Opinion
No. COA 15-668
04-05-2016
BRANDON EAGLE, Plaintiff, v. NICOLE C. EAGLE, Defendant.
The Lea/Schultz Law Firm, P.C., by James W. Lea, III and Paige E. Inman, for Plaintiff-Appellant. Pennington & Smith, by Ralph S. Pennington and Tamara Avis Smith, for Defendant-Appellee.
An unpublished opinion of the North Carolina Court of Appeals does notconstitute controlling legal authority.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. New Hanover County, No. 14 CVD 1196 Appeal by Plaintiff from two orders entered 13 February 2015 by Judge Robin Wicks Robinson in New Hanover County District Court. Heard in the Court of Appeals 18 November 2015. The Lea/Schultz Law Firm, P.C., by James W. Lea, III and Paige E. Inman, for Plaintiff-Appellant. Pennington & Smith, by Ralph S. Pennington and Tamara Avis Smith, for Defendant-Appellee. HUNTER, JR. Robert N., Judge.
Brandon Eagle ("Brandon") appeals from two 13 February 2015 trial court orders. Brandon challenges the Order on Child Support and an Order to Withhold Wages to Enforce Child Support. We affirm the trial court's orders.
I. Factual and Procedural Background
On 18 October 2013, Brandon commenced a civil action against Nicole C. Eagle ("Nicole"). Brandon and Nicole are husband and wife, having married on 14 April 2008 and separated on 4 September 2013. The parties have two twin boys, born 10 August 2011. Brandon filed a Complaint alleging Nicole fled with their two minor children to Texas without his knowledge, removing the minor children from the jurisdiction of the court. Brandon requested immediate return of the children to North Carolina, an Ex Parte Emergency Order granting his temporary physical primary custody, and an Order prohibiting removal of the minor children from the jurisdiction until final hearings. Nicole filed an Answer and Counterclaim for child custody, child support, equitable distribution, and attorney fees.
On 5 May 2014, Brandon filed a Motion to Transfer Venue from Onslow County to New Hanover County, North Carolina. Nicole consented to the transfer. At the resulting hearing on 23 May 2014, the trial court ordered Brandon to pay child support to Nicole via wage withholding in the amount of $1,777.06 per month starting 1 June 2014. In addition, the trial court ordered child support arrears in the amount of $10,662.36 would be added to his monthly child support obligations in the amount of $200.00 per month until paid in full. Brandon also was ordered to pay $5,000.00 for attorney fees within 90 days of the order, dated 5 June 2014. On 23 May 2014, Nicole's counsel filed an Affidavit of Attorney Fees detailing her firm's hourly rates and total fees via billing statements.
On 19 June 2014, Brandon filed a motion for a new trial. Brandon justified that his absence in court stemmed from an associate attorney's email that he did not need to be there. Brandon argued if he had been present to testify the Court could have reached a different result, especially in the amount of attorney fees awarded to Nicole. Brandon states that combined with his child support obligations with a previous spouse, 50% of his gross wages are paid out as support and he will not be able to maintain his household under this obligation.
On 23 January 2015, the court found both parties fit to share legal and physical custody of the minor children. Primary physical custody was granted to Nicole. Brandon, Nicole, and their attorneys signed and filed the Consent Order resolving the issue of child custody.
Brandon filed a Notice to Deviate on 22 January 2015 based on gross disparity in parties' incomes, large daycare expenses, and substantial travel costs due to Nicole's relocation to Texas. On 12 February 2015, the court filed an Order on Child Support and Plaintiff's Notice of Deviation from the North Carolina Child Support Guidelines. The court found that the Notice to Deviate was not timely filed or served on Nicole. Furthermore, Nicole had incurred substantial attorney fees and Brandon owes these fees for his failure to provide adequate child support since the date of separation. The court ordered Brandon to pay Nicole's counsel $5,000.00 within 90 days of the entry of the Order. The court ordered Brandon to pay $1,487.00 per month in child support and an additional $250.00 per month toward arrears of $25,273.56.
On 13 February 2015, the court filed an Order to Withhold Wages to Enforce Child Support and a Child Support Transmittal Order. On 9 March 2015, Brandon gave Notice of Appeal on the Order on Child Support and Plaintiff's Notice of Deviation from the North Carolina Child Support Guidelines and Order to Withhold Wages to Enforce Child Support entered on 13 February 2015.
II. Jurisdiction
This Court has jurisdiction as of right pursuant to N.C. Gen. Stat. § 7A-27(b) from a final order of a district court.
III. Standard of Review
A trial court's deviation from the Child Support Guidelines is "reviewed under an abuse of discretion standard." Row v. Row, 185 N.C. App. 450, 461, 650 S.E.2d 1, 8 (2007) (quoting State ex rel. Fisher v. Lukinoff, 131 N.C. App. 642, 644, 507 S.E.2d 591, 593 (1998)). The trial court's determination will be disturbed on appeal "only if 'manifestly unsupported by reason.'" Id. (quoting Plott v. Plott, 313 N.C. 63, 69, 326 S.E.2d 863, 868 (1985)).
IV. Analysis
North Carolina General Statute § 50-13.4 governs the Child Support Guidelines:
The court shall determine the amount of child support payments by applying the presumptive guidelines established pursuant to subsection (c1). 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. If the court orders an amount other than the amount determined by application of the presumptive guidelines, the court shall make findings of fact as to the criteria that justify varying from the guidelines and the basis for the amount ordered.N.C. Gen. Stat. § 50-13.4(c) (2013). The amount of child support calculated using the Child Support Guidelines is presumed to meet the child's reasonable needs and the abilities of the parents to support the child. N.C. Gen. Stat. § 50-13.4(c1) (2013).
On appeal, Brandon argues that the trial court abused its discretion in entering the 13 February 2015 Child Support Order because the Order imposed child support obligations that are unjust and inappropriate based on the circumstances. Brandon contends parental support for minor children should be "commensurate with the relative abilities of each parent to provide support." See N.C. Gen. Stat. § 50-13.4(b). He argues that the child support amount should consider "those advantages which are reasonable considering his financial condition and his position in society." See Shaw v. Cameron, 125 N.C. App. 522, 527, 481 S.E.2d 365, 368 (1997). Brandon further argues that the Child Support Guidelines ensure obligors have sufficient income to maintain a minimum standard of living based on the federal poverty level. Brandon argues that his child support obligations from the current order and the child support to his first wife totals 50% of his gross income. See Buncombe County ex rel. Blair v. Jackson, 138 N.C. App. 284, 531 S.E.2d 240 (2000). We are not persuaded.
Brandon cites Buncombe County ex re. Blair v. Jackson to support his argument that child support exceeding 50% of his income is inequitable. In Buncombe, a father of five minor children born of three different mothers appealed an order modifying and increasing his child support obligations. Id. at 285, 531 S.E.2d at 242. On appeal, the father argued the new obligations "amounted to 66% of his gross income and, therefore, is not just or appropriate." Id. at 289, 531 S.E.2d at 244. The trial court order did not contain findings sufficient for this Court to consider the father's argument. This Court remanded the issue to the trial court to "ensure [the father] has 'sufficient income to maintain a minimum standard of living based on the 1997 federal poverty level for one person.'" Id. at 289-290, 531 S.E.2d at 244 (quoting 2000 North Carolina Child Support Guidelines). Thus, the criterion to consider is not a percentage of overall income, but instead the federal poverty level.
In addition to the "self-support reserve" established by the federal poverty level, the Child Support Guidelines were created to consider support obligations to other children. For instance, if a parent has existing child support payments for support of one child at the time of determination of child support to another child, then the existing child support payment is subtracted from the parent's gross income. The parent's gross income minus existing child support obligations is then used to determine support obligations in the current case, giving the parent some relief if they have multiple child support obligations. 2015 North Carolina Child Support Guidelines at 4.
If, however, after considering the evidence, the court finds "by the greater weight of the evidence that 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. Id. Deviation may be requested by motion with ten days' notice to the other party, or may be instituted by the Court upon its own motion. N.C. Gen. Stat. § 50-13.5(d)(1) (2013). If an affidavit requesting deviation is not filed by 9 a.m. on the hearing date, it "constitutes an affirmative representation to the court that all parties concede that there exists no reason to depart from the presumptive guideline amounts." Local Rule 11.1.2-11.1.3.
Here, there is no evidence the court abused its discretion in calculating child support. "[T]he trial court is not required to deviate from the guidelines no matter how compelling the reasons to do so . . . ." Pataky v. Pataky, 160 N.C. App. 289, 303, 585 S.E.2d 404, 413 (2003). The self-support reserve of the child support guidelines ensures that the supporter maintain a standard of living of $973 per month. The trial court found Brandon earns $5,351.35 per month. Monthly, Brandon pays $22.29 for the minor children's health insurance, $1,487 for child support, $250 toward arrearages, and $941 in child support for two children of a previous marriage. Thus, Brandon's required monthly child support obligations total $2,700.29 per month, but Brandon retains $2,651.06 per month, well above the federal poverty level. Considering the circumstances and plaintiff's financial circumstances, the trial court's application of the guidelines was not an abuse of discretion.
Additionally, in the present case, no motion, affidavit or other request to deviate was filed before the first hearing. Before the second hearing, Brandon filed a Notice of Deviation. However, the notice did not include an affidavit and therefore did not comply with local rules. We therefore affirm the trial court's orders.
V. Conclusion
For the foregoing reasons, we affirm the order of the trial court.
AFFIRM.
Judge Stephens and Inman concur.
Report per Rule 30(e).