{ "id": 8520577, "name": "CLAIRE B. MUNN (now CLAIRE BROYHILL) v. ALBERT R. MUNN, III", "name_abbreviation": "Munn v. Munn", "decision_date": "1993-10-05", "docket_number": "No. 9210DC921", "first_page": "151", "last_page": "160", "citations": [ { "type": "official", "cite": "112 N.C. App. 151" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "403 S.E.2d 900", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "102 N.C. App. 496", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524862 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/102/0496-01" ] }, { "cite": "231 S.E.2d 42", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549217 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0162-01" ] }, { "cite": "400 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545596, 2540340, 2540374, 2537916, 2545535 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0270-02", "/nc/328/0270-01", "/nc/328/0270-05", "/nc/328/0270-04", "/nc/328/0270-03" ] }, { "cite": "396 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "347" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 334", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526791 ], "year": 1990, "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0334-01" ] }, { "cite": "326 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "868" } ], "opinion_index": 0 }, { "cite": "313 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719540 ], "year": 1985, "pin_cites": [ { "page": "69" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0063-01" ] }, { "cite": "341 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "80 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522067 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/80/0110-01" ] }, { "cite": "345 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695168, 4704837, 4701513, 4704337, 4704895 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0730-05", "/nc/316/0730-02", "/nc/316/0730-03", "/nc/316/0730-01", "/nc/316/0730-04" ] }, { "cite": "338 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "79 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520081 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/79/0228-01" ] }, { "cite": "354 S.E.2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749245 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0396-01" ] }, { "cite": "346 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "82 N.C. App. 167", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358482 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/82/0167-01" ] }, { "cite": "415 S.E.2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "106 N.C. App. 91", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313691 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/106/0091-01" ] }, { "cite": "425 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548512 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0342-01" ] }, { "cite": "430 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "110 N.C. App. 355", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525595 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/110/0355-01" ] }, { "cite": "374 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "647" }, { "page": "647" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 413", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527087 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "418" }, { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0413-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "833" }, { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "777" }, { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "315 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "523" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 738", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527925 ], "year": 1984, "pin_cites": [ { "page": "740" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0738-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "69 S.E.2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "235 N.C. 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623444 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/235/0300-01" ] }, { "cite": "61 L.Ed.2d 297", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "442 U.S. 929", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531938, 1532133, 1531912, 1532170, 1532010, 1532202, 1532021, 1531990, 1532122, 1532092, 1531806 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/442/0929-02", "/us/442/0929-01", "/us/442/0929-10", "/us/442/0929-08", "/us/442/0929-11", "/us/442/0929-03", "/us/442/0929-04", "/us/442/0929-09", "/us/442/0929-05", "/us/442/0929-06", "/us/442/0929-07" ] }, { "cite": "250 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "296 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565310 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/296/0109-01" ] }, { "cite": "51 S.E.2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "pin_cites": [ { "page": "8" } ], "opinion_index": 0 }, { "cite": "229 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167262 ], "year": 1948, "pin_cites": [ { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0626-01" ] }, { "cite": "431 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "Cross-appeal dismissed because certificate of service of notice of appeal was not included in the record on appeal" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 719", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526358 ], "year": 1993, "pin_cites": [ { "parenthetical": "Cross-appeal dismissed because certificate of service of notice of appeal was not included in the record on appeal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0719-01" ] }, { "cite": "430 S.E.2d 457", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "Wynn, J., dissenting" }, { "page": "458" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 621", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526157 ], "year": 1993, "pin_cites": [ { "parenthetical": "Wynn, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0621-01" ] } ], "analysis": { "cardinality": 934, "char_count": 21466, "ocr_confidence": 0.77, "pagerank": { "raw": 1.3141745386808057e-07, "percentile": 0.6250918489842457 }, "sha256": "ffd3ca9c1ae7c1a9a237c4cefad33678e491c0dd1975a94874478526fabed10f", "simhash": "1:63cfd07e346c81d2", "word_count": 3498 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and JOHN concur." ], "parties": [ "CLAIRE B. MUNN (now CLAIRE BROYHILL) v. ALBERT R. MUNN, III" ], "opinions": [ { "text": "WYNN, Judge.\nPreliminarily, we must decide whether we should dismiss this appeal without reaching its merits because we lack jurisdiction over it.\nIn Hale v. Afro-American Arts International, 110 N.C. App. 621, 430 S.E.2d 457 (1993) (Wynn, J., dissenting), this Court held that if the record on appeal does not contain a certificate of service of the notice of appeal, this Court does not have subject matter jurisdiction over the appeal.- Id. at 623, 430 S.E.2d at 458. See also Spivey and Self v. Highview Farms, Inc., 110 N.C. App. 719, 431 S.E.2d 535 (1993) (Cross-appeal dismissed because certificate of service of notice of appeal was not included in the record on appeal).\nHere, the record on appeal contains two notices of appeal by the defendant-appellant. (R. at 108,109). However, neither is accompanied by a certificate stating that service of this notice was made upon the plaintiff-appellee. Appellant did type a line on the bottom of the notice of appeal stating \u201cCertificate of Service\u201d and giving the name of the serving attorney and the date of service. However, this does not constitute adequate certification of service. The requirements of a certificate of service are well established by Rule 26 of the North Carolina Rules of Appellate Procedure. It provides:\nPapers presented for filing shall contain an acknowledgement of service by the person served or proof of service in the form of a statement of the date and manner of service and of the names of the persons served, certified by the person who made service.\nN.C.R. App. P. 26 (1992) (emphasis added). Because defendant-appellant\u2019s statement lacks a description of the manner of service, it is not a certification adequate for the record on appeal.\nSince failure to attach sufficient certification deprives this Court of jurisdiction over this appeal, we are compelled to dismiss it, unless jurisdiction can be conferred by some other means. As this Court stated in Hale, \u201cIf the record fails to disclose the necessary jurisdictional facts we have no authority to do more than dismiss the appeal,\u201d citing Mason v. Moore County Bd. of Comm\u2019rs, 229 N.C. 626, 629, 51 S.E.2d 6, 8 (1948).\nThe fact that this requirement is jurisdictional carries several important implications. First, the requirement is not waivable. Jurisdiction cannot be conferred by consent, waiver, or estoppel. In re Peoples, 296 N.C. 109, 250 S.E.2d 890 (1978), cert. denied, Peoples v. Judicial Standards Comm\u2019n of N.C., 442 U.S. 929, 61 L.Ed.2d 297 (1979). Thus, the parties may not waive the requirement by demonstrating actual receipt of the notice of appeal or by appearing in court.\nSecondly, the defect is not curable by amending the record. Because this Court does not have jurisdiction, we are unable to consider any motion to amend the record by adding a certification of service. Anderson v. Atkinson, 235 N.C. 300, 69 S.E.2d 603 (1952).\nThirdly, it is incumbent upon this Court in this and every case subsequent to Hale to examine each record of appeal to satisfy itself that the certificate of service of the notice of appeal is properly present. If this Court were to rule on an appeal in which the certificate were missing, we would be acting beyond the bounds of our jurisdiction.\nThis panel is bound by the Hale decision. In re Appeal from Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989). However, because of the important issues presented relating to the application of form over substance by the Hale decision, we have elected, as it is within our prerogative, to treat this appeal as a petition for writ of certiorari and grant the writ. N.C.G.S. \u00a7 7A-32(c) (1989); see Jerson v. Jerson, 68 N.C. App. 738, 740, 315 S.E.2d 522, 523 (1984).\nFacts\nThis appeal involves a dispute between Claire B. Munn, now Claire Broyhill, and Albert B. Munn, III, over the equitable distribution judgment and child support order and judgment entered pursuant to their divorce.\nDefendant-appellant Albert R. Munn, III, and plaintiff-appellee Claire Broyhill Munn were married on May 18,1985. They separated on August 1, 1990. For the first four years of their marriage, appellant was employed as a medical intern and medical resident in Wilmington, N.C. and then in Galveston, Texas. During these four years, the couple had two children, and appellee was not employed outside the home. Several years prior to the marriage, appellee established a trust, the Barbara C. Broyhill Trust, to be administered by her father as trustee, which contained substantial separate property. Throughout their marriage, the couple relied heavily on disbursements from this trust to support their standard of living, which required considerably more than appellant\u2019s annual internship and residency salaries of $20,000-$25,000 per year.\nUpon completion of Dr. Munn\u2019s residency training in 1989, the family moved to Raleigh, North Carolina, where Dr. Munn commenced his medical practice. That same year, they purchased a home in Raleigh for $735,000. The trust contributed all of the initial financing ($247,000 for the down payment and closing costs and $100,700 for renovations) and the first seventeen (17) mortgage payments ($76,168.67), for a total of $423,868.67.\nThe defendant appeals from the trial court\u2019s judgment for the equitable distribution of marital property, order for prospective child support, and judgment for retroactive child support.\nTrust Account Advances\nAppellant first contends that the trial court erred in classifying the $423,868.67 advanced from appellee\u2019s trust to the marital estate. The trial court found that half the money, or $211,934.34, was a gift to the marital estate, while the other half was a debt incurred by the marital estate, requiring repayment. Appellant argues that the entire amount was a gift to the marital estate, not a loan.\nThe standard of review for equitable distribution awards is set forth in White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985):\nHistorically our trial courts have been granted wide discretionary powers concerning domestic law cases. ... It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion. ... A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason. ... A ruling committed to a trial court\u2019s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.\nClearly, this is a difficult standard for appellant to meet, and he fails to meet it here.\nThe trial court did not abuse its discretion in concluding that the money was a loan. Testimony at trial showed that appellant induced appellee\u2019s father, as trustee, to advance the money for the house by promising to repay half the funds. Testimony also showed that appellant reaffirmed his promise to pay and his promise of his ability to repay on several subsequent occasions.\nThis Court has held that the \u201cany competent evidence standard\u201d applies in an equitable distribution action, meaning the testimony of one party may suffice to support the trial court\u2019s findings as to classification. Taylor v. Taylor, 92 N.C. App. 413, 418, 374 S.E.2d 644, 647 (1988). It is true that the appellant put on evidence tending to show that the funds were a gift. However, as long as some evidence supported the trial court\u2019s decision, our inquiry is satisfied. \u201cThe mere existence of conflicting evidence . . . [does] not justify reversal.\u201d Taylor v. Taylor, 92 N.C. App. 413, 418, 374 S.E.2d 644, 647 (1988). We thus uphold the trial court\u2019s classification.\nWe note the inapplicability of two recent cases that have been cited to support appellant\u2019s contentions. In Kuder v. Schroeder, 110 N.C. App. 355, 430 S.E.2d 271 (1993), an oral contract between spouses was invalidated. Kuder does not apply in the present case, which involves a loan between the couple and the wife\u2019s trust, not a promise between the husband and the wife.\nHaywood v. Haywood, 333 N.C. 342, 425 S.E.2d 696 (1993), reversing 106 N.C. App. 91, 415 S.E.2d 565 (1992), is also inapplicable. That case dealt with the threshold determination of whether property purchased with separate funds was marital or separate property. Here, the parties have stipulated the property was marital.\nCriteria for Dividing Marital Property\nDefendant-appellant\u2019s second contention is that the trial court improperly applied the criteria for dividing marital property set forth by N.C.G.S. \u00a7 50-20(c). These criteria include the parties\u2019 income, property and liabilities; the duration of the marriage and age and physical health of the parties; the need for the custodial parent to occupy the marital residence and use or own its household effects; the expectation of pension or other deferred compensation rights; contributions as a spouse, parent, wage earner or homemaker; contributions to education and career development efforts; the liquid or nonliquid character of marital property; the economic desirability of retaining professional assets intact; the tax consequences to each party; and parties\u2019 acts during the time of separation to maintain or devalue marital property. N.C.G.S. \u00a7 50-20(c)(l)-(12) (1987).\nIn order for this Court to overturn the trial court\u2019s judgment, appellant would have to show that it was \u201cmanifestly unsupported by reason\u201d and \u201cso arbitrary that it could not have been the result of a reasoned decision.\u201d White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). Again, this is a difficult standard to meet, and appellant fails to meet it. The trial court is given broad discretion in evaluation and application of the \u00a7 50-20 factors. Hartman v. Hartman, 82 N.C. App. 167, 346 S.E.2d 196, aff'd, 319 N.C. 396, 354 S.E.2d 239 (1987); Andrews v. Andrews, 79 N.C. App. 228, 338 S.E.2d 809, disc. rev. denied, 316 N.C. 730, 345 S.E.2d 385 (1986).\nHere, the trial court has sufficiently demonstrated the required \u201crational basis\u201d for its distribution. Nix v. Nix, 80 N.C. App. 110, 341 S.E.2d 116 (1986). The court set forth numerous specific findings, based on evidence adduced at trial: (1) Appellant\u2019s 1991 salary, in his first full year of medical practice, was expected to be at least $88,000. He has separate liabilities of some $207,000. His liabilities as well as his present income and future earning potential, based on his past income, education, training, and skills, were factors to be considered in the distribution under N.C.G.S. \u00a7 50-20(c)(l); (2) Appellee is guaranteed a yearly income of $20,000 from her trust. She is accustomed to, but has no right to demand, discretionary disbursements from her trust. From January 1, 1985 until July 30, 1990, she received $371,458 in discretionary advances from the trust. The trust corpus, which exceeds $7 million, does not vest in appellee until after the death of her father, and then in installments according to her age at the time. Her present income, future earnings potential, property interests, lack of employment history, and lack of skills were factors to' be considered in the distribution under N.C.G.S. \u00a7 50-20(c)(l); (3) Appellee\u2019s need as the custodial parent to use the household effects of the marital residence was a factor to be considered under N.C.G.S. \u00a7 50-20(c)(4); (4) Appellee contributed separate funds to the reduction of appellant\u2019s student loans, which was a factor to be considered under N.C.G.S. \u00a7 50-20(c)(8); (5) The parties\u2019 assets were liquid, which was a factor to be considered under N.C.G.S. \u00a7 50-20(c)(9); (6) It was desirable to keep appellant\u2019s medical practice intact, which was a factor to be considered under N.C.G.S. \u00a7 50-20(c)(10); (7) Both parties made post-separation payments to maintain the marital residence, which was a factor to be considered under N.C.G.S. \u00a7 50-20(c)(lla); (8) Appellee\u2019s trust, reduced the marital debt by $4481.37, which is a factor to be considered under N.C.G.S. \u00a7 50-20(c)(lla); (9) The marital residence depreciated by $24,000 in the nine months between the couple\u2019s separation and the home\u2019s sale, which is a factor to be considered under N.C.G.S. \u00a7 50-20(c)(lla) and/or (12); (10) Appellant used the marital residence for two months after the separation, which is a factor to be considered under N.C.G.S. \u00a7 50-20(c)(12); (11) After the separation, appellant converted $1600 of marital assets and increased the marital debt by $6000 with no evidence of use for marital purposes. This is a factor to be considered under N.C.G.S. \u00a7 50-20(c)(lla) and/or (12); and (12) During the marriage, appellee made gifts of at least $432,600 of separate property to the marital estate, which is a factor to be considered under N.C.G.S. \u00a7 50-20(c)(12).\nWe conclude that, based on these and other findings, the distribution had a rational basis, and we thus uphold it.\nDistribution of Personal Property\nAppellant\u2019s third contention is that the trial court abused its discretion in distributing the parties\u2019 personal property because it failed to consider evidence favorable to him. Once again, in order to overturn the trial court\u2019s distribution, this Court would have to find that there was no evidence to support it. Taylor v. Taylor, 92 N.C. App. 413, 374 S.E.2d 644 (1988). We find there is evidence to support the distribution. The trial court determined the ownership of the parties\u2019 kitchen items, dishware, wedding gifts, and furniture, and found that each party made gifts to the other of separate personal property subsequent to the date of separation. There is sufficient evidence in the record to support these findings. Appellant himself admitted in his brief the existence of evidence supporting appellee\u2019s characterizations. He does not show that the trial court did not consider evidence favorable to him; he merely comp\u00edains that the court was not persuaded by it. This does not constitute grounds to overturn the trial court.\nDetermination of Child Support\nThe trial court found th\u00e9 reasonably necessary and actual expenses of the children to be $1300 per child per month; totaling $2600 per month. The court ordered appellant to pay half these expenses, or $1300 per month, beginning in November of 1991.\nAppellant claims that the court failed to consider the parties\u2019 incomes and wealth as required by N.C.G.S. \u00a7 50-13.4(c), and the \u201crelative abilities of the parties to provide for .payment of child support.\u201d\nThe appropriate level of child support is set forth in N.C.G.S. \u00a7 50-13.4:\nPayments ordered for the support of a minor child shall be in such amount as to meet th\u00e9 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.\nN.C.G.S. \u00a7 5043.4(c) (1987 & Supp. 1992). The trial court has considerable discretion in determining the appropriate amount of prospective child support. \u201cAbsent a clear abuse of discretion, a judge\u2019s determination of what is a proper amount of support will not be disturbed on appeal.\u201d Plott v. Plott, 313 N.C. 63, 69, 326 S.E.2d 863, 868 (1985). A \u201cjudge is subject to reversal for abuse of discretion only upon a showing by a litigant that the challenged actions are manifestly unsupported by reason.\u201d Id.\nWe find that the trial court gave \u201cdue regard\u201d to the parties\u2019 \u201cestates, earnings [and] conditions.\u201d See Cohen v. Cohen, 100 N.C. App. 334, 340, 396 S.E.2d 344, 347 (1990), disc. rev. denied, 328 N.C. 270, 400 S.E.2d 451 (1991). It is apparent from the record that the trial court considered both the existence and structure of appellee\u2019s trust fund and appellant\u2019s income in making its determination. It concluded that a father in an established ophthalmologic practice, who had a 1991 income of at least $88,000, is able to contribute half of his children\u2019s support. Where \u201cthere is a finding of ability to' pay supported in the record by competent evidence, that finding will be conclusive.\u201d Wyatt v. Wyatt, 32 N.C. App. 162, 231 S.E.2d 42 (1977). We therefore uphold the trial court\u2019s child support determination.\nRetroactive Child Support\nThe trial court ordered appellant to pay retroactive child support in the amount of $18,200. This figure represents half the cost of supporting the children, at $1300 per month per child, during the fourteen months from the date of separation through the date of trial (September 1990 through October 1991). Appellant does not dispute the $1300 per child per month figure. However, he contends the court abused its discretion in determining that he had the ability to pay during this. time.\nThe court carefully considered, through numerous exhibits and extensive testimony, whether appellant was able to provide support during the relevant period, as required by Savani v. Savani, 102 N.C. App. 496, 403 S.E.2d 900 (1991). The court found that appellant paid appellee no direct child support throughout the time of the parties\u2019 separation. The court considered the money available to appellant, including income from his medical practice, loans, and withdrawals from various accounts, and his reasonable expenses. After examining the record, we hold that sufficient evidence exists to support the co\u00fart\u2019s finding that the appellant was financially able to pay half of his children\u2019s support during the time of separation. We thus uphold the trial court\u2019s order for retroactive child support.\nFor the foregoing reasons, the decision of the trial court is\nAffirmed.\nJudges JOHNSON and JOHN concur.\n. Section 50-20(c) was modified by the North Carolina legislature, effective October 1, 1991. However, since this case was filed on March 27, 1991, the pre-amendment law applies.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Wyrick, Robbins, Yates and Ponton, by Robert A. Ponton, Jr., Bruce C. Johnson, and Charles W. Clanton, for plaintiff-appellee.", "W. Brian Howell, P.A., by W. Brian Howell, for defendant-appellant." ], "corrections": "", "head_matter": "CLAIRE B. MUNN (now CLAIRE BROYHILL) v. ALBERT R. MUNN, III\nNo. 9210DC921\n(Filed 5 October 1993)\n1. Appeal and Error \u00a7 210 (NCI4th)\u2014 no certificate of service of notice of appeal in record \u2014 jurisdiction.of Court of Appeals \u2014 appeal treated as petition for writ of certiorari\nThough the Court of Appeals did not have jurisdiction of the appeal in this case because the record on appeal did not contain a sufficient certificate of service of the notice of appeal, the Court could nevertheless treat the appeal as a petition for writ of certiorari and grant the writ.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 320 et seq.; Certiorari \u00a7\u00a7 5 et seq.\n2. Divorce and Separation \u00a7 122 (NCI4th)\u2014 equitable distribution \u2014money from wife\u2019s trust \u2014classification proper\nThe trial court in an equitable distribution action did not err in classifying half the money advanced from the wife\u2019s trust as a gift to the marital estate and the other half as a debt incurred by the marital estate, requiring repayment.\nAm Jur 2d, Divorce and Separation \u00a7 879.\n3. Divorce and Separation \u00a7 165 (NCI4th)\u2014 equitable distribution \u2014rational basis\nThe trial court\u2019s distribution of marital property had a rational basis where it was based on findings as to the husband\u2019s salary, earning capacity, and separate liabilities; the wife\u2019s income from her trust and past discretionary disbursements from the trust; the wife\u2019s lack of employment history and skills; the wife\u2019s need as the custodial parent to . use the household effects of the marital residence; the wife\u2019s contribution of separate funds to reduction of the husband\u2019s student loans; liquidity of the parties\u2019 assets; desirability of keeping the husband\u2019s medical practice intact; post-separation payments by both parties to maintain the marital residence; reduction of marital debt by the wife\u2019s trust; depreciation of the marital residence between the parties\u2019 separation and sale of the house; the husband\u2019s use of the house after the separation; the husband\u2019s conversion of marital assets and increase of marital debts with no evidence of use for marital purposes; the wife\u2019s contribution during the marriage of-at least $432,600 of separate property to the marital estate; and other findings.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 870 et seq.\n4. Divorce and Separation \u00a7 399 (NCI4th)\u2014 child support \u2014 ability of father to pay half\nThere was sufficient evidence in the record to support the trial court\u2019s finding that appellant father, an ophthalmologist with a 1991 income of at least $88,000, was able to pay half \u25a0 of his children\u2019s support, or $1,300 per month, and the trial court gave due regard to the parties\u2019 estates, earnings, and conditions.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 1041, 1042.\n5. Divorce and Separation \u00a7 399 (NCI4th)\u2014 retroactive child support \u2014father\u2019s ability to pay \u2014sufficiency of evidence\nThe trial court properly ordered appellant to pay retroactive child support for the period between the parties\u2019 separation and the date of trial where sufficient evidence existed to support the court\u2019s finding that appellant was financially able to pay half of his children\u2019s support during the time of separation.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 1041, 1042.\nAppeal by defendant from order and judgments entered 17 February 1992 by Judge Jerry W. Leonard in Wake County District Court. Heard in the Court of Appeals 2 September 1993.\nWyrick, Robbins, Yates and Ponton, by Robert A. Ponton, Jr., Bruce C. Johnson, and Charles W. Clanton, for plaintiff-appellee.\nW. Brian Howell, P.A., by W. Brian Howell, for defendant-appellant." }, "file_name": "0151-01", "first_page_order": 181, "last_page_order": 190 }