NO. 13-760
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
ALANA WILLIAMS RESPESS,
Plaintiff,
v. Beaufort County
No. 07 CVD 606
08 CVD 570
MURPHY TODD RESPESS,
Defendant,
and
BOYD AND SUSAN RESPESS,
Intervenors.
Appeal by defendant from order entered 16 October 2012 by
Judge Christopher B. McLendon in Beaufort County District Court.
Heard in the Court of Appeals 11 December 2013.
Pritchett & Burch, PLLC, by Lloyd C. Smith, Jr., Lloyd C.
Smith, III, and R. Gray Jernigan for plaintiff-appellee.
Ward and Smith, P.A., by John M. Martin, for defendant-
appellant.
STEELMAN, Judge.
The trial court did not err by denying visitation with the
minor children to defendant. The trial court did not err by
ordering that plaintiff was entitled to child support or by
imputing income to defendant. The order of the trial court is
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remanded for additional findings on the amount of income to be
imputed to defendant and the amount of retroactive child
support. The trial court did not err by transferring a vehicle
to plaintiff as part of defendant’s child support arrearage
without calculating the value of the vehicle. The trial court’s
award of attorney’s fees to plaintiff included the findings of
fact required by N.C. Gen. Stat. § 50-13.6, and the trial court
did not err in calculating a reasonable amount of attorney’s
fees. However, we remand this issue to the trial court for
findings as to plaintiff’s reasonable expenses as they pertain
to her ability to pay for counsel.
I. Factual and Procedural Background
Plaintiff Alana Respess and defendant Todd Respess were
married on 22 August 1986, separated in 2006, and were divorced
on 15 June 2009. They have four children: Jessica, born in 1987;
Amanda, born 1993; Allysa, born 1998; and Noah, born in 2002. In
2005 defendant admitted to plaintiff that he had engaged in
inappropriate sexual activity with Jessica, and on 3 May 2007
defendant pled guilty to five felony counts of indecent
liberties with a child. In Case No. 05 CRS 54090, he was
sentenced to 16 to 24 months imprisonment, suspended for 36
months of supervised probation on condition that he register as
a sex offender, submit to electronic monitoring, have only
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supervised visitation with his children, and serve a four month
active sentence. This sentence was completed in December 2009.
In Case No. 07 CRS 1209, defendant pled guilty to four
additional counts of indecent liberties, and was sentenced to
consecutive terms of 16 to 24 months imprisonment, with the
first to begin at the expiration of the active sentence in 05
CRS 54090. The four sentences were suspended on the same terms
as in 05 CRS 54090, with the sentences to expire on 28 August
2011, 27 April 2013, 27 December 2015, and 26 April 2017.
On 7 May 2007 plaintiff filed a complaint seeking temporary
and permanent custody of the three minor children (Jessica
reached majority in 2005). Plaintiff alleged that defendant had
violated the conditions established by the Beaufort County DSS
for visitation and that he was not “a fit and proper person” to
have custody of the children. In his answer, defendant
counterclaimed, seeking custody, child support,1 and attorney’s
fees. In her reply, plaintiff requested that defendant be denied
all contact with the minor children. On 21 May 2008 plaintiff
filed a complaint for divorce, child support, equitable
distribution, and attorney’s fees. In his answer, defendant
1
On 12 June 2007 the minor children’s paternal grandparents
(intervenors) moved to intervene and sought visitation with the
minor children. Their motion was granted on 6 August 2007. The
trial court granted the intervenors visitation. The intervenors
are not a party to this appeal.
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denied the material allegations of plaintiff’s complaint and
counterclaimed for child support, equitable distribution, and
attorney’s fees. Plaintiff filed a reply on 25 August 2008. The
parties were granted a divorce on 15 June 2009.
On 16 October 2012 the trial court entered an order on the
issues of child custody, child support, visitation, and the
attorney’s fees associated with litigation of these issues. At
that time only Alyssa and Noah were minors. The provisions of
the court’s order concerning custody, visitation, and
prospective child support apply only to those two children. The
court made findings concerning defendant’s sexual abuse of
Jessica and his subsequent behavior towards her and his other
children, and concluded that it would be “totally inappropriate”
and detrimental to the best interests of the children for
defendant to have “visitation or custodial relationships of any
type” with the minor children. The trial court also made
findings concerning the effect of defendant’s sexual abuse upon
his employment situation, and found that it was appropriate for
the court to impute an income of approximately $50,000 a year to
defendant, an amount that was about half of his previous annual
earnings. The trial court concluded that plaintiff was entitled
to retroactive and prospective child support, and to attorney’s
fees.
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Defendant appeals.
II. Denial of Visitation to Defendant
In his first argument, defendant contends that the trial
court committed reversible error by denying him visitation with
the minor children. We disagree.
A. Standard of Review
“Under our standard of review in custody proceedings, ‘the
trial court’s findings of fact are conclusive on appeal if there
is evidence to support them, even though the evidence might
sustain findings to the contrary.’ Whether those findings of
fact support the trial court's conclusions of law is reviewable
de novo.” Mason v. Dwinnell, 190 N.C. App. 209, 221, 660 S.E.2d
58, 66 (2008) (quoting Owenby v. Young, 357 N.C. 142, 147, 579
S.E.2d 264, 268 (2003) (other citation omitted). “A trial
court’s unchallenged findings of fact are ‘presumed to be
supported by competent evidence and [are] binding on appeal.’ If
the trial court’s uncontested findings of fact support its
conclusions of law, we must affirm the trial court’s order.”
Mussa v. Palmer-Mussa, 366 N.C. 185, 191, 731 S.E.2d 404, 409
(2012) (quoting Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d
729, 731 (1991) (other citation omitted).
B. Analysis
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Defendant argues, based on the holding of Moore v. Moore,
160 N.C. App. 569, 587 S.E.2d 74 (2003), that the trial court
did not comply with the provisions of N.C. Gen. Stat. § 50-
13.5(i), and contends the trial court’s finding that it was not
in the children’s best interests to have visitation with him was
not supported by its other findings.
Under N.C. Gen. Stat. § 50-13.1(a) “the word ‘custody’
shall be deemed to include custody or visitation or both.” It is
long-established that a trial court’s determination of child
custody, including visitation, must be guided by the best
interests of the child:
[W]e apprehend the true rule to be that the
court’s primary concern is the furtherance
of the welfare and best interests of the
child and its placement in the home
environment that will be most conducive to
the full development of its physical,
mental, and moral faculties. All other
factors, including visitorial rights of the
other applicant, will be deferred or
subordinated to these considerations[.]
Griffith v. Griffith, 240 N.C. 271, 275, 81 S.E.2d 918, 921
(1954). This standard is incorporated in N.C. Gen. Stat. § 50-
13.2(a), which directs the trial court to “award the custody of
[a] child to such person . . . as will best promote the interest
and welfare of the child.”
It is also well-established that “the applicable standard
of proof in child custody cases is by a preponderance, or
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greater weight, of the evidence.” Speagle v. Seitz, 354 N.C.
525, 533, 557 S.E.2d 83, 88 (2001) (citing Jones v. All American
Life Ins. Co., 312 N.C. 725, 733, 325 S.E.2d 237, 241 (1985)).
Although courts seldom deny visitation rights to a non-
custodial parent, a trial court may do so if it is in the best
interests of the child:
[T]he welfare of a child is always to be
treated as the paramount consideration[.] .
. . Courts are generally reluctant to deny
all visitation rights to the divorced parent
of a child of tender age, but it is
generally agreed that visitation rights
should not be permitted to jeopardize a
child's welfare.
Swicegood v. Swicegood, 270 N.C. 278, 282, 154 S.E.2d 324, 327
(1967) (citing Griffin v. Griffin, 237 N.C. 404, 75 S.E. 133
(1953)). See also, In re Custody of Stancil, 10 N.C. App. 545,
551, 179 S.E.2d 844, 848-49 (1971) (“‘The rule is well
established in all jurisdictions that the right of access to
one’s child should not be denied unless the court is convinced
such visitations are detrimental to the best interests of the
child.’”) (quoting Willey v. Willey, 253 Iowa 1294, 1302, 115
N.W. 2d 833, 838 (1962)). This principle is codified in N.C.
Gen. Stat. § 50-13.5(i), which provides that:
In any case in which an award of child
custody is made in a district court, the
trial judge, prior to denying a parent the
right of reasonable visitation, shall make a
written finding of fact that the parent
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being denied visitation rights is an unfit
person to visit the child or that such
visitation rights are not in the best
interest of the child. (emphasis added).
The statutory language is straightforward and unambiguous
and requires that if a trial court does not grant reasonable
visitation to a parent, its order must include a finding either
that the parent is “an unfit person to visit the child” or that
visitation with the parent is “not in the best interest of the
child.” Although our Supreme Court has not issued an opinion
discussing this statute, during the past 30 years this Court has
issued numerous opinions applying N.C. Gen. Stat. § 50-13.5(i).
For example, in King v. Demo, 40 N.C. App. 661, 666-667, 253
S.E.2d 616, 620 (1979), we stated that:
Unless the child’s welfare would be
jeopardized, courts should be generally
reluctant to deny all visitation rights to
the divorced parent of a child of tender
age. Moreover, G.S. 50-13.5(i) provides
[that] . . . “prior to denying a parent the
right of reasonable visitation, [the trial
court] shall make a written finding of fact
that the parent being denied visitation
rights is an unfit person to visit the child
or that such visitation rights are not in
the best interest of the child.”
(citing Swicegood, and Stancil). And, in Johnson v. Johnson, 45
N.C. App. 644, 647, 263 S.E.2d 822, 824 (1980), we held that:
In awarding visitation privileges the court
should be controlled by the same principle
which governs the award of primary custody,
that is, that the best interest and welfare
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of the child is the paramount consideration.
. . . G.S. 50-13.5(i) provides that “[i]n
any case in which an award of child custody
is made in a district court, the trial
judge, prior to denying a parent the right
of reasonable visitation, shall make a
written finding of fact that the parent
being denied visitation rights is an unfit
person to visit the child or that such
visitation rights are not in the best
interest of the child.”
(citing Swicegood). During the 33 years since Johnson was
decided, we have consistently followed both its application of
the best interests standard to disputes between parents
regarding child custody and visitation, and its acceptance of
the plain language of N.C. Gen. Stat. § 50-13.5(i). See, e.g.,
Correll v. Allen, 94 N.C. App. 464, 471, 380 S.E.2d 580, 584
(1989) (“Visitations may be denied if visitation is not in the
child’s best interest.”) (citation omitted); Raynor v. Odom, 124
N.C. App. 724, 733, 478 S.E.2d 655, 660 (1996) (“G.S. 50-13.5(i)
requires that ‘the trial judge prior to denying a parent the
right of reasonable visitation, shall make a written finding of
fact that the parent being denied visitation rights is an unfit
person to visit the child or that such visitation rights are not
in the best interests of the child.’”); and Maxwell v. Maxwell,
212 N.C. App. 614, 622, 713 S.E.2d 489, 495 (2011) (“Our General
Assembly has provided that: ‘. . . prior to denying a parent the
right of reasonable visitation, [the trial court] shall make a
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written finding of fact that the parent being denied visitation
rights is an unfit person to visit the child or that such
visitation rights are not in the best interest of the child.’
N.C. Gen. Stat. § 50-13.5(i) (2009)”). Thus, “it is generally
agreed that visitation rights should not be permitted to
jeopardize a child's welfare.” Swicegood, 270 N.C. at 282, 154
S.E. 2d at 327.
In the present case, the trial court found, as required by
N.C. Gen. Stat. § 50-13.5(i), that it would not be in the
children’s best interests to have any visitation with defendant.
This ultimate finding of fact was supported by numerous
evidentiary findings of fact, including the following:
. . .
12. The Court had the opportunity to observe
the demeanor of each of the witnesses called
by the parties and to hear their testimony.
13. The Court formed opinions as to the
veracity of each witness having had the
occasion to observe said witnesses and to
hear their testimony.
14. On August 4, 2005 . . . the Defendant .
. . confessed to [plaintiff] that he had
engaged in inappropriate sexual behavior
with Jessica Respess. . . .
. . .
17. In 2007, the Plaintiff . . . move[ed] to
Kansas[.].
. . .
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30. After the revelations of August 4, 2005
to the Plaintiff by the Defendant, [law
enforcement authorities] . . . began a
criminal investigation of the Defendant[.]
31. On August 18, 2005, the Defendant made a
voluntary statement to Investigators . . .
regarding his voluntary sexual acts with his
minor daughter, Jessica.
32. Said voluntary statement, which was . .
. acknowledged to be true and accurate
during his testimony by the Defendant is
incorporated herein[.]
. . .
34. In March of 2002 . . . Defendant slept
in the same bed with Jessica who . . . [was]
14 years of age. . . . Between February 2003
and August 2004, the Defendant touched
Jessica on her bare breasts many times,
kissed Jessica’s breasts on occasion, and
rubbed Jessica’s vaginal area numerous
times. The Defendant estimates that he put
his finger inside of Jessica’s vagina and
kissed her breasts on at least ten
occasions.
35. Between August 2004 and August 18, 2005,
the Defendant touched Jessica’s breast more
than ten times, rubbed her vaginal area ten
to twelve times, inserted his finger inside
of Jessica’s vaginal area ten or twelve
times, and kissed her bare breasts three or
more times.
36. The Defendant allowed or caused Jessica
to have an orgasm while riding straddled on
top of him a number of times.
37. The Defendant was charged with multiple
sex offenses and indecedent liberties with a
minor child in October of 2005 in Beaufort
County.
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. . .
43. The Defendant was ordered by the
Department of Social Services as conditions
of being able to visit with his children not
to be alone with the children out of the
presence of the Plaintiff, not to kiss the
children on the lips, not to allow them to
sit on his lap . . . [and] not to otherwise
engage any type of physical touching or
activity that could be determined to be
sexual grooming. During the year of 2006,
the Defendant . . . engaged in these
prohibited activities.
. . .
45. Amanda Respess, who is now 18 years of
age but is still in high school, testified
as did her younger sister, Allysa. Both of
these individuals gave forthright testimony
which is highly creditable.
. . .
47. Based upon the testimony of Amanda
Respess and Allysa Respess, which the Court
finds to be creditable, the Court determines
that the Defendant engaged in the following
behaviors:
A. Would rub their chest to awaken them in
the morning, although, they were of an age
to have developed breasts.
B. Would rub lotion on their backs and their
naked buttocks under the pretense of making
sure their skin was soft.
C. Would spend[] hours combing their hair
just as he had previously done with Jessica.
D. After the Defendant was separated from
the home in August of 2005, he suggested to
Amanda that, since she was a minor and an
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excellent shot, that an accidental shooting
of the Plaintiff, her mother, would be
appropriate. . . .
E. Saw both children at inappropriate times
and places in violation of the restrictions
placed on his visitation[.] . . .
F. Would take the minor child, Allysa, by
himself to a barn behind [her] residence . .
. and would threaten Allysa with physical
punishment . . . if she revealed that he had
taken her away from the family unit.
48. Amanda and Allysa Respess both testified
that they wanted no contact with the
Defendant, their father, of any type. . . .
. . .
52. After the Defendant was indicted on the
multiple sexual charges . . . three men who
belonged to the same church as [the
Intervenors] and the Defendant, went to see
the Defendant at his trailer[.] . . .
53. In this meeting . . . the Defendant
stated that he “never molested anyone who
hadn’t reached puberty” and further stated
that if “he wished to live with his
daughter, it was no one else’s business.”
54. Between November 2005 and . . . July
2007, Judy Kilpatrick, a Department of
Social Services case worker, had . . .
conversations with the Defendant[, who] . .
. told [her] many disturbing things which
included but were not necessarily limited to
the following:
A. He had a love affair with Jessica and he
fell in love with her.
B. Jessica came to him and pursued him.
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C. Jessica was a better wife than the
Plaintiff and that he would like to have a
wife like her.
D. The Plaintiff didn’t satisfy his sexual
needs and this was the reason he was
involved with Jessica.
E. The Defendant stated “[Alana] was the
problem” and the reason he engaged in sexual
behavior with his minor child, Jessica.
F. The Defendant referred to his daughter,
Jessica Respess, when she was a minor with
the nickname “Luscious Lips” and admitted
kissing her and his other children directly
on the lips and nibbling with his teeth on
Jessica’s lower lip.
55. The Defendant also . . . told the
Plaintiff . . . that the problems arising
out of his destructive behavior with his
daughter were the fault of the Plaintiff.
56. The Defendant, after he was charged with
criminal indecent liberties . . . left notes
with his daughter, Jessica, suggesting how
she might testify so that his behavior did
not look so bad.
. . .
58. The Defendant also, during the period of
time when he was not supposed to write to or
communicate with his minor children, sent
messages to the minor children[.] . . .
59. The Plaintiff introduced numerous hand-
written letters and notes from the Defendant
to his minor children indicating that he
still did not see anything wrong with what
he had done, which . . . were written and
delivered in violation of the restrictions
imposed upon communication between the
[defendant] and his children[, and] . . .
contained [inappropriate] language[.] . . .
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60. On May 3, 2007, the Defendant entered
pleas of guilty to five counts of indecent
liberties with the minor child, Jessica
Respess.
61. . . . [In] File Number 05 CRS 54090, he
[pled] guilty to a Class F, Level 1 Felony
and was sentenced to . . . [16 to 24] months
of an active sentence suspended for thirty
six months of supervised probation upon the
condition that he register as a sex
offender, submit to electronic monitoring,
have supervised visitation only with his
children, and serve a four month active
sentence in jail. This sentence expired
December 29, 2009.
62. . . . [In] File Number 07 CRS 1209 in
Count 1, he [pled] guilty to the charge of
indecent liberties . . . [and received the
same sentence as in File No. 54090,] to run
at the expiration of the 05 CRS 54090 and
which sentence was suspended on the same
terms and conditions as the sentence handed
down in O5 CRS 54090. . . . [T]his sentence
would expire on August 28, 2011.
63. In this same criminal case, the
Defendant [pled] guilty to a second count of
indecent liberties . . . and [received] an
identical sentence . . . [that] would run at
the expiration of the active sentence in
Count 1 and . . . expire on April 27, 2013.
64. In this same criminal case, the
Defendant [pled] guilty to a third count of
indecent liberties . . . and was sentenced
to an identical sentence as in the first
count . . . [to] run at the expiration of
the active sentence in Count 2 and . . .
expire on December 27, 2015.
65. In this same criminal case, the
Defendant [pled] guilty to a fourth count of
indecent liberties . . . and was sentenced
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to an identical sentence as in the first
count . . . [to] run at the expiration of
the active sentence in Count 3 and . . .
expire on April 26, 2017.
66. If the Defendant were to have
unsupervised visitation or custody as he
sought in his counterclaim, he would be in
violation of the terms of the Superior Court
Order suspending his active sentences.
67. As a condition of the sentence imposed
in . . . file number 05 CRS 54090, the
Defendant served an active prison sentence .
. . from May 2007 through December 2007.
. . .
71. Amanda Respess, having a date of birth
of May 25, 1993 . . . [has] health problems
as she has developed Neurofibromatosis,
which is a disease which affects the nerve
endings in the brain[.] . . .
. . .
75. Allysa Respess . . . is a very mature 13
year old girl who testified creditably in
Court. . . .
. . .
77. The minor child, Noah, is in the fourth
(4th) grade. He is very energetic and enjoys
. . . scholastic and community activities[.]
. . .
80. The three minor children, Amanda,
Allysa, and Noah, are doing extraordinarily
well in Smith Center, Kansas, and their
environment should not be disturbed.
81. The Plaintiff took the children to
family counseling . . . with Cyndee Fintel
who spoke to the Court’s expert, Dr. Harold
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May, and recommended that there be no
visitation between the minor children and
the Defendant.
. . .
85. Dr. Harold May, Ph.D., of the Carolina
Center . . . testified as the Court's
appointed expert.
. . .
89. Dr. May has not seen the minor children
in over three years and six months as of the
date of this hearing.
. . .
91. The present therapist . . . for the
Defendant is Michael Doughtie, who . . .
testified that the Defendant . . . viewed
Jessica more as a wife than as a daughter[,
and that] . . . the sexual abuse of Jessica
had begun at least in 1998.
92. Mr. Doughtie also testified creditably
that as recently as June of 2010, the
Defendant expressed concerns about “Jessica
getting married” and that the Defendant was
“losing her.” These remarks were further
evidence that the Defendant had made Jessica
Respess, in his mind, both a mother and a
wife figure.
93. These comments made to Mr. Doughtie
combined with the Defendant’s other actions
such as grooming the minor children, Amanda
and Allysa, are creditable and strong
evidence indicating that the Defendant
should never have any contact with his three
younger children.
94. The Court rejects the suggestions of Dr.
May that the children should have any
contact with the Defendant as it is not in
the children’s best interest so to do.
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. . .
125. The Defendant engaged in a prolonged,
deliberate, and willful course of sexually
abusing Jessica Respess.
. . .
146. As a further mixed finding of fact and
conclusion of law, the Court concludes that
the Defendant’s . . . sexual molestation of
his oldest daughter over a period of not
less than five (5) years, his refusal to
accept responsibility for it, his continued
obsession with his minor daughter[,] . . .
his grooming behaviors to his two youngest
daughters, the threats he made to his
youngest daughter[], and his refusal to
accept ultimate responsibility make him a
totally inappropriate person to have
visitation or custodial relationships of any
type with his minor children, and the Court
finds as a mixed finding of fact and
conclusion of law that it would be actually
adverse to any good interest of the minor
children for the Defendant to have any
contact whatsoever, and the Court must be
vigilant in preventing the same.
We hold that the trial court made the finding required by N.C.
Gen. Stat. § 50-13.5(i) that it was not in the best interests of
the minor children that defendant have visitation. This finding
was supported by other, unchallenged, findings, and the trial
court did not err by denying visitation to defendant.
In seeking to persuade us to reach a contrary conclusion,
defendant relies primarily on the case of Moore v. Moore, 160
N.C. App. 569, 587 S.E.2d 74 (2003), which he contends is
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“controlling” and requires us to reverse the trial court. After
careful review, we conclude that Moore is not dispositive of
this issue.
Moore arose from a custody dispute between the divorced
parents of a minor child. The plaintiff-father’s visitation
rights were suspended after the child disclosed sexual contact
between the plaintiff and the child. The trial court denied the
plaintiff’s motion to reinstate visitation and found that it
would not be in the child’s best interests for plaintiff’s
visitation to be reinstated. Moore, 160 N.C. App. at 571, 587
S.E.2d at 75. On appeal, this Court reversed the trial court,
based on application of a new standard for a trial court’s
denial of visitation rights, and held for the first time that
(1) a trial court’s denial of visitation is tantamount to
termination of parental rights, and therefore requires the trial
court to apply the “clear, cogent, and convincing” evidence
standard applicable to termination cases; (2) to comply with
N.C. Gen. Stat. § 50-13.5(i), a trial court must apply the
standard applicable to a custody dispute between a parent and a
non-parent, and may not apply the best interests of the child
standard absent a written finding that the parent was unfit or
had engaged in conduct inconsistent with his protected status as
a parent; and (3) the trial court must state that these findings
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were based on clear, cogent, and convincing evidence. Id. at
573-74, 584 S.E.2d at 76.
In this case, the trial court found that visitation between
defendant and the minor children was not in the children’s best
interest, but did not find that defendant was unfit or that his
conduct was inconsistent with his protected parental status, and
did not state that its decision to deny visitation was based on
clear, cogent, and convincing evidence. Defendant argues that
the trial court’s ruling did not comply with the dictates of
Moore. However, we conclude that the standard articulated in
Moore directly conflicts with prior holdings of this Court and
our Supreme Court and therefore does not control our decision in
the instant case.
“According to well-established law, ‘[w]here a panel of the
Court of Appeals has decided the same issue, albeit in a
different case, a subsequent panel of the same court is bound by
that precedent, unless it has been overturned by a higher
court.’” State v. Perry, __ N.C. App. __, __, 750 S.E.2d 521,
534 (quoting In re Appeal of Civil Penalty, 324 N.C. 373, 384,
379 S.E.2d 30, 37 (1989)), disc. review denied, __ N.C. __, 749
S.E.2d 852 (2013). Thus, as a general rule, we are bound by
prior opinions of this Court.
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However, this Court has no authority to reverse existing
Supreme Court precedent. See Rogerson v. Fitzpatrick, 121 N.C.
App. 728, 732, 468 S.E.2d 447, 450 (1996) (“It is elementary
that this Court is bound by holdings of the Supreme Court [of
North Carolina]”) (citation omitted), and Cannon v. Miller, 313
N.C. 324, 327 S.E.2d 888 (1985) (the Court of Appeals lacks
authority to overrule decisions of the Supreme Court of North
Carolina and has a “responsibility to follow those decisions,
until otherwise ordered by the Supreme Court”). “Further, our
Supreme Court has clarified that, where there is a conflicting
line of cases, a panel of this Court should follow the older of
those two lines.” State v. Gardner, __ N.C. App. __, __, 736
S.E.2d 826, 832 (2013) (citing In re R.T.W., 359 N.C. 539, 542
n.3, 614 S.E.2d 489, 491 n.3 (2005), superseded by statute on
other grounds as recognized in In re M.I.W., 365 N.C. 374, 376,
722 S.E.2d 469, 472, rehearing denied, 365 N.C. 568, 724 S.E.2d
512 (2012)).
As discussed above, numerous cases from both this Court and
our Supreme Court have long held that issues of child custody
and visitation are determined by the best interest of the child,
based upon the preponderance of the evidence. In addition, this
Court has consistently interpreted N.C. Gen. Stat. § 50-13.5(i)
as written, without adding additional requirements to the
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statute’s text or deviating from the general rules governing
child custody. The holding of Moore diverged sharply from this
controlling precedent in significant respects.
First, Moore directed trial courts to apply to a custody
dispute between a child’s parents the standard applicable to a
dispute between a parent and a non-parent. In Petersen v.
Rogers, 337 N.C. 397, 403-04, 445 S.E.2d 901, 905 (1994), our
Supreme Court held that, in a custody dispute between a child’s
natural parent and a non-parent, “absent a finding that parents
(i) are unfit or (ii) have neglected the welfare of their
children, the constitutionally-protected paramount right of
parents to custody, care, and control of their children must
prevail.” However, in Owenby, 357 N.C. at 145, 579 S.E.2d at
266-67, which was decided before Moore, our Supreme Court
explicitly ruled that Petersen was inapplicable to a custody
dispute between parents:
We acknowledged the importance of this
liberty interest [of parents] nearly a
decade ago when this Court held: “absent a
finding that parents (i) are unfit or (ii)
have neglected the welfare of their
children, the constitutionally protected
paramount right of parents to custody, care,
and control of their children must prevail.”
. . . Therefore, unless a natural parent’s
conduct has been inconsistent with his or
her constitutionally protected status,
application of the “best interest of the
child” standard in a custody dispute with a
nonparent offends the Due Process Clause of
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the United States Constitution. Furthermore,
the protected right is irrelevant in a
custody proceeding between two natural
parents, whether biological or adoptive, or
between two parties who are not natural
parents. In such instances, the trial court
must determine custody using the “best
interest of the child” test.
(emphasis added) (quoting Petersen, 337 N.C. at 403-04, 445
S.E.2d at 905, and citing Price v. Howard, 346 N.C. 68, 78-79,
484 S.E.2d 528, 534 (1997) (internal citation omitted), Quilloin
v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 520, 98 S. Ct.
549 (1978), and Adams v. Tessener, 354 N.C. 57, 61, 550 S.E.2d
499, 502 (2001)). Moore’s holding that the Petersen presumption
applies to a trial court’s decision to deny visitation rights to
a non-custodial parent contradicts our Supreme Court’s holding
that Petersen is “irrelevant” to a dispute between parents and
that “[i]n such instances, the trial court must determine
custody using the ‘best interest of the child’ test.” Id.
Moore also failed to state a substantive or precedential
basis for its holding that an order denying visitation was the
functional equivalent of the termination of parental rights, and
therefore required a trial court to apply the standards for
termination proceedings. Our jurisprudence has long recognized
significant differences between a child custody order, which is
subject to modification upon a showing of changed circumstances,
and orders for adoption or for termination of parental rights,
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which are permanent. See, e.g., Stanback v. Stanback, 287 N.C.
448, 456, 215 S.E.2d 30, 36 (1975) (“A judicial decree in a
child custody and support matter is subject to alteration upon a
change of circumstances affecting the welfare of the child and,
therefore, is not final in nature.”) (citations omitted), and
Owenby, 357 N.C. at 145, 579 S.E.2d at 267 (“[A] termination of
parental rights order completely and permanently severs all
rights and obligations of the parent to the child and the child
to the parent[.]”) (citation omitted).
We also note that in In re T.K., D.K., T.K., & J.K., 171
N.C. App. 35, 613 S.E.2d 739, aff’d 360 N.C. 163, 622 S.E.2d 494
(2005), we affirmed a trial court’s permanency planning order,
holding that the trial court properly made findings as to the
best interest of the children. Judge Tyson dissented in part,
and argued that the trial court had failed to follow the
standards set out in Moore, that denial of visitation rights
“effectively terminated respondent’s parental rights,” T.K., 171
N.C. App. at 42, 613 S.E.2d at 743, and that the “trial court
erred by denying respondent all visitation rights . . . without
finding her to be unfit or engaging in conduct inconsistent with
her parental rights. Absent proper findings supported by clear,
cogent, and convincing evidence, the trial court’s conclusions
of law are erroneous[.]” Id. at 44, 613 S.E.2d at 744-45 (citing
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Moore). Our Supreme Court rejected this opportunity to ratify or
adopt the holding of Moore, and affirmed the majority opinion.
Prior to the decision in Moore, binding precedent
consistently held that (1) the standard in a custody dispute
between a child’s parents is the best interest of the child; (2)
the applicable burden of proof is the preponderance of the
evidence; (3) the principles that govern a custody dispute
between a parent and a non-parent are irrelevant to a custody
action between parents; and (4) a trial court complies with N.C.
Gen. Stat. § 50-13.5(i) if it makes the finding set out in the
statute. Moore does not acknowledge these cases or articulate a
basis on which to distinguish it from earlier cases. We conclude
that Moore does not control the outcome of this case, and that
defendant is not entitled to relief based on Moore.
Defendant also argues that the trial court’s finding that
visitation between defendant and the minors would not be in the
children’s best interest is not supported by its other findings.
We reject this argument and note the trial court’s extensive
findings, quoted above. We conclude that the trial court did not
commit reversible error by denying defendant visitation and that
the trial court’s ruling in this regard should be affirmed.
III. Child Support
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In his next argument, defendant contends that the trial
court erred by (1) calculating retroactive child support based
upon the child support guidelines, rather than evidence of
plaintiff’s actual expenditures; (2) applying the 2011
guidelines to his retroactive child support obligation, rather
than the 2006 guidelines; (3) imputing an amount of income to
him that was not supported by proper findings; (4) awarding
plaintiff a vehicle without determining its value; and (5)
finding that defendant had willfully refused to pay any child
support without excuse or explanation. We agree in part.
A. Calculation of Retroactive Child Support
“‘Child support awarded prior to the time a party files a
complaint is properly classified as retroactive child support. .
. . Child support awarded, however, from the time a party files
a complaint for child support to the date of trial is . . .
[termed] prospective child support[.]’” Carson v. Carson, 199
N.C. App. 101, 105, 680 S.E.2d 885, 888 (2009) (quoting Taylor
v. Taylor, 118 N.C. App. 356, 361, 455 S.E.2d 442, 446 (1995),
rev’d on other grounds, 343 N.C. 50, 468 S.E.2d 33 (1996)
(internal citations omitted)).
N.C. Gen. Stat. § 50-13.4(c) states that the trial “court
shall determine the amount of child support payments by applying
the presumptive guidelines established pursuant to subsection
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(c1) of this section.” The guidelines in effect at the time of
this hearing state that
[i]n cases involving a parent’s obligation
to support his or her child for a period
before a child support action was filed
(i.e., cases involving claims for
“retroactive child support” or “prior
maintenance”), a court may determine the
amount of the parent’s obligation (a) by
determining the amount of support that would
have been required had the guidelines been
applied at the beginning of the time period
for which support is being sought, or (b)
based on the parent’s fair share of actual
expenditures for the child’s care. . . .
Standing alone, this provision would allow a trial court to
calculate retroactive child support by reference to the
guidelines. However, in Robinson v. Robinson, 210 N.C. App. 319,
333, 707 S.E.2d 785, 795 (2011), we held that “‘[r]etroactive
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.” (quoting Rawls v. Rawls, 94 N.C. App.
670, 675, 381 S.E.2d 179, 182 (1989), and citing Savani v.
Savani, 102 N.C. App. 496, 501, 403 S.E.2d 900, 903 (1991)).
The rule stated in the Guidelines conflicts with the
holding of Robinson. We have held that:
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Nowhere in the statute does the legislature
authorize the Conference to override
existing case law in formulating the
Guidelines. Although the Guidelines are
formulated by the Conference of Chief
District Judges pursuant to authority
granted them by the legislature in N.C. Gen.
Stat. § 50-13.4(c1), the Conference is not a
legislative body, and the Guidelines are not
codified in the North Carolina General
Statutes. . . . Therefore, we find that if
the trial court follows the Guidelines in
awarding retroactive child support in cases
involving unincorporated separation
agreements, instead of controlling case law,
the court is in error.
Carson, 199 N.C. App. at 107, 680 S.E.2d at 889. Carson and
Robinson, construed together, require that an award of
retroactive child support be supported by evidence of
plaintiff’s actual expenditures for the children during the
period for which she seeks retroactive child support.
Plaintiff acknowledges the cases cited above, but argues
that “the Court of Appeals was mistaken in its decision in
Robinson.” However, we “are bound by opinions of prior panels of
this Court deciding the same issue.” Easton v. J.D. Denson
Mowing, 173 N.C. App. 439, 441, 620 S.E.2d 201, 202 (2005)
(citing Civil Penalty). We conclude that this issue is
controlled by Robinson and Carson, and that the trial court’s
award of retroactive child support must be reversed and remanded
for findings on plaintiff’s actual expenditures for the children
during the relevant time period.
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B. Application of 2011 Guidelines
Next, defendant argues that the trial court erred by
calculating his retroactive child support obligation using the
2011, as opposed to the 2006, guidelines. However, as we have
held that the trial court erred by using the guidelines to
calculate retroactive child support, we do not reach this
argument.
C. Imputation of Income
Defendant argues next that the trial court erred in
determining the amount of income it imputed to defendant. The
trial court imputed to defendant an annual income of
approximately $50,000. Defendant argues that this amount was not
supported by the trial court’s other findings or the evidence.
We agree and remand for the trial court to make additional
findings as to defendant’s earning ability.
“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. . . . [T]his showing may be
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met by a sufficient degree of indifference to the needs of a
parent’s children.” McKyer v. McKyer, 179 N.C. App. 132, 146,
632 S.E.2d 828, 836 (2006) (citing Atwell v. Atwell, 74 N.C.
App. 231, 235, 328 S.E.2d 47, 50 (1985), quoting Sharpe v.
Nobles, 127 N.C. App. 705, 708, 493 S.E.2d 288, 290 (1997)
(internal citation omitted), and citing Bowers v. Bowers, 141
N.C. App. 729, 732, 541 S.E.2d 508, 510 (2001)). In this case,
defendant does not challenge the trial court’s findings as to
the effect of his intentional “course of sexually abusing” his
daughter and the resultant loss of the licenses he needed to
continue his previous career as a stockbroker and insurance
agent, or the trial court’s decision to impute income to him.
What defendant does argue is that the trial court’s ruling on
the amount of income imputed to him was not supported by its
findings. The court’s findings on the issue of defendant’s
earning capacity include the following:
. . .
109. The Defendant earned a gross sum of One
. . . ($100,000.00) in the year 2005 and if
he had continued to [sell] insurance and be
licensed as a . . . Stock Broker, he could
have earned not less than . . . ($50,000.00)
per year each year since that time.
. . .
115. The Defendant has no living expenses as
his wife, a banker with BB&T, apparently
provides for him. . . .
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116. The Defendant testified that he could
not secure employment in his former
employment as an insurance salesman or stock
broker because of his felony convictions.
117. The Defendant reported Zero income tax
in 2009 despite apparently working as a
farrier and earning a gross income of . . .
($8,000.00). He also used business expenses
deductions in 2009 for a portion of his home
which he admitted that he did not own or pay
for.
118. In 2010, he indicated that he had lost
. . . ($10,086,00) in income from his
employment as a farrier, but this included .
. . ($15,628.00) in car and truck expenses
and . . . ($7,480.00) in supplies.
119. The Defendant's tax returns for 2009
and 2010 were not creditable evidence of his
earning capacity.
. . .
124. In the present case, before his arrest
and conviction, the Defendant father was
employed as an insurance salesman and stock
broker, and capable of earning a gross
salary of at least . . . ($100,000.00) per
year, a net salary of . . . ($50,000.00), or
a monthly salary of . . . ($4,167.00) per
month at a minimum.
. . .
132. . . . Defendant’s income from all
sources is imputed to be . . . ($4,167.00)
per month.
The court found that defendant had previously earned
$100,000 and imputed a current income of approximately $50,000,
or half of his previous salary. However, the findings do not
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establish any basis for the court’s imputation in 2011 of half
of what he earned in 2005, as opposed to some other fraction or
amount. “[T]he findings of fact on this issue are insufficient
to support the trial court’s determination of the amount of
income that should be imputed to [defendant]. A trial court must
‘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.’” McKyer, 179 N.C. App. at 147-48, 632
S.E.2d at 837 (quoting Spicer v. Spicer, 168 N.C. App. 283, 287,
607 S.E.2d 678, 682 (2005)) (emphasis in original). We conclude
that the court’s determination that it was appropriate to impute
income to defendant should be upheld, but that the order must be
remanded for findings detailing how the trial court arrives at
the amount of income to be imputed to defendant.
D. Transfer of Vehicle to Plaintiff
Defendant argues next that the trial court erred by
awarding plaintiff a 1997 Ford Expedition as an “additional form
of child support” without determining the vehicle’s value and
deducting it from the child support award. We disagree.
Defendant cites N.C. Gen. Stat. § 50-13.4(e):
(e) Payment for the support of a minor child
shall be paid by lump sum payment, periodic
payments, or by transfer of title or
possession of personal property of any
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interest therein, or a security interest in
or possession of real property, as the court
may order. The court may order the transfer
of title to real property solely owned by
the obligor in payment of arrearages of
child support so long as the net value of
the interest in the property being
transferred does not exceed the amount of
the arrearage being satisfied. . . .
Defendant notes that if the trial court orders the transfer of
real property in payment of child support arrearages it must
determine the property’s value. He argues that an “analogous
situation exists here,” that the trial court “should have
determined the Vehicle’s value and deducted that amount from the
total child support award” and that the court’s “failure to do
so constitutes error.” However, N.C. Gen. Stat. § 50-13.4(e)
does not require the trial court to determine the value of
personal property applied towards child support arrearage and
defendant does not offer any support for his contention that
such a transfer is “analogous” to a transfer of real property or
any authority for us to supplement the statute with an
additional requirement not found therein.
And, defendant does not dispute the trial court’s finding
of fact that:
144. The only vehicle the Plaintiff [had]
available to her is a 1997 Ford Expedition
until May 2010 which has 285,000 miles on it
as of the date of this hearing which she has
had since the parties’ separation although
this vehicle has been titled to the
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Defendant. She is seeking this vehicle as an
additional form of child support from the
Defendant. The Defendant has agreed for said
in kind child support to be also paid since
the Plaintiff has maintained all expenses of
this vehicle. The Defendant will sign over
title of said vehicle to the Plaintiff on or
before June 15, 2012. . . .
Thus, defendant concedes that (1) the vehicle was fifteen years
old and had 285,000 miles on it at the time of the hearing; (2)
although it had been titled in his name, plaintiff had assumed
responsibility for “all expenses” of the vehicle; and (3) he
consented to transfer of the vehicle as an additional form of
child support.
“[T]o obtain relief on appeal, an appellant must not only
show error, but that appellant must also show that the error was
material and prejudicial, amounting to denial of a substantial
right that will likely affect the outcome of an action.” Starco,
Inc. v. AMG Bonding & Ins. Servs., 124 N.C. App. 332, 335, 477
S.E.2d 211, 214 (1996) (citation omitted). Defendant does not
assert any prejudice from the court’s alleged error. In
addition, defendant does not dispute that he consented to
transfer the vehicle to plaintiff, a finding supported by his
testimony. Given the defendant’s failure to articulate a legal
basis for interpreting N.C. Gen. Stat. § 50-13.4(e) in a manner
not supported by the statute’s text, any prejudice arising from
the court’s alleged error, or any reason to grant relief on the
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basis of a transfer to which he consented, we decline to hold
that the court erred by transferring the 1997 vehicle to
plaintiff without making a specific finding as to its value.
E. Failure to Pay Any Child Support After August 2006
In defendant’s next argument, he argues that the trial
court erred by finding “that, although [he] has resources to pay
some child support, he [had] ‘willfully failed to pay any child
support without excuse.’” Defendant does not dispute that he
failed to pay any child support after August 2006, but argues
that he presented evidence of his inability to find employment.
However, the court was not required to believe defendant’s
testimony. We hold that this finding was supported by evidence
in the record.
III. Attorney’s Fees
In his final argument, defendant contends that the trial
court erred by awarding attorney’s fees to plaintiff. Defendant
argues that the trial court erred in finding that defendant had
the ability to pay attorney’s fees, basing its award of
attorney’s fees in part on its finding that defendant had acted
in bad faith, and finding that plaintiff had insufficient means
to pay attorney’s fees. We agree in part.
1. Standard of Review
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N.C. Gen. Stat. § 50-13.6 (2013) states that in any
proceeding for child custody or support:
[T]he 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[.] . . .
“To award attorney's fees in an action for custody and
support,
[t]he trial court must make specific
findings of fact relevant to: (1) The
movant’s ability to defray the cost of the
suit, specifically that the movant is unable
to employ counsel so that he may proceed to
meet the other litigant in the suit; (2)
whether the movant has initiated the action
in good faith; (3) the attorney’s skill; (4)
the attorney’s hourly rate charged; and (5)
the nature and extent of the legal services
performed.
Hennessey v. Duckworth,__ N.C. App. __, __, 752 S.E.2d 194, __
(2013) (quoting Cameron v. Cameron, 94 N.C. App. 168, 172, 380
S.E.2d 121, 124 (1989) (citations omitted). Pursuant to N.C.
Gen. Stat. § 50-13.6, in a custody action, a trial court “has
the discretion to award attorney’s fees to an interested party
when that party is (1) acting in good faith and (2) has
insufficient means to defray the expense of the suit. The facts
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required by the statute must be alleged and proved[.] . . .
Whether these statutory requirements have been met is a question
of law, reviewable on appeal.” Hudson v. Hudson, 299 N.C. 465,
472, 263 S.E.2d 719, 723 (1980).
2. Analysis
The trial court made the following findings:
1. This action for child custody was brought
by the Plaintiff in good faith and she is
without sufficient funds to defray the
expenses of this custody lawsuit including
all of her attorneys’ fees.
2. As this is a proceeding for child support
of the parties’ three minor children, the
Plaintiff may be entitled to the entry of an
Order requiring the [defendant] to pay some
or all of her reasonable attorneys’ fees
pursuant to N.C.G.S. Section 50-13.6.
3. The Defendant, who is the party who is
going to be ordered to furnish support, has
refused to provide support of any type, and
has refused to provide support which is
adequate under the circumstances existing at
the time of the institution of this action
or proceeding.
Defendant does not dispute that these findings meet the
statutory requirements discussed above. He does not challenge
the trial court’s determination of a reasonable amount of
attorney’s fees, which we affirm. However, defendant raises
other arguments about the court’s award of attorney’s fees to
plaintiff.
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Defendant argues first that the trial court erred by
finding that he “has resources” available to pay attorney’s
fees. Defendant directs our attention to evidence he presented
tending to show that he faces economic challenges. However, the
trial court was not required to find his evidence credible. He
also argues that the trial court should not have considered the
fact that his living expenses are being paid by his wife,
because she has no legal obligation to support his children.
However, “where a party’s new spouse shares responsibility for
the party’s expenses and needs, it is proper for the court to
consider income received by the new spouse[.]” Harris v. Harris,
188 N.C. App. 477, 487, 656 S.E.2d 316, 321-22 (2008) (citing
Wyatt v. Wyatt, 35 N.C. App. 650, 651-52, 242 S.E.2d 180, 181
(1978).
The underlying premise of this argument is that before it
could award attorney’s fees to plaintiff, the trial court had to
make findings about his ability to pay these fees. Defendant
cites no authority for this proposition and our Supreme Court
has held that “‘we do not believe that the determination of
whether a party has sufficient means to defray the necessary
expenses of the action requires a comparison of the relative
estates of the parties’” and “that N.C.G.S. § 50-13.6 does not
require the trial court to compare the relative estates of the
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parties[.]” Van Every v. McGuire, 348 N.C. 58, 59-60, 497 S.E.2d
689, 690 (1998) (quoting Taylor, 343 N.C. at 57, 468 S.E.2d at
37. We conclude that the trial court was not required to find
that defendant “had resources” available in order to award
attorney’s fees to plaintiff, making it unnecessary for us to
analyze the evidentiary support for this finding of fact.
Defendant also argues that the trial court erred by basing
its award of attorney’s fees on his “bad faith in requesting
custody or visitation.” This argument lacks merit. In Finding
No. 145, the trial court stated that:
145. Moreover, the Court, as a mixed finding
of fact and conclusion of law, determines
that the Defendant’s insistence upon a trial
seeking custody or visitation of his
children and defending against the claims of
his former wife, the Plaintiff, for the same
and for her claims of child support are in
bad faith, not well taken, and he has
adequate resources available to him to
reimburse her for some or all of her
attorney’s fees.
Defendant concedes that “this Finding/Conclusion was not
included in the findings related to the attorney’s fees
award[.]” There is no evidence that the trial court’s award of
attorney’s fees to plaintiff was “based on” its passing
reference to bad faith in this finding. Defendant is not
entitled to relief based upon this argument.
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Defendant also challenges the evidentiary support for the
trial court’s finding that plaintiff “is without sufficient
funds to defray the expenses of this custody lawsuit including
all of her attorneys’ fees[.]” The trial court made the
following findings regarding plaintiff’s income, expenses, and
estate:
. . .
102. The Plaintiff has been a nurse
registered by the State of North Carolina
from 1987 through 2007, and has been a
Registered Nurse in Kansas from 1999 until
[the] present.
103. The Plaintiff is presently employed
with the Smith Center School District as the
School Nurse. She also runs the concession
stand to earn extra money. The Plaintiff's
gross monthly earnings from all sources is .
. . ($3,033.42). The Plaintiff has earned
approximately . . . ($3,033.00) per month
from all sources since August 2006.
104. The Plaintiff paid a total of . . .
($7,740.70) in premiums for the three minor
children’s, Amanda, Allysa, and Noah, health
insurance coverage[.] . . .
105. The children were approved for Health
Wave coverage on October 26, 2009, so the
Plaintiff could secure health insurance on
her three minor children at no additional
cost.
106. The Plaintiff has sought to recover a
portion of the out of pocket expenses paid
by her . . . as a portion of the retroactive
and prospective child support in the
percentage of the Plaintiff’s income to the
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Defendant’s income as hereinafter determined
and imputed by the Court.
. . .
132. The Plaintiff’s income from all sources
is . . . ($3,033.00) per month[.]
The court’s findings are sufficient with regards to
plaintiff’s income. However, the trial court made no findings as
to her expenses or her assets and estate. We remand for
additional findings to support the trial court’s finding that
plaintiff had insufficient means to defray the cost of counsel.
Conclusion
We affirm the trial court’s ruling denying defendant
visitation with the minor children, its determination that
plaintiff was entitled to child support, its ruling that it was
proper to impute income to defendant, and its transfer of the
1997 vehicle to plaintiff. We reverse and remand the order with
regard to the amount of retroactive child support to which
plaintiff may be entitled, the amount of income that may be
imputed to defendant, and for additional findings regarding
plaintiff’s expenses as it pertains to her claim for attorney’s
fees. In its discretion, the trial court may take such
additional evidence as it deems necessary.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
Judges STEPHENS and DAVIS concur.