{ "id": 8240411, "name": "THE STATE OF NORTH CAROLINA AND FORSYTH COUNTY BY AND THROUGH ITS CHILD SUPPORT ENFORCEMENT UNIT, ET AL., O/B/O CHERYL WILLIAMS, Plaintiff v. MICHAEL WILLIAMS, Defendant", "name_abbreviation": "State ex rel. Williams v. Williams", "decision_date": "2006-10-17", "docket_number": "No. COA06-284", "first_page": "838", "last_page": "843", "citations": [ { "type": "official", "cite": "179 N.C. App. 838" } ], "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": "607 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "682", "parenthetical": "quoting 2005 Ann. R. N.C. 48" }, { "parenthetical": "quoting Black's Law Dictionary 973 (8th ed. 2004)" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 283", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8469281 ], "year": 2005, "pin_cites": [ { "page": "288", "parenthetical": "quoting 2005 Ann. R. N.C. 48" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0283-01" ] }, { "cite": "266 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 810", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553925 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0810-01" ] }, { "cite": "328 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "50", "parenthetical": "citing Beall, 290 N.C. 669, 228 S.E.2d 407; Whitley v. Whitley, 46 N.C. App. 810, 266 S.E.2d 23 (1980)" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523873 ], "year": 1985, "pin_cites": [ { "page": "235", "parenthetical": "citing Beall, 290 N.C. 669, 228 S.E.2d 407; Whitley v. Whitley, 46 N.C. App. 810, 266 S.E.2d 23 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0231-01" ] }, { "cite": "228 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1976, "pin_cites": [ { "page": "410", "parenthetical": "internal quotations and citations omitted" }, { "page": "410" } ], "opinion_index": 0 }, { "cite": "290 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564393 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "673-74", "parenthetical": "internal quotations and citations omitted" }, { "page": "673-74" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0669-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "410 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "330 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509606 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0439-01" ] }, { "cite": "401 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "129" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521936 ], "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0059-01" ] }, { "cite": "158 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572341 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0235-01" ] }, { "cite": "326 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "868" }, { "page": "868" } ], "opinion_index": 0 }, { "cite": "313 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719540 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "69" }, { "page": "69" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0063-01" ] }, { "cite": "242 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "644" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 748", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552187 ], "year": 1978, "pin_cites": [ { "page": "751" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0748-01" ] }, { "cite": "493 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "820", "parenthetical": "citing Moore v. Moore, 35 N.C. App. 748, 751, 242 S.E.2d 642, 644 (1978)" }, { "page": "819" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 180", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11653140 ], "year": 1997, "pin_cites": [ { "page": "182", "parenthetical": "citing Moore v. Moore, 35 N.C. App. 748, 751, 242 S.E.2d 642, 644 (1978)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0180-01" ] } ], "analysis": { "cardinality": 535, "char_count": 10610, "ocr_confidence": 0.75, "pagerank": { "raw": 6.682045355204797e-08, "percentile": 0.4065557490031272 }, "sha256": "4b3424893715810b3d138af6886be9306b832845e0dd533707ebf880f8e67678", "simhash": "1:158ec24a7e039c4e", "word_count": 1707 }, "last_updated": "2023-07-14T22:27:33.869735+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and LEVINSON concur." ], "parties": [ "THE STATE OF NORTH CAROLINA AND FORSYTH COUNTY BY AND THROUGH ITS CHILD SUPPORT ENFORCEMENT UNIT, ET AL., O/B/O CHERYL WILLIAMS, Plaintiff v. MICHAEL WILLIAMS, Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nMichael Williams (\u201cdefendant\u201d) appeals from order entered establishing the amount of his child support obligation. We reverse and remand.\nI.Background\nCheryl Williams (\u201cplaintiff\u2019) and defendant were married on 26 November 1994 and divorced on 1 August 2005. Three children (\u201cthe children\u201d) were bom of the marriage during the years of 1995, 1996, and 1998. Since the date of the parties separation on 10 May 2004, the children have resided primarily with plaintiff.\nOn 29 June 2005, the Forsyth County Child Support Enforcement Agency filed a complaint seeking child support from defendant on behalf of plaintiff. Following a hearing on 8 November 2005, the trial court made findings of fact and conclusions of law and entered an order on 13 December 2005. The trial court calculated plaintiffs monthly gross income to be $893.00, defendant\u2019s monthly gross income to be $3,200.00, and ordered defendant to pay $728.51 per month in child support. Defendant appeals.\nII.Issues\nDefendant asserts the trial court erred by: (1) concluding he has the present means and ability to satisfy the ordered child support payment; (2) calculating his monthly gross income and imputing income to him without supporting findings of fact he is voluntarily underemployed or deliberately suppressing his income in bad faith; and (3) calculating plaintiff\u2019s monthly gross income.\nIII.Standard of Review\n\u201cWhen determining a child support award, a trial judge has a high level of discretion, not only in setting the amount of the award, but also in establishing an appropriate remedy.\u201d Taylor v. Taylor, 128 N.C. App. 180, 182, 493 S.E.2d 819, 820 (1997) (citing Moore v. Moore, 35 N.C. App. 748, 751, 242 S.E.2d 642, 644 (1978)). \u201c \u2018[A]bsent a clear abuse of discretion, a judge\u2019s determination of what is a proper amount of support will not be disturbed on appeal.\u2019 \u201d Id. at 181, 493 S.E.2d at 819 (quoting Plott v. Plott, 313 N.C. 63, 69, 326 S.E.2d 863, 868 (1985)).\nTo support the conclusions of law, the judge also must make specific findings of fact to enable this Court to determine whether the trial court\u2019s conclusions of law are supported by the evidence. Plott, 313 N.C. at 69, 326 S.E.2d at 868. \u201cSuch findings are necessary to an appellate court\u2019s determination of whether the judge\u2019s order is sufficiently supported by competent evidence.\u201d Id. (citing Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967)). To disturb the trial judge\u2019s calculation, the appellant must demonstrate that the ruling was manifestly unsupported by reason. Id.\nIV. Defendant\u2019s Means and Ability\nDefendant argues the trial court erred by concluding he had the present means and ability to make the ordered child support payment. Defendant cites no authority this conclusion was in error. This assignment of error is deemed abandoned. See N.C.R. App. P. 28(b)(6) (2006) (\u201cAssignments of error ... in support of which no . . . authority [is] cited, will be taken as abandoned.\u201d); see Metric Constructors, Inc. v. Industrial Risk Insurers, 102 N.C. App. 59, 64, 401 S.E.2d 126, 129 (\u201cBecause the appellee cites no authority for this argument, it is deemed abandoned.\u201d), aff\u2019d, 330 N.C. 439, 410 S.E.2d 392 (1991).\nV. \u201cImputing\u201d Income to Defendant\nDefendant contends the trial court erred in calculating his monthly gross income and \u201cimputed\u201d income by concluding his monthly gross income to be $3,200.00. Defendant argues that in imputing income the trial court failed to make findings of fact he is voluntarily underemployed or deliberately suppressed his income in bad faith. We agree.\nN.C. Gen. Stat. \u00a7 50-13.4(c) (2005) determines child support payments and provides:\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, accustomed standard of living of the child and the parties, . . . and other facts of the particular case.\nOur Supreme Court has stated:\nIn determining the amount of.. . child support to be awarded the trial judge must follow the requirements of the applicable statutes .... Ordinarily the husband\u2019s ability to pay is determined by his income at the time the award is made if the husband is honestly engaged in a business to which he is properly adapted and is in fact seeking to operate his business profitably. Capacity to earn, however, may be the basis of an award if it is based upon a proper finding that the husband is deliberately depressing his income or indulging himself in excessive spending because of a disregard of his marital obligation to provide reasonable support for his wife and children.\nBeall v. Beall, 290 N.C. 669, 673-74, 228 S.E.2d 407, 410 (1976) (internal quotations and citations omitted) (emphasis supplied).\nHere, the trial court concluded as a matter of law defendant\u2019s monthly gross income to be $3,200.00. This conclusion was based on the trial court\u2019s finding of fact that \u201cthe most believable statement of income for the Defendant is the one submitted under oath to the Bankruptcy Court, i.e., $38,400.00 per year, or $3,200.00 per month.\u201d Defendant\u2019s statement of income in his bankruptcy filing was made in July 2004, eighteen months prior to 13 December 2005 when the trial court\u2019s child support order was entered. The trial court did not calculate defendant\u2019s \u201cability to pay ... at the time the award [was] made.\u201d Id. In calculating defendant\u2019s monthly gross income the trial court used his \u201ccapacity to earn\u201d as the basis for its calculation. Id.\n\u201cOnly when there are findings based on competent evidence to support a conclusion that the supporting spouse or parent is deliberately depressing his or her income or indulging in excessive spending to avoid family responsibilities, can a party\u2019s capacity to earn be considered.\u201d Atwell v. Atwell, 74 N.C. App. 231, 235, 328 S.E.2d 47, 50 (1985) (citing Beall, 290 N.C. 669, 228 S.E.2d 407; Whitley v. Whitley, 46 N.C. App. 810, 266 S.E.2d 23 (1980)).\nThe trial court\u2019s order is devoid of such findings. Without these findings, the trial court erred by considering defendant\u2019s \u201ccapacity to earn,\u201d in computing his gross monthly income as opposed to defendant\u2019s \u201cability to pay ... at the time the award was made.\u201d Beall, 290 N.C. at 673-74, 228 S.E.2d at 410.\nVI. Calculation of Plaintiff\u2019s Income\nDefendant argues the trial court erred in calculating plaintiff\u2019s child support obligation by failing to include plaintiff\u2019s gift income as attributable income. This failure was also error and entitles defendant to reversal.\nAt the hearing to determine child support, plaintiff testified her father gives Darrel Buck (\u201cBuck\u201d), a friend of plaintiff\u2019s, money to pay $1,550.00 per month rent on the home in which plaintiff and the children reside. Plaintiff testified it is her understanding her father will continue to give the rent money to Buck for the remainder of the lease.\nPlaintiff also testified the vehicle, of which she has full possession and use, is paid for by her father in the same manner. Buck purchased the car when it was repossessed from plaintiff. The payments of $340.00 a month are paid by plaintiff\u2019s father. Over $10,000.00 remained owed on the vehicle. Plaintiff testified her father will continue to make the payments on the vehicle until it is paid in full.\nThe trial court found as fact plaintiff\u2019s father provides money to a friend who in turn makes these payments \u201cin an effort to hide assets and income from the Bankruptcy Court or this Court, or both.\u201d The payment of the monthly vehicle obligation and rent payment total $1,890.00.\nThe North Carolina Child Support Guidelines in effect at the time the child support order at issue was entered defined \u201c \u2018income\u2019 [as] income from any source, including but not limited to income from . . . gifts ... or maintenance received from persons other than the parties to the instant action.\u201d 2006 Ann. R. N.C. 48. In Spicer v. Spicer, we stated that income includes \u201cany \u2018maintenance received from persons other than the parties to the instant action.\u2019 \u201d 168 N.C. App. 283, 288, 607 S.E.2d 678, 682 (2005) (quoting 2005 Ann. R. N.C. 48).\n\u2018Maintenance\u2019 is defined as \u2018financial support given by one person to another Id. (quoting Black\u2019s Law Dictionary 973 (8th ed. 2004)). Plaintiff\u2019s vehicle and housing payments are to be considered as income to her. The trial court erred by not including these payments in calculating income in the child support order. We reverse and remand this order for the trial court to recalculate plaintiff\u2019s child support obligation, and take into account plaintiff\u2019s gift income.\nVII. Conclusion\nWithout findings of fact to support its conclusions of law, the trial court erred in calculating defendant\u2019s gross monthly income and by failing to include plaintiff\u2019s gift income as income for purposes of calculating child support. The order appealed from is reversed. We remand this case for the trial court to recalculate: (1) defendant\u2019s gross monthly income as of the date of the award or to enter findings of fact sufficient to consider defendant\u2019s capacity to earn and (2) plaintiff\u2019s gross monthly income, taking into account plaintiff\u2019s gift income.\nReversed and Remanded.\nJudges BRYANT and LEVINSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "John L. McGrath, for plaintiff-appellee.", "Morrow Alexander & Porter, PLLC, by Elise Morgan Whitley, for defendant-appellant." ], "corrections": "", "head_matter": "THE STATE OF NORTH CAROLINA AND FORSYTH COUNTY BY AND THROUGH ITS CHILD SUPPORT ENFORCEMENT UNIT, ET AL., O/B/O CHERYL WILLIAMS, Plaintiff v. MICHAEL WILLIAMS, Defendant\nNo. COA06-284\n(Filed 17 October 2006)\n1. Appeal and Error\u2014 assignment of error \u2014 citation of authority \u2014 required\nAn assignment of error without cited authority was deemed abandoned.\n2. Child Support, Custody, and Visitation\u2014 support \u2014 capacity to earn \u2014 findings that income deliberately depressed\nThe trial court erred by considering a child support defendant\u2019s capacity to earn without findings to support a conclusion that defendant deliberately depressed income or indulged in excessive spending to avoid responsibilities.\n3. Child Support, Custody, and Visitation\u2014 support \u2014 income \u2014 car and house \u2014 payments made by parent to third-party\nThe trial court erred when calculating child support by not including as attributable income to the mother vehicle and housing payments made by her father to a friend for the house she and the children lived in and the car she used.\nAppeal by defendant from order entered 16 December 2005 by Judge George A. Bedsworth in Forsyth County District Court. Heard in the Court of Appeals 20 September 2006.\nJohn L. McGrath, for plaintiff-appellee.\nMorrow Alexander & Porter, PLLC, by Elise Morgan Whitley, for defendant-appellant." }, "file_name": "0838-01", "first_page_order": 870, "last_page_order": 875 }