Opinion
No. COA15-1106
04-19-2016
JULIA M. FOSS, Plaintiff-Appellant, v. ROGER W. MILLER, JR., Defendant-Appellee.
Julia M. Foss, pro se. Pressly, Thomas & Conley, P.A., by Gary Thomas, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Iredell County, No. 05 CVD 2831 Appeal by plaintiff from order entered 27 April 2015 by Judge H. Thomas Church in Iredell County District Court. Heard in the Court of Appeals 9 March 2016. Julia M. Foss, pro se. Pressly, Thomas & Conley, P.A., by Gary Thomas, for defendant-appellee. DIETZ, Judge.
Plaintiff Julia Foss appeals from an order denying her motion to deviate from the child support guidelines. She contends on appeal that the trial court's order fails to make the necessary findings concerning the reasonable needs of her children for support because the court's findings merely recite the evidence in the case.
We agree that many of the challenged findings are mere recitations of evidence. But at the conclusion of those findings, the trial court also found that
[b]ased upon all of the evidence and the relative earnings
of the parties, both parties owe a duty of support for the minor children and it is necessary for both parties to fully support the minor children and that based upon the relative abilities to pay and the reasonable needs of the children, and the fact that the Court is eliminating the Plaintiff's payment of child support during the two months she has the minor children, there is no basis upon which to deviate from the North Carolina Child Support Guidelines.This ultimate finding of fact is sufficient to support the trial court's conclusion not to deviate from the statutory child support guidelines. Accordingly, we affirm the trial court.
Facts and Procedural History
Julia Foss and Roger Miller are former spouses and the parents of two sons. In 2005, Foss and Miller entered into a separation agreement which provided for joint physical and legal custody of the couple's sons and no child support to either parent. The separation agreement was incorporated into the couple's divorce judgment.
In 2012, both Foss and Miller moved to modify the existing child custody and child support arrangements. After a hearing, the trial court awarded Miller primary legal and physical custody of the children, denied Foss's motion to deviate from the child support guidelines, and ordered Foss to pay monthly child support in the amount of $1,033.00 in accordance with the guidelines.
Foss appealed. This Court held that the trial court failed to make sufficient findings of fact in its order and remanded the matter. Foss v. Miller, ___ N.C. App. ___, 764 S.E.2d 699 (2014) (unpublished). After remand, the trial court issued a new order reaching the same result, but with additional findings of fact. Foss timely appealed.
Analysis
Foss argues that the trial court again erred because its order does not contain the required "ultimate findings of fact" concerning the children's reasonable needs for support. We disagree.
Child support orders entered by a trial court are reviewed for abuse of discretion, as are orders granting or denying motions to deviate from the child support guidelines. Ferguson v. Ferguson, ___ N.C. App. ___, 768 S.E.2d 30, 33 (2014); Buncombe Cty. ex rel. Blair v. Jackson, 138 N.C. App. 284, 290 n.7, 531 S.E.2d 240, 244 n.7 (2000). Accordingly, a trial court's order either awarding child support or granting or denying a motion to deviate "will be overturned only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." Ferguson, ___ N.C. App. at ___, 768 S.E.2d at 33. "The 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." Nicks v. Nicks, ___ N.C. App. ___, 774 S.E.2d 365, 378 (2015).
"Child support is to be set 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, [and] accustomed standard of living of the child and the parties." Ferguson, ___ N.C. App. at ___, 768 S.E.2d at 33. The General Assembly has enacted statutory guidelines for child support calculation. N.C. Gen. Stat. § 50-13.4(c). "Child support set consistent with the [g]uidelines is conclusively presumed to be in such amount as to meet the reasonable needs of the child and commensurate with the relative abilities of each parent to pay support." Ferguson, ___ N.C. App. at ___, 768 S.E.2d at 33.
When a trial court awards child support consistent with the guidelines it "is not required to take any evidence, make any findings of fact, or enter any conclusions of law relating to the reasonable needs of the child for support and the relative ability of each parent to pay or provide support." Id. at ___, 768 S.E.2d at 33-34 (alteration omitted). However, if a party moves to deviate from the guidelines or the court opts to deviate from them on its own initiative, "the court must hear evidence and find facts related to the reasonable needs of the child for support and the parent's ability to pay." Id. at ___, 768 S.E.2d at 34.
Here, Foss moved to deviate from the child support amount imposed by the guidelines. Accordingly, the trial court was required to hear evidence and find facts concerning the reasonable needs of the children for support. Foss argues that Finding of Fact 24, which addresses the children's reasonable needs for support, is insufficient. That finding is quoted below in its entirety:
The trial court also must make findings concerning the parent's ability to pay child support. Foss does not argue that the trial court failed to make these required findings. Accordingly, any challenge on this issue is abandoned. N.C. R. App. P. 28(b)(6). --------
Both parties owe a duty of support for the minor children. As noted above the Plaintiff filed a Motion asking the Court to deviate from the child support guidelines. The Court held a hearing and heard evidence from both the Plaintiff and Defendant on Plaintiff's Motion. From all the evidence taken on both January 23 and March 12, 2013, the Court finds that the Defendant testified that the house where the minor children live has a mortgage payment of approximately $1,500.00 per month and that the cost of the food for the children was approximately $220.00 a month. The Defendant also testified that the clothing costs were approximately $150.00 per month each for a total of $300.00 and that basic necessities such as toiletries and other items were approximately $125.00 per month. Defendant further testified that the utilities at the residence were the following: water - $100.00 per month; electric - $90.00 per month; and gas - $120.00 per month. That the cable bill was $103.00 per month and the health insurance for the children was $230.00 per month with copays of $100.00 per year. That school lunches for the children are approximately $80.00 per month and the after school expenses and other school expenses are about $25.00 per month. He testified both boys go on school trips that cost $265.00 - $390.00 per child. One child plays basketball at $400.00 per month during the season and [the other child] spends approximately $295.00 a year at scouts. The Defendant further testified that he owns two cars that transport the children with payments of $530.00 month and $289.00 per month and he has about $200.00 per month in gas attributed to the children.
Based upon all of the evidence and the relative earnings of the parties, both parties owe a duty of support for the minor children and it is necessary for both parties to fully support the minor children and that based upon the relative abilities to pay and the reasonable needs of the children,
and the fact that the Court is eliminating the Plaintiff's payment of child support during the two months she has the minor children, there is no basis upon which to deviate from the North Carolina Child Support Guidelines and therefore the Plaintiff's Motion to Deviate should be denied. Thus, the Court would find that the Plaintiff should begin paying the sum of $1,033.00 per month as support for the two minor children. This sum being determined from the Worksheet A as submitted by the Defendant and attached hereto.
Foss argues that Finding of Fact 24 is merely a recitation of allegations or a restatement of testimony and thus is not a finding of fact at all. In support of this argument, Foss cites this Court's decision in Long v. Long, where we held that "findings that merely recapitulate the testimony or recite what witnesses have said" do not constitute valid findings of fact under Rule 52 of the Rules of Civil Procedure. 160 N.C. App. 664, 668, 588 S.E.2d 1, 3 (2003); see also N.C. R. Civ. P. 52(a)(1).
But this argument ignores the distinction between "ultimate facts" and "evidentiary facts." Overcash v. N.C. Dep't of Env't & Nat. Res., Div. of Waste Mgmt., 179 N.C. App. 697, 707, 635 S.E.2d 442, 449 (2006). "[E]videntiary facts are those subsidiary facts required to prove ultimate facts." Id. at 708, 635 S.E.2d at 449. "An ultimate fact is the final resulting effect which is reached by processes of logical reasoning from the evidentiary facts." Id. Our Supreme Court has held that Rule 52 only requires finding the ultimate facts, not the evidentiary facts supporting them. Quick v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653, 658 (1982). Moreover, a trial court does not commit any error where it "include[s] findings of fact that summarize[] . . . testimony, [so long as] the court also ma[k]e[s] the necessary ultimate findings of fact, resolving any material disputes." In re C.L.C., 171 N.C. App. 438, 446, 615 S.E.2d 704, 708 (2005) aff'd in part, review dismissed in part, 360 N.C. 475, 628 S.E.2d 760 (2006).
Here, Finding of Fact 24 includes a lengthy recitation of evidence in this case. But those portions of Finding of Fact 24 are straightforward evidentiary findings. At the conclusion of those evidentiary findings, the trial court found that
[b]ased upon all of the evidence and the relative earnings of the parties, both parties owe a duty of support for the minor children and it is necessary for both parties to fully support the minor children and that based upon the relative abilities to pay and the reasonable needs of the children, and the fact that the Court is eliminating the Plaintiff's payment of child support during the two months she has the minor children, there is no basis upon which to deviate from the North Carolina Child Support Guidelines.That is the "ultimate finding" and it satisfies this Court's requirement for an ultimate finding of fact concerning the reasonable needs of the children for support. Ferguson, ___ N.C. App. at ___, 768 S.E.2d at 33. Accordingly, we reject Foss's argument and affirm the trial court's order.
Conclusion
We affirm the trial court's order.
AFFIRMED.
Judges CALABRIA and DILLON concur.
Report per Rule 30(e).