{
  "id": 9380241,
  "name": "PATRICIA R. HODGES, Plaintiff v. ARMSTEAD HODGES, Defendant",
  "name_abbreviation": "Hodges v. Hodges",
  "decision_date": "2001-12-04",
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  "casebody": {
    "judges": [
      "Judges MCCULLOUGH and CAMPBELL concur."
    ],
    "parties": [
      "PATRICIA R. HODGES, Plaintiff v. ARMSTEAD HODGES, Defendant"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nArmstead Hodges (Defendant) appeals an order filed 2 June 2000 (the order) ordering Defendant pay $434.00 per month to Patricia R. Hodges (Plaintiff) for support of Plaintiff and Defendant\u2019s minor child, Casey Alexis Hodges (Casey). The order also ordered Defendant pay arrears in the amount of $1,379.00 and pay one-half of Plaintiff\u2019s uncovered medical expenses incurred during Plaintiff\u2019s pregnancy and Casey\u2019s birth.\nPlaintiff and Defendant were married on 19 July 1995, and Casey was born on 8 October 1999. On 6 December 1999, Plaintiff filed a complaint against Defendant requesting: sole custody and control of Casey; Defendant be ordered to pay child support to Plaintiff in accordance with the North Carolina Child Support Guidelines (the Guidelines); and Defendant be ordered to reimburse Plaintiff for \u201chis proportionate share of her expenses for prenatal care, the birth of [Casey], and the care of [Casey] between [8 October 1999] and the filing of [Plaintiff\u2019s] complaint.\u201d On 5 May 2000, Plaintiff was granted custody of Casey through a consent order entered into by the parties, and a trial proceeded on the remaining issues.\nAt trial, Defendant testified he had been employed with the North Carolina Department of Corrections (the DOC) for eleven years. Because Defendant was working first shift, he did not have the potential for overtime. In 1999, Defendant had also worked part-time for Danville Distributing Company and earned approximately $367.00 (an average of $30.58 monthly); however, because Defendant was working first shift at the DOC, he would be unable to work for Danville Distributing Company in 2000. Defendant did not expect to earn income in 2000 from his former part-time employment as a \u201cwrecker driver.\u201d\nOn cross-examination, Defendant testified he did not provide either daycare or insurance for Casey. Defendant also is the father of two other children from previous relationships (the other children), and he pays child support in the amount of $307.50 for one child and $325.00 for the other child pursuant to voluntary support agreements. In addition, Defendant was paying a total of $175.00 monthly in health insurance premiums for the other children pursuant to voluntary support agreements. Defendant testified his monthly gross income from the DOC was $2,277.33. In addition to Defendant\u2019s employment with the DOC, Defendant was the fire chief for the Providence Fire and Rescue Department. Defendant earned no income from his position as fire chief, which required him to \u201cput in about four to five hours a day at the fire department.\u201d\nPlaintiff testified she was employed with the DOC and earned approximately $2,195.75 in monthly gross income. From September 1999 through the end of December 1999, Plaintiff earned no income as she was out of work due to Casey\u2019s premature birth and other health complications. During the period Plaintiff was out of work, she received $5,000.00 from Defendant shortly after Casey\u2019s birth. The $5,000.00 was pursuant to an agreement the parties had made prior to Casey\u2019s birth whereby Defendant would give Plaintiff the money to \u201ckeep [her] afloat.\u201d Plaintiff testified Defendant gave her the money because \u201che felt a little guilty [and] he was trying to help [her]\u201d as Defendant had engaged in a relationship with another woman during the course of the marriage of Plaintiff and Defendant and had conceived a child with the other woman.\nPrior to and shortly after Casey\u2019s birth, Plaintiff had a lapse in insurance. Consequently, Plaintiff\u2019s \u201cout-of-pocket medical expenses\u201d total $3,300.00. Plaintiff pays approximately $75.00 per week in daycare expenses for Casey, and she provides health insurance for Casey totaling $117.16 a month. Plaintiff, however, received information from the DOC that as of 1 July 2000, the insurance would cost $149.00. On cross-examination, Plaintiff denied Defendant paid her $300.00 in February 2000 for support of Casey.\nDuring the course of the trial, Defendant testified again and stated his \u201ctake-home pay\u201d would be approximately $600.00 per month after deducting the child support payments and a monthly automobile payment of $225.00. Defendant testified Plaintiff started asking him about the $5,000.00 after Casey was born; and his purpose in giving Plaintiff the $5,000.00 was because \u201c[s]he needed the money for expenses when [Casey] was born, and [Plaintiff] had expenses that had to be paid. [Plaintiff] owed the hospital bill and doctor\u2019s bill and her other bills.\u201d Defendant testified he gave Plaintiff, in support of Casey: $350.00 in December 1999; $250.00 in January 2000; $300.00 in February 2000; $325.00-$350.00 in March 2000; and $350.00 in April 2000. Plaintiff, when recalled to testify, stated the $5,000.00 was to assist her in keeping her job and paying her bills, and she believed the $5,000.00 was for her living expenses.\nThe trial court filed its order on 2 June 2000 and found as fact, in pertinent part, that: Defendant \u201chas monthly gross income from his employment with the [DOC] and from secondary income in a monthly amount of $2,308.00\u201d; Plaintiff has monthly gross income in the amount of $2,196.00; Plaintiff provides health insurance for Casey in the amount of $150.00 and \u201cchild care for [Casey] at an actual cost of $325.00 per month, 75% of which is $244.00 per month\u201d; \u201cDefendant has two additional children with two different mothers for whom he is paying child support in a total amount of $633.00 per month\u201d; Defendant\u2019s $5,000.00 payment to Plaintiff \u201ccompensated her for the period of time that she was out of work due to her pregnancy\u201d; \u201cthe $5,000.00 payment constituted support for . . . Plaintiff during a difficult pregnancy\u201d and did not constitute payment for support of Casey; under the Guidelines, Defendant should pay $434.00 monthly in support of Casey; \u201c[s]ince the filing of the complaint in this matter on December 6, 1999,... Defendant had paid . .. $1,225.00 [in support of Casey]. The total amount owed would have been $2,604.00 as of May 6, 2000[]\u201d; considering the total amount of child support owed for Casey, Defendant is in arrears in the amount of $1,379.00; and each party should be responsible for one-half of the $3,300.00 in medical expenses not covered by insurance and incurred by Plaintiff and Casey.\nThe trial court then concluded the matter was properly before it \u201cfor a determination of child support and payment of medical expenses\u201d and Defendant was required to pay Plaintiff the sum of $434.00 per month in child support. Consistent with its findings of fact and conclusions of law, the trial court ordered: Defendant pay to Plaintiff $434.00 per month as child support on or before the first day of each month; Defendant pay his total arrears to Plaintiff before 1 June 2000; Defendant and Plaintiff \u201cshall be responsible for one[-]half of all reasonable and necessary medical, dental, orthodontic, opto-metric, and other health care expenses incurred on behalf of [Casey] and not covered by insurance\u201d; and Defendant should pay one-half of the approximately $3,300.00 in uncovered medical expenses incurred during the pregnancy and birth of Casey\nThe issues are whether: (I) there is competent evidence to support the trial court\u2019s finding of fact that the $5,000.00 payment constituted support for Plaintiff and not support for the child or reimbursement for medical expenses; and (II) the trial court properly computed Defendant\u2019s child support obligation for Casey, taking into account Defendant\u2019s child support payments, including payments for medical insurance, for the other children.\n\u201cChild support set consistent with the Guidelines is conclusively presumed to be in such amount as to meet the reasonable needs of the child and commensurate with the relative abilities of each parent to pay support.\u201d Buncombe County ex rel. Blair v. Jackson, 138 N.C. App. 284, 287, 531 S.E.2d 240, 243 (2000); see N.C.G.S. \u00a7 50-13.4(cl) (1999). Thus, absent a timely and proper request by the parties, the trial court is not required to either deviate from the Guidelines or \u201ctake any evidence, make any findings of fact, or enter any conclusions of law \u2018relating to the reasonable needs of the child for support and the relative ability of each parent to [pay or] provide support\u2019 \u201d in setting the amount of support. Browne v. Browne, 101 N.C. App. 617, 624, 400 S.E.2d 736, 740 (1991) (citation omitted). This Court\u2019s review of a trial court\u2019s child support order is limited to whether there is competent evidence to support the findings of fact, despite the fact that different inferences may be drawn from the evidence. Cauble v. Cauble, 133 N.C. App. 390, 395-96, 515 S.E.2d 708, 712 (1999).\nI\nDefendant first argues that because there were no allegations in Plaintiffs complaint she was either seeking or entitled to postseparation support or alimony, the trial court erred in finding the $5,000.00 payment \u201cwas for spousal support and not for [support of Casey] or for payment toward medical expenses incurred by... Plaintiff for the birth of [Casey].\u201d We disagree.\nIn this case, Plaintiff was neither seeking nor did the trial court award either postseparation support, within the meaning of N.C. Gen. Stat. \u00a7 50-16.2A, or alimony, within the meaning of N.C. Gen. Stat. \u00a7 50-16.3A. Although there was conflicting evidence surrounding the circumstances of the $5,000.00 payment, there was evidence the parties contemplated the payment prior to Casey\u2019s birth and, thus, prior to Plaintiff incurring medical bills due to Casey\u2019s birth. Plaintiff testified Defendant gave her the $5,000.00 to \u201ckeep [her] afloat\u201d and to provide her with money for living expenses. Accordingly, the trial court did not err in failing to find the $5,000.00 was payment for Defendant\u2019s one-half share of the medical expenses and/or support for Casey, as there was competent evidence to support the trial court\u2019s finding the $5,000.00 payment was to provide compensation to \u201cPlaintiff during a difficult pregnancy.\u201d See id.\nII\nDefendant next argues the trial court erred in finding and concluding Defendant\u2019s amount of monthly child support for Casey to be $434.00.\nA\nDefendant specifically contends the trial court erroneously included in his gross income, his 1999 earnings from Danville Distributing Company ($30.58 monthly). We agree.\nChild support obligations should be \u201cdetermined by a party\u2019s actual income at the time the order is made\" and a \u201cparty\u2019s earning capacity may be used to calculate the award [only] if he deliberately depressed his income or deliberately acted in disregard of his obligation to provide support.\u201d Sharpe v. Nobles, 127 N.C. App. 705, 708, 493 S.E.2d 288, 290 (1997) (emphasis added). In this case, the only income Defendant had at the time the order was entered was from the DOC, as he was not earning any income from Danville Distributing Company. To the extent the trial court believed Defendant had the capacity to earn an additional $30.58 in June 2000 (the date the order was entered), this earning capacity could be considered only upon a finding Defendant was deliberately depressing his income and there is no such finding in this record. Accordingly, the trial court erred in including this additional income in Defendant\u2019s gross income.\nB\nDefendant next argues the trial court erred in failing to consider his payment of premiums to maintain medical insurance on the other children when determining his monthly adjusted gross income. We agree.\nChild support payments made pursuant to \u201cany pre-existing court order(s) or separation agreement(s) should be deducted from the party\u2019s gross income.\u201d N.C. Child Support Guidelines, 2001 Ann. R. (N.C.) 33, 35 [hereinafter Support Guidelines]. Thus, any payments for medical insurance premiums made pursuant to either an order or a private agreement constitute child support within the meaning of the Guidelines and should be deducted from the party\u2019s gross income to determine his monthly adjusted gross income. See id.\nIn this case, the findings entered by the trial court do not reveal it considered payments for medical insurance premiums for the other children. Accordingly, the trial court erred in failing to include these payments when determining Defendant\u2019s monthly adjusted gross income.\nC\nDefendant finally contends the trial court erred in failing to ensure any order entered for child support left him with \u201csufficient income to maintain a minimum standard of living.\u201d We disagree.\nProper application of the Guidelines presumptively \u201censures that obligors [are left with] sufficient income to maintain a minimum standard of living based on the 1997 federal poverty level for one person.\u201d Id. at 34. If an obligor contends an order entered consistent with the Guidelines does not leave him with \u201csufficient income to maintain a minimum standard of living,\u201d he is obligated to timely request a deviation from the Guidelines. See Buncombe, 138 N.C. App. at 289-90, 531 S.E.2d at 244 (obligor had requested a deviation); see also Browne, 101 N.C. App. at 624, 400 S.E.2d at 740. The trial court then is required to follow the four-step procedure outlined in Buncombe. Whether the presumptive child support amount (as determined pursuant to the Guidelines) places the obligor below the federal poverty level is a matter properly considered in the context of his \u201cabilit[y] ... to provide support.\u201d See Buncombe, 138 N.C. App. at 287, 531 S.E.2d at 243 (step 2).\nIn this case, Defendant did not request a deviation from the Guidelines and thus cannot now be heard to complain he is left without, sufficient income to maintain a standard of living at or above the poverty level. Accordingly, the trial court is not required to deviate from the Guidelines to ensure Defendant was able to maintain a minimum standard of living.\nOn remand in this case, the trial court is to re-compute Defendant\u2019s monthly gross income consistent with section 11(A) of this opinion and re-compute Defendant\u2019s monthly adjusted gross income consistent with section 11(B) of this opinion to redetermine Defendant\u2019s child support obligation for Casey.\nAffirmed in part, reversed in part, and remanded.\nJudges MCCULLOUGH and CAMPBELL concur.\n. We note the record to this Court fails to include the Guidelines worksheet used by the trial court in determining the child support. Thus, we are unable to determine with certainty the amount placed in the Defendant\u2019s gross income column. The better practice is for an appellant to include the Guidelines worksheet in the record on appeal.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Ramsey, Ramsey & Long, by Julie A. Ramsey, for plaintiff-appellee.",
      "George B. Daniel, P.A., by George B. Daniel and John M. Thomas, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "PATRICIA R. HODGES, Plaintiff v. ARMSTEAD HODGES, Defendant\nNo. COA00-1293\n(Filed 4 December 2001)\n1. Child Support, Custody, and Visitation\u2014 support \u2014 payment to mother during pregnancy\nThe trial court did not err in a child support action by finding that a $5,000 payment was to provide compensation to plaintiff during a difficult pregnancy rather than defendant\u2019s half of medical expenses incurred in the birth of the child and child support.\n2. Child Support, Custody, and Visitation\u2014 support \u2014 calculation of father\u2019s income \u2014 prior year\u2019s part-time earnings\nThe trial court erred in a 2000 child support action by including defendant\u2019s part-time earnings in 1999 where defendant was not earning any part-time income at the time of the hearing. Child support obligations should be determined by a party\u2019s actual income at the time the order is made; a party\u2019s earning capacity may be used to calculate the award only if defendant deliberately depressed his income or deliberately acted in disregard of his obligation to provide support.\n3. Child Support, Custody, and Visitation\u2014 support \u2014 insurance for father\u2019s other children\nThe trial court erred in a child support action by failing to include defendant\u2019s payments for insurance for his other children when determining his monthly adjusted gross income. Any payments for medical insurance premiums made pursuant to either an order or a private agreement constitute child support within the Child Support Guidelines and should be deducted from the party\u2019s gross income to determine his monthly adjusted gross income.\n4. Child Support, Custody, and Visitation\u2014 support \u2014 father\u2019s standard of living \u2014 no request for deviation from Guidelines\nThe trial court was not required to deviate from the Child Support Guidelines to ensure that defendant was able to maintain a minimum standard of living where defendant did not request a deviation from the Guidelines.\nAppeal by defendant from order filed 2 June 2000 by Judge Pattie S.Harrison in Person County District Court. Heard in the Court of Appeals 6 November 2001.\nRamsey, Ramsey & Long, by Julie A. Ramsey, for plaintiff-appellee.\nGeorge B. Daniel, P.A., by George B. Daniel and John M. Thomas, for defendant-appellant."
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  "file_name": "0478-01",
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  "last_page_order": 515
}
