Zurosky v. Shaffer

NO. COA13-1364

NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

KIRK ZUROSKY,

Plaintiff-Appellant,

v. Mecklenburg County

No. 09 CVD 30462

ALYSON G. SHAFFER,

Defendant-Appellee.

Appeal by plaintiff from judgment and order entered on 8

November 2013 by Judge Paige B. McThenia in Mecklenburg County

District Court. Heard in the Court of Appeals 8 May 2014.

Marshall & Taylor, P.C., by Travis R. Taylor, for

Plaintiff-Appellant.

Hamilton Stephens Steele + Martin, PLLC, by Amy Simpson

Fiorenza, for Defendant-Appellee.

HUNTER, JR., Robert N., Judge.

Kirk Zurosky (“Zurosky”) appeals from a judgment and order

entered on 8 November 2013. Zurosky argues (i) the trial court

erred in its distribution of marital property, and (ii) the

trial court erred in its ordering of alimony and child support.

After careful review, we affirm in part and reverse and remand

in part.

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I. Facts & Procedural History

Zurosky and Alison Shaffer (“Shaffer”) married on 1 July

1995. Zurosky and Shaffer have two children. In December 2008,

Zurosky stated his intention to leave the marital home. On 21

January 2009, the parties entered into an interim agreement

(“Interim Agreement”) which addressed the parties’ separation,

addressed the parties’ financial responsibilities, and provided

a temporary shared custody schedule for their two children. On

22 January 2009, the couple separated and Zurosky left the

marital home.

Zurosky initiated the present lawsuit on 3 December 2009

and sought temporary and permanent child custody, equitable

distribution, and a psychological evaluation of Shaffer. The

complaint alleged Shaffer did not allow Zurosky to see his

children according to the terms of the Interim Agreement.

Shaffer filed an answer on 24 February 2010 generally denying

the complaint’s allegations and asserting counterclaims seeking

child custody, child support, sequestration1 of both the

Providence Glen home (the marital home) and a black Lexus SUV,

postseparation support, alimony, equitable distribution,

1

“The process by which property is removed from the possessor

pending the outcome of a dispute in which two or more parties

contend for it.” Black’s Law Dictionary 1488 (9th ed. 2009).

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attorney’s fees, and requested an appraisal of Zurosky’s

interest in T&Z. Zurosky and Shaffer divorced in June 2010.

On 28 June 2010, the trial court held a hearing concerning

temporary child support (“TCS”) and post-separation support

(“PSS”). On 6 August 2010, the initial equitable distribution

pretrial conference scheduling and discovery order was entered.

In compliance with this order, the parties filed equitable

distribution affidavits, which were amended prior to entry of

the final pre-trial order (“FPTO”). The FPTO contained

stipulations and contentions regarding twenty-five marital and

separate property items, seven marital and separate debt items,

and six divisible property items. On appeal, Zurosky contends

that the trial court did not comply with the FPTO with respect

to five of those items: the value and distribution of two

airline miles accounts, insurance policy disbursements, and tax

refunds.

On 31 August 2011, the trial court entered a TCS and PSS

order. On 7 September 2011, Zurosky filed a motion to alter or

amend the TCS and PSS Order. On 21 October 2011, Zurosky filed

a motion for sanctions, which was granted in part against

Shaffer for failing to produce documents in a timely manner and

comply with discovery requests.

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The trial court held hearings and took evidence regarding

custody, equitable distribution, permanent child support, and

alimony from November 2011 to June 2012. The trial court

received testimony from both parties, business valuation

experts, real estate appraisal experts, furniture appraisers,

jewelry appraisers, family members, friends, coworkers, and

employees. On 10 April 2013, Judge McThenia entered an

Equitable Distribution Judgment and Permanent Child Support and

Alimony Order (“April Judgment & Order”).

In the trial court’s April Judgment & Order, the trial

court referenced two exhibits. Exhibit A shows the distribution

and value of household goods and Exhibit B shows the

distribution of marital and divisible assets and liabilities.

Neither exhibit was attached to the April Judgment & Order.

On 7 May 2013, Zurosky appealed the April Judgment & Order.

On 17 May 2013, Shaffer also appealed the April Judgment &

Order. Shaffer filed a Motion for Rule 60 Relief on 29 July

2013 to correct a clerical mistake in the April Judgment &

Order. The motion alleged the trial court failed to attach

certain exhibits to the April Judgment & Order. The motion was

granted on 8 November 2013.

Following the appeals and Motion for Rule 60 Relief, the

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trial court entered an Amended Equitable Distribution Judgment

and Permanent Child Support and Alimony Order (“Amended Judgment

& Order”) on 8 November 2013, nunc pro tunc to 8 April 2013.

The Amended Judgment & Order equitably distributed all marital

property and contained 415 separate findings of fact. The trial

court concluded an unequal distribution in favor of Shaffer, as

outlined in the Amended Judgment & Order and attached exhibits,

was equitable to both parties. In making its determination, the

trial court made several findings addressing the factors laid

forth in N.C. Gen. Stat. § 50-20(c) (2013):

(1) The income, property, and liabilities of

each party at the time the division of

property is to become effective.

Plaintiff/Husband’s income greatly exceeded

that of Defendant/Wife during the marriage

and since the DOS. Unless something

unexpected happens, Plaintiff/Husband’s

income is likely to always remain ten (10)

to twenty (20) times higher than that of

Defendant/Wife. This is perfectly

illustrated by his 2012 distributions, which

indicate that in one month Plaintiff/Husband

grossed more than Defendant/Wife did in the

entire 2011 year. Additionally,

Plaintiff/Husband is now sharing the

Providence Glen Home with Ms. Zurosky, who

is an attorney who earns a substantial

income of her own and can contribute to

Plaintiff/Husband’s future shared expenses.

Not only does Plaintiff/Husband’s income

exceed that of Defendant/Wife, but also his

career growth potential is also far greater

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than that of Defendant/Wife. Defendant/Wife

has a very specialized area of practice

(i.e., behavioral analysis and work with

children on the autism spectrum). She is

always going to be limited by time and

travel restraints and a market which

continues to limit her area of

specialization.

The Court considered the property and

liabilities of the parties at the time of

the division of the property as is shown on

Exhibits “A” and “B.” The facts found below

are all that could be determined by the

preponderance of the evidence. The property

in the exhibits includes property to be

distributed to the parties which is still in

existence but does not include any

distributive award which may be determined

by consideration of these factors.

As evidenced in the attached exhibits, the

assets of Plaintiff/Husband exceed those of

Defendant/Wife.

(3) The duration of the marriage and the age

and physical and mental health of both

parties.

The duration of the marriage is thirteen and

one half (13 1/2) years.

Defendant/Wife is four (4) years older than

Plaintiff/Husband.

Plaintiff/Husband is in excellent health.

Defendant/Wife has health issues including

asthma, chronic pain coupled with a skin

disorder. It is anticipated that

Defendant/Wife will only be able to manage

these conditions as she ages, and that she

will never be able to cure them. It is

reasonable to assume that these painful

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conditions will not subside in the future

and will likely impair, to some extent, her

ability to function effectively and/or her

quality of life in the future.

(4) The need of a parent with custody of a

child or children of the marriage to occupy

or own the marital residence and to use or

own its household effects.

Both parties have the minor children with

them fifty percent (50%) of the time; but,

Plaintiff/Husband has the former marital

residence and will keep it for which the

children will benefit. Plaintiff/Husband

has sufficient household goods to maintain a

comfortable living with the minor children

in the Providence Glen Home.

(5) The expectation of pension, retirement,

or other deferred compensation rights that

are not marital property.

Plaintiff/Husband has a higher expectation

of pension, retirement or other deferred

compensation rights as co-owner of a law

firm that maintains a 401K plan for all

employees.

Defendant/Wife is self-employed and does not

have access to a 401K plan, nor does she

have a way to fund a retirement plan similar

to that of Plaintiff/Husband. The only way

she can fund a retirement plan is through

savings.

(6) Any equitable claim to, interest in, or

direct or indirect contribution made to the

acquisition of such marital property by the

party not having title, including joint

efforts or expenditures and contributions

and services, or lack thereof, as a spouse,

parent, wage earner or homemaker.

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Defendant/Wife moved from Massachusetts to

North Carolina with Plaintiff/Husband to

support him in his dream to become a

successful lawyer and to own his own firm.

While in North Carolina, she helped

Plaintiff/Husband build his law firm and

make it as successful as it is today by

taking care of the family and the home so

that Plaintiff/Husband could focus on

excelling in his career. Defendant/Wife

supported Plaintiff/Husband emotionally,

financially, and in any other way he asked

her to help. In so doing, Defendant/Wife

sacrificed her ability to excel to the

fullest level in her career.

(7) Any direct or indirect contribution made

by one spouse to help educate or develop the

career potential of the other spouse.

See Factor (6) above.

(9) The liquid or nonliquid character of all

marital property and divisible property.

The primary liquid assets (the savings

account and the CD) have all been spent but

for the substantial savings account

maintained by the partners in T&Z (estimated

to be in excess of $1,000,000).

(10) The difficulty of evaluating any

component asset or any interest in a

business, corporation or profession, and the

economic desirability of retaining such

asset or interest, intact and free from any

claim or interference by the other party.

The primary liquid assets were the CD and

BOA 4906 and 5460 (which have all been spent

already). The primary asset is

Plaintiff/Husband’s interest [in] T&Z,

(which is complicated to value but which is

economically desirable to keep given the

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firm’s profit margins).

Because of the downgrade in the residential

real estate market, Plaintiff/Husband is

going to be able to take both the Providence

Glen Home and the Blowing Rock Home at a

[sic] artificially low values. However,

both of these assets have growth potential

prospectively (and Plaintiff/Husband must

agree with this assessment or else he would

not have spent well over $100,000 in

improving the Providence Glen Home

cosmetically).

Since the DOS, Defendant/Wife has had to

spend thousands of dollars to move herself

and her furniture twice, [footnote omitted]

and she will have to move a third time once

she finds a permanent residence.

(11)(a) Acts of either party to maintain,

preserve, develop, or expand; or to waste,

neglect, devalue or convert the marital

property or divisible property, or both,

during the period after separation of the

parties and before the time of distribution.

Defendant/Wife has been forced to spend the

money she took from the CD to pay certain

regular living expenses (for which

Plaintiff/Husband was providing no support)

and to defend herself in this protracted

litigation. Defendant/Wife has had to pay

in excess of Sixty Thousand Dollars and

no/100 ($60,000) in noncompensable expert

witness fees (only the trial time for with

[sic] Mr. McDonald, Ms. Phillips, and Mr.

Mitchell is compensable). Defendant/Wife

will have incurred over Two Hundred Thousand

Dollars and no/100 ($200,000) to try the

issues in this case in the court system.

(12) Any other factor which the court finds

to be just and proper.

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Plaintiff/Husband is requesting that this

Court award him all of the significant

marital assets and allow him to enjoy all

that he enjoyed during the marriage and

more. All the while, Defendant/Wife has

struggled to meet him on an even playing

field and has not been allowed to enjoy a

fraction of what she enjoyed during the

marriage.

Plaintiff/Husband has not been fully

cooperative in the process of valuing his

interest in T&Z. As a result,

Defendant/Wife has had to spend substantial

amounts of time and money she does not have

trying to get to the truth about

Plaintiff/Husband’s business and future

revenue potential. The trial itself has

been time-consuming and expensive on all

levels for Defendant/Wife. Plaintiff/Husband

is being represented by Ms. Wallace, hislong

[sic] time friend,. [sic]

Plaintiff/Husband testified that to date

that [sic] he has only paid Ms. Wallace

Fifty Thousand Dollars and no/100 ($50,000),

which the Court notes (from having first

hand experience of Ms. Wallace’s hourly rate

and attorney’s fess [sic] bills) is

extremely inexpensive (particularly in a

contentious case such as this for which we

have been in Court more than three (3) weeks

in-the [sic] last eight (8) months).

The trial court awarded a total of $6,800 per month in

permanent alimony to Shaffer and a total of $4,604 per month in

child support to Shaffer. The trial court also held that

Zurosky owed Shaffer $77,903 in retroactive child support from

the date of the filing of his complaint, 3 December 2009, to 29

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June 2012.2 The missing exhibits from the April Judgment were

attached to the Amended Judgment & Order.

In its equitable distribution of property, the trial court

assessed the date of separation (“DOS”) and date of distribution

(“DOD”) value of the Blowing Rock Home. The Blowing Rock Home

is owned by Zurosky and his law partner Andre Tippens (“Mr.

Tippens”) as tenants in common. In its equitable distribution

order, the trial court found that

114. At all times prior to the initiation of

this lawsuit, Defendant/Wife believed that

her name was on the deed to the Blowing Rock

Home. Defendant/Wife had given

Plaintiff/Husband a Power of Attorney to

sign her name at closing, but she had no

idea that she was never listed on the deed.

. . .

117. During the marriage, Mr. Tippens used

the house very rarely (no more than three

(3) times since the residence was

purchased). Instead, the parties and their

children occupied the residence the majority

of the time and frequently. The parties used

the Blowing Rock Home as their primary

vacation spot and spent weekends and

holidays in the mountains. The Blowing Rock

Home served a specific purpose for the

parties, in that Defendant/Wife’s chronic

pain condition (which is described in

greater detail hereinafter) was alleviated

in colder/milder climates so that she tended

2

In the record, the trial court states the date of the filing of

the complaint as 3 December 2009. However, the complaint was

filed on 23 December 2009.

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to feel much better physically while

visiting the Blowing Rock Home.

. . .

119. Although Plaintiff/Husband testified

multiple times that the Blowing Rock Home is

the “T&Z firm” house, it is not the firm’s

asset or business property. It was not and

currently is not used for business, and it

serves no legitimate business purpose. It

was not considered or valued as an asset of

T&Z by either valuation expert.

120. The reality is that the Blowing Rock

Home was Plaintiff/Husband and

Defendant/Wife’s personal vacation residence

which Mr. Tippens pays for but used only

infrequently prior to the DOS and has used

no more frequently since the DOS.

121. The Court finds it credible that the

only reason Defendant/Wife’s name was not

placed on

the deed was because she was pregnant with

[the parties’ daughter] and did not

participate in the closing or closing

process. While this was not done

intentionally to exclude Defendant/Wife, the

result has been that Defendant/Wife has had

no legal right to access the Blowing Rock

Home since an unrelated third party owner,

Mr. Tippens, has not allowed her access any

more than has Plaintiff/Husband.

122. In the summer of 2009,

Plaintiff/Husband locked Defendant/Wife out

of the Blowing Rock

Home and instructed her that she was no

longer permitted to access, use, or enjoy

the Blowing Rock Home. This has been

difficult for Defendant/Wife not only

because the Blowing Rock Home was a refuge

from the heat for her, and it was a place

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she enjoyed vacationing with her children.

123. After restricting Defendant/Wife’s

access to the Blowing Rock Home,

Plaintiff/Husband has continued to use it

himself together with [Zurosky’s current

wife], her children, and his children at

various times. Plaintiff/Husband has no

restrictions on his use of the home and will

continue to enjoy the benefits of this

vacation residence because Plaintiff/Husband

and Mr. Tippens do not intend to sell the

Blowing Rock Home or to use it as a rental.

The parties also stipulated that the fair market value of the

Blowing Rock Home decreased by $123,000 from the DOS to the DOD.

The trial court found this decrease was divisible property and

distributed the decrease to Shaffer, although Zurosky received

the Blowing Rock Home.

In evaluating the value of the law firm, both parties

submitted expert appraisals of T&Z and proposed valuations in

the FPTO. In the FPTO, Zurosky contended the value of the firm

was $830,000 (DOS) and $450,000 (as of the FPTO); Schaffer,

contended the value to be $1,038,000 (DOS) and $554,000 (as of

the FPTO). In her order, the trial court agreed with Shaffer’s

expert that the DOS value of T&Z was $1,038,000 but found no

credible evidence presented regarding the DOD value. Lacking

such evidence the court held the DOS value of T&Z to be

determinative of the DOD value.

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The trial court also relied on jewelry valuations provided

by Shaffer rather than expert testimony provided by Zurosky.

Seven items of jewelry were considered in the equitable

distribution order. The parties stipulated in the FPTO that all

of the jewelry was marital property. Shaffer contended the

total value of all jewelry items was $21,525 as of the DOS;

Zurosky contended the total value was $74,060. Shaffer

contended for the same values on the DOD; Zurosky contended for

the same DOD values, except concerning Item E-13, a Tiffany

brand platinum and diamond pendant. Zurosky contended that Item

E-13 appreciated $450 from DOS to DOD. The trial court accepted

Shaffer’s valuations of all the jewelry, and all of the items of

jewelry were distributed to Shaffer, except Item E-14 (a

stainless steel and gold Rolex watch) that Zurosky received.

In its order, the trial court expressed concerns about the

credibility of the evidence presented by Mr. Zurosky concerning

his income.3 Due to these concerns, the trial court relied on

prior years’ incomes rather than Zurosky’s testimony concerning

DOD income.

Zurosky filed timely written notice of appeal on 8 November

3

In his financial affidavits, Zurosky reported a $16,000 deficit

each month between his income and expenses. The trial court

found the numbers submitted by Zurosky were inconsistent with

his actual financial condition.

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2013.

II. Jurisdiction & Standard of Review

This Court has jurisdiction over Defendant’s appeal because

the equitable distribution judgment and child support and

alimony orders are final judgments of a district court in a

civil action under N.C. Gen. Stat. § 7A-27(b)(2) (2013).

Zurosky’s issues on appeal concern equitable distribution,

alimony, and child support; all of these issues are reviewed

under an abuse of discretion standard. Wieneck-Adams v. Adams,

331 N.C. 688, 691, 417 S.E.2d 449, 451 (1992) (“Equitable

distribution is vested in the discretion of the trial court and

will not be disturbed absent a clear abuse of that

discretion.”); Kelly v. Kelly, ___ N.C. App. ___, ___, 747

S.E.2d 268, 272 (2013); Leary v. Leary, 152 N.C. App. 438, 441,

567 S.E.2d 834, 837 (2002) (citing White v. White, 312 N.C. 770,

777, 324 S.E.2d 829, 833 (1985)).

“Only a finding that the judgment was unsupported by reason

and could not have been a result of competent inquiry, or a

finding that the trial judge failed to comply with the

statute . . . will establish an abuse of discretion.” Wieneck-

Adams, 331 N.C. at 691, 417 S.E.2d at 451 (internal citations

omitted).

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III. Analysis

A. Equitable Distribution Judgment

Pursuant to the North Carolina Equitable Distribution Act,

the trial court is required to determine whether the property is

marital or divisible and “‘provide for an equitable distribution

of the marital property and divisible property between the

partie[s].’” Mugno v. Mugno, 205 N.C. App. 273, 276–77, 695

S.E.2d 495, 498 (2010) (quoting N.C. Gen. Stat. § 50-20 (2009)).

The trial court must follow a three-step analysis in making an

equitable distribution: “(1) identify the property as either

marital, divisible, or separate property after conducting

appropriate findings of fact; (2) determine the net value of the

marital property as of the date of the separation; and (3)

equitably distribute the marital and divisible property.” Id.

at 277, 695 S.E.2d at 498.

Marital property is

all real and personal property acquired by

either spouse or both spouses during the

course of the marriage and before the date

of the separation of the parties, and

presently owned, except property determined

to be separate property or divisible

property in accordance with subdivision (2)

or (4) of this subsection. Marital property

includes all vested and nonvested pension,

retirement, and other deferred compensation

rights, and vested and nonvested military

pensions eligible under the federal

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Uniformed Services Former Spouses’

Protection Act. It is presumed that all

property acquired after the date of marriage

and before the date of separation is marital

property except property which is separate

property under subdivision (2) of this

subsection. It is presumed that all real

property creating a tenancy by the entirety

acquired after the date of marriage and

before the date of separation is marital

property. Either presumption may be rebutted

by the greater weight of the evidence.

N.C. Gen. Stat. § 50-20(b)(1) (2013). Divisible property

includes

a. All appreciation and diminution in value

of marital property and divisible property

of the parties occurring after the date of

separation and prior to the date of

distribution, except that appreciation or

diminution in value which is the result of

postseparation actions or activities of a

spouse shall not be treated as divisible

property.

b. All property, property rights, or any

portion thereof received after the date of

separation but before the date of

distribution that was acquired as a result

of the efforts of either spouse during the

marriage and before the date of separation,

including, but not limited to, commissions,

bonuses, and contractual rights.

c. Passive income from marital property

received after the date of separation,

including, but not limited to, interest and

dividends.

d. Passive increases and passive decreases

in marital debt and financing charges and

interest related to marital debt.

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N.C. Gen. Stat. § 50-20(b)(4)(2013). Regarding the distribution

phase, “there shall be an equal division by using net value of

marital property and net value of divisible property” unless

that result would be inequitable. N.C. Gen. Stat. § 50-20(c).

“However, the trial court may conclude, within its discretion,

that unequal distribution is equitable after considering the

factors listed in N.C. Gen. Stat. § 50–20(c) and making

sufficient findings of fact to support its conclusion.” Mugno,

205 N.C. App. at 277, 695 S.E.2d at 498; see also discussion of

Section 50-20(c) factors supra.

Zurosky argues the trial court erred in its equitable

distribution order by (1) distributing the diminution in value

of the Blowing Rock Home between DOS and DOD to Shaffer; (2)

attaching exhibits to the order that were inconsistent with the

written judgment; (3) deviating from the stipulations of the

parties in the FPTO; (4) calculating the diminution in value

between the DOS and DOD of Zurosky’s interest in T&Z; and (5)

erroneously calculating the value of the parties’ jewelry. We

address each in turn.

1. Diminution in Value of the Blowing Rock Home

In the FPTO, the parties assigned $568,000 as the DOS fair

market value of the entire Blowing Rock Home and $445,000 as the

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DOD fair market value of the Blowing Rock Home, owned by Zurosky

and his law partner Mr. Tippens as tenants-in-common. The trial

court classified Zurosky’s one-half tenant-in-common interest in

the Blowing Rock home as marital property. Zurosky and Mr.

Tippens continued to pay the Blowing Rock Home’s mortgage from

DOS to DOD. On the DOD, the outstanding mortgage balance on the

Blowing Rock Home was $411,959.00. The net equity of the

Blowing Rock Home on the DOD was distributed to Zurosky. The

marital estate’s portion of the passive loss ($61,500) was

classified as divisible property and was distributed to Ms.

Shaffer.

In distributing the passive loss, the trial court relied on

Wirth v. Wirth, 204 N.C. App. 372, 696 S.E.2d 202, 2010 WL

2163367 (2010) (unpublished) (“Wirth II”).4 Zurosky argues that

relying on this case was erroneous because it was an unpublished

decision of this court and because the “plain language of N.C.

Gen. Stat. § 20(b)(4)” presumes that the diminution in value of

a marital asset is divisible unless the trial court finds that

the change was the result of postseparation actions taken by one

spouse. Wirth v. Wirth, 193 N.C. App. 657, 668 S.E.2d 603

4

The trial court wrote in its order “Wirth v. Wirth, 204 NC 372,

696 S.E.2d 202 (2010),” apparently intending to refer to the

unpublished decision of this court cited above.

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(2008) (“Wirth I”).5

Zurosky contends on appeal that the trial court’s decision

with respect to this issue was erroneous because it was

manifestly unsupported by reason such that the evidence reveals

no rational basis for the distribution. Zurosky contends that

there is a legal presumption that all appreciation and

diminution in value of the marital and divisible property must

be distributed with the property unless the court finds that the

change in value is attributable to the postseparation actions of

one spouse. Essentially, Zurosky argues that since the court

distributed the Blowing Rock property to him, its diminution in

value should also have been distributed to him absent a court

finding of misconduct on his part. We disagree.

In making its equitable distribution, the trial court

relied extensively on the Section 50-20(c) factors and cited

competent evidence in support of its findings, quoted in their

entirety supra. The trial court also cited Wirth II to support

the distribution of the diminution in value to Shaffer despite

the fact that Shaffer did not receive the property. Although

Wirth II is an unpublished opinion, an unpublished opinion may

5

Zurosky cites N.C. Gen. Stat. § 20(b)(4) (2013) in his brief,

which is clearly a typographical error. We assume Zurosky

intended to cite N.C. Gen. Stat. § 50-20(b)(4), which includes

the definition of divisible property and is quoted supra.

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be used as persuasive authority at the appellate level if the

case is properly submitted and discussed and there is no

published case on point. State ex rel. Moore Cnty. Bd. Of Educ.

v. Pelletier, 168 N.C. App. 218, 222, 606 S.E.2d 907, 909

(2005); CaroMont Health, Inc. v. N.C. Dep’t of Health & Human

Servs. Div. of Health Serv. Regulation, Certificate of Need

Section, ___, N.C. App. ___, ___, 751 S.E.2d 244, 255 (2013).

We see no reason why this principle should not apply in the

trial courts and agree that Wirth II supports the trial court’s

decision.

In Wirth II, this Court approved a distribution of the

entire passive loss of an asset to the party that did not

receive the asset. 2010 WL 2163367 at *5. The asset at issue

was a general contracting business. Id. at *1. The defendant

in Wirth II argued, much like Zurosky, that “when dealing with

divisible property consisting of post date of separation

diminution in value of an asset, the trial court should always

distribute the divisible property to the same party to whom the

marital asset is distributed.” Id. at *5 (alterations omitted).

Wirth II noted that the defendant in that case, as here,

did not cite authority requiring the trial court to distribute

an entire passive loss to “to the party who received the

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depreciated asset.” Id. Wirth II is also persuasive because it

recognized the premise upon which equitable distribution awards

are based, namely that assets in an equitable distribution are

to be considered in their totality, that equitable distribution

of marital and divisible property is within a trial court’s

discretion, and that the division is performed under equitable

principles that are, “inter alia, ‘consistent with principles of

justice and right.’” Id. at *6 (quoting Black’s Law Dictionary

617 (9th ed. 2004)). As in Wirth II, “[i]n some circumstances,

it is certainly most appropriate that a divisible loss should be

distributed to the party who has received the related asset.

However, in light of the entire equitable distribution judgment,

the previous opinion of this Court, and the record before us, we

cannot now say that the trial court abused its discretion” in

distributing the entire passive loss to Shaffer as part of its

equitable distribution judgment. Id. (emphasis added).

However, the trial court did not have to rely solely upon

Wirth II and its reliance upon that decision was essentially

lagniappe offered to provide an example in which this Court had

approved distributing the passive loss associated with an asset

to the party who did not receive the asset in question as part

of an equitable distribution judgment. Since the trial court

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considered the Section 50-20(c) factors, discussed supra, and

since its findings related to these factors were supported by

competent evidence, it was within the trial court’s discretion

to distribute the loss to Shaffer so the trial court did not err

in doing so.

Because the trial court conducted the proper analysis under

N.C. Gen. Stat. § 50-20(c) and its conclusions were supported by

findings that were, in turn, supported by competent evidence,

the trial court did not abuse its discretion by distributing the

diminution in value to Shaffer despite the fact that Zurosky

received the asset. We do not find the statutory presumption

contained in N.C. Gen. Stat. § 50-20(b) to be of assistance to

Zurosky, since the statute explicitly allows appreciation and

diminution to be characterized as “divisible,” and since the

trial court specifically found that the diminution in value at

issue here was divisible property. As such, appreciations and

diminutions may be divided among the parties, even if the asset

is distributed to one party while the passive loss is

distributed to another. Accordingly, we affirm the trial

court’s distribution of the diminution in value of the Blowing

Rock Home to Shaffer.

2. Attached Exhibits

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Zurosky next argues that the trial court erred in attaching

exhibits that were inconsistent with the decretal provisions in

the Amended Judgment & Order. We agree.

Clerical mistakes are “mistakes in judgments, orders or

other parts of the record and errors therein arising from

oversight or omission . . . .” N.C. R. Civ. P. 60. A clerical

error is defined as “[a]n error resulting from a minor mistake

or inadvertence, esp[ecially] in writing or copying something on

the record, and not from judicial reasoning or determination.”

State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878

(2000) (citation and quotation marks omitted). “When, on

appeal, a clerical error is discovered in the trial court’s

judgment or order, it is appropriate to remand the case to the

trial court for correction because of the importance that the

record speak the truth.” State v. Smith, 188 N.C. App. 842,

845, 656 S.E.2d 695, 696–97 (2008) (citations and quotations

marks omitted).

Here, the trial court attached a version of Exhibit B to

the Amended Judgment & Order that did not correspond with the

findings of fact and decretal section in the Amended Judgment &

Order. In Exhibit B, the trial court awarded Shaffer fifty-five

percent of the property and a distributive award of $771,620.

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However, in the findings of fact and decretal section, the trial

court awarded Shaffer an equal distribution of property and a

distributive award of $647,965.50 (after Rule 37 Sanctions). In

the Amended Judgment & Order, the trial court referenced the

distributions outlined in both the findings of fact and Exhibit

B, which conflict.

While Zurosky urges this Court to vacate the order in its

entirety, we decline the invitation. Although we agree Exhibit

B conflicts with the distribution described in the order, the

errors do not merit vacating the order in its entirety. The

errors made by the trial court are more properly considered

clerical errors. Accordingly, we remand this case to the trial

court to correct any inconsistencies between Exhibit B and the

order.

3. Deviation from the FPTO

Zurosky next argues the trial court erred in its

distribution of property because the trial court failed to

adhere to stipulations concerning five items contained in the

FPTO. We agree with respect to the 2009 tax returns, but

disagree concerning the other four items discussed by Zurosky.

N.C. Gen. Stat. § 50-20(d) (2013) provides:

Before, during or after marriage the parties

may by written agreement, duly executed and

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acknowledged in accordance with the

provisions of G.S. 52-10 and 52-10.1, or by

a written agreement valid in the

jurisdiction where executed, provide for

distribution of the marital property or

divisible property, or both, in a manner

deemed by the parties to be equitable and

the agreement shall be binding on the

parties.

Where an agreement provides for distribution of the parties’

marital or divisible property, or both types of property, the

agreement will be enforced. Brenenstuhl v. Brenenstuhl, 169

N.C. App. 433, 435–36, 610 S.E.2d 301, 303 (2005). In such

agreements, parties may stipulate to the classification, value

and distribution of property. See Sharp v. Sharp, 116 N.C. App.

513, 521, 449 S.E.2d 39, 43 (1994). Further:

Courts look with favor on stipulations

designed to simplify, shorten, or settle

litigation and save cost to the parties, and

such practice will be encouraged. While a

stipulation need not follow any particular

form, its terms must be definite and certain

in order to afford a basis for judicial

decision, and it is essential that they be

assented to by the parties or those

representing them. Once a stipulation is

made, a party is bound by it and he may not

thereafter take an inconsistent position.

Stovall v. Stovall, 205 N.C. App. 405, 409, 698 S.E.2d 680, 683

(2010) (citations, quotation marks, and alterations omitted)

(emphasis added). Stipulations are also considered in the same

manner as a typical contract between two parties. Id. at 409–

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10, 698 S.E.2d at 684.

Here, Zurosky argues the trial court departed from the FPTO

regarding: (1) the reward points associated with the Merrill

Accolades American Express Rewards charge card (“Item L-23”);

(2) the miles and debt related to the US Airways Dividend Miles

charge card (“Item L-24”); (3) the miles and debt related to a

second US Airways Dividend Miles charge card (“Item L-25”)6; (4)

the disbursement from the Northwestern Mutual Policy #6959

(“Item I-18”); and (5) 2009 state and federal tax refunds. We

address each item below.7

(i) Item L-23 – Merrill Accolades Reward Points

The trial court found that the reward points associated

with Item L-23 were marital property; however, the trial court

did not distribute this asset. The trial court found that it

could not value Item L-23 on the DOS, so the property remained

with the titled owner and was not distributed.

In the FPTO, the parties stipulated that Item L-23 was

6

The charge cards in L-24 and L-25 were related to separate

accounts.

7

Zurosky does not argue that the trial court erred in failing to

distribute the property, but only that the order was incorrect

because it did not adhere to the stipulations concerning each

piece of property. As such, we do not address whether the trial

court erred in choosing not to assign a value to these five

items, but only whether the trial court erred in not enforcing

the stipulations associated with each item.

-28-

marital, but otherwise did not reach an agreement about it.

Zurosky contended Item L-23 had no value both on the DOS and at

present. Shaffer, on the other hand, contended the DOS and

current values of Item L-23 were forty-eight dollars. Zurosky

also contended that he should receive Item L-23, while Shaffer

contended Item L-23 should be distributed to both herself and

Zurosky.

The foregoing constitutes ample evidence showing the

parties disagreed as to the value and distribution of Item L-23.

The trial court made the determination that the parties agreed

on, namely that Item L-23 was marital property. Accordingly, we

hold the trial court did not err with respect to Item L-23.

(ii) Item L-24 – US Airways Dividend Miles #1

The trial court found that Item L-24 was marital property,

but did not distribute Item L-24. Instead the trial court left

Item L-24 with its titled owner, Shaffer. The court could not

determine the DOS number or value of Item L-24. In the FPTO,

the parties agreed Item L-24 was marital and should be

distributed to Shaffer. However, the parties did not agree

about the associated value of the miles. Zurosky contended that

the airline miles’ value as of the DOS and current value was

unknown. Shaffer contended Item L-24 had no value on the DOS

-29-

and nor did it have value currently.

As with Item L-23, the foregoing provides ample evidence to

show the parties did not fully stipulate to the value of Item L-

24. The trial court enforced the portion of the FPTO that the

parties agreed on, that Item L-24 was marital property and that

Shaffer should receive the property. Accordingly, the trial

court did not err with respect to Item L-24.

(iii) Item L-25 US Airways Dividend Miles #2

The trial court found that Item L-25 was marital property

and split the property equally between the titled owners. In

the FPTO, the parties agreed that Item L-25 was marital.

However, the parties did not agree as to the value or

distribution of Item L-25. Zurosky contended both the DOS and

current value of the property was zero dollars. Shaffer did not

assign a DOS or current value for the property and marked “TBD”

(to be determined) for the value. Zurosky contended that he

should receive the property. Shaffer contended the property

should be distributed to both parties.

The trial court found the property was marital, as agreed

to in the FPTO. However, as with Item L-23 and Item L-24, the

foregoing is ample evidence to show the parties did not fully

stipulate to the value or distribution of Item L-25.

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Accordingly, the trial court did not err with respect to Item L-

25.

(iv) Item I-18 – Northwestern Mutual Policy

The trial court classified Item I-18 as marital property

and made a series of interim distributions after DOS but prior

to DOD. The trial court distributed $17,377 of the policy to

Zurosky, which he used to pay the real property taxes associated

with the Providence Glen Home. The order allowing this

disbursement to Zurosky was made for the purpose of satisfying

the property tax obligations associated with the former marital

home. Within the order allowing this disbursement, the parties

also “reserve[d] the right to argue as to the classification and

distribution of the funds at the Equitable Distribution trial.”

The trial court later distributed $34,000 to Shaffer on 1

November 2011 and $40,000 on 5 November 2011 as part of

equitable distribution.

In its equitable distribution judgment, the trial court

found that Item I-18 was marital property and that the DOD value

of Item I-18 was $18,000, which the trial court distributed to

Shaffer. In finding of fact 111, the trial court also found the

decrease in property tax debt on the Providence Glen Home

($17,502.75) was divisible property and distributed the decrease

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equally between the parties.

The parties stipulated in the FPTO that the DOS value of

Item I-18 was $105,922. The parties also stipulated that

Zurosky and Shaffer should each receive part of Item I-18.

However, the parties did not agree on the current value of Item

I-18. Zurosky valued the property at $18,000, and Shaffer

commented that she had no records concerning the current value

of Item I-18.

Zurosky argues that the trial court’s equal distribution of

the $17,502 decrease in the Providence Glen Home’s property

taxes violated the FPTO. However, in the prior consent order

which allowed the $17,377 disbursement from the insurance policy

to Zurosky, both parties reserved the right to dispute the

classification and distribution of the property. Additionally,

the FPTO includes stipulations concerning Item I-18, not the

decrease in property taxes on the Property Glen Home, which is

what is addressed in the finding of fact that Zurosky contests.

As such, the trial court did not err in distributing the

decrease in property taxes equally, since the parties did not

fully stipulate to the division of the decrease prior to the

equitable distribution judgment and retained the right to

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contest the classification and distribution of the property.8

(v) 2009 Tax Refunds

Finally, the trial court found that the 2009 tax refunds

were “not marital or divisible property.” The trial court found

that Zurosky and Shaffer filed a joint return for their 2009

taxes that provided for any refund to be applied to Zurosky’s

individual 2010 state and federal tax returns. The total tax

refunds from 2009 were $69,919.9

Zurosky and Shaffer both stipulated in the FPTO that the

2009 tax refunds were divisible property.10 The parties did not

stipulate as to the value of the 2009 tax refunds; Zurosky

contended the refund’s value was $4,135 and Shaffer contended

that the refund’s value was $5,827.

Rather than divide the property or make a finding that the

evidence of value was not sufficiently credible to allow

8

The parties also did not fully stipulate to the remaining value

of Item I-18 itself. The trial court correctly classified Item

I-18 according to the parties’ stipulation (specifically that

the property was marital) and distributed the property to

Shaffer.

9

This figure includes $57,321 in federal tax refunds and $12,598

in state tax refunds.

10

In Shaffer’s appellate brief, she also states, “the parties

stipulated that the funds [the tax returns] were

divisible . . . .”

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allocation of the 2009 tax refunds, the trial court found that

the 2009 tax refunds were neither marital nor divisible property

and made no division. This was in error, since the parties

stipulated that this property was divisible. As such, we

reverse and remand this case to the trial court to reclassify

the property as divisible and to distribute the property if

there is credible evidence supporting the value of the asset.11

4. Valuation of T&Z

In an equitable distribution case, the trial court is the

fact-finder. Grasty, 125 N.C. App. at 739, 482 S.E.2d at 754.

Fact-finders have a right to believe all, none, or some of a

witness’ testimony. Brown v. Brown, 264 N.C. 485, 488, 141

11

This Court has held that a trial court is obligated to make

specific findings regarding the value of property in an

equitable distribution order. Poore v. Poore, 75 N.C. App. 414,

422, 331 S.E.2d 266, 272, disc. rev. denied, 314 N.C. 543, 335

S.E.2d 316 (1985). However, the obligation to assign a value to

marital property in an equitable distribution exists only when

there is credible evidence supporting a finding concerning the

value of the asset. Albritton v. Albritton, 109 N.C. App. 36,

40–41, 426 S.E.2d 80, 83–84 (1993).

Whether evidence is credible is in the discretion of the trial

court. Grasty v. Grasty, 125 N.C. App. 736, 739, 482 S.E.2d

752, 754, disc. rev. denied 346 N.C. 278 (1997). Accordingly, a

trial court is not required to distribute marital property if

there is not sufficient evidence of value. Id; see also 1 N.C.

Family Law Practice § 6:41 (“If the only evidence concerning a

particular asset is ‘wholly incredible and without reasonable

basis’ the asset need not be valued in an equitable distribution

proceeding.”).

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S.E.2d 875, 877 (1965). Subjective opinions about the value of

property are admissible and competent. Responsible Citizens in

Opposition to Flood Plain Ordinance v. City of Asheville, 308

N.C. 255, 271, 302 S.E.2d 204, 214 (1983). An appellate court

should not “second-guess values of . . . property where there is

evidence to support the trial court’s figures.” Crutchfield v.

Crutchfield, 132 N.C. App. 193, 197, 511 S.E.2d 31, 34 (1999)

(citations and quotations omitted). We apply these principles

to both the diminution in value of T&Z as well as the valuation

of the jewelry Zurosky contests.

(a) Active or Passive Changes

Zurosky argues the trial court erred in its distribution of

the diminution in value of T&Z because there was not a finding

that the decrease was an active change. We disagree first that

the trial court erred by deviating from the FPTO, as the parties

did not stipulate to the divisibility of Zurosky’s interest in

T&Z.12 We also disagree with Zurosky’s contention that the trial

court erred in distributing the diminution in value of T&Z to

Shaffer because there was no diminution in value under the trial

court’s equitable distribution judgment.

The trial court specifically found there was no credible

12

Shaffer specifically marked “ND” for Not Divisible in the

FPTO.

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evidence concerning the DOD value of T&Z and accordingly used

the same value at DOS and DOD: $1,038,000. The trial court

stated in finding of fact 264 that there was no need to

determine the active versus passive components of the change in

value from the DOS to the DOD, which is correct because the DOD

and DOS values are equal under the equitable distribution order.

Without a diminution in value, there is not an active or passive

change to consider, and the trial court did not err in choosing

not to determine active or passive components for a net change

of $0 between DOS and DOD. We next consider Zurosky’s arguments

concerning the valuation of T&Z the trial court chose to accept.

(b) DOD Value of T&Z

Zurosky argues the trial court erred in its valuation of

Zurosky’s interest in T&Z. We disagree. Both parties hired

business valuation experts to calculate the value of Zurosky’s

interest in T&Z. Zurosky’s expert, Ms. Foneville, calculated

T&Z’s DOS value as $830,000 and DOD value as $450,000.

Shaffer’s expert, Mr. Mitchell, calculated T&Z’s DOS value as

$1,038,000 and DOD value as $554,000. The trial court accepted

Mr. Mitchell’s estimate for the DOS value of T&Z. The trial

court found Mr. Mitchell’s report addressed excess cash more

thoroughly, contained a more accurate depiction of the owners’

-36-

compensation, and did not contain the errors in calculations

found in Ms. Foneville’s report. The trial court also commented

that Shaffer was at a disadvantage in gathering information

pertaining to T&Z’s value.

However, the trial court declined to accept Ms. Foneville

or Mr. Mitchell’s estimate of the DOD value. The trial court

found the reports to be unreliable because the reports were

dated six months apart and Mr. Mitchell’s report was nine months

old at the DOD. Further, the trial court considered the success

of T&Z in 2012. Both experts computed the DOD value using T&Z’s

2011 numbers. The trial court, finding the DOD values to be

unreliable, chose to distribute the property at the DOS value

($1,038,000).

The trial court did not err in its use of the DOS value of

T&Z. “The credibility of the evidence in an equitable

distribution trial is for the trial court.” Grasty, 125 N.C.

App. at 739, 482 S.E.2d at 754. If the trial court finds

evidence to be unreliable, it does not err in failing to value

that asset using the unreliable evidence. Id. at 739, 482

S.E.2d at 754. Accordingly, it was within the trial court’s

discretion to use T&Z’s DOS value instead of the DOD values

provided by experts.

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5. Valuation of Jewelry

Zurosky next argues the trial court erred in its valuation

of the parties’ jewelry. The trial court relied on jewelry

valuations provided by Shaffer rather than expert testimony

provided by Zurosky. Zurosky’s expert, Joey Stagnone, provided

current values for some of the parties’ jewelry. Stagnone

estimated the current value of the platinum three-stone diamond

ring as ten to twenty thousand dollars more than the DOS value.

Stagnone also assigned a current value of $450 more than the DOS

value for the Tiffany platinum and diamond “pinched heart”

pendant. Shaffer estimated the DOS and current values of the

jewelry to be between twenty-five to thirty percent of the

purchase price. The trial court decided Zurosky’s expert was

not credible. As the fact-finder, the trial court is allowed to

weigh the credibility of testimony. Accordingly, it was within

the trial court’s discretion to rely on Shaffer’s values instead

of the values given by an expert, and the trial court did not

abuse its discretion.

B. Child Support and Alimony Order

1. Computation of Zurosky’s Income

Zurosky next argues the trial court erred in its award of

alimony and child support because the trial court failed to use

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his actual income at the time of the order. We disagree.

A party’s actual income at the time of the order is

typically considered. Megremis v. Megremis, 179 N.C. App. 174,

182, 633 S.E.2d 117, 123 (2006) (citing Kowalick v. Kowalick,

129 N.C. App. 781, 787, 501 S.E.2d 671, 675 (1998)). However,

if a party acts in bad faith (e.g. deliberately depressing

income or excess spending) the trial court may consider a

spouse’s capacity to earn. Id.; Hartsell v. Hartsell, 189 N.C.

App. 65, 77, 657 S.E.2d 724, 731 (2008).

In Diehl v. Diehl, 177 N.C. App. 642, 630 S.E.2d 25 (2006),

the trial court did not make a finding of bad faith or have

evidence that the spouse deliberately depressed his income; the

trial court used prior years’ incomes because the trial court

did not have sufficient evidence regarding his actual income.

Id. at 649–50, 630 S.E.2d at 30–31. In Diehl, the husband’s

numbers were considered “highly unreliable,” forcing the trial

court to rely on previous years’ income. Id. at 650, 630 S.E.2d

at 30.

Here, the trial court did not expressly make a finding of

bad faith or find that Zurosky schemed to deliberately depress

his income. As in Diehl, the trial court expressed concerns

about Zurosky’s reported income and found that Zurosky’s numbers

-39-

were not credible. The trial court did not find Zurosky’s

reported income to be credible for several reasons: (i) Zurosky

overstated his monthly tax payments; (ii) Zurosky reported he

was operating at a significant deficit each month; (iii) Zurosky

did not report a significant amount of spending in his financial

affidavits; and (iv) the evidence conflicted concerning

Zurosky’s work habits post-DOS. To properly determine alimony

and child support, the trial court relied on Zurosky’s net

income from 2003–08 as a reliable statement of his income.

Zurosky argues Godley v. Godley, 110 N.C. App. 99, 429

S.E.2d 382 (1993) controls this case. In Godley, this Court

held the trial court erred by considering a spouse’s income from

1984–88 for purposes of entering a judgment filed in 1991. Id.

at 118, 429 S.E.2d at 393. However, the trial court in Godley

did not find, as here, that the spouse provided unreliable

income figures and expressed no concern about the income

reported at the time of distribution; the trial court simply

chose a different timespan to determine the spouse’s income.

Id. at 118, 429 S.E.2d at 393. Godley simply re-states the

general rule that income at the time of the order is typically

considered, and this Court then applied that general rule. Id.

at 118, 429 S.E.2d at 393; Megremis, 179 N.C. App. at 182, 633

-40-

S.E.2d at 123.

This case is analogous to Diehl, as there were several

concerns expressed by the trial court over the reliability of

Zurosky’s reported income. Zurosky also argues this case is

distinguishable from Diehl because the trial court in Diehl used

income from the two years preceding the order, and in this case,

the trial court used Zurosky’s income over a longer span, from

2003–08. Id. at 650–51, 630 S.E.2d at 31. We also disagree

with this contention; the trial court’s use of Zurosky’s 2003–08

income simply reflects a choice by the trial court to consider

Zurosky’s income before Zurosky had reason to alter the reported

figure. Accordingly, the trial court’s use of Zurosky’s income

between 2003–08 was rational given the state of the evidence and

did not constitute an abuse of discretion.

2. Retroactive Child Support

Zurosky’s final argument is that the trial court erred in

awarding retroactive child support. We disagree and hold there

was sufficient evidence to support the trial court’s award. We

remand to correct certain clerical errors within the trial

court’s order.

N.C. Gen. Stat. § 50–13.4(c) (2013) includes a presumption

that the trial court shall apply the North Carolina Child

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Support Guidelines (“Guidelines”), which are promulgated by the

Conference of Chief District Judges under the authority granted

by N.C. Gen. Stat. § 50-13.4(c1) (2013).13 The Guidelines also

include certain presumptions which place child support orders

outside of the Guidelines. See Loosvelt v. Brown, ___ N.C. App.

___, ___, ___ S.E.2d ___, ___, COA13-747, 2014 WL 3409156 at *7–

8 (2014); see also Guidelines, 2014 Ann. R. N.C. 50, available

at http://www.nccourts.org/forms/documents/1226.pdf. One such

presumption is that “[i]n cases in which the parents' combined

adjusted gross income is more than $25,000 per month ($300,000

per year), the supporting parent’s basic child support

obligation cannot be determined by using the child support

schedule.” Guidelines, 2014 Ann. R. N.C. 50. Here, the trial

court found as fact that the parties’ combined gross income was

$61,011 per month, placing the parties’ child support

obligations outside of the Guidelines. Neither party disputes

that the present case is properly outside of the Guidelines.

13

We also note that the General Assembly recently passed

legislation which amends the obligation of the Conference of

Chief District Judges to require it to prescribe guidelines for

the computation of child support obligations in retroactive

support cases. See N.C. Sess. Laws 2014-77, § 8. This statute

was effective at the time it was passed, 15 July 2014, and is

not applicable to the present matter.

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Prospective child support is support awarded from the time

a party files a complaint for child support to the date of

trial. 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); see also Carson v. Carson, 199 N.C. App. 101, 105,

680 S.E.2d 885, 888 (2009). For prospective child support in a

non-Guidelines child support case, the trial court must consider

several factors to establish a child support obligation:

Payments 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.

N.C. Gen. Stat. § 50-13.4(c); see also Loosvelt, ___ N.C. App.

at ___, ___ S.E.2d at ___, 2014 WL 3409156 at *6.

Retroactive child support is support “awarded prior to the

time a party files a complaint. . . .” Taylor, 118 N.C. App. at

361, 455 S.E.2d at 446. Retroactive child support has two

varieties, as outlined in Biggs v. Greer, 136 N.C. App. 294, 524

S.E.2d 577 (2000):

The distinction between two types of

retroactive support is pertinent sub judice.

In the absence of an existing child support

order, an amount of child support awarded

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prior to the date a party files a complaint

therefor is properly classified as

retroactive child support and is not based

on the presumptive Guidelines. Although

prospective child support based upon the

presumptive Guidelines requires no factual

findings regarding the child’s reasonable

needs or the supporting parent’s ability to

pay, the trial court must set out specific

findings of fact in a reimbursement award

for retroactive support, so as to reflect

the court’s consideration of the reasonably

necessary actual expenditures under G.S. §

50–13.4(c) made on behalf of the child as

well as the defendant’s ability to pay

during the period in the past for which

retroactive support is sought.

The second type of retroactive child support

is that involved herein, i.e., a retroactive

increase in the amount provided in an

existing support order.

Id. at 300–01, 524 S.E.2d at 583 (citations, alterations, and

quotation marks omitted) (emphasis in original). In the case

sub judice, there is no prior child support order so we apply

the standard applicable to the first variety of retroactive

child support. Accordingly, the trial court applies an

identical standard to both prospective and retroactive child

support payments; the standard outlined in N.C. Gen. Stat. § 50-

13.4(c) that considers the parties’ ability to pay as well as

the reasonably necessary expenses made on behalf of the child.

The trial court ordered child support from 3 December 2009,

the date the trial court listed for the filing of Zurosky’s

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complaint, to 29 June 2012, the final hearing date.14 Shaffer

did not file a complaint seeking child support until 24 February

2010. Thus, there are two periods of child support granted

under the trial court’s order. The first is a retroactive child

support award from 3 December 2009 to 24 February 2010 as listed

on the order. This period is retroactive because it is an award

granted prior to Shaffer’s filing of a child support claim.

Taylor, 118 N.C. App. at 361, 455 S.E.2d at 446. The second

period spans from 24 February 2010 to 29 June 2012, or the

period from the filing of the complaint to the final hearing

date. This is prospective child support. Id.

We must next determine whether the trial court made

sufficient findings under the relevant factors set forth in N.C.

Gen. Stat. § 50-13.4(c) to support the retroactive and

prospective child support awards. Here, there were long-form

financial affidavits filed with the trial court as well as

Shaffer’s testimony concerning the children’s reasonable and

necessary expenses. The trial court made extensive findings of

fact concerning the parents’ income levels, the children’s

health, activities, educational needs, travel needs,

entertainment, work schedules, living arrangements, and other

14

As provided above, the actual date Zurosky filed his complaint

was 23 December 2009.

-45-

household expenses. After careful review, we determine that

sufficient evidence existed for (i) the trial court’s award of

retroactive child support from the filing of Zurosky’s complaint

on 3 December 2009 to the 24 February 2010 filing of Shaffer’s

child support complaint and (ii) the trial court’s award of

prospective child support from 24 February 2010 to 29 June 2012.

As noted above, the trial court used an incorrect date for

both (a) the date the child support complaint was filed and (b)

the date Zurosky filed his complaint. The trial court also

mislabeled the type of child support provided in the relevant

periods outlined above. We remand this portion of the trial

court’s order to correct these errors consistent with this

opinion.

IV. Conclusion

For the reasons stated above, the trial court’s judgment

order is

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

Judges ERVIN and DAVIS concur.