McKyer v. McKyer

*149TYSON, Judge

concurring in the result only.

The majority’s opinion remands to the trial court for a determination of whether the plaintiffs educational grant was a “ ‘benefit. . . from means-tested public assistance programs,’ whether it significantly reduced his ‘personal living expenses,’ or whether there are any limits upon how [plaintiff] may use these funds.” I disagree with the majority’s rationale and basis for remanding this issue. I vote to remand this issue for a determination of whether plaintiff’s educational grant is subject to income taxation.

The majority’s opinion also affirms the trial court’s conclusion that income may be imputed to plaintiff and remands for additional findings of fact regarding the proper amount of income to be imputed. I also disagree with the majority’s rationale for remanding this issue. I vote to remand this issue for a determination of whether the trial court had jurisdiction to consider imputation of income in light of the prior adjudication of this issue in its April 2001 custody order, whether defendant has shown a substantial change of circumstances to invoke modification, and whether defendant is judicially estopped from re-asserting this issue. Whiteacre P’ship v. Biosignia, Inc., 358 N.C. 1, 29, 591 S.E.2d 870, 889 (2004).

I. Plaintiff’s Educational Grant,

The majority’s opinion notes that our appellate courts have not addressed the issue of whether an educational grant is considered income under the Child Support Guidelines. The majority’s opinion cites holdings from other jurisdictions and lists following three factors for the trial court to consider on remand: (1) whether the sum “was a ‘benefit . . . from means-tested public assistance programs,” (2) “whether it significantly reduced [plaintiff’s] personal living expenses;” and (3) “whether there are any limits upon how [plaintiff] may use these funds.” However, the majority’s opinion fails to determine whether an educational grant is income to plaintiff.

The determination of whether an educational grant is considered income for the purpose of the Child Support Guidelines turns on whether the grant is subject to federal income taxation. The Internal Revenue Code, 26 U.S.C. § 117 (2006), provides as follows:

(a) General rule. Gross income does not include any amount received as a qualified scholarship by an individual who is a candidate for a degree at an educational organization described in section 170(b)(l)(A)(ii).
*150(b) Qualified scholarship. For purposes of this section—
(1) In general. The term “qualified scholarship” means any amount received by an individual as a scholarship or fellowship grant to the extent the individual establishes that, in accordance with the conditions of the grant, such amount was used for qualified tuition and related expenses.
(2) Qualified tuition and related expenses. For purposes of paragraph (1), the term “qualified tuition and related expenses” means—
(A) tuition and fees required for the enrollment or attendance of • a student at an educational organization described in section 170(b)(1)(A)(ii), and
(B) fees, books, supplies, and equipment required for courses of instruction at such an educational organization.

I would hold that an educational grant is income to under the Child Support Guidelines only if it is subject to federal income taxation. I would hold that it is not income if the grant is not subject to federal income taxation. I vote to remand this issue to the trial court for findings of whether plaintiff’s educational grant is income under the provisions of 26 U.S.C. § 117.

II. Imputation of Income

The majority’s opinion affirms the trial court’s conclusion that income may be imputed to plaintiff and remands for additional findings of fact regarding the proper amount of income which should be imputed. The record does not contain findings that the trial court properly considered this issue.

In its 17 April 2001 order, the trial court found as fact, “Husband is not voluntarily reducing or minimizing his income to avoid his financial obligations to his family.” In its 25 January 2005 order, the trial court concluded, plaintiff has “deliberately suppressed his income and acted in deliberate disregard of his obligation to provide reasonable support to his children.”

“ ‘Modification of a child support order involves a two-step process. The court must first determine a substantial change of circumstances has taken place; only then does it proceed to . . . calculate the applicable amount of support.’ ” Trevillian v. Trevillian, 164 N.C. App. 223, 225, 595 S.E.2d 206, 207 (2004) (quoting McGee v. *151McGee, 118 N.C. App. 19, 26-27, 453 S.E.2d 531, 535-36 (1995), disc. rev. denied, 340 N.C. 359, 458 S.E.2d 189 (1995)). The burden of showing a substantial change of circumstances rests with the party seeking modification. Id. at 224, 595 S.E.2d at 207. In its 25 January 2005 order, the trial court failed to make a finding that defendant has alleged or shown a substantial change in circumstances had occurred in order to revisit the child support issue and impute income to plaintiff. I vote to remand this issue to the trial court for a finding of defendant asserting and showing a substantial change in circumstances has occurred and whether defendant is judicially estopped from asserting this issue. Whiteacre P’ship, 358 N.C. at 26, 591 S.E.2d at 887.

III. Conclusion

I vote to hold plaintiffs educational grant is income under the Child Support Guidelines only if it is subject to federal income taxation and remand this issue to the trial court for a determination of whether plaintiff’s educational grant falls under the provisions of 26 U.S.C. § 117.

I also vote to remand the issue of imputation of income to the trial court for a finding of whether defendant asserted and showed a substantial change in circumstances had occurred since entry of the 17 April 2001 order and whether defendant is judicially estopped from having the trial court to reconsider the issue of imputation of income to plaintiff.