{ "id": 11869186, "name": "RITA L. SHAW, Appellant v. BRUCE B. CAMERON III, Appellee", "name_abbreviation": "Shaw v. Cameron", "decision_date": "1997-03-04", "docket_number": "No. COA95-341", "first_page": "522", "last_page": "529", "citations": [ { "type": "official", "cite": "125 N.C. App. 522" } ], "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": "43 ALR4th 121", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "38 ALR4th 145", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "417 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498691, 2499210, 2496875, 2499020, 2499320 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0286-01", "/nc/331/0286-03", "/nc/331/0286-04", "/nc/331/0286-05", "/nc/331/0286-02" ] }, { "cite": "409 S.E.2d 725", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521893 ], "year": 1991, "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0400-01" ] }, { "cite": "541 N.W.2d 443", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10726604 ], "year": 1995, "pin_cites": [ { "page": "447", "parenthetical": "regarding non-recurring payments: \"Our law and the public policy inherent in the guidelines dictate that children should share in the child support obligor's good fortune.\"" } ], "opinion_index": 0, "case_paths": [ "/nw2d/541/0443-01" ] }, { "cite": "400 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "740" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 617", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528011 ], "year": 1991, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0617-01" ] }, { "cite": "468 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798953 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0050-01" ] }, { "cite": "455 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "446" }, { "page": "447", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918367 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "362" }, { "page": "362-63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0356-01" ] }, { "cite": "134 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "234" } ], "opinion_index": 0 }, { "cite": "261 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571650 ], "year": 1964, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0048-01" ] }, { "cite": "443 S.E.2d 96", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "97", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 808", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528024 ], "year": 1994, "pin_cites": [ { "page": "810", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0808-01" ] }, { "cite": "239 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565860, 8565831, 8565883, 8565915, 8565951 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0589-02", "/nc/293/0589-01", "/nc/293/0589-03", "/nc/293/0589-04", "/nc/293/0589-05" ] }, { "cite": "237 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "480" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547502 ], "year": 1977, "pin_cites": [ { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0144-01" ] } ], "analysis": { "cardinality": 871, "char_count": 17330, "ocr_confidence": 0.754, "pagerank": { "raw": 1.3188414672205159e-07, "percentile": 0.6260803236018779 }, "sha256": "0294d5e301a106f8adf32aba2b95f59ea954fd0bca46b70104b02953ad446d0d", "simhash": "1:8fee9da6cfbfc085", "word_count": 2711 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge McGEE concur." ], "parties": [ "RITA L. SHAW, Appellant v. BRUCE B. CAMERON III, Appellee" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiff assigns error to the trial court\u2019s 11 July 1994 order restricting discovery and to the court\u2019s 24 October 1994 judgment limiting child support paid by defendant to that amount computed utilizing the North Carolina Child Support Guidelines (the Guidelines). We hold the trial court erred in its 11 July 1994 discovery order.\nPertinent factual and procedural background is as follows: plaintiff and defendant lived together at defendant\u2019s home in Wilmington from October 1992 until late January or early February 1993; however, they never married. The parties\u2019 son, Riley Jackson Cameron (Riley), was born 11 September 1993.\nPlaintiff instituted suit for child support 6 October 1993 and defendant answered, denying paternity. Plaintiff\u2019s subsequent motion to amend her complaint to include a claim for custody was granted by the trial court. In December 1993, following receipt of blood-grouping test results establishing defendant\u2019s paternity of Riley, the parties entered into a consent agreement requiring defendant to pay child support in the amount of $600 per month pending a support award by the court.\nPlaintiff submitted a \u201cFirst Set of Interrogatories to Defendant\u201d and \u201cFirst Request to Defendant for Production of Documents,\u201d and received responses containing objections to much of the information sought. Plaintiff thereupon filed a motion to compel 8 June 1994. Defendant countered by seeking a protective order regarding certain financial matters and filing a stipulation that he would \u201cnot raise \u2018inability to pay reasonable child support\u2019 as a defense.\u201d In an order filed 11 July 1994, the trial court allowed plaintiff\u2019s motion to compel in part, but strictly limited the scope of discoverable information.\nAt trial in October 1994, evidence was introduced tending to show plaintiff was thirty-seven years-old, had obtained her GED and worked in the past as a nightclub dancer, but that she had not been employed for several years prior to trial. She lived in a mobile home in Davie County with one year-old Riley and three year-old Robbie, her son from a previous relationship. Plaintiff received income in the form of AFDC, food stamps, HUD rent subsidies, and occasional child support from Robbie\u2019s father.\nThe evidence also tended to show that defendant, thirty-eight years old at the time of trial, had obtained a tenth-grade education. He had not been employed since at least 1988, save for part-time work as a musician in a band for which he received approximately $500 annually. All defendant\u2019s living expenses were paid from proceeds of the Bruce B. Cameron, III, trust (the trust) established for defendant\u2019s benefit by his father. Defendant received an allowance of $300 per week from the trust, but sometime prior to October 1994 had received $650 per week. The 1994 proceeds of the trust, including interest and stock dividends totalling $29,294.54 through September 1994 and \u201cnon-recurring distributions from limited partnerships\u201d in the amount of $38,251.72, were projected to total $67,546.\nTestimony by the accountant employed by defendant\u2019s father indicated she was responsible for management of the trust records. All defendant\u2019s bills were directed to her for payment at the office of defendant\u2019s father, including defendant\u2019s monthly medical insurance premiums in the amount of $436.71, child support of $600.00 per month for defendant\u2019s son by his first marriage, and $65.00 per week in preschool expenses for defendant\u2019s daughter living in the Wilmington home. The accountant testified defendant was possessed of no authority to direct payment of monies from the trust account nor to render decisions concerning assets of the trust. Moreover, the amount of defendant\u2019s allowance from the trust was determined by defendant\u2019s father and defendant had no control over that decision.\nFurther testimony showed defendant owned a five bedroom home which his father had purchased for him while retaining a promissory note in the amount of $150,006.50 executed by defendant. Although the note specified 3 September 1995 as the date upon which it was due and payable, defendant stated that he \u201c[didn\u2019t] think there [was] a specific date on it.\u201d A full-time housekeeper employed by defendant discharged duties including cooking, cleaning, and helping care for defendant\u2019s three year-old daughter by his second wife, from whom he was separated. The housekeeper, who earned $15,472 between January and September 1994, was paid from the trust.\nThe court entered judgment 24 October 1994 granting plaintiff primary custody, but denying plaintiff\u2019s request for an upward deviation from the Guidelines and defendant\u2019s request for a deviation reducing the Guideline amount. Plaintiff consequently was awarded child support in the amount of $644 per month, which amount was calculated using defendant\u2019s 1994 projected trust income as his gross income. Plaintiff was also granted $1,500 in counsel fees. She filed notice of appeal 9 November 1994.\nPlaintiff first contends the trial court erred in its 11 July 1994 order addressing her motion to compel discovery. Specifically, plaintiff challenges those portions of the court\u2019s order directing that defendant respond to discovery requests \u201conly as to property owned individually by the Defendant and subject to his exclusive control\u201d and limiting defendant\u2019s responses regarding his inheritance or trust interests to those items \u201csubject to his exclusive ownership and control.\u201d\nTo cite one example, plaintiff served the following interrogatory on defendant:\nDo you have, or have you had in the last 18 months, an ownership or beneficial interest in any entity, including but not limited to partnerships, limited partnerships, corporations, associations, joint ventures, trusts and sole proprietorships? If so, describe each such entity with particularity, including but not limited to its name; its address; your legal or equitable relationship to or interest in the entity; the fair market value of your interest in the entity; and your 1993 income, from the entity.\nIn consequence of the court\u2019s restrictions, defendant\u2019s answer to this interrogatory and others similar in nature was \u201cnone,\u201d notwithstanding data on his 1993 tax returns reflecting an interest in at least two partnerships, Cameron Co. Ltd. Partnership and Cameron Properties, and one closely held corporation, Bayshore Estates. The sole information concerning defendant\u2019s assets and income obtainable by plaintiff within the limitations set by the court was that contained in defendant\u2019s 1992 and 1993 income tax returns.\nAs a result of the court\u2019s order, plaintiff asserts, she was\ndenied any reasonable opportunity to gather evidence as to the defendant\u2019s non-taxable income, as to the nature and value of the defendant\u2019s interest in the partnerships, as to the identity and value of the defendant\u2019s interest in real estate that he did not solely own, as to the terms of the trust generating the $67,546 income in 1994, and as to the nature and extent of tax-sheltered investments not solely owned and controlled by the defendant.\nGenerally, \u201corders regarding matters of discovery are within the discretion of the trial court and will not be upset on appeal absent a showing of abuse of discretion.\u201d Hudson v. Hudson, 34 N.C. App. 144, 145, 237 S.E.2d 479, 480, disc. review denied, 293 N.C. 589, 239 S.E.2d 264 (1977). However, under the circumstances sub judice, we are compelled to conclude the trial court\u2019s 11 July 1994 order constituted an abuse of discretion.\nN.C.R. Civ. P. 26(b)(1) allows discovery of \u201cany matter . . . which is relevant to the subject matter involved in the pending action.\u201d N.C.G.S. \u00a7 1A-1, Rule 26 (1990). The rule additionally provides:\nIt is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence nor is it grounds for objection that the examining party has knowledge of the information as to which discovery is sought.\nThe \u201cultimate objective in setting awards for child support is to secure support commensurate with the needs of the children and the ability of the father [mother] to meet the needs.\u201d Pittman v. Pittman, 114 N.C. App. 808, 810, 443 S.E.2d 96, 97 (1994) (emphasis added). Indeed, the statute governing child support actions provides that:\nPayments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, [and] accustomed standard of living of the child and the parties ....\nN.C.G.S. \u00a7 50-13.4(c) (1995) (emphasis added). Further,\na [parent\u2019s] duty of support today does not end with the furnishing of mere necessities if he is able to afford more. In addition to the actual needs of the child, a [parent] has a legal duty to give his children those advantages which are reasonable considering his financial condition and his position in society.\nWilliams v. Williams, 261 N.C. 48, 57, 134 S.E.2d 227, 234 (1964).\nProspective child support is currently determined in most cases under the Guidelines, Taylor v. Taylor, 118 N.C. App. 356, 362, 455 S.E.2d 442, 446 (1995), rev\u2019d on other grounds, 343 N.C. 50, 468 S.E.2d 33 (1996), and, absent a request for variance,\nsupport set consistent with the guidelines is conclusively presumed to be in such amount as to meet the reasonable needs of the child for health, education, and maintenance.\nBrowne v. Browne, 101 N.C. App. 617, 624, 400 S.E.2d 736, 740 (1991). The Guidelines utilize the \u201cgross income\u201d of each parent in calculating the amount of a child support obligor\u2019s payments thereunder. North Carolina Child Support Guidelines, AOC-A-162 (8/91 and 10/94 revisions). Gross income under the Guidelines is defined as \u201cincome from any source,\u201d including \u201cincome from . . . dividends, . . . interest, trust income, . . . [and] gifts.\u201d Id. Further, in a separate provision, the Guidelines specifically discuss inclusion of income from the \u201cjoint ownership of a partnership or closely held corporation.\u201d Id. Finally, \u201cnon-recurring, one-time payments\u201d are \u201cincludable as income,\u201d however they \u201cshould be distinguished from ongoing income.\u201d Id.) see, e.g., Helbling v. Helbling, 541 N.W.2d 443, 447 (N.D. 1995) (regarding non-recurring payments: \u201cOur law and the public policy inherent in the guidelines dictate that children should share in the child support obligor\u2019s good fortune.\u201d).\nIn view of the foregoing principles, the value and nature of defendant\u2019s interest in any partnerships or corporations and the terms of any trust of which he might be the beneficiary, as well as the amount of income, including non-taxable, deferred or declined income, flowing therefrom, would all bear relevance to the instant proceeding. Any judgment rendered against defendant setting an amount of child support would be dependent in significant part upon the amount of his income and the nature of his estate \u2014 whether exclusively owned or controlled by defendant, or jointly with others.\nThe terms of business associations and trusts in which defendant might possess an interest also would appear to be discoverable, if only under the rubric of being \u201creasonably calculated to lead to the discovery of admissible evidence\u201d regarding defendant\u2019s financial circumstance and resultant ability to pay child support. See N.C.R. Civ. P. 26(b)(1). While testimony was introduced that, defendant\u2019s father exercised sole control over the trust, this was not necessarily conclusive and, without access to the trust instrument, plaintiff lacked any means to challenge the testimony through cross-examination or otherwise. Moreover, current control by defendant\u2019s father of the trust would not necessarily preclude relevancy of the terms thereof to the instant case. Examination of the trust instrument, for example, could reveal any present or future authority of defendant to liquidate trust assets, as well as indicate the point at which he might be entitled to access the principal.\nWe note that in response to plaintiff\u2019s motion to compel discovery, defendant filed a stipulation that he would not raise inability to pay as a defense, implying such stipulation should operate to relieve him from full disclosure of his financial condition. However, under the Guidelines, a full examination of all financial resources is necessary for the trial court to determine the presumptive award. Indeed, when the parties\u2019 annual combined income exceeds the upper limit covered by the Guidelines (presently $150,000), in order\nto 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\nTaylor, 118 N.C. App. at 362-63, 455 S.E.2d at 447 (citation omitted).\nBased on the foregoing, we reverse the trial court\u2019s 11 July 1994 order on plaintiff\u2019s motion to compel and remand for reconsideration and entry of a new order in light of our decision herein. See Powers v. Parisher, 104 N.C. App. 400, 411, 409 S.E.2d 725, 731 (1991), appeal dismissed and disc. review denied, 331 N.C. 286, 417 S.E.2d 254 (1992). Should the court deem it appropriate in its discretion, it may direct the requested information to be produced under seal for in camera determination by the court of relevancy or potential for leading to discovery of admissible evidence. Any material which the court determines not discoverable might then be preserved under seal for review on appeal should further consideration by this Court become necessary.\nIn that the trial court may alter its ruling on plaintiffs motion to compel in light of our opinion herein, which modified order might in turn affect the court\u2019s subsequent decisions on deviation from the guidelines and calculation of the amount of child support to be paid by defendant, we also vacate that portion of the court\u2019s October 1994 judgment setting an amount of child support and declining to deviate from the Guidelines. We observe that the parties\u2019 consent order for temporary child support \u201cpending further orders of [the trial] court\u201d would thereby be reinstated.\nWhile additional evidence beyond that previously considered may not ultimately be produced, because of the criticality of income amounts to a child support award, full opportunity for discovery of defendant\u2019s estate should be allowed in the interest of the child\u2019s welfare. However, in that the amount of child support remains to be resolved pending resolution of plaintiff\u2019s motion to compel, we decline to address plaintiff\u2019s further contention that the trial court erred by failing to grant an upward deviation from the Guidelines.\nFinally, we vacate the trial court\u2019s award of counsel fees subject to subsequent entry of an award upon proper findings at the conclusion of further proceedings. As the errors assigned by plaintiff to the court\u2019s setting of the award at but one-half the fees she incurred will likely not recur on remand, we likewise do not discuss those contentions.\nReversed and remanded.\nChief Judge ARNOLD and Judge McGEE concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "John K. Bums for plaintiff-appellant.", "Stevens, McGhee, Morgan, Lennon & O\u2019Quinn, by Robert A. 0\u2019Quinn, for defendant-appellee." ], "corrections": "", "head_matter": "RITA L. SHAW, Appellant v. BRUCE B. CAMERON III, Appellee\nNo. COA95-341\n(Filed 4 March 1997)\nDiscovery and Depositions \u00a7 8 (NCI4th); Divorce and Separation \u00a7 400 (NCI4th)\u2014 child support \u2014 discovery requests \u2014 improper limitation by court\nThe trial court in a child support action erred by ordering that defendant father respond to discovery requests only as to property owned individually by the defendant and subject to his exclusive control and by limiting defendant\u2019s responses regarding his inheritance or trust interests to those items subject to his ownership and control since the value and nature of defendant\u2019s interest in any partnerships or corporations and the terms of any trust of which he may be the beneficiary, as well as the amount of income, including nontaxable, deferred or declined income flowing therefrom, would be relevant in this proceeding; any judgment rendered against defendant setting an amount of child support would be dependent in significant part upon the amount of his income and the nature of his estate whether owned or controlled exclusively by defendant or jointly with others; and the terms of business associations or trusts in which defendant possesses an interest might lead to admissible evidence regarding defendant\u2019s financial circumstances and resultant ability to pay child support even if his father currently controls the trust.\nAm Jur 2d, Depositions and Discovery \u00a7 40; Divorce and Separation \u00a7 1041.\nSpouse\u2019s right to discovery of closely held corporation records during divorce proceeding. 38 ALR4th 145.\nProtective orders limiting dissemination of financial information obtained by deposition or discovery in state civil actions. 43 ALR4th 121.\nAppeal by plaintiff from order entered 11 July 1994 and judgment entered 24 October 1994 by Judge J.H. Corpening, II, in New Hanover County District Court. Heard in the Court of Appeals 13 May 1996.\nJohn K. Bums for plaintiff-appellant.\nStevens, McGhee, Morgan, Lennon & O\u2019Quinn, by Robert A. 0\u2019Quinn, for defendant-appellee." }, "file_name": "0522-01", "first_page_order": 560, "last_page_order": 567 }