Stein v. Brasington

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-460
NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

ELLEN STEIN (BRASINGTON),
Plaintiff

v. Wake County
No. 09 CVD 7126
SCOTT A. BRASINGTON,
Defendant.

Appeal by plaintiff from orders entered 18 March 2011 and

20 December 2012 by Judge Lori G. Christian in Wake County

District Court. Heard in the Court of Appeals 26 September

2013.

Wake Family Law Group, by Marc W. Sokol and Julianne B.
Rothert, for plaintiff-appellant.

Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for
defendant-appellee.

DAVIS, Judge.

Ellen Brasington, now Ellen Stein (“Plaintiff”), appeals

from the trial court’s 18 March 2011 child support order and 20

December 2012 order granting in part and denying in part the

parties’ respective motions under Rules 52, 59, and 60.

Plaintiff’s primary argument on appeal is that the trial court
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erred in imputing income to her when calculating child support

because its findings were not supported by competent evidence.

After careful review, we affirm in part, vacate in part, and

remand for additional findings.

Factual Background

Plaintiff and Scott A. Brasington (“Defendant”) were

married on 10 May 1997, separated on 16 March 2008, and are now

divorced. The parties have four minor children. Since their

separation, the parties have been “operating voluntarily under a

50/50 shared custodial schedule.” On 3 November 2009, the trial

court entered a consent order maintaining the equal physical

custody arrangement.

On 28 June 2010, Plaintiff filed a request to deviate from

the North Carolina Child Support Guidelines. The trial court

held a hearing on 30 August 2010 and entered its child support

order on 18 March 2011. The trial court determined that no

evidence was presented to justify a deviation from the Child

Support Guidelines, imputed income to both parties, and ordered

Defendant to pay Plaintiff monthly child support payments of

$451.00.

On 28 March 2011, both parties filed motions regarding the

trial court’s 18 March 2011 child support order. Defendant
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moved for a new trial or the entry of an amended judgment

pursuant to Rule 59 of the North Carolina Rules of Civil

Procedure, alleging that the trial court improperly calculated

his imputed income. Plaintiff’s motion requested that the trial

court amend the order, set aside the order, or order a new trial

pursuant to Rules 52, 59, and 60. In her motion, Plaintiff

contended that findings of fact 17, 18, and 21 were not

supported by competent evidence.

The parties’ motions came on for hearing on 11 October

2011. On 20 December 2012, the trial court entered an order

partially granting and partially denying the parties’ respective

motions. The court concluded that “there is no good cause for

the granting of either party’s various and sundry motions under

Rules 52, 59, and 60 of the North Carolina Rules of Civil

Procedure with respect to the March 18, 2011 child support order

previously entered by this Court, except in so far as finding of

fact 17(e) of that order miscalculated 20% of the rental income

of the property partially owned by the Plaintiff.”

The trial court proceeded to recalculate Plaintiff’s income

and adjust Defendant’s child support payments accordingly. The

trial court also computed Defendant’s child support arrearages,

which are not being contested on appeal, in its 20 December 2012
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order. Plaintiff timely appeals from the 18 March 2011 and the

20 December 2012 orders.1

Analysis

On appeal, Plaintiff asserts that the trial court erred by

imputing income to her because its findings of fact regarding

the calculation of her imputed income are not supported by

competent evidence. Plaintiff likewise argues that the trial

court erred in partially denying her Rule 52(b), 59, and 60

motions based on her same contention that these findings are

unsupported.

When entering a child support award, the trial court is

required to make specific findings of fact and conclusions of

law to support its order. Leary v. Leary, 152 N.C. App. 438,

441-42, 567 S.E.2d 834, 837 (2002). “This Court’s review of a

trial court’s child support order is limited to whether there is

competent evidence to support the findings of fact, despite the

fact that different inferences may be drawn from the evidence.”

1
The thirty day period for appealing the 18 March 2011 order was
tolled by the parties’ respective motions under Rules 52(b) and
59. See N.C.R. App. P.3(c)(3) (“[I]f a timely motion is made by
any party for relief under Rules 50(b), 52(b), or 59 of the
Rules of Civil Procedure, the thirty day period for taking
appeal is tolled as to all parties until entry of an order
disposing of the motion . . . .”).
 -5-
Hodges v. Hodges, 147 N.C. App. 478, 482-83, 556 S.E.2d 7, 10

(2001).

Plaintiff contends that the following findings of fact are

not supported by competent evidence:

17. The rental property plaintiff owns with
her current father-in-law[:] This property
produces for her a gross personal income,
after expenses, of $71,280.00. The court
finds this figure through the evidence
presented at trial because the plaintiff’s
testimony and explanation concerning this
rental property is not credible:

a. Plaintiff placed $65,000.00 of her
own money as a down payment on this
property.

b. The property was purchased with
renters already scheduled for the
year.

c. The property rents for $7,500.00 per
week. If it rents for just three
weeks per month for only 10 months,
this produces a gross income of
$225,000.00 per year.

d. The first and second mortgages on the
property are $3,200.00 and $700.00
respectively. This totals $46,800.00
per year for mortgage payments.

e. The reasonable expenses for this
property are calculated as 20% of the
gross income minus the expense for
the mortgages or $35,640.00. Eg.
($225,000.00 – $46,800.00) x 20% =
$35,640.00.

f. This leaves $142,560.00 in net
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profits which is divided between the
plaintiff and her father-in-law.
Therefore, plaintiff has a gross
personal income from this property of
$71,280.00.

18. In addition, plaintiff has a masters
degree in nursing which she earned in
December 2009 from Duke University. She has
never taken the required test, although
eligible, to become a practicing nurse and
refuses to work as a nurse due to her
statement that she is pursuing a career in
the “business side” of nursing. Plaintiff
is voluntarily underemployed and is
deliberately suppressing her income. She
could earn at least $50,000.00 per year as a
practicing nurse, but for her intentional
underemployment and deliberate income
suppression working as a sales person at the
Apple Store for $10/hr.

21. It is inconceivable that the plaintiff
spends this much money in a given month,
travels and spends what she does on the high
lifestyle for her children, but only works
at the Apple store for $10/hr. Her
lifestyle and spending habits for the
children are commensurate with someone with
a masters degree in nursing from Duke
University and income from her
investment/rental property. Her income from
the Apple Store does not come any where near
her expenses and cannot meet those expenses.
Her deliberate income suppression requires
the court to impute income to her in the
amount commensurate as stated hereinabove or
$128,280 per year or $10,106.67 per month.

We discuss each finding in turn.

Plaintiff first asserts that finding of fact 17 is

unsupported because the “undisputed evidence” she offered at
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trial indicated that her rental property in the Outer Banks did

not generate a profit in 2010 and was not expected to make a

profit in 2011. In making this argument, however, Plaintiff

disregards the fact that the trial court expressly found that

Plaintiff’s testimony regarding the rental property was “not

credible.”

“In a non-jury trial, the weight, credibility, and

convincing force of the evidence is for the trial court, who is

in the best position to observe the witnesses and make such

determinations.” Meehan v. Lawrence, 166 N.C. App. 369, 385,

602 S.E.2d 21, 31 (2004) (citation, quotation marks, and

brackets omitted); see Burnett v. Wheeler, 133 N.C. App. 316,

318, 515 S.E.2d 480, 482 (1999) (“This Court is deferential to

determinations of child support by district court judges, who

see the parties and hear the evidence first-hand.”).

In this case, the trial court made multiple findings

concerning Plaintiff’s lack of credibility at trial.

Specifically, the trial court (1) “[did] not find the

plaintiff’s testimony credible about her income and expenses

through her testimony at trial and through her deposition;” (2)

determined that Plaintiff’s testimony regarding her current

husband’s financial situation was “not credible and evasive”;
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(3) found that “[P]laintiff is not credible”; and (4) determined

that Plaintiff’s explanation concerning the $45,000.00 in

deposits to her account was “not credible” and that “[m]oney is

coming into the plaintiff from some source, but [it] is unclear

to where the funds are coming from.” The trial court also found

that Plaintiff was voluntarily underemployed and “deliberately

suppressing her income which is a deliberate disregard to the

financial needs of the minor children.” Based on its assessment

of the credibility of Plaintiff’s testimony concerning her

financial status, the trial court elected to perform its own

calculation of the gross income derived from the rental property

by determining its potential annual income and subtracting

mortgage payments and reasonable expenses.

“Generally, a party’s ability to pay child support is

determined by that party’s actual income at the time the award

is made.” McKyer v. McKyer, 179 N.C. App. 132, 146, 632 S.E.2d

828, 836 (2006). However, when a party is found to be

deliberately depressing his or her income or otherwise acting

“in deliberate disregard of the obligation to provide reasonable

support for the child[ren],” the trial court may utilize the

party’s capacity to earn income as the basis for a child support

award. Metz v. Metz, 212 N.C. App. 494, 500, 711 S.E.2d 737,
 -9-
741 (2011) (citation and quotation marks omitted). The

imputation of income requires a showing of bad faith by that

party, which may be met through evidence of “a sufficient degree

of indifference to the needs of [the] . . . child[ren],”

McKyer, 179 N.C. App. at 146, 632 S.E.2d at 836, or evidence

that the party is “indulging in excessive spending to avoid

family responsibilities,” State ex. rel. Williams v. Williams,

179 N.C. App. 838, 841, 635 S.E.2d 495, 497 (2006) (citation and

quotation marks omitted).

We conclude that the trial court’s unchallenged findings of

fact 14 and 16 stating that (1) Plaintiff is “voluntarily

underemployed” and “deliberately suppressing her income” as an

Apple Store employee, earning $10.00 per hour; and (2) given her

monthly expenses of $7,000.00, “Plaintiff does not have the

luxury to work in this voluntarily underemployed status as this

is a deliberate disregard to the financial needs of the

children,” are sufficient to support its imputation of income to

Plaintiff from the rental property. See Crenshaw v. Williams,

211 N.C. App. 136, 142, 710 S.E.2d 227, 232 (2011)

(“Unchallenged findings are presumed to be supported by

competent evidence and are binding on appeal.” (citation,

quotation marks, and brackets omitted)).
 -10-
Indeed, in the rental property context, this Court has

specifically noted that when the evidence indicates that a party

is deliberately suppressing income and “failing to make a good

faith effort to obtain the best and highest rental income from

the properties, then the trial court would be required to

utilize the potential rather than the actual income from the

operation of these rental properties . . . .” Lawrence v. Tise,

107 N.C. App. 140, 148, 419 S.E.2d 176, 181 (1992). When

calculating gross income from rental payments, the North

Carolina Child Support Guidelines instruct trial courts to

subtract “ordinary and necessary expenses” from the gross

receipts to arrive at the “appropriate level of gross income

available to a parent to satisfy a child support obligation.”

Form AOC-A-162, Rev. 1/11. Here, the trial court made detailed

findings calculating the potential gross receipts from the

rental property by computing weekly rental fees — based on a

figure to which Plaintiff testified — for 30 weeks per year.

The trial court then subtracted out the payments for the two

mortgages and reasonable expenses for upkeep and maintenance.

Finally, the court divided the total sum in half because

Plaintiff’s investment partner was entitled to one half of the

income from the property.
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While Plaintiff contends that the sum arrived at by the

trial court was unreasonable because it does not reflect the

evidence she presented at trial, it is well established that

“[t]he mere introduction of evidence does not entitle the

proponent to a finding thereon, since the finder [of fact] must

pass on its weight and credibility.” Long v. Long, 71 N.C. App.

405, 407, 322 S.E.2d 427, 430 (1984). In light of the trial

court’s determinations that (1) Plaintiff’s testimony regarding

her financial welfare was “evasive”; (2) she was deliberately

suppressing her income; and (3) Plaintiff had several large

deposits into her bank accounts that she was not able to account

for, we cannot conclude that the trial court’s method of

calculating the income generated by the rental property was

“manifestly unsupported by reason.” See Williams, 179 N.C. App.

at 839-40, 635 S.E.2d at 497 (“To disturb the trial judge’s

calculation [of child support], the appellant must demonstrate

that the ruling was manifestly unsupported by reason.”).

Plaintiff next challenges findings of fact 18 and 21, both

of which address her nursing degree from Duke University, her

current employment at the Apple Store, and the trial court’s

determination that she was deliberately suppressing her income.

Plaintiff first draws our attention to the fact that she
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received an undergraduate degree in nursing from Duke in 2008 —

contrary to the trial court’s findings of fact, which state that

she received her master’s degree in 2009. While we acknowledge

that these portions of the trial court’s findings 18 and 21 are

erroneous, we conclude that these slight inaccuracies do not

rise to the level of reversible error. See In re Estate of

Mullins, 182 N.C. App. 667, 670-71, 643 S.E.2d 599, 601 (“In a

non-jury trial, where there are sufficient findings of fact

based on competent evidence to support the trial court’s

conclusions of law, the judgment will not be disturbed because

of other erroneous findings which do not affect the

conclusions.” (citation omitted)), disc. review denied, 361 N.C.

693, 652 S.E.2d 262 (2007).

Moreover, Plaintiff has asserted no argument as to how she

was prejudiced by this error. See Smallwood v. Smallwood, ___

N.C. App. ___, ___, 742 S.E.2d 814, 821 (2013) (explaining that

“appellant has the burden not only to show error, but also to

show that the alleged error was prejudicial and amounted to the

denial of some substantial right” (citation and quotation marks

omitted)).

Plaintiff also contends that the portions of findings 18

and 21 imputing income to her based on a potential salary of
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$50,000.00 per year were not supported by competent evidence.

While we conclude that the trial court’s finding that Plaintiff

was deliberately suppressing her income is supported by the

evidence and the unchallenged findings as discussed above, we

“must remand for additional findings of fact regarding the

proper amount” of income to be imputed to Plaintiff. McKyer,

179 N.C. App at 148, 632 S.E.2d at 838.

The Child Support Guidelines require trial courts to base

the income imputed to a parent “on the parent’s employment

potential and probable earnings level based on the parent’s

recent work history, occupational qualifications and prevailing

job opportunities and earning levels in the community.” Form

AOC-A-162, Rev. 1/11. Here, the trial court determined that

Plaintiff “could earn at least $50,000.00 per year as a

practicing nurse” and used this amount in calculating her total

imputed income. However, the sum of $50,000.00 appears to be

based solely on Plaintiff’s testimony at trial that she had

applied for a position in the information technology department

of a hospital that concentrated on nursing programs and had a

starting salary of “probably 50 or 60” thousand dollars. We do

not believe that this testimony sufficiently supports the trial

court’s determination that Plaintiff “could earn at least
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$50,000.00 as a practicing nurse.” While the trial court made

findings concerning Plaintiff’s occupational qualifications, it

made no findings regarding the availability of nursing positions

in the community or the typical starting salary of a nurse.

In McKyer, this Court remanded to the trial court for

additional findings where the child support order “provide[d]

ample support for the trial court’s decision to impute income”

to the plaintiff but lacked sufficient findings “to support the

trial court’s determination of the amount of income that should

be imputed” because there were no findings regarding (1) whether

the plaintiff’s employer would permit him to work five days a

week rather than the one day a week he had been working; (2) the

availability of other full-time employment that would pay at his

present hourly wage; and (3) the effect of the plaintiff’s

status as a part-time student. McKyer, 179 N.C. App. at 147-48,

632 S.E.2d at 837-38. We believe that McKyer is analogous to

the present case, and therefore, we likewise remand for

additional findings concerning the amount of income to be

imputed to Plaintiff.

Because we are remanding for further findings regarding the

proper amount of income to be imputed to Plaintiff, we vacate

the portion of the trial court’s 20 December 2012 order
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determining that Defendant’s ongoing child support obligation is

$504.00 per month as this sum is based — in part — upon the

amount of income that the trial court imputed to Plaintiff. See

Crosby v. Crosby, 272 N.C. 235, 238-39, 158 S.E.2d 77, 80 (1967)

(“[W]hen the court fails to find facts so that this Court can

determine that the order is adequately supported by competent

evidence . . . then the order entered thereon must be vacated

and the case remanded for detailed findings of fact.”).

Conclusion

For the reasons stated above, we affirm in part, vacate in

part, and remand for additional findings regarding the amount of

income to be imputed to Plaintiff.

AFFIRMED IN PART; VACATED IN PART; REMANDED IN PART.

Judges HUNTER, JR. and ERVIN concur.

Report per Rule 30(e).