Loosvelt v. Brown

NO. COA13-747

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

GRANT A. LOOSVELT,
Plaintiff/Father,

v. Mecklenburg County
No. 11-CVD-21739(DH)
STACY LEIGH BROWN,
Defendant/Mother.

Appeal by plaintiff from order entered 1 April 2013 by

Judge Donnie Hoover in District Court, Mecklenburg County.

Heard in the Court of Appeals 19 November 2013.

Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and
Tobias S. Hampson, for plaintiff-appellant.

James, McElroy & Diehl, P.A., by Preston O. Odom, III, by
defendant-appellee.

STROUD, Judge.

Plaintiff appeals order regarding permanent child custody

and child support. For the following reasons, we affirm in part

and reverse and remand in part.

I. Background

Plaintiff, a resident of Los Angeles, California, filed a

complaint in North Carolina against defendant, a resident of

Charlotte, North Carolina. Plaintiff sought to establish the
 -2-
paternity of a child born out of wedlock, to determine custody,

and an order addressing the parties’ support obligations. On 7

December 2011, defendant filed an answer and counterclaims

seeking child custody, child support, and attorney fees. On or

about 10 April 2012, defendant filed a request “to upwardly

deviate from the North Carolina Child Support Guidelines[.]” On

7 May 2012, plaintiff replied to defendant’s counterclaims

admitting “it is in the best interest of the minor child that

his primary custody be awarded to” defendant, stating that

“child support should be awarded in accordance with North

Carolina law[,]” and denying allegations related to defendant’s

request for attorney fees.

On 24 May and 20 June 2012, both nunc pro tunc to 16 April

2012, the trial court entered temporary child support orders.

The trial court ordered that plaintiff make monthly child

support payments in the amount of $2,317.00. Defendant’s claim

for retroactive child support was to be heard at a later date

along with her claim for attorney fees.

On 1 April 2013, nunc pro tunc to 4 January 2013, the

trial court entered a corrected order regarding permanent child

custody and child support finding that because the aggregate of

the parties’ adjusted gross incomes exceeded $25,000.00 per
 -3-
month, the North Carolina Child Support Guidelines were not

controlling for this case. The order established paternity and

custody of the minor child, set plaintiff’s retroactive and

prospective child support obligations as well as arrearages, and

awarded attorney fees to defendant. As to the child support

obligations and attorney fees, the trial court ordered:

4. Effective November 1, 2012, and
continuing on the first (1st) day of each
month thereafter until modified by this
Court. Plaintiff/Father shall pay child
support to Defendant/Mother in the amount of
$7,342.84 per month. All payments shall be
made directly to Defendant/Mother on or
before the first (1st) day of each month.

5. Plaintiff/Father shall be
responsible for ninety percent (90%) and
Defendant/Mother shall be responsible for 10
percent (10%) of all uninsured medical,
dental, optical, orthodontic, therapy,
counseling, prescription drug expenses, and
any other expenses incurred by the minor
child in connection with his healthcare that
is not covered by the major medical
insurance provider(s). In the event
Defendant/Mother is required to advance any
of the foregoing expenses to be paid by
Plaintiff/Father as set forth above,
Plaintiff/Father shall reimburse
Defendant/Mother within thirty (30) days of
the receipt of written verification of said
expenses.

6. Plaintiff/Father’s child support
arrearage in the amount of $15,077.52 shall
be paid in full on or before March 5, 2013.

7. Plaintiff/Father’s retroactive
 -4-
child support obligation in the amount of
$39,655.27 shall be paid in full on or
before March 5, 2013.

8. Defendant/Father shall pay to
Plaintiff/Mother’s counsel the sum of
$24,942.21 to partially defray
Plaintiff/Mother’s legal fees.
Defendant/Father shall make this payment
directly to Claire J. Samuel, James, McElroy
& Diehl, P.A., 600 South College Street,
Charlotte, NC 28202 on or before March 15,
2013.

Plaintiff appeals.

II. Retroactive Child Support

Plaintiff first argues that the trial court erred in

awarding retroactive child support because the trial court

“[f]ailed to [m]ake [f]indings of [f]act to [s]upport its

[a]ward[,]” lacked evidence to support its award, and failed to

apportion the expenses incurred between both parties. Our Court

has stated:

an order for child support 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. These conclusions must be based upon
factual findings sufficiently specific to
indicate that the trial court took due
regard of the factors enumerated in the
statute, namely, the estates, earnings,
conditions, accustomed standard of living of
the child and the parties, the child care
and homemaker contributions of each party,
 -5-
and other facts of the particular case.
These findings must, of course, be
based upon competent evidence, and it is not
enough that there may be evidence in the
record sufficient to support findings which
could have been made. The trial court must
itself determine what pertinent facts are
actually established by the evidence before
it. In short, the evidence must support the
findings, the findings must support the
conclusions, and the conclusions must
support the judgment; otherwise, effective
appellate review becomes impossible.

Atwell v. Atwell, 74 N.C. App. 231, 234, 328 S.E.2d 47, 49

(1985) (citations, quotation marks, and ellipses omitted).

Furthermore,

[c]hild 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. Under this
standard of review, the trial court’s ruling
will be upset only upon a showing that it
was so arbitrary that it could not have been
the result of a reasoned decision. In a case
for child support, the trial court must make
specific findings and conclusions. The
purpose of this requirement is to allow a
reviewing court to determine from the record
whether a judgment, and the legal
conclusions which underlie it, represent a
correct application of the law.

Leary v. Leary, 152 N.C. App. 438, 441-42, 567 S.E.2d 834, 837

(2002) (citations and quotation marks omitted).

“The ultimate objective in setting awards for child support

is to secure support commensurate with the needs of the children
 -6-
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)

(citation, quotation marks, and brackets omitted). Retroactive

child support encompasses “[c]hild support awarded prior to the

time a party files a complaint[.]” Carson v. Carson, 199 N.C.

App. 101, 105, 680 S.E.2d 885, 888 (2009) (citation and

quotation marks omitted). “However, retroactive child support

payments are only recoverable for amounts actually expended on

the child’s behalf during the relevant period. Therefore, a

party seeking retroactive child support must present sufficient

evidence of past expenditures made on behalf of the child, and

evidence that such expenditures were reasonably necessary.”

Robinson, 210 N.C. App. at 333, 707 S.E.2d at 795 (citation,

quotation marks, and brackets omitted).

A. Findings of Fact as to Retroactive Child Support Expenses

The trial court awarded defendant retroactive child support

from October 2010, the date of the child’s birth, through

November 2011, the month following the filing of plaintiff’s

complaint. The retroactive child support award of $39,655.271 was

reimbursement for the following:

1
We note that these expenses actually add up to $40,025.27,
although neither party has challenged the accuracy of the
numbers in the trial court order.
 -7-

 “$5,160 in nursery expenses prior to [the child’s] birth”

 “806.13 in maternity clothes prior to [the child’s] birth”

 “$460.00 in additional daycare cost for [the child] from
October 28, 2011 through March 20, 2012”

 “$1,313.54 in nursery expenses after [the child’s] birth”

 “$6,485.67 in expenses related to the minor child’s basic
needs (i.e. baby food, diapers, formula, and clothing)
after the minor child’s birth”

 “$11,520.00 to provide work-related child care” in 2011

 “$8,800.00 to provide work-related child care” in 2010

 “5,479.93 in expenses related to the minor child’s birth”

Because these expenses raise different evidentiary and legal

issues, we will separately address them.

1. Nursery Expenses and Maternity Clothes Prior to Birth

The award for expenses incurred prior to the child’s birth

appears to raise a novel legal issue. We have found no

authority, either in North Carolina or in any other state that

addresses recovery of expenses incurred prior to the child’s

birth for nursery expenses or maternity clothes as retroactive

child support. Apparently, defendant did not find any law to

support this proposition either, as her argument is that “the

fact that a ‘father’s duty to support his child arises when the

child is born[,]’ Tidwell v. Booker, 290 N.C. 98, 116, 225
 -8-
S.E.2d 816, 827 (1976), does not preclude awarding retroactive

child support covering expenditures incurred before a child’s

birth.” Defendant seeks to analogize these expenses to medical

expenses under North Carolina General Statute § 49-15. But we

find that because (1) the child support obligation does not

arise until birth and (2) North Carolina has a statute which

limits recovery of pre-birth expenses to medical expenses, there

is no legal basis for an award of any other types of expenses

incurred prior to birth. See N.C. Gen. Stat. § 49-15 (2011);

Freeman v. Freeman, 103 N.C. App. 801, 803, 407 S.E.2d 262, 263

(1991).

“A parent’s obligation to support his child arises when the

child is born, not when the courts order a specific amount to be

paid.” Freeman v. Freeman, 103 N.C. App. 801, 803, 407 S.E.2d

262, 263 (1991) (emphasis added). As the legal obligation

arises when the child is born, expenses incurred prior to the

child’s birth cannot be considered as retroactive child support;

see Robinson, 210 N.C. App. at 333, 707 S.E.2d at 795; Freeman,

103 N.C. App. at 803, 407 S.E.2d at 263, the only exception to

this rule is North Carolina General Statute § 49-152 which allows

2
North Carolina General Statute § 49-15 provides that “[u]pon
and after the establishment of paternity of an illegitimate
child pursuant to G.S. 49-14, the rights, duties, and
 -9-
for “medical expenses incident to the pregnancy and birth of the

child.” N.C. Gen. Stat. § 49-15. While many mothers reasonably

incur expenses of many types in preparation for the birth of a

baby, our General Assembly has provided for recovery of only one

type of pre-birth expense, medical expenses, pursuant to North

Carolina General Statute § 49-15. See id. Medical expenses

related to the pregnancy are necessarily incurred before birth

of the child, but there is no evidence or argument that these

nursery expenses and maternity clothes could qualify as “medical

expenses” under even the most generous definition. Id.

Accordingly, we must reverse the award for nursery expenses and

maternity clothes incurred prior to the child’s birth.

2. Nursery Expenses and Basic Needs After Birth

For the nursery expenses incurred after the child’s birth

and the expenses incurred for the child’s basic needs, we

conclude there was not sufficient evidence to support an award

of these expenses as retroactive child support because defendant

did not present evidence that these expenses were actually

obligations of the mother and the father so established, with
regard to support and custody of the child, shall be the same,
and may be determined and enforced in the same manner, as if the
child were the legitimate child of such father and mother. When
paternity has been established, the father becomes responsible
for medical expenses incident to the pregnancy and the birth of
the child.” N.C. Gen. Stat. § 49-15.
 -10-
incurred prior to the filing of the complaint. Defendant

herself concedes that her evidence required the trial court “to

draw the reasonable inference” regarding the dates of the

expenses. Defendant’s exhibit listing the expenses showed only

the merchant from which the purchase was made and the amount of

the expense; defendant does not direct our attention to any

evidence before the trial court, including her testimony,

providing any dates for when the expenses were incurred. As

retroactive child support may only be awarded for expenses

incurred “prior to the time a party files a complaint[,]”

Carson, 199 N.C. App. 105, 680 S.E.2d at 888, the trial court

needed actual evidence upon which to determine when such

expenses were incurred. Defendant’s evidence did not provide

sufficient detail as to the dates that these expenses were

incurred such that the trial court could reasonably find that

they were incurred prior to the filing of the complaint. We

reverse the award of nursery expenses and basic needs expenses

incurred after the child’s birth.

3. Daycare, Child Care, and Birth Expenses

For the expenses regarding daycare, child care, and the

child’s birth, plaintiff does not challenge the timing of these

expenses or the evidence supporting the amounts awarded. Thus,
 -11-
the trial court’s findings as to these expenses are binding on

this court. See Powers v. Tatum, 196 N.C. App. 639, 640, 676

S.E.2d 89, 91 (“Where [a party] fails to challenge any of the

trial court’s findings of fact on appeal, they are binding on

the appellate court[.]”), disc. review denied, 363 N.C. 583, 681

S.E.2d 784. As to these expenses, plaintiff challenges only the

trial court’s findings as to his ability to pay the award of

retroactive child support, arguing that the trial court was

required to make findings of fact regarding plaintiff’s “ability

to pay such amounts ‘during the time for which reimbursement is

sought[,]’” and “the trial court was required to exercise some

amount of discretion to determine what portion of the expenses .

. . [defendant] purportedly incurred . . . represent[ing] her

share of support.” As plaintiff’s ability to pay child support

is actually a broader issue implicating more than just daycare,

child care, and birth expenses, we separately address it below.

B. Ability to Pay Retroactive Child Support

Plaintiff contends that the trial court was required to

make findings regarding his ability to pay child support “during

the period in which [the expenses] were purportedly incurred.”

In Hicks v. Hicks, this Court stated that the trial court must
 -12-
make findings as to the obligor’s ability to pay during the time

period of the retroactive support sought:

What the defendant should have paid is not
the measure of his liability to plaintiff.
The measure of defendant’s liability to
plaintiff is the amount actually expended by
plaintiff which represented the defendant’s
share of support. In determining this amount
the court must take into consideration the
needs of the children and the ability of the
defendant to pay during the time for which
reimbursement is sought. The plaintiff is
not entitled to be compensated for support
for the children provided by others, nor is
she entitled to be reimbursed for sums
expended by her for the support of the
children which represent her share of
support as determined by the trial judge,
considering “the relative ability of the
parties to provide support[.]”

34 N.C. App. 128, 130, 237 S.E.2d 307, 309 (1977) (emphasis

added) (citations, quotation marks, and ellipses omitted).

“[T]he time for which reimbursement is sought[,]” id., is not

the time when this case was heard, as defendant contends -- that

would be the time at which reimbursement is sought -- but is

instead the time period during which the expenses were incurred.

See Savani v. Savani, 102 N.C. App. 496, 502, 403 S.E.2d 900,

903 (1991) (“An award of retroactive child support must also

take into account the defendant’s ability to pay during the

period in the past for which reimbursement is sought.” (emphasis

added)).
 -13-
Here, the trial court specifically found that

“Plaintiff/Father has the ability to pay the child support

ordered herein” and “Plaintiff/Father’s income is more than

sufficient to cover the awards contained herein based on his

monthly expenditures and income.” Yet the trial court failed

to make findings of fact as to plaintiff’s ability to pay for

the time period for which reimbursement was sought,

specifically, from the pre-birth medical expenses incurred until

the filing of the complaint, the relevant time period for

retroactive child support. See Carson, 199 N.C. App. at 105,

680 S.E.2d at 888, see also N.C. Gen. Stat. § 49-15. Therefore,

we reverse and remand the order for the trial court to make

findings of fact as to plaintiff’s ability to pay during that

time period for which reimbursement was sought.

C. Allotment of Retroactive Child Support Expenses

In addition, plaintiff raises a related issue of the trial

court’s apportionment of retroactive support. Plaintiff contends

“the trial court was required to exercise some amount of

discretion to determine what portion of the expenses . . .

[defendant] purportedly incurred related to . . . [defendant’s]

share of support.” We agree that “[t]he measure of

[plaintiff]’s liability to [defendant] is the amount actually
 -14-
expended by [defendant] which represented the [plaintiff’s]

share of support.” Hicks, 34 N.C. App. at 130, 237 S.E.2d at

309 (emphasis added). Here, the trial court awarded defendant

100% of each of the expenses listed pursuant to its award of

retroactive child support; this indicates that the trial court

failed to allot any portion of the retroactive child support

expenses as defendant’s responsibility. In contrast, we note

that the trial court allocated to defendant 10% of the child’s

prospective “uninsured medical, dental, optical, orthodontic,

therapy, counseling, prescription drug expenses, and any other

expenses incurred by the minor child in connection with his

healthcare that is not covered by the major medical insurance

provider(s)[;]” we cannot discern from the findings in the order

why defendant has responsibility for 10% of these prospective

expenses but has no responsibility for the retroactive expenses.

D. Summary as to Retroactive Child Support

In summary, as to the award of retroactive child support,

we reverse the award for nursery expenses and maternity clothes

prior to the child’s birth because there is no legal basis for

making such an award. We reverse the award for nursery expenses

and basic needs after the birth because there was not sufficient

evidence that such expenses were incurred prior to the filing of
 -15-
plaintiff’s complaint. We reverse and remand the order as to

the expenses for daycare, child care, and birth for the trial

court to consider the plaintiff’s ability to pay during the time

for which reimbursement is sought, how these expenses should be

apportioned between plaintiff and defendant, and to make any

other findings of fact and conclusions of law necessary to

support the award of retroactive child support.

III. Prospective Child Support

Plaintiff next contends that the trial court erred in

awarding prospective child support (“child support”) because it

failed “to [m]ake [s]pecific [f]indings of [f]act [c]oncerning

[plaintiff’s] [i]ncome and [a]bility to [p]ay [c]hild

[s]upport[,]” based its award on plaintiff’s income without

considering the needs of the child, and abused its discretion in

setting defendant’s child support obligation and failing to

“offset” plaintiff’s child support obligation by such amount.

Again, we note that we review the child support award to

consider if the evidence supports the findings of fact, the

findings support the conclusions of law, and the conclusions

support the judgment. See Atwell, 74 N.C. App. at 234, 328

S.E.2d at 49.
 -16-
North Carolina General Statute § 50-13.4(c) requires the

trial court to consider several factors when establishing 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 (2011). Plaintiff raises arguments

regarding several of these factors and we will address each

separately.

A. Plaintiff’s Income and Ability to Pay

As to plaintiff’s income and ability to pay, the trial

court made the following findings of fact:

12. On October 16, 2012,
Plaintiff/Father filed an Amended Financial
Affidavit listing his average gross monthly
income as being $24,409.66.

. . . .

16. The child support award set forth
herein is necessary to meet the reasonable
needs of the minor child related to his
health, education and maintenance, having
due regard to the estates, earning,
conditions, accustomed standard of living of
the child and of the parties.

. . . .
 -17-

18. Plaintiff/Father is an able-bodied
man who is gainfully employed and fully
capable of paying to Defendant/Mother, for
the benefit of the minor child, child
support in the amount set forth herein.

19. Plaintiff/Father is a cosmetic
dentist in Beverly Hills and Los Angeles,
California. Plaintiff/Father has served on
the faculty at UCLA’s School of Dentistry
and is a member at Century City Hospital.
Plaintiff/Father has also appeared on the
ABC shows Extreme Makeover and Average Joe.

20. Plaintiff/Father has the ability
to pay the child support ordered herein.

21. Plaintiff/Father is a man with
substantial income.

22. Plaintiff/Father’s spending is
inconsistent with the income reported on his
Amended Financial Affidavit.

23. Plaintiff/Father’s average monthly
spending according to his testimony and his
checking account statements for his Chase
Checking Accounts ending #8427 and #8435
reflect that he spends an average of
$88,617.80 per month.

24. At the time of trial,
Plaintiff/Father had no credit card debt.

25. Plaintiff/Father owns and pays for
two (2) luxury residences in Los Ang[e]les,
California at a cost of approximately
$12,000.00 per month.

26. In nine and a half (9 ½) months,
Plaintiff/Father spent $31,322.85 on
vacations or an average of $3,297.14 per
month.
 -18-

27. In two (2) months,
Plaintiff/Father spent $51,000.00 on
jewelry, or an average of $25,500.00 per
month.

28. Plaintiff/Father . . . spent
$1,466.78 for alcohol in three (3) days.

. . . .

34. Plaintiff/Father has monthly
shared family expenses of $15,446.54 and
monthly individual expenses of $6,937.00, as
reflected on his Amended Financial
Affidavit.

. . . .

36. Plaintiff/Father should have a
child support obligation of $7,342.84 per
month ($5,148.84 (1/3 of Plaintiff/Father’s
shared family expenses) +$2,194.00 ([the
child’s] individual expenses) = $7,342.84).

. . . .

38. Plaintiff/Father’s child support
obligation should be made effective to
November 1, 2012.

39. Plaintiff/Father currently has a
child support arrearage of $15,077.52
through January 2013 ($7,342.84 x 3 months =
$22,028.52 less $6,951.00 paid =
$15,077.52).

. . . .

44. Plaintiff/Father should pay ninety
percent (90%) of the minor child’s uninsured
medical expenses.

. . . .
 -19-

46. The provisions of this Order
regarding support of the minor child are
fair and reasonable under the existing
circumstances.

Only two of these findings address plaintiff’s income: finding

of fact number 12 which finds that his financial affidavit

listed his average gross monthly income as $24,409.66,3 and

finding of fact number 21 which finds that plaintiff “is a man

with substantial income.”

When a trial court is considering child support outside of

the North Carolina child support guidelines, the trial court

must make sufficient findings as to the parties’ incomes and

ability to pay to permit appellate review:

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, and other facts
of the particular case. [N.C. Gen.
Stat. § 50-13.4(c)].
. . . .
Where, as here, the trial court sits
without a jury, the judge is required to
find the facts specially and state

3
This “finding of fact” is actually a recitation of evidence and
not a finding by the trial court; this is apparent from the fact
that the trial court ultimately determined that plaintiff has
more income than what he listed on his affidavit.
 -20-
separately its conclusions of law thereon
and direct the entry of the appropriate
judgment. The purpose of the requirement
that the court make findings of those
specific facts which support its ultimate
disposition of the case is to allow a
reviewing court to determine from the record
whether the judgment -- and the legal
conclusions which underlie it -- represent a
correct application of the law. The
requirement for appropriately detailed
findings is thus not a mere formality or a
rule of empty ritual; it is designed instead
to dispose of the issues raised by the
pleadings and to allow the appellate courts
to perform their proper function in the
judicial system.
Under G.S. 50-13.4(c), quoted supra, an
order for child support 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. These conclusions must themselves be
based upon factual findings specific enough
to indicate to the appellate court that the
judge below took due regard of the
particular estates, earnings, conditions,
[and] accustomed standard of living of both
the child and the parents. It is a question
of fairness and justice to all concerned.
In the absence of such findings, this Court
has no means of determining whether the
order is adequately supported by competent
evidence. It is not enough that there may be
evidence in the record sufficient to support
findings which could have been made. The
trial court must itself determine what
pertinent facts are actually established by
the evidence before it, and it is not for an
appellate court to determine de novo the
weight and credibility to be given to
evidence disclosed by the record on appeal.
 -21-

Coble v. Coble, 300 N.C. 708, 711-13, 268 S.E.2d 185, 189

(1980) (citations and quotation marks omitted); see also Atwell,

74 N.C. App. at 234, 328 S.E.2d at 49.

In Coble, the trial court had found that the “plaintiff is

in need of financial assistance for the support of the minor

children and that defendant is capable of providing such

assistance.” Id. at 713, 268 S.E.2d at 189. Our Supreme Court

noted that “[t]his finding is more properly denominated a

conclusion of law, since it states the legal basis upon which

defendant’s liability may be predicated under the applicable

statutes, G.S. 50-13.4(b) and (c). As a conclusion of law, it

must itself be based upon supporting factual findings.” Id.

(quotation marks omitted). The Court then determined that the

findings of fact failed to support the conclusion, since the

only relevant finding of fact was that the:

[d]efendant’s monthly net income is
approximately $483.32, plus an
indeterminable amount earned from overtime
work, and yet her monthly expenses are
approximately $510.00. To the degree that
this finding indicates that defendant’s
living expenses tend to exceed her average
income, it would seem to negate, rather than
support, the conclusion that she is capable
of providing support payments. Moreover, the
next part of finding No. 12 shows that
although the monthly financial needs of the
children average approximately $432.00,
 -22-
plaintiff's net monthly income is
approximately $825.00. Far from supporting
the conclusion that plaintiff is in need of
partial assistance in meeting his support
obligation, this part of the finding
suggests instead that he is capable of
sufficiently providing for his children on
his own. On the face of the order alone,
therefore, finding No. 12 does not support
the trial court’s conclusions as to either
plaintiff’s financial need for support
assistance or defendant’s financial ability
to provide it. In the absence of other
findings which support these conclusions,
then, the order awarding plaintiff partial
child support cannot be sustained.

Id. (quotation marks omitted).

In the case before us, the trial court’s findings of fact

are of similar import. Compare id. Again, only two of the trial

court’s findings address plaintiff’s income: finding of fact

number 12 which finds that his financial affidavit listed his

average gross monthly income as $24,409.66, and finding of fact

number 21 which finds that plaintiff “is a man with substantial

income.” There is no finding of fact as to plaintiff’s actual

income, only that it is “substantial[.]” We can infer that

“substantial” here means more than $24,409.66 but we cannot,

determine what the trial court found plaintiff’s income to be.

Furthermore, the trial court found that although plaintiff

claims to earn $24,409.66 on average per month, he actually

spends an average of $88,617.80 per month. Here, the trial
 -23-
court clearly assumed that the plaintiff’s income is quite

significantly more than $25,000 per month, but we have no way of

knowing what number the trial court had in mind.4

Normally, findings as to the incomes of the parties are

stated in monetary amounts of dollars per month or year.

Although these numbers might even be averages or approximations,

particularly when a parent does not receive a set monthly

paycheck, a finding of an actual monetary amount of income will

permit this Court to review the findings based upon the

4
Plaintiff also implies that the trial court imputed income to
him due to what it may have found to be extravagant
expenditures. We do not believe this is so, but if the trial
court was actually imputing income to plaintiff, this would be
error, as there were no findings of fact that that defendant was
suppressing his income intentionally or spending excessively to
avoid his child support obligation. See generally Respess v.
Respess, ___ N.C. App. ___, ___, 754 S.E.2d 691, 703-04 (2014)
(addressing defendant’s argument that the trial court erred in
the amount of income it imputed to him: “Generally, a party's
ability to pay child support is determined by that party’s
actual income at the time the award is made. A party’s capacity
to earn may, however, be the basis for an award where the party
deliberately acted in disregard of his obligation to provide
support. Before earning capacity may be used as the basis of an
award, there must be a showing that the actions reducing the
party’s income were taken in bad faith to avoid family
responsibilities[.] This showing may be met by a sufficient
degree of indifference to the needs of a parent’s children.”
(citation, quotation marks, ellipses, and brackets omitted)).
While certainly the trial court may find plaintiff’s evidence
not to be credible, the trial court must still make an actual
finding as to plaintiff’s income.
 -24-
evidence.5 While the trial court did give some regard “to the

estates, earnings, conditions, accustomed standard of living of

the” parties, it failed to make a finding of fact as to

plaintiff’s income which is definite enough for this Court to

review. N.C. Gen. Stat. § 50-13.4(c). Furthermore, while the

trial court specifically found plaintiff was able to pay the

child support ordered, the income the trial court was basing

this finding on is unclear, and thus leaves this Court also

unable to review the finding of plaintiff’s ability to pay.

In addition, even though the trial court’s order contained

some findings as to “the estates[,]” N.C. Gen. Stat. § 50-

13.4(c), of the parties, particularly plaintiff, it did not make

any findings which would permit consideration of plaintiff’s

estate as supporting his ability to pay child support; rather,

the findings of fact addressed only the expenses plaintiff has

incurred. For example, the trial court found that

5
We also note that without an actual monetary number for the
income it could be difficult for either party to prove the need
for a modification of child support in the future based upon a
change in circumstances, as the trial court would have to
determine what the plaintiff’s “substantial” income actually was
in 2012 and whether any alleged change in the plaintiff’s income
would be sufficient to support modification. See generally N.C.
Gen. Stat. § 50-13.7(a) (2011) (“Except as otherwise provided in
G.S. 50-13.7A, an order of a court of this State for support of
a minor child may be modified or vacated at any time, upon
motion in the cause and a showing of changed circumstances by
either party[.]”)
 -25-
“Plaintiff/Father owns and pays for two (2) luxury residences in

Los Ang[e]les, California at a cost of approximately $12,000.00

per month.” Having a large house payment does not necessarily

equate to having a substantial estate; it can mean just the

opposite. The trial court did not find the value of these

“luxury residences[,]” whether plaintiff’s indebtedness on these

residences equals or exceeds their values, or any other facts

regarding the net value of plaintiff’s estate.

Accordingly, we reverse and remand the award of prospective

child support for the trial court to make findings as to the

monetary value of plaintiff’s income and any other findings of

fact or conclusions of law necessary to set an appropriate child

support amount. We note that plaintiff also makes arguments as

to the specific evidence the trial court should rely upon on

remand in making its determination as to what his income is, but

we will not address this, since arguments about which evidence

should weigh more heavily are properly directed to the trial

court, which has the discretion to determine the credibility and

the weight of the evidence. See Coble, 300 N.C. at 712-13, 268

S.E.2d at 189.

B. Reasonable Needs of the Child

While we are reversing and remanding the child support
 -26-
award for the reasons noted above, plaintiff also has argued

that the trial court failed to consider the child’s actual needs

in setting the amount of child support. The child support

ordered in the amount of $7,342.84 per month far exceeds the

actual needs of the child based upon the child’s historical

individual expenditures as found by the trial court, which were

$2,194.00 per month. Although the trial court has the

discretion to award child support in excess of actual historical

expenses based upon plaintiff’s financial position, the findings

of fact as to how this amount was established must be detailed

enough to permit review:

Whatever may have been the rule at
common law, a father’s duty of support today
does not end with the furnishing of mere
necessities if he is able to afford more. 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.
In Hecht v. Hecht, 189 Pa. Super. 276,
283, 150 A.2d 139, 143, Woodside, J.,
observed:
Children of wealthy parents are
entitled to the educational
advantages of travel, private
lessons in music, drama, swimming,
horseback riding, and other
activities in which they show
interest and ability. It is
possible that a child with nothing
more than a house to shelter him,
a coat to keep him warm and
 -27-
sufficient food to keep him
healthy will be happier and more
successful than a child who has
all the advantages, but most
parents strive and sacrifice to
give their children advantages
which cost money. Much of the
special education and training
which will be of value to people
throughout life must be given them
when they are young, or be forever
lost to them.
What amount is reasonable for a child’s
support is to be determined with reference
to the special circumstances of the
particular parties. Things which might
properly be deemed necessaries by the family
of a man of large income would not be so
regarded in the family of a man whose
earnings were small and who had not been
able to accumulate any savings. In
determining that amount which is reasonable,
the trial judge has a wide discretion with
which this court will not interfere in the
absence of a manifest abuse.
It is never the purpose of a support
order to divide the father’s wealth or to
distribute his estate. Furthermore, even
though the father be a man of great wealth,
an excessive award which would encourage
extravagant expenditures either by the child
or in his behalf would not be in his best
interest.

Williams v. Williams, 261 N.C. 48, 57-58, 134 S.E.2d 227, 234

(1964) (citations, quotation marks, and ellipses omitted);

Atwell, 74 N.C. App. at 234, 328 S.E.2d at 49.

The trial court’s order seems to “divide the father’s

wealth” by basing child support upon a number calculated by
 -28-
adding one-third of plaintiff’s “shared family expenses” to the

child’s historical individual expenses. Id. at 58, 134 S.E.2d

at 234. The order also finds that plaintiff resides in Los

Angeles, California, but fails to make any findings of fact as

to how plaintiff’s expenses incurred in California, which

apparently do not include any child-related expenditures, relate

to the expenses of raising a child, even the child of a wealthy

parent, in Charlotte, North Carolina.

A child support award can be made by using estimates of

needs based upon the higher standard of living made possible by

plaintiff’s means, but the trial court must make findings of

fact which assign a monetary value to these needs. See Payne

v. Payne, 91 N.C. App. 71, 75, 370 S.E.2d 428, 431 (1988)

(“Although an equation for child support does not lend itself to

an exact mathematical calculation, it is difficult, if not

impossible, to know whether a trial judge has made a complete

and reasonable assessment of the child’s needs and the parties’

abilities to pay when the needs-variable has no monetary

value.”). As such, upon remand we also instruct the trial court

to make findings of fact, specifically with monetary values, as

to the child’s reasonable needs in light of the abilities of the

parents to provide support.
 -29-
C. Defendant’s Child Support Obligation

The trial court found defendant’s portion of responsibility

for support of the minor child to be $100.00 per month, which

plaintiff argues is too low, but at the very least should offset

his own obligation by $100.00. But the order does not state

that the total child support obligation of both parents is

$7,342.84 per month, but rather that “Plaintiff/Father should

have a child support obligation of $7,342.84 per month[,]” and

thus we see no merit in his argument that his child support

obligation should be reduced by defendant’s child support

obligation. But, as discussed above, we are reversing and

remanding the child support award for several reasons, and on

remand the trial court should take into account, in a manner

this Court can review, “the estates, earnings, conditions,

accustomed standard of living” of both parties in calculating

the child support obligation. N.C. Gen. Stat. § 50-13.4(c); see

Coble v. Coble, 300 N.C. at 712, 268 S.E.2d at 189. The trial

court found unchallenged that defendant did have an income, and

the trial court must consider the relative abilities and

financial circumstances of both parties; though plaintiff’s

earnings and estate may be far greater than defendant’s,

defendant’s circumstances must also be taken into account. See
 -30-
N.C. Gen. Stat. § 50-13.4(c); Coble v. Coble, 300 N.C. at 712,

268 S.E.2d at 189.

But despite the need for findings with monetary amounts for

incomes and expenses, we acknowledge that not all of the factors

under North Carolina General Statute § 50-13.4(c) can be

quantified. See N.C. Gen. Stat. § 50-13.4(c). The trial court

is directed to take into account “the child care and homemaker

contributions of each party, and other facts of the particular

case[,]” in setting child support; id., these factors are less

susceptible to descriptions in monetary terms. Particularly, in

a case such as this, where plaintiff lives thousands of miles

away and has no role at all in the child’s daily care and life,

it is appropriate for the trial court to consider the fact that

defendant bears 100% of the daily responsibilities of child care

and making a home for the child. See id. Only defendant will

make the daily physical and emotional sacrifices required to

raise a child. All the law requires of plaintiff is to make a

monthly payment. If the trial court does consider defendant’s

non-monetary, but truly priceless, contributions, it should make

findings of fact regarding those contributions so that its use

of this factor may be reviewed on appeal. See Atwell, 74 N.C.

App. at 234, 328 S.E.2d at 49.
 -31-
D. Summary of Prospective Child Support

In summary, we reverse the trial court’s award for child

support and remand for the trial court to make specific findings

of fact, including plaintiff’s income stated in a monetary

value, plaintiff’s ability to pay, the child’s reasonable needs

stated in a monetary value, and to make any further findings of

fact or conclusions of law that would be necessary to set

support obligations for both parties in a manner that would be

reviewable by this Court.

IV. Attorney Fees

Lastly, plaintiff argues that the trial court erred in

awarding attorney fees to defendant. Plaintiff challenges the

finding of facts supporting the award.

A. Finding Regarding Refusal to Provide Support

In an action or proceeding for the
custody or support, or both, of a minor
child . . . the court may in its discretion
order payment of reasonable attorney’s fees
to an interested party acting in good faith
who has insufficient means to defray the
expense of the suit. Before ordering payment
of a fee in a support action, the court must
find as a fact that the party ordered to
furnish support has refused to provide
support which is adequate under the
circumstances existing at the time of the
institution of the action or proceeding[.]
 -32-
N.C. Gen. Stat. § 50-13.6 (2011). “Whether these statutory

requirements have been met is a question of law, reviewable on

appeal. Only when these requirements have been met does the

standard of review change to abuse of discretion for an

examination of the amount of attorney’s fees awarded.” Simpson

v. Simpson, 209 N.C. App. 320, 323, 703 S.E.2d 890, 892 (2011)

(citations and quotations omitted).

Plaintiff contends,

[t]he trial court made no finding [he]
“refused to provide support which is
adequate under the circumstances existing at
the time of the institution of the action or
proceeding.” It is well established that in
a child support, action, this finding is a
necessary prerequisite to an award of
attorneys’ fees. Hudson, 299 N.C. at 472-
73, 263 S.E.2d at 723-24.

Indeed,

[b]efore a court may award fees in an action
solely for child support, the court must
make the required finding under the second
sentence of the statute: that the party
required to furnish adequate support failed
to do so when the action was initiated. On
the other hand, when the proceeding or
action is for both custody and support, the
court is not required to make that finding.

Spicer v. Spicer, 168 N.C. App. 283, 296, 607 S.E.2d 678, 687

(2005) (emphasis added) (citation omitted). Plaintiff thus

contends that his action was only an action for support.
 -33-
Plaintiff, citing Gibson v. Gibson, 68 N.C. App. 566, 316

S.E.2d 199 (1984), argues that “the mere fact a lawsuit includes

claims for support and custody does not convert a proceeding

into one for both custody and support where custody is not

contested.” Plaintiff then directs our attention to the fact

that both parties agreed from the outset of this case that

defendant would have sole legal and physical custody of the

child. However, Gibson states,

the issue of custody had been settled in
Hudson by a consent order entered twenty
months prior to the order concerning the
child support while here the issue of
custody, though uncontested, was settled by
the judgment of the court some five months
prior to the entry of the child support
judgment. What appears to be important,
however, is not how the custody issue was
settled or when but that it was settled and
was not at issue when the judgment
concerning support was entered.

Gibson, 68 N.C. App. at 574, 316 S.E.2d at 105 (emphasis added).

Here, the order being appealed from is entitled “ORDER (RE:

PERMANENT CHILD CUSTODY AND CHILD SUPPORT)[.]” Furthermore,

unlike in Hudson and Gibson, see id., the order on appeal is the

first and only order that grants legal and physical custody of

the child to defendant. Although plaintiff and defendant may

have believed and acted as though they had resolved the custody

claims before entry of the order, custody was still at issue
 -34-
when the case was called for hearing and was not addressed by

the trial court until its final order which also addresses child

support. Custody was therefore “at issue when the judgment

concerning support was entered[;]” id., so this was an action

for custody and support, and the trial court was not required to

find that plaintiff had refused to provide prior support to the

child. See N.C. Gen. Stat. § 50-13.6; Spicer, 168 N.C. App. at

296, 607 S.E.2d at 687.

B. Other Findings of Fact

Lastly, plaintiff contends that “[t]he trial court’s

findings of fact do not support the amount of its award of

attorneys’ fees” because “the trial court made no findings as to

the actual hours spent or what any of the three lawyers

representing . . . [defendant] did or the time they spent on the

case, or the reasonableness of the work or time spent” or

defendant’s attorneys’ “skill or experience.” Plaintiff again

also notes that the failure of the trial court to find his

income meant it could not rightfully find he had the ability to

pay the attorney fees. We disagree.

The trial court reviewed the attorney fee affidavits and

found the fees to be “necessary and reasonable[;]” the trial

court also made several findings of fact regarding defendant’s
 -35-
attorney fees including, the necessity and reasonableness of the

fees, the attorney’s rate, that the rate is reasonable as

compared to others with like experience and skill, the

“reasonable rates” of others in the firm who assisted on the

case, and the total amounts charged. We conclude that the trial

court made sufficient findings of fact to support the award of

attorney fees.

Regarding plaintiff’s ability to pay the award of attorney

fees, plaintiff has cited no authority requiring the trial court

to find he is able to pay defendant’s attorney fees. North

Carolina General Statute § 50-13.6 provides in relevant part

simply that

[i]n an action or proceeding for the
custody or support, or both, of a minor
child, including a motion in the cause for
the modification or revocation of an
existing order for custody or support, or
both, of a minor child . . . the court may
in its discretion order payment of
reasonable attorney’s fees to an interested
party acting in good faith who has
insufficient means to defray the expense of
the suit[;]

N.C. Gen. Stat. § 50-13.6, the statute has no requirement that

the trial court also find that the party being ordered to pay

these fees have the ability to pay, and although some cases have

mentioned an obligor’s ability to pay, we have found no
 -36-
requirement that a trial court make this finding of fact. North

Carolina General Statute § 50-13.6 places this matter in the

trial court’s discretion, see id., and plaintiff has failed to

demonstrate an abuse of discretion as to the trial court’s

attorney fee award.

C. Summary of Attorney Fees

In summary, we affirm the trial court’s award for attorney

fees.

V. Conclusion

In conclusion, for the award of retroactive child support,

we reverse the award for nursery expenses and maternity clothes

prior to the child’s birth because there is no legal basis for

making such an award; we reverse the award for nursery expenses

and basic needs after the birth because there was not sufficient

evidence that such expenses were incurred prior to the filing of

plaintiff’s complaint; and we reverse and remand the order as to

the expenses for daycare, child care, and birth for the trial

court to consider the plaintiff’s ability to pay during the time

for which reimbursement is sought and how these expenses should

be apportioned between plaintiff and defendant. As to the

award of prospective child support, we reverse the trial court’s

award for child support and remand for the trial court to make
 -37-
specific findings of fact, including plaintiff’s income stated

in a monetary value, plaintiff’s ability to pay, the child’s

reasonable needs stated in a monetary value, and to make any

further findings of fact or conclusions of law that would be

necessary to set support obligations for both parties in a

manner that would be reviewable by this Court. As to the award

of attorney fees, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED.

Judges MCGEE and BRYANT concur.