NO. COA13-1364
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
KIRK ZUROSKY,
Plaintiff-Appellant,
v. Mecklenburg County
No. 09 CVD 30462
ALYSON G. SHAFFER,
Defendant-Appellee.
Appeal by plaintiff from judgment and order entered on 8
November 2013 by Judge Paige B. McThenia in Mecklenburg County
District Court. Heard in the Court of Appeals 8 May 2014.
Marshall & Taylor, P.C., by Travis R. Taylor, for
Plaintiff-Appellant.
Hamilton Stephens Steele + Martin, PLLC, by Amy Simpson
Fiorenza, for Defendant-Appellee.
HUNTER, JR., Robert N., Judge.
Kirk Zurosky (“Zurosky”) appeals from a judgment and order
entered on 8 November 2013. Zurosky argues (i) the trial court
erred in its distribution of marital property, and (ii) the
trial court erred in its ordering of alimony and child support.
After careful review, we affirm in part and reverse and remand
in part.
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I. Facts & Procedural History
Zurosky and Alison Shaffer (“Shaffer”) married on 1 July
1995. Zurosky and Shaffer have two children. In December 2008,
Zurosky stated his intention to leave the marital home. On 21
January 2009, the parties entered into an interim agreement
(“Interim Agreement”) which addressed the parties’ separation,
addressed the parties’ financial responsibilities, and provided
a temporary shared custody schedule for their two children. On
22 January 2009, the couple separated and Zurosky left the
marital home.
Zurosky initiated the present lawsuit on 3 December 2009
and sought temporary and permanent child custody, equitable
distribution, and a psychological evaluation of Shaffer. The
complaint alleged Shaffer did not allow Zurosky to see his
children according to the terms of the Interim Agreement.
Shaffer filed an answer on 24 February 2010 generally denying
the complaint’s allegations and asserting counterclaims seeking
child custody, child support, sequestration1 of both the
Providence Glen home (the marital home) and a black Lexus SUV,
postseparation support, alimony, equitable distribution,
1
“The process by which property is removed from the possessor
pending the outcome of a dispute in which two or more parties
contend for it.” Black’s Law Dictionary 1488 (9th ed. 2009).
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attorney’s fees, and requested an appraisal of Zurosky’s
interest in T&Z. Zurosky and Shaffer divorced in June 2010.
On 28 June 2010, the trial court held a hearing concerning
temporary child support (“TCS”) and post-separation support
(“PSS”). On 6 August 2010, the initial equitable distribution
pretrial conference scheduling and discovery order was entered.
In compliance with this order, the parties filed equitable
distribution affidavits, which were amended prior to entry of
the final pre-trial order (“FPTO”). The FPTO contained
stipulations and contentions regarding twenty-five marital and
separate property items, seven marital and separate debt items,
and six divisible property items. On appeal, Zurosky contends
that the trial court did not comply with the FPTO with respect
to five of those items: the value and distribution of two
airline miles accounts, insurance policy disbursements, and tax
refunds.
On 31 August 2011, the trial court entered a TCS and PSS
order. On 7 September 2011, Zurosky filed a motion to alter or
amend the TCS and PSS Order. On 21 October 2011, Zurosky filed
a motion for sanctions, which was granted in part against
Shaffer for failing to produce documents in a timely manner and
comply with discovery requests.
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The trial court held hearings and took evidence regarding
custody, equitable distribution, permanent child support, and
alimony from November 2011 to June 2012. The trial court
received testimony from both parties, business valuation
experts, real estate appraisal experts, furniture appraisers,
jewelry appraisers, family members, friends, coworkers, and
employees. On 10 April 2013, Judge McThenia entered an
Equitable Distribution Judgment and Permanent Child Support and
Alimony Order (“April Judgment & Order”).
In the trial court’s April Judgment & Order, the trial
court referenced two exhibits. Exhibit A shows the distribution
and value of household goods and Exhibit B shows the
distribution of marital and divisible assets and liabilities.
Neither exhibit was attached to the April Judgment & Order.
On 7 May 2013, Zurosky appealed the April Judgment & Order.
On 17 May 2013, Shaffer also appealed the April Judgment &
Order. Shaffer filed a Motion for Rule 60 Relief on 29 July
2013 to correct a clerical mistake in the April Judgment &
Order. The motion alleged the trial court failed to attach
certain exhibits to the April Judgment & Order. The motion was
granted on 8 November 2013.
Following the appeals and Motion for Rule 60 Relief, the
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trial court entered an Amended Equitable Distribution Judgment
and Permanent Child Support and Alimony Order (“Amended Judgment
& Order”) on 8 November 2013, nunc pro tunc to 8 April 2013.
The Amended Judgment & Order equitably distributed all marital
property and contained 415 separate findings of fact. The trial
court concluded an unequal distribution in favor of Shaffer, as
outlined in the Amended Judgment & Order and attached exhibits,
was equitable to both parties. In making its determination, the
trial court made several findings addressing the factors laid
forth in N.C. Gen. Stat. § 50-20(c) (2013):
(1) The income, property, and liabilities of
each party at the time the division of
property is to become effective.
Plaintiff/Husband’s income greatly exceeded
that of Defendant/Wife during the marriage
and since the DOS. Unless something
unexpected happens, Plaintiff/Husband’s
income is likely to always remain ten (10)
to twenty (20) times higher than that of
Defendant/Wife. This is perfectly
illustrated by his 2012 distributions, which
indicate that in one month Plaintiff/Husband
grossed more than Defendant/Wife did in the
entire 2011 year. Additionally,
Plaintiff/Husband is now sharing the
Providence Glen Home with Ms. Zurosky, who
is an attorney who earns a substantial
income of her own and can contribute to
Plaintiff/Husband’s future shared expenses.
Not only does Plaintiff/Husband’s income
exceed that of Defendant/Wife, but also his
career growth potential is also far greater
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than that of Defendant/Wife. Defendant/Wife
has a very specialized area of practice
(i.e., behavioral analysis and work with
children on the autism spectrum). She is
always going to be limited by time and
travel restraints and a market which
continues to limit her area of
specialization.
The Court considered the property and
liabilities of the parties at the time of
the division of the property as is shown on
Exhibits “A” and “B.” The facts found below
are all that could be determined by the
preponderance of the evidence. The property
in the exhibits includes property to be
distributed to the parties which is still in
existence but does not include any
distributive award which may be determined
by consideration of these factors.
As evidenced in the attached exhibits, the
assets of Plaintiff/Husband exceed those of
Defendant/Wife.
(3) The duration of the marriage and the age
and physical and mental health of both
parties.
The duration of the marriage is thirteen and
one half (13 1/2) years.
Defendant/Wife is four (4) years older than
Plaintiff/Husband.
Plaintiff/Husband is in excellent health.
Defendant/Wife has health issues including
asthma, chronic pain coupled with a skin
disorder. It is anticipated that
Defendant/Wife will only be able to manage
these conditions as she ages, and that she
will never be able to cure them. It is
reasonable to assume that these painful
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conditions will not subside in the future
and will likely impair, to some extent, her
ability to function effectively and/or her
quality of life in the future.
(4) The need of a parent with custody of a
child or children of the marriage to occupy
or own the marital residence and to use or
own its household effects.
Both parties have the minor children with
them fifty percent (50%) of the time; but,
Plaintiff/Husband has the former marital
residence and will keep it for which the
children will benefit. Plaintiff/Husband
has sufficient household goods to maintain a
comfortable living with the minor children
in the Providence Glen Home.
(5) The expectation of pension, retirement,
or other deferred compensation rights that
are not marital property.
Plaintiff/Husband has a higher expectation
of pension, retirement or other deferred
compensation rights as co-owner of a law
firm that maintains a 401K plan for all
employees.
Defendant/Wife is self-employed and does not
have access to a 401K plan, nor does she
have a way to fund a retirement plan similar
to that of Plaintiff/Husband. The only way
she can fund a retirement plan is through
savings.
(6) Any equitable claim to, interest in, or
direct or indirect contribution made to the
acquisition of such marital property by the
party not having title, including joint
efforts or expenditures and contributions
and services, or lack thereof, as a spouse,
parent, wage earner or homemaker.
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Defendant/Wife moved from Massachusetts to
North Carolina with Plaintiff/Husband to
support him in his dream to become a
successful lawyer and to own his own firm.
While in North Carolina, she helped
Plaintiff/Husband build his law firm and
make it as successful as it is today by
taking care of the family and the home so
that Plaintiff/Husband could focus on
excelling in his career. Defendant/Wife
supported Plaintiff/Husband emotionally,
financially, and in any other way he asked
her to help. In so doing, Defendant/Wife
sacrificed her ability to excel to the
fullest level in her career.
(7) Any direct or indirect contribution made
by one spouse to help educate or develop the
career potential of the other spouse.
See Factor (6) above.
(9) The liquid or nonliquid character of all
marital property and divisible property.
The primary liquid assets (the savings
account and the CD) have all been spent but
for the substantial savings account
maintained by the partners in T&Z (estimated
to be in excess of $1,000,000).
(10) The difficulty of evaluating any
component asset or any interest in a
business, corporation or profession, and the
economic desirability of retaining such
asset or interest, intact and free from any
claim or interference by the other party.
The primary liquid assets were the CD and
BOA 4906 and 5460 (which have all been spent
already). The primary asset is
Plaintiff/Husband’s interest [in] T&Z,
(which is complicated to value but which is
economically desirable to keep given the
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firm’s profit margins).
Because of the downgrade in the residential
real estate market, Plaintiff/Husband is
going to be able to take both the Providence
Glen Home and the Blowing Rock Home at a
[sic] artificially low values. However,
both of these assets have growth potential
prospectively (and Plaintiff/Husband must
agree with this assessment or else he would
not have spent well over $100,000 in
improving the Providence Glen Home
cosmetically).
Since the DOS, Defendant/Wife has had to
spend thousands of dollars to move herself
and her furniture twice, [footnote omitted]
and she will have to move a third time once
she finds a permanent residence.
(11)(a) Acts of either party to maintain,
preserve, develop, or expand; or to waste,
neglect, devalue or convert the marital
property or divisible property, or both,
during the period after separation of the
parties and before the time of distribution.
Defendant/Wife has been forced to spend the
money she took from the CD to pay certain
regular living expenses (for which
Plaintiff/Husband was providing no support)
and to defend herself in this protracted
litigation. Defendant/Wife has had to pay
in excess of Sixty Thousand Dollars and
no/100 ($60,000) in noncompensable expert
witness fees (only the trial time for with
[sic] Mr. McDonald, Ms. Phillips, and Mr.
Mitchell is compensable). Defendant/Wife
will have incurred over Two Hundred Thousand
Dollars and no/100 ($200,000) to try the
issues in this case in the court system.
(12) Any other factor which the court finds
to be just and proper.
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Plaintiff/Husband is requesting that this
Court award him all of the significant
marital assets and allow him to enjoy all
that he enjoyed during the marriage and
more. All the while, Defendant/Wife has
struggled to meet him on an even playing
field and has not been allowed to enjoy a
fraction of what she enjoyed during the
marriage.
Plaintiff/Husband has not been fully
cooperative in the process of valuing his
interest in T&Z. As a result,
Defendant/Wife has had to spend substantial
amounts of time and money she does not have
trying to get to the truth about
Plaintiff/Husband’s business and future
revenue potential. The trial itself has
been time-consuming and expensive on all
levels for Defendant/Wife. Plaintiff/Husband
is being represented by Ms. Wallace, hislong
[sic] time friend,. [sic]
Plaintiff/Husband testified that to date
that [sic] he has only paid Ms. Wallace
Fifty Thousand Dollars and no/100 ($50,000),
which the Court notes (from having first
hand experience of Ms. Wallace’s hourly rate
and attorney’s fess [sic] bills) is
extremely inexpensive (particularly in a
contentious case such as this for which we
have been in Court more than three (3) weeks
in-the [sic] last eight (8) months).
The trial court awarded a total of $6,800 per month in
permanent alimony to Shaffer and a total of $4,604 per month in
child support to Shaffer. The trial court also held that
Zurosky owed Shaffer $77,903 in retroactive child support from
the date of the filing of his complaint, 3 December 2009, to 29
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June 2012.2 The missing exhibits from the April Judgment were
attached to the Amended Judgment & Order.
In its equitable distribution of property, the trial court
assessed the date of separation (“DOS”) and date of distribution
(“DOD”) value of the Blowing Rock Home. The Blowing Rock Home
is owned by Zurosky and his law partner Andre Tippens (“Mr.
Tippens”) as tenants in common. In its equitable distribution
order, the trial court found that
114. At all times prior to the initiation of
this lawsuit, Defendant/Wife believed that
her name was on the deed to the Blowing Rock
Home. Defendant/Wife had given
Plaintiff/Husband a Power of Attorney to
sign her name at closing, but she had no
idea that she was never listed on the deed.
. . .
117. During the marriage, Mr. Tippens used
the house very rarely (no more than three
(3) times since the residence was
purchased). Instead, the parties and their
children occupied the residence the majority
of the time and frequently. The parties used
the Blowing Rock Home as their primary
vacation spot and spent weekends and
holidays in the mountains. The Blowing Rock
Home served a specific purpose for the
parties, in that Defendant/Wife’s chronic
pain condition (which is described in
greater detail hereinafter) was alleviated
in colder/milder climates so that she tended
2
In the record, the trial court states the date of the filing of
the complaint as 3 December 2009. However, the complaint was
filed on 23 December 2009.
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to feel much better physically while
visiting the Blowing Rock Home.
. . .
119. Although Plaintiff/Husband testified
multiple times that the Blowing Rock Home is
the “T&Z firm” house, it is not the firm’s
asset or business property. It was not and
currently is not used for business, and it
serves no legitimate business purpose. It
was not considered or valued as an asset of
T&Z by either valuation expert.
120. The reality is that the Blowing Rock
Home was Plaintiff/Husband and
Defendant/Wife’s personal vacation residence
which Mr. Tippens pays for but used only
infrequently prior to the DOS and has used
no more frequently since the DOS.
121. The Court finds it credible that the
only reason Defendant/Wife’s name was not
placed on
the deed was because she was pregnant with
[the parties’ daughter] and did not
participate in the closing or closing
process. While this was not done
intentionally to exclude Defendant/Wife, the
result has been that Defendant/Wife has had
no legal right to access the Blowing Rock
Home since an unrelated third party owner,
Mr. Tippens, has not allowed her access any
more than has Plaintiff/Husband.
122. In the summer of 2009,
Plaintiff/Husband locked Defendant/Wife out
of the Blowing Rock
Home and instructed her that she was no
longer permitted to access, use, or enjoy
the Blowing Rock Home. This has been
difficult for Defendant/Wife not only
because the Blowing Rock Home was a refuge
from the heat for her, and it was a place
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she enjoyed vacationing with her children.
123. After restricting Defendant/Wife’s
access to the Blowing Rock Home,
Plaintiff/Husband has continued to use it
himself together with [Zurosky’s current
wife], her children, and his children at
various times. Plaintiff/Husband has no
restrictions on his use of the home and will
continue to enjoy the benefits of this
vacation residence because Plaintiff/Husband
and Mr. Tippens do not intend to sell the
Blowing Rock Home or to use it as a rental.
The parties also stipulated that the fair market value of the
Blowing Rock Home decreased by $123,000 from the DOS to the DOD.
The trial court found this decrease was divisible property and
distributed the decrease to Shaffer, although Zurosky received
the Blowing Rock Home.
In evaluating the value of the law firm, both parties
submitted expert appraisals of T&Z and proposed valuations in
the FPTO. In the FPTO, Zurosky contended the value of the firm
was $830,000 (DOS) and $450,000 (as of the FPTO); Schaffer,
contended the value to be $1,038,000 (DOS) and $554,000 (as of
the FPTO). In her order, the trial court agreed with Shaffer’s
expert that the DOS value of T&Z was $1,038,000 but found no
credible evidence presented regarding the DOD value. Lacking
such evidence the court held the DOS value of T&Z to be
determinative of the DOD value.
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The trial court also relied on jewelry valuations provided
by Shaffer rather than expert testimony provided by Zurosky.
Seven items of jewelry were considered in the equitable
distribution order. The parties stipulated in the FPTO that all
of the jewelry was marital property. Shaffer contended the
total value of all jewelry items was $21,525 as of the DOS;
Zurosky contended the total value was $74,060. Shaffer
contended for the same values on the DOD; Zurosky contended for
the same DOD values, except concerning Item E-13, a Tiffany
brand platinum and diamond pendant. Zurosky contended that Item
E-13 appreciated $450 from DOS to DOD. The trial court accepted
Shaffer’s valuations of all the jewelry, and all of the items of
jewelry were distributed to Shaffer, except Item E-14 (a
stainless steel and gold Rolex watch) that Zurosky received.
In its order, the trial court expressed concerns about the
credibility of the evidence presented by Mr. Zurosky concerning
his income.3 Due to these concerns, the trial court relied on
prior years’ incomes rather than Zurosky’s testimony concerning
DOD income.
Zurosky filed timely written notice of appeal on 8 November
3
In his financial affidavits, Zurosky reported a $16,000 deficit
each month between his income and expenses. The trial court
found the numbers submitted by Zurosky were inconsistent with
his actual financial condition.
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2013.
II. Jurisdiction & Standard of Review
This Court has jurisdiction over Defendant’s appeal because
the equitable distribution judgment and child support and
alimony orders are final judgments of a district court in a
civil action under N.C. Gen. Stat. § 7A-27(b)(2) (2013).
Zurosky’s issues on appeal concern equitable distribution,
alimony, and child support; all of these issues are reviewed
under an abuse of discretion standard. Wieneck-Adams v. Adams,
331 N.C. 688, 691, 417 S.E.2d 449, 451 (1992) (“Equitable
distribution is vested in the discretion of the trial court and
will not be disturbed absent a clear abuse of that
discretion.”); Kelly v. Kelly, ___ N.C. App. ___, ___, 747
S.E.2d 268, 272 (2013); Leary v. Leary, 152 N.C. App. 438, 441,
567 S.E.2d 834, 837 (2002) (citing White v. White, 312 N.C. 770,
777, 324 S.E.2d 829, 833 (1985)).
“Only a finding that the judgment was unsupported by reason
and could not have been a result of competent inquiry, or a
finding that the trial judge failed to comply with the
statute . . . will establish an abuse of discretion.” Wieneck-
Adams, 331 N.C. at 691, 417 S.E.2d at 451 (internal citations
omitted).
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III. Analysis
A. Equitable Distribution Judgment
Pursuant to the North Carolina Equitable Distribution Act,
the trial court is required to determine whether the property is
marital or divisible and “‘provide for an equitable distribution
of the marital property and divisible property between the
partie[s].’” Mugno v. Mugno, 205 N.C. App. 273, 276–77, 695
S.E.2d 495, 498 (2010) (quoting N.C. Gen. Stat. § 50-20 (2009)).
The trial court must follow a three-step analysis in making an
equitable distribution: “(1) identify the property as either
marital, divisible, or separate property after conducting
appropriate findings of fact; (2) determine the net value of the
marital property as of the date of the separation; and (3)
equitably distribute the marital and divisible property.” Id.
at 277, 695 S.E.2d at 498.
Marital property is
all real and personal property acquired by
either spouse or both spouses during the
course of the marriage and before the date
of the separation of the parties, and
presently owned, except property determined
to be separate property or divisible
property in accordance with subdivision (2)
or (4) of this subsection. Marital property
includes all vested and nonvested pension,
retirement, and other deferred compensation
rights, and vested and nonvested military
pensions eligible under the federal
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Uniformed Services Former Spouses’
Protection Act. It is presumed that all
property acquired after the date of marriage
and before the date of separation is marital
property except property which is separate
property under subdivision (2) of this
subsection. It is presumed that all real
property creating a tenancy by the entirety
acquired after the date of marriage and
before the date of separation is marital
property. Either presumption may be rebutted
by the greater weight of the evidence.
N.C. Gen. Stat. § 50-20(b)(1) (2013). Divisible property
includes
a. All appreciation and diminution in value
of marital property and divisible property
of the parties occurring after the date of
separation and prior to the date of
distribution, except that appreciation or
diminution in value which is the result of
postseparation actions or activities of a
spouse shall not be treated as divisible
property.
b. All property, property rights, or any
portion thereof received after the date of
separation but before the date of
distribution that was acquired as a result
of the efforts of either spouse during the
marriage and before the date of separation,
including, but not limited to, commissions,
bonuses, and contractual rights.
c. Passive income from marital property
received after the date of separation,
including, but not limited to, interest and
dividends.
d. Passive increases and passive decreases
in marital debt and financing charges and
interest related to marital debt.
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N.C. Gen. Stat. § 50-20(b)(4)(2013). Regarding the distribution
phase, “there shall be an equal division by using net value of
marital property and net value of divisible property” unless
that result would be inequitable. N.C. Gen. Stat. § 50-20(c).
“However, the trial court may conclude, within its discretion,
that unequal distribution is equitable after considering the
factors listed in N.C. Gen. Stat. § 50–20(c) and making
sufficient findings of fact to support its conclusion.” Mugno,
205 N.C. App. at 277, 695 S.E.2d at 498; see also discussion of
Section 50-20(c) factors supra.
Zurosky argues the trial court erred in its equitable
distribution order by (1) distributing the diminution in value
of the Blowing Rock Home between DOS and DOD to Shaffer; (2)
attaching exhibits to the order that were inconsistent with the
written judgment; (3) deviating from the stipulations of the
parties in the FPTO; (4) calculating the diminution in value
between the DOS and DOD of Zurosky’s interest in T&Z; and (5)
erroneously calculating the value of the parties’ jewelry. We
address each in turn.
1. Diminution in Value of the Blowing Rock Home
In the FPTO, the parties assigned $568,000 as the DOS fair
market value of the entire Blowing Rock Home and $445,000 as the
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DOD fair market value of the Blowing Rock Home, owned by Zurosky
and his law partner Mr. Tippens as tenants-in-common. The trial
court classified Zurosky’s one-half tenant-in-common interest in
the Blowing Rock home as marital property. Zurosky and Mr.
Tippens continued to pay the Blowing Rock Home’s mortgage from
DOS to DOD. On the DOD, the outstanding mortgage balance on the
Blowing Rock Home was $411,959.00. The net equity of the
Blowing Rock Home on the DOD was distributed to Zurosky. The
marital estate’s portion of the passive loss ($61,500) was
classified as divisible property and was distributed to Ms.
Shaffer.
In distributing the passive loss, the trial court relied on
Wirth v. Wirth, 204 N.C. App. 372, 696 S.E.2d 202, 2010 WL
2163367 (2010) (unpublished) (“Wirth II”).4 Zurosky argues that
relying on this case was erroneous because it was an unpublished
decision of this court and because the “plain language of N.C.
Gen. Stat. § 20(b)(4)” presumes that the diminution in value of
a marital asset is divisible unless the trial court finds that
the change was the result of postseparation actions taken by one
spouse. Wirth v. Wirth, 193 N.C. App. 657, 668 S.E.2d 603
4
The trial court wrote in its order “Wirth v. Wirth, 204 NC 372,
696 S.E.2d 202 (2010),” apparently intending to refer to the
unpublished decision of this court cited above.
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(2008) (“Wirth I”).5
Zurosky contends on appeal that the trial court’s decision
with respect to this issue was erroneous because it was
manifestly unsupported by reason such that the evidence reveals
no rational basis for the distribution. Zurosky contends that
there is a legal presumption that all appreciation and
diminution in value of the marital and divisible property must
be distributed with the property unless the court finds that the
change in value is attributable to the postseparation actions of
one spouse. Essentially, Zurosky argues that since the court
distributed the Blowing Rock property to him, its diminution in
value should also have been distributed to him absent a court
finding of misconduct on his part. We disagree.
In making its equitable distribution, the trial court
relied extensively on the Section 50-20(c) factors and cited
competent evidence in support of its findings, quoted in their
entirety supra. The trial court also cited Wirth II to support
the distribution of the diminution in value to Shaffer despite
the fact that Shaffer did not receive the property. Although
Wirth II is an unpublished opinion, an unpublished opinion may
5
Zurosky cites N.C. Gen. Stat. § 20(b)(4) (2013) in his brief,
which is clearly a typographical error. We assume Zurosky
intended to cite N.C. Gen. Stat. § 50-20(b)(4), which includes
the definition of divisible property and is quoted supra.
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be used as persuasive authority at the appellate level if the
case is properly submitted and discussed and there is no
published case on point. State ex rel. Moore Cnty. Bd. Of Educ.
v. Pelletier, 168 N.C. App. 218, 222, 606 S.E.2d 907, 909
(2005); CaroMont Health, Inc. v. N.C. Dep’t of Health & Human
Servs. Div. of Health Serv. Regulation, Certificate of Need
Section, ___, N.C. App. ___, ___, 751 S.E.2d 244, 255 (2013).
We see no reason why this principle should not apply in the
trial courts and agree that Wirth II supports the trial court’s
decision.
In Wirth II, this Court approved a distribution of the
entire passive loss of an asset to the party that did not
receive the asset. 2010 WL 2163367 at *5. The asset at issue
was a general contracting business. Id. at *1. The defendant
in Wirth II argued, much like Zurosky, that “when dealing with
divisible property consisting of post date of separation
diminution in value of an asset, the trial court should always
distribute the divisible property to the same party to whom the
marital asset is distributed.” Id. at *5 (alterations omitted).
Wirth II noted that the defendant in that case, as here,
did not cite authority requiring the trial court to distribute
an entire passive loss to “to the party who received the
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depreciated asset.” Id. Wirth II is also persuasive because it
recognized the premise upon which equitable distribution awards
are based, namely that assets in an equitable distribution are
to be considered in their totality, that equitable distribution
of marital and divisible property is within a trial court’s
discretion, and that the division is performed under equitable
principles that are, “inter alia, ‘consistent with principles of
justice and right.’” Id. at *6 (quoting Black’s Law Dictionary
617 (9th ed. 2004)). As in Wirth II, “[i]n some circumstances,
it is certainly most appropriate that a divisible loss should be
distributed to the party who has received the related asset.
However, in light of the entire equitable distribution judgment,
the previous opinion of this Court, and the record before us, we
cannot now say that the trial court abused its discretion” in
distributing the entire passive loss to Shaffer as part of its
equitable distribution judgment. Id. (emphasis added).
However, the trial court did not have to rely solely upon
Wirth II and its reliance upon that decision was essentially
lagniappe offered to provide an example in which this Court had
approved distributing the passive loss associated with an asset
to the party who did not receive the asset in question as part
of an equitable distribution judgment. Since the trial court
-23-
considered the Section 50-20(c) factors, discussed supra, and
since its findings related to these factors were supported by
competent evidence, it was within the trial court’s discretion
to distribute the loss to Shaffer so the trial court did not err
in doing so.
Because the trial court conducted the proper analysis under
N.C. Gen. Stat. § 50-20(c) and its conclusions were supported by
findings that were, in turn, supported by competent evidence,
the trial court did not abuse its discretion by distributing the
diminution in value to Shaffer despite the fact that Zurosky
received the asset. We do not find the statutory presumption
contained in N.C. Gen. Stat. § 50-20(b) to be of assistance to
Zurosky, since the statute explicitly allows appreciation and
diminution to be characterized as “divisible,” and since the
trial court specifically found that the diminution in value at
issue here was divisible property. As such, appreciations and
diminutions may be divided among the parties, even if the asset
is distributed to one party while the passive loss is
distributed to another. Accordingly, we affirm the trial
court’s distribution of the diminution in value of the Blowing
Rock Home to Shaffer.
2. Attached Exhibits
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Zurosky next argues that the trial court erred in attaching
exhibits that were inconsistent with the decretal provisions in
the Amended Judgment & Order. We agree.
Clerical mistakes are “mistakes in judgments, orders or
other parts of the record and errors therein arising from
oversight or omission . . . .” N.C. R. Civ. P. 60. A clerical
error is defined as “[a]n error resulting from a minor mistake
or inadvertence, esp[ecially] in writing or copying something on
the record, and not from judicial reasoning or determination.”
State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878
(2000) (citation and quotation marks omitted). “When, on
appeal, a clerical error is discovered in the trial court’s
judgment or order, it is appropriate to remand the case to the
trial court for correction because of the importance that the
record speak the truth.” State v. Smith, 188 N.C. App. 842,
845, 656 S.E.2d 695, 696–97 (2008) (citations and quotations
marks omitted).
Here, the trial court attached a version of Exhibit B to
the Amended Judgment & Order that did not correspond with the
findings of fact and decretal section in the Amended Judgment &
Order. In Exhibit B, the trial court awarded Shaffer fifty-five
percent of the property and a distributive award of $771,620.
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However, in the findings of fact and decretal section, the trial
court awarded Shaffer an equal distribution of property and a
distributive award of $647,965.50 (after Rule 37 Sanctions). In
the Amended Judgment & Order, the trial court referenced the
distributions outlined in both the findings of fact and Exhibit
B, which conflict.
While Zurosky urges this Court to vacate the order in its
entirety, we decline the invitation. Although we agree Exhibit
B conflicts with the distribution described in the order, the
errors do not merit vacating the order in its entirety. The
errors made by the trial court are more properly considered
clerical errors. Accordingly, we remand this case to the trial
court to correct any inconsistencies between Exhibit B and the
order.
3. Deviation from the FPTO
Zurosky next argues the trial court erred in its
distribution of property because the trial court failed to
adhere to stipulations concerning five items contained in the
FPTO. We agree with respect to the 2009 tax returns, but
disagree concerning the other four items discussed by Zurosky.
N.C. Gen. Stat. § 50-20(d) (2013) provides:
Before, during or after marriage the parties
may by written agreement, duly executed and
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acknowledged in accordance with the
provisions of G.S. 52-10 and 52-10.1, or by
a written agreement valid in the
jurisdiction where executed, provide for
distribution of the marital property or
divisible property, or both, in a manner
deemed by the parties to be equitable and
the agreement shall be binding on the
parties.
Where an agreement provides for distribution of the parties’
marital or divisible property, or both types of property, the
agreement will be enforced. Brenenstuhl v. Brenenstuhl, 169
N.C. App. 433, 435–36, 610 S.E.2d 301, 303 (2005). In such
agreements, parties may stipulate to the classification, value
and distribution of property. See Sharp v. Sharp, 116 N.C. App.
513, 521, 449 S.E.2d 39, 43 (1994). Further:
Courts look with favor on stipulations
designed to simplify, shorten, or settle
litigation and save cost to the parties, and
such practice will be encouraged. While a
stipulation need not follow any particular
form, its terms must be definite and certain
in order to afford a basis for judicial
decision, and it is essential that they be
assented to by the parties or those
representing them. Once a stipulation is
made, a party is bound by it and he may not
thereafter take an inconsistent position.
Stovall v. Stovall, 205 N.C. App. 405, 409, 698 S.E.2d 680, 683
(2010) (citations, quotation marks, and alterations omitted)
(emphasis added). Stipulations are also considered in the same
manner as a typical contract between two parties. Id. at 409–
-27-
10, 698 S.E.2d at 684.
Here, Zurosky argues the trial court departed from the FPTO
regarding: (1) the reward points associated with the Merrill
Accolades American Express Rewards charge card (“Item L-23”);
(2) the miles and debt related to the US Airways Dividend Miles
charge card (“Item L-24”); (3) the miles and debt related to a
second US Airways Dividend Miles charge card (“Item L-25”)6; (4)
the disbursement from the Northwestern Mutual Policy #6959
(“Item I-18”); and (5) 2009 state and federal tax refunds. We
address each item below.7
(i) Item L-23 – Merrill Accolades Reward Points
The trial court found that the reward points associated
with Item L-23 were marital property; however, the trial court
did not distribute this asset. The trial court found that it
could not value Item L-23 on the DOS, so the property remained
with the titled owner and was not distributed.
In the FPTO, the parties stipulated that Item L-23 was
6
The charge cards in L-24 and L-25 were related to separate
accounts.
7
Zurosky does not argue that the trial court erred in failing to
distribute the property, but only that the order was incorrect
because it did not adhere to the stipulations concerning each
piece of property. As such, we do not address whether the trial
court erred in choosing not to assign a value to these five
items, but only whether the trial court erred in not enforcing
the stipulations associated with each item.
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marital, but otherwise did not reach an agreement about it.
Zurosky contended Item L-23 had no value both on the DOS and at
present. Shaffer, on the other hand, contended the DOS and
current values of Item L-23 were forty-eight dollars. Zurosky
also contended that he should receive Item L-23, while Shaffer
contended Item L-23 should be distributed to both herself and
Zurosky.
The foregoing constitutes ample evidence showing the
parties disagreed as to the value and distribution of Item L-23.
The trial court made the determination that the parties agreed
on, namely that Item L-23 was marital property. Accordingly, we
hold the trial court did not err with respect to Item L-23.
(ii) Item L-24 – US Airways Dividend Miles #1
The trial court found that Item L-24 was marital property,
but did not distribute Item L-24. Instead the trial court left
Item L-24 with its titled owner, Shaffer. The court could not
determine the DOS number or value of Item L-24. In the FPTO,
the parties agreed Item L-24 was marital and should be
distributed to Shaffer. However, the parties did not agree
about the associated value of the miles. Zurosky contended that
the airline miles’ value as of the DOS and current value was
unknown. Shaffer contended Item L-24 had no value on the DOS
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and nor did it have value currently.
As with Item L-23, the foregoing provides ample evidence to
show the parties did not fully stipulate to the value of Item L-
24. The trial court enforced the portion of the FPTO that the
parties agreed on, that Item L-24 was marital property and that
Shaffer should receive the property. Accordingly, the trial
court did not err with respect to Item L-24.
(iii) Item L-25 US Airways Dividend Miles #2
The trial court found that Item L-25 was marital property
and split the property equally between the titled owners. In
the FPTO, the parties agreed that Item L-25 was marital.
However, the parties did not agree as to the value or
distribution of Item L-25. Zurosky contended both the DOS and
current value of the property was zero dollars. Shaffer did not
assign a DOS or current value for the property and marked “TBD”
(to be determined) for the value. Zurosky contended that he
should receive the property. Shaffer contended the property
should be distributed to both parties.
The trial court found the property was marital, as agreed
to in the FPTO. However, as with Item L-23 and Item L-24, the
foregoing is ample evidence to show the parties did not fully
stipulate to the value or distribution of Item L-25.
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Accordingly, the trial court did not err with respect to Item L-
25.
(iv) Item I-18 – Northwestern Mutual Policy
The trial court classified Item I-18 as marital property
and made a series of interim distributions after DOS but prior
to DOD. The trial court distributed $17,377 of the policy to
Zurosky, which he used to pay the real property taxes associated
with the Providence Glen Home. The order allowing this
disbursement to Zurosky was made for the purpose of satisfying
the property tax obligations associated with the former marital
home. Within the order allowing this disbursement, the parties
also “reserve[d] the right to argue as to the classification and
distribution of the funds at the Equitable Distribution trial.”
The trial court later distributed $34,000 to Shaffer on 1
November 2011 and $40,000 on 5 November 2011 as part of
equitable distribution.
In its equitable distribution judgment, the trial court
found that Item I-18 was marital property and that the DOD value
of Item I-18 was $18,000, which the trial court distributed to
Shaffer. In finding of fact 111, the trial court also found the
decrease in property tax debt on the Providence Glen Home
($17,502.75) was divisible property and distributed the decrease
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equally between the parties.
The parties stipulated in the FPTO that the DOS value of
Item I-18 was $105,922. The parties also stipulated that
Zurosky and Shaffer should each receive part of Item I-18.
However, the parties did not agree on the current value of Item
I-18. Zurosky valued the property at $18,000, and Shaffer
commented that she had no records concerning the current value
of Item I-18.
Zurosky argues that the trial court’s equal distribution of
the $17,502 decrease in the Providence Glen Home’s property
taxes violated the FPTO. However, in the prior consent order
which allowed the $17,377 disbursement from the insurance policy
to Zurosky, both parties reserved the right to dispute the
classification and distribution of the property. Additionally,
the FPTO includes stipulations concerning Item I-18, not the
decrease in property taxes on the Property Glen Home, which is
what is addressed in the finding of fact that Zurosky contests.
As such, the trial court did not err in distributing the
decrease in property taxes equally, since the parties did not
fully stipulate to the division of the decrease prior to the
equitable distribution judgment and retained the right to
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contest the classification and distribution of the property.8
(v) 2009 Tax Refunds
Finally, the trial court found that the 2009 tax refunds
were “not marital or divisible property.” The trial court found
that Zurosky and Shaffer filed a joint return for their 2009
taxes that provided for any refund to be applied to Zurosky’s
individual 2010 state and federal tax returns. The total tax
refunds from 2009 were $69,919.9
Zurosky and Shaffer both stipulated in the FPTO that the
2009 tax refunds were divisible property.10 The parties did not
stipulate as to the value of the 2009 tax refunds; Zurosky
contended the refund’s value was $4,135 and Shaffer contended
that the refund’s value was $5,827.
Rather than divide the property or make a finding that the
evidence of value was not sufficiently credible to allow
8
The parties also did not fully stipulate to the remaining value
of Item I-18 itself. The trial court correctly classified Item
I-18 according to the parties’ stipulation (specifically that
the property was marital) and distributed the property to
Shaffer.
9
This figure includes $57,321 in federal tax refunds and $12,598
in state tax refunds.
10
In Shaffer’s appellate brief, she also states, “the parties
stipulated that the funds [the tax returns] were
divisible . . . .”
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allocation of the 2009 tax refunds, the trial court found that
the 2009 tax refunds were neither marital nor divisible property
and made no division. This was in error, since the parties
stipulated that this property was divisible. As such, we
reverse and remand this case to the trial court to reclassify
the property as divisible and to distribute the property if
there is credible evidence supporting the value of the asset.11
4. Valuation of T&Z
In an equitable distribution case, the trial court is the
fact-finder. Grasty, 125 N.C. App. at 739, 482 S.E.2d at 754.
Fact-finders have a right to believe all, none, or some of a
witness’ testimony. Brown v. Brown, 264 N.C. 485, 488, 141
11
This Court has held that a trial court is obligated to make
specific findings regarding the value of property in an
equitable distribution order. Poore v. Poore, 75 N.C. App. 414,
422, 331 S.E.2d 266, 272, disc. rev. denied, 314 N.C. 543, 335
S.E.2d 316 (1985). However, the obligation to assign a value to
marital property in an equitable distribution exists only when
there is credible evidence supporting a finding concerning the
value of the asset. Albritton v. Albritton, 109 N.C. App. 36,
40–41, 426 S.E.2d 80, 83–84 (1993).
Whether evidence is credible is in the discretion of the trial
court. Grasty v. Grasty, 125 N.C. App. 736, 739, 482 S.E.2d
752, 754, disc. rev. denied 346 N.C. 278 (1997). Accordingly, a
trial court is not required to distribute marital property if
there is not sufficient evidence of value. Id; see also 1 N.C.
Family Law Practice § 6:41 (“If the only evidence concerning a
particular asset is ‘wholly incredible and without reasonable
basis’ the asset need not be valued in an equitable distribution
proceeding.”).
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S.E.2d 875, 877 (1965). Subjective opinions about the value of
property are admissible and competent. Responsible Citizens in
Opposition to Flood Plain Ordinance v. City of Asheville, 308
N.C. 255, 271, 302 S.E.2d 204, 214 (1983). An appellate court
should not “second-guess values of . . . property where there is
evidence to support the trial court’s figures.” Crutchfield v.
Crutchfield, 132 N.C. App. 193, 197, 511 S.E.2d 31, 34 (1999)
(citations and quotations omitted). We apply these principles
to both the diminution in value of T&Z as well as the valuation
of the jewelry Zurosky contests.
(a) Active or Passive Changes
Zurosky argues the trial court erred in its distribution of
the diminution in value of T&Z because there was not a finding
that the decrease was an active change. We disagree first that
the trial court erred by deviating from the FPTO, as the parties
did not stipulate to the divisibility of Zurosky’s interest in
T&Z.12 We also disagree with Zurosky’s contention that the trial
court erred in distributing the diminution in value of T&Z to
Shaffer because there was no diminution in value under the trial
court’s equitable distribution judgment.
The trial court specifically found there was no credible
12
Shaffer specifically marked “ND” for Not Divisible in the
FPTO.
-35-
evidence concerning the DOD value of T&Z and accordingly used
the same value at DOS and DOD: $1,038,000. The trial court
stated in finding of fact 264 that there was no need to
determine the active versus passive components of the change in
value from the DOS to the DOD, which is correct because the DOD
and DOS values are equal under the equitable distribution order.
Without a diminution in value, there is not an active or passive
change to consider, and the trial court did not err in choosing
not to determine active or passive components for a net change
of $0 between DOS and DOD. We next consider Zurosky’s arguments
concerning the valuation of T&Z the trial court chose to accept.
(b) DOD Value of T&Z
Zurosky argues the trial court erred in its valuation of
Zurosky’s interest in T&Z. We disagree. Both parties hired
business valuation experts to calculate the value of Zurosky’s
interest in T&Z. Zurosky’s expert, Ms. Foneville, calculated
T&Z’s DOS value as $830,000 and DOD value as $450,000.
Shaffer’s expert, Mr. Mitchell, calculated T&Z’s DOS value as
$1,038,000 and DOD value as $554,000. The trial court accepted
Mr. Mitchell’s estimate for the DOS value of T&Z. The trial
court found Mr. Mitchell’s report addressed excess cash more
thoroughly, contained a more accurate depiction of the owners’
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compensation, and did not contain the errors in calculations
found in Ms. Foneville’s report. The trial court also commented
that Shaffer was at a disadvantage in gathering information
pertaining to T&Z’s value.
However, the trial court declined to accept Ms. Foneville
or Mr. Mitchell’s estimate of the DOD value. The trial court
found the reports to be unreliable because the reports were
dated six months apart and Mr. Mitchell’s report was nine months
old at the DOD. Further, the trial court considered the success
of T&Z in 2012. Both experts computed the DOD value using T&Z’s
2011 numbers. The trial court, finding the DOD values to be
unreliable, chose to distribute the property at the DOS value
($1,038,000).
The trial court did not err in its use of the DOS value of
T&Z. “The credibility of the evidence in an equitable
distribution trial is for the trial court.” Grasty, 125 N.C.
App. at 739, 482 S.E.2d at 754. If the trial court finds
evidence to be unreliable, it does not err in failing to value
that asset using the unreliable evidence. Id. at 739, 482
S.E.2d at 754. Accordingly, it was within the trial court’s
discretion to use T&Z’s DOS value instead of the DOD values
provided by experts.
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5. Valuation of Jewelry
Zurosky next argues the trial court erred in its valuation
of the parties’ jewelry. The trial court relied on jewelry
valuations provided by Shaffer rather than expert testimony
provided by Zurosky. Zurosky’s expert, Joey Stagnone, provided
current values for some of the parties’ jewelry. Stagnone
estimated the current value of the platinum three-stone diamond
ring as ten to twenty thousand dollars more than the DOS value.
Stagnone also assigned a current value of $450 more than the DOS
value for the Tiffany platinum and diamond “pinched heart”
pendant. Shaffer estimated the DOS and current values of the
jewelry to be between twenty-five to thirty percent of the
purchase price. The trial court decided Zurosky’s expert was
not credible. As the fact-finder, the trial court is allowed to
weigh the credibility of testimony. Accordingly, it was within
the trial court’s discretion to rely on Shaffer’s values instead
of the values given by an expert, and the trial court did not
abuse its discretion.
B. Child Support and Alimony Order
1. Computation of Zurosky’s Income
Zurosky next argues the trial court erred in its award of
alimony and child support because the trial court failed to use
-38-
his actual income at the time of the order. We disagree.
A party’s actual income at the time of the order is
typically considered. Megremis v. Megremis, 179 N.C. App. 174,
182, 633 S.E.2d 117, 123 (2006) (citing Kowalick v. Kowalick,
129 N.C. App. 781, 787, 501 S.E.2d 671, 675 (1998)). However,
if a party acts in bad faith (e.g. deliberately depressing
income or excess spending) the trial court may consider a
spouse’s capacity to earn. Id.; Hartsell v. Hartsell, 189 N.C.
App. 65, 77, 657 S.E.2d 724, 731 (2008).
In Diehl v. Diehl, 177 N.C. App. 642, 630 S.E.2d 25 (2006),
the trial court did not make a finding of bad faith or have
evidence that the spouse deliberately depressed his income; the
trial court used prior years’ incomes because the trial court
did not have sufficient evidence regarding his actual income.
Id. at 649–50, 630 S.E.2d at 30–31. In Diehl, the husband’s
numbers were considered “highly unreliable,” forcing the trial
court to rely on previous years’ income. Id. at 650, 630 S.E.2d
at 30.
Here, the trial court did not expressly make a finding of
bad faith or find that Zurosky schemed to deliberately depress
his income. As in Diehl, the trial court expressed concerns
about Zurosky’s reported income and found that Zurosky’s numbers
-39-
were not credible. The trial court did not find Zurosky’s
reported income to be credible for several reasons: (i) Zurosky
overstated his monthly tax payments; (ii) Zurosky reported he
was operating at a significant deficit each month; (iii) Zurosky
did not report a significant amount of spending in his financial
affidavits; and (iv) the evidence conflicted concerning
Zurosky’s work habits post-DOS. To properly determine alimony
and child support, the trial court relied on Zurosky’s net
income from 2003–08 as a reliable statement of his income.
Zurosky argues Godley v. Godley, 110 N.C. App. 99, 429
S.E.2d 382 (1993) controls this case. In Godley, this Court
held the trial court erred by considering a spouse’s income from
1984–88 for purposes of entering a judgment filed in 1991. Id.
at 118, 429 S.E.2d at 393. However, the trial court in Godley
did not find, as here, that the spouse provided unreliable
income figures and expressed no concern about the income
reported at the time of distribution; the trial court simply
chose a different timespan to determine the spouse’s income.
Id. at 118, 429 S.E.2d at 393. Godley simply re-states the
general rule that income at the time of the order is typically
considered, and this Court then applied that general rule. Id.
at 118, 429 S.E.2d at 393; Megremis, 179 N.C. App. at 182, 633
-40-
S.E.2d at 123.
This case is analogous to Diehl, as there were several
concerns expressed by the trial court over the reliability of
Zurosky’s reported income. Zurosky also argues this case is
distinguishable from Diehl because the trial court in Diehl used
income from the two years preceding the order, and in this case,
the trial court used Zurosky’s income over a longer span, from
2003–08. Id. at 650–51, 630 S.E.2d at 31. We also disagree
with this contention; the trial court’s use of Zurosky’s 2003–08
income simply reflects a choice by the trial court to consider
Zurosky’s income before Zurosky had reason to alter the reported
figure. Accordingly, the trial court’s use of Zurosky’s income
between 2003–08 was rational given the state of the evidence and
did not constitute an abuse of discretion.
2. Retroactive Child Support
Zurosky’s final argument is that the trial court erred in
awarding retroactive child support. We disagree and hold there
was sufficient evidence to support the trial court’s award. We
remand to correct certain clerical errors within the trial
court’s order.
N.C. Gen. Stat. § 50–13.4(c) (2013) includes a presumption
that the trial court shall apply the North Carolina Child
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Support Guidelines (“Guidelines”), which are promulgated by the
Conference of Chief District Judges under the authority granted
by N.C. Gen. Stat. § 50-13.4(c1) (2013).13 The Guidelines also
include certain presumptions which place child support orders
outside of the Guidelines. See Loosvelt v. Brown, ___ N.C. App.
___, ___, ___ S.E.2d ___, ___, COA13-747, 2014 WL 3409156 at *7–
8 (2014); see also Guidelines, 2014 Ann. R. N.C. 50, available
at http://www.nccourts.org/forms/documents/1226.pdf. One such
presumption is that “[i]n cases in which 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.” Guidelines, 2014 Ann. R. N.C. 50. Here, the trial
court found as fact that the parties’ combined gross income was
$61,011 per month, placing the parties’ child support
obligations outside of the Guidelines. Neither party disputes
that the present case is properly outside of the Guidelines.
13
We also note that the General Assembly recently passed
legislation which amends the obligation of the Conference of
Chief District Judges to require it to prescribe guidelines for
the computation of child support obligations in retroactive
support cases. See N.C. Sess. Laws 2014-77, § 8. This statute
was effective at the time it was passed, 15 July 2014, and is
not applicable to the present matter.
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Prospective child support is support awarded from the time
a party files a complaint for child support to the date of
trial. Taylor v. Taylor, 118 N.C. App. 356, 361, 455 S.E.2d
442, 446 (1995), rev’d on other grounds, 343 N.C. 50, 468 S.E.2d
33 (1996); see also Carson v. Carson, 199 N.C. App. 101, 105,
680 S.E.2d 885, 888 (2009). For prospective child support in a
non-Guidelines child support case, the trial court must consider
several factors to establish a child support obligation:
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); see also Loosvelt, ___ N.C. App.
at ___, ___ S.E.2d at ___, 2014 WL 3409156 at *6.
Retroactive child support is support “awarded prior to the
time a party files a complaint. . . .” Taylor, 118 N.C. App. at
361, 455 S.E.2d at 446. Retroactive child support has two
varieties, as outlined in Biggs v. Greer, 136 N.C. App. 294, 524
S.E.2d 577 (2000):
The distinction between two types of
retroactive support is pertinent sub judice.
In the absence of an existing child support
order, an amount of child support awarded
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prior to the date a party files a complaint
therefor is properly classified as
retroactive child support and is not based
on the presumptive Guidelines. Although
prospective child support based upon the
presumptive Guidelines requires no factual
findings regarding the child’s reasonable
needs or the supporting parent’s ability to
pay, the trial court must set out specific
findings of fact in a reimbursement award
for retroactive support, so as to reflect
the court’s consideration of the reasonably
necessary actual expenditures under G.S. §
50–13.4(c) made on behalf of the child as
well as the defendant’s ability to pay
during the period in the past for which
retroactive support is sought.
The second type of retroactive child support
is that involved herein, i.e., a retroactive
increase in the amount provided in an
existing support order.
Id. at 300–01, 524 S.E.2d at 583 (citations, alterations, and
quotation marks omitted) (emphasis in original). In the case
sub judice, there is no prior child support order so we apply
the standard applicable to the first variety of retroactive
child support. Accordingly, the trial court applies an
identical standard to both prospective and retroactive child
support payments; the standard outlined in N.C. Gen. Stat. § 50-
13.4(c) that considers the parties’ ability to pay as well as
the reasonably necessary expenses made on behalf of the child.
The trial court ordered child support from 3 December 2009,
the date the trial court listed for the filing of Zurosky’s
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complaint, to 29 June 2012, the final hearing date.14 Shaffer
did not file a complaint seeking child support until 24 February
2010. Thus, there are two periods of child support granted
under the trial court’s order. The first is a retroactive child
support award from 3 December 2009 to 24 February 2010 as listed
on the order. This period is retroactive because it is an award
granted prior to Shaffer’s filing of a child support claim.
Taylor, 118 N.C. App. at 361, 455 S.E.2d at 446. The second
period spans from 24 February 2010 to 29 June 2012, or the
period from the filing of the complaint to the final hearing
date. This is prospective child support. Id.
We must next determine whether the trial court made
sufficient findings under the relevant factors set forth in N.C.
Gen. Stat. § 50-13.4(c) to support the retroactive and
prospective child support awards. Here, there were long-form
financial affidavits filed with the trial court as well as
Shaffer’s testimony concerning the children’s reasonable and
necessary expenses. The trial court made extensive findings of
fact concerning the parents’ income levels, the children’s
health, activities, educational needs, travel needs,
entertainment, work schedules, living arrangements, and other
14
As provided above, the actual date Zurosky filed his complaint
was 23 December 2009.
-45-
household expenses. After careful review, we determine that
sufficient evidence existed for (i) the trial court’s award of
retroactive child support from the filing of Zurosky’s complaint
on 3 December 2009 to the 24 February 2010 filing of Shaffer’s
child support complaint and (ii) the trial court’s award of
prospective child support from 24 February 2010 to 29 June 2012.
As noted above, the trial court used an incorrect date for
both (a) the date the child support complaint was filed and (b)
the date Zurosky filed his complaint. The trial court also
mislabeled the type of child support provided in the relevant
periods outlined above. We remand this portion of the trial
court’s order to correct these errors consistent with this
opinion.
IV. Conclusion
For the reasons stated above, the trial court’s judgment
order is
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Judges ERVIN and DAVIS concur.
Zurosky v. Shaffer
Court: Court of Appeals of North Carolina
Date filed: 2014-09-02
Citations: 236 N.C. App. 219
Copy CitationsCombined Opinion