{ "id": 11145414, "name": "DONNA ELLEN SAIN, Plaintiff v. JAMES PHILLIP SAIN, Defendant", "name_abbreviation": "Sain v. Sain", "decision_date": "1999-08-03", "docket_number": "No. COA98-1024", "first_page": "460", "last_page": "467", "citations": [ { "type": "official", "cite": "134 N.C. App. 460" } ], "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": "473 S.E.2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "holding third-party contributions may be used to support deviation from the Guidelines" } ], "opinion_index": 0 }, { "cite": "344 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867538 ], "year": 1996, "pin_cites": [ { "parenthetical": "holding third-party contributions may be used to support deviation from the Guidelines" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0166-01" ] }, { "cite": "515 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "opinion_index": 0 }, { "cite": "133 N.C. App. 285", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11218982 ], "year": 1999, "pin_cites": [ { "page": "290-91" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0285-01" ] }, { "cite": "507 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "593" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 642", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11203733 ], "year": 1998, "pin_cites": [ { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0642-01" ] }, { "cite": "252 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "533" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549518 ], "year": 1979, "pin_cites": [ { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0221-01" ] }, { "cite": "280 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 180", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571975, 8572010, 8571948, 8572045, 8571922 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0180-03", "/nc/303/0180-04", "/nc/303/0180-02", "/nc/303/0180-05", "/nc/303/0180-01" ] }, { "cite": "275 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "275" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2643360 ], "year": 1981, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0103-01" ] }, { "cite": "513 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "132 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239625 ], "year": 1999, "pin_cites": [ { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0646-01" ] }, { "cite": "285 S.E.2d 831", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568167, 8568205, 8568301, 8568272, 8568240 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0390-01", "/nc/304/0390-02", "/nc/304/0390-05", "/nc/304/0390-04", "/nc/304/0390-03" ] }, { "cite": "278 S.E.2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "551" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170120 ], "year": 1981, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0203-01" ] }, { "cite": "501 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "902" }, { "page": "899" } ], "opinion_index": 0 }, { "cite": "348 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659910 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "624" }, { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0616-01" ] } ], "analysis": { "cardinality": 718, "char_count": 18150, "ocr_confidence": 0.759, "pagerank": { "raw": 3.5447625962562676e-07, "percentile": 0.8849780431214329 }, "sha256": "1cef5c7423fc63359566126751ab2d720b610203b9d8c301f0dc3e840219bfab", "simhash": "1:89eb5322f2ed8ff4", "word_count": 2799 }, "last_updated": "2023-07-14T15:28:46.713894+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and MARTIN concur." ], "parties": [ "DONNA ELLEN SAIN, Plaintiff v. JAMES PHILLIP SAIN, Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nDonna Ellen Sain (Plaintiff) appeals from the trial court\u2019s child custody and support order.\nOn 18 June 1992, the trial court entered an order awarding Plaintiff and her ex-husband James Phillip Sain (Defendant) joint custody of their minor child (Melissa). The order set Defendant\u2019s child support obligation, provided that Plaintiff would have primary custody of Melissa, and provided that Defendant would have physical custody of Melissa every other weekend during the school year and at additional times during vacations and holidays. At that time, Defendant\u2019s gross monthly income was $1,720.00, and Plaintiff\u2019s gross monthly income was $726.00.\nOn 12 June 1997, Plaintiff filed a motion in the cause seeking modification of the custody and support order. In her motion, Plaintiff sought sole custody of Melissa, limitation of Defendant\u2019s visitation privileges, and \u201cadequate\u201d child support. Defendant filed a motion in the cause on 20 August 1997 seeking a reduction in his child support obligation because he was no longer able to work due to a disability, his income had decreased to disability payments of $800.00 per month and \u201c$412.00 per month on behalf of the minor child as income,\u201d and Plaintiff\u2019s income had increased.\nIn February 1998, the trial court heard testimony from both parties, ten-year-old Melissa, several counselors, Carol Blevins (Blevins) and Sandra Robbins (Robbins) of the Department of Social Services (DSS), and various other individuals. Melissa\u2019s school counselor, who never noticed any unusual bruises on Melissa, testified that Melissa would \u201csay that her mother told her she needed to come and see me\u201d concerning allegations of abuse and neglect by Defendant. Blevins testified that she had investigated the allegations on behalf of DSS and that Melissa \u201ccould not give me any clear details\u201d to support the allegations. Melissa was \u201cvery inconsistent\u201d in her statements and would not maintain \u201cgood eye contact\u201d during the interviews. Blevins further testified that \u201c[n]o injuries ha[d] ever been observed by DSS.\u201d Robbins had substantiated one report of neglect for DSS. Robbins testified she \u201ccouldn\u2019t get a clear understanding from either [Defendant or Melissa]\u201d as to the circumstances supporting the allegation, and that she found Melissa to be very bright and manipulative. Robbins stated that Melissa had apparently \u201chit [Defendant] with a belt\u201d during an argument, and Defendant acknowledged to Robbins that, in response to this behavior, he had \u201cgrabbed [Melissa] and held her.\u201d Robbins testified that although she did not consider this to be appropriate discipline, \u201csome psychologists . . . will actually give that as an option to a parent.\u201d\nBased on the evidence presented, the trial court found that Melissa is \u201cstrong-willed,\u201d has become \u201cthe tail wagging the dog,\u201d and that some of her testimony was \u201chard to believe.\u201d The trial court made several findings to the effect that Plaintiff had repeatedly attempted to manipulate Melissa in order to remove Defendant from their lives. In addition, the trial court found that Plaintiff had instigated, through her daughter, seven separate DSS investigations of Defendant for abuse and neglect. The trial court found that Melissa had given DSS \u201cinconsistent statements and answers ... as to what had happened and how it happened . . . [and] fluctuated in her answers, and . . . had no good eye contact [with the DSS investigator].\u201d DSS closed all but one of these investigations without substantiating either abuse or neglect. As to the one investigation substantiating neglect based on Robbins\u2019 report, the trial court found the neglect to be a \u201ctechnical\u201d violation, that it may have been an \u201caccidental\u201d occurrence, and that the DSS recommendation was only for counseling to \u201ctry[] to prevent future reports [and to] get[] everyone to get along.\u201d The parties and Melissa underwent counseling pursuant to the DSS recommendation.\nBased on these findings, the trial court concluded \u201c[t]here has not been a material and substantial change of circumstance justifying a modification of the joint custody arrangement in this matter, other than as stated hereinbelow.\u201d (emphasis added). Nothing stated \u201chere-inbelow\u201d in the trial court\u2019s conclusions of law relates to custody modification. The trial court then ordered the following modification:\nDefendant will consult with [Plaintiff], but the final decisions in these particular areas involving the minor child rests with [Defendant]:\n(A) Where the child is to go to school;\n(B) Extracurricular activities that the child will participate in; and\n(C) Any out of state travel in which the minor child will participate.\nConsultation shall take into account [Plaintiff\u2019s] interest, [Melissa\u2019s] interest and the best interests of [Melissa],\nAs to each party\u2019s motions for a modification in Defendant\u2019s child support obligations, the trial court found:\n(12) [Plaintiff] had $13,000.00 income for 10 months, then worked at a conference center making $4,000.00 during the summer of 1997. The child care is about $50.00 per week during the summertime.. . .\n(14) [Defendant] is now totally disabled, with disability income of $799.00 per month. As a result of his total disability, he received checks for $412.00 per month on behalf of [Melissa]. He was declared permanently disabled in February, 1997. He ceased full-time employment in 1994, when the company was sold. He has not worked part-time, and had no income from August, 1994, until February of 1997.\n... In or about November of 1995, [Plaintiff] began getting the Social Security Administration to re-route the checks for Melissa on the part of [Defendant\u2019s] social security disability of $412.00 per month directly to her. Worksheet B should be the appropriate calculation of child support in this matter. However, calculations being made on Worksheet B results [sic] in what was supposed to be joint custody. The income of [Defendant] each month at this time does put him in the poverty level. The parties have income of $17,000.00 annually for [Plaintiff], and $9,600.00 annually for [Defendant], The Court determines that the social security checks which [Plaintiff] had re-routed from the Social Security Administration to her, being paid on behalf of the minor child of now [$421.00] per month, should be re-routed back to [Defendant] to help him make the child support payments.\nThere is no Worksheet B attached to the trial court\u2019s order or included in the record on appeal.\nBased on these findings, the trial court concluded \u201c[t]here has been a material and substantial change of circumstance justifying a modification of the child support ordered in this matter.\u201d Accordingly, the trial court directed that Defendant should receive the $421.00 disability check (paid \u201con behalf of\u2019 Melissa), and reduced Defendant\u2019s child support obligation to $95.00 per month.\nThe issues are whether: (I) there was a substantial change in circumstances since entry of the prior custody order justifying its modification; (II) the trial court\u2019s findings justify deviation from the North Carolina Child Support Guidelines (Guidelines); and (III) disability checks received for the benefit of a child may warrant deviation from the Guidelines.\nI\nPlaintiff contends the evidence of neglect and abuse required the trial court to conclude changed circumstances existed affecting Melissa\u2019s welfare. We disagree.\nThe trial court \u201cis vested with broad discretion in cases involving child custody.\u201d Pulliam v. Smith, 348 N.C. 616, 624, 501 S.E.2d 898, 902 (1998). The trial court \u201chas the opportunity to see the parties in person and to hear the witnesses,\u201d Falls v. Falls, 52 N.C. App. 203, 209, 278 S.E.2d 546, 551, disc. review denied, 304 N.C. 390, 285 S.E.2d 831 (1981), and its findings \u201cturn in large part on the credibility of the witnesses,\u201d Brandon v. Brandon, 132 N.C. App. 646, 652, 513 S.E.2d 589,-(1999). Accordingly, where the trial court\u2019s findings of fact are supported by competent evidence, they are binding on appeal. Harris v. Harris, 51 N.C. App. 103, 105, 275 S.E.2d 273, 275, disc. review denied, 303 N.C. 180, 280 S.E.2d 452 (1981). The trial court\u2019s findings must, in turn, support its conclusions of law. Blanton v. Blanton, 40 N.C. App. 221, 225, 252 S.E.2d 530, 533 (1979).\nIn this case, the trial court heard both parties and Melissa testify as to the allegations of abuse and neglect. In addition, the trial court heard testimony that Plaintiff urged Melissa to tell her school counselor that she was abused and neglected by Defendant, and that DSS got \u201cinconsistent statements\u201d and poor eye contact from Melissa when interviewing her concerning these allegations. As to the one substantiated allegation of neglect, Robbins testified that she did not get a \u201cclear understanding\u201d of what had occurred, and that, although she did not personally believe grabbing and holding a child was an appropriate disciplinary measure, some psychologists did. This competent evidence supports the trial court\u2019s findings that Plaintiff was manipulating Melissa; that six of the seven allegations of abuse and neglect were unsubstantiated following DSS investigations; and that the one instance of neglect which had been substantiated was \u201ctechnical\u201d in nature and resulted only in a recommendation for counseling (which the parties and Melissa underwent). These findings, in turn, support the trial court\u2019s conclusion that no change in circumstances affecting Melissa\u2019s welfare had been shown. We therefore affirm the trial court\u2019s conclusion that no changed circumstances affecting the welfare of the child exist.\nPlaintiff alternatively contends the trial court erroneously modified the prior custody order without concluding changed circumstances existed. We agree. The law is clear that the trial court may not modify an existing custody order unless changed circumstances affecting the welfare of the child are shown. Pulliam, 348 N.C. at 619, 501 S.E.2d at 899. Having concluded no changed circumstances justifying modification of the prior custody order had been shown, the trial court was without authority to modify the terms of the prior custody order. Requiring Plaintiff to give Defendant final decision-making authority as to Melissa\u2019s schooling, extracurricular activities, and travel constituted modification of the prior custody order; accordingly, we reverse the portion of the trial court\u2019s order giving Defendant final decision-making authority in these areas. The terms of the prior custody order therefore remain in full force and effect.\nII\nPlaintiff next contends the trial court erred in deviating from the Guidelines in modifying child support without making sufficient findings of fact. We agree.\nThe child support amounts provided in the Guidelines are presumptive. N.C.G.S. \u00a7 50-13.4(cl) (Supp. 1998). Deviation from the Guidelines upon a party\u2019s request is permissible, however, under proper circumstances, and will not be disturbed on appeal absent a clear abuse of discretion. State ex rel. Fisher v. Lukinoff, 131 N.C. App. 642, 644, 507 S.E.2d 591, 593 (1998). Deviation is essentially a four-step process. See N.C.G.S. \u00a7 50-13.4(c); Child Support Guidelines, 1999 Ann. R. N.C. 31-43. First, the trial court must determine the presumptive child support amount under the Guidelines. N.C.G.S. \u00a7 50-13.4(c). Second, the trial court must hear evidence as to \u201cthe reasonable needs of the child for support and the relative ability of each parent to provide support.\u201d Id. Third, the trial court must determine, by the greater weight of this evidence, whether the presumptive support amount \u201cwould not meet or would exceed-the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate.\u201d Id.-, Child Support Guidelines, 1999 Ann. R. N.C. 32 (\u201cThe Court may deviate from the Guidelines in cases where application would be inequitable to one of the parties or to the child(ren).\u201d); Brooker v. Brooker, 133 N.C. App. 285, 290-91, 515 S.E.2d 234,-(1999). Fourth, following its determination that deviation is warranted, in order to allow effective appellate review, the trial court must enter written findings of fact showing the presumptive child support amount under the Guidelines; the reasonable needs of the child; the relative ability of each party to provide support; and that application of the Guidelines would exceed or would not meet the reasonable needs of the child or would be \u201cotherwise unjust or inappropriate.\u201d N.C.G.S. \u00a7 50-13.4(c); Child Support Guidelines, 1999 Ann. R. N.C. 32.\nIn this case, nowhere in its order does the trial court determine what the child support amount would be under the Guidelines. The trial court also failed to make findings as to Melissa\u2019s reasonable needs. Although the trial court appears to have determined deviation from the Guidelines is appropriate due to Defendant\u2019s disability, the trial court failed to make any finding that the greater weight of the evidence establishes that application of the presumptive Guidelines amount would be \u201cunjust or inappropriate\u201d on this ground. Accordingly, we must remand for entry of a new child support order. If the trial court determines that deviation from the Guidelines is warranted, it must make appropriate findings of fact therein.\nIll\nFinally, Plaintiff contends the trial court misapplied the $421.00 disability check Defendant receives on behalf of Melissa. Again, we agree.\nThe Guidelines provide:\nPayments received for the benefit of the child(ren) as a result of the disability of the obligor are not considered in determining the amount of the basic child support obligation.\nChild Support Guidelines, 1999 Ann. R. N.C. 33. The Guidelines therefore prohibit the trial court from considering disability payments received on behalf of a child as income in determining the presumptive support amount. The Guidelines further provide:\n[T]he Court should compare the obligor\u2019s support obligation under the [Guidelines with the benefits received by the child(ren) due to the obligor\u2019s disability, and determine whether an award of child support in addition to the child(ren)[\u2019s] disability-related benefits is warranted.\nId. The Guidelines contemplate that disability payments received for the benefit of the child are \u201creceived by\u201d the child. Accordingly, the parent with primary custody is entitled to the disability payments received on behalf of the child. The receipt of these funds by the custodial parent may, however, support a deviation from the Guidelines\u2019 presumptive support amount to be paid by the non-custodial parent. Accordingly, the trial court, after making proper findings to support deviation, may reduce the obligor\u2019s child support obligation on the ground that the child is receiving funds as a result of the obligor\u2019s disability. Cf. Guilford County ex rel. Easter v. Easter, 344 N.C. 166, 473 S.E.2d 6 (1996) (holding third-party contributions may be used to support deviation from the Guidelines).\nIn this case, the trial court properly refused to consider the $421.00 disability check Defendant receives on Melissa\u2019s behalf as Defendant\u2019s income in figuring his support obligation. The trial court erred, however, in allowing Defendant to receive the $421.00 disability check for his own use. This money is earmarked for Melissa\u2019s benefit, and, on remand, the trial court should direct payment of the $421.00 disability check to Plaintiff, the custodial parent. In light of Plaintiff\u2019s receipt of this check, the trial court may determine deviation from the Guidelines is warranted and, with proper findings, may reduce Defendant\u2019s child support obligation.\nWe have thoroughly reviewed Plaintiffs remaining contentions, and find them unpersuasive.\nAffirmed in part, reversed in part, and remanded.\nJudges WYNN and MARTIN concur.\n. Defendant\u2019s disability check received on behalf of Melissa had increased to $421.00 per month by the date of the February 1998 hearing on the parties\u2019 motions.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Daniel R. Greene, Jr., for plaintiff-appellant.", "H. Kent Crowe, P.A., by H. Kent Crowe, for defendant-appellee." ], "corrections": "", "head_matter": "DONNA ELLEN SAIN, Plaintiff v. JAMES PHILLIP SAIN, Defendant\nNo. COA98-1024\n(Filed 3 August 1999)\n1. Child Support, Custody, and Visitation\u2014 no changed circumstances \u2014 modification improper\nHaving concluded that no changed circumstances justified modification of the prior custody order, the trial court erred in modifying the terms of the custody order by requiring plaintiff-mother to give defendant-father decision-making authority as to their child\u2019s schooling, extracurricular activities, and travel.\n2. Child Support, Custody, and Visitation\u2014 deviation from Guidelines \u2014 sufficient findings of fact necessary\nAlthough the trial court appears to have determined that deviation from the Child Support Guidelines is appropriate due to defendant-father\u2019s disability, the trial court erred by modifying child support without making sufficient findings of fact to determine: the appropriate amount under the Guidelines, the child\u2019s reasonable needs, and that application of the presumptive Guidelines amount would be \u201cunjust or inappropriate.\u201d\n3. Child Support, Custody, and Visitation\u2014 disability check\u2014 not income\nThe trial court properly refused to consider defendant-father\u2019s disability check he received on behalf of his child as his income in figuring his support obligation.\n4. Child Support, Custody, and Visitation\u2014 disability check\u2014 parent with primary custody \u2014 may support deviation from Guidelines\nThe trial court erred in failing to direct payment of defendant-father\u2019s disability check he received on behalf of his child to plaintiff-mother because she is the custodial parent. However, the receipt of these funds by the custodial parent may support a deviation from the Guidelines\u2019 presumptive support amount to be paid by the non-custodial parent on the ground that the child is receiving funds as a result of the obligor\u2019s disability.\nAppeal by plaintiff from order filed 1 April 1998 by Judge Gregory R. Hayes in Catawba County District Court. Heard in the Court of Appeals 8 June 1999.\nDaniel R. Greene, Jr., for plaintiff-appellant.\nH. Kent Crowe, P.A., by H. Kent Crowe, for defendant-appellee." }, "file_name": "0460-01", "first_page_order": 492, "last_page_order": 499 }