Opinion
NO. COA12-113
10-16-2012
CATHRYN BLUE DERIAN, Plaintiff, v. THOMAS CRAIG DERIAN, Defendant.
Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for Plaintiff-Appellant. Brock, Payne & Meece, P.A., by Paul Brock and Barri Payne, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Orange County
No. 03 CVD 925
Appeal by Plaintiff from orders entered 18 March 2010 and 18 October 2011 by Judge Charles Anderson in Orange County District Court. Heard in the Court of Appeals 15 August 2012.
Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for Plaintiff-Appellant.
Brock, Payne & Meece, P.A., by Paul Brock and Barri Payne, for Defendant-Appellee.
BEASLEY, Judge.
Cathryn Blue Derian (Plaintiff) appeals from orders entered 18 March 2010 and 18 October 2011 in Orange County District Court. For the following reasons, we affirm.
Plaintiff and Thomas Craig Derian (Defendant) were married to each other on 22 August 1982 and separated from one another on 16 July 2003. On 30 May 2003, Plaintiff filed a complaint against Defendant asserting claims for child custody and support, post-separation support, and equitable distribution. On 29 July 2003, the parties entered into a Consent Custody and Separation Order. On 30 November 2004, the trial court entered an order for post-separation support and temporary child support, directing Defendant to pay Plaintiff $3,209.52 per month in child support from the 16 July 2003 date of separation forward. Defendant's past due child support obligation of $52,957.08 was ordered to be paid to Plaintiff within ninety days of the entry of the order or at the time of equitable distribution of the marital and divisible estate, whichever occurred sooner.
On 9 December 2004, Defendant filed a motion for a new trial or amendment of the 30 November 2004 judgment, or alternatively for relief from the order. Defendant also moved to stay the enforcement of the order pending these motions. On 30 November 2005, the trial court entered a Consent Order amending the 30 November 2004 order. On 14 October 2008, the parties agreed to submit various issues related to child support and equitable distribution to arbitration. After arbitration hearings beginning on 14 September and ending on 17 September 2009, Arbitrator Fred A. Hicks entered an arbitration award on 29 October 2009, titled "Math Correction to Amended Arbitration Award re: Equitable Distribution and Child Support" (the award). On 13 November 2009, Defendant filed a motion for confirmation of the award. On 23 December 2009, Plaintiff filed a motion to vacate the award as to child support. By Memorandum Order filed 18 March 2010, the trial court confirmed the award.
Plaintiff appealed the 18 March 2010 memorandum order to this Court. We dismissed the appeal as interlocutory, finding that the trial court did not confirm the award with respect to the prospective child support. We then remanded the case for consideration of that issue. On 18 October 2011, the trial court entered an order stating that the award was confirmed in all respects. On 15 November 2011, Plaintiff filed notice of appeal as to both the 18 March 2010 Memorandum Order and the 18 October 2011 order.
Plaintiff first argues that the trial court erred by failing to vacate the arbitrator's refusal to award child support arrearages. We disagree.
"It is well settled in this jurisdiction that when the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts." Lee v. Lee, 167 N.C. App. 250, 253, 605 S.E.2d 222, 224 (2004) (internal quotations and citation omitted). The trial court's findings of fact are binding on appeal if there is evidence to support them, but conclusions of law are reviewable de novo. Id.
Plaintiff argues that absent a court order, Defendant had no right to modify his child support payments beginning in December 2005. The 2005 Consent Order (the Consent Order) provides, in pertinent part, that "Defendant shall pay to the Plaintiff . . . the sum of Three Thousand, Two Hundred, Nine Dollars and Fifty-Two Cents per month in child support from July 16, 2003 until further Order of the Court or agreement of the parties." (emphasis added). The Consent Order further stated that "[f]or the time-period beginning November 1, 2005 forward, there shall be a review of the parties' respective child support obligations." When Defendant reduced his child support payments to $1,600 per month beginning December 2005, Plaintiff accepted the reduced payments without objection for 35 months, during which time Plaintiff was represented by "experienced and reputable domestic law counsel," until Plaintiff filed a Motion in the Cause on 11 November 2008. Based on the language of the consent order combined with the acts of the parties, the trial court found that "no error was committed in the Arbitration Award in finding as fact and concluding that plaintiff and defendant agreed to a modification" of the Consent Order. As the plain language of the Consent Order allowed a modification of Defendant's child support obligation upon agreement of the parties, the trial court affirmed the arbitrator's refusal to award Plaintiff child support arrearages.
Plaintiff points to various cases that purportedly stand for the proposition that even where the parties agree, the supporting spouse cannot modify his court-ordered child support payments without applying to the trial court for an order allowing the modification. All of these cases rely on N.C. Gen. Stat. § 50-13.10(a) (2011) which provides that "[e]ach past due child support payment is vested when it accrues and may not thereafter be vacated, reduced, or otherwise modified in any way for any reason . . . except . . . as otherwise provided by law. . . ." However, Section 50-13.10(a) is not applicable here because the statute only applies to permanent orders, and the Consent Order was a temporary order. See Sikes v. Sikes, 330 N.C. 595, 599, 411 S.E.2d 588, 590 (1992)(finding that N.C. Gen. Stat. § 50-13.10 does not apply until a final order is entered as to child support). It is clear that the Consent Order was temporary with regard to the issue of child support as the order expressly provides that "the parties shall once again attempt to settle all remaining issues" and specifies that the child support obligations will be reviewed from 1 November 2005 forward.
Although Plaintiff argues that the Sikes holding is limited to instances where child support payments are retroactively increased, we find no such limitation in the opinion and thus adopt the trial court's view that Sikes is controlling here.
In arguing that the Consent Order is a permanent order, Plaintiff directs this Court to LaValley v. LaValley, where we found that a temporary order for child support was "converted into a final order when neither party requested the calendaring of the matter for a hearing within a reasonable time after the entry of the Order." 151 N.C. App. 290, 292-93, 564 S.E.2d 913, 915 (2002). In LaValley, the temporary order provided that a more formal order would be entered at a later date but the matter was not set for hearing for twenty-three months, which we held was not a reasonable amount of time to wait and so the temporary order was converted into a final order. The instant case is easily distinguishable from LaValley because here the temporary order expressly stated that it would be reviewed after 1 November 2005 and that it could be modified by agreement of the parties. Because we affirm the trial court's holding that the order was modified by the agreement of the parties to decrease child support payments to $1,600 per month, and that this change began in December 2005, only one month after the entry of the temporary order, it follows that the temporary order was modified by the parties within a reasonable time and thus did not convert to a final order.
Plaintiff next argues that the trial court erred as a matter of law in confirming the award which modified the Consent Order as to future child support payments. We disagree.
Because we have already decided in Section I, supra, that the Consent Order was a temporary order, we decline to address Plaintiff's arguments regarding future child support which hinge on the Consent Order being considered a permanent order. Instead, we turn to Plaintiff's argument that the trial court erred by confirming the arbitrator's future child support award of $800 per month where the parties had agreed to $1,600 per month. Plaintiff contends that the amount agreed upon by the parties is entitled to a presumption of reasonableness which must have been overcome before the arbitrator had the authority to enter a different amount for future monthly payments.
However, what Plaintiff fails to acknowledge is that here the parties agreed in writing to binding arbitration on this issue, in accordance with N.C. Gen. Stat. § 50-42(a) (2011) ("During, or after marriage, parties may agree in writing to submit to arbitration any controversy, except for the divorce itself, arising out of the marital relationship. . . . This agreement is valid, enforceable, and irrevocable except with both parties' consent. . . ."). None of the cases cited by Plaintiff in support of this presumption involved arbitration, and instead discussed modification of child support payments through the court system. Therefore, those cases are inapposite here.
Alternatively, Plaintiff argues that the arbitrator erred in awarding child support based on the North Carolina Child Support Guidelines (the Guidelines) where the parties combined gross income exceeded that contemplated under the Guidelines. This Court has recognized that in cases where the parents' combined adjusted gross income exceeds that contemplated under the Guidelines, "the court should, on a case by case basis, consider the reasonable needs of the child(ren) and the relative ability of each parent to provide support." Pascoe v. Pascoe, 183 N.C. App. 648, 651, 645 S.E.2d 156, 158 (2007) (internal quotations and citation omitted). As the court undergoes this analysis, "[t]he schedule of basic child support may be of assistance to the court in determining a minimum level of child support." Id.
Pursuant to N.C. Gen. Stat. § 50-13.4(c) (2011),
Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case.In compliance with the statute, "the order for child support must be premised upon the interplay of the trial court's conclusions of law as to the amount of support necessary 'to meet the reasonable needs of the child' and the relative ability of the parties to provide that amount." Plott v. Plott, 313 N.C. 63, 68-69, 326 S.E.2d 863, 867 (1985). These conclusions of law must be supported by specific findings of fact so that a reviewing court can determine whether the court below gave due regard to the factors listed in the statute. Id. at 69, 326 S.E.2d at 867. "Once the trial court has made such findings, they are conclusive if supported by any evidence, even if there is evidence contra." Sloop v. Frieberg, 70 N.C. App. 690, 695, 320 S.E.2d 921, 925 (1984). "Absent a clear abuse of discretion, a judge's determination of what is a proper amount of support will not be disturbed on appeal." Plott, 313 N.C. at 69, 326 S.E.2d at 868.
Although Plaintiff argues that the trial court erred in confirming the award where the arbitrator used the Guidelines in his analysis, this Court has expressly stated that even in high income cases the Guidelines can be used to assist in a determination of appropriate support. Thus, our only inquiry is whether the arbitrator's conclusion that "[t]he payment of monthly cash child support of $800 is reasonable based on the current earnings, estate and standard of living and the needs of the child, plus the payment of the private school and tutoring and sharing of the medical expenses of the child as provided herein" was supported by sufficient findings of fact.
The arbitrator found that the amount of fixed expenses that Plaintiff charged to child support were unreasonable given her income, as Plaintiff was living outside of her means. Further, the arbitrator found that the individual expenses for the minor child that Plaintiff claimed were unreasonable where he resided with Plaintiff only 50% of the time, and were adjusted accordingly. The arbitrator then found that the minor child had special needs for private school and tutoring which are paid for by Defendant, along with expenses for the child's health insurance and health care costs not covered by insurance. Finally, the arbitrator found that
[c]onsidering the needs of [the minor child] for health, education and maintenance, the earnings and estates of the parties, the standard of living of the parties and [the minor child], and the needs of [the minor child] for private education, it is found that the reasonable amount for Defendant-Father to contribute to the support of [the minor child] as cash is $800 per month . . . and to continue the medical insurance and payment of the uninsured medical, dental, mental and related health care expenses, private school and tutoring[.]
Based on the foregoing, we find that the arbitrator made sufficient findings of fact to support the future child support payment award and so the trial court did not err in confirming this award.
Affirmed.
Judges HUNTER, Robert C. and GEER concur.
Report per Rule 30(e).