# Roberts v. McAllister

> Court of Appeals of North Carolina · November 15, 2005 · 174 N.C. App. 369

URL: https://www.frixlaw.com/law-library/cases/9560810

## Case

- **Full name:** SUSAN SINCLAIR McALLISTER ROBERTS, Plaintiff-Appellant v. MICHAEL W. McALLISTER, Defendant-Appellee
- **Court:** Court of Appeals of North Carolina
- **Decided:** November 15, 2005
- **Citations:** 174 N.C. App. 369; 621 S.E.2d 191; 2005 N.C. App. LEXIS 2490
- **Precedential status:** Published
- **Opinion:** Concurring in part by Jackson
- **Judges:** Bryant, Wynn, Jackson
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9560810

## How later opinions describe it (automated extraction)

- reversing and remanding in part for findings to support amount of child support awarded
- reversing and remanding in part for findings to support *159 amount of child support awarded

## Opinion text

JACKSON, Judge,
concurring in part and dissenting in part.
I concur with the majority in its holdings affirming the payment of half of the children’s uninsured medical expenses and the payment of defendant’s attorneys’ fees. However, I respectfully dissent from the portion of the majority opinion holding that the trial court properly deviated from the North Carolina Child Support Guidelines.
The majority correctly states that the trial court must follow a four-step process in order to deviate from the North Carolina Child Support Guidelines. While I agree with the majority that the trial court adequately followed the first three of these steps, I disagree that it sufficiently followed the final step to allow this Court to conduct an effective review of its decision. This final step requires the trial court to make “written findings of fact showing the presumptive child support amount under the Guidelines; the reasonable needs of the [children]; the relative ability of each party to provide support; and that application of the Guidelines would exceed or would not *383 meet the reasonable needs of the [children] or would be otherwise unjust or inappropriate.” Spicer v. Spicer, 168 N.C. App. 283, 292 , 607 S.E.2d 678, 685 (2005) (citation omitted). Failure to make findings of fact, which are adequate to allow sufficient appellate review, regarding this issue requires that the case be remanded to the trial court for further findings of fact. Gowing v. Gowing, 111 N.C. App. 613 , 432 S.E.2d 911 (1993).
The trial court’s finding of fact pertaining to the presumptive child support amount was sufficient, as it demonstrated that plaintiff’s support obligation pursuant to the guidelines would be $50.00— the minimum support obligation provided for by the guidelines, regardless of whether income was imputed to her or not. However, I would hold that the trial court’s findings of fact as to the remaining considerations were insufficient.
In its findings of fact relative to the reasonable needs of the children, the trial court made the following finding of fact:
Defendant’s household expenses are as follows: The mortgage payment is $1,100.00 per month, the car payment is $132.00 per month; transportation expenses are $54.00 per month; utilities total $482.00 per month; food and school lunches are $1,866.00 per month; the total household expenses (housing, utilities, vehicle and food) shared by the eight family members are $3,634.00 per month. These expenses do not include any expenses related to specific individuals, but are the expenses for all of the persons in the household. These expenses are substantial, but in light of the fact the household consists of six children and two adults, they do not appear to be unreasonable or inflated. The only reasonable way to determine the children’s expenses for shelter, food and transportation, is to divide those total household expenses by the number of household members. Three-eights of that expense is $1,362.75 per month.
Because defendant’s new wife, new child and two step-children also lived in the house, use of this division of expenses is impermissible as it potentially imposes a support obligation on plaintiff for members of the household other than plaintiff’s children. Evans v. Craddock, 61 N.C. App. 438, 441 , 300 S.E.2d 908, 911 (1983). The use of this impermissible allocation results in the trial court’s findings of fact regarding the reasonable needs of the children being inadequate to allow this Court to review the trial court’s ultimate determination. *384 Accordingly, I would remand this case for further findings of fact regarding the reasonable needs of the McAllister children.
In addition, I would hold that the trial court’s findings of fact regarding plaintiff’s ability to provide support are insufficient. In its findings regarding plaintiff’s estate, earnings and condition, the trial court emphasizes the substantial income of plaintiff’s current husband even though he has no support obligation to the McAllister children — the children in question here. Duffey v. Duffey, 113 N.C. App. 382, 384 , 438 S.E.2d 445, 447 (1994). The North Carolina Child Support Guidelines specifically exclude the income of a parent’s new spouse from the calculation of that parent’s income for support purposes. ÁOC-A-162, Rev. 10/02 p. 3. Nonetheless, it was proper for the trial court to note that plaintiff’s new husband provided for all of her expenses as that fact bears directly upon her condition. When the new spouse provides for all expenses, the support obligation may be calculated without deducting expenses from the supporting parent’s income. Hamilton v. Hamilton, 57 N.C. App. 182, 184 , 290 S.E.2d 780, 781 (1982). Further, “the contributions of a third party may be used to support deviation from the child support guidelines.” Guilford County by & Through Child Support Enforcement Agency v. Easter, 344 N.C. 166, 171 , 473 S.E.2d 6, 9 (1996).
In its findings regarding plaintiff’s estate, the trial court found that plaintiff had marital interests in: joint accounts with her new husband with balances totaling $33,500.00; another account consisting of proceeds from the sale of the Robert’s marital home in Maryland valued at $50,000.00; and $300.00 per month in rental income. The trial court went on to find that the joint accounts may have included amounts deposited by plaintiff representing a $75,000.00-80,000.00 lump sum payment received by plaintiff as an equitable distribution settlement, a lump sum alimony payment, and child support arrears, all from defendant. The trial court made no specific findings as to how much of the lump sum payment was attributable to the alimony or child support arrears. The trial court further found that the account balances also might have reflected deposits from the proceeds of the sale of plaintiff’s car — for which no value was found — and a $20,000.00 cash inheritance plaintiff received from her mother’s estate. No findings of fact were made that account for the extreme disparity between the amounts possibly contributed to the accounts by plaintiff (at least $95,000.00-100,000.00) and the current balance or balances of $35,000.00. Also included in plaintiff’s estate by the trial court was a one-fifth interest in her mother’s home *385 of indeterminate value. Given this lack of specificity, I would hold that it is impossible for this Court to make a sufficient determination of the value of plaintiffs estate and its corresponding effect on her ability to pay support for her children from these findings.
With regard to plaintiffs ability to pay support, I would hold that the trial court erred in imputing income to plaintiff. The North Carolina Child Support Guidelines require that a parent’s voluntary unemployment or underemployment be the result of the “parent’s bad faith or deliberate suppression of income to avoid or minimize his or her child support obligation . . . .” AOC-A-162, Rev. 10/02 p. 3.
The trial court made findings of fact relating to plaintiff’s lack of recent employment history and the fact that her unemployment had been, and continues to be, the result of her decision not to work until her children reach school age. The trial court further found that plaintiff had no intention of obtaining employment, consistent with her decision to stay home with her children considering the fact that she had a three-month-old child at the time of the hearing. This decision reflects a personal choice made jointly with each spouse during the course of their respective marriages.
Based upon these findings of fact, the trial court concluded that: (1) plaintiff’s unemployment was voluntary; (2) plaintiff had disregarded her obligation to support her three children with defendant; (3) plaintiff’s actions were intentional and willful avoidance and deliberate disregard of her support obligation to her children with defendant. The only conclusion referenced above that is supported by competent evidence is that plaintiff’s unemployment was voluntary. There was no evidence in the record to support the conclusion that plaintiff willfully and intentionally avoided or deliberately disregarded her support obligation. Plaintiff simply adopted the same parenting arrangement with her new spouse that she had with defendant. See Pataky v. Pataky, 160 N.C. App. 289, 307 , 585 S.E.2d 404, 416 (2003) (“ ‘[t]he dispositive issue is whether a party is motivated by a desire to avoid his reasonable support obligations.’ ”) (quoting Wolf v. Wolf, 151 N.C. App. 523, 527 , 566 S.E.2d 516, 519 (2002)). Significantly, this parenting arrangement is substantially the same as the arrangement defendant has with his current spouse who works part-time and earns only $333.00 per month.
Further, nowhere in the trial court’s findings of fact or conclusions of law is there any suggestion that plaintiff’s unemployment was a result of a “bad faith or deliberate suppression of income to *386 avoid or minimize [] her child support obligation” as required for the imputation of income under the North Carolina Child Support Guidelines. Consequently, I would hold that the imputation of income to plaintiff was erroneous as it is not supported by the evidence.
Accordingly, I would hold that the trial court failed to make findings sufficient to allow adequate review of the decision to deviate from the statutory child support guidelines. I would remand this action to the trial court for further findings of fact regarding the reasonable needs of the children and plaintiffs estate and reverse the trial court’s decision to impute income to plaintiff.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9560810. Public record. Not legal advice.