{ "id": 6779179, "name": "ALANA WILLIAMS RESPESS, Plaintiff v. MURPHY TODD RESPESS, Defendant and BOYD AND SUSAN RESPESS, Intervenors", "name_abbreviation": "Respess v. Respess", "decision_date": "2014-03-04", "docket_number": "No. 13-760", "first_page": "611", "last_page": "637", "citations": [ { "type": "official", "cite": "232 N.C. App. 611" } ], "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": "210 N.C. App. 319", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 3821359 ], "opinion_index": -1, "case_paths": [ "/nc-app/210/0319-01" ] }, { "cite": "199 N.C. App. 101", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4170011 ], "opinion_index": -1, "case_paths": [ "/nc-app/199/0101-01" ] }, { "cite": "160 N.C. App. 569", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957438 ], "opinion_index": -1, "case_paths": [ "/nc-app/160/0569-01" ] }, { "cite": "656 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640340 ], "year": 2008, "pin_cites": [ { "page": "321-22", "parenthetical": "citing Wyatt v. Wyatt, 35 N.C. App. 650, 651-52, 242 S.E.2d 180, 181 (1978" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0316-01" ] }, { "cite": "632 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636405 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "836", "parenthetical": "citing Atwell v. Atwell, 74 N.C. App. 231, 236, 328 S.E.2d 47, 50 (1985), quoting Sharpe v. Nobles, 127 N.C. App. 705, 708, 493 S.E.2d 288, 290 (1997) (internal citation omitted), and citing Bowers v. Bowers, 141 N.C. App. 729, 732, 541 S.E.2d 508, 510 (2001)" }, { "page": "837" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0828-01" ] }, { "cite": "620 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634097 ], "year": 2005, "pin_cites": [ { "page": "202", "parenthetical": "citing Civil Penalty" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0201-01" ] }, { "cite": "622 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634505, 12634506, 12634507 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/622/0494-01", "/se2d/622/0494-02", "/se2d/622/0494-03" ] }, { "cite": "613 S.E.2d 739", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633077 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "743" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0739-01" ] }, { "cite": "614 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633155 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/614/0489-01" ] }, { "cite": "660 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640930 ], "year": 2008, "pin_cites": [ { "page": "66", "parenthetical": "quoting Owenby v. Young, 357 N.C. 142, 147, 579 S.E.2d 264, 268 (2003) (other citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/660/0058-01" ] }, { "cite": "497 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "690" } ], "opinion_index": 0 }, { "cite": "348 N.C. 58", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659890 ], "year": 1998, "pin_cites": [ { "page": "59-60" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0058-01" ] }, { "cite": "242 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "181" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551321 ], "year": 1978, "pin_cites": [ { "page": "651-52" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0650-01" ] }, { "cite": "188 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155775 ], "year": 2008, "pin_cites": [ { "page": "487", "parenthetical": "citing Wyatt v. Wyatt, 35 N.C. App. 650, 651-52, 242 S.E.2d 180, 181 (1978" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0477-01" ] }, { "cite": "263 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "723" } ], "opinion_index": 0 }, { "cite": "299 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575259 ], "year": 1980, "pin_cites": [ { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0465-01" ] }, { "cite": "380 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "124", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526775 ], "year": 1989, "pin_cites": [ { "page": "172", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0168-01" ] }, { "cite": "752 S.E.2d 194", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "parenthetical": "quoting Cameron v. Cameron, 94 N.C. App. 168, 172, 380 S.E.2d 121, 124 (1989) (citations omitted). Pursuant to N.C. Gen. Stat. \u00a7 50-13.6, in a custody action, a trial court \"has the discretion to award attorney's fees to an interested party when that party is (1" } ], "opinion_index": 0 }, { "cite": "477 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "214", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889393 ], "year": 1996, "pin_cites": [ { "page": "335", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0332-01" ] }, { "cite": "607 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "682" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 283", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8469281 ], "year": 2005, "pin_cites": [ { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0283-01" ] }, { "cite": "541 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "510" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9443414 ], "year": 2001, "pin_cites": [ { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0729-01" ] }, { "cite": "493 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "290", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 705", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11799982 ], "year": 1997, "pin_cites": [ { "page": "708", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0705-01" ] }, { "cite": "328 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "50" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523873 ], "year": 1985, "pin_cites": [ { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0231-01" ] }, { "cite": "179 N.C. App. 132", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8234799 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "146", "parenthetical": "citing Atwell v. Atwell, 74 N.C. App. 231, 236, 328 S.E.2d 47, 50 (1985), quoting Sharpe v. Nobles, 127 N.C. App. 705, 708, 493 S.E.2d 288, 290 (1997) (internal citation omitted), and citing Bowers v. Bowers, 141 N.C. App. 729, 732, 541 S.E.2d 508, 510 (2001)" }, { "page": "147-48" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0132-01" ] }, { "cite": "173 N.C. App. 439", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353783 ], "year": 2005, "pin_cites": [ { "page": "441", "parenthetical": "citing Civil Penalty" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0439-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(cl)" }, { "page": "(e)" }, { "page": "(e)" }, { "page": "(e)" } ], "opinion_index": 0 }, { "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0496-01" ] }, { "cite": "381 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "182" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 670", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527721 ], "year": 1989, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0670-01" ] }, { "cite": "707 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "795" } ], "opinion_index": 0 }, { "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": "468 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "343 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798953 ], "weight": 2, "year": 1996, "pin_cites": [ { "parenthetical": "internal citations omitted" }, { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0050-01" ] }, { "cite": "455 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "446" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918367 ], "year": 1995, "pin_cites": [ { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0356-01" ] }, { "cite": "680 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "888", "parenthetical": "quoting Taylor v. Taylor, 118 N.C. App. 356, 361, 455 S.E.2d 442, 446 (1995), rev'd on other grounds, 343 N.C. 50, 468 S.E.2d 33 (1996) (internal citations omitted)" }, { "page": "889" } ], "opinion_index": 0 }, { "cite": "360 N.C. 163", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792298 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0163-01" ] }, { "cite": "171 N.C. App. 35", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8434528 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0035-01" ] }, { "cite": "215 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "36", "parenthetical": "\"A judicial decree in a child custody and support matter is subject to alteration upon a change of circumstances affecting the welfare of the child and, therefore, is not final in nature.\"" } ], "opinion_index": 0 }, { "cite": "287 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563081 ], "year": 1975, "pin_cites": [ { "page": "456", "parenthetical": "\"A judicial decree in a child custody and support matter is subject to alteration upon a change of circumstances affecting the welfare of the child and, therefore, is not final in nature.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0448-01" ] }, { "cite": "550 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "502" } ], "opinion_index": 0 }, { "cite": "354 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138519 ], "year": 2001, "pin_cites": [ { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0057-01" ] }, { "cite": "434 U.S. 246", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181961 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "255" }, { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/us/434/0246-01" ] }, { "cite": "484 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "534", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "346 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139523 ], "year": 1997, "pin_cites": [ { "page": "78-79", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0068-01" ] }, { "cite": "445 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "905" }, { "page": "905" } ], "opinion_index": 0 }, { "cite": "337 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551903 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "403-04" }, { "page": "403-04" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0397-01" ] }, { "cite": "724 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": 0 }, { "cite": "365 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "year": 2012, "opinion_index": 0 }, { "cite": "722 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "472" } ], "opinion_index": 0 }, { "cite": "365 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4154260 ], "year": 2012, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0374-01" ] }, { "cite": "359 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3804066 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0539-01" ] }, { "cite": "736 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "832", "parenthetical": "citing In re R.T.W., 359 N.C. 539, 542 n.3, 614 S.E.2d 489, 491 n.3 (2005), superseded by statute on other grounds as recognized in In re M.I.W., 365 N.C. 374, 376, 722 S.E.2d 469, 472, rehearing denied, 365 N.C. 568, 724 S.E.2d 512 (2012)" } ], "opinion_index": 0 }, { "cite": "327 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "the Court of Appeals lacks authority to overrule decisions of the Supreme Court of North Carolina and has a \"responsibility to follow those decisions, until otherwise ordered by the Supreme Court\"" } ], "opinion_index": 0 }, { "cite": "313 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724761 ], "year": 1985, "pin_cites": [ { "parenthetical": "the Court of Appeals lacks authority to overrule decisions of the Supreme Court of North Carolina and has a \"responsibility to follow those decisions, until otherwise ordered by the Supreme Court\"" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0324-01" ] }, { "cite": "468 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "450", "parenthetical": "\"It is elementary that this Court is bound by holdings of the Supreme Court [of North Carolina]\"" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 728", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920050 ], "year": 1996, "pin_cites": [ { "page": "732", "parenthetical": "\"It is elementary that this Court is bound by holdings of the Supreme Court [of North Carolina]\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0728-01" ] }, { "cite": "749 S.E.2d 852", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "opinion_index": 0 }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "750 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "534" } ], "opinion_index": 0 }, { "cite": "713 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "495" } ], "opinion_index": 0 }, { "cite": "212 N.C. App. 614", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4078758 ], "year": 2011, "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/nc-app/212/0614-01" ] }, { "cite": "478 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "660", "parenthetical": "\"G.S. 50-13.5(i" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890554 ], "year": 1996, "pin_cites": [ { "page": "733", "parenthetical": "\"G.S. 50-13.5(i" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0724-01" ] }, { "cite": "380 S.E.2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "584", "parenthetical": "\"Visitations may be denied if visitation is not in the child's best interest.\"" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 464", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527399 ], "year": 1989, "pin_cites": [ { "page": "471", "parenthetical": "\"Visitations may be denied if visitation is not in the child's best interest.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0464-01" ] }, { "cite": "263 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "824" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 644", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550643 ], "year": 1980, "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0644-01" ] }, { "cite": "253 S.E.2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "620" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 661", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552583 ], "year": 1979, "pin_cites": [ { "page": "666-667" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0661-01" ] }, { "cite": "115 N.W. 2d 833", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1962, "pin_cites": [ { "page": "838" } ], "opinion_index": 0 }, { "cite": "253 Iowa 1294", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 4420932 ], "year": 1962, "pin_cites": [ { "page": "1302" } ], "opinion_index": 0, "case_paths": [ "/iowa/253/1294-01" ] }, { "cite": "179 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "848-49", "parenthetical": "\" 'The rule is well established in all jurisdictions that the right of access to one's child should not be denied unless the court is convinced such visitations are detrimental to the best interests of the child.' \"" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 545", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554881 ], "year": 1971, "pin_cites": [ { "page": "551", "parenthetical": "\" 'The rule is well established in all jurisdictions that the right of access to one's child should not be denied unless the court is convinced such visitations are detrimental to the best interests of the child.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0545-01" ] }, { "cite": "75 S.E. 133", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612355 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0404-01" ] }, { "cite": "154 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "327", "parenthetical": "citing Griffin v. Griffin, 237 N.C. 404, 75 S.E. 133 (1953)" }, { "page": "327" } ], "opinion_index": 0 }, { "cite": "270 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567279 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "282", "parenthetical": "citing Griffin v. Griffin, 237 N.C. 404, 75 S.E. 133 (1953)" }, { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0278-01" ] }, { "cite": "325 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "241" } ], "opinion_index": 0 }, { "cite": "312 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749165 ], "year": 1985, "pin_cites": [ { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0725-01" ] }, { "cite": "557 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "88", "parenthetical": "citing Jones v. All American Life Ins. Co., 312 N.C. 725, 733, 325 S.E.2d 237, 241 (1985)" } ], "opinion_index": 0 }, { "cite": "354 N.C. 525", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138368 ], "year": 2001, "pin_cites": [ { "page": "533", "parenthetical": "citing Jones v. All American Life Ins. Co., 312 N.C. 725, 733, 325 S.E.2d 237, 241 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0525-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 5043.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "81 S.E.2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "921" } ], "opinion_index": 0 }, { "cite": "240 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597424 ], "year": 1954, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0271-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 11, "pin_cites": [ { "page": "(i)" }, { "page": "(i)" }, { "page": "(i)" }, { "page": "(i)" }, { "page": "(i)" }, { "page": "(i)" }, { "page": "(i)" }, { "page": "(i)" }, { "page": "573-74" }, { "page": "(i)" }, { "page": "(i)" } ], "opinion_index": 0 }, { "cite": "587 S.E.2d 74", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "75" } ], "opinion_index": 0 }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "731", "parenthetical": "other citation omitted" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "year": 1991, "pin_cites": [ { "page": "97", "parenthetical": "other citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] }, { "cite": "731 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "409", "parenthetical": "quoting Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (other citation omitted" } ], "opinion_index": 0 }, { "cite": "366 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4357421 ], "year": 2012, "pin_cites": [ { "page": "191", "parenthetical": "quoting Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (other citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/366/0185-01" ] }, { "cite": "579 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "268", "parenthetical": "other citation omitted" }, { "page": "266-67" }, { "page": "267", "parenthetical": "\"[A] termination of parental rights order completely and permanently severs all rights and obligations of the parent to the child and the child to the parent[.]\"" } ], "opinion_index": 0 }, { "cite": "357 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491798 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "147", "parenthetical": "other citation omitted" }, { "page": "145" }, { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0142-01" ] }, { "cite": "190 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158635 ], "year": 2008, "pin_cites": [ { "page": "221", "parenthetical": "quoting Owenby v. Young, 357 N.C. 142, 147, 579 S.E.2d 264, 268 (2003) (other citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0209-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "210 N.C. App. 319", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 3821359 ], "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/nc-app/210/0319-01" ] }, { "cite": "199 N.C. App. 101", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4170011 ], "weight": 2, "pin_cites": [ { "page": "105", "parenthetical": "quoting Taylor v. Taylor, 118 N.C. App. 356, 361, 455 S.E.2d 442, 446 (1995), rev'd on other grounds, 343 N.C. 50, 468 S.E.2d 33 (1996) (internal citations omitted)" }, { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/nc-app/199/0101-01" ] }, { "cite": "160 N.C. App. 569", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957438 ], "weight": 3, "pin_cites": [ { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0569-01" ] } ], "analysis": { "cardinality": 1818, "char_count": 59209, "ocr_confidence": 0.705, "pagerank": { "raw": 1.2959414152149778e-07, "percentile": 0.6210676761463699 }, "sha256": "5db3d4285709a74c5fd9c46bac1e50b78b5bca1b50794dfcff26f132a295582e", "simhash": "1:936a5c2ef24f4c50", "word_count": 9779 }, "last_updated": "2023-07-14T19:34:41.441392+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and DAVIS concur." ], "parties": [ "ALANA WILLIAMS RESPESS, Plaintiff v. MURPHY TODD RESPESS, Defendant and BOYD AND SUSAN RESPESS, Intervenors" ], "opinions": [ { "text": "STEELMAN, Judge.\nThe trial court did not err by denying visitation with the minor children to defendant. The trial court did not err by ordering that plaintiff was entitled to child support or by imputing income to defendant. The order of the trial court is remanded for additional findings on the amount of income to be imputed to defendant and the amount of retroactive child support. The trial court did not err by transferring a vehicle to plaintiff as part of defendant\u2019s child support arrearage without calculating the value of the vehicle. The trial court\u2019s award of attorney\u2019s fees to plaintiff included the findings of fact required by N.C. Gen. Stat. \u00a7 50-13.6, and the trial court did not err in calculating a reasonable amount of attorney\u2019s fees. However, we remand this issue to the trial court for findings as to plaintiff\u2019s reasonable expenses as they pertain to her ability to pay for counsel.\nI. Factual and Procedural Background\nPlaintiff Alana Respess and defendant Todd Respess were married on 22 August 1986, separated in 2006, and were divorced on 15 June 2009. They have four children: Jessica, bom in 1987; Amanda, bom 1993; Allysa, bom 1998; and Noah, bom in 2002. In 2005 defendant admitted to plaintiff that he had engaged in inappropriate sexual activity with Jessica, and on 3 May 2007 defendant pled guilty to five felony counts of indecent liberties with a child. In Case No. 05 CRS 54090, he was sentenced to 16 to 24 months imprisonment, suspended for 36 months of supervised probation on condition that he register as a sex offender, submit to electronic monitoring, have only supervised visitation with his children, and serve a four month active sentence. This sentence was completed in December 2009. In Case No. 07 CRS 1209, defendant pled guilty to four additional counts of indecent liberties, and was sentenced to consecutive terms of 16 to 24 months imprisonment, with the first to begin at the expiration of the active sentence in 05 CRS 54090. The four sentences were suspended on the same terms as in 05 CRS 54090, with the sentences to expire on 28 August 2011, 27 April 2013, 27 December 2015, and 26 April 2017.\nOn 7 May 2007 plaintiff filed a complaint seeking temporary and permanent custody of the three minor children (Jessica reached majority in 2005). Plaintiff alleged that defendant had violated the conditions established by the Beaufort County DSS for visitation and that he was not \u201ca fit and proper person\u201d to have custody of the children. In his answer, defendant counterclaimed, seeking custody, child support, and attorney\u2019s fees. In her reply, plaintiff requested that defendant be denied all contact with the minor children. On 21 May 2008 plaintiff filed a complaint for divorce, child support, equitable distribution, and attorney\u2019s fees. In his answer, defendant denied the material allegations of plaintiff\u2019s complaint and counterclaimed for child support, equitable distribution, and attorney\u2019s fees. Plaintiff filed a reply on 25 August 2008. The parties were granted a divorce on 15 June 2009.\nOn 16 October 2012 the trial court entered an order on the issues of child custody, child support, visitation, and the attorney\u2019s fees associated with litigation of these issues. At that time only Alyssa and Noah were minors. The provisions of the court\u2019s order concerning custody, visitation, and prospective child support apply only to those two children. The court made findings concerning defendant\u2019s sexual abuse of Jessica and his subsequent behavior towards her and his other children, and concluded that it would be \u201ctotally inappropriate\u201d and detrimental to the best interests of the children for defendant to have \u201cvisitation or custodial relationships of any type\u201d with the minor children. The trial court also made findings concerning the effect of defendant\u2019s sexual abuse upon his employment situation, and found that it was appropriate for the court to impute an income of approximately $50,000 a year to defendant, an amount that was about half of his previous annual earnings. The trial court concluded that plaintiff was entitled to retroactive and prospective child support, and to attorney\u2019s fees.\nDefendant appeals.\nII. Denial of Visitation to Defendant\nIn his first argument, defendant contends that the trial court committed reversible error by denying him visitation with the minor children. We disagree.\nA. Standard of Review\n\u201cUnder our standard of review in custody proceedings, \u2018the trial court\u2019s findings of fact are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary.\u2019 Whether those findings of fact support the trial court\u2019s conclusions of law is reviewable de novo.\u201d Mason v. Dwinnell, 190 N.C. App. 209, 221, 660 S.E.2d 58, 66 (2008) (quoting Owenby v. Young, 357 N.C. 142, 147, 579 S.E.2d 264, 268 (2003) (other citation omitted). \u201cA trial court\u2019s unchallenged findings of fact are \u2018presumed to be supported by competent evidence and [are] binding on appeal.\u2019 If the trial court\u2019s uncontested findings of fact support its conclusions of law, we must affirm the trial court\u2019s order.\u201d Mussa v. Palmer-Mussa, 366 N.C. 185, 191, 731 S.E.2d 404, 409 (2012) (quoting Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (other citation omitted).\nB. Analysis\nDefendant argues, based on the holding of Moore v. Moore, 160 N.C. App. 569, 587 S.E.2d 74 (2003), that the trial court did not comply with the provisions of N.C. Gen. Stat. \u00a7 50-13.5(i), and contends the trial court\u2019s finding that it was not in the children\u2019s best interests to have visitation with him was not supported by its other findings.\nUnder N.C. Gen. Stat. \u00a7 50-13.1(a) \u201cthe word \u2018custody\u2019 shall be deemed to include custody or visitation or both.\u201d It is long-established that a trial court\u2019s determination of child custody, including visitation, must be guided by the best interests of the child:\n[W]e apprehend the true rule to be that the court\u2019s primary concern is the furtherance of the welfare and best interests of the child and its placement in the home environment that will be most conducive to the full development of its physical, mental, and moral faculties. All other factors, including visitorial rights of the other applicant, will be deferred or subordinated to these considerations))]\nGriffith v. Griffith, 240 N.C. 271, 275, 81 S.E.2d 918, 921 (1954). This standard is incorporated in N.C. Gen. Stat. \u00a7 5043.2(a), which directs the trial court to \u201caward the custody of [a] child to such person ... as will best promote the interest and welfare of the child.\u201d\nIt is also well-established that \u201cthe applicable standard of proof in child custody cases is by a preponderance, or greater weight, of the evidence.\u201d Speagle v. Seitz, 354 N.C. 525, 533, 557 S.E.2d 83, 88 (2001) (citing Jones v. All American Life Ins. Co., 312 N.C. 725, 733, 325 S.E.2d 237, 241 (1985)).\nAlthough courts seldom deny visitation rights to a non-custodial parent, a trial court may do so if it is in the best interests of the child:\n[T]he welfare of a child is always to be treated as the paramount consideration^] . . . Courts are generally reluctant to deny all visitation rights to the divorced parent of a child of tender age, but it is generally agreed that visitation rights should not be permitted to jeopardize a child\u2019s welfare.\nSwicegood v. Swicegood, 270 N.C. 278, 282, 154 S.E.2d 324, 327 (1967) (citing Griffin v. Griffin, 237 N.C. 404, 75 S.E. 133 (1953)). See also, In re Custody of Stancil, 10 N.C. App. 545, 551, 179 S.E.2d 844, 848-49 (1971) (\u201c \u2018The rule is well established in all jurisdictions that the right of access to one\u2019s child should not be denied unless the court is convinced such visitations are detrimental to the best interests of the child.\u2019 \u201d) (quoting Willey v. Willey, 253 Iowa 1294, 1302, 115 N.W. 2d 833, 838 (1962)). This principle is codified in N.C. Gen. Stat. \u00a7 50-13.5(i), which provides that:\nIn any case in which an award of child custody is made in a district court, the trial judge, prior to denying a parent the right of reasonable visitation, shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child, (emphasis added).\nThe statutory language is straightforward and unambiguous and requires that if a trial court does not grant reasonable visitation to a parent, its order must include a finding either that the parent is \u201can unfit person to visit the child\u201d or that visitation with the parent is \u201cnot in the best interest of the child.\u201d Although our Supreme Court has not issued an opinion discussing this statute, during the past 30 years this Court has issued numerous opinions applying N.C. Gen. Stat. \u00a7 50-13.5(i). For example, in King v. Demo, 40 N.C. App. 661, 666-667, 253 S.E.2d 616, 620 (1979), we stated that:\nUnless the child\u2019s welfare would be jeopardized, courts should be generally reluctant to deny all visitation rights to the divorced parent of a child of tender age. Moreover, G.S. 50-13.5(i) provides [that] . . . \u201cprior to denying a parent the-right of reasonable visitation, [the trial court] shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child.\u201d\n(citing Swicegood, and Stancil). And, in Johnson v. Johnson, 45 N.C. App. 644, 647, 263 S.E.2d 822, 824 (1980), we held that:\nIn awarding visitation privileges the court should be controlled by the same principle which governs the award of primary custody, that is, that the best interest and welfare of the child is the paramount consideration. . . . G.S. 50-13.5(i) provides that \u201c[i]n any case in which an award of child custody is made in a district court, the trial judge, prior to denying a parent the right of reasonable visitation, shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child.\u201d\n(citing Swicegood'). During the 33 years since Johnson was decided, we have consistently followed both its application of the best interests standard to disputes between parents regarding child custody and visitation, and its acceptance of the plain language of N.C. Gen. Stat. \u00a7 50-13.5(i). See, e.g., Cornell v. Allen, 94 N.C. App. 464, 471, 380 S.E.2d 580, 584 (1989) (\u201cVisitations may be denied if visitation is not in the child\u2019s best interest.\u201d) (citation omitted); Raynor v. Odom, 124 N.C. App. 724, 733, 478 S.E.2d 655, 660 (1996) (\u201cG.S. 50-13.5(i) requires that \u2018the trial judge prior to denying a parent the right of reasonable visitation, shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interests of the child.\u2019 \u201d); and Maxwell v. Maxwell, 212 N.C. App. 614, 622, 713 S.E.2d 489, 495 (2011) (\u201cOur General Assembly has provided that: \u2018. . . prior to denying a parent the right of reasonable visitation, [the trial court] shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child.\u2019 N.C. Gen. Stat. \u00a7 50-13.5(i) (2009)\u201d). Thus, \u201cit is generally agreed that visitation rights should not be permitted to jeopardize a child\u2019s welfare.\u201d Swicegood, 270 N.C. at 282, 154 S.E. 2d at 327.\nIn the present case, the trial court found, as required by N.C. Gen. Stat. \u00a7 50-13.5(i), that it would not be in the children\u2019s best interests to have any visitation with defendant. This ultimate finding of fact was supported by numerous evidentiary findings of fact, including the following:\n12. The Court had the opportunity to observe the demeanor of each of the witnesses called by the parties and to hear their testimony.\n13. The Court formed opinions as to the veracity of each witness having had the occasion to observe said witnesses and to hear their testimony.\n14. On August 4, 2005 . . . the Defendant . . . confessed to [plaintiff] that he had engaged in inappropriate sexual behavior with Jessica Resp'ess....\n17. In 2007, the Plaintiff... move[ed] to Kansas[.].\n30. After the revelations of August 4, 2005 to the Plaintiff by the Defendant, [law enforcement authorities]... began a criminal investigation of the Defendant[.]\n31. On August 18, 2005, the Defendant made a voluntary statement to Investigators ... regarding his voluntary sexual acts with his minor daughter, Jessica.\n32. Said voluntary statement, which was . . . acknowledged to be true and accurate during his testimony by the Defendant is incorporated herein[.]\n34. In March of 2002 ... Defendant slept in the same bed with Jessica who . . . [was] 14 years of age. . . . Between February 2003 and August 2004, the Defendant touched Jessica on her bare breasts many times, kissed Jessica\u2019s breasts on occasion, and rubbed Jessica\u2019s vaginal area numerous times. The Defendant estimates that he put his finger inside of Jessica\u2019s vagina and kissed her breasts on at least ten occasions.\n35. Between August 2004 and August 18, 2005, the Defendant touched Jessica\u2019s breast more than ten times, rubbed her vaginal area ten to twelve times, inserted his finger inside of Jessica\u2019s vaginal area ten or twelve times, and kissed her bare breasts three or more times.\n36. The Defendant allowed or caused Jessica to have an orgasm while riding straddled on top of him a number of times.\n37. The Defendant was charged with multiple sex offenses and indecedent liberties with a minor child in October of 2005 in Beaufort County.\n43. The Defendant was ordered by the Department of Social Services as conditions of being able to visit with his children not to be alone with the children out of the presence of the Plaintiff, not to kiss the children on the lips, not to allow them to sit on his lap . . . [and] not to otherwise engage any type of physical touching or activity that could be determined to be sexual grooming. During the year of 2006, the Defendant... engaged in these prohibited activities.\n45. Amanda Respess, who is now 18 years of age but is still in high school, testified as did her younger sister, Allysa. Both of these individuals gave forthright testimony which is highly creditable.\n47. Based upon the testimony of Amanda Respess and Allysa Respess, which the Court finds to be creditable, the Court determines that the Defendant engaged in the following behaviors:\nA. Would rub their chest to awaken them in the morning, although, they were of an age to have developed breasts.\nB. Would rub lotion on their backs and their naked buttocks under the pretense of making sure their skin was soft.\nC. Would spend[] hours combing their hair just as he had previously done with Jessica.\nD. After the Defendant was separated from the home in August of 2005, he suggested to Amanda that, since she was a minor and an excellent, shot, that an accidental shooting of the Plaintiff, her mother, would be appropriate....\nE. Saw both children at inappropriate times and places in violation of the restrictions placed on his visitation[.]...\nF. Would take the minor child, Allysa, by himself to a bam behind [her] residence... and would threaten Allysa with physical punishment... if she revealed that he had taken her away from the family unit.\n48. Amanda and Allysa Respess both testified that they wanted no contact with the Defendant, their father, of any type....\n52. After the Defendant was indicted on the multiple sexual charges . . . three men who belonged to the same church as [the Intervenors] and the Defendant, went to see the Defendant at his trailer[.]...\n53. In this meeting... the Defendant stated that he \u201cnever molested anyone who hadn\u2019t reached puberty\u201d and further stated that if \u201che wished to live with his daughter, it was no one else\u2019s business.\u201d\n54. Between November 2005 and . . . July 2007, Judy Kilpatrick, a Department of Social Services case worker, had . . . conversations with the Defendant^ who] . . . told [her] many disturbing things which included but were not necessarily limited to the following:\nA. He had a love affair with Jessica and he fell in love with her.\nB. Jessica came to him and pursued him.\nC. Jessica was a better wife than the Plaintiff and that he would like to have a wife like her.\nD. The Plaintiff didn\u2019t satisfy his sexual needs and this was the reason he was involved with Jessica.\nE. The Defendant stated \u201c[Alana] was the problem\u201d and the reason he engaged in sexual behavior with his minor child, Jessica.\nF. The Defendant referred to his daughter, Jessica Respess, when she was a minor with the nickname \u201cLuscious Lips\u201d and admitted kissing her and his other children directly on the lips and nibbling with his teeth on Jessica\u2019s lower lip.\n55. The Defendant also . . . told the Plaintiff . . . that the problems arising out of his destructive behavior with his daughter were the fault of the Plaintiff.\n56. The Defendant, after he was charged with criminal indecent liberties ... left notes with his daughter, Jessica, suggesting how she might testily so that his behavior did not look so bad.\n58. The Defendant also, during the period of time when he was not supposed to write to or communicate with his minor children, sent messages to the minor children[.]...\n59. The Plaintiff introduced numerous hand-written letters and notes from the Defendant to his minor children indicating that he still did not see anything wrong with what he had done, which . .-. were written and delivered in violation of the restrictions imposed upon communication between the [defendant] and his children[, and] . . . contained [inappropriate] language[.]...\n60. On May 3, 2007, the Defendant entered pleas of guilty to five counts of indecent liberties with the minor child, Jessica Respess.\n61. ... [In] File Number 05 CRS 54090, he [pled] guilty to a Class F, Level 1 Felony and was sentenced to ... [16 to 24] months of an active sentence suspended for thirty six months of supervised probation upon the condition that he register as a sex offender, submit to electronic monitoring, have supervised visitation only with his children, and serve a four month active sentence in jail. This sentence expired December 29, 2009.\n62. ... [In] File Number 07 CRS 1209 in Count 1, he [pled] guilty to the charge of indecent liberties ... [and received the same sentence as in File No. 54090,] to run at the expiration of the 05 CRS 54090 and which sentence was suspended on the same terms and conditions as the sentence handed down in 05 CRS 54090.... [T]his sentence would expire on August 28, 2011.\n63. In this same criminal case, the Defendant [pled] guilty to a second count of indecent liberties . . . and [received] an identical sentence... [that] would run at the expiration of the active sentence in Count 1 and . . . expire on April 27, 2013.\n64. In this same criminal case, the Defendant [pled] guilty to a third count of indecent liberties... and was sentenced to an identical sentence as in the first count... [to] run at the expiration of the active sentence in Count 2 and . . . expire on December 27, 2015.\n65. In this same criminal case, the Defendant [pled] guilty to a fourth count of indecent liberties . . . and was sentenced to an identical sentence as in the first count... [to] run at the expiration of the active sentence in Count 3 and ... expire on April 26, 2017.\n66. If the Defendant were to have unsupervised visitation or custody as he sought in his counterclaim, he would be in violation of the terms of the Superior Court Order suspending his active sentences.\n67. As a condition of the sentence imposed in... file number 05 CRS 54090, the Defendant served an active prison sentence ... from May 2007 through December 2007.\n71. Amanda Respess, having a date of birth of May 25, 1993 . . . [has] health problems as she has developed Neurofibromatosis, which is a disease which affects the nerve endings in the brain[.]...\n75. Allysa Respess ... is a very mature 13 year old girl who testified creditably in Court-\n77. The minor child, Noah, is in the fourth (4th) grade. He is very energetic and enjoys . . . scholastic and community activities [.]\n80. The three minor children, Amanda, Allysa, and Noah, are doing extraordinarily well in Smith Center, Kansas, and their environment should not be disturbed.\n81. The Plaintiff took the children to .family counseling . . . with Cyndee Fintel who spoke to the Court\u2019s expert, Dr. Harold May, and recommended that there be no visitation between the minor children and the Defendant.\n85. Dr. Harold May, Ph.D., of the Carolina Center... testified as the Court\u2019s appointed expert.\n89. Dr. May has not seen the minor children in over three years and six months as of the date of this hearing.\n91. The present therapist... for the Defendant is Michael Doughtie, who .. . testified that the Defendant... viewed Jessica more as a wife than as a daughter], and that]... the sexual abuse of Jessica had begun at least in 1998.\n92. Mr. Doughtie also testified creditably that as recently as June of 2010, the Defendant expressed concerns about \u201cJessica getting married\u201d and that the Defendant was \u201closing her.\u201d These remarks were further evidence that the Defendant had made Jessica Respess, in his mind, both a mother and a wife figure.\n93. These comments made to Mr. Doughtie combined with the Defendant\u2019s other actions such as grooming the minor children, Amanda and Allysa, are creditable and strong evidence indicating that the Defendant should never have any contact with his three younger children.\n94. The Court rejects the suggestions of Dr. May that the children should have any contact with the Defendant as it is not in the children\u2019s best interest so to do.\n125. The Defendant engaged in a prolonged, deliberate, and willful course of sexually abusing Jessica Respess.\n146. As a further mixed finding of fact and conclusion of law, the Court concludes that the Defendant\u2019s . . . sexual molestation of his oldest daughter over a period of not less than five (5) years, his refusal to accept responsibility for it, his continued obsession with his minor daughter],] . . . his grooming behaviors to his two youngest daughters, the threats he made to his youngest daughter]], and his refusal to accept ultimate responsibility make him a totally inappropriate person to have visitation or custodial relationships of any type with his minor children, and the Court finds as a mixed finding of fact and conclusion of law that it would be actually adverse to any good interest of the minor children for the Defendant to have any contact whatsoever, and the Court must be vigilant in preventing the same.\nWe hold that the trial court made the finding required by N.C. Gen. Stat. \u00a7 50-13.5(i) that it was not in the best interests of the minor children that defendant have visitation. This finding was supported by other, unchallenged, findings, and the trial court did not err by denying visitation to defendant.\nIn seeking to persuade us to reach a contrary conclusion, defendant relies primarily on the case of Moore v. Moore, 160 N.C. App. 569, 587 S.E.2d 74 (2003), which he contends is \u201ccontrolling\u201d and requires us to reverse the trial court. After careful review, we conclude that Moore is not dispositive of this issue.\nMoore arose from a custody dispute between the divorced parents of a minor child. The plaintiff-father\u2019s visitation rights were suspended after the child disclosed sexual contact between the plaintiff and the child. The trial court denied the plaintiff\u2019s motion to reinstate visitation and found that it would not be in the child\u2019s best interests for plaintiff\u2019s visitation to be reinstated. Moore, 160 N.C. App. at 571, 587 S.E.2d at 75. On appeal, this Court reversed the trial court, based on application of a new standard for a trial court\u2019s denial of visitation rights, and held for the first time that (1) a trial court\u2019s denial of visitation is tantamount to termination of parental rights, and therefore requires the trial court to apply the \u201cclear, cogent, and convincing\u201d evidence standard applicable to termination cases; (2) to comply with N.C. Gen. Stat. \u00a7 50-13.5(i), a trial court must apply the standard applicable to a custody dispute between a parent and a non-parent, and may not apply the best interests of the child standard absent a written finding that the parent was unfit or had engaged in conduct inconsistent with his protected status as a parent; and (3) the trial court must state that these findings were based on clear, cogent, and convincing evidence. Id. at 573-74, 584 S.E.2d at 76.\nIn this case, the trial court found that visitation between defendant and the minor children was not in the children\u2019s best interest, but did not find that defendant was unfit or that his conduct was inconsistent with his protected parental status, and did not state that its decision to deny visitation was based on clear, cogent, and convincing evidence. Defendant argues that the trial court\u2019s ruling did not comply with the dictates of Moore. However, we conclude that the standard articulated in Moore directly conflicts with prior holdings of this Court and our Supreme Court and therefore does not control our decision in the instant case.\n\u201cAccording to well-established law, \u2018[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u2019 \u201d State v. Perry,_N.C. App._,_, 750 S.E.2d 521, 534 (quoting In re Appeal of Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)), disc. review denied, _ N.C. _, 749 S.E.2d 852 (2013). Thus, as a general rule, we are bound by prior opinions of this Court.\nHowever, this Court has no authority to reverse existing Supreme Court precedent. See Rogerson v. Fitzpatrick, 121 N.C. App. 728, 732, 468 S.E.2d 447, 450 (1996) (\u201cIt is elementary that this Court is bound by holdings of the Supreme Court [of North Carolina]\u201d) (citation omitted), and Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985) (the Court of Appeals lacks authority to overrule decisions of the Supreme Court of North Carolina and has a \u201cresponsibility to follow those decisions, until otherwise ordered by the Supreme Court\u201d). \u201cFurther, our Supreme Court has clarified that, where there is a conflicting line of cases, a panel of this Court should follow the older of those two lines.\u201d State v. Gardner,_ N.C. App._,_, 736 S.E.2d 826, 832 (2013) (citing In re R.T.W., 359 N.C. 539, 542 n.3, 614 S.E.2d 489, 491 n.3 (2005), superseded by statute on other grounds as recognized in In re M.I.W., 365 N.C. 374, 376, 722 S.E.2d 469, 472, rehearing denied, 365 N.C. 568, 724 S.E.2d 512 (2012)).\nAs discussed above, numerous cases from both this Court and our Supreme Court have long held that issues of child custody and visitation are determined by the best interest of the child, based upon the preponderance of the evidence. In addition, this Court has consistently interpreted N.C. Gen. Stat. \u00a7 50-13.5(i) as written, without adding additional requirements to the statute\u2019s text or deviating from the general rules governing child custody. The holding of Moore diverged sharply from this controlling precedent in significant respects.\nFirst, Moore directed trial courts to apply to a custody dispute between a child\u2019s parents the standard applicable to a dispute between a parent and anon-parent. In Petersen v. Rogers, 337 N.C. 397, 403-04, 445 S.E.2d 901,905 (1994), our Supreme Court held that, in a custody dispute between a child\u2019s natural parent and a non-parent, \u201cabsent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally-protected paramount right of parents to custody, care, and control of their children must prevail.\u201d However, in Owenby, 357 N.C. at 145, 579 S.E.2d at 266-67, which was decided before Moore, our Supreme Court explicitly ruled that Petersen was inapplicable to a custody dispute between parents:\nWe acknowledged the importance of this liberty interest [of parents] nearly a decade ago when this Court held: \u201cabsent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody, care, and control of their children must prevail.\u201d ... Therefore, unless a natural parent\u2019s conduct has been inconsistent with his or her constitutionally protected status, application of the \u201cbest interest of the child\u201d standard in a custody dispute with a nonparent offends the Due Process Clause of the United States Constitution. Furthermore, the protected right is Irrelevant in a custody proceeding between two natural parents, whether biological or adoptive, or between two parties who are not natural parents. In such instances, the trial court must determine custody using the \u201cbest interest of the child\u201d test.\n(emphasis added) (quoting Petersen, 337 N.C. at 403-04, 445 S.E.2d at 905, and citing Price v. Howard, 346 N.C. 68, 78-79, 484 S.E.2d 528, 534 (1997) (internal citation omitted), Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 520, 98 S. Ct. 549 (1978), and Adams v. Tessener, 354 N.C. 57, 61, 550 S.E.2d 499, 502 (2001)). Moore\u2019s holding that the Petersen presumption applies to a trial court\u2019s decision to deny visitation rights to a non-custodial parent contradicts our Supreme Court\u2019s holding that Petersen is \u201cirrelevant\u201d to a dispute between parents and that \u201c[i]n such instances, the trial court must determine custody using the \u2018best interest of the child\u2019 test.\u201d Id.\nMoore also failed to state a substantive or precedential basis for its holding that an order denying visitation was the functional equivalent of the termination of parental rights, and therefore required a trial court to apply the standards for termination proceedings. Our jurisprudence has long recognized significant differences between a child custody order, which is subject to modification upon a showing of changed circumstances, and orders for adoption or for termination of parental rights, which are permanent. See, e.g., Stanback v. Stanback, 287 N.C. 448, 456, 215 S.E.2d 30, 36 (1975) (\u201cA judicial decree in a child custody and support matter is subject to alteration upon a change of circumstances affecting the welfare of the child and, therefore, is not final in nature.\u201d) (citations omitted), and Owenby, 357 N.C. at 145, 579 S.E.2d at 267 (\u201c[A] termination of parental rights order completely and permanently severs all rights and obligations of the parent to the child and the child to the parent[.]\u201d) (citation omitted).\nWe also note that in In re T.K., D.K., T.K., & J.K., 171 N.C. App. 35, 613 S.E.2d 739, aff'd 360 N.C. 163, 622 S.E.2d 494 (2005), we affirmed a trial court\u2019s permanency planning order, holding that the trial court properly made findings as to the best interest of the children. Judge Tyson dissented in part, and argued that the trial court had failed to follow the standards set out in Moore, that denial of visitation rights \u201ceffectively terminated respondent\u2019s parental rights,\u201d T.K., 171 N.C. App. at 42, 613 S.E.2d at 743, and that the \u201ctrial court erred by denying respondent all visitation rights . . . without finding her to be unfit or engaging in conduct inconsistent with her parental rights. Absent proper findings supported by clear, cogent, and convincing evidence, the trial court\u2019s conclusions of law are erroneous[.]\u201d Id. at 44, 613 S.E.2d at 744-45 (citing Moore). Our Supreme Court rejected this opportunity to ratify or adopt the holding of Moore, and affirmed the majority opinion.\nPrior to the decision in Moore, binding precedent consistently held that (1) the standard in a custody dispute between a child\u2019s parents is the best interest of the child; (2) the applicable burden of proof is the preponderance of the evidence; (3) the principles that govern a custody dispute between a parent and a non-parent are irrelevant to a custody action between parents; and (4) a trial court complies with N.C. Gen. Stat. \u00a7 50-13.5(i) if it makes the finding set out in the statute. Moore does not acknowledge these cases or articulate a basis on which to distinguish it from earlier cases. We conclude that Moore does not control the outcome of this case, and that defendant is not entitled to relief based on Moore.\nDefendant also argues that the trial court\u2019s finding that visitation between defendant and the minors would not be in the children\u2019s best interest is not supported by its other findings. We reject this argument and note the trial court\u2019s extensive findings, quoted above. We conclude that the trial court did not commit reversible error by denying defendant visitation and that the trial court\u2019s ruling in this regard should be affirmed.\nIII. Child Support\nIn his next argument, defendant contends that the trial court erred by (1) calculating retroactive child support based upon the child support guidelines, rather than evidence of plaintiff\u2019s actual expenditures; (2) applying the 2011 guidelines to his retroactive child support obligation, rather than the 2006 guidelines; (3) imputing an amount of income to him that was not supported by proper findings; (4) awarding plaintiff a vehicle without determining its value; and (5) finding that defendant had willfully refused to pay any child support without excuse or explanation. We agree in part.\nA. Calculation of Retroactive Child Support\n\u201c \u2018Child support awarded prior to the time a party files a complaint is properly classified as retroactive child support. . . . Child support awarded, however, from the time a party files a complaint for child support to the date of trial is . . . [termed] prospective child supports ]\u2019 \u201d Carson v. Carson, 199 N.C. App. 101, 105, 680 S.E.2d 885, 888 (2009) (quoting Taylor v. Taylor, 118 N.C. App. 356, 361, 455 S.E.2d 442, 446 (1995), rev\u2019d on other grounds, 343 N.C. 50, 468 S.E.2d 33 (1996) (internal citations omitted)).\nN.C. Gen. Stat. \u00a7 5043.4(c) states that the trial \u201ccourt shall determine the amount of child support payments by applying the presumptive guidelines established pursuant to subsection (cl) of this section.\u201d The guidelines in effect at the time of this hearing state that\n[i]n cases involving a parent\u2019s obligation to support his or her child for a period before a child support action was filed (i. e., cases involving claims for \u201cretroactive child support\u201d or \u201cprior maintenance\u201d), a court may determine the amount of the parent\u2019s obligation (a) by determining the amount of support that would have been required had the guidelines been applied at the beginning of the time period for which support is being sought, or (b) based on the parent\u2019s fair share of actual expenditures for the child\u2019s care....\nStanding alone, this provision would allow a trial court to calculate retroactive child support by reference to the guidelines. However, in Robinson v. Robinson, 210 N.C. App. 319, 333, 707 S.E.2d 785, 795 (2011), we held that \u201c \u2018[retroactive child support payments are only recoverable for amounts actually expended on the child\u2019s behalf during the relevant period.\u2019 Therefore, a party seeking retroactive child support must present sufficient evidence of past expenditures made on behalf of the child, and evidence that such expenditures were reasonably necessary.\u201d (quoting Rawls v. Rawls, 94 N.C. App. 670, 675, 381 S.E.2d 179, 182 (1989), and citing Savani v. Savani, 102 N.C. App. 496, 501, 403 S.E.2d 900, 903 (1991)).\nThe rule stated in the Guidelines conflicts with the holding of Robinson. We have held that:\nNowhere in the statute does the legislature authorize the Conference to override existing case law in formulating the Guidelines. Although the Guidelines are formulated by the Conference of Chief District Judges pursuant to authority granted them by the legislature in N.C. Gen. Stat. \u00a7 50-13.4(cl), the Conference is not a legislative body, and the Guidelines are not codified in the North Carolina General Statutes. . . . Therefore, we find that if the trial court follows the Guidelines in awarding retroactive child support in cases involving unincorporated separation agreements, instead of controlling case law, the court is in error.\nCarson, 199 N.C. App. at 107, 680 S.E.2d at 889. Carson and Robinson, construed together, require that an award of retroactive child support be supported by evidence of plaintiff\u2019s actual expenditures for the children during the period for which she seeks retroactive child support.\nPlaintiff acknowledges the cases cited above, but argues that \u201cthe Court of Appeals was mistaken in its decision in Robinson.\u201d However, we \u201care bound by opinions of prior panels of this Court deciding the same issue.\u201d Easton v. J.D. Denson Mowing, 173 N.C. App. 439, 441, 620 S.E.2d 201, 202 (2005) (citing Civil Penalty). We conclude that this issue is controlled by Robinson and Carson, and that the trial court\u2019s award of retroactive child support must be reversed and remanded for findings on plaintiff\u2019s actual expenditures for the children during the relevant time period.\nB. Annlication of 2011 Guidelines\nNext, defendant argues that the trial court erred by calculating his retroactive child support obligation using the 2011, as opposed to the 2006, guidelines. However, as we have held that the trial court erred by using the guidelines to calculate retroactive child support, we do not reach this argument.\nO. Imputation of Income\nDefendant argues next that the trial corut erred in determining the amount of income it imputed to defendant. The trial court imputed to defendant an annual income of approximately $50,000. Defendant argues that this amount was not supported by the trial court\u2019s other findings or the evidence. We agree and remand for the trial court to make additional findings as to defendant\u2019s earning ability.\n\u201cGenerally, a party\u2019s ability to pay child support is determined by that party\u2019s actual income at the time the award is made. A party\u2019s capacity to earn may, however, be the basis for an award where the party \u2018deliberately acted in disregard of his obligation to provide support.\u2019 Before earning capacity may be used as the basis of an award, there must be a showing that the actions reducing the party\u2019s income were taken in bad faith to avoid family responsibilities. . . . [T]his showing may be met by a sufficient degree of indifference to the needs of a parent\u2019s children.\u201d McKyer v. McKyer, 179 N.C. App. 132, 146, 632 S.E.2d 828, 836 (2006) (citing Atwell v. Atwell, 74 N.C. App. 231, 236, 328 S.E.2d 47, 50 (1985), quoting Sharpe v. Nobles, 127 N.C. App. 705, 708, 493 S.E.2d 288, 290 (1997) (internal citation omitted), and citing Bowers v. Bowers, 141 N.C. App. 729, 732, 541 S.E.2d 508, 510 (2001)). In this case, defendant does not challenge the trial court\u2019s findings as to the effect of his intentional \u201ccourse of sexually abusing\u201d his daughter and the resultant loss of the licenses he needed to continue his previous career as a stockbroker and insurance agent, or the trial court\u2019s decision to impute income to him. What defendant does argue is that the trial court\u2019s ruling on the amount of income imputed to him was not supported by its findings. The court\u2019s findings on the issue of defendant\u2019s earning capacity include the following:\n109. The Defendant earned a gross sum of One . . . ($100,000.00) in the year 2005 and if he had continued to [sell] insurance and be licensed as a. .. Stock Broker, he could have earned not less than . . . ($50,000.00) per year each year since that time.\n115. The Defendant has no living expenses as his wife, a banker with BB&T, apparently provides for him....\n116. The Defendant testified that he could not secure employment in his former employment as an insurance salesman or stock broker because of his felony convictions.\n117. The Defendant reported Zero income tax in 2009 despite apparently working as a farrier and earning a gross income of... ($8,000.00). He also used business expenses deductions in 2009 for a portion of his home which he admitted that he did not own or pay for.\n118. In 2010, he indicated that he had lost... ($10,086,00) in income from his employment as a farrier, but this included... ($15,628.00) in car and truck expenses and... ($7,480.00) in supplies.\n119. The Defendant\u2019s tax returns for 2009 and 2010 were not creditable evidence of his earning capacity.\n124. In the present case, before his arrest and conviction, the Defendant father was employed as an insurance salesman and stock broker, and capable of earning a gross salary of at least... ($100,000.00) per year, a net salary of ... ($50,000.00), or a monthly salary of... ($4,167.00) per month at a minimum.\n132. . . . Defendant\u2019s income from all sources is imputed to be ... ($4,167.00) per month.\nThe court found that defendant had previously earned $100,000 and imputed a current income of approximately $50,000, or half of his previous salary. However, the findings do not establish any basis for the court\u2019s imputation in 2011 of half of what he earned in 2005, as opposed to some other fraction or amount. \u201c[T]he findings of fact on this issue are insufficient to support the trial court\u2019s determination of the amount of income that should be imputed to [defendant], A trial court must \u2018make sufficient findings of fact and conclusions of law to allow the reviewing court to determine whether a judgment, and the legal conclusions that underlie it, represent a correct application of the law.\u2019 \u201d McKyer, 179 N.C. App. at 147-48, 632 S.E.2d at 837 (quoting Spicer v. Spicer, 168 N.C. App. 283, 287, 607 S.E.2d 678, 682 (2005)) (emphasis in original). We conclude that the court\u2019s determination that it was appropriate to impute income to defendant should be upheld, but that the order must be remanded for findings detailing how the trial court arrives at the amount of income to be imputed to defendant.\nD. Transfer of Vehicle to Plaintiff\nDefendant argues next that the trial court erred by awarding plaintiff a 1997 Ford Expedition as an \u201cadditional form of child support\u201d without determining the vehicle\u2019s value and deducting it from the child support award. We disagree.\nDefendant cites N.C. Gen. Stat. \u00a7 50-13.4(e):\n(e) Payment for the support of a minor child shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property of any interest therein, or a security interest in or possession of real property, as the court may order. The court may order the transfer of title to real property solely owned by the obligor in payment of arrearages of child support so long as the net value of the interest in the property being transferred does not exceed the amount of the arrearage being satisfied....\nDefendant notes that if the trial court orders the transfer of real property in payment of child support arrearages it must determine the property\u2019s value. He argues that an \u201canalogous situation exists here,\u201d that the trial court \u201cshould have determined the Vehicle\u2019s value and deducted that amount from the total child support award\u201d and that the court\u2019s \u201cfailure to do so constitutes error.\u201d However, N.C. Gen. Stat. \u00a7 50-13.4(e) does not require the trial court to determine the value of personal property applied towards child support arrearage and defendant does not offer any support for his contention that such a transfer is \u201canalogous\u201d to a transfer of real property or any authority for us to supplement the statute with an additional requirement not found therein.\nAnd, defendant does not dispute the trial court\u2019s finding of fact that:\n144. The only vehicle the Plaintiff [had] available to her is a 1997 Ford Expedition until May 2010 which has 285,000 miles on it as of the date of this hearing which she has had since the parties\u2019 separation although this vehicle has been titled to the Defendant. She is seeking this vehicle as an additional form of child support from the Defendant. The Defendant has agreed for said in kind child support to be also paid since the Plaintiff has maintained all expenses of this vehicle. The Defendant will sign over title of said vehicle to the Plaintiff on or before June 15, 2012....\nThus, defendant concedes that (1) the vehicle was fifteen years o\u00edd and had 285,000 miles on it at the time of the hearing; (2) although it had been titled in his name, plaintiff had assumed responsibility for \u201call expenses\u201d of the vehicle; and (3) he consented to transfer of the vehicle as an additional form of child support.\n\u201c[T]o obtain relief on appeal, an appellant must not only show error, but that appellant must also show that the error was material and prejudicial, amounting to denial of a substantial right that will likely affect the outcome of an action.\u201d Starco, Inc. v. AMG Bonding & Ins. Servs., 124 N.C. App. 332, 335, 477 S.E.2d 211, 214 (1996) (citation omitted). Defendant does not assert any prejudice from the court\u2019s alleged error. In addition, defendant does not dispute that he consented to transfer the vehicle to plaintiff, a finding supported by his testimony. Given the defendant\u2019s failure to articulate a legal basis for interpreting N.C. Gen. Stat. \u00a7 50-13.4(e) in a manner not supported by the statute\u2019s text, any prejudice arising from the court\u2019s alleged error, or any reason to grant relief on the basis of a transfer to which he consented, we decline to hold that the court erred by transferring the 1997 vehicle to plaintiff without making a specific finding as to its value.\nE. Failure to Pav Anv Child Support After August 2006\nIn defendant\u2019s next argument, he argues that the trial court erred by finding \u201cthat, although [he] has resources to pay some child support, he [had] \u2018willfully failed to pay any child support without excuse.\u2019 \u201d Defendant does not dispute that he failed to pay anv child support after August 2006, but argues that he presented evidence of his inability to find employment. However, the court was not required to believe defendant\u2019s testimony. We hold that this finding was supported by evidence in the record.\nIII. Attorney\u2019s Fees\nIn his final argument, defendant contends that the trial court erred by awarding attorney\u2019s fees to plaintiff. Defendant argues that the trial court erred in finding that defendant had the ability to pay attorney\u2019s fees, basing its award of attorney\u2019s fees in part on its finding that defendant had acted in bad faith, and finding that plaintiff had insufficient means to pay attorney\u2019s fees. We agree in part.\n1. Standard of Review\nN.C. Gen. Stat. \u00a7 50-13.6 (2013) states that in any proceeding for child custody or support:\n[T]he court may in its discretion order payment of reasonable attorney\u2019s fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit. Before ordering payment of a fee in a support action, the court must find as a fact that the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time of the institution of the action or proceeding[.]...\n\u201cTo award attorney\u2019s fees in an action for custody and support,\n[t]he trial court must make specific findings of fact relevant to: (1) The movant\u2019s ability to defray the cost of the suit, specifically that the movant is unable to employ counsel so that he may proceed to meet the other litigant in the suit; (2) whether the movant has initiated the action in good faith; (3) the attorney\u2019s skill; (4) the attorney\u2019s hourly rate charged; and (5) the nature and extent of the legal services performed.\nHennessey v. Duckworth,_N.C. App._,_, 752 S.E.2d 194,__ (2013) (quoting Cameron v. Cameron, 94 N.C. App. 168, 172, 380 S.E.2d 121, 124 (1989) (citations omitted). Pursuant to N.C. Gen. Stat. \u00a7 50-13.6, in a custody action, a trial court \u201chas the discretion to award attorney\u2019s fees to an interested party when that party is (1) acting in good faith and (2) has insufficient means to defray the expense of the suit. The facts required by the statute must be alleged and provedf.] ... Whether these statutory requirements have been met is a question of law, reviewable on appeal.\u201d Hudson v. Hudson, 299 N.C. 465, 472, 263 S.E.2d 719, 723 (1980).\n2. Analysis\nThe trial court made the following findings:\n1. This action for child custody was brought by the Plaintiff in good faith and she is without sufficient funds to defray the expenses of this custody lawsuit including all of her attorneys\u2019 fees.\n2. As this is a proceeding for child support of the parties\u2019 three minor children, the Plaintiff may be entitled to the entry of an Order requiring the [defendant] to pay some or all of her reasonable attorneys\u2019 fees pursuant to N.C.G.S. Section 50-13.6.\n3. The Defendant, who is the party who is going to be ordered to furnish support, has refused to provide support of any type, and has refused to provide support which is adequate under the circumstances existing at the time of the institution of this action or proceeding.\nDefendant does not dispute that these findings meet the statutory requirements discussed above. He does not challenge the trial court\u2019s determination of a reasonable amount of attorney\u2019s fees, which we affirm. However, defendant raises other arguments about the court\u2019s award of attorney\u2019s fees to plaintiff.\nDefendant argues first that the trial court erred by finding that he \u201chas resources\u201d available to pay attorney\u2019s fees. Defendant directs our attention to evidence he presented tending to show that he faces economic challenges. However, the trial court was not required to find his evidence credible. He also argues that the trial court should not have considered the fact that his living expenses are being paid by his wife, because she has no legal obligation to support his children. However, \u201cwhere a party\u2019s new spouse shares responsibility for the party\u2019s expenses and needs, it is proper for the court to consider income received by the new spouse[.]\u201d Harris v. Harris, 188 N.C. App. 477, 487, 656 S.E.2d 316, 321-22 (2008) (citing Wyatt v. Wyatt, 35 N.C. App. 650, 651-52, 242 S.E.2d 180, 181 (1978).\nThe underlying premise of this argument is that before it could award attorney\u2019s fees to plaintiff, the trial court had to malee findings about his ability to pay these fees. Defendant cites no authority for this proposition and our Supreme Court has held that \u201c \u2018we do not believe that the determination of whether a party has sufficient means to defray the necessary expenses of the action requires a comparison of the relative estates of the parties\u2019 \u201d and \u201cthat N.C.G.S. \u00a7 50-13.6 does not require the trial court to compare the relative estates of the parties[.]\u201d Van Every v. McGuire, 348 N.C. 58, 59-60, 497 S.E.2d 689, 690 (1998) (quoting Taylor, 343 N.C. at 57, 468 S.E.2d at 37. We conclude that the trial court was not required to find that defendant \u201chad resources\u201d available in order to award attorney\u2019s fees to plaintiff, making it unnecessary for us to analyze the evidentiary support for this finding of fact.\nDefendant also argues that the trial court erred by basing its award of attorney\u2019s fees on his \u201cbad faith in requesting custody or visitation.\u201d This argument lacks merit. In Finding No. 145, the trial court stated that:\n145. Moreover, the Court, as a mixed finding of fact and conclusion of law, determines that the Defendant\u2019s insistence upon a trial seeking custody or visitation of his children and defending against the claims of his former wife, the Plaintiff, for the same and for her claims of child support are in bad faith, not well taken, and he has adequate resources available to him to reimburse her for some or all of her attorney\u2019s fees.\nDefendant concedes that \u201cthis Finding/Conclusion was not included in the findings related to the attorney\u2019s fees award[.]\u201d There is no evidence that the trial court\u2019s award of attorney\u2019s fees to plaintiff was \u201cbased on\u201d its passing reference to bad faith in this finding. Defendant is not entitled to relief based upon this argument.\nDefendant also challenges the evidentiary support for the trial court\u2019s finding that plaintiff \u201cis without sufficient funds to defray the expenses of this custody lawsuit including all of her attorneys\u2019 fees[.]\u201d The trial court made the following findings regarding plaintiffs income, expenses, and estate:\n102. The Plaintiff has been a nurse registered by the State of North Carolina from 1987 through 2007, and has been a Registered Nurse in Kansas from 1999 until [the] present.\n103. The Plaintiff is presently employed with the Smith Center School District as the School Nurse. She also runs the concession stand to earn extra money. The Plaintiff\u2019s gross monthly earnings from all sources is ... ($3,033.42). The Plaintiff has earned approximately... ($3,033.00) per month from all sources since August 2006.\n104. The Plaintiff paid a total of. . . ($7,740.70) in premiums for the three minor children\u2019s, Amanda, Allysa, and Noah, health insurance coveragef.]...\n105. The children were approved for Health Wave coverage on October 26, 2009, so the Plaintiff could secure health insurance on her three minor children at no additional cost.\n106. The Plaintiff has sought to recover a portion of the out of pocket expenses paid by her ... as a portion of the retroactive and prospective child support in the percentage of the Plaintiff\u2019s income to the Defendant\u2019s income as hereinafter determined and imputed by the Court.\n132. The Plaintiff\u2019s income from all sources is \u25a0. . . ($3,033.00) per month[.]\nThe court\u2019s findings are sufficient with regards to plaintiff\u2019s income. However, the trial court made no findings as to her expenses or her assets and estate. We remand for additional findings to support the trial court\u2019s finding that plaintiff had insufficient means to defray the cost of counsel.\nConclusion\nWe affirm the trial court\u2019s ruling denying defendant visitation with the minor children, its determination that plaintiff was entitled to child support, its ruling that it was proper to impute income to defendant, and its transfer of the 1997 vehicle to plaintiff. We reverse and remand the order with regard to the amount of retroactive child support to which plaintiff may be entitled, the amount of income that may be imputed to defendant, and for additional findings regarding plaintiff\u2019s expenses as it pertains to her claim for attorney\u2019s fees. In its discretion, the trial court may take such additional evidence as it deems necessary.\nAFFIRMED IN PART, REVERSED AND REMANDED IN PART.\nJudges STEPHENS and DAVIS concur.\n. On 12 June 2007 the minor children\u2019s paternal grandparents (intervenors) moved to intervene and sought visitation with the minor children. Their motion was granted on 6 August 2007. The trial court granted the intervenors visitation. The intervenors are not a party to this appeal.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Pritchett & Burch, PLLG, by Lloyd C. Smith, Jr., Lloyd C. Smith, III, andR. Gray Jemigan for plaintiff-appellee.", "Ward and Smith, PA., by John M. Martin, for defendant-appellant." ], "corrections": "", "head_matter": "ALANA WILLIAMS RESPESS, Plaintiff v. MURPHY TODD RESPESS, Defendant and BOYD AND SUSAN RESPESS, Intervenors\nNo. 13-760\nFiled 4 March 2014\n1. Child Visitation \u2014 best interests of children \u2014 findings\nThe trial court did not commit reversible error by denying defendant visitation with his minor children. Although defendant argued, based on the holding of Moore v. Moore, 160 N.C. App. 569, that the trial court did not comply with the provisions of N.C.G.S. \u00a7 50-13.5(i), the holding of Moore diverged sharply from the controlling precedent and did not control this case. In this case, the trial court found that it would not be in the children\u2019s best interests to have any visitation with defendant and this ultimate finding of fact was supported by numerous evidentiary findings of fact.\n2. Child Custody and Support \u2014 retroactive child support\u2014 remanded \u2014 actual expenditures\nA trial court\u2019s award of retroactive child support was reversed and remanded for further findings. Carson v. Carson, 199 N.C. App. 101, and Robinson v. Robinson, 210 N.C. App. 319, construed together,.require that an award of retroactive child support be supported by evidence of plaintiff\u2019s actual expenditures for the children during the period for which she seeks retroactive support.\n3. Child Custody and Support \u2014 support\u2014imputed income\nThe trial court erred in a child support action in its determination of the amount of income it imputed to defendant where that amount was not supported by the findings or the evidence. Defendant did not challenge the trial court\u2019s findings as to the effect of his intentional \u201ccourse of sexually abusing\u201d his daughter and the resultant loss of his career as a stockbroker and insurance agent and the court\u2019s determination that it was appropriate to impute income to defendant should be upheld. However, the order must be remanded for findings detailing how the trial court arrived at the amount of income to be imputed to defendant.\n4. ChildCustodyandSupport \u2014 childsupport\u2014automobile\u2014value\nThe trial court did not err by awarding plaintiff a 1997 Ford Expedition as an \u201cadditional form of child support\u201d without determining the vehicle\u2019s value and deducting it from the child support award. N.C.G.S. \u00a7 50-13.4(e) does not require the trial court to determine the value of personal property applied toward a child support arrearage; defendant did not offer any support for his contention that such a transfer is analogous to a transfer of real property; and defendant did not offer any authority for the Court of Appeals to supplement the statute with an additional requirement not found therein.\n5. Child Custody and Support \u2014 support\u2014willful refusal to pay\nThe trial court did not err by finding that defendant had willfully failed to pay any child support without excuse where defendant presented evidence of his inability to find employment. The trial court was not required to believe defendant\u2019s testimony and the trial court\u2019s finding was supported by evidence in the record.\n6. Child Custody and Support \u2014 attorney fees findings \u2014 plaintiffs expenses\nA child support and custody case awarding attorney fees to plaintiff was remanded for additional findings where the trial court made no findings as to plaintiff\u2019s expenses or her assets and estate. Defendant cited no authority for the proposition that the trial court had to make findings about his ability to pay before it could award attorney\u2019s fees to plaintiff, and the North Carolina Supreme Court has held that a determination of whether a party has sufficient means to defray the necessary expenses of the action does not require a comparison of the relative estates of the parties.\nAppeal by defendant from order entered 16 October 2012 by Judge Christopher B. McLendon in Beaufort County District Court. Heard in the Court of Appeals 11 December 2013.\nPritchett & Burch, PLLG, by Lloyd C. Smith, Jr., Lloyd C. Smith, III, andR. Gray Jemigan for plaintiff-appellee.\nWard and Smith, PA., by John M. Martin, for defendant-appellant." }, "file_name": "0611-01", "first_page_order": 621, "last_page_order": 647 }