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  "name": "GRANT A. LOOSVELT, Plaintiff/Father v. STACY LEIGH BROWN, Defendant/Mother",
  "name_abbreviation": "Loosvelt v. Brown",
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    "judges": [
      "Judges McGEE and BRYANT concur."
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    "parties": [
      "GRANT A. LOOSVELT, Plaintiff/Father v. STACY LEIGH BROWN, Defendant/Mother"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nPlaintiff appeals order regarding permanent child custody and child support. For the following reasons, we affirm in part and reverse and remand in part.\nI. Background\nPlaintiff, a resident of Los Angeles, California, filed a complaint in North Carolina against defendant, a resident of Charlotte, North Carolina. Plaintiff sought to establish the paternity of a child bom out of wedlock, to determine custody, and an order addressing the parties\u2019 support obligations. On 7 December 2011, defendant filed an answer and counterclaims seeking child custody, child support, and attorney fees. On or about 10 April 2012, defendant filed a request \u201cto upwardly deviate from the North Carolina Child Support Guidelines[.]\u201d On 7 May 2012, plaintiff replied to defendant\u2019s counterclaims admitting \u201cit is in the best interest of the minor child that his primary custody be awarded to\u201d defendant, stating that \u201cchild support should be awarded in accordance with North Carolina law[,]\u201d and denying allegations related to defendant\u2019s reguest for attorney fees.\nOn 24 May and 20 June 2012, both nunc pro tunc to 16 April 2012, the trial court entered temporary child support orders. The trial court ordered that plaintiff make monthly child support payments in the amount of $2,317.00. Defendant\u2019s claim for retroactive child support was to be heard at a later date along with her claim for attorney fees.\nOn 1 April 2013, nunc pro tunc to 4 January 2013, the trial court entered a corrected order regarding permanent child custody and child support finding that because the aggregate of the parties\u2019 adjusted gross incomes exceeded $25,000.00 per month, the North Carolina Child Support Guidelines were not controlling for this case. The order established paternity and custody of the minor child, set plaintiff\u2019s retroactive and prospective child support obligations as well as arrearages, and awarded attorney fees to defendant. As to the child support obligations and attorney fees, the trial court ordered:\n4. Effective November 1, 2012, and continuing on the first (1st) day of each month thereafter until modified by this Court. Plaintiff/Father shall pay child support to Defendant/Mother in the amount of $7,342.84 per month. All payments shall be made directly to Defendant/Mother on or before the first (1st) day of each month.\n5. PlaintiflTFather shall be responsible for ninety percent (90%) and Defendant/Mother shall be responsible for 10 percent (10%) of all uninsured medical, dental, optical, orthodontic, therapy, counseling, prescription drug expenses, and any other expenses incurred by the minor child in connection with his healthcare that is not covered by the major medical insurance providers). In the event Defendant/Mother is required to advance any of the foregoing expenses to be paid by Plamtiff/Father as set forth above, Plaintiff/Father shall reimburse Defendant/Mother within thirty (30) days of the receipt of written verification of said expenses.\n6. Plaintiff/Father\u2019s child support arrearage in the amount of $15,077.52 shall be paid in full on or before March 5, 2013.\n7. Plaintiff/Father\u2019s retroactive child support obligation in the amount of $39,655.27 shall be paid in full on or before March 5, 2013.\n8. Defendant/Father shall pay to PlaintifRMother\u2019s counsel the sum of $24,942.21 to partially defray Plaintiff/ Mother\u2019s legal fees. Defendant/Father shall make this payment directly to Claire J. Samuel, James, McElroy & Diehl, P.A., 600 South College Street, Charlotte, NC 28202 on or before March 15, 2013.\nPlaintiff appeals.\nII. Retroactive Child Support\nPlaintiff first argues that the trial court erred in awarding retroactive child support because the trial court \u201c[f]ailed to [m]ake [f]indings of [f]act to [sjupport its [a]ward[,]\u201d lacked evidence to support its award, and failed to apportion the expenses incurred between both parties. Our Court has stated:\nan order for child support must be based upon the interplay of the trial court\u2019s conclusions of law as to (1) the amount of support necessary to meet the reasonable needs of the child and (2) the relative ability of the parties to provide that amount. These conclusions must be based upon factual findings sufficiently specific to indicate that the trial court took due regard of the factors enumerated in the statute, namely, the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case.\nThese findings must, of course, be based upon competent evidence, and it is not enough that there may be evidence in the record sufficient to support findings which could have been made. The trial court must itself determine what pertinent facts are actually established by the evidence before it. In short, the evidence must support the findings, the findings must support the conclusions, and the conclusions must support the judgment; otherwise, effective appellate review becomes impossible.\nAtwell v. Atwell, 74 N.C. App. 231, 234, 328 S.E.2d 47, 49 (1985) (citations, quotation marks, and ellipses omitted). Furthermore,\n[c]hild support orders entered by a trial court are accorded substantial deference by appellate courts and our review is limited to a determination of whether there was a clear abuse of discretion. Under this standard of review, the trial court\u2019s ruling will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision. In a case for child support, the trial court must make specific findings and conclusions. The purpose of this requirement is to allow a reviewing court to determine from the record whether a judgment, and the legal conclusions which underlie it, represent a correct application of the law.\nLeary v. Leary, 152 N.C. App. 438, 441-42, 567 S.E.2d 834, 837 (2002) (citations and quotation marks omitted).\n\u201cThe ultimate objective in setting awards for child support is to secure support commensurate with the needs of the children and the ability of the obligor to meet the needs.\u201d Robinson v. Robinson, 210 N.C. App. 319, 333, 707 S.E.2d 785, 795 (2011) (citation, quotation marks, and brackets omitted). Retroactive child support encompasses \u201c[c]hild support awarded prior to the time a party files a complaint[.]\u201d Carson v. Carson, 199 N.C. App. 101, 105, 680 S.E.2d 885, 888 (2009) (citation and quotation marks omitted). \u201cHowever, retroactive child support payments are only recoverable for amounts actually expended on the child\u2019s behalf during the relevant period. 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 Robinson, 210 N.C. App. at 333, 707 S.E.2d at 795 (citation, quotation marks, and brackets omitted).\nA. Findings of Fact as to Retroactive Child Support Expenses\nThe trial court awarded defendant retroactive child support from October 2010, the date of the child\u2019s birth, through November 2011, the month following the filing of plaintiff\u2019s complaint. The retroactive child support award of $39,655.27 was reimbursement for the following:\n\u2022 \u201c$5,160 in nursery expenses prior to [the child\u2019s] birth\u201d\n\u2022 \u201c806.13 in maternity clothes prior to [the child\u2019s] birth\u201d\n\u2022 \u201c$460.00 in additional daycare cost for [the child] from October 28, 2011 through March 20, 2012\u201d\n\u2022 \u201c$1,313.54 in nursery expenses after [the child\u2019s] birth\u201d\n\u2022 \u201c$6,485.67 in expenses related to the minor child\u2019s basic needs (i.e. baby food, diapers, formula, and clothing) after the minor child\u2019s birth\u201d\n\u2022 \u201c$11,520.00 to provide work-related child care\u201d in 2011\n\u2022 \u201c$8,800.00 to provide work-related child care\u201d in 2010\n\u2022 \u201c5,479.93 in expenses related to the minor child\u2019s birth\u201d\nBecause these expenses raise different evidentiary and legal issues, we will separately address them.\n1. Nursery Expenses and Maternity Clothes Prior to Birth\nThe award for expenses incurred prior to the child\u2019s birth appears to raise a novel legal issue. We have found no authority, either in North Carolina or in any other state that addresses recovery of expenses incurred prior to the child\u2019s birth for nursery expenses or maternity clothes as retroactive child support. Apparently, defendant did not find any law to support this proposition either, as her argument is that \u201cthe fact that a \u2018father\u2019s duty to support his child arises when the child is bom[,]\u2019 Tidwell v. Booker, 290 N.C. 98, 116, 225 S.E.2d 816, 827 (1976), does not preclude awarding retroactive child support covering expenditures incurred before a child\u2019s birth.\u201d Defendant seeks to analogize these expenses to medical expenses under North Carolina General Statute \u00a7 49-15. But we find that because (1) the child support obligation does not arise until birth and (2) North Carolina has a statute which limits recovery of pre-birth expenses to medical expenses, there is no legal basis for an award of any other types of expenses incurred prior to birth. See N.C. Gen. Stat. \u00a7 49-15 (2011); Freeman v. Freeman, 103 N.C. App. 801, 803, 407 S.E.2d 262, 263 (1991).\n\u201cA parent\u2019s obligation to support his child arises when the child is bom, not when the courts order a specific amount to be paid.\u201d Freeman v. Freeman, 103 N.C. App. 801, 803, 407 S.E.2d 262, 263 (1991) (emphasis added). As the legal obligation arises when the child is bom, expenses incurred prior to the child\u2019s birth cannot be considered as retroactive child support; see Robinson, 210 N.C. App. at 333, 707 S.E.2d at 795; Freeman, 103 N.C. App. at 803, 407 S.E.2d at 263, the only exception to this rule is North Carolina General Statute \u00a7 49-15 which allows for \u201cmedical expenses incident to the pregnancy and birth of the child.\u201d N.C. Gen. Stat. \u00a7 49-15. While many mothers reasonably incur expenses of many types in preparation for the birth of a baby, our General Assembly has provided for recovery of only one type of pre-birth expense, medical expenses, pursuant to North Carolina General Statute \u00a7 49-15. See id. Medical expenses related to the pregnancy are necessarily incurred before birth of the child, but there is no evidence or argument that these nursery expenses and maternity clothes could qualify as \u201cmedical expenses\u201d under even the most generous definition. Id. Accordingly, we must reverse the award for nursery expenses and maternity clothes incurred prior to the child\u2019s birth.\n2. Nursery Expenses and Basic Needs After Birth\nFor the nurseiy expenses incurred after the child\u2019s birth and the expenses incurred for the child\u2019s basic needs, we conclude there was not sufficient evidence to support an award of these expenses as retroactive child support because defendant did not present evidence that these expenses were actually incurred prior to the filing of the complaint. Defendant herself concedes that her evidence required the trial court \u201cto draw the reasonable inference\u201d regarding the dates of the expenses. Defendant\u2019s exhibit listing the expenses showed only the merchant from which the purchase was made and the amount of the expense; defendant does not direct our attention to any evidence before the trial court, including her testimony, providing any dates for when the expenses were incurred. As retroactive child support may only be awarded for expenses incurred \u201cprior to the time a party files a complaint],]\u201d Carson, 199 N.C. App. 105, 680 S.E.2d at 888, the trial court needed actual evidence upon which to determine when such expenses were incurred. Defendant\u2019s evidence did not provide sufficient detail as to the dates that these expenses were incurred such that the trial court could reasonably find that they were incurred prior to the filing of the complaint. We reverse the award of nursery expenses and basic needs expenses incurred after the child\u2019s birth.\n3. Daycare, Child Care, and Birth Expenses\nFor the expenses regarding daycare, child care, and the child\u2019s birth, plaintiff does not challenge the timing of these expenses or the evidence supporting the amounts awarded. Thus, the trial court\u2019s findings as to these expenses are binding on this court. See Powers v. Tatum, 196 N.C. App. 639, 640, 676 S.E.2d 89, 91 (\u201cWhere [a party] fails to challenge any of the trial court\u2019s findings of fact on appeal, they are binding on the appellate court].]\u201d), disc. review denied, 363 N.C. 583, 681 S.E.2d 784. As to these expenses, plaintiff challenges only the trial court\u2019s findings as to his ability to pay the award of retroactive child support, arguing that the trial court was required to make findings of fact regarding plaintiff\u2019s \u201cability to pay such amounts \u2018during the time for which reimbursement is sought],]\u2019 \u201d and \u201cthe trial court was required to exercise some amount of discretion to determine what portion of the expenses ... [defendant] purportedly incurred . .. representing] her share of support.\u201d As plaintiff\u2019s ability to pay child support is actually a broader issue implicating more than just daycare, child care, and birth expenses, we separately address it below.\nB. Ability to Pay Retroactive Child Support\nPlaintiff contends that the trial court was required to make findings regarding his ability to pay child support \u201cduring the period in which [the expenses] were purportedly incurred.\u201d In Hicks v. Hicks, this Court stated that the trial court must make findings as to the obligor\u2019s ability to pay during the time period of the retroactive support sought:\nWhat the defendant should have paid is not the measure of his liability to plaintiff. The measure of defendant\u2019s liability to plaintiff is the amount actually expended by plaintiff which represented the defendant\u2019s share of support. In determining this amount the court must take into consideration the needs of the children and the ability of the defendant to pay during the time for which reimbursement is sought. The plaintiff is not entitled to be compensated for support for the children provided by others, nor is she entitled to be reimbursed for sums expended by her for the support of the children which represent her share of support as determined by the trial judge, considering \u201cthe relative ability of the parties to provide support[.]\u201d\n34 N.C. App. 128, 130, 237 S.E.2d 307, 309 (1977) (emphasis added) (citations, quotation marks, and ellipses omitted). \u201c [T]he time for which reimbursement is sought[,]\u201d id., is not the time when this case was heard, as defendant contends - that would be the time at which reimbursement is sought - but is instead the time period during which the expenses were incurred. See Savani v. Savani, 102 N.C. App. 496, 502, 403 S.E.2d 900, 903 (1991) (\u201cAn award of retroactive child support must also take into account the defendant\u2019s ability to pay during the period in the past for which reimbursement is sought.\u201d (emphasis added)).\nHere, the trial court specifically found that \u201cPlaintiff/Father has the ability to pay the child support ordered herein\u201d and \u201cPlaintiff/Father\u2019s income is more than sufficient to cover the awards contained herein based on his monthly expenditures and income.\u201d Yet the trial court failed to make findings of fact as to plaintiff\u2019s ability to pay for the time period for which reimbursement was sought, specifically, from the pre-birth medical expenses incurred until the filing of the complaint, the relevant time period for retroactive child support. See Carson, 199 N.C. App. at 105, 680 S.E.2d at 888, see also N.C. Gen. Stat. \u00a7 49-15. Therefore, we reverse and remand the order for the trial court to make findings of fact as to plaintiff\u2019s ability to pay during that time period for which reimbursement was sought.\nC. Allotment of Retroactive Child Support Expenses\nIn addition, plaintiff raises a related issue of the trial court\u2019s apportionment of retroactive support. Plaintiff contends \u201cthe trial court was required to exercise some amount of discretion to determine what portion of the expenses . . . [defendant] purportedly incurred related to . . . [defendant\u2019s] share of support.\u201d We agree that \u201c[t]he measure of [plaintiff]\u2019s liability to [defendant] is the amount actually expended by [defendant] which represented the [plaintiff\u2019s] share of support.\u201d Hicks, 34 N.C. App. at 130, 237 S.E.2d at 309 (emphasis added). Here, the trial court awarded defendant 100% of each of the expenses listed pursuant to its award of retroactive child support; this indicates that the trial court failed to allot any portion of the retroactive child support expenses as defendant\u2019s responsibility. In contrast, we note that the trial court allocated to defendant 10% of the child\u2019s prospective \u201cuninsured medical, dental, optical, orthodontic, therapy, counseling, prescription drug expenses, and any other expenses incurred by the minor child in connection with his healthcare that is not covered by the major medical insurance provider(s)[;]\u201d we cannot discern from the findings in the order why defendant has responsibility for 10% of these prospective expenses but has no responsibility for the retroactive expenses.\nD. Summary as to Retroactive Child Support\nIn summary, as to the award of retroactive child support, we reverse the award for nursery expenses and maternity clothes prior to the child\u2019s birth because there is no legal basis for making such an award. We reverse the award for nursery expenses and basic needs after the birth because there was not sufficient evidence that such expenses were incurred prior to the filing of plaintiffs complaint. We reverse and remand the order as to the expenses for daycare, child care, and birth for the trial court to consider the plaintiffs ability to pay during the time for which reimbursement is sought, how these expenses should be apportioned between plaintiff and defendant, and to make any other findings of fact and conclusions of law necessary to support the award of retroactive child support.\nIII. Prospective Child Support\nPlaintiff next contends that the trial court erred in awarding prospective child support (\u201cchild support\u201d) because it failed \u201cto [m]ake [s]pecific [f]hidings of [f|act [c]onceming [plaintiffs] [i]ncome and [a] bility to [p]ay [c]hild [s]upport[,]\u201d based its award on plaintiff\u2019s income without considering the needs of the child, and abused its discretion in setting defendant\u2019s child support obligation and failing to \u201coffset\u201d plaintiff\u2019s child support obligation by such amount. Again, we note that we review the child support award to consider if the evidence supports the findings of fact, the findings support the conclusions of law, and the conclusions support the judgment. See Atwell, 74 N.C. App. at 234, 328 S.E.2d at 49.\nNorth Carolina General Statute \u00a7 50-13.4(c) requires the trial court to consider several factors when establishing a child support obligation:\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, the child care and homemaker contributions of each party, and other facts of the particular case.\nN.C. Gen. Stat. \u00a7 50-13.4 (2011). Plaintiff raises arguments regarding several of these factors and we will address each separately.\nA. Plaintiffs Income and Ability to Pay\nAs to plaintiffs income and ability to pay, the trial court made the following findings of fact:\n12. On October 16, 2012, Plaintiff/Father filed an Amended Financial Affidavit listing his average gross monthly income as being $24,409.66.\n16. The child support award set forth herein is necessary to meet the reasonable needs of the minor child related to his health, education and maintenance, having due regard to the estates, earning, conditions, accustomed standard of living of the child and of the parties.\n18. PlaintifPFather is an able-bodied man who is gainfully employed and fully capable of paying to Defendant/ Mother, for the benefit of the minor child, child support in the amount set forth herein.\n19. Plaintiff/Father is a cosmetic dentist in Beverly Hills and Los Angeles, California. Plaintiff/Father has served on the faculty at UCLA\u2019s School of Dentistry and is a member at Century City Hospital. PlaintiffTFather has also appeared on the ABC shows Extreme Makeover and Average Joe.\n20. PlaintiffFather has the ability to pay the child support ordered herein.\n21. Plaintiff/Father is a man with substantial income.\n22. PlaintiffiFather\u2019s spending is inconsistent with the income reported on his Amended Financial Affidavit.\n23. Plaintiff/Father\u2019s average monthly spending according to his testimony and his checking account statements for his Chase Checking Accounts ending #8427 and #8435 reflect that he spends an average of $88,617.80 per month.\n24. At the time of trial, Plaintiff/Father had no credit card debt.\n25. Plaintiff/Father owns and pays for two (2) luxury residences in Los Ang[e]les, California at a cost of approximately $12,000.00 per month.\n26. In nine and a half (9 \u00bd) months, Plaintiff/Father spent $31,322.85 on vacations or an average of $3,297.14 per month.\n27. In two (2) months, Plaintiff/Father spent $51,000.00 on jewelry, or an average of. $25,500.00 per month.\n28. PlamtiffTFather... spent $1,466.78 for alcohol in three (3) days.\n34. PlaintiffZFather has monthly shared family expenses of $15,446.54 and monthly individual expenses of $6,937.00, as reflected on his Amended Financial Affidavit.\n36. Plaintiff/Father should have a child support obligation of $7,342.84 per month ($5,148.84 (1/3 of Plaintiff/ Father\u2019s shared family expenses) +$2,194.00 ([the child\u2019s] individual expenses) = $7,342.84).\n38. Plaintiff/Father\u2019s child support obligation should be made effective to November 1, 2012.\n39. Plaintiff/Father currently has a child support arrearage of $15,077.52 through January 2013 ($7,342.84 x 3 months = $22,028.52 less $6,951.00 paid = $15,077.52).\n44. Plaintiff/Father should pay ninety percent (90%) of the minor child\u2019s uninsured medical expenses.\n46. The provisions of this Order regarding support of the minor child are fair and reasonable under the existing circumstances.\nOnly two of these findings address plaintiffs income: finding of fact number 12 which finds that his financial affidavit listed his average gross monthly income as $24,409.66, and finding of fact number 21 which finds that plaintiff \u201cis a man with substantial income.\u201d\nWhen a trial court is considering child support outside of the North Carolina child support guidelines, the trial court must make sufficient findings as to the parties\u2019 incomes and ability to pay to permit appellate review:\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. [N.C. Gen. Stat. \u00a7 50-13.4(c)].\nWhere, as here, the trial court sits without a jury, the judge is required to find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. The purpose of the requirement that the court make findings of those specific facts which support its ultimate disposition of the case is to allow a reviewing court to determine from the record whether the judgment - and the legal conclusions which underlie it - represent a correct application of the law. The requirement for appropriately detailed findings is thus not a mere formality or a rule of empty ritual; it is designed instead to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system.\nUnder G.S. 50-13.4(c), quoted supra, an order for child support must be based upon the interplay of the trial court\u2019s conclusions of law as to (1) the amount of support necessary to meet the reasonable needs of the child and (2) the relative ability of the parties to provide that amount. These conclusions must themselves be based upon factual findings specific enough to indicate to the appellate court that the judge below took due regard of the particular estates, earnings, conditions, [and] accustomed standard of living of both the child and the parents. It is a question of fairness and justice to all concerned. In the absence of such findings, this Court has no means of determining whether the order is adequately supported by competent evidence. It is not enough that there may be evidence in the record sufficient to support findings which could have been made. The trial court must itself determine what pertinent facts are actually established by the evidence before it, and it is not for an appellate court to determine de novo the weight and credibility to be given to evidence disclosed by the record on appeal.\nCoble v. Coble, 300 N.C. 708, 711-13, 268 S.E.2d 185, 189 (1980) (citations and quotation marks omitted); see also Atwell, 74 N.C. App. at 234, 328 S.E.2d at 49.\nIn Coble, the trial court had found that the \u201cplaintiff is in need of financial assistance for the support of the minor children and that defendant is capable of providing such assistance.\u201d Id. at 713, 268 S.E.2d at 189. Our Supreme Court noted that \u201c[t]his finding is more properly denominated a conclusion of law, since it states the legal basis upon which defendant\u2019s liability may be predicated under the applicable statutes, G.S. 5043.4(b) and (c). As a conclusion of law, it must itself be based upon supporting factual findings.\u201d Id. (quotation marks omitted). The Court then determined that the findings of fact failed to support the conclusion, since the only relevant finding of fact was that the:\n[defendant's monthly net income is approximately $483.32, plus an indeterminable amount earned from overtime work, and yet her monthly expenses are approximately $510.00. To the degree that this finding indicates that defendant\u2019s living expenses tend to exceed her average income, it would seem to negate, rather than support, the conclusion that she is capable of providing support payments. Moreover, the next part of finding No. 12 shows that although the monthly financial needs of the children average approximately $432.00, plaintiff\u2019s net monthly income is approximately $825.00. Far from supporting the conclusion that plaintiff is in need of partial assistance in meeting his support obligation, this part of the finding suggests instead that he is capable of sufficiently providing for his children on his own. On the face of the order alone, therefore, finding No. 12 does not support the trial court\u2019s conclusions as to either plaintiff\u2019s financial need for support assistance or defendant\u2019s financial ability to provide it. In the absence of other findings which support these conclusions, then, the order awarding plaintiff partial child support cannot be sustained.\nId. (quotation marks omitted).\nIn the case before us, the trial court\u2019s findings of fact are of similar import. Compare id. Again, only two of the trial court\u2019s findings address plaintiffs income: finding of fact number 12 which finds that his financial affidavit listed his average gross monthly income as $24,409.66, and finding of fact number 21 which finds that plaintiff \u201cis a man with substantial income.\u201d There is no finding of fact as to plaintiff\u2019s actual income, only that it is \u201csubstantial!.]\u201d We can infer that \u201csubstantial\u201d here means more than $24,409.66 but we cannot, determine what the trial court found plaintiff\u2019s income to be. Furthermore, the trial court found that although plaintiff claims to earn $24,409.66 on average per month, he actually spends an average of $88,617.80 per month. Here, the trial court clearly assumed that the plaintiff\u2019s income is quite significantly more than $25,000 per month, but we have no way of knowing what number the trial court had in mind.\nNormally, findings as to the incomes of the parties are stated in monetary amounts of dollars per month or year. Although these numbers might even be averages or approximations, particularly when a parent does not receive a set monthly paycheck, a finding of an actual monetary amount of income will permit this Court to review the findings based upon the evidence. While the trial court did give some regard \u201cto the estates, earnings, conditions, accustomed standard of living of the\u201d parties, it failed to make a finding of fact as to plaintiffs income which is definite enough for this Court to review. N.C. Gen. Stat. \u00a7 50-13.4(c). Furthermore, while the trial court specifically found plaintiff was able to pay the child support ordered, the income the trial court was basing this finding on is unclear, and thus leaves this Court also unable to review the finding of plaintiff\u2019s ability to pay.\nIn addition, even though the trial court\u2019s order contained some findings as to \u201cthe estates[,]\u201d N.C. Gen. Stat. \u00a7 50-13.4(c), of the parties, particularly plaintiff, it did not make any findings which would permit consideration of plaintiff\u2019s estate as supporting his ability to pay child support; rather, the findings of fact addressed only the expenses plaintiff has incurred. For example, the trial court found that \u201cPlaintiff/Father owns and pays for two (2) luxury residences in Los Ang[e]les, California at a cost of approximately $12,000.00 per month.\u201d Having a large house payment does not necessarily equate to having a substantial estate; it can mean just the opposite. The trial court did not find the value of these \u201cluxury residences[,]\u201d whether plaintiff\u2019s indebtedness on these residences equals or exceeds their values, or any other facts regarding the net value of plaintiff\u2019s estate.\nAccordingly, we reverse and remand the award of prospective child support for the trial court to make findings as to the monetary value of plaintiff\u2019s income and any other findings of fact or conclusions of law necessary to set an appropriate child support amount. We note that plaintiff also makes arguments as to the specific evidence the trial court should rely upon on remand in making its determination as to what his income is, but we will not address this, since arguments about which evidence should weigh more heavily are properly directed to the trial court, which has the discretion to determine the credibility and the weight of the evidence. See Coble, 300 N.C. at 712-13, 268 S.E.2d at 189.\nB. Reasonable Needs of the Child\nWhile we are reversing and remanding the child support award for the reasons noted above, plaintiff also has argued that the trial court failed to consider the child\u2019s actual needs in setting the amount of child support. The child support ordered in the amount of $7,342.84 per month far exceeds the actual needs of the child based upon the child\u2019s historical individual expenditures as found by the trial court, which were $2,194.00 per month. Although the trial court has the discretion to award child support in excess of actual historical expenses based upon plaintiff\u2019s financial position, the findings of fact as to how this amount was established must be detailed enough to permit review:\nWhatever may have been the rule at common law, a father\u2019s duty of support today does not end with the furnishing of mere necessities if he is able to afford more. In addition to the actual needs of the child, a father has a legal duty to give his children those advantages which are reasonable considering his financial condition and his position in society.\nIn Hecht v. Hecht, 189 Pa. Super. 276, 283, 150 A.2d 139, 143, Woodside, J., observed:\nChildren of wealthy parents are entitled to the educational advantages of travel, private lessons in music, drama, swimming, horseback riding, and other activities in which they show interest and ability. It is possible that a child with nothing more than a house to shelter him, a coat to keep him warm and sufficient food to keep him healthy will be happier and more successful than a child who has all the advantages, but most parents strive and sacrifice to give their children advantages which cost money. Much of the special education and training which will be of value to people throughout life must be given them when they are young, or be forever lost to them.\nWhat amount is reasonable for a child\u2019s support is to be determined with reference to the special circumstances of the particular parties. Things which might properly be deemed necessaries by the family of a man of large income would not be so regarded in the family of a man whose earnings were small and who had not been able to accumulate any savings. In determining that amount which is reasonable, the trial judge has a wide discretion with which this court will not interfere in the absence of a manifest abuse.\nIt is never the purpose of a support order to divide the father\u2019s wealth or to distribute his estate. Furthermore, even though the father be a man of great wealth, an excessive award which would encourage extravagant expenditures either by the child or in his behalf would not be in his best interest.\nWilliams v. Williams, 261 N.C. 48, 57-58, 134 S.E.2d 227, 234 (1964) (citations, quotation marks, and ellipses omitted); Atwell, 74 N.C. App. at 234, 328 S.E.2d at 49.\nThe trial court\u2019s order seems to \u201cdivide the father\u2019s wealth\u201d by basing child support upon a number calculated by adding one-third of plaintiff\u2019s \u201cshared family expenses\u201d to the child\u2019s historical individual expenses. Id. at 58, 134 S.E.2d at 234. The order also finds that plaintiff resides in Los Angeles, California, but fails to make any findings of fact as to how plaintiff\u2019s expenses incurred in California, which apparently do not include any child-related expenditures, relate to the expenses of raising a child, even the child of a wealthy parent, in Charlotte, North Carolina.\nA child support award can be made by using estimates of needs based upon the higher standard of living made possible by plaintiff\u2019s means, but the trial court must make findings of fact which assign a monetary value to these needs. See Payne v. Payne, 91 N.C. App. 71, 75, 370 S.E.2d 428, 431 (1988) (\u201cAlthough an equation for child support does not lend itself to an exact mathematical calculation, it is difficult, if not impossible, to know whether a trial judge has made a complete and reasonable assessment of the child\u2019s needs and the parties\u2019 abilities to pay when the needs-variable has no monetary value.\u201d). As such, upon remand we also instruct the trial court to make findings of fact, specifically with monetary values, as to the child\u2019s reasonable needs in light of the abilities of the parents to provide support.\nC. Defendant\u2019s Child Support Obligation\nThe trial court found defendant\u2019s portion of responsibility for support of the minor child to be $100.00 per month, which plaintiff argues is too low, but at the very least should offset his own obligation by $100.00. But the order does not state that the total child support obligation of both parents is $7,342.84 per month, but rather that \u201cPlaintiff/Father should have a child support obligation of $7,342.84 per month[,]\u201d and thus we see no merit in his argument that his child support obligation should be reduced by defendant\u2019s child support obligation. But, as discussed above, we are reversing and remanding the child support award for several reasons, and on remand the trial court should take into account, in a manner this Court can review, \u201cthe estates, earnings, conditions, accustomed standard of living\u201d of both parties in calculating the child support obligation. N.C. Gen. Stat. \u00a7 5043.4(c); see Coble v. Coble, 300 N.C. at 712, 268 S.E.2d at 189. The trial court found unchallenged that defendant did have an income, and the trial court must consider the relative abilities and financial circumstances of both parties; though plaintiff\u2019s earnings and estate may be far greater than defendant\u2019s, defendant\u2019s circumstances must also be taken into account. See N.C. Gen. Stat. \u00a7 5043.4(c); Coble v. Coble, 300 N.C. at 712, 268 S.E.2d at 189.\nBut despite the need for findings with monetary amounts for incomes and expenses, we acknowledge that not all of the factors under North Carolina General Statute \u00a7 5043.4(c) can be quantified. See N.C. Gen. Stat. \u00a7 5043.4(c). The trial court is directed to take into account \u201cthe child care and homemaker contributions of each party, and other facts of the particular case[,]\u201d in setting child support; id., these factors are less susceptible to descriptions in monetary terms. Particularly, in a case such as this, where plaintiff fives thousands of miles away and has no role at all in the child\u2019s daily care and fife, it is appropriate for the trial court to consider the fact that defendant bears 100% of the daily responsibilities of child care and making a home for the child. See id. Only defendant will make the daily physical and emotional sacrifices required to raise a child. All the law requires of plaintiff is to make a monthly payment. If the trial court does consider defendant\u2019s non-monetary, but truly priceless, contributions, it should make findings of fact regarding those contributions so that its use of this factor may be reviewed on appeal. See Atwell, 74 N.C. App. at 234, 328 S.E.2d at 49.\nD. Summary of Prospective Child Support\nIn summary, we reverse the trial court\u2019s award for child support and remand for the trial court to make specific findings of fact, including plaintiff\u2019s income stated in a monetary value, plaintiff\u2019s ability to pay, the child\u2019s reasonable needs stated in a monetary value, and to make any further findings of fact or conclusions of law that would be necessary to set support obligations for both parties in a manner that would be reviewable by this Court.\nIV. Attorney Fees\nLastly, plaintiff argues that the trial court erred in awarding attorney fees to defendant. Plaintiff challenges the finding of facts supporting the award.\nA. Finding Regarding Refusal to Provide Support\nIn an action or proceeding for the custody or support, or both, of a minor child . . . the 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[.]\nN.C. Gen. Stat. \u00a7 50-13.6 (2011). \u201cWhether these statutory requirements have been met is a question of law, reviewable on appeal. Only when these requirements have been met does the standard of review change to abuse of discretion for an examination of the amount of attorney\u2019s fees awarded.\u201d Simpson v. Simpson, 209 N.C. App. 320, 323, 703 S.E.2d 890, 892 (2011) (citations and quotations omitted).\nPlaintiff contends,\n[t]he trial court made no finding [he] \u201crefused to provide support which is adequate under the circumstances existing at the time of the institution of the action or proceeding.\u201d It is well established that in a child support, action, this finding is a necessary prerequisite to an award of attorneys\u2019 fees. Hudson, 299 N.C. at 472-73, 263 S.E.2d at 723-24.\nIndeed,\n[b]efore a court may award fees in an action solely for child support, the court must make the required finding \u25a0under the second sentence of the statute: that the party required to furnish adequate support failed to do so when the action was initiated. On the other hand, when the proceeding or action is for both custody and support, the court is not required to make that finding.\nSpicer v. Spicer, 168 N.C. App. 283, 296, 607 S.E.2d 678, 687 (2005) (emphasis added) (citation omitted). Plaintiff thus contends that his action was only an action for support.\nPlaintiff, citing Gibson v. Gibson, 68 N.C. App. 566, 316 S.E.2d 199 (1984), argues that \u201cthe mere fact a lawsuit includes claims for support and custody does not convert a proceeding into one for both custody and support where custody is not contested.\u201d Plaintiff then directs our attention to the fact that both parties agreed from the outset of this case that defendant would have sole legal and physical custody of the child. However, Gibson states,\nthe issue of custody had been settled in Hudson by a consent order entered twenty months prior to the order concerning the child support while here the issue of custody, though uncontested, was settled by the judgment of the court some five months prior to the entry of the child support judgment. What appears to be important, however, is not how the custody issue was settled or when but that it was settled and was not at issue when the judgment concerning support was entered.\nGibson, 68 N.C. App. at 574, 316 S.E.2d at 105 (emphasis added).\nHere, the order being appealed from is entitled \u201cORDER (RE: PERMANENT CHILD CUSTODY AND CHILD SUPPORT)!.]\" Furthermore, unlike in Hudson and Gibson, see id., the order on appeal is the first and only order that grants legal and physical custody of the child to defendant. Although plaintiff and defendant may have believed and acted as though they had resolved the custody claims before entry of the order, custody was still at issue when the case was called for hearing and was not addressed by the trial court until its final order which also addresses child support. Custody was therefore \u201cat issue when the judgment concerning support was entered[;]\u201d id., so this was an action for custody and support, and the trial court was not required to find that plaintiff had refused to provide prior support to the child. See N.C. Gen. Stat. \u00a7 50-13.6; Spicer, 168 N.C. App. at 296, 607 S.E.2d at 687.\nB. Other Findings of Fact\nLastly, plaintiff contends that \u201c[t]he trial court\u2019s findings of fact do not support the amount of its award of attorneys\u2019 fees\u201d because \u201cthe trial court made no findings as to the actual hours spent or what any of the three lawyers representing... [defendant] did or the time they spent on the case, or the reasonableness of the work or time spent\u201d or defendant\u2019s attorneys\u2019 \u201cskill or experience.\u201d Plaintiff again also notes that the failure of the trial court to find his income meant it could not rightfully find he had the ability to pay the attorney fees. We disagree.\nThe trial court reviewed the attorney fee affidavits and found the fees to be \u201cnecessary and reasonable[;]\u201d the trial court also made several findings of fact regarding defendant\u2019s attorney fees including, the necessity and reasonableness of the fees, the attorney\u2019s rate, that the rate is reasonable as compared to others with like experience and skill, the \u201creasonable rates\u201d of others in the firm who assisted on the case, and the total amounts charged. We conclude that the trial court made sufficient findings of fact to support the award of attorney fees.\nRegarding plaintiff\u2019s ability to pay the award of attorney fees, plaintiff has cited no authority requiring the trial court to find he is able to pay defendant\u2019s attorney fees. North Carolina General Statute \u00a7 50-13.6 provides in relevant part simply that\n[i]n an action or proceeding for the custody or support, or both, of a minor child, including a motion in the cause for the modification or revocation of an existing order for custody or support, or both, of a minor child... the 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[;]\nN.C. Gen. Stat. \u00a7 50-13.6, the statute has no requirement that the trial court also find that the party being ordered to pay these fees have the ability to pay, and although some cases have mentioned an obligor\u2019s ability to pay, we have found no requirement that a trial court make this finding of fact. North Carolina General Statute \u00a7 50-13.6 places this matter in the trial court\u2019s discretion, see id., and plaintiff has failed to demonstrate an abuse of discretion as to the trial court\u2019s attorney fee award.\nC. Summary of Attorney Fees\nIn summary, we affirm the trial court\u2019s award for attorney fees.\nV. Conclusion\nIn conclusion, for the award of retroactive child support, we reverse the award for nursery expenses and maternity clothes prior to the child\u2019s birth because there is no legal basis for making such an award; we reverse the award for nursery expenses and basic needs after the birth because there was not sufficient evidence that such expenses were incurred prior to the filing of plaintiffs complaint; and we reverse and remand the order as to the expenses for daycare, child care, and birth for the trial court to consider the plaintiffs ability to pay during the time for which reimbursement is sought and how these expenses should be apportioned between plaintiff and defendant. As to the award of prospective child support, we reverse the trial court\u2019s award for child support and remand for the trial court to make specific findings of fact, including plaintiffs income stated in a monetary value, plaintiff\u2019s ability to pay, the child\u2019s reasonable needs stated in a monetary value, and to make any further findings of fact or conclusions of law that would be necessary to set support obligations for both parties in a manner that would be reviewable by this Court. As to the award of attorney fees, we affirm.\nAFFIRMED in part, REVERSED in part, and REMANDED.\nJudges McGEE and BRYANT concur.\n. We note that these expenses actually add up to $40,025.27, although neither party has challenged the accuracy of the numbers in the trial court order.\n. North Carolina General Statute \u00a7 49-15 provides that \u201c[u]pon and after the establishment of paternity of an illegitimate child pursuant to G.S. 49-14, the rights, duties, and obligations of the mother and the father so established, with regard to support and custody of the child, shall be the same, and may be determined and enforced in the same manner, as if the child were the legitimate child of such father and mother. When paternity has been established, the father becomes responsible for medical expenses incident to the pregnancy and the birth of the child.\u201d N.C. Gen. Stat. \u00a7 49-15.\n. This \u201cfinding of fact\u201d is actually a recitation of evidence and not a finding by the trial court; this is apparent from the fact that the trial court ultimately determined that plaintiff has more income than what he listed on his affidavit.\n. Plaintiff also implies that the trial court imputed income to him due to what it may have found to be extravagant expenditures. We do not believe this is so, but if the trial court was actually imputing income to plaintiff, this would be error, as there were no findings of fact that that defendant was suppressing his income intentionally or spending excessively to avoid his child support obligation. See generally Respess v. Respess, _ N.C. App. _, _, 754 S.E.2d 691, 703-04 (2014) (addressing defendant\u2019s argument that the trial court erred in the amount of income it imputed to him: \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 deliberately acted in disregard of his obligation to provide support. 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^] This showing may be met by a sufficient degree of indifference to the needs of a parent\u2019s children.\u201d (citation, quotation marks, ellipses, and brackets omitted)). While certainly the trial court may find plaintiff\u2019s evidence not to be credible, the trial court must still make an actual finding as to plaintiff\u2019s income.\n. We also note that without an actual monetary number for the income it could be difficult for either party to prove the need for a modification of child support in the future based upon a change in circumstances, as the trial court would have to determine what the plaintiff\u2019s \u201csubstantial\u201d income actually was in 2012 and whether any alleged change in the plaintiffs income would be sufficient to support modification. See generally N.C. Gen. Stat. \u00a7 5043.7(a) (2011) (\u201cExcept as otherwise provided in G.S. 50-13.7A, an order of a court of this State for support of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party[.]\u201d)",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for plaintiff-appellant.",
      "James, McElroy & Diehl, P.A., by Preston O. Odom, III, by defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "GRANT A. LOOSVELT, Plaintiff/Father v. STACY LEIGH BROWN, Defendant/Mother\nNo. COA13-747\nFiled 15 July 2014\n1. Child Custody and Support\u2014pre-birth non-medical expenses \u2014not allowed\nIn an action to establish paternity, custody, and support, an award for nursery expenses and maternity clothes incurred prior to the child\u2019s birth was reversed. The legal obligation arises when the child is bom and expenses incurred prior to the child\u2019s birth cannot be considered as retroactive child support, with the only exception being medical expenses as allowed by statute. While it is reasonable to incur expenses in preparation for the birth of a baby, there is no evidence or argument that nursery expenses and maternity clothes could qualify as \u201cmedical expenses\u201d under even the most generous definition.\n2. Child Custody and Support\u2014retroactive support\u2014post-birth expenses\u2014date. incurred\u2014insufficient evidence\nA retroactive child support award for nursery expenses and basic needs incurred after the child\u2019s birth was reversed for insufficient evidence that the expenses were incurred prior to filing the complaint.\n3. Child Custody and Support\u2014retroactive support\u2014ability to pay\u2014relevant time period\nAn award of retroactive child support for post-birth expense for daycare, child care, and the child\u2019s birth was remanded for findings as to plaintiff\u2019s ability to pay during the time period for which reimbursement was sought.\n4. Child Custody and Support\u2014retroactive support\u2014allotment of expenses\nAn award of retroactive child support was remanded partly because the appellate court could not discern from the findings why the trial court failed to allot any portion of the retroactive expenses as defendant\u2019s responsibility.\n5. Child Custody and Support\u2014support\u2014plaintiffs income \u2014findings\nAn award of prospective child support was remanded for findings as to the monetary value of plaintiff\u2019s income and any other findings of fact or conclusions of law necessary to set an appropriate child support amount. The trial court\u2019s findings listed plaintiff\u2019s average gross monthly income and stated that plaintiff \u201cis a man with substantial income,\u201d but there was no finding as to plaintiff\u2019s actual income. Furthermore, the income on which the court based the finding that plaintiff was able to pay the child support ordered was not clear, and it did not make any findings which would permit consideration of plaintiff\u2019s estate as supporting his ability to pay child support.\n6. Child Custody and Support\u2014support\u2014child\u2019s reasonable needs\u2014findings\nWhere a child support award was remanded for other reasons, the trial court was also instructed to make findings of fact with monetary values as to the child\u2019s reasonable needs in light of the abilities of the parents to provide support. The amount of child support ordered far exceeded the actual needs of the child based upon the child\u2019s historical individual expenditures. Although the trial court has the discretion to award child support in excess of actual historical expenses based upon plaintiff\u2019s financial position, the findings of fact as to how this amount was established must be detailed enough to permit appellate review.\n7. Child Custody and Support\u2014support\u2014earnings and conditions of parties\u2014non-quantifiable contributions\u2014findings\nWhere a child support order was remanded for several reasons, the trial court was ordered on remand to take into account the earnings, conditions and standard of living of both parties in a manner reviewable on appeal. Not all of the factors under N.C.G.S. \u00a7 5043.4(c) can be quantified and it is appropriate for the trial court to consider the fact that defendant bears 100% of the daily responsibilities of child care and making a home for the child. If the court does so, it should make reviewable findings.\n8. Attorney Fees\u2014child custody and support\u2014custody still at issue\u2014findings\nChild custody was still at issue when a judgment concerning child support was entered and the trial court was not required to find that plaintiff had refused to provide prior support to the child when awarding attorney fees. Although plaintiff and defendant may have believed and acted as though they had resolved the custody claims before entry of the order, custody was still at issue when the case was called for hearing and was not addressed by the trial court until its final order.\n9. Attorney Fees\u2014child custody and support\u2014findings sufficient\u2014no necessity for ability to pay\nThe trial court made sufficient findings of fact to support the award of attorney fees in a child custody and support action. There is no requirement of a finding that the party being ordered to pay have the ability to pay.\nAppeal by plaintiff from order entered 1 April 2013 by Judge Donnie Hoover in District Court, Mecklenburg County. Heard in the Court of Appeals 19 November 2013.\nWyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for plaintiff-appellant.\nJames, McElroy & Diehl, P.A., by Preston O. Odom, III, by defendant-appellee."
  },
  "file_name": "0088-01",
  "first_page_order": 98,
  "last_page_order": 121
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