Foss v. Miller

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1451
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
JULIA M. FOSS,
Plaintiff

Iredell County
v.
No. 05 CVD 2831

ROGER MILLER, JR.,
Defendant

Appeal by plaintiff from order entered 2 May 2013 by Judge

H. Thomas Church in Iredell County District Court. Heard in the

Court of Appeals 8 May 2014.

Julia M. Foss, pro se.

Pressly, Thomas & Conley, P.A., by Gary Thomas, for
Defendant.

ERVIN, Judge.

Plaintiff Julia M. Foss appeals from an order awarding

custody of the parties’ children to Defendant Roger Miller, Jr.,

and establishing an amount of child support that Plaintiff was

required to pay to Defendant. On appeal, Plaintiff argues that

the trial court erred by refusing to deviate from the child

support guidelines, by failing to consider evidence relating to

the difference between the cost of living in California and the
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cost of living in North Carolina, and by failing to allow for

Plaintiff’s extraordinary expenses in calculating the amount of

child support that she owed to Defendant. After careful

consideration of Plaintiff’s challenges to the trial court’s

order in light of the record and the applicable law, we conclude

that the trial court’s order should be affirmed in part and

reversed in part and that this case should be remanded to the

Iredell County District Court for further proceedings not

inconsistent with this opinion.

I. Factual Background

A. Substantive Facts

Plaintiff and Defendant were married on 15 July 1995,

separated on 30 October 2004, and divorced on 11 January 2006.

The parties are the parents of two minor children, Aaron and

Martin.1 On 25 January 2005, the parties entered into a

separation agreement which provided that they were to have joint

legal and physical custody of the children; that “[h]usband and

[w]ife shall equally divide all day care expenses, school

expenses and expenses relating to the needs of the minor

children”; and that, “[b]ased upon the divisions of the

expenses, the reasonable needs of the minor children and the

fact that [h]usband and [w]ife earn a comparable wage, the
1
“Aaron” and “Martin” are pseudonyms used for ease of
reading and to protect the children’s privacy.
 -3-
parties agree that neither party shall be required to pay the

other child support.” The parties’ separation agreement was

subsequently incorporated into the divorce judgment.

In 2010, Plaintiff moved from North Carolina to California

and married her current husband, Raymond Foss. After moving to

California, Plaintiff saw the children periodically and made

several trips to visit them in North Carolina. At one point in

2012, Plaintiff refused to return the children to North Carolina

after visiting with them in California, an action which required

Defendant to come to California for the purpose of retrieving

them.

B. Procedural History

On 17 July 2012, Plaintiff filed a motion to modify the

existing child custody and support arrangements. On 13 August

2012, Defendant filed a response to Plaintiff’s motion and a

counter-motion for child custody and support. On 29 August

2012, Plaintiff voluntarily dismissed her modification motion.

On 19 November 2012, Plaintiff filed a new motion in which she

sought to have the existing custody and support arrangements

modified. On 5 March 2013, Plaintiff filed a motion for child

support and a motion to deviate from the child support

guidelines in the event that the trial court awarded custody to

Defendant.
 -4-
In early 2013, Plaintiff’s motions came on for hearing

before the trial court in Iredell County District Court. On 2

May 2013, the trial court entered an order denying Plaintiff’s

motion to deviate from the child support guidelines, granting

Defendant primary legal and physical custody of the children,

and ordering Plaintiff to pay child support to Defendant in the

amount of $1,033.00 per month. Plaintiff noted an appeal to

this Court from the trial court’s order.

II. Substantive Legal Analysis

A. Deviation from Child Support Guidelines

In her first challenge to the trial court’s order,

Plaintiff argues that the trial court erred by refusing to

deviate from the child support guidelines in calculating the

amount of support that she owed Defendant. More specifically,

Plaintiff argues that the trial court erroneously failed to make

findings of fact that addressed the children’s need for support

in the course of making its deviation decision. Plaintiff’s

argument has merit.

1. Standard of Review

“Child support orders entered by a trial court are accorded

substantial deference by appellate courts and our review is

limited to a determination of whether there was a clear abuse of

discretion.” Leary v. Leary, 152 N.C. App. 438, 441, 567 S.E.2d
 -5-
834, 837 (2002). Similarly, “[a] trial court’s deviation from

the [child support] [g]uidelines is reviewed under an abuse of

discretion standard.” Beamer v. Beamer, 169 N.C. App. 594, 597,

610 S.E.2d 220, 223 (2005). “Under this standard of review, the

trial court’s ruling will be overturned only upon a showing that

it was so arbitrary that it could not have been the result of a

reasoned decision.” Ludlam v. Miller, __ N.C. App. __, __, 739

S.E.2d 555, 558 (2013) (quoting Spicer v. Spicer, 168 N.C. App.

283, 287, 607 S.E.2d 678, 682 (2005)). “The trial court must,

however, make sufficient findings of fact and conclusions of law

to allow the reviewing court to determine whether a judgment,

and the legal conclusions that underlie it, represent a correct

application of the law.” Id. at __, 739 S.E.2d at 558.

2. Sufficiency of Trial Court’s Findings

“Child support is to be set in such amount ‘as to meet the

reasonable needs of the child for health, education, and

maintenance, having due regard to the estates, earnings,

conditions, accustomed standard of living of the child and the

parties.’” Buncombe Cnty. ex rel. Blair v. Jackson, 138 N.C.

App. 284, 287, 531 S.E.2d 240, 243 (2000) (quoting N.C. Gen.

Stat. § 50-13.4(c)). “Child support set consistent with the

Guidelines is conclusively presumed to be in such amount as to

meet the reasonable needs of the child and commensurate with the
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relative abilities of each parent to pay support.” Id. at 287,

531 S.E.2d at 243.

“If the trial court imposes the presumptive amount of child

support under the Guidelines, it is not . . . required to take

any evidence, make any findings of fact, or enter any

conclusions of law ‘relating to the reasonable needs of the

child for support and the relative ability of each parent to

[pay or] provide support.’” Biggs v. Greer, 136 N.C. App. 294,

297, 524 S.E.2d 577, 581 (2000) (quoting Browne v. Browne, 101

N.C. App. 617, 624, 400 S.E.2d 736, 740 (1991)). “However, upon

a party’s request that the trial court deviate from the

Guidelines . . . or the court’s decision on its own initiative

to deviate from the presumptive amounts . . . [,] the court must

hear evidence and find facts related to the reasonable needs of

the child for support and the parent’s ability to pay[.]” Id.

at 297, 524 S.E.2d at 581; Gowing v. Gowing, 111 N.C. App. 613,

618, 432 S.E.2d 911, 914 (1993) (stating that “[t]he second

paragraph of N.C. [Gen. Stat.] § 50–13.4(c) provides that[,]

when a request to deviate is made and such evidence is taken,

the court should hear the evidence and ‘find the facts relating

to the reasonable needs of the child for support and the

relative ability of each parent to provide support’”). In

making the required findings, “the trial court must consider
 -7-
‘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.’” Beamer, 169

N.C. App. at 598, 610 S.E.2d at 224 (quoting State ex rel.

Fisher v. Lukinoff, 131 N.C. App. 642, 645, 507 S.E.2d 591, 594

(1998)). As a result, given that Plaintiff requested the trial

court to deviate from the child support guidelines, the trial

court was required to “hear evidence and find facts related to

the reasonable needs of the child for support and the parent’s

ability to pay.” Biggs, 136 N.C. App. at 297, 524 S.E.2d at

581.

In its order, the trial court found as fact that:

18. The Defendant has a Bachelor of Arts
Degree in Accounting and works full
time at Inmar, Inc. as a computer
programmer. He currently has a monthly
gross income of $8,333.00. He pays
health insurance premiums for the minor
children in the amount of $230.00 per
month.

19. The Plaintiff is employed as a
Respiratory Therapy Instructor at San
Joaquin Valley College in Rancho
Cordova, California. She currently has
a monthly gross income of $6,265.00.

20. [Aaron] attends Mooresville Middle
School and will begin Mooresville High
School next year. He is very active in
 -8-
sports, particularly baseball, where he
participates in travel baseball.

21. [Martin] attends Mooresville
Intermediate School and will attend
Mooresville Middle School next year.
Both boys have attended schools in the
Mooresville area since kindergarten and
both are A/B students.

22. The Court, outside the presence of the
Plaintiff and Defendant and his
counsel, interviewed the boys and both
expressed the desire to remain in the
primary custody of the Defendant. Both
also stated that they would like to
have more interaction with their
mother.

23. The Court would find that both the
Plaintiff and the Defendant love their
sons. The Court would also find that
it is in the best interest of the minor
children that they remain in the
primary custody of the Defendant with
the Plaintiff having secondary custody
in the form of visitation as set out
below.

24. Both parties owe a duty of support for
the minor children. As noted above the
Plaintiff filed a Motion asking the
Court to deviate from the child support
guidelines. The Court held a hearing
and heard evidence from both the
Plaintiff and Defendant on Plaintiff’s
motion. After hearing this evidence
the Court finds that the Plaintiff’s
Motion to Deviate should be denied.
Thus, the Court would find that the
Plaintiff should begin paying the sum
of $1033.00 per month as support for
the two minor children. This sum being
determined from the Worksheet A as
submitted by the Defendant.
 -9-
25. The Custody and Support Order below is
in the best interest of the minor
children.

A careful examination of these findings establishes that the

trial court failed to make specific findings regarding the

reasonable needs of the children for support as required by N.C.

Gen. Stat. § 50–13.4(c). Aside from the amount of the premiums

needed to ensure that the children had adequate health coverage,

the trial court made no specific findings concerning the amount

of expenses that needed to be incurred in order to meet the

children’s needs. More specifically, the trial court’s findings

do not establish the amount necessary to provide for the

children’s education, maintenance, or other expenses. As was

the case in Beamer, the trial court’s order, while addressing

the amount needed to provide the children with health insurance

coverage, was devoid of any findings relating to the amount

needed to ensure that the children’s educational, maintenance-

related, and other needs were met. As a result, the trial

court’s order did not contain sufficient findings of fact to

permit a proper determination of whether the trial court abused

its discretion in denying Plaintiff’s request for deviation from

the child support guidelines. Beamer, 169 N.C. App. at 599, 610

S.E.2d at 224.
 -10-
In seeking to persuade us to reach a different result,

Defendant argues that the trial court’s findings of fact

“reflect the evidence presented by [Defendant] as to the

expenses associated with the children’s needs, including basic

living expenses, transportation to school and sports events,

healthcare and vacations.” However, as the Supreme Court has

stated, “[i]t is not enough that there may be evidence in the

record sufficient to support findings which could have been

made[;] [instead,] [t]he trial court must itself determine what

pertinent facts are actually established by the evidence before

it[.]” Beamer, 169 N.C. App. at 599, 610 S.E.2d at 224 (quoting

Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)).

Thus, the fact that the record contains evidence from which the

necessary findings could have been made does not absolve the

trial court from the responsibility for actually making the

required findings.

As we have previously held, the “failure of the lower court

to make findings regarding the reasonable needs of the

child[ren] for support mandates remand for further findings of

fact.” State v. McGuire, 174 N.C. App. 347, 351, 620 S.E.2d

899, 902 (2005); Spicer, 168 N.C. App. at 294-95, 607 S.E.2d at

686 (holding that the case before the Court should be remanded

to the trial court for the making of additional findings of fact
 -11-
given the trial court’s failure to make specific findings

concerning the reasonable needs of the child); Coble, 300 N.C.

at 713, 268 S.E.2d at 189 (holding that, without sufficient

factual findings regarding the amount of support necessary to

meet the reasonable needs of the child, an appellate court lacks

the ability to determine whether the trial court’s order has

adequate evidentiary support). As a result, the trial court’s

order must be reversed and this case must be remanded to the

Iredell County District Court for the entry of a new order

addressing Plaintiff’s request for a deviation from the child

support guidelines that contains adequate findings of fact

concerning the reasonable needs of the minor children.

B. Cost of Living Differential

Secondly, Plaintiff contends that the trial court abused

its discretion by failing to consider the difference between the

cost of living in California and the cost of living in North

Carolina. More specifically, Plaintiff contends that the trial

court erred by sustaining Defendant’s objection to the admission

of evidence that she contends would have reflected this cost of

living differential. Plaintiff’s argument lacks merit.

At the hearing held before the trial court, Plaintiff

attempted to introduce a document comparing the cost of living

in California and the cost of living in North Carolina. The
 -12-
trial court sustained Defendant’s objection to the admission of

this evidence. In her brief, Plaintiff states that she was

prepared to elicit evidence that the cost of living in

California was substantially higher than the cost of living in

North Carolina so that her income had less value in California

than would have been the case in the event that she lived in

North Carolina. Although “the significance of the excluded

evidence must be made to appear in the record” “[i]n order for a

party to preserve for appellate review [a challenge to the

exclusion of evidence],” State v. Jacobs, 363 N.C. 815, 818, 689

S.E.2d 859, 861 (2010) (citation, quotation marks, and brackets

omitted), Plaintiff does not appear to have made an offer of

proof or taken any other action sufficient to establish the

nature of the evidence that she sought to have the trial court

consider. As a result, since Plaintiff has not properly

preserved her challenge to the exclusion of this evidence for

appellate review, she is not entitled to relief from the trial

court’s order on the basis of this argument.

C. Extraordinary Expense Adjustment

Finally, Plaintiff contends that the trial court

erroneously failed to take certain extraordinary expenses that

Plaintiff claims to have incurred into account in establishing

the amount of child support that she was required to pay to
 -13-
Defendant. More specifically, Plaintiff argues that the trial

court abused its discretion by failing to treat the travel-

related expenses that she incurred in order to visit with the

children as extraordinary expenses in the course of calculating

the amount of child support that she was obligated to pay to

Defendant. We disagree.

1. Standard of Review

“The trial court is vested with discretion to make

adjustments to the guideline amounts for extraordinary expenses,

and the determination of what constitutes such an expense is

likewise within its sound discretion.” Doan v. Doan, 156 N.C.

App. 570, 574, 577 S.E.2d 146, 149 (2003) (citing Biggs, 136

N.C. App. at 298, 524 S.E.2d at 581). As part of that process,

the trial court has the discretion to determine “how the

expenses are to be apportioned between the parties.” Mackins v.

Mackins, 114 N.C. App. 538, 549, 442 S.E.2d 352, 359, disc.

review denied, 337 N.C. 694, 448 S.E.2d 527 (1994). “It is well

established that where matters are left to the discretion of the

trial court, appellate review is limited to a determination of

whether there was a clear abuse of discretion.” White v. White,

312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). As a result, we

will review the trial court’s decision to refrain from adjusting

the child support award approved in its prior order to reflect
 -14-
Plaintiff’s visitation-related travel expenses utilizing an

abuse of discretion standard of review.

2. Validity of Trial Court’s Expense Adjustment Decision

According to the child support guidelines, the trial court

“may make adjustments for extraordinary expenses and order

payments for such term and in such manner as the [c]ourt deems

necessary.” Mackins, 114 N.C. App. at 548, 442 S.E.2d at 358.

The “extraordinary expenses [contemplated by the child support

guidelines] include . . . [a]ny expenses for transportation of

the child(ren) between the homes of the parents.” Id. at 549,

442 S.E.2d at 359.

At the hearing, Plaintiff testified that the cost of the

children’s travel between North Carolina and California would

amount to approximately $250.00 per month. However, Plaintiff

acknowledged that the children had only visited her in

California on two occasions between 2010 and 2013 and that the

travel cost estimate set out in her testimony was based on the

assumption that the children would make three trips to

California each year. In addition, Defendant claimed to have

spent $4,000 for the purpose of going to California and bringing

the children back to North Carolina after Plaintiff’s refusal to

return them at the conclusion of the 2012 visit. Finally, the

trial court absolved Plaintiff of any responsibility for paying
 -15-
child support during the eight week summer period when the

children were scheduled to be with her in California. After

thoroughly reviewing the entire record, we are unable to

conclude that the trial court’s decision to refrain from

adjusting the amount of child support that Plaintiff was

obligated to pay to Defendant to account for these estimated

transportation costs was “so arbitrary that it could not have

been the result of a reasoned decision.” Ludlam, __ N.C. App.

at __, 739 S.E.2d at 558.

Although the child support guidelines treat expenses

incurred to transport children between their parents’ homes as

extraordinary expenses that may be utilized to adjust the trial

court’s ultimate child support award, the trial court is not

required to adjust the amount of child support owed by one

parent to another solely because one party claims to have

incurred or to expect to incur such extraordinary travel

expenses. Instead, the extent to which such expenses should be

recognized and the manner in which they should be recognized is

a matter committed to the sound discretion of the trial court.

Doan, 156 N.C. App. at 574, 577 S.E.2d at 149; Mackins, 114 N.C.

App. at 549, 442 S.E.2d at 359. In view of the fact that the

record provided a substantial basis for questioning the accuracy

of Plaintiff’s cost estimate, the fact that both parties appear
 -16-
to have incurred and absorbed such extraordinary visitation-

related expenses, and the fact that the trial court absolved

Plaintiff from any obligation to make support payments to

Defendant for the eight week summer period during which the

children were to be visiting with Plaintiff in California, we

are unable to conclude, based on the present record, that the

trial court abused its discretion by failing to adjust

Plaintiff’s support obligation to reflect her estimate of the

cost of bringing the children to California to visit with her.

In seeking to persuade us to reach a different result,

Plaintiff directs our attention to our decision in Meehan v.

Lawrance, 166 N.C. App. 369, 602 S.E.2d 21 (2004), in which we

held that the trial court’s decision to adjust the amount of

child support that the defendant was obligated to pay to the

plaintiff to account for visitation-related travel expenses did

not constitute an abuse of discretion. In making that

determination, we concluded that the trial court’s extraordinary

expense adjustment had sufficient evidentiary support given that

the record contained evidence tending to show that the defendant

had actually incurred between $300.00 to $500.00 in monthly

visitation-related expenses. Id. at 384, 602 S.E.2d at 30. The

record support for the adjustment that Plaintiff sought in this

case was, as we have already noted, much weaker than that at
 -17-
issue in Meehan given that the adjustment amount upon which

Plaintiff relied was clearly an approximation and that Plaintiff

admitted that her proposed extraordinary expense adjustment

assumed a much greater level of visitation-related travel than

had actually occurred in the past. In light of this set of

circumstances and the fact that the procedural posture before

the Court in this case is the exact opposite of the procedural

posture in which we were called upon to decide the issue

addressed in Meehan, Meehan does not provide any basis for a

decision to overturn the trial court’s decision with respect to

this issue. As a result, Plaintiff’s final challenge to the

trial court’s order has no merit.

III. Conclusion

Thus, for the reasons set forth above, we conclude that

Plaintiff’s challenge to the sufficiency of the trial court’s

findings of fact relating to the issue of whether Plaintiff’s

request for a deviation from the child support guidelines should

have been allowed has merit and that Plaintiff’s remaining

challenges to the trial court’s order do not. As a result, the

trial court’s order should be, and hereby is, affirmed in part

and reversed in part and this case should be, and hereby is,

remanded to the Iredell County District Court for further

proceedings not inconsistent with this opinion.
 -18-
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

Judges ROBERT N. HUNTER, JR., and DAVIS concur.

Report per Rule 30(e).