached to the order and incorporated by reference. Under the Worksheet A calculation, Mr. Cabbs was required to pay Ms. Cabbs $832.00 per month in child support.
On 17 September 2010, Mr. Cabbs filed a motion to modify child support. In his motion, Mr. Cabbs argued that he had been unemployed since September 2008, and, had he asked for child support to be recalculated, Ms. Cabbs would have had to pay him. Instead, in June 2009, according to the motion, Ms. Cabbs and he agreed that he would pay $215.00 per month and pay for school lunches. In his motion, Mr. Cabbs requested that the trial court decrease the amount of child support to be paid and assess that amount retroactively starting 15 September 2008.
On 15 November 2010, Mr. Cabbs filed an amended motion to modify child support, which amended the amount he had been making at Phillip Morris through 15 September 2008 and verified the complaint. Mr. Cabbs at this point also requested that the trial court calculate child support based upon Worksheet B of the North Carolina Child Support Guidelines and changed the requested effective date to the “date of the original filing of this motion.”
In March 2011, both parties filed financial affidavits with the trial court. Mr. Cabbs had, by that point, again found permanent employment. The parties stipulated that Mr. Cabbs was earning an average gross monthly income of $3,334.00 per month and that he paid $117.00 per month to cover his sons on medical and vision insurance through his work. The parties likewise stipulated that Ms. Cabbs is employed and earns an average gross monthly income of $5,290.00 per month and that she pays $430.00 per month for child care and $48.00 per month for dental insurance.
On 29 April 2011, after an evidentiary hearing, the trial court entered an order concluding that Mr. Cabbs' decrease in income since the entry of the original order was “a substantial change of circumstance warranting a modification of child support.” The trial court found that the visitation schedule in the 2008 consent order was being followed, which resulted in the children being with Mr. Cabbs for between 130 and 140 days per year. The trial court further found, however, that “Mother clearly assumes responsibility for the bulk of the children's expenses....” The trial court then concluded that use of Worksheet B was “not appropriate to this situation” and calculated Mr. Cabbs' child support based on Worksheet A. Because the North Carolina Child Support Guidelines changed on 1 January 2011, Mr. Cabbs was ordered to pay child support of $632.04 per month for September through December 2010 (pursuant to the 2006 Guidelines) and $667.60 per month from January 2011 forward (pursuant to the 2011 Guidelines).
In its conclusions of law, the trial court concluded: “Worksheet B is not appropriate to this situation even though Father has the threshold number of days per month because Mother is responsible for the bulk of the children's expenses.” The trial court then determined that the amount for child support was fair and reasonable and that the parties had the means and ability to comply with the order. Mr. Cabbs timely appealed from that order to this Court.
Discussion
Mr. Cabbs contends on appeal that the trial court erred in utilizing Worksheet A instead of Worksheet B of the North Carolina Child Support Guidelines to determine his child support obligation. “Child support orders entered by a trial court are accorded substantial deference by appellate courts and our review is limited to a determination of whether there was a clear abuse of discretion.” Leary v. Leary, 152 N.C.App. 438, 441, 567 S.E.2d 834, 837 (2002). “In a case for child support, the trial court must make specific findings and conclusions.” Id. at 441–42, 567 S.E.2d at 837. On appeal, “the trial court's findings of fact are conclusive ... if there is evidence to support them, even though the evidence might sustain findings to the contrary.” Yurek v. Shaffer, 198 N.C.App. 67, 80, 678 S.E.2d 738, 747 (2009) (internal quotation marks omitted).
Modification of child support is a two-step process. McGee v. McGee, 118 N.C.App. 19, 26, 453 S.E.2d 531, 536 (1995). Before deciding to modify a child support order, the trial court must first decide that there has been a change of circumstances. N.C. Gen.Stat. § 50–13.7 (2011). Once the court finds, as here, that a change of circumstances has occurred, the trial court must then calculate the appropriate amount of child support based on those changed circumstances using the North Carolina Child Support Guidelines. Davis v. Risley, 104 N.C.App. 798, 800, 411 S.E.2d 171, 173 (1991).
In the original 2008 consent order in this case, the parties stipulated that Worksheet A was the correct worksheet to use. In calculating the modified child support obligation, the trial court again used Worksheet A. Mr. Cabbs contends, however, that all of the requirements were met for use of Worksheet B.
The General Assembly directed the creation of the North Carolina Child Support Guidelines to be used in the calculation of child support. SeeN.C. Gen.Stat. § 50–13.4(c1) (2011) (“Effective July 1, 1990, the Conference of Chief District Judges shall prescribe uniform statewide presumptive guidelines for the computation of child support obligations of each parent”). The Guidelines specify that “[a] parent's presumptive child support obligation under the guidelines must be determined using one of the attached child support worksheets.” N.C. Child Support Guidelines, 2012 Ann. R. N.C. 53.
The directions in the Guidelines for using Worksheet A state: “Use Worksheet A when one parent (or a third party) has primary physical custody of all of the children for whom support is being determined. A parent (or third party) has primary physical custody of a child if the child lives with that parent (or custodian) for at least 243 nights during the year.” Id.
On the other hand, a court should use “Worksheet B when (a) the parents share custody of all of the children from whom support is being determined, or (b) when one parent has primary physical custody of one or more of the children and the parents share custody of another child. Parents share custody of a child if the child lives with each parent for at least 123 nights during the year and each parent assumes financial responsibility for the child's expenses during the time the child lives with that parent. A parent does not have shared custody of a child when that parent has visitation rights that allow the child to spend less than 123 nights per year with the parent and the other parent has primary physical custody of the child.” Id. at 53–54, 411 S.E.2d 171.
Each Worksheet (forms printed by the Administrative Office of the Court) has on it additional printed instructions for its use. According to the instructions set out on the Worksheet A form, “Worksheet A should be used when the obligee has physical custody of the child(ren) who are involved in the pending action for a period of time that is more than two-thirds of the year (more than 243 days per year).” Form AOC–CV–627, Side Two, Rev. 1/11.
The instructions on the Worksheet B form state:
Worksheet B should be used when the parents share joint physical custody of at least one of the child(ren) for whom support is sought. Legal custody of the child(ren) is not relevant with respect to this determination. Worksheet B should be used if one parent has sole legal custody but, in fact, the parents exercise joint physical custody of the child(ren) as defined below. On the other hand, the worksheet should not be used simply because the parents share joint legal custody of the child(ren).
Joint physical custody is defined as custody for at least one-third of the year (more than 122 overnights per year)—not one-third of a shorter period of time, e.g. one-third of a particular month. For example, child support would not be abated merely because the child spends an entire month with one parent during the summer. Worksheet B should be used only if both parents have custody of the child(ren) for at least one-third of the year and the situation involves a true sharing of expenses, rather than extended visitation with one parent that exceeds 122 overnights .
Form AOC–CV–628, Side Two, Rev. 1/11 (emphasis original).
This Court has previously relied upon the instructions set out on the Worksheet B form in determining whether Worksheet B should be used. See Maney v. Maney, 126 N.C.App. 429, 431, 485 S.E.2d 351, 352 (1997). See also Scotland Cnty. Dep't of Soc. Servs. v. Powell, 155 N.C.App. 531, 539, 573 S.E.2d 694, 699 (2002) (“The instructions for completing Child Support Worksheet B (joint or shared custody) state: ‘[t]o the extent that one parent assumes a disproportionate share of costs ... the worksheet should not be used or should be modified accordingly.’ ... [T]he trial court found ‘defendant has failed to adequately contribute to the support and maintenance of his named children.’ This constitutes a finding that defendant did not assume a disproportionate share of the children's costs.”).
While not controlling, because it is an unpublished opinion, we are also persuaded by the reasoning of Mason v. Freeman, 188 N.C.App. 165, 654 S.E.2d 833, 2008 N.C.App. LEXIS 25, 2008 WL 132054 (2008) (unpublished). In Mason, after quoting the language in the Guidelines, this Court found that the trial court had not made sufficient findings of fact to justify the use of Worksheet B. Id., 2008 N.C.App. LEXIS 25, at *12, 2008 WL 132054, at *5. This Court observed that “Worksheet B contemplates each parent paying for basic needs while the child is in that parent's care.” Id., 2008 N.C.App. LEXIS 25, at *17, 2008 WL 132054, at *6. The Court then quoted the “true sharing” language of the Worksheet B instructions and found that while the record contained evidence that would permit a finding of “true sharing,” the trial court had failed to make any findings of fact related to that issue. Id., 2008 N.C.App. LEXIS 25, at *18, 2008 WL 132054, at *6.
Defendant argues, however, that he was not required to contribute equally in order to have Worksheet B used to calculate his child support obligation—he simply must assume financial responsibility for the expenses of the children when they are with him. Defendant's argument disregards the instructions on the form that construe the guidelines as requiring a “true sharing” to utilize Worksheet B.
As Mason pointed out, while Worksheet B may contemplate a parent's paying for his child's expenses when the child is residing with him, there must still be a “true sharing” of expenses for Worksheet B to apply. In Maney, this Court concluded, when the trial court relied on the Worksheet B instructions' focus on the true sharing of costs, that “the trial court properly exercised its discretion in recognizing the economic realities of the parties' custody arrangement and in considering the fairness and justice of this particular case.” 126 N.C.App. at 431, 485 S.E.2d at 352.
In this case, there is no dispute that Mr. Cabbs had custody of the children 130 to 140 days per year. Under Maney and the reasoning of Mason, we hold that the trial court was not, however, required to use Worksheet B, despite the number of days, if the trial court found that the custody arrangement did not involve a “true sharing of expenses.”
In determining which worksheet would be appropriate to use, the trial court made the following pertinent findings of fact:
10. When the children are with Father, he provides food, some clothing and electricity. He does not assume a true sharing of the overall expenses for the minor children.
11. It is unrefuted by Father that Mother pays or has paid the following: shoes, winter coats and church clothes; basketball fees; $30 per month for transportation to tutoring for one child; extra karate expenses for uniforms, tests and special camps; swimming/gym membership which both parties can use with the boys; exercise class to address son's cholesterol issue costing $50 for him and $60 for her; teacher gifts; birthday parties; cell phones for use at each home; among other things.
12. Mother clearly assumes responsibility for the bulk of the children's expenses and Worksheet B is not appropriate to this situation.
The trial court then concluded based on these findings: “Worksheet B is not appropriate to this situation even though Father has the threshold number of days per month because Mother is responsible for the bulk of the children's expenses.”
Mr. Cabbs argues that the findings are not supported by competent evidence. However, with the possible exception of Mr. Cabbs' testimony that he provided $200.00 one time for a football expense, findings of fact 10 and 11 are supported by Mr. and Ms. Cabbs' testimony. The omission of Mr. Cabbs' one football-related payment is not a material error.
With respect to finding of fact 12, that finding is a reasonable inference drawn from findings of fact 10 and 11. The trial court has the discretion to determine the reasonable inferences to be drawn from the evidence presented. See In re Hughes, 74 N.C.App. 751, 759, 330 S.E.2d 213, 218 (1985) (“The trial judge determines the weight to be given the testimony and the reasonable inferences to be drawn therefrom. If a different inference may be drawn from the evidence, he alone determines which inferences to draw and which to reject.”).
Mr. Cabbs' remaining arguments regarding the evidence ask this Court to give greater weight to evidence that supports his position. This argument disregards the standard of review. “The trial court, sitting as the trier of fact, is entitled to assess the credibility of the witnesses, and to determine the weight to be afforded their testimony.” Nix v. Nix, 80 N.C.App. 110, 115, 341 S.E.2d 116, 119 (1986). We cannot reweigh the evidence on appeal.
Mr. Cabbs cites no authority that would suggest his level of participation in his children's expenses is “a true sharing of the overall expenses” and, therefore, that Worksheet B should have been used. Based on the instructions on Worksheets A and B and on the trial court's findings of fact, we cannot conclude that the trial court abused its discretion by utilizing Worksheet A to calculate Mr. Cabbs' child support obligation. See Maney, 126 N.C.App. at 431, 485 S.E.2d at 352.
Affirmed. Judges ELMORE and THIGPEN concur.
Report per Rule 30(e).