{ "id": 11918367, "name": "JOHN ANDERSON TAYLOR, JR., Plaintiff v. DULCIA G. TAYLOR, Defendant", "name_abbreviation": "Taylor v. Taylor", "decision_date": "1995-04-04", "docket_number": "No. 9421DC599", "first_page": "356", "last_page": "367", "citations": [ { "type": "official", "cite": "118 N.C. App. 356" } ], "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": "441 S.E.2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "621" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 125", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527235 ], "year": 1994, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0125-01" ] }, { "cite": "271 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "67-8", "parenthetical": "in alimony case, court should inquire into separate estates of parties which are available to defray costs of litigation and disparity of financial resources" } ], "opinion_index": 0 }, { "cite": "301 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564391 ], "year": 1980, "pin_cites": [ { "page": "136-37", "parenthetical": "in alimony case, court should inquire into separate estates of parties which are available to defray costs of litigation and disparity of financial resources" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0123-01" ] }, { "cite": "419 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "185", "parenthetical": "court's finding mother has means to pay attorney is not supported by evidence where her income is not sufficient to pay legal expenses and she would have to deplete her small estate to pay legal expenses" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527264 ], "year": 1992, "pin_cites": [ { "page": "153-54", "parenthetical": "court's finding mother has means to pay attorney is not supported by evidence where her income is not sufficient to pay legal expenses and she would have to deplete her small estate to pay legal expenses" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0140-01" ] }, { "cite": "339 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "828" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 592", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522250 ], "year": 1986, "pin_cites": [ { "page": "596-97" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0592-01" ] }, { "cite": "411 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "591-92" } ], "opinion_index": 0 }, { "cite": "330 N.C. 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510932 ], "year": 1992, "pin_cites": [ { "page": "600" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0595-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "331 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "174" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 425", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526034 ], "year": 1985, "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0425-01" ] }, { "cite": "314 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 170", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526828 ], "year": 1984, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0170-01" ] }, { "cite": "360 S.E.2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "819" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 392", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358443 ], "year": 1987, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0392-01" ] }, { "cite": "401 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537733 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0324-01" ] }, { "cite": "392 S.E.2d 627", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "630" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 61", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520983 ], "year": 1990, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0061-01" ] }, { "cite": "326 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "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": "343 S.E.2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "586" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521398 ], "year": 1986, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0071-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 5043.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "327 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "290", "parenthetical": "citing Newman, 64 N.C. App. at 128, 306 S.E.2d at 542" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 12", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522509 ], "year": 1985, "pin_cites": [ { "page": "20", "parenthetical": "citing Newman, 64 N.C. App. at 128, 306 S.E.2d at 542" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0012-01" ] }, { "cite": "268 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "189" }, { "page": "189" } ], "opinion_index": 0 }, { "cite": "300 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564644 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "712" }, { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0708-01" ] }, { "cite": "310 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "quoting Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)" } ], "opinion_index": 0 }, { "cite": "309 N.C. 822", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763336, 4764105, 4762317, 4760943, 4767702 ], "year": 1983, "pin_cites": [ { "parenthetical": "quoting Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0822-05", "/nc/309/0822-02", "/nc/309/0822-01", "/nc/309/0822-04", "/nc/309/0822-03" ] }, { "cite": "306 S.E.2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "542", "parenthetical": "quoting Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)" }, { "page": "542" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 125", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526303 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "127", "parenthetical": "quoting Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)" }, { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0125-01" ] }, { "cite": "182 N.E. 7", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1932, "pin_cites": [ { "page": "8" } ], "opinion_index": 0 }, { "cite": "259 N.Y. 334", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2000980 ], "year": 1932, "pin_cites": [ { "page": "336-37" } ], "opinion_index": 0, "case_paths": [ "/ny/259/0334-01" ] }, { "cite": "448 S.E.2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551555, 2551689, 2552697, 2552187, 2550815 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0694-01", "/nc/337/0694-05", "/nc/337/0694-02", "/nc/337/0694-04", "/nc/337/0694-03" ] }, { "cite": "442 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "355-56" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 538", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527801 ], "pin_cites": [ { "page": "543-44" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0538-01" ] }, { "cite": "435 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "768", "parenthetical": "trial court's order modifying alimony from date matter was first noticed for hearing is not a retroactive modification" }, { "page": "768" } ], "opinion_index": 0 }, { "cite": "335 N.C. 140", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527839 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "143-44", "parenthetical": "trial court's order modifying alimony from date matter was first noticed for hearing is not a retroactive modification" }, { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0140-01" ] }, { "cite": "225 S.E.2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "827", "parenthetical": "awarding future child support from date of filing of complaint forward and awarding retroactive child support for period before filing of complaint" } ], "opinion_index": 0 }, { "cite": "290 N.C. 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560631 ], "year": 1976, "pin_cites": [ { "page": "116", "parenthetical": "awarding future child support from date of filing of complaint forward and awarding retroactive child support for period before filing of complaint" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0098-01" ] }, { "cite": "403 S.E.2d 900", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "903" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 496", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524862 ], "year": 1991, "pin_cites": [ { "page": "501-02" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0496-01" ] }, { "cite": "N.C. Gen. Stat. \u00a750-13.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(c)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "271 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "67" } ], "opinion_index": 1 }, { "cite": "301 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564391 ], "year": 1980, "pin_cites": [ { "page": "136" } ], "opinion_index": 1, "case_paths": [ "/nc/301/0123-01" ] }, { "cite": "419 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "184" } ], "opinion_index": 1 }, { "cite": "107 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527264 ], "year": 1992, "pin_cites": [ { "page": "153-54" } ], "opinion_index": 1, "case_paths": [ "/nc-app/107/0140-01" ] }, { "cite": "339 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "828" }, { "page": "828" } ], "opinion_index": 1 }, { "cite": "79 N.C. App. 592", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522250 ], "year": 1986, "pin_cites": [ { "page": "596" } ], "opinion_index": 1, "case_paths": [ "/nc-app/79/0592-01" ] } ], "analysis": { "cardinality": 930, "char_count": 27930, "ocr_confidence": 0.728, "pagerank": { "raw": 4.6423271329123006e-07, "percentile": 0.9270859034638699 }, "sha256": "b9cdf9e893cb4ed2901da44b4bb7fcca9d18f4bf8c521e6fb6fe543b12fb8d28", "simhash": "1:8fb2d426262fd6be", "word_count": 4564 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge COZORT concurs.", "Judge LEWIS dissents in part and concurs in part." ], "parties": [ "JOHN ANDERSON TAYLOR, JR., Plaintiff v. DULCIA G. TAYLOR, Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nJohn Anderson Taylor, Jr. (plaintiff) appeals from an order entered 24 January 1994 in Forsyth County District Court, ordering him to pay Dulcia G. Taylor (defendant) prospective and retroactive child support, and defendant appeals from the same order, denying her claim for attorney\u2019s fees.\nPlaintiff and defendant were married on 30 December 1981 and separated on 7 May 1990 and have two children from the marriage. On 10 May 1991, plaintiff filed a verified complaint for absolute divorce, and on 10 June 1991, defendant filed an answer and counterclaim, seeking primary physical custody of their two children, child support, and the costs of the action. Judge Margaret L. Sharpe granted the parties an absolute divorce on 18 July 1991, and on 6 December 1991, Judge R. Kason Keiger signed an \u201cinterim child support order\u201d consented to by the parties and decreeing \u201cin lieu of a child support order in a sum certain,\u201d plaintiff \u201cwill insure that funds are made available from applicable trusts or otherwise to continue to pay the children\u2019s educational expenses . . . until such time as a final determination is made as to the issues of custody and child support.\u201d\nA hearing on the issues of child support, child custody, and attorney\u2019s fees took place in August and October of 1993. Roger Edwards (Edwards), a certified public accountant who handles plaintiff and Taylor Oil Company\u2019s (Taylor Oil) accounts, testified that plaintiff is a shareholder in Taylor Oil, a subchapter S corporation. \u201c[E]ach year the corporation allocates the income [from Taylor Oil] among all the shareholders. . . . The income that is actually allocated is included in that shareholders individual income tax return, and he pays the income tax on it.\u201d Edwards stated that allocations on which shareholders pay income tax are often different from the cash distributions actually received by the shareholders so that plaintiff paid income taxes on allocations of $262,689 in 1991 and $334,911 in 1992 while receiving actual cash distributions of $220,000 in 1991 and $295,000 in 1992.\nIn an order filed 23 January 1994 and entered 24 January 1994, Judge Chester C. Davis made the findings of fact that defendant, as a result of the separation agreement, received the marital home with a value of $200,000, all the furniture in the home, and $1,036,307, and that \u201c[defendant's answer and counterclaim did not specifically request retroactive child support for the period between May 10, 1990, and June 10,' 1991,... [but] did request attorney\u2019s fees on August 20, 1993.\u201d Judge Davis also found plaintiff paid defendant child support of $2,500 to $5,000 per month from 7 May 1990 until 1 February 1991, but \u201cdid not consider the school expenses at Forsyth Country Day School [of $600 to $650 per month per child paid out of a trust] because neither party is paying that expense.\u201d Judge Davis then made findings for: (1) \u201cRetroactive Child Support June 10, 1991 through December 31, 1991\u201d concerning defendant\u2019s expenses for the reasonable needs of the children for that period, defendant\u2019s 1991 income, and plaintiff\u2019s 1991 income; (2) \u201cRetroactive Child Support-1992\u201d concerning defendant\u2019s expenses for the children\u2019s reasonable needs for 1992, defendant\u2019s 1992 income, and plaintiff\u2019s 1992 income; and (3) \u201cRetroactive Child Support January 1,1993 through September 30, 1993\u201d concerning defendant\u2019s expenses for the reasonable needs of the children during that time, defendant\u2019s projected 1993 income, and plaintiff\u2019s 1993 income.\nThen, in a section labeled \u201cFuture Child Support,\u201d Judge Davis made the following relevant findings:\n89. At the time of the equitable distribution, plaintiff chose not to give defendant one half of the stock they owned in Taylor Oil but instead decided to retain the stock and create debt to purchase defendant\u2019s interest in the stock.\n90. The court finds that plaintiff created a financial situation in which he generated debt in the approximate amount of $1,036,000 while retaining assets which otherwise could have been transferred to defendant in this matter.\n91. Therefore, the Court finds that the Salem Trust debt with monthly payments of $9,967 is not allowed as a valid debt of the plaintiff for determining his gross income for child support purposes.\n92. Plaintiff also claimed as an itemized monthly deduction from his gross income, a debt that he owes to his father, John A. Taylor, Sr., in the amount of $195,126 for a loan he received to pay defendant her equitable distribution of the parties\u2019 marital property. The court finds that plaintiff is making monthly payments of interest in the amount of $657 on that loan.\n93. Further, the court finds that the plaintiff owes his father, John A. Taylor, Sr., $292,178 for a loan he received to purchase shares of Taylor Oil Company stock, on which plaintiff is making monthly payments of $984.\n94. The Court finds that both of these debts like the Salem Trust debt, were created by plaintiff so he could retain assets which otherwise could have been transferred to defendant during the equitable distribution. The Court will not allow deductions for these monthly payments because plaintiff has created this debt.\n95. The Court notes that plaintiffs father has deferred any payment on the principal of these notes and has forgiven the interest payments.\n105. Therefore, the Court finds that the total combined annual income for the parties is approximately $419,690.00.\nIn the three sections of the order labeled \u201cretroactive child support\u201d and the one section labeled \u201cfuture child support,\u201d the court used the allocated income figures which plaintiff received from Taylor Oil rather than the cash actually distributed to plaintiff in determining his income. For attorney\u2019s fees, the trial court found defendant \u201chas a reasonably liquid estate of $666,581, a home now having an approximate value of $350,000, two cars, and furniture all of which have an approximate total value of 1.1 million dollars,\u201d that she is \u201can interested party\u201d and \u201cwas acting in good faith.\u201d\nThe trial court then made the following pertinent conclusions of law based on the findings:\n3. That plaintiff has sufficient funds to pay child support as is hereinafter ordered by the Court.\n4. That plaintiff has sufficient assets to pay retroactive child support as is hereinafter ordered by the Court.\n5. That plaintiff\u2019s gross projected income for 1993 is $372,182.\n8. That the plaintiff did not refuse to pay child support.\n10. That defendant is entitled to recover retroactive child support from plaintiff for the period June 7, 1991 through September 30, 1993.\nBased on these findings and conclusions, the trial court ordered the following:\n1. Plaintiff shall pay directly to the defendant the sum of $4,685 per month for John and Ashton as child support, beginning November 15, 1993, by the 15th day of each month thereafter for the support of each of the minor children until as prescribed by N.C. Gen. Stat. \u00a750-13.4(c) as recently amended.\n2. Plaintiff shall pay directly to the defendant the sum of $110,727 as retroactive child support by January 31, 1994. . . .\n3. Defendant shall have and recover no attorneys\u2019 fees from plaintiff.\nThe issues presented are whether (I) the trial court properly used the test for retroactive child support in awarding child support from the date defendant filed her claim for child support to the date of trial; (II) the trial court, in calculating prospective child support, properly considered (A) debt incurred by plaintiff by virtue of the equitable distribution settlement with defendant; and (B) plaintiff\u2019s income allocated to him by Taylor Oil where cash distributions he received from Taylor Oil were lower than the allocated income and the value of the parties\u2019 estates; and (III) there is sufficient evidence to support the conclusion defendant is not entitled to attorney\u2019s fees.\nI\nChild support awarded prior to the time a party files a complaint is properly classified as retroactive child support and is determined by considering reasonably necessary expenditures made on behalf of the child by the party seeking retroactive child support and \u201cthe defendant\u2019s ability to pay during the period in the past for which reimbursement is sought.\u201d Savani v. Savani, 102 N.C. App. 496, 501-02, 403 S.E.2d 900, 903 (1991). Child support awarded, however, from the time a party files a complaint for child support to the date of trial is not \u201cretroactive child support,\u201d but is in the nature of prospective child support representing that period from the time a complaint seeking child support is filed to the date of trial. Tidwell v. Booker, 290 N.C. 98, 116, 225 S.E.2d 816, 827 (1976) (awarding future child support from date of filing of complaint forward and awarding retroactive child support for period before filing of complaint); cf. Hill v. Hill, 335 N.C. 140, 143-44, 435 S.E.2d 766, 768 (1993) (trial court\u2019s order modifying alimony from date matter was first noticed for hearing is not a retroactive modification); Mackins v. Mackins, 114 N.C. App. 538, 543-44, 442 S.E.2d 352, 355-56 (trial court\u2019s order increasing child support from April 1991 through February 1993 was not a retroactive modification of child support because April 1991 was subsequent to 27 March 1991, the date plaintiff filed motion for increased child support), disc. rev. denied, 337 N.C. 694, 448 S.E.2d 527 (1994). This is so because an order for child support can \u201cproperly take effect as of [the] date\u201d a complaint for child support is filed. Hill, 335 N.C. at 144, 435 S.E.2d at 768 (quoting Harris v. Harris, 259 N.Y. 334, 336-37, 182 N.E. 7, 8 (1932)).\nIn this case, the trial court classified the child support ordered from 10 June 1991, the date defendant filed her claim for child support to 30 September 1993, a date when the hearing on the issues were being held, as \u201cretroactive child support\u201d and used the test for determining retroactive child support for that period. The trial court, therefore, used the incorrect test in determining what child support should be awarded defendant from the time she filed her claim to the date of trial. The court should have used the same test for determining the child support from 10 June 1991, the date defendant filed her claim for child support, and the date of trial as it used for determining prospective child support.\nII\nProspective child support is normally determined under the North Carolina Child Support Guidelines (the Guidelines). The Guidelines in effect at the time of this trial specifically state the Guidelines do not apply in determining child support where the parents\u2019 combined adjusted gross income is higher than $10,000 per month ($120,000 per year). 1991 North Carolina Child Support Guidelines; see 1994 North Carolina Child Support Guidelines (Guidelines do not apply if parents\u2019 combined adjusted gross income is higher than $12,500 per month ($150,000 per year)). \u201cFor cases with higher combined monthly adjusted gross income, child support should be determined on a case-by-case basis. But in no event should the award in such case be lower than that established by applying the Guidelines\u2019 maximum amount in the Schedule of Basic Child Support Obligations.\u201d 1991 Guidelines. Because in this case, the parties\u2019 combined income is approximately $400,000, the Guidelines do not apply. In determining child support on a case-by-case basis, the order \u201cmust be based upon the interplay of the trial court\u2019s conclusions of law as to (1) the amount of support necessary to \u2018meet the reasonable needs of the child\u2019 and (2) the relative ability of the parties to provide that amount.\u201d Newman v. Newman, 64 N.C. App. 125, 127, 306 S.E.2d 540, 542, disc. rev. denied, 309 N.C. 822, 310 S.E.2d 351 (1983) (quoting Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)). The court should determine the child\u2019s reasonable needs that exist at the time of trial and the parties\u2019 relative abilities to pay at the time of trial. Furthermore, to determine the relative abilities of the parties to provide support, the court \u201cmust hear evidence and make findings of fact on the parents\u2019 income[s], estates (e.g., savings; real estate holdings, including fair market value and equity; stocks; and bonds) and present reasonable expenses.\u201d Little v. Little, 74 N.C. App. 12, 20, 327 S.E.2d 283, 290 (1985) (citing Newman, 64 N.C. App. at 128, 306 S.E.2d at 542). The trial court, in determining the appropriate amount of child support, has considerable discretion in considering the factors contained in N.C. Gen. Stat. \u00a7 5043.4(c); Boyd v. Boyd, 81 N.C. App. 71, 78, 343 S.E.2d 581, 586 (1986). If the court\u2019s findings are supported by competent evidence in the record and are specific enough to enable this Court to determine the trial court \u201ctook \u2018due regard\u2019 of the particular \u2018estates, earnings, conditions, [and] accustomed standard of living\u2019 of both the child and the parents,\u201d Coble, 300 N.C. at 712, 268 S.E.2d at 189, its determination as to the proper amount of support will not be disturbed on appeal absent a clear \u00e1buse of discretion, i.e., \u201cmanifestly unsupported by reason.\u201d Plott v. Plott, 313 N.C. 63, 69, 326 S.E.2d 863, 868 (1985).\nA. Debt Incurred by Plaintiff\nPlaintiff first contends that the trial court did not consider his ability to pay in calculating the award for child support because it failed to deduct from his monthly income and excluded from his monthly expenses payments to creditors required to maintain income producing assets associated with the equitable distribution of marital property. The payments to creditors include $9,967 per month to Salem Trust, $657 per month to plaintiff\u2019s father for a loan, and $984 per month to plaintiff\u2019s father for another loan. Because the evidence shows, and the trial court found, that the payments to plaintiff\u2019s father have been deferred, the trial court did not abuse its discretion in failing to deduct these amounts which are expenses \u201cnot yet made by [plaintiff] with no concrete plans to make such\u201d expenditures. Witherow v. Witherow, 99 N.C. App. 61, 65, 392 S.E.2d 627, 630 (1990), aff'd, 328 N.C. 324, 401 S.E.2d 362 (1991).\nThe trial court, however, in considering plaintiff\u2019s income generated by the stock he has as a result of incurring the Salem Trust debt, abused its discretion in not considering plaintiff\u2019s payments to Salem Trust as part of his expenses. Had plaintiff not incurred the Salem Trust debt, he would have had to deplete the amount of assets he possessed in order to comply with the equitable distribution settlement and would therefore have less income to consider for determining child support. Therefore, by failing to include the Salem Trust debt, the trial court did not give \u201cdue regard\u201d to plaintiff\u2019s reasonable expenses and did not accurately reflect his relative ability to pay child support.\nB. Plaintiff\u2019s Income From Taylor Oil\nPlaintiff contends the trial court erred in using the amount of income allocated to him by Taylor Oil in calculating his income because the allocated amount is higher than the cash actually distributed to him by Taylor Oil and in failing to make findings of fact as to the value of the parties\u2019 estates. We agree.\nThe allocated income amount used by the trial court does not represent plaintiff\u2019s actual income received as cash distributions from Taylor Oil; therefore, the court did not give due regard to plaintiff\u2019s earnings and relative ability to pay child support. Furthermore, there is no finding in the trial court\u2019s order regarding the value of plaintiff\u2019s estate. \u201cAt the very least, a trial court must determine what major assets comprise the parties\u2019 estates and their approximate value.\u201d Sloan v. Sloan, 87 N.C. App. 392, 395, 360 S.E.2d 816, 819 (1987). Therefore, the trial court abused its discretion in calculating plaintiff\u2019s income and in failing to value plaintiff\u2019s estate.\nFor the reasons previously discussed, the trial court abused its discretion in calculating the amount of prospective child support, and the case must be remanded for further findings on the parties\u2019 incomes, estates, expenses, and relative abilities to pay in determining prospective child support. Furthermore, because we have already determined that the trial court erred in using the \u201cretroactive child support\u201d test for calculating prospective child support representing that time from 10 June 1991 through 30 September 1993, the case must be remanded so that the court can, pursuant to N.C. Gen. Stat. \u00a7 50-13.4(c), make appropriate findings of fact on the reasonable needs of the children, the \u201cestates, earnings, conditions, accustomed standard of living of the child and the parties\u201d for that period of time from 10 June 1991 through September 1993.\nWe have reviewed plaintiff\u2019s other assignments of error concerning the order for prospective child support and find no abuse of discretion by the trial court on those issues.\nIll\nDefendant, in her appeal, contends the trial court erred in finding she had sufficient means to defray litigation expenses and in finding plaintiff did not refuse to pay child support, and, therefore, in denying defendant\u2019s motion for attorney\u2019s fees.\nAlthough the trial court has considerable discretion in allowing or disallowing attorney\u2019s fees in child support cases, Warner v. Latimer, 68 N.C. App. 170, 176, 314 S.E.2d 789, 793 (1984), an award of attorney\u2019s fees in a child support action is proper only if the trial court finds as fact that \u201c(1) the interested party (a) acted in good faith and (b) has insufficient means to defray the expenses of the action and further, that (2) the supporting party refused to provide adequate support \u2018under the circumstances existing at the time of the institution of the action or proceeding.\u2019 \u201d Brower v. Brower, 75 N.C. App. 425, 429, 331 S.E.2d 170, 174 (1985); N.C.G.S. \u00a7 50-13.6.\nIn this case, the trial court found \u201cplaintiff did not refuse to pay child support.\u201d This finding, however, cannot be a basis for denying attorney\u2019s fees because the question is not whether plaintiff refused to pay any child support but whether he refused to pay adequate child support \u201cunder the circumstances existing at the time of the institution of the action.\u201d This issue has not been addressed by the trial court. Plaintiff nonetheless argues that because he complied with the 6 December 1991 consent decree with regard to the trust fund payments, the trial court must find, as a matter of law, that he has provided adequate child support within the meaning of N.C. Gen. Stat. \u00a7 50-13.6. We disagree. See Sikes v. Sikes, 330 N.C. 595, 600, 411 S.E.2d 588, 591-92 (1992).\nOn the question of whether defendant has insufficient means to defray the expenses of the action, the record reveals that the court made its determination on this issue without considering the relative estates of the parties. The trial court only made findings on the value of the defendant\u2019s estate. Whether a party has insufficient means to defray the expenses of the action requires a consideration of the estates of both parties. \u201c[T]o require one seeking an award of attorney\u2019s fees to meet the expenses of litigation through the unreasonable depletion of her separate estate where her separate estate is smaller than that of the other party\u201d would be contrary to the intent of the legislature. Cobb v. Cobb, 79 N.C. App. 592, 596-97, 339 S.E.2d 825, 828 (1986); Lawrence v. Tise, 107 N.C. App. 140, 153-54, 419 S.E.2d 176, 185 (1992) (court\u2019s finding mother has means to pay attorney is not supported by evidence where her income is not sufficient to pay legal expenses and she would have to deplete her small estate to pay legal expenses); cf. Clark v. Clark, 301 N.C. 123, 136-37, 271 S.E.2d 58, 67-8 (1980) (in alimony case, court should inquire into separate estates of parties which are available to defray costs of litigation and disparity of financial resources). Because, therefore, of these inadequacies with respect to the issues of whether the plaintiff refused to pay adequate child support and whether the defendant had sufficient means to defray the legal expenses of the child support action, the question of defendant\u2019s entitlement to attorney\u2019s fees is remanded to the trial court for reconsideration.\nOn remand, with regard to both the child support issue and the attorney\u2019s fees issue, \u201cthe trial court should enter a new judgment consistent with this opinion, relying upon the existing record . . . and receiving additional evidence and entertaining argument only as necessary to correct the errors identified herein.\u201d Fox v. Fox, 114 N.C. App. 125, 138, 441 S.E.2d 613, 621 (1994).\nReversed and remanded.\nJudge COZORT concurs.\nJudge LEWIS dissents in part and concurs in part.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge Lewis\ndissenting in part, concurring in part.\nI dissent as to the majority\u2019s decision to remand on the issue of attorney\u2019s fees under N.C.G.S. \u00a7 50-13.6. I do not agree that the trial court is required in this case to consider the relative estates of the parties in determining whether the party seeking attorney\u2019s fees has insufficient means to defray the expense of the suit. I also do not agree that requiring this defendant to pay her own attorney\u2019s fees constitutes an unreasonable depletion of her estate.\nNone of the cases cited by the majority require a consideration of the relative estates of the parties in determining the threshold question of whether attorney\u2019s fees should be awarded in child support cases. Clark was an alimony case dealing with the issue of whether the proper amount of fees had been awarded, and not with the initial determination of whether attorney\u2019s fees should have been awarded at all. See Clark, 301 N.C. at 136, 271 S.E.2d at 67. As such, it is inapposite.\nIn Cobb, this court did consider the relative estates of the parties in making a determination of whether an award of attorney\u2019s fees was proper. Cobb, 79 N.C. App. at 596, 339 S.E.2d at 828. However, Cobb does not require such a consideration in all cases. Consideration of both parties\u2019 estates is appropriate under Cobb when the party seeking attorney\u2019s fees would be required to deplete her estate unreasonably in order to pay her litigation expenses. See id. at 596-7, 339 S.E.2d at 828.\nThe plaintiff seeking attorney\u2019s fees in Cobb had no liquid assets and her actual income did not meet her living expenses. Thus, requiring her to deplete this small estate was not reasonable. Here, the court found that defendant has a liquid estate of $666,581, a home worth $350,000, two cars, and furniture, all of which have an approximate value of $ 1.1 million. Defendant\u2019s situation is very different from the plaintiff in Cobb who would have had to sell her only remaining asset, her home, to pay attorney\u2019s fees. Defendant\u2019s situation is also very different from the plaintiff in Lawrence, also cited by the majority, whose monthly expenses exceeded her income and who had a small estate compared to that of defendant here. See Lawrence, 107 N.C. App. at 153-54, 419 S.E.2d at 184.\nRequiring defendant to sell some of her substantial assets to pay her attorney\u2019s fees is not an unreasonable depletion of her estate. Plaintiff may well be required to liquidate some of his assets to pay his litigation expenses. Since defendant has substantial assets, it is not unreasonable to require her to liquidate some of hers as well. Thus, there was no need for the court to inquire into the relative estates of the parties.\nThe majority\u2019s requirement that a court always consider the relative estates of both parties may result in the award of attorney\u2019s fees whenever one spouse has a larger estate than the other even when the moving party has a substantial estate. Such a requirement goes far beyond the scope of section 50-13.6 which permits attorney\u2019s fees only when the party seeking fees has \u201cinsufficient means to defray the expense of the suit\u201d I cannot believe that the legislature intended such a result nor should we build an additional hurdle for trial judges to clear.\nThe trial court did not err in finding that the defendant had sufficient means to defray her litigation expenses. Since a finding of insufficient means is required for an award of attorney\u2019s fees under section 50-13.6, the trial court properly denied defendant\u2019s motion for attorney\u2019s fees.\nI concur with the majority\u2019s disposition of the other issues raised in this case.", "type": "dissent", "author": "Judge Lewis" } ], "attorneys": [ "Edward P. Hausle, P.A., by Edward P. Hausle, for plaintiff - appellee/appellant.", "Robinson Maready Lawing & Comerford, L.L.P., by Norwood Robinson and C. Ray Grantham, Jr., for defendant-appellee/appellant." ], "corrections": "", "head_matter": "JOHN ANDERSON TAYLOR, JR., Plaintiff v. DULCIA G. TAYLOR, Defendant\nNo. 9421DC599\n(Filed 4 April 1995)\n1. Divorce and Separation \u00a7 392 (NCI4th)\u2014 child support from filing of complaint to hearing \u2014 no retroactive child support \u2014 incorrect test applied\nChild support awarded from the time a party files a complaint for child support to the date of trial is in the nature of prospective child support and is not retroactive child support; therefore, the trial court erred in classifying the child support ordered from the date defendant filed her claim for child support to the date the hearing on the issue was held as retroactive child support and used the incorrect test in determining what child support should be awarded.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 1035 et seq.\n2. Divorce and Separation \u00a7 392.1 (NCI4th)\u2014 child support guidelines \u2014 inapplicability because of parties\u2019 income\nThe child support guidelines did not apply to a determination of child support where the parties\u2019 combined income was approximately $400,000 per year.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 1035 et seq.\n3. Divorce and Separation \u00a7 403 (NCI4th)\u2014 child support\u2014 father\u2019s expenses \u2014 exclusion of certain debts\nLoan payments to plaintiff\u2019s father were properly excluded by the trial court in determining plaintiff\u2019s income for child support purposes where the payments have been deferred and plaintiff has no concrete plans for making such payments. However, the trial court erred in excluding plaintiff\u2019s monthly payments to a trust for debt incurred to purchase defendant\u2019s stock in a Subchapter S corporation under an equitable distribution settlement.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 1041, 1042.\n4. Divorce and Separation \u00a7 400 (NCI4th)\u2014 child support\u2014 income improperly calculated \u2014 failure to find value of parties\u2019 estates\nThe trial court erred in using the amount of income allocated to plaintiff by Taylor Oil, a Subchapter S corporation in which plaintiff was a shareholder, in calculating his income because the allocated amount was higher than the cash actually distributed to him by Taylor Oil, and the court erred in failing to make findings of fact as to the value of the parties\u2019 estates.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 1041, 1042.\n5. Divorce and Separation \u00a7 551 (NCI4th)\u2014 action for child support \u2014 inability of party to defray expenses \u2014 insufficiency of findings \u2014 award of attorney fees improper\nThe trial court erred in finding that defendant had sufficient means to defray litigation expenses and that plaintiff did not refuse to pay child support, and in therefore denying defendant\u2019s motion for attorney\u2019s fees, where the court was required to find that plaintiff did not refuse to pay adequate child support under the circumstances, but this issue was not addressed by the trial court; furthermore, whether a party has insufficient means to defray the expenses of the action requires a consideration of the estates of both parties, but the trial court made findings only as to the value of defendant\u2019s estate.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 798 et seq.\nJudge Lewis dissenting in part, concurring in part.\nAppeal by plaintiff and defendant from order entered 24 January 1994 in Forsyth County District Court by Judge Chester C. Davis. Heard in the Court of Appeals 24 February 1995.\nEdward P. Hausle, P.A., by Edward P. Hausle, for plaintiff - appellee/appellant.\nRobinson Maready Lawing & Comerford, L.L.P., by Norwood Robinson and C. Ray Grantham, Jr., for defendant-appellee/appellant." }, "file_name": "0356-01", "first_page_order": 388, "last_page_order": 399 }