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CourtListener opinion 3195360
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- 487 U.S. 312
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- COA15-185
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Category: pension / defined benefit issues
Evidence quotes
QDRO“am L. Sitton, Jr., Attorney at Law, by William L. Sitton, Jr.; and Brendle Law Firm, PLLC, by Andrew S. Brendle, for defendant. GEER, Judge. Plaintiff Craig Steven Smith appeals from the trial court's equitable distribution judgment, three corresponding qualified domestic relations orders, and a permanent child support and custody order. Plaintiff primarily argues on appeal that the trial court erred by requiring him to pay his children's private school tuition without finding that his children have a reasonable need for private schooling that a public school education cannot provide. Because the parties' combined yearly income SMITH V”
retirement benefits“ospective child support, and an unequal distribution of the marital property in her favor. The trial court entered a final equitable distribution pretrial order on 1 June 2010. In this order, the parties stipulated to classifying three of plaintiff's PwC retirement accounts -- a 401(k) plan, a "Keough" plan, and a "RBAP" plan -- as marital property until the date of separation and any post-separation accruals in those accounts as plaintiff's separate property. Also, on 23 December 2010, the parties -4- SMITH V. SMITH Opinion of the Court stipulated in writing that they would equally divide the net equity received from”
pension“o withdraw it immediately, she also admitted that she received an initial distribution of $30,000.00 from her father's 401(k), and would continue receiving yearly distributions from this account, as well as "approximately $700.00 a month" from her mother's pension, which passed to her - 27 - SMITH V. SMITH Opinion of the Court through her father's estate. Despite this evidence, the trial court's findings of fact regarding permanent child support erroneously lack any mention of these assets other than a vague allusion to her "non-retirement assets and accounts" as a partial impetus for reducing the monthly aw”
401(k)“and an unequal distribution of the marital property in her favor. The trial court entered a final equitable distribution pretrial order on 1 June 2010. In this order, the parties stipulated to classifying three of plaintiff's PwC retirement accounts -- a 401(k) plan, a "Keough" plan, and a "RBAP" plan -- as marital property until the date of separation and any post-separation accruals in those accounts as plaintiff's separate property. Also, on 23 December 2010, the parties -4- SMITH V. SMITH Opinion of the Court stipulated in writing that they would equally divide the net equity received from the sale of”
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Clean opinion text
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-185
Filed: 19 April 2016
Mecklenburg County, No. 09 CVD 11064
CRAIG STEVEN SMITH, Plaintiff,
v.
VERA CRANFORD SMITH, Defendant.
Appeal by plaintiff and cross-appeal by defendant from orders and judgments
entered 1 June 2010, 21 February 2011, 10 May 2011, 31 August 2011, 17 June 2013,
22 July 2013, 20 November 2013, 28 January 2014, and 9 July 2014 by Judge Donnie
Hoover in Mecklenburg County District Court. Heard in the Court of Appeals 25
August 2015.
James, McElroy & Diehl, P.A., by Preston O. Odom, III, G. Russell Kornegay,
III, and John Paul Tsahakis, for plaintiff.
William L. Sitton, Jr., Attorney at Law, by William L. Sitton, Jr.; and Brendle
Law Firm, PLLC, by Andrew S. Brendle, for defendant.
GEER, Judge.
Plaintiff Craig Steven Smith appeals from the trial court's equitable
distribution judgment, three corresponding qualified domestic relations orders, and
a permanent child support and custody order. Plaintiff primarily argues on appeal
that the trial court erred by requiring him to pay his children's private school tuition
without finding that his children have a reasonable need for private schooling that a
public school education cannot provide. Because the parties' combined yearly income
SMITH V. SMITH
Opinion of the Court
exceeds the level at which the presumptive North Carolina Child Support Guidelines
("the Guidelines") apply, we hold that the trial court was not required to make
findings mandated by the Guidelines. Instead, we hold that the trial court's
conclusion that private school is a reasonable need of the children is fully supported
by the court's findings of fact that private school is part of the children's accustomed
standard of living, that the parties are capable of paying the tuition, and that the
parties have previously agreed that their children would be educated in private
school. We therefore affirm the trial court's order that plaintiff pay his children's
private school tuition. Because the parties have shown that the trial court failed to
make adequate findings of fact with respect to certain aspects of the child support
and equitable distribution orders, we reverse those orders and remand for further
findings of fact. We find no error with respect to the custody order and affirm it.
Facts
Plaintiff and defendant married on 1 August 1992. They met while employed
as certified public accountants at the same company in New Orleans, Louisiana.
They later moved to Houston, Texas where plaintiff took a job with
PricewaterhouseCoopers ("PwC"). Three children were born to their marriage:
Margaret ("Meg") on 13 October 1996; Emilie on 16 January 1999; and Lara on 8
April 2002.
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Opinion of the Court
In August 2003, they moved from Houston to Charlotte, North Carolina so that
plaintiff could pursue his career as an equity partner with PwC. Within a few years
after the move to Charlotte, plaintiff's income as an equity partner substantially
increased from approximately $150,000.00 in 2003 to over $500,000.00 by 2007.
During the same period, defendant's salary decreased from around $80,000.00 to
approximately $38,000.00, as she became the primary caregiver for the children and
plaintiff became the primary supporting parent.
Ever since the children began school, plaintiff and defendant shared a mutual
desire to educate their children in private schools. When the parties relocated to
Charlotte, they enrolled their three children at Providence Day School ("PDS"), where
they presently remain enrolled.
The parties separated on 1 June 2007, when defendant left the marital home
a few months after plaintiff discovered that defendant was having an extramarital
affair and was pregnant from that affair. From the date of separation until February
2009, the parties shared physical custody of the children, with each parent having
the children for nearly an equal amount of time. However, beginning in February
2009 and continuing until the trial court entered a temporary custody order in
February 2011, defendant unilaterally restricted plaintiff's time with the children to
every other weekend.
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Opinion of the Court
Also upon separation, plaintiff began objecting to the children's continued
enrollment at PDS. He agreed for them to finish the 2007-2008 school year at PDS,
but expressed his desire to enroll them at a less expensive private school, even though
he never made a significant effort to identify one. Plaintiff did not voluntarily
contribute to the PDS tuition after the 2007-2008 school year. Defendant therefore
paid the children's tuition for the 2008-2009 and 2009-2010 school years with money
from the children's individual Uniform Transfers to Minors Act ("UTMA") accounts
in the amounts of $53,810.00 and $49,804.18, respectively, for each school year. She
also utilized individual savings accounts to pay the 2009-2010 tuition.
Plaintiff filed for absolute divorce on 8 May 2009, which the trial court granted
on 17 September 2009. In his complaint for divorce, plaintiff also sought primary
custody of the children and an unequal equitable distribution of the marital property
in his favor. Defendant filed an answer and counterclaim on 19 June 2009, seeking
continued primary custody, retroactive and prospective child support, and an unequal
distribution of the marital property in her favor.
The trial court entered a final equitable distribution pretrial order on 1 June
2010. In this order, the parties stipulated to classifying three of plaintiff's PwC
retirement accounts -- a 401(k) plan, a "Keough" plan, and a "RBAP" plan -- as marital
property until the date of separation and any post-separation accruals in those
accounts as plaintiff's separate property. Also, on 23 December 2010, the parties
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SMITH V. SMITH
Opinion of the Court
stipulated in writing that they would equally divide the net equity received from the
sale of the marital residence.
On 21 February 2011, the trial court entered a temporary child support order,
requiring plaintiff to pay $5,000.00 in child support to defendant on the first of each
month beginning 1 August 2010 and all of the children's private school tuition at PDS
going forward. Also on 21 February 2011, the trial court entered a temporary custody
order essentially maintaining the custody arrangement created by defendant in
February 2009. This order provided that plaintiff would have the children for
approximately six overnights a month and for four weeks of the children's summer
vacation.
On 22 July 2013, the trial court entered its final equitable distribution order
in which it ordered an unequal distribution in favor of defendant. The order was
based on findings including, but not limited to, the extent of defendant's inheritance,
the value of plaintiff's PwC partnership interest as of the date of separation, and the
classification and valuation of plaintiff's PwC retirement accounts. With regard to
defendant's inheritance, the trial court acknowledged her maternal inheritance of
over $916,000.00, which she contributed to the marriage. However, the trial court
made no findings relating to defendant's substantial paternal inheritance, aside from
three parcels of real property. In relation to plaintiff's PwC partnership valuation,
although the court "question[ed] the accuracy and validity of both parties' methods of
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SMITH V. SMITH
Opinion of the Court
computing the value," it ultimately concluded that "Defendant/Wife's methodology
appears to be the most appropriate of the two."
The trial court further found, despite prior stipulations to the contrary, that
the post-separation accruals in plaintiff's three PwC retirement plans were divisible
property. Plaintiff thereafter filed several post-trial motions on 1 August 2013, which
the court granted pursuant to Rules 52 and 59 of the Rules of Civil Procedure. As a
result, the trial court entered an amended equitable distribution order on 20
November 2013 reclassifying these post-separation accruals as plaintiff's separate
property. Then, on 28 January 2014, the trial court entered three qualified domestic
relations orders ("QDROs"), distributing defendant's shares of these retirement plans
accordingly.
Upon entering a permanent custody order on 9 July 2014, the trial court
reversed course from the temporary custody arrangement and granted the parties
joint and equal physical custody on a week-on-week-off basis. In addition, the trial
court awarded "permanent joint legal care, custody, and control of the minor children"
to both the parties. Also on 9 July 2014, the trial court entered a permanent child
support order, in which the trial court reduced plaintiff's monthly support
contribution from $5,000.00 to $4,000.00 as a result of the changed custody
arrangement. It further required plaintiff to pay $95,520.65 in retroactive child
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SMITH V. SMITH
Opinion of the Court
support to defendant for the time period from the date of separation through 30 June
2009.
Because of the parties' substantial combined income, the trial court
determined that the presumptive requirements of the child support Guidelines were
not applicable. With regard to private school tuition, the trial court found that "[i]t
continue[d] to be in the best interest of the minor children to be enrolled at [PDS],"
and that plaintiff "is well-able and capable of providing substantial support on behalf
of the minor children to maintain that standard of living that they have enjoyed prior
to the parties' separation . . . ." Based on its findings, the trial court ordered that
plaintiff "be solely responsible for every tuition and expense payment due and payable
to [PDS]," but required defendant to reimburse plaintiff for 25% of the tuition
expenses going forward. Additionally, plaintiff was required to pay $116,409.18 in
reimbursements to defendant for tuition for the 2007-2008, 2008-2009, and 2009-
2010 school years paid out of her account and the children's accounts.
Plaintiff timely appealed the permanent custody and support orders, as well
as the final equitable distribution order and corresponding QDROs to this Court.
Shortly thereafter, defendant timely filed a cross-appeal, challenging the custody,
support, and equitable distribution orders, as well.
Discussion
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SMITH V. SMITH
Opinion of the Court
As a general matter, where the trial court sits without a jury, "the judge is
required to ‘find the facts specially and state separately its conclusions of law thereon
and direct the entry of the appropriate judgment.' " Coble v. Coble, 300 N.C. 708, 712,
268 S.E.2d 185, 188-89 (1980) (quoting N.C.R. Civ. P. 52(a)). Thus, " ‘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.' "
Oakley v. Oakley, 165 N.C. App. 859, 861, 599 S.E.2d 925, 927 (2004) (quoting Shear
v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)). The
findings of fact are supported by competent evidence "even when the record includes
other evidence that might support contrary findings." Static Control Components,
Inc. v. Vogler, 152 N.C. App. 599, 603, 568 S.E.2d 305, 308 (2002). "The trial court's
conclusions of law, however, are reviewed de novo." Casella v. Alden, 200 N.C. App.
24, 28, 682 S.E.2d 455, 459 (2009).
I. Appeal from Temporary and Interlocutory Orders
Before addressing the parties' appeals from the final orders in these
proceedings, we must address plaintiff's appeals from the trial court's 21 February
2011 temporary child support and custody order and the 31 August 2011
interlocutory order denying plaintiff's post-trial motions. Plaintiff acknowledges the
well-observed rule that a temporary interlocutory order made moot by virtue of a
subsequent permanent order is not reviewable by this Court. See, e.g., Metz v. Metz,
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SMITH V. SMITH
Opinion of the Court
212 N.C. App. 494, 498, 711 S.E.2d 737, 740 (2011) (refusing to challenge temporary
support order mooted by subsequent permanent order). In an attempt to circumvent
this rule, plaintiff cites to In re A.N.B., 232 N.C. App. 406, 408, 754 S.E.2d 442, 445
(2014) (quoting Thomas v. N.C. Dep't of Human Res., 124 N.C. App. 698, 705, 478
S.E.2d 816, 821 (1996), aff'd per curiam, 346 N.C. 268, 485 S.E.2d 295 (1997)),
arguing that this Court has a duty to address the issues he raises in these mooted
orders because "the ‘question involved is a matter of public interest.' "
We do not agree that this matter raises any issue of public interest. Matters
of public interest are, for example, matters such as "preventing unwarranted
admission of juveniles into [psychiatric] treatment facilities[.]" Id. We do not believe
that the court-ordered child custody and support arrangements are comparable
matters of public interest. Accordingly, the temporary child support order and the
interlocutory post-trial order are moot on account of the subsequent entry of the
permanent child support order and are not reviewable by this Court.
Plaintiff also seeks review of these orders pursuant to a writ of certiorari under
Rule 21(a)(1) of the Rules of Appellate Procedure. However, "it is well-established
that where an argument is moot, no appellate review should lie." In re J.R.W., ___
N.C. App. ___, ___, 765 S.E.2d 116, 119 (2014) (declining to suspend the Rules of
Appellate Procedure under Rule 2 when arguments moot), disc. review denied, 367
N.C. 813, 767 S.E.2d 840 (2015). We, therefore, deny plaintiff's request for certiorari.
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SMITH V. SMITH
Opinion of the Court
II. Child Support
Plaintiff appeals, and defendant cross-appeals, from a number of rulings in the
permanent child support order of 9 July 2014. Both parties challenge the trial court's
findings of fact and conclusions of law related to the payment of their children's
private school tuition, while plaintiff also challenges the findings of fact related to the
retroactive and prospective child support awards. Each challenge is addressed in
turn below.
A. Private School Tuition
Plaintiff contends that the trial court erroneously ordered him to pay his
children's private school tuition at PDS without making findings of fact as to the
children's particular needs for private school pursuant to North Carolina's applicable
child support statute. That statute reads:
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.
N.C. Gen. Stat. § 50-13.4(c) (2015) (emphasis added). The question whether a trial
court can require a higher income parent, such as plaintiff, to pay his children's
private school tuition without a specific showing that his children need the
advantages offered by private schooling is a matter of first impression for this Court.
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SMITH V. SMITH
Opinion of the Court
However, we do not agree with plaintiff's contentions that a trial court must find such
a specific need prior to ordering a higher income parent to pay this expense as a
component of child support.
The trial court made numerous findings in the permanent child support order
regarding the parties' respective incomes. The trial court found that as of 2011,
plaintiff "was earning at least $522,000/year at PwC," that his "gross income has
increased each year since 2004[,]" and that "[t]here is no reason to assume that [his]
gross monthly income will remain at or below $43,000.00 per month for the current
fiscal year." The trial court also found that defendant's income in the years from 2007
to 2011 fluctuated from approximately $36,000.00 to $51,000.00. Based on the
parties' combined income, the court determined that "[c]hild support in this matter is
not subject to the N.C. Child Support Guidelines" and, therefore, that private school
tuition was not a "deviation" from the Guidelines or an "extraordinary expense" as
set forth in the Guidelines.
The trial court further found that "[p]rior to taking up residence in Charlotte,
North Carolina . . . Meg and Emilie were enrolled at Providence Day School" and that
the youngest child, Lara, "has remained a full-time student at PDS since August of
2007." The court also found that plaintiff "testified that it was his preference that
the Smith children continue attending private school[,]" but that he claimed "there
are other private schools in the Charlotte region that charge significantly less tuition
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SMITH V. SMITH
Opinion of the Court
than PDS . . . [which] should be preferred[,]" even though he had not "present[ed]
[any] evidence regarding accreditation, curricula or tuition and expenses for these
specific alternative schools."
Ultimately, the trial court concluded that the parties were capable of paying
for their children's private school tuition based on their respective gross incomes.
Furthermore, the trial court concluded that the parties must continue to educate their
children in private school "[i]n order to maintain the standard of living to which the
minor children are accustomed" and to remain consistent "with the stated intent of
both parties that the minor children attend private school versus public school[.]"
Normally, "[t]he court shall determine the amount of child support payments
by applying the presumptive guidelines . . . ." N.C. Gen. Stat. § 50-13.4(c). However,
when "the parents' combined adjusted gross income is more than $25,000 per month
($300,000 per year), the supporting parent's basic child support obligation cannot be
determined by using the child support schedule." N.C. Child Support Guidelines,
2016 Ann. R. N.C. at 50. "The schedule of basic child support may be of assistance to
the court in determining a minimal level of child support." Id. But, " ‘[f]or cases with
higher combined monthly adjusted gross income, child support should be determined
on a case-by-case basis.' " Taylor v. Taylor, 118 N.C. App. 356, 362, 455 S.E.2d 442,
447 (1995) (quoting Guidelines, 1991 Ann. R. N.C.), rev'd on other grounds, 343 N.C.
50, 468 S.E.2d 33 (1996).
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Opinion of the Court
Thus, where the parties' income exceeds the level set by the Guidelines, the
trial court's support order, on a case-by-case basis, " ‘must be based upon the interplay
of the trial court's conclusions of law as to (1) the amount of support necessary to meet
the reasonable needs of the child and (2) the relative ability of the parties to provide
that amount.' " Id. (quoting Newman v. Newman, 64 N.C. App. 125, 127, 306 S.E.2d
540, 542 (1983)). The determination of a child's needs is "largely measured by the
‘accustomed standard of living of the child.' " Cohen v. Cohen, 100 N.C. App. 334, 339,
396 S.E.2d 344, 347 (1990).
Even though the expense of private school has never been specifically
addressed in higher income cases, our appellate courts have long recognized that a
child's reasonable needs are not limited to absolutely necessary items if the parents
can afford to pay more to maintain the accustomed standard of living of the child.
See, e.g., Williams v. Williams, 261 N.C. 48, 57, 134 S.E.2d 227, 234 (1964) ("In
addition to the actual needs of the child, a [parent] has a legal duty to give his [or
her] children those advantages which are reasonable considering his [or her] financial
condition and his [or her] position in society."); Loosvelt v. Brown, ___ N.C. App. ___,
___, 760 S.E.2d 351, 362 (2014) ("In addition to the actual needs of the child, a father
has a legal duty to give his children those advantages which are reasonable
considering his financial condition and his position in society.").
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SMITH V. SMITH
Opinion of the Court
Despite this well-established law, plaintiff contends that in order for the trial
court to award the expense of private school tuition, it must first find that a child's
special needs -- for example, a child's health issues or disabilities -- require private
school and that public school cannot adequately meet such needs. In making this
argument, he cites Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577 (2000). This
Court in Biggs held that in order to deviate from the Guidelines and allow for such
"extraordinary expenses" as private school tuition, the trial court must make
adequate findings relating to the reasonable needs of the child for such extraordinary
expenses. Id. at 298, 524 S.E.2d at 581. Biggs is inapplicable, however, when, as
here, the trial court was not bound by the Guidelines because the parents' income
exceeds the level governed by the Guidelines.
Plaintiff also relies on case law that predates the establishment of the
presumptive Guidelines to support his argument. He claims that Brandt v. Brandt,
92 N.C. App. 438, 444, 374 S.E.2d 663, 666 (1988), aff'd per curiam, 325 N.C. 429, 383
S.E.2d 656 (1989), is applicable here because it holds that a party fails to show that
"private school is a necessary or reasonable expense" when there is "no evidence . . .
[that a child] could not excel in public school." He also cites to Evans v. Craddock, 61
N.C. App. 438, 443, 300 S.E.2d 908, 912 (1983), and Falls v. Falls, 52 N.C. App. 203,
215, 278 S.E.2d 546, 554-55 (1981) for the same proposition.
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SMITH V. SMITH
Opinion of the Court
While we do not find these cases wholly inapplicable simply because they
predate the presumptive Guidelines,1 we also do not find them relevant to this appeal
because they do not reflect the parents' accustomed standards or desires in high-
income cases. They, therefore, shed little light on the needs of children in higher
income families in which "need" is determined based on their "accustomed standard
of living," as this Court's decisions in Loosvelt and Williams require.
In addition, in contrast to this case, in all three cases cited by plaintiff, the
parents had not mutually agreed to enroll, and in fact had enrolled, their children in
private school before the time of trial. See Brandt, 92 N.C. App. at 444, 374 S.E.2d
at 666 (indicating one party was not consulted prior to child's enrollment in private
school by other party); Evans, 61 N.C. App. at 443, 300 S.E.2d at 912 ("On remand, .
. . [t]he trial judge should also determine if the defendant agreed to pay the tuition .
. . ."); Falls, 52 N.C. App. at 215, 278 S.E.2d at 555 (acknowledging children were not
attending private school and parents' lack of intent to enroll them in private school).
Thus, the mutual intent of both parents to educate their children in private school,
together with their children's actual enrollment, is a consideration in determining
the "accustomed standard of living" of the parties.
1"Before the guidelines, the law referred to the needs of the child as the basis of the award;
therefore, pre-guidelines cases are instructional." Suzanne Reynolds, 2 Lee's North Carolina Family
Law § 10.16, at 542 n.132 (5th. ed. 2015).
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SMITH V. SMITH
Opinion of the Court
In this high-income case, the trial court properly addressed the reasonable
needs of the children as measured by their accustomed standard of living, consistent
with Cohen, 100 N.C. App. at 339, 396 S.E.2d at 347. The trial court's findings of fact
regarding the children's consistent enrollment in private schools and the parties'
continual desire to educate their children in private schools adequately support the
court's conclusion that private schooling is a reasonable need of the children given
their accustomed standard of living.
Plaintiff, however, further argues that even though his children had always
been enrolled in private school, the payment of the PDS tuition had resulted in "estate
depletion." According to plaintiff, they were only able to afford the tuition by using
defendant's maternal inheritance. In effect, he challenges the trial court's
determination that he is capable of paying his children's tuition. We disagree.
In support of his argument, plaintiff points to his own testimony that upon
moving to Charlotte, his children's tuition was paid for at least in part by defendant's
separate money from her maternal inheritance. Specifically, plaintiff testified that
the tuition "was funded out of salary and Vera's inheritance." He, therefore, claims
that because defendant's inheritance is now depleted, he is incapable of affording the
tuition payments.
The trial court, however, based its determination that plaintiff is able to pay
the tuition expenses on its finding that beginning with the 2007-2008 school year,
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Opinion of the Court
plaintiff's salary had increased to over $500,000.00 a year and was no less than
$43,000.00 a month. The court found that plaintiff's own financial affidavit from 2011
claimed $11,568.00 in monthly expenses for his three children, an amount that
included tuition payments of nearly $5,000.00 a month and $5,000.00 in child support
payments owed to defendant each month. The trial court also found that plaintiff's
other reasonable monthly expenses included $3,700.00 in personal expenses per
month and another $3,700.00 in shared family expenses per month. Finally, the trial
court found that from the date of separation through 2011, plaintiff had been able to
make contributions to his retirement accounts and charitable contributions in the
approximate amount of $10,000.00 per month. However, the court concluded that
plaintiff's religious contributions of $4,500.00 per month would not be included in his
reasonable expenses.
Thus, even though plaintiff points to his own testimony that paying for his
children's tuition created a standard of living commensurate with estate depletion, it
is apparent that the trial court gave little weight to that testimony and found, to the
contrary, that plaintiff contributed personally to his children's tuition prior to
separation and that, given his income and reasonable expenses, he can afford to pay
for the tuition. Despite plaintiff's contentions, however, the court's findings are
supported by the evidence, including his own testimony. Indeed, despite contending
in conclusory fashion that the findings regarding his income and expenses are
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SMITH V. SMITH
Opinion of the Court
unsupported by competent evidence, plaintiff fails to make any specific argument to
support that contention.2 We, therefore, consider those findings binding on appeal.
In totaling plaintiff's reasonable monthly expenses, including tuition, and comparing
them to the monthly earnings found by the trial court, we hold that these findings
are specific enough to support the conclusion that plaintiff is capable of paying his
children's tuition. Whether the parties had previously used defendant's inheritance
to pay their children's tuition is, therefore, irrelevant to their present ability to pay.
Accordingly, because the trial court's determinations regarding the reasonable
needs of the children to attend private school -- as established by their accustomed
standard of living and past actions -- and plaintiff's ability to pay for this tuition are
adequately supported by competent findings of fact, we affirm the trial court's order
requiring plaintiff to pay his children's private school tuition.
Plaintiff next contends that the order that he pay retroactive private school
tuition to defendant is improper because (1) defendant should not recover money she
paid to PDS out of her children's UTMA accounts, (2) the award requires
reimbursement of funds paid outside the pertinent time period for retroactive
support, and (3) the permanent support award fails to account for payments he
2Plaintiff specifically challenges the findings that his religious contributions are not
reasonable expenses. We address those arguments infra as plaintiff's arguments in that regard relate
to prospective child support and not to his ability to pay his children's tuition. Thus, he fails to argue
effectively here how the trial court's calculations of his income and expenses preclude him from paying
his children's tuition.
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Opinion of the Court
already made to defendant for tuition payments. We address these arguments in
sequence.
The trial court found in the permanent child support order that the parties'
three children each have a UTMA account at Merrill Lynch of which defendant is the
custodian. The support order also found that defendant paid for her three daughters'
2008-2009 and 2009-2010 PDS tuition primarily out of their individual UTMA
accounts, in a total amount of $103,614.18. Concluding that plaintiff was responsible
for all the tuition expenses for his children for the 2007-2008, 2008-2009, and 2009-
2010 school years, the trial court decreed that plaintiff shall reimburse defendant for
the $53,810.00 payment made out of the UTMA accounts for the 2008-2009 school
year; that plaintiff shall reimburse defendant for the $49,804.18 payment made out
of the UTMA accounts for the 2009-2010 school year; and that defendant thereafter
shall reimburse each UTMA account on a pro rata basis within 90 days from the entry
of the permanent support order.
In calculating retroactive child support awards, the trial court must determine
"the amount actually expended by [the dependent spouse] which represent[s] the
[supporting spouse's] share of support." Hicks v. Hicks, 34 N.C. App. 128, 130, 237
S.E.2d 307, 309 (1977). The dependent spouse "is not entitled to be compensated for
support for the children provided by others[.]" Id. Notwithstanding this established
rule of law, because the trial court ordered that defendant reimburse her children's
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UTMA accounts upon receipt of the child support award from plaintiff, we do not
agree with plaintiff's first argument that the trial court erred by reimbursing
defendant for amounts that she did not pay.
Plaintiff next urges that defendant's claim for retroactive child support
improperly included $41,225.18 in tuition payments defendant made on 22 June, 2
November, and 7 December of 2009 because retroactive child support is only
recoverable for the amount expended three years prior to the date of filing. He cites
to Napowsa v. Langston, 95 N.C. App. 14, 21, 381 S.E.2d 882, 886 (1989), arguing
that retroactive child support is recoverable by defendant "(1) to the extent she paid
[plaintiff's] share of such expenditures, and (2) to the extent the expenditures
occurred three years or less before . . . the date she filed her claim for child support."
However, the limitation plaintiff is referencing only limits reimbursement to three
years prior to the filing of the action. See N.C. Gen. Stat. § 1-52(2) (2015). Since
defendant filed her claim for retroactive child support on 19 June 2009, the statute
of limitation has no application to payments defendant made after that date. Indeed,
Napowsa held that " ‘each . . . expenditure by the mother creates in her a new right
to reimbursement.' " 95 N.C. App. at 21, 381 S.E.2d at 886 (quoting Tidwell v. Booker,
290 N.C. 98, 116, 225 S.E.2d, 816, 827 (1976)).
Lastly, plaintiff argues that Finding of Fact No. 194 in the permanent support
order credits him with paying only $5,810.00 in PDS tuition for the 2007-2008 school
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year. He claims this amount is $3,000.00 too low, as the court determined in Finding
of Fact No. 108 that "Plaintiff/Father was credited with one-half (1/2) of payment
three (3) (made on November 1, 2007) or $5,810.00 and $3,000.00 of payment four (4)
(made on February 1, 2008) from his separate funds." We agree with plaintiff that
there is an inconsistency in the trial court's findings, and we, therefore, remand to
the trial court for findings of fact resolving this inconsistency and recalculation of the
amount owed by plaintiff to defendant in retroactive child support.
Defendant's sole argument with respect to the private school tuition part of the
permanent child support order is that the trial court erred in requiring her to
reimburse plaintiff for 25% of the PDS tuition. Defendant contends that the trial
court failed to make any findings of fact explaining its basis for the 25% figure, which
departs from a pro-rata distribution of support requirements based on the parties'
respective incomes. We agree.
" ‘The ultimate objective in setting awards for child support is to secure support
commensurate with the needs of the children and the ability of the [obligor] to meet
the needs.' " Robinson v. Robinson, 210 N.C. App. 319, 333, 707 S.E.2d 785, 795
(2011) (quoting Cauble v. Cauble, 133 N.C. App. 390, 394, 515 S.E.2d 708, 711 (1999)).
This objective is fulfilled by making adequate findings regarding the "estates,
earnings, conditions, accustomed standard of living . . ., the child care and
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homemaker contributions of each party, [or] other facts of the particular case." N.C.
Gen. Stat. § 50-13.4(c).
In this instance, Finding of Fact No. 121 in the permanent support order set
out the parties' respective annual incomes from 2007 to 2011. It is apparent from the
trial court's findings that plaintiff's income perennially dwarfed defendant's income,
accounting for almost 90% of the parties' combined income. The trial court made no
other findings of fact that could support its order that defendant pay 25% of the
tuition payment when her income accounts for only 10% of the combined income.
While the record contains evidence upon which the trial court might justify its award,
we agree with defendant that the trial court's determination of the amount she was
required to pay is not supported by adequate findings of fact. We, therefore, reverse
the child support award, and remand to the trial court for further findings of fact to
support its determination.
B. Retroactive Child Support
Plaintiff also appeals several other aspects of the retroactive child support
order apart from the private school tuition. He argues the order (1) lacks adequate
factual findings, (2) is marred by internal inconsistencies, and (3) fails to account for
payments already made to defendant.
" ‘[A] party seeking retroactive child support must present sufficient evidence
of past expenditures made on behalf of the child, and evidence that such expenditures
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were reasonably necessary.' " Loosvelt, ___ N.C. App. at ___, 760 S.E.2d at 355
(quoting Robinson, 210 N.C. App. at 333, 707 S.E.2d at 795). Recoverable
expenditures are those " ‘actually expended on the child's behalf during the relevant
period.' " Id. (quoting Robinson, 210 N.C. App. at 333, 707 S.E.2d at 795). Affidavits
are acceptable means by which a party can establish these expenditures. Savani v.
Savani, 102 N.C. App. 496, 502, 403 S.E.2d 900, 904 (1991). Any "[e]videntiary issues
concerning credibility, contradictions, and discrepancies are for the trial court . . . to
resolve and, therefore, the trial court's findings of fact are conclusive . . . if there is
competent evidence to support them despite the existence of evidence that might
support a contrary finding." Smallwood v. Smallwood, 227 N.C. App. 319, 322, 742
S.E.2d 814, 817 (2013).
Here, the permanent child support award directed plaintiff to pay defendant
$95,520.65, "representing the difference between the monthly cash support ordered
. . . for the period beginning June 1, 2007 through June, 2009 and the total amount
actually paid" during that time period. Plaintiff first argues that the findings of fact
regarding this retroactive child support payment are not supported by competent
evidence because defendant testified inconsistently as to the numbers sworn to in her
financial affidavit and because such numbers were skewed for the relevant time
period as a result of the changed custody arrangement. We disagree.
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Defendant initially testified in June 2010 that her expense affidavit relevant
to retroactive child support for the period of June 2007 to June 2009 was based only
on her year-end expenses for 2009, suggesting those expenses were not reflective of
actual expenditures during that period. However, defendant adequately explained
during the permanent support hearing on 21 December 2011 that the expenses set
out in her June 2009 financial affidavit were "the same" as the previous two years'
expenses because she "used those two years of expenses to verify . . . the numbers
[she] was placing on [her] affidavit." She provided an updated affidavit of financial
standing on 8 September 2011 corroborating this testimony. Because this
inconsistency cited by plaintiff raises only credibility issues to be resolved by the trial
court, and evidence before the court otherwise established her expenditures for the
relevant time period, we find that the trial court's findings in this regard were based
on competent evidence.
Plaintiff also argues that because the custodial arrangement changed
significantly in February 2009, giving defendant increased time with the children,
her affidavit based on expenditures made in 2009 does not properly reflect
expenditures made from June 2007 until January 2009. However, at the 21
December 2011 hearing, defendant testified repeatedly to the static nature of the
shared and individual expenses of her children from the date of separation through
2010 and that she had taken into account any increase or decrease that may have
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occurred in the two years prior to the filing of her affidavit in June 2009. The trial
court made corresponding findings of fact, ultimately concluding that the children's
monthly individual and shared expenses totaled $6,285.00. Accordingly, we affirm
the trial court's ruling awarding retroactive child support for this period.
As a final matter, plaintiff points out a clerical error in the support order.
Finding of Fact No. 183 states that plaintiff "is well able and capable of paying
$4,000.00 per month" in retroactive support for the June 2007 to June 2009 time
period. However, Finding of Fact No. 193 suggests that the trial court intended this
monthly payment to be $5,000.00 for this time period. This intent, which is
inconsistent with Finding of Fact No. 183, is reflected in Conclusion of Law No. 14 in
the support order, which states that the $4,000.00 per month permanent support
payment effective 1 March 2012 "represents a 20% reduction in the amount of child
support" plaintiff was paying prior to that date. Accordingly, we remand to the trial
court for correction of the clerical error.
Plaintiff's last argument with respect to the retroactive support directive is
that the trial court failed to take into account the $43,085.00 payment he made to
defendant on 5 October 2007, and therefore its conclusions were not supported by
appropriate findings of fact. However, plaintiff testified that the $43,085.00 payment
"represented what we computed as her share of the October distribution [of marital
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Opinion of the Court
assets] minus the expenses we had discussed." Accordingly, we hold the court did not
err by failing to credit this amount to plaintiff as a child support payment.
C. Prospective Child Support
Plaintiff contends that the trial court erred in calculating his prospective child
support requirement by failing to make sufficient findings of fact regarding (1)
defendant's paternal inheritance and (2) defendant's reasonable monthly
expenditures. The trial court's award to defendant of prospective child support in the
amount of $4,000.00 per month effective 1 March 2012, a reduction from the
temporary child support order, was based on plaintiff's "increased custodial time"
with the children, defendant's ability to work additional hours, plaintiff's "substantial
earned income" and defendant's earned income, the "needs and expenses of the minor
children and their accustomed standard of living," and, lastly, "the passive income
that Defendant/Mother can realize from her non-retirement assets and accounts[.]"
"[T]he trial court is required to make findings of fact with respect to the factors
listed in [N.C. Gen. Stat. § 50-13.4(c)]," including findings on "the parents' incomes,
estates, and present reasonable expenses in order to determine their relative ability
to pay." Sloan v. Sloan, 87 N.C. App. 392, 394, 360 S.E.2d 816, 818, 819 (1987)
(emphasis added). "[T]o determine the relative abilities of the parties to provide
support, the court ‘must hear evidence and make findings of fact on the parents'
income[s], estates (e.g., savings; real estate holdings, including fair market value and
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equity; stocks; and bonds) and present reasonable expenses.' " Taylor, 118 N.C. App.
at 362-63, 455 S.E.2d at 447 (quoting Little v. Little, 74 N.C. App. 12, 20, 327 S.E.2d
283, 290 (1985)). "At the very least, a trial court must determine what major assets
comprise the parties' estates and their approximate value." Sloan, 87 N.C. App. at
395, 360 S.E.2d at 819; see also Sloop v. Friberg, 70 N.C. App. 690, 695-96, 320 S.E.2d
921, 925 (1984) (holding that finding of fact regarding party's total estate is
"required").
Throughout the child support and equitable distribution proceedings, both
parties put on evidence of the sizeable inheritance defendant had received from her
father after his passing following the date of separation. Defendant testified to being
the sole heir of her father's estate, which comprised a 401(k) plan worth in excess of
$800,000.00, an IRA worth approximately $60,000.00, a Certificate of Deposit worth
approximately $100,000.00, a bank account with Bank Corp. South worth
approximately $208,000.00, various other bank accounts worth anywhere from
$7,000.00 to $13,000.00, three vehicles, and two parcels of real estate with a tax value
in excess of $103,000.00. Although defendant claimed that some of this money is
inaccessible or "subject to tax" if she were to withdraw it immediately, she also
admitted that she received an initial distribution of $30,000.00 from her father's
401(k), and would continue receiving yearly distributions from this account, as well
as "approximately $700.00 a month" from her mother's pension, which passed to her
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Opinion of the Court
through her father's estate. Despite this evidence, the trial court's findings of fact
regarding permanent child support erroneously lack any mention of these assets
other than a vague allusion to her "non-retirement assets and accounts" as a partial
impetus for reducing the monthly award from $5,000.00 to $4,000.00 in the
permanent support order.
Defendant argues that notwithstanding these omissions, the trial court
considered these components of her estate in calculating the child support award and
that, as a result, plaintiff has failed to show prejudicial error. Defendant also claims
that the pre-Guidelines cases plaintiff cites requiring findings on defendant's estate
are irrelevant here because post-Guidelines cases suggest that specific findings of
one's estate are only required when a party requests a deviation from the Guidelines.
We disagree with both contentions.
First, the post-Guidelines cases that defendant cites are not high-income cases,
but rather are cases controlled by the Guidelines and, therefore, irrelevant to the
issues in this case. Second, defendant's paternal inheritance is both voluminous and
convoluted in nature. There are a number of issues regarding her inherited estate --
including monthly distributions and tax implications -- that impact defendant's
ability to immediately utilize this estate to pay her children's monthly expenses.
Without specific findings of fact addressing this inheritance, we cannot determine
whether the trial court gave due regard to the factors enumerated in N.C. Gen. Stat.
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§ 50-13.4(c). Consequently, we reverse the prospective child support award and
remand for findings of fact relating to defendant's paternal inheritance.
Plaintiff next argues that the trial court's determinations regarding the
reasonableness of his expenses, particularly his monthly religious contributions and
401(k) loan repayment expenses, were not supported by any finding of fact. We
disagree. The trial court detailed in its findings of fact plaintiff's total individual
monthly expenditures as of the June 2010 hearings and his personal expenses as of
the date of the permanent child support order. In each finding, the trial court
determined that plaintiff's monthly religious contributions totaled more than half of
his monthly expenditures, and if excluded, would result in plaintiff having personal
expenses of only $3,700.00 each month. The trial court also made a finding that of
plaintiff's $22,839.33 of itemized monthly deductions, "$955.00 is a loan payment that
Plaintiff/Father pays to himself as a result of borrowing against one of his retirement
accounts" and that such an amount "should not be itemized as a deduction."
When determining the reasonable needs and expenses of the parties in
domestic actions, "absent contrary indications in the record, there is no requirement
that a specific conclusion as to the reasonableness of such expenses be made[.]" Byrd
v. Byrd, 62 N.C. App. 438, 441, 303 S.E.2d 205, 208 (1983). Where there are no
contrary indications in the record, "a lack of a specific conclusion as to reasonableness
will not necessarily be held for error[.]" Coble, 300 N.C. at 714, 268 S.E.2d at 190.
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Although there was no specific conclusion as to the reasonableness of plaintiff's
religious contributions or his $955.00 loan repayment, the trial court's ultimate
conclusions as to plaintiff's reasonable expenses were supported by its findings of fact,
which were in turn supported by competent evidence. We, therefore, affirm those
aspects of the trial court's permanent support order.
III. Custody
A. Admissibility of Dr. Neilsen's Expert Testimony
Defendant first contends that the trial court erred in admitting Dr. Linda
Neilsen's expert testimony and corresponding exhibits in the areas of "adolescent
psychology, father-daughter relationships and shared parenting, and scientific
research on father-daughter relationships and shared parenting." We note that "trial
courts are afforded ‘wide latitude of discretion when making a determination about
the admissibility of expert testimony' " and such a decision "will not be reversed on
appeal absent a showing of abuse of discretion." Howerton v. Arai Helmet, Ltd., 358
N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (quoting State v. Bullard, 312 N.C. 129,
140, 322 S.E.2d 370, 376 (1984)).
Our Supreme Court has established "a three-step inquiry for evaluating the
admissibility of expert testimony: (1) Is the expert's proffered method of proof
sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at
trial qualified as an expert in that area of testimony? (3) Is the expert's testimony
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relevant?" Id. (internal citations omitted). Here, defendant challenges both Dr.
Neilsen's competency as an expert and the relevancy of her testimony.
We first address defendant's challenge to Dr. Neilsen's competency to testify
to matters of clinical psychology and, specifically, facts relating to the parties'
relationships with their children. Dr. Neilsen testified that she was as a professor of
adolescent psychology at Wake Forest University and had 15 years of experience
researching shared parenting and father-daughter relationships. The trial court,
upon qualifying Dr. Neilsen as an expert, made clear that she was not qualified "to
talk about any specifics of this case or these children." Accordingly, Dr. Neilsen
testified to, among other things, "research regarding young adults who have grown
up in shared parenting families and sole parenting families . . . ." When referring to
"these" children, her testimony focused on the children within this research, and not
the parties' children specifically.
"Under the North Carolina Rules of Evidence, a witness may qualify as an
expert by reason of ‘knowledge, skill, experience, training, or education,' where such
qualification serves as the basis for the expert's proffered opinion." Id. at 461, 597
S.E.2d at 688 (quoting N.C.R. Evid. 702(a)). Given Dr. Neilsen's extensive experience
and education in research related to shared parenting relationships, and the trial
court's limitation of her testimony to those areas, we hold that the trial court did not
err in concluding that Dr. Neilsen was qualified to testify as an expert witness.
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We next address defendant's arguments that Dr. Neilsen's testimony was
irrelevant. Relevant evidence is defined as evidence having "any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence." N.C.R. Evid.
401. " ‘[I]n judging relevancy, it should be noted that expert testimony is properly
admissible when such testimony can assist the [trier of fact] to draw certain
inferences from facts because the expert is better qualified than the [trier of fact] to
draw such inferences.' " Howerton, 358 N.C. at 462, 597 S.E.2d at 688-89 (quoting
State v. Goode, 341 N.C. 513, 529, 461 S.E.2d 631, 641 (1995)). Furthermore, a trial
court has inherent authority to limit the admissibility of expert testimony under Rule
403 of the Rules of Evidence. Howerton, 358 N.C. at 462, 597 S.E.2d at 689. Rule
403 provides that relevant evidence may nonetheless be excluded "if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence."
We find Dr. Neilsen's testimony regarding research on shared parenting
arrangements was relevant to the custodial arrangement in this case because it
assisted the trial court in deciding what was in the best interests of the children. As
the trial court found in Finding of Fact No. 90, based on Dr. Neilsen's testimony, "six
(6) monthly overnights is grossly inadequate for a parent to participate in shared
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residential parenting and to maintain an engaged, authoritative relationship with
the minor children . . . ."
Defendant has not shown that the trial court erred in deciding that the
probative nature of the testimony was not outweighed by a danger of unfair prejudice,
confusion of the issues, or misleading the trier of fact. Other than the fact that the
trial court assigned significant weight to Dr. Neilsen's testimony in altering the final
custody determination, defendant fails to point to any way in which the testimony
unfairly prejudiced defendant or confused or misled the trial court. Although a party
"may disagree with the trial court's credibility and weight determinations, those
determinations are solely within the province of the trial court." Brackney v.
Brackney, 199 N.C. App. 375, 391, 682 S.E.2d 401, 411 (2009).
Accordingly, we find that the trial court did not abuse its discretion in
admitting Dr. Neilsen's testimony or the corresponding authenticated exhibits.
Furthermore, to the extent defendant argues that the findings in the custody order
based on Dr. Neilsen's testimony are unsupported by competent evidence, we disagree
and affirm the trial court.
B. Award of Equal Physical Custody
Defendant next argues that the trial court's findings of fact that underlie the
order's provision for an equal custody arrangement are unsupported by competent
evidence because they arbitrarily ignore or alter the findings of fact in the temporary
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custody order. Defendant essentially contends that without a showing of changed
circumstances prior to the permanent custody order, the trial court was not permitted
to deviate from the findings in the temporary order. We disagree.
"If a child custody order is temporary in nature and the matter is again set for
hearing, the trial court is to determine [permanent] custody using the best interests
of the child test without requiring either party to show a substantial change of
circumstances." LaValley v. LaValley, 151 N.C. App. 290, 292, 564 S.E.2d 913, 915
(2002). Therefore, " ‘[t]he rule established by section 50-13.7(a) and developed within
our case law requires a showing of changed circumstances only where an order for
permanent custody already exists.' " Lamond v. Mahoney, 159 N.C. App. 400, 404,
583 S.E.2d 656, 659 (2003) (quoting Regan v. Smith, 131 N.C. App. 851, 853, 509
S.E.2d 452, 454-55 (1998)).
Subsequent to the trial court's entry of the Order for Temporary Custody and
Temporary Child Support on 21 February 2011, hearings were held on the issues of
custody and child support in September of 2011. Because the 21 February 2011 order
was temporary, the trial court was not required to find changed circumstances in
order to deviate from that earlier order in entering the 9 July 2014 permanent child
support and custody order.
Next, defendant challenges the trial court's Findings of Fact Nos. 62, 70, 77,
80, and 85 in the permanent custody order. Finding of Fact No. 62 states that when
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the parties first daughter was born, "Plaintiff/Father took a couple of days off from
work at her birth and the month of December to help care for [her]" and that at this
time defendant "reduced her work schedule by approximately half." Finding of Fact
No. 70 states that both parties "had a loving relationship with the minor children
during the marriage and were actively involved in the minor children's daily care and
activities . . .," while Finding of Fact No. 77 states that "Plaintiff/Father has not been
precluded by his work and travel schedule from maintaining an active and involved
relationship with the minor children since the date of separation." In addition,
Findings of Fact Nos. 80 and 85 state, respectively, that "Defendant/Mother is
actively involved in the minor children's daily care and activities" and that the equal
custody arrangement "during the summer of 2011 worked very well for the minor
children as well as the parties . . . ."
Defendant argues that Finding of Fact No. 62 arbitrarily deletes the portion of
the corresponding finding from the temporary order that states: "With the exception
of December 1996, Mother has been the primary custodian of Meg since her birth."
Because the trial court was not bound to repeat the findings of fact from the
temporary order, but rather could determine what findings it found most pertinent
or which evidence was entitled to greater weight, defendant has presented no
legitimate basis for questioning Finding of Fact No. 62.
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We also find that the record contains ample evidence to support Findings of
Fact Nos. 70, 77, and 80, despite the fact that there may also be evidence to the
contrary which supported the temporary order. Competent evidence suggests that
plaintiff has played a major part in his children's upbringing both before and after
the date of separation. During the marriage, the evidence indicated that plaintiff
made efforts to make it home for dinner, bathe his children, and put them to bed.
Furthermore, the trial court heard evidence that plaintiff spent significant amounts
of time both before and after the date of separation participating in his daughters'
extracurricular activities. Because these findings were based on competent evidence,
even though there was evidence to the contrary, we reject defendant's challenges to
Findings of Fact Nos. 70, 77, and 80.
As a final matter, we note that defendant has no basis for contesting Finding
of Fact No. 85 as unsupported by the evidence because it is based directly on her
testimony that she believed "splitting the summer custody has worked out very well."
We therefore, hold that these findings of fact are supported by competent evidence
and that they furthermore support the conclusion of the trial court that an equally
shared custodial arrangement is in the best interests of the children.
C. Award of Joint Legal Custody
Plaintiff essentially repeats his assault on the trial court's order requiring him
to pay his children's private school tuition by arguing that such an order erroneously
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contradicts the trial court's grant of "permanent joint legal and physical care, custody,
and control of the minor children[.]" Specifically, plaintiff points to the fact that the
permanent child custody order granting the parties joint legal custody requires that
"Plaintiff/Father and Defendant/Mother shall make joint decisions on all major issues
affecting the health, education, and general welfare of the minor children, including
but not limited to educational issues . . . ." However, the order also concludes that
"[i]t continues to be in the best interest of the minor children to be enrolled at
Providence Day School."
This Court has held that legal custody "refer[s] generally to the right and
responsibility to make decisions with important and long-term implications for a
child's best interest and welfare." Diehl v. Diehl, 177 N.C. App. 642, 646, 630 S.E.2d
25, 27 (2006). Although our General Assembly has not defined "joint legal custody,"
this omission "implies a legislative intent to allow a trial court ‘substantial latitude
in fashioning a joint [legal] custody arrangement,' " Id. at 647, 630 S.E.2d 28 (quoting
Patterson v. Taylor, 140 N.C. App. 91, 96, 535 S.E.2d 374, 378 (2000)), so long as the
court "focus[es] on the best interests and welfare of the child[.]" Patterson, 140 N.C.
App. at 96, 535 S.E.2d at 378.
Plaintiff relies on Diehl in arguing that the trial court erred in "simultaneously
award[ing] both parties joint legal custody, but stripp[ing] [plaintiff] of all decision-
making authority" regarding where the children were enrolled in school. 177 N.C.
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App. at 646, 630 S.E.2d at 28. However, in Diehl, this Court reversed the trial court's
order because, although it gave both parties joint legal custody, it granted primary
decision-making authority on all issues to one parent. Id. Nothing in Diehl limits
the authority of the trial court to decide what is in the best interests of the children
if there is a conflict between the parents. The trial court here did not violate Diehl
by awarding joint custody, while simultaneously giving one parent primary decision-
making authority over the children's schooling. Instead, the trial court awarded
joint legal custody, but exercised its authority, given the disagreement between the
parents, to determine that it was in the best interests of the children to remain
enrolled at PDS. This determination was adequately supported by findings of fact
that the children had been enrolled exclusively at PDS, that they had excelled at PDS,
and that both parents preferred private school over public school. Because plaintiff
does not challenge these findings of fact, they are binding on appeal and amply
support the trial court's conclusion that it is in the best interests of the children to
continue attending PDS.
IV. Equitable Distribution
A. Defendant's Paternal Inheritance as a Distributional Factor
Plaintiff asserts that the trial court committed reversible error by failing to
make findings of fact and corresponding conclusions of law relating to defendant's
paternal inheritance of nearly $1.25 million as a distributional factor. We agree.
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In an equitable distribution action, N.C. Gen. Stat. § 50-20(c)(1) (2015)
provides that one of the factors the court "shall" consider in making an equitable
division of property is "[t]he income, property, and liabilities of each party at the time
the division of property is to become effective." (Emphasis added.) "[W]hen evidence
of a particular distributional factor is introduced, the court must consider the factor
and make an appropriate finding of fact with regard to it." Fox v. Fox, 114 N.C. App.
125, 135, 441 S.E.2d 613, 619 (1994).
Here, the trial court erroneously made no mention of defendant's paternal
inheritance in the final equitable distribution order. Defendant attempts to justify
the trial court's failure to specifically address this inheritance by citing a conclusion
in the order that states: "The Court notes that a number of factors which relate to the
distributional factors to be considered by the Court . . . are found in other sections of
the findings of fact herein. . . . [This] does not mean that the Court did not consider
them as distributional factors." However, this general conclusion is simply not
adequate to compensate for the total lack of findings to address defendant's paternal
inheritance. See Rosario v. Rosario, 139 N.C. App. 258, 262, 533 S.E.2d 274, 276
(2000) ("[A] finding stating that the trial court has merely given ‘due regard' to the
section 50-20 factors is insufficient as a matter of law.").
Defendant also argues that because the inheritance is not a specifically
enumerated factor in N.C. Gen. Stat. § 50-20, the court is not required to make such
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specific findings. Contrary to defendant's arguments, we find that defendant's
inheritance qualifies as "property." Accordingly, we reverse the order and remand
for findings of fact regarding defendant's paternal inheritance.
B. Amendment of the Equitable Distribution Order
Defendant also challenges the order granting plaintiff's motion to amend the
22 July 2013 equitable distribution order pursuant to Rules 52 and 59 of the Rules of
Civil Procedure. In response, plaintiff claims that defendant failed to give proper
notice of appeal of this order pursuant to Rule 3(d) of the Rules of Appellate Procedure
because defendant's notice of cross-appeal only designated the amended equitable
distribution order entered on 20 November 2013 and failed to designate the
simultaneously-entered order granting plaintiff's Rule 52 and 59 post-trial motions.
Rule 3(d) requires that a notice of appeal "designate the judgment or order
from which appeal is taken . . . ." If the court does not have proper notice, it will not
have jurisdiction over the matter. Von Ramm v. Von Ramm, 99 N.C. App. 153, 156,
392 S.E.2d 422, 424 (1990). However, there are exceptions to this rule that allow us
to liberally construe a notice of appeal. The first is that " ‘a mistake in designating
the judgment, or in designating the part appealed from if only a part is designated,
should not result in loss of the appeal as long as the intent to appeal from a specific
judgment can be fairly inferred from the notice and the appellee is not misled by the
mistake.' " Id. at 156-57, 392 S.E.2d at 424 (quoting Smith v. Indep. Life Ins. Co., 43
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N.C. App. 269, 274, 258 S.E.2d 864, 867 (1979)). "Second, if a party technically fails
to comply with procedural requirements in filing papers with the court, the court may
determine that the party complied with the rule if the party accomplishes the
‘functional equivalent' of the requirement." Id. at 157, 392 S.E.2d at 424 (quoting
Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 101 L. Ed. 2d 285, 291, 108 S.
Ct. 2405, 2409 (1988)).
Neither of these exceptions is applicable here. The second exception is clearly
inapplicable because defendant actually complied with all the procedural
requirements of filing her notice of appeal. The first exception is also inapplicable as
suggested in Von Ramm and Chee v. Estes, 117 N.C. App. 450, 451 S.E.2d 349 (1994),
two cases with circumstances analogous to those here. In Chee, the trial court found
that because the plaintiff had noticed an appeal "from the judgment entered in
accordance with the verdict . . . it cannot be fairly inferred from the notice that
plaintiffs intended as well to appeal the denial of their motion for new trial." Id. at
452, 451 S.E.2d at 351. The converse occurred in Von Ramm, where the appellant
noticed appeal from the judgment denying a Rule 59 motion, but this Court found it
could not fairly infer from the notice of appeal the appellant's intent to appeal the
order underlying the appellant's Rule 59 motion. 99 N.C. App. at 157, 392 S.E.2d at
425.
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Similarly, here, defendant clearly included the Amended Judgment and Order
regarding equitable distribution in her notice of appeal, but failed to include the order
entered granting plaintiff's Rule 52 and 59 motions. Consistent with Von Ramm and
Chee, we hold that we cannot fairly infer defendant's intent to appeal the order
granting plaintiff's Rule 52 and 59 motions and, therefore, we do not have jurisdiction
to address the issues raised by defendant on appeal regarding the grant of plaintiff's
motion. As defendant has not requested we review these issues pursuant to a petition
for writ of certiorari, we also decline to review these issues under Rule 21 of the Rules
of Appellate Procedure.
C. Plaintiff's Post-Separation Payments Towards the Marital Debt
Plaintiff contends the trial court improperly classified two debt payments in
the final Equitable Distribution Order. First, plaintiff claims the trial court failed to
designate as divisible property in its findings of fact plaintiff's post-separation debt
payments in the amount of $101,441.00 towards the marital mortgage, property
taxes, homeowners' insurance, repairs, and neighborhood residence fees. Second,
plaintiff claims the trial court also erred in failing to account for $11,764.00 in country
club dues as divisible property.
The final equitable distribution order found that the parties stipulated that
upon the sale of the marital home, each would receive half of its net equity, defined
as "the gross sales price less mortgage payoffs, realtor commissions, tax prorations,
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Opinion of the Court
revenue stamps, homeowners' association dues, mutually agreed upon repairs, and
other closing costs directly attributable to the sellers . . . ." The trial court later
concluded that "[b]y entering into the referenced Stipulations, the parties have fully
and finally resolved any and all claims arising out of each party's marital and,
separate and/or divisible property interests in and into the marital residence."
The trial court further found that while plaintiff was responsible for all
mortgage fees and other expenses relating to the marital home from the date of
separation until the date the marital residence was sold, plaintiff lived in the house,
but did not pay defendant her share of the rental value, which was no less than
$3,500.00 per month. This value, the trial court concluded, exceeded the
expenditures that plaintiff incurred on a monthly basis, therefore leaving "no
divisible property interest [in the marital home] to be valued, classified, and/or
awarded in this Judgment."
In regard to the parties' country club membership, the trial court found that
"[t]he Ballantyne Country Club's membership was in Plaintiff/Husband's name[,]"
that "the initiation fee was paid from a portion of Defendant/Wife's inheritance[,]"
and that after the date of separation, defendant "had no right to utilize the facilities
. . . unless she was a guest of Plaintiff/Husband." The trial court also made a finding
that the membership was sold and transferred along with the marital residence,
which was "divided equally between the parties" pursuant to the parties' stipulations.
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In conclusion, the trial court found there was "no divisible property interest . . . to
take into account with regard to any monthly dues or assessments that
Plaintiff/Husband may have incurred and paid to Ballantyne Country Club."
It is well settled that "divisible property includes ‘[i]ncreases and decreases in
marital debt and financing charges and interest related to marital debt.' " Warren v.
Warren, 175 N.C. App. 509, 517, 623 S.E.2d 800, 805 (2006) (quoting N.C. Gen. Stat.
§ 50-20(b)(4)(d) (2003)). Furthermore, "mortgage payments and payment of property
taxes, have been treated by this Court as payments made towards a marital debt."
Smith v. Smith, 111 N.C. App. 460, 510, 433 S.E.2d 196, 226 (1993), rev'd in part on
other grounds, 336 N.C. 575, 444 S.E.2d 420 (1994).
It is also true that "[i]n equitable distribution actions, our courts favor written
stipulations which are duly executed and acknowledged by the parties." Fox, 114
N.C. App. at 132, 441 S.E.2d at 617. Stipulations are treated as "judicial admissions
which, unless limited as to time or application, continue in full force for the duration
of the controversy." Id. at 131, 441 S.E.2d at 617.
Plaintiff makes general assertions that the trial court's findings of fact
regarding the classification of these marital debts are unsupported by competent
evidence, but fails to point to any specific evidence that suggests they are erroneous.
As such, they are binding on appeal. We further hold that these findings adequately
support the trial court's corresponding conclusions of law that plaintiff has no
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Opinion of the Court
divisible property interest in the payments made towards the marital residence or
the country club membership. This is evident because after the date of separation
and until these interests were sold, defendant was effectively barred from realizing
any benefit from these marital interests. Furthermore, the stipulations referenced
by the trial court indicate that the net equity in the marital residence, including the
country club membership, was split evenly between the parties, thereby resolving all
claims arising out of the interests in the marital residence. Accordingly, we affirm
this portion of the final equitable distribution order.
D. Valuation of Plaintiff's Partnership Interest
Plaintiff lastly argues that the trial court failed to make appropriate findings
of fact regarding the valuation methodology used for valuing plaintiff's PwC
partnership interest. Here, the trial court examined at length both parties' valuation
methods, and the proffered evidence supporting them. Although it ultimately
questioned "the accuracy and validity of both parties' methods of computing the value
of Plaintiff/Husbands' partnership interest in PricewaterhouseCoopers, LLP," the
trial court adopted defendant's methodology after concluding that it "appears to be
the most appropriate of the two." The court arrived at a date of separation value of
$94,118.00 by taking the net capital account balance ("CAB") as of the date of
separation and subtracting the outstanding loan balance owed to PwC as of the date
of separation. The parties do not dispute this outstanding loan balance of $93,190.00.
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Opinion of the Court
The trial court found from defendant's evidence that the CAB is impacted by three
different numbers: "(1) Capital contributions during the Time Period in question, (2)
increases in capital (shares of earned income[)] during the Time Period, and (3)
decreases to capital (mainly withdrawals in distributions made to the partner[)]
during the Time Period[.]" Applying these factors, the trial court arrived at a date of
separation net CAB of $187,308.00. Subtracting the undisputed outstanding loan
balance from this amount, the trial court concluded plaintiff's partnership valuation
totaled $94,118.00.
"If there is ‘no single best approach to valuing' an asset, ‘[t]he task of [this
Court] on appeal is to determine whether the approach used by the trial court
reasonably approximated' the value of the asset at the date of separation." Fountain
v. Fountain, 148 N.C. App. 329, 338, 559 S.E.2d 25, 32 (2002) (quoting Poore v. Poore,
75 N.C. App. 414, 419, 331 S.E.2d 266, 270 (1985)). If it appears that " ‘the trial court
reasonably approximated the net value of the [asset] . . . based on competent evidence
and on a sound valuation method or methods, the valuation will not be disturbed.' "
Id. (quoting Poore, 75 N.C. App. at 422, 331 S.E.2d at 272). Although plaintiff urges
that the trial court should have adopted his methodology rather than defendant's, the
trial court's adopted approach appears to apply sound techniques and relies upon
competent evidence to "reasonably approximate[]" the value of plaintiff's PwC
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Opinion of the Court
partnership interest. Plaintiff has, therefore, failed to demonstrate that the trial
court erred in valuing his partnership interest.
Conclusion
We affirm the trial court's custody order. We further affirm the trial court's
child support order requiring plaintiff to pay his children's private school tuition at
PDS in full upon due according to a payment plan allowed by PDS on a prospective
basis until changed circumstances or further review. However, because we find that
the trial court's orders regarding child support and equitable distribution were not
fully supported by appropriate findings of fact, we reverse these orders and remand
for further findings of fact as to the following: (1) defendant's paternal inheritance,
both as to the child support and equitable distribution orders, (2) defendant's ability
to reimburse plaintiff for 25% of their children's PDS tuition, (3) the clerical error in
Finding of Fact No. 183 of the child support order, erroneously requiring plaintiff pay
$4,000.00 per month to defendant in child support for the period from 1 June 2007
through June 2009, and (4) the inconsistency between Findings of Fact Nos. 108 and
194 in the child support order regarding plaintiff's payment of private school tuition
for the 2007-2008 school year. We leave the decision regarding whether to hear
additional evidence to the sound discretion of the trial judge.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Judges BRYANT and TYSON concur.
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