Opinion
No. COA15-1127
05-03-2016
CUMBERLAND COUNTY, EX REL THE STATE OF WASHINGTON, OBO SHERRELL L. CLARK, Plaintiffs v. JASON M. CHEEKS, Defendant.
Cumberland County Child Support Department, by Ben Logan Roberts, for Plaintiff-appellant. No Brief for Defendant-appellee.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Cumberland County, No. 15 CVD 2216 Appeal by Plaintiff from Order entered 12 June 2015 by Judge Cheri Siler-Mack in Cumberland County Superior Court. Heard in the Court of Appeals 10 March 2016. Cumberland County Child Support Department, by Ben Logan Roberts, for Plaintiff-appellant. No Brief for Defendant-appellee. INMAN, Judge.
Cumberland County ("Plaintiff") appeals from an order requiring Jason M. Cheeks ("Defendant") to pay child support. Plaintiff argues that the trial court erred in failing to include Defendant's Basic Allowance for Housing ("BAH") as gross income and in deviating from the North Carolina Child Support Guidelines. After careful consideration, we reverse and remand.
I. Background
Plaintiff is the "designated representative" to seek child support payments to benefit children protected by N.C. Gen. Stat. § 110-29. The State of Washington, as the "initiating state" as defined by N.C. Gen. Stat. § 52C-101(7) (1995), forwarded to Plaintiff on 8 September 2015 an Interstate Petition for Paternity and Child Support ("Petition") alleging that Defendant, a Cumberland County resident, is the father of a minor child born to Sherrell L. Clark, a resident of the State of Washington, and seeking to establish paternity, child support, medical support, and retroactive support. Plaintiff filed the Petition in Cumberland County Superior Court on 23 March 2015. Defendant, who was timely personally served with the Petition, did not file any responsive pleadings but appeared at a hearing on 21 May 2015.
At the hearing, Plaintiff presented DNA testing results showing a 99.99% probability that Defendant is the father of the minor child. Defendant has not appealed the order. The only issue before this Court is the trial court's calculation of the monthly child support award.
Defendant presented a Leave and Earnings Statement ("LES") verifying his income. Plaintiff did not dispute the accuracy of the LES. However, the parties disputed whether one component of the LES—the BAH of $1,161.00 paid to Defendant each month—should be included in his income for the purpose of calculating his child support obligation. With the BAH included, the monthly support pursuant to the state guidelines would be $597 per month; without the BAH, the amount would be $410 per month. The trial court on 12 June 2015 entered an Order of Paternity and Permanent Child Support requiring Defendant to pay $460 a month in ongoing child support, establishing prospective support for two months at $920, and ordering a repayment of $25 per month for past due support obligations. Plaintiff filed its notice of appeal on 9 July 2015. Defendant did not file an objection or proposed alternate record of appeal. Nor has Defendant filed a brief or any responsive pleading with this Court.
II. Analysis
a. Inclusion of BAH in the Calculation of Income for Child Support
Plaintiff argues that the trial court erred in failing to include Defendant's BAH as income in calculating his child support obligation. We agree.
"Child support orders entered by a trial court are accorded substantial deference by appellate courts . . . ." Leary v. Leary, 152 N.C. App. 438, 441, 567 S.E.2d 834, 837 (2002). In entering a child support order "[t]he trial court must, however, make sufficient findings of fact and conclusions of law to allow the reviewing court to determine whether a judgment, and the legal conclusions that underlie it, represent a correct application of the law." Spicer v. Spicer, 168 N.C. App. 283, 287, 607 S.E.2d 678, 682 (2005). "This Court's review of a trial court's child support order is limited to whether there is competent evidence to support the findings of fact, despite the fact that different inferences may be drawn from the evidence." Hodges v. Hodges, 147 N.C. App. 478, 482-83, 556 S.E.2d 7, 10 (2001). However, "[b]ecause the determination of gross income requires the application of fixed rules of law, it is properly denominated a conclusion of law rather than a finding of fact." State ex rel. Midgett v. Midgett, 199 N.C. App. 202, 206, 680 S.E.2d 876, 879 (2009) (citing Lawrence v. Tise, 107 N.C. App. 140, 145 n.1, 419 S.E.2d 176, 179 n.1 (1992)). "Conclusions of law are reviewed de novo and are subject to full review." State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011) (citations omitted). Since the determination of gross income is a conclusion of law, we review the trial court's calculation of gross income de novo.
"Income" means a parent's actual gross income from any source, including but not limited to income from employment or self-employment (salaries, wages, commissions, bonuses, dividends, severance pay, etc.), ownership or operation of a business, partnership, or corporation, rental of property, retirement or pensions, interest, trusts, annuities, capital gains, Social Security benefits, workers compensation benefits, unemployment insurance benefits, disability pay and insurance benefits, gifts, prizes and alimony or maintenance received from persons other than the parties to the instant action.North Carolina Child Support Guidelines, 2015 Ann. R. N.C. 51 (2016) (emphasis added).
This case is similar to Spicer, where this Court upheld the trial court's determination that, where a father lived with his parents rent-free, the benefit of a rent-free residence reduced the father's personal living expenses and that the monthly value of the free housing should be attributed to the father as income for the purpose of determining his child support obligation. Spicer, 168 N.C. App. at 287, 607 S.E.2d at 682. The Spicer court considered the father's rent-free housing as "maintenance received from persons other than the parties to the instant action" under the North Carolina Child Support Guidelines. Id. at 288, 607 S.E.2d at 682 (citing North Carolina Child Support Guidelines, 2005 Ann. R. N.C. 48). See also Guilford County ex rel. Easter v. Easter, 344 N.C. 166, 171, 473 S.E.2d 6, 9 (1996) ("[T]he trial court may consider support by third parties when determining whether there is evidence to support a deviation." (emphasis removed)); 2 Suzanne Reynolds, Lee's North Carolina Family Law § 10.8 at 533 (5th ed. 1999) ("[I]ncluded [in gross income] are expense reimbursements or in-kind payments, such as a company car, free housing or reimbursed meals, if they are significant and reduce personal living expenses.").
In this case, Defendant's BAH was paid on his behalf for rent and utilities. Because this payment significantly reduced Defendant's own personal living expenses, the trial court should have considered the BAH gross income for purposes of calculating child support. The trial court's error in calculating Defendant's gross income warrants reversal and remand for recalculation of his child support obligation consistent with this decision.
Plaintiff argues additionally that the trial court erred in deviating from the Child Support Guidelines. We agree.
N.C. Gen. Stat. § 50-13.4(c) (2016) provides:
The [trial] shall determine the amount of child support payments by applying the presumptive guidelines established pursuant to subsection (c1) of this section. However, upon request of any party, the Court shall hear evidence, and from the evidence, find the facts relating to the reasonable needs of the child for support and the relative ability of each parent to provide support. If, after considering the evidence, the Court finds by the greater weight of the evidence that the application of the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate the Court may vary from the guidelines."A trial court's deviation from the Guidelines is reviewed under an abuse of discretion standard. State ex rel. Fisher v. Lukinoff, 131 N.C. App. 642, 644, 507 S.E.2d 591, 593 (1998) (citations omitted).
The trial court abuses its discretion when it fails to make findings required by the statute. "Without sufficient findings, an appellate court has no means of determining whether the order is adequately supported by competent evidence." Spicer, 168 N.C. App. at 293, 607 S.E.2d at 685 (citations omitted). Our Supreme Court has articulated that "[i]t is not enough that there may be evidence in the record sufficient to support findings which could have been made." Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980) (emphasis in original).
In this case, the trial court did not make adequate findings of fact to support its deviation from the Guidelines. In order to deviate, a trial court is required by statute to find "facts relating to the reasonable needs of the child for support." N.C. Gen. Stat. § 50-13.4(c). Without such findings, the trial court could not determine whether the Guidelines would meet the needs of the child. See Sain v. Sain, 134 N.C. App. 460, 465-66, 517 S.E.2d 921, 926 (1999). Here, the trial court's order merely found as follows:
Moreover, neither party presented evidence relating to the reasonable needs of the child. Nor did Defendant expressly request that the trial court deviate from the guidelines. Absent such a request, the trial court could only have considered a deviation if "both parties [had] introduced evidence on these relevant issues without objection and the trial court [had] heard the evidence." Browne v. Browne, 101 N.C. App. 617, 624, 400 S.E.2d 736, 741 (1991).
The amount of ongoing child support is not based on the North Carolina Child Support Guidelines in that the Court chose to deviate between the two guidelines [(one using Defendant's BAH in his gross income and one without it)] and found that child support in the amount of $460.00 is appropriate.Because the findings of fact were not sufficient under the statute to support its deviation from the Guidelines, the conclusion is unsupported. The trial court abused its discretion and must be reversed.
III. Conclusion
We conclude that the trial court erred in failing to include Defendant's housing allowance in his gross income and abused its discretion in deviating from the Guidelines without making findings of fact and considering the child's needs for support. The order of the trial court is
REVERSED AND REMANDED.
Judges GEER and TYSON concur.
Report per Rule 30(e).