Eidson v. Kakouras ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-741
No. COA21-373
Filed 15 November 2022
Forsyth County, No. 17 CVD 941
KRISTI C. EIDSON, Plaintiff,
v.
THEOFANIS K. KAKOURAS, Defendant.
Appeal by defendant from orders entered 6 June 2019, 9 December 2019, 20
January 2021, and 26 March 2021 by Judge Lisa V. L. Menefee in District Court,
Forsyth County. Heard in the Court of Appeals 8 February 2022.
Connell & Gelb PLLC, by Michelle D. Connell, and Fox Rothschild LLP, by Kip
D. Nelson, for plaintiff-appellee.
Carolyn J. Woodruff, Jessica Snowberger Bullock, and Y. Michael Yin, for
defendant-appellant.
STROUD, Chief Judge.
¶1 This appeal arises from an extraordinarily protracted and contentious child
support case. After trying for ten years to obtain an order establishing Father’s child
support obligation, the parties managed to secure several orders including a 2021
Child Support Order, but for the reasons addressed below, we must vacate that order
and several others and remand for additional proceedings and entry of a new order.
Most unfortunately, both children have now attained the age of 18, so the child
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support order on remand will be entirely for past support.
¶2 Defendant-Appellant (“Father”) appeals from the 20 January 2021 Child
Support Order (“Child Support Order”) establishing permanent child support, the 26
March 2021 Amended Child Support Order (“Amended Order”) correcting clerical
mistakes as to the January Child Support Order, the 26 March 2021 order allowing
Mother’s Rule 59 motion to amend the January Child Support Order, the
interlocutory 6 June 2019 Order (“2019 Order”) establishing Father’s income, and two
orally rendered orders from 6 December 2019 denying Father’s motion to change
venue to Surry County and motion for reconsideration under Rules of Civil Procedure
59 and 60. Father argues the trial court erred in calculating each parent’s income,
erred in finding a substantial change in circumstances warranting modification of the
2011 Temporary Order establishing child support after it was deemed to have become
permanent in 2014, and that the “delays in hearings and entry of an order made this
case prejudicial to Appellant-Father and confused the trial court.” (Capitalization
altered.) We hold the trial court erred by relying on an undocumented stipulation to
calculate child support based upon the parties’ incomes in 2014 and 2016 instead of
using the most current income information; erred in the calculation of the parties’
incomes; and did not err in finding a substantial change of circumstances justifying
modification of child support from both 2014 and 2016. We also hold the delays
between the evidentiary hearings and the entry of the 2021 Child Support Order did
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prejudice Father. We vacate the trial court’s Child Support Order, Amended Order,
and 2019 Order and remand for further proceedings.
I. Background
¶3 The parties were married in 1997; their two children were born in 1998 and
2003. The parties separated in January 2011 and divorced in 2012. By the time of
this appeal, both children had reached the age of majority.
¶4 Litigation regarding establishment of child support began in February 2011.
Both parties resided in Surry County. Mother filed a complaint in Surry County
seeking child custody, child support, an interim equitable distribution, and equitable
distribution. Father counterclaimed for child custody and moved to dismiss the
equitable distribution claim based upon the parties’ premarital agreement. On 23
February 2011, the trial court in Surry County entered a Temporary Order, without
prejudice, establishing temporary custody and child support. Father was ordered to
pay child support of $1300 per month, beginning 1 March 2011, with Father to be
reimbursed for any overpayment if the permanent child support obligation ended up
being set at less than $1300 per month. The Temporary Order also required Father
to continue paying the mortgage on the family home, as well as related maintenance
expenses such as insurance and taxes, so Father was paying a total of $2600 to $3000
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per month under the Temporary Order.1 The Temporary Order did not include
detailed findings of fact but did include a child support calculation on Worksheet A,
attached to the order. The Worksheet only contains minimal information. Worksheet
A noted “Plaintiff (F)” had a gross income of $5,833 per month and “Defendant (M)”
had no income; the Basic Child Support Obligation was $1,296 per month. All other
fields of the Worksheet, including “adjustments,” contain a “0” or “0.00%.”2 Thus, the
Worksheet showed Father’s child support obligation as $1,296 per month.
¶5 Later in 2011 and 2012, Mother filed motions regarding custody and visitation,
alleging a dispute between the parties about Father’s plans to take the children on a
summer trip to visit family in Greece. On 11 February 2013, the Surry County
District Court began a hearing on the issue of child custody. Following a five-day
trial, the trial court entered an order 16 May 2013 establishing permanent child
custody. The 2013 Child Custody Order granted joint custody to the parties, with
primary physical custody with Mother, and it set out detailed provisions regarding
the parties’ time with the children during summers, including allowing Father to take
the children to Greece for four weeks during summers in even-numbered years. The
1 Father’s obligation to pay the mortgage and home-related expenses was stated in
the Temporary Order. These numbers are based upon evidence from Father’s amended
Financial Standing Affidavits and arguments in our record.
2 The Worksheet erroneously listed Father as Plaintiff and Mother as Defendant but
it did clearly identify the parties by their first names and as “Mother” and “Father.” The
parties are correctly identified on the Temporary Order itself.
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Child Custody Order also decreed that:
all other provisions of the prior Temporary Order in
regards to the possession of real and/or personal properties,
the payment of expenses, and the issue of child support, are
not modified by the entry of this Order and are reserved by
the Court for future hearing upon the scheduling of either
party.
¶6 In September 2014, the parties entered into a Memorandum of Judgment
resolving their claims regarding division of their property. In December 2014, Mother
filed a “Motion to Establish Child Support” or in the alternative “Motion to Modify
Child Support.” She alleged the parties were still under the Temporary Order from
2011 and the Permanent Child Custody Order had been entered in 2013. She also
alleged changes in circumstances since 2011, including changes in the parties’
incomes, the change in the custodial schedule, and the fact that over three years had
passed since the Temporary Order was entered. In addition, Father had purchased
Mother’s interest in the former marital home, so Father was no longer paying the
mortgage and other household expenses under the 2011 Temporary Order for the
benefit of Mother and the minor children.
¶7 In October 2015, Father filed a Motion for Judicial Appointment, requesting
that the Administrative Office of the Courts appoint a judge to preside over the case
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due to conflicts of interest with judges in District 17B.3 In December 2015, Father
filed a Motion for Deviation from the child support guidelines, alleging Mother had
been receiving substantial income from gifts or contributions and free use of credit
cards. In October 2016, Father filed a motion to modify child support alleging the
oldest child had attained the age of 18 and graduated from high school in 2016.
¶8 In January 2017, Wife filed a motion to change venue of the case to Forsyth
County. She alleged the case had been pending for five years, and despite many
calendar requests and notices of hearing, only a few issues had been resolved. She
also noted the existence of “conflicts” regarding the judges and parties in Surry
County and alleged the parties consented to a change of venue to Forsyth County.
On 30 January 2017, the trial court entered a Consent Order changing venue of the
case to Forsyth County.
¶9 On 13 February 2017, the trial court in Forsyth County held a hearing to
determine if the 2011 Temporary Order should be considered as a temporary order or
a permanent order. On 21 February 2017, the trial court entered an order concluding
that the 2011 Temporary Order had become a permanent order (“2017 Order”), so a
3 The Forsyth County trial court’s order of 21 February 2017 found two judges in the
Stokes/Surry Judicial District had been “conflicted out of hearing this case;” one judge was a
neighbor of Mother and another had a conflict arising from his 2014 campaign. These
conflicts left only two other District Court judges in District 17B available to hear the case,
with only two weeks of civil court per month in the district, so the unavailability of two judges
and limited court time made the case difficult to schedule.
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party must demonstrate a substantial change of circumstances from the date the
order became “permanent” to modify the order. Specifically, the trial court concluded
that:
3. By the time [Mother] filed her Motion to Establish
and/or Modify Child Support on December 8th, 2014,
enough time had passed such that the prior Order entered
by Judge Neaves on February 23rd, 2011, had become
permanent.
4. By the time [Father] filed his Motion to Modify Child
Support on October 21st, 2016, enough time had passed
such that the prior Order entered by Judge Neaves on
February 23rd, 2011, had become permanent.
Neither party has noticed appeal from the 2017 Order, so we must review the orders
on appeal in light of the 2017 Order. The trial court and parties have treated the issue
of modification of child support as being modification from the 2011 Temporary Order
(“the prior Order entered by Judge Neaves on February 23rd, 2011”) based upon both
dates, 2014 and 2016. It is not clear how, or why, the Temporary Order could become
a permanent order twice, but that is what the 2017 Order says. Another possible
interpretation of the Temporary Order becoming permanent twice, in both 2014 and
2016, would be that it became permanent in 2014; it was “modified” in 2016 and thus
became permanent again; and then it would be modifiable thereafter using 2016 as
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the baseline “permanent” order.4 But that is not the interpretation of the dates of the
order becoming “permanent” twice the parties and trial court used in the hearings,
so we will treat the modification as being from the 2011 baseline in both 2014 and
2016, only because the 2017 Order was not appealed and that was the approach taken
before the trial court.
¶ 10 In late 2017 and early 2018, both parties filed various motions regarding the
child support matter and both filed updated financial affidavits. On 24 January and
11 April 2018, the trial court held hearings to determine Father’s income for 2014
and 2016. Apparently, the purpose for holding a hearing to establish his income for
only these particular years was to establish the baseline for consideration of the
motions to modify child support, based upon the trial court’s February 2017 Order
which held the 2011 Temporary Order became a permanent child support order in
both 2014 and 2016.5 On 6 June 2019, the trial court entered an order establishing
4 We suggest that entering an order to declare one prior temporary child support order
as “permanent” on two different dates without making the findings as to the relevant
circumstances as of the dates of both the newly-declared “permanent” orders fails to simplify
the case; here, the declaration of permanency—twice—has made our review incredibly
complex. And since a modification of child support can relate back to the date of the motion
to modify—unlike a child custody modification—it is not clear to us why there would ever be
any need for a declaration of permanency. But neither party appealed this order, and we
must proceed accordingly.
5 If the 2011 Temporary Order became a permanent order in 2016, the holding in the
21 February 2017 Order that the Temporary Order became permanent in 2014 would
normally be irrelevant to our analysis. We would consider only 2016 as the baseline for
modification going forward. But as noted above, we are bound by the trial court’s order
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the parties’ incomes from 2014 and 2016 (“2019 Order”). The primary focus of the
2019 Order is Father’s income so it includes detailed findings of fact regarding
Father’s businesses, restaurants, rental properties, transfers of funds to Greece,
foreign bank accounts, and other matters. In short, Father’s sources of income are
complex and the amounts of income vary year to year. The trial court found Father’s
income for 2014 as $297,618, and his income for 2016 as $345,098.
¶ 11 On 17 June 2019, Father filed a motion to change venue of the case back to
Surry County and a motion for reconsideration under Rules 59 and 60. In November
2019, Mother filed a new financial affidavit. In December 2019, Father filed
“Objections and Defenses” alleging discrimination based upon his national origin, as
he was from Greece; he alleged that “[i]n the time-honored tradition of immigrants,
Defendant Father has remitted funds to his family in Greece and thee [sic] funds
have never been available for the child’s accustomed standard of living.” He also
alleged, as to “Due Process and Notice” that “[t]o say that the Temporary Child
Support Order of Judge Neaves became permanent before its declaration as a
permanent order by Judge Sipprell on February 21, 2017, constitutes a lack of notice
to Defendant Father that the order had become permanent” and “[t]here should be
no retroactivity prior to February 21, 2017.”
establishing both 2014 and 2016 as the points when the 2011 Temporary Order became
permanent.
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¶ 12 The trial court held another hearing regarding child support on 9 and 10
December 2019. At the start of the hearing, the trial court noted there had been a
“chambers meeting” with counsel and the hearing “is a continuation of child support
hearing” and the “first part of the hearing” was in 2018, referring to the hearing to
establish Father’s income for 2014 and 2016. Counsel for each party addressed
various pending motions, including Father’s motions for change of venue and Father’s
Motion under Rule 59 and 60; the trial court orally denied the motions for change of
venue and the Rule 59 and 60 motion, although no written order was ever entered.
Both parties then presented evidence regarding their incomes and expenses and the
expenses of the children. The trial court took the matter under advisement and did
not render a ruling at the close of the trial.
¶ 13 Before the order was entered, the COVID-19 pandemic began, and Governor
Roy Cooper issued various executive orders restricting activities. Some of the
executive orders affected the operations of restaurants. One of the initial executive
orders related to COVID-19 on 17 March 2020, Executive Order No. 118, limited the
operations of restaurants to “Carry-Out, Drive-Through, and Delivery Only.” Office
of Governor Roy Cooper, Executive Order No. 118 (March 17, 2020),
https://governor.nc.gov/media/1760/open.
¶ 14 On 5 May 2020, Father filed another Motion to Change Venue back to Surry
County, alleging that neither party resides, works, or owns property in Forsyth
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County. He also alleged that “[d]ue to the outbreak of COVID-19, a statewide Stay
at Home Order has been issued that severely limits unnecessary travel,”
(capitalization altered), and that the change of venue back to Surry County would
reduce unnecessary travel for both parties. Father also filed a Motion to Modify Child
Support. He alleged modification of child support was necessary based on substantial
changes in circumstances “since the entry of said Order6 and since the last set of
hearings[.]” Father alleged specifically that the Temporary Order was entered in
2011, and “[a]n Order was entered on February 21, 2017, whereby the Temporary
Order of 2011 was decreed to be permanent and modifiable.” He further alleged that
his income was “significantly reduced” since the entry of the Temporary Order and
the prior hearings based upon COVID-19. He alleged he had to close one of his
restaurants and his other restaurant was limited to only “take-out/curbside” orders.
He alleged it was uncertain when his restaurants would be allowed to re-open or
operate at full capacity, or if the restaurants would be able to operate at the previous
capacities after the pandemic. He therefore requested the trial court to “[r]eview and
re-calculate Defendant Father’s child support obligations based upon the current
circumstances of the parties.”
6 He does not clearly identify “said order” but earlier in the motion he asks to modify
“a prior Order of this Court for child support.” The only “prior order” is the 2011 Temporary
Order, which was later deemed to be “permanent” as of 2014 and 2016.
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¶ 15 On 23 December 2020, Father filed a Motion to Re-Open Evidence for
Defendant’s Current Income, “or in the alternative, grant a mistrial under Rule 59 .
. . , or in the alternative, dismiss [Mother]’s Motion under Rule 41 for failure to
prosecute.” He alleged that the motion for modification of child support “being heard”
was filed in 2014, a motion to modify was filed in 2016, and neither motion had yet
been ruled upon. He alleged the hearing regarding child support started on 24
January 2018; the last day of testimony in the child support hearings was 10
December 2019. He alleged:
Since December 10, 2019 (the last hearing date), the world
has been engulfed in a GLOBAL PANDEMIC, to which the
world has not experienced in a hundred years.
Restaurants have particularly been devastated. This
GLOBAL PANDEMIC WAS NOT PREDICTABLE OR
KNOWN TO THE [FATHER] OR THE UNDERSIGNED
ON December 10, 2019.
(Emphasis in original.)
¶ 16 Father then made detailed allegations regarding the effects of the COVID-19
closures on restaurants in general and his restaurants in particular, including his
loss of income, increases in business expenses, lack of business interruption
insurance, and reductions in profits.
¶ 17 On 20 January 2021, the trial court entered its Child Support Order. The Child
Support Order notes that it is based upon the hearing held on 9 and 10 December
2019, addressing the various motions regarding child support filed by both parties,
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and noted that “a portion of which has already been heard on January 24 and 25,
2018 and April 11, 12 and 13, 2018.” The Child Support Order includes extensive
findings of fact addressing the procedural oddities of this case as well as the incomes
and expenses of the parties and children. The findings of fact address primarily
income and expenses as of 2014 and 2016; none of the findings address income or
expenses as of 2019. And since no evidence was taken after the December 2019
hearing dates, none of the findings address income or expenses for 2020 or 2021,
including any effects of the COVID-19 pandemic closures of Father’s restaurants—
the restaurants the trial court found were a substantial source of Father’s income
based upon the evidence presented as to 2014 and 2016. Of particular note, the trial
court also found:
18. Counsel for both parties stipulated on the
record that the first calculation of child support should be
effective in 2014, using 2014 income figures and that the
second calculation of child support should be effective in
2016, using 2016 income figures.
(Emphasis added.) However, we have been unable to find any such stipulation in any
part of the Record on Appeal or transcripts.
¶ 18 Mother then filed a motion for reconsideration pursuant to Rules 59 and 60 on
1 February 2021 alleging clerical errors. On 3 February 2021, Father filed his first
notice of appeal, and gave notice of appeal from:
(1) the Child Support Order signed on January 20, 2021
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and entered on January 20, 2021 by the Honorable Lisa
V.L. Menefee;
(2) The Order signed on June 6, 2019 and entered on June
6, 2019 by the Honorable Lisa V.L. Menefee;
(3) The Order of the District Court in Forsyth County
orally rendered on December 9, 2019 by the Honorable
Lisa V.L. Menefee denying [Father’s] Motion to Change
Venue filed June 17, 2019. There is no written Order
entered on this Motion, nor did the Court direct one be
prepared; and
(4) The Order of the District Court in Forsyth County
orally rendered on December 9, 2019 by the Honorable
Lisa V.L. Menefee denying [Father’s] Motion Pursuant
to Rule 59 (1) (4) (7) (8) (9) and Rule 60(b)(1) (2) (6) filed
June 17, 2019. There is no written Order entered on
this motion, nor did the Court direct one be prepared.
The trial court then granted Mother’s motion for reconsideration and entered an
Amended Child Support Order on 26 March 2021.7 Father filed a second notice of
appeal from the Amended Order and the order allowing Mother’s motion for
reconsideration on 31 March 2021; the second notice of appeal also restated his first
notice of appeal “for purposes of protecting the original appeal notice filed February
3, 2021[.]”
7 In the Amended Order, the trial court changed two provisions in the decretal portion
of the original Child Support Order. The trial court (1) added a deadline of 20 May 2021 for
payment of past-due child support payments due from 16 December 2014 through 20 October
2016 and (2) added a 240-day time frame, including a deadline of 20 September 2021, for
child support payments due after 21 October 2016. The Amended Order did not address any
of Father’s motions filed after the December 2019 hearing. The Amended Order also made
formatting changes, but no substantive changes.
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II. Jurisdiction
¶ 19 Father filed two timely Notices of Appeal, the first on 3 February 2021 and the
second on 31 March 2021. The Amended Order is a final order establishing
permanent child support. We recognize additional motions were filed prior to the
trial court’s January and March 2021 orders that were not ruled upon, including
Father’s 5 May 2020 motion to change venue to Surry County, Father’s 5 May 2020
motion to modify child support based upon the pandemic restrictions on his
restaurants, and Father’s 23 December 2020 “Motion to Re-Open Evidence for
Defendant’s Current Income.” But these pending motions or any other motions which
may have been filed after appeal of the March 2021 Amended Child Support Order
do not change the status of that Order as a final appealable order.
¶ 20 The 2019 Order was an interlocutory order, and Father properly preserved his
right to appeal the 2019 Order after entry of the final Amended Order. This Court
has jurisdiction under North Carolina General Statute § 7A-27(b)(2) to address the
merits of Father’s appeals. N.C. Gen. Stat. § 7A-27(b)(2) (2021) (effective 1 January
2019 to 30 June 2021).
III. Analysis
¶ 21 On appeal, the parties present various arguments regarding whether the trial
court erred by establishing child support based upon the parties’ incomes and
expenses and the children’s expenses as of 2014 and 2016—five and seven years,
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respectively, before the effective date of the Amended Order. Father notes child
support is supposed to be based upon the income and expenses as of the time the
order is effective. He notes the last evidence was taken in December 2019, prior to
the COVID-19 pandemic, and his child support obligation was erroneously based
upon his 2014 and 2016 incomes, while his income was reduced by the closures and
limitations of operation of his restaurants in 2020 and 2021.
¶ 22 At the outset, we will clarify what this appeal addresses and what it cannot
address. This Court cannot address a motion which has not been heard and upon
which the trial court has not entered an order. N.C. R. App. P. 10(a)(1). The Amended
Order on appeal was entered on 26 March 2021, based upon evidence up to December
2019. On 5 May 2020, after completion of the hearings but before entry of the Child
Support Order, Father filed a “Verified Motion to Modify Child Support” and on 23
December 2020 filed a “Motion to Re-open Evidence for Defendant’s Current Income,”
(capitalization altered), due to the impact of the COVID-19 pandemic closures on his
restaurants, but these motions have not been heard. Since Father filed his motion to
modify child support on 5 May 2020, he still has the opportunity for the trial court to
consider modification effective as of 5 May 2020. See Chused v. Chused, 131 N.C. App.
668, 672, 508 S.E.2d 559, 562 (1998) (quotation and citations omitted) (“A supporting
parent ‘has no authority to unilaterally modify the amount of the [court ordered] child
support payment. The supporting parent must [first] apply to the trial court for
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modification.’ The trial court then has the authority to enter a modification of court
ordered child support, retroactive to the filing of the petition of modification.”). This
appeal does not address or eliminate Father’s pending motion for modification or any
other motions filed after this appeal was taken. Thus, we will consider Father’s
appeal based on what is in the record before us: the evidence and status of the case
as of the 26 March 2021 Amended Child Support Order, in turn based upon evidence
of income and circumstances existing as of December 2019. Our analysis does not
address any of the alleged changes in income or other circumstances wrought by the
COVID-19 pandemic closures; those remain for the trial court to address, if properly
presented to the trial court, after this appeal is concluded.
¶ 23 For purposes of determining a substantial change in circumstances, the
Temporary Order was deemed to have “become permanent” as of 8 December 2014
and as of 21 October 2016, because no party has appealed the trial court’s 21 February
2017 Order establishing the permanency of the 2011 Temporary Order. 8 Thus, the
2014 and 2016 circumstances and determinations of income and child support—based
upon the 2017 Order holding the 2011 Temporary Order became “permanent” as of
2014 and 2016—forms the baseline for consideration of modification based upon a
8 There is no evidence of the parties’ actual incomes or expenses in 2011 when the
Temporary Order was entered and no order ever addressed the circumstances of the parties
or children in 2011.
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substantial change of circumstances thereafter, up to and including calculations of
child support for each year from 2014 through 2019, as the trial court received
evidence only up to December 2019.
A. Standard of Review
¶ 24 “Child 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.” Simms v. Bolger, 264 N.C. App. 442, 447, 826
S.E.2d 522, 527 (2019) (quoting Leary v. Leary, 152 N.C. App. 438, 441, 567 S.E.2d
834, 837 (2002)). “Abuse of discretion results where the court’s ruling is manifestly
unsupported by reason or is so arbitrary that it could not have been the result of a
reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988);
see also White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (“A trial court
may be reversed for abuse of discretion only upon a showing that its actions are
manifestly unsupported by reason . . . [or] upon a showing that [the trial court’s
decision] was so arbitrary that it could not have been the result of a reasoned
decision.”).
¶ 25 “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.” Simms, 264 N.C. App. at 447,
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826 S.E.2d at 527 (quoting Leary, 152 N.C. App. at 441-42, 567 S.E.2d at 837).
Findings of fact must be supported by competent evidence. Atwell v. Atwell, 74 N.C.
App. 231, 234, 328 S.E.2d 47, 49 (1985). Findings are “deemed to be supported by
competent evidence and are binding on appeal” unless specifically challenged by an
appellant. Ward v. Halprin, 274 N.C. App. 494, 498, 853 S.E.2d 7, 10 (2020). “In
short, the evidence must support the findings, the findings must support the
conclusions, and the conclusions must support the judgment . . . .” Atwell, 74 N.C.
App. at 234, 328 S.E.2d at 49.
B. Income Determinations
¶ 26 Father asserts the trial court made multiple errors when calculating the
parties’ incomes and challenges specific findings of fact. Father argues the trial court
erred by not using his current income, by relying upon a non-existent stipulation
limiting the parties’ incomes for the purposes of calculating child support, by
incorrectly calculating his 2014 and 2016 income, and by incorrectly calculating
Mother’s income. For the reasons below, we vacate the trial court’s Child Support
Order, Amended Order, and 2019 Order establishing Father’s income.
1. Stipulation regarding use of incomes from 2014 and 2016
¶ 27 We first address Father’s arguments about the stipulation limiting both
parties’ incomes to 2014 and 2016 for purposes of calculating child support. Father
also specifically challenges the findings in the trial court’s January and March 2021
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child support orders regarding the income stipulation as unsupported by competent
evidence. Finding 18 in both child support orders states:
Counsel for both parties stipulated on the record that the
first calculation of child support should be effective in 2014,
using 2014 income figures and that the second calculation
of child support should be effective in 2016, using 2016
income figures.
(Emphasis added.)
¶ 28 Throughout the record and transcripts of the 2018 evidentiary hearings, it is
apparent that counsel for both parties were limiting their inquiry into the parties’
incomes to the years 2014 and 2016 according to an agreement between counsel.
Presumably, the parties and court limited the income inquiry to 2014 and 2016
because these are the years Mother and Father respectively made their motions to
modify child support and the court intended to calculate past-due, prospective child
support, or to establish a baseline for “current income” and a child support obligation
for the purposes of considering the motions to modify for the first hearings in January
2018. 2014 and 2016 are also the years the trial court deemed the 2011 Temporary
Order to have “become permanent.” But despite Finding 18’s claim the parties had
stipulated “on the record,” we have searched the transcripts and record in vain for a
clear stipulation of any sort. Nowhere in the record before us is there evidence of a
stipulation to establish child support based only upon income figures from 2014 and
2016. We can glean the existence of an off-the-record agreement to limit the evidence
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presented at the 2018 hearing for the purpose of establishing Father’s income as of
2014 and 2016, because these were the dates the 2011 Temporary Order became
“permanent,” by references made by counsel as to an agreement. But nowhere can
we find terms of a stipulation to calculate child support entirely based upon the 2014
and 2016 numbers, let alone in 2021—five to seven years after each respective motion
to modify child support.
¶ 29 Stipulations are favored, but any stipulation must be clearly shown in the
record and each party must agree to its terms:
[C]ourts 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
hereafter take an inconsistent position.
Stovall v. Stovall, 205 N.C. App. 405, 409, 698 S.E.2d 680, 683 (2010) (emphasis
added) (quotation omitted). Oral stipulations must be reduced to writing, and if not
reduced to writing the stipulation “must affirmatively appear in the record that the
trial court made contemporaneous inquiries of the parties at the time the stipulations
were entered into.” McIntosh v. McIntosh, 74 N.C. App. 554, 556, 328 S.E.2d 600, 602
(1985) (discussing the procedure regarding stipulations as applied to an equitable
distribution proceeding). Upon review, the record must show the trial court “read the
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terms of the stipulations to the parties; that the parties understood the legal effects
of their agreement and the terms of the agreement, and agreed to abide by those
terms of their own free will.” Id.¶ 30 An example of appropriate reliance on a stipulation may be found in Estate of
Carlsen v. Carlsen. 165 N.C. App. 674, 599 S.E.2d 581 (2004). In Carlsen, the parties
had stipulated that the decedent lacked the testamentary capacity to execute a will,
trust revocation, and promissory note. Id. at 676, 599 S.E.2d at 583. The stipulation
also stated each document was invalid, null, and void. Id. The trial court entered a
judgment based on the stipulation invalidating the documents. Id. However, unlike
here, the trial court’s order included “the exact language of the stipulation in its
entirety.” Id. at 679, 599 S.E.2d at 585. This Court concluded “the language of the
stipulation was sufficiently definite and certain to form a basis for a judicial decision.”
Id. “In such a case where the testimony is in agreement, the stipulation is clear as to
its impact, and the parties were present and aware of their actions, the stipulation is
valid.” Id.¶ 31 This case is not like Carlsen. There is simply no specific stipulation in the
transcripts or record on appeal. We can determine, from representations by counsel
for both parties in the transcripts, at some point prior to the trial court’s hearings on
this matter in 2018 counsel for both parties agreed to limit the court’s inquiry at these
evidentiary hearings to the parties’ incomes in the years 2014 and 2016. As best we
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can tell the parties agreed to limit their presentation of evidence on the pending
motions to modify the Temporary Order to address the parties’ incomes in 2014 and
2016. Since the 2011 Temporary Order had been declared permanent by 2014,
Mother’s 2014 motion to modify would have required an analysis into each party’s
“current” income and expenses and the children’s needs in 2014. If the 2014 motion
to modify had been timely resolved, the trial court would have been engaging in the
same analysis again in 2016 after Father filed his motion to modify, so evidence
regarding income, expenses, and needs as of 2016 would be required.
¶ 32 The record is replete with references to an agreement to limit the presentation
of evidence at the 2018 hearings to address income in 2014 and 2016. The parties
apparently agreed not to present evidence regarding the period from 2011 to 2014,
after entry of the Temporary Order until the Temporary Order was declared
“permanent.” There are numerous statements within the transcript of the various
hearings that substantially confirm the existence of an agreement. One example is:
[MOTHER’S TRIAL COUNSEL]: Your Honor, I could be
wrong, the Court has a copy of the -- we stipulated, for the
purposes of this proceeding, that we are going to move
forward with evidence related to 2014 and 2016 income
information for these folks. . . . I completed my evidence as
it relates to demonstration of what the income was for 2014
and 2016. When I even tried to present any evidence about
anything that occurred prior to 2014, I received heavy
objections from [Father’s Trial Counsel] that it was outside
of the timeframe of the evidence that the Court asked us to
present. . . . I believe that the direction that we’ve received
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from this Court and that we stipulated and agreed to, as
professionals, was that we’re going to limit our evidence to
2014 and 2016 income.
(Emphasis added.) Another is:
[MOTHER’S TRIAL COUNSEL]: Your Honor, we’ve been
living with this case a whole lot longer than [Father’s Third
Trial Counsel and Appellate Counsel] has. And I would
submit to the Court that in response to her motion to
dismiss, with all due respect, we were here for five days
presenting detailed evidence with regard to the financial
circumstances of these parties for two different time frames,
by consent, by stipulation.
(Emphasis added.) A third example is a statement by the trial court that: “Court had
to determine the actual income of the [Father]. The attorneys representing both the
[Father] and the [Mother], selected two different years that they wished [the] Court
to focus on. It was 2014 and, I believe, 2016.”
¶ 33 But nowhere within the transcript of the proceedings or within the Record on
Appeal do we have before us the actual terms of any stipulation on how to use the
income numbers from 2014 and 2016. No oral stipulation affirmatively appears in
the record, nor has it been reduced to a writing. See McIntosh, 74 N.C. App. at 556,
328 S.E.2d at 602. We can easily infer that some agreement existed to limit the
presentation of evidence at the 2018 hearing, but there is no indication the parties
stipulated Father’s income in 2014 or 2016 would be used as the basis for a child
support order entered years later. On the record before us, it appears the trial court
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had no factual or legal basis upon which to enter an order in 2021 which set the child
support obligation based upon the incomes of the parties five to seven years earlier.9
Thus, Finding 18 is not supported by the evidence; there was no stipulation
sufficiently stated in the record.
¶ 34 “It is well established that child support obligations are ordinarily determined
by a party’s actual income at the time the order is made or modified.” Ellis v. Ellis,
126 N.C. App. 362, 364, 485 S.E.2d 82, 83 (1997) (citing Greer v. Greer, 101 N.C. App.
351, 355, 399 S.E.2d 399, 402 (1991)) (other citations omitted). The trial court erred
by entering an order in 2021 basing child support on income determinations from
2014 and 2016 because no stipulation existed on the record to calculate child support
based only upon income from those years. Although the trial court would have to
address child support for each year from 2014 through 2019, the child support
obligations may be different for various time periods. Here, based on the parties’
motions to modify, these time periods may be from 2014 until 2016 and then from
2017 until the date of entry of the order. Based upon evidence of income and
9Even the parties are unable to point to a location in the record where the stipulation
may be referenced. Mother argues “[t]his [stipulation] was referenced time and time again
throughout the trial tribunal proceedings.” However, Mother fails to cite anywhere in the
record that any stipulation may be found. As noted above, any stipulation “must
affirmatively appear in the record” and the trial court must have “made contemporaneous
inquiries of the parties at the time the stipulations were entered into.” McIntosh, 74 N.C.
App. at 556, 328 S.E.2d at 602.
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circumstances during this time period, there may be other periods for child support
calculations if incomes, expenses, and needs are different in other years. As one
obvious example of a change involving the needs of the children, the oldest child
attained the age of 18 in 2016, and the younger child attained the age of 18 in 2021.
In any event, the trial court should have used the parties’ current incomes to establish
child support. Even without a stipulation, it would be appropriate to use the income
determinations from 2014 and 2016 as baselines for modification and to calculate
child support for 2014 and 2016, but these income numbers cannot be the basis of a
child support order in 2021 without a clear stipulation to use these income numbers
instead of current income.
¶ 35 There are some circumstances where the trial court can use prior income to
calculate current income for the purposes of child support, but specific findings of fact
are required to allow use of income from prior years:
Again, “ ‘[i]t is well established that child support
obligations are ordinarily determined by a party’s actual
income at the time the order is made or modified.’ ” Kaiser
v. Kaiser, [259] N.C. App. [499], [505], 816 S.E.2d 223, 228
(2018) (quoting Ellis [v. Ellis], 126 N.C. App. [362, ] 364,
485 S.E.2d [82, ] 83 [(1997)]). “Although this means the
trial court must focus on the parties’ current income, past
income often is relevant in determining current
income.” Id. Under certain circumstances, “ ‘a trial court
may permissibly utilize a parent’s income from prior years
to calculate the parent’s gross monthly income for child
support purposes.’ ” Id. (quoting Midgett v. Midgett, 199
N.C. App. 202, 208, 680 S.E.2d 876, 880 (2009)). For
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example, this Court has recognized such an approach is
permissible where the income is highly variable or
seasonal, or where the evidence of income is
unreliable. Id. “What matters in these circumstances is the
reason why the trial court examines past income; the
court’s findings must show that the court used this
evidence to accurately assess current monthly gross
income.” Id.Simms, 264 N.C. App. at 453, 826 S.E.2d at 530 (emphasis in original). The trial
court must make specific findings to support the use of prior income in calculating
current income. See id.; see also Kaiser, 259 N.C. App. at 504-505, 816 S.E.2d at 228.
¶ 36 Here, the trial court did not make findings justifying the use of Father’s income
five and seven years prior to entry of the Amended Order. The trial court appears
instead to have relied upon an undocumented stipulation and entered an order
relying upon the parties’ past incomes. The trial court is permitted to determine a
support obligation based on prior income only if it makes specific findings of fact
justifying the use of prior income to calculate Father’s past child support obligations.
See id.; see also Zurosky v. Shaffer, 236 N.C. App. 219, 245, 763 S.E.2d 755, 771
(2014). These specific findings are also required to calculate past-due, prospective
child support. See Simms, 264 N.C. App. at 453, 826 S.E.2d at 530-31 (“The use of
Defendant’s historical income to calculate prospective child support in the form of
arrears dating back to the filing of Mother’s Motion without any finding to support
the use of this method was error. . . . On remand, the trial court should . . . make
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findings to support its use of Defendant’s historical income to calculate arrearages.”).
¶ 37 The trial court erred by entering the 2021 Child Support Order and Amended
Order relying on 2014 and 2016 income determinations. No stipulation exists in the
record to support the trial court’s use of income from only these years. The 2021 child
support orders are vacated and remanded for entry of a new order.
2. 2019 Order
¶ 38 In addition to the failure of the alleged stipulation as a basis for calculating
income and child support in the 2021 orders, Father challenges aspects of the 2019
Order. This Order did not establish child support or address the motions to modify
but only addressed the parties’ incomes for 2014 and 2016. Father also challenges
specific findings from the 2019 Order and alleges the trial court made mathematical
errors in calculating his and Mother’s incomes. “In child support cases,
determinations of gross income are conclusions of law reviewed de novo, rather than
findings of fact.” Thomas v. Burgett, 265 N.C. App. 364, 367, 852 S.E.2d 353, 356
(2019) (citing Lawrence v. Tise, 107 N.C. App. 140, 145 n.1, 419 S.E.2d 176, 179 n.1
(1992)). “If the trial court labels a conclusion of law as a finding of fact, the appellate
court still employs de novo review.” Id. (citing Carpenter v. Brooks, 139 N.C. App.
745, 752, 534 S.E.2d 641, 646 (2000); Eakes v. Eakes, 194 N.C. App. 303, 311, 669
S.E.2d 891, 897 (2008)).
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a. Father’s Rental Income
¶ 39 The trial court’s findings state that it calculated Father’s income “pursuant to
the North Carolina [C]hild [S]upport [G]uidelines.” Father argues the trial court
erroneously omitted rental expenses when calculating Father’s rental income, and
“Findings 34 and 35 use the erroneous rental income figures were [sic] to determine
[Father]’s total annual and monthly income in 2014 and 2016.” In the 2019 Order,
the trial court found Father’s rental income to be $64,800 in 2014 and $90,804 in
2016. Father notes that these numbers are equal to the aggregate “Gross Rent” from
his properties as reflected on Schedule E of his 2014 and 2016 tax returns. Father
also notes his tax returns list a number of expenses, and “the trial court failed to
deduct any ‘repairs, property management and leasing fees, real estate taxes,
insurance, and mortgage interest’ from the gross rents received.” After deduction for
these expenses, Father argues his rental income should have been $7,990 for 2014
and $28,272 for 2016. He contends any commingling of funds should not result in
these expenses being omitted, because “the rental expenses are no less legitimate
because they are paid with a source other than rental income.”
¶ 40 Father cites the 2019 revision of the North Carolina Child Support Guidelines
and asserts “gross income from rent is defined as gross receipts minus ordinary and
necessary expenses required for self-employment or business operation.” (Emphasis
and ellipses omitted.) Notably, the Guidelines tend to support Father’s calculation,
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but the Guidelines also state “[o]rdinary and necessary business expenses do not
include amounts allowable by the Internal Revenue Service for the accelerated
component of depreciation expenses, investment tax credits, or any other business
expenses determined by the court to be inappropriate for determining gross income.”
North Carolina Child Support Guidelines p. 3 (2019) (emphasis added). The
Guidelines also state “[e]xpense reimbursements or in-kind payments . . . received by
a parent in the course of employment, self-employment, or operation of a business are
counted as income if they are significant and reduce personal living expenses.” Id.(emphasis added).
¶ 41 At the 2018 evidentiary hearings, a great amount of evidence detailed Father’s
commingling of his personal and business finances, including income and expenses
from his rental properties. The trial court also found, when calculating Father’s
income, that “[w]ith only a few minor exceptions expenses in connection with
[Father’s] rental properties were in the form of loans to shareholder from [Father’s
businesses] to [Father]. The Court did not credit [Father] for these expenses against
his gross monthly income . . . in determining his gross income.” The trial court elected
not to credit Father for the expenses connected to his rentals after finding a
significant commingling of Father’s finances and that many of Father’s personal
expenses were in fact paid for by Father’s businesses. For example, the trial court
found “[Father] does not report cash received from rental properties. [Father’s
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Accountant] does not break down expenditures paid with a business check to
determine which portion of the payment was business related and which portion was
for personal expenses if not notated by [Father].” The trial court also found:
At times there were receipts for taxes paid from a county
tax office saying “cash” but with no information as to what
property taxes were being paid. For the year 2014 property
taxes for [Father]’s commercial property in South Carolina
were paid by KA because [Father] could not pay them from
his personal account. [Father’s Accountant] did not know
who held the rental mortgages or how they were paid. For
2014 he never saw a receipt for insurance expenses for
[Father]’s rental properties.
The trial court also found:
What is abundantly clear is there has been a pattern of
[Father] using one or both of his businesses for cash
withdrawals and/or checks to pay for many of these
obligations without any documentation to identify these as
personal. There was a commingling of business and
personal expenses when it came time to pay invoices/bills
whether paid by cash or check.
The court found that Father’s businesses paid for various personal and rental
expenses for Father, including “lawn care for personal and rental properties” and
Father’s property taxes. The court also found that one of Father’s businesses pays its
rent directly to Father, the payment is “charged as loan to shareholder,” and the rent
payment is “then reversed out of loan to shareholder and treated as a rental expense.”
The court also found “[t]hese payments have been consistent over time, are
reoccurring, are significant and reduce [Father]’s personal living expenses.”
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¶ 42 However, the trial court’s findings do not show the trial court clearly intended
to omit all rental expenses when calculating Father’s net rental income. “[T]he trial
court was required to explain its decision relative to the evidence of such expenses
submitted by [Father]. Without any evidence indicating the trial court’s
contemplation of those expenses, we do not have enough findings to conduct adequate
review.” Thomas, 265 N.C. App. at 368, 852 S.E.2d at 357. Instead, the trial court
omitted all rental expenses, including expenses like mortgage interest; this was not
discussed in the court’s findings yet omitted anyway. Upon remand, the trial court
should include more specific findings showing “that due regard was taken of the
requisite factors[,]” and why the trial court chose not to credit Father with any rental
expenses when determining his net rental income under the Guidelines. See id.
(quoting Burnett v. Wheeler, 128 N.C. App. 174, 176, 493 S.E.2d 804, 806 (1997) (in
turn citing Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980))).
b. Father’s “Loan to Shareholder” Income
¶ 43 Father also argues his income was incorrectly calculated because shareholder
loans made to Father from his businesses were double counted in the trial court’s
calculations as a stand-alone source of income and within the businesses’ profits.
Father argues “[a] loan is a borrowing from some pot of money, and in this case is
from the ‘Profits’ of the businesses.” Father argues the trial court made a
mathematical error by not realizing that the loans were “just a portion of the profits
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which were borrowed upon.”
¶ 44 At the evidentiary hearings, the court heard testimony from Father’s
accountant, Mr. Logeman, as to how Father removes money from his businesses to
pay for his personal expenses. Mr. Logeman testified money removed from Father’s
businesses to pay Father’s personal expenses is treated as “loans to shareholder,”
and Mr. Logeman determines the value of these loans by compiling receipts handed
to Mr. Logeman “in a plastic grocery bag every month by [Father] along with a
handwritten log of cash out prepared by [Father] every month for KA/Theo’s[,]”
“handwritten sales receipts for KA[,]” receipts for various personal purchases Father
reimburses himself for by removing cash from his businesses’ registers, discrepancies
between “gross sales and taxes payable and the bank statements” for the businesses,
and other sources. Father’s finances are complex, and considering his use of cash and
hand-written logs, it is not clear how the sum of these “loans” was calculated; the trial
court’s order does not clearly state how it arrived at the final values in Findings 34
and 35 of the 2019 Order.10
¶ 45 The trial court found that income categorized as “loans to shareholder”
included generally all funds available to Father that he could withdraw from his
businesses to pay personal expenses, and that Father “has never reimbursed the
10 However, Mr. Logeman also testified as to these practices, and the court found
“[t]his behavior is not unusual in this industry but makes tracking ‘income’ difficult.”
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business for his loans nor has he paid any interest on” the “loans to shareholder.”
Father notes Finding 8(c) in the 2019 Order clearly shows the relationship between
profits and shareholder loans:
c. . . . Profit is the amount of money on IRS Form K-1
of the tax returns. “Profit” for an S Corporation is taxed on
the periodic return. Once taxed it goes into a “retained
earnings account.” The shareholder, [Father] in this case,
can take money out of that account by taking a distribution
check or paying personal expenses and not get taxed again
on the funds.
(Emphasis added.) Father asserts this finding shows that the trial court “was close”
but “what the trial court does not accurately understand is that money is not
additional income.” The trial court’s ultimate findings of fact included separate
categories for both “Profit” and “‘Loan to shareholder’ income.” The trial court
appears to have characterized the payment of Father’s personal expenses through
business income as shareholder loans, and also found that Father can claim the
entirety of his businesses’ profits as income.
¶ 46 Additionally, the court appears to have found two different values for these
loans for both 2014 and 2016. In the 2019 Order the trial court’s ultimate findings of
fact found Father’s total income to include $98,196 from business profit and $44,870
in “loan to shareholder” income for 2014; in 2016 Father’s total income included
$110,244 from business profit and $54,298 from “loan to shareholder” income. But
the trial court also found:
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18. The total of confirmed and documented loans to
[Father] shareholder in 2014 was $51,231.00 from
KA/Theos. The figure represents money paid by KA for
[Father] based on information given to Mr. Logeman. The
total of confirmed and documented loans to [Father]
shareholder in 2016 was $69,681.00 based on the check
ledgers and information given to Mr. Logeman. . . .
The trial court does not make clear how it calculated any of the totals cited above. It
generally lists some expenses as loans, but then provides two different aggregate
totals for the loans for each year. None of the trial court’s other findings clarify this
discrepancy.
¶ 47 We are unable to tell how the evidence presented in the 2018 hearings supports
the court’s findings. See Atwell, 74 N.C. App. at 234, 328 S.E.2d at 49. Because of
the inconsistency in the trial court’s findings and the difficulty in following the trial
court’s calculations, we vacate and remand for additional findings on how precisely
the trial court calculated “profit” and “loan to shareholder income” and the exact
interplay between these two categories of Father’s income.
c. Mother’s Income
¶ 48 Father argues the trial court also erred in determining Mother’s income for
2014. Aside from Father’s argument that the trial court also used the wrong years
for Mother’s income, he argues that Mother’s income was erroneously inflated by
approximately $3,900 per month between the 2019 and 2021 Orders. It is unclear
why Father finds issue with this determination because, as Mother argues, “if it was
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error it only raised [Mother’s] income.” (Emphasis removed.)
¶ 49 In the 2019 Order, the trial court found Mother’s monthly income to be
$3,833.34, comprised of $3,466.67 in monthly wages and an average monthly bonus
of $416.67. In the 2021 Orders, Mother’s recurring monthly income in 2014 from
employment remained $3,833.34, but the court elected to add “approximately $3,900
per month” in recurring payments from her current husband. The court does not
explain or identify where this sum originates. Upon a review of the record, it appears
the figure may have been argued by Mother’s counsel at the December 2019 hearing.
Mother’s counsel argued that Mother’s current husband actually pays Mother’s and
the minor children’s expenses, and Mother’s recurring income of $3,833.34 should be
regularly added to “Mother’s” household expenses for Mother and the children in
order to calculate the total amount of money Mother has access to month-to-month
both earned by herself and given to her by her husband—Mother’s total income.
¶ 50 The trial court’s findings do not make clear, however, how or why it added
$3,900 in recurring payments to Mother’s monthly income or why these payments
were only added to Mother’s income in the 2021 Orders. Because we can only
speculate as to the source of these payments, the trial court’s findings as to Mother’s
income are unsupported by competent evidence. See Atwell, 74 N.C. App. at 234, 328
S.E.2d at 49. On remand, the trial court should make additional findings clarifying
Mother’s income.
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C. Substantial Change of Circumstances
¶ 51 Father next asserts “the trial court erred when determining that there existed
a substantial change in circumstances that warranted modification.” (Capitalization
altered.) Father argues the trial court misapplied the standard for determining a
substantial change in circumstances because the trial court called this case a “non-
Guideline child support case” yet applied a Guidelines-based presumption of a
substantial change of circumstances. Father also argues the trial court erred by
failing to set a monetary baseline as to the children’s expenses and standard of living
in 2011 against which to compare their expenses and standard of living in 2014 and
2016 when the motions to modify were filed. Mother argues the Guidelines
presumption can be analogized to a non-Guidelines case, and a substantial change of
circumstances can be found because “[t]he landscape was simply not the same as it
had been in 2011” when the Temporary Order was entered. For the reasons below,
we hold there was sufficient evidence of a substantial change of circumstances
warranting modification in both 2014 and 2016. However, we will limit our
discussion of the details of the modification since we have already determined we
must vacate the orders and remand for additional findings of fact regarding all the
relevant facts and circumstances, without limitation to evidence of circumstances in
2014 and 2016. But we will address some of the arguments to the extent this may be
useful on remand.
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¶ 52 In the Amended Order, the court made the following findings of fact:
16. At the time [Mother] filed her 2014 Motion,
almost four years had passed since the entry of the
Temporary Order. [Father]’s child support obligation
accordingly changed by more than 15% in that he no longer
paid the mortgage at the former marital residence
($1370.70/m) for the benefit of [Mother] and the minor
children, as part of his support. Further, the minor
children had moved from primarily living in the former
marital residence with their [Mother] to the residence of
[Mother] and [Mother]’s husband . . . .
17. [Father]’s income was significantly higher
than the base salary figures represented by him at the
temporary hearing. . . . .11
¶ 53 Since we must remand for the trial court to make additional findings regarding
the parties’ incomes, expenses, and the children’s needs, we will not address the
parties’ arguments regarding the changes in circumstances in detail. That sort of
detail would require actual findings regarding the parties’ incomes and expenses and
the children’s needs over the relevant time periods; without knowing the parties’
incomes, we cannot say whether the case falls within the Guidelines or not.
¶ 54 At the time of each party’s motion, the North Carolina Child Support
Guidelines created a presumption of a substantial change in circumstances when
11 Considering that the limited information on Worksheet A attached to the 2011
Temporary Order was not specifically incorporated as a finding of fact, and we have no
transcript of the 2011 hearing, we cannot definitively state what Father’s income was
represented as in 2011.
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more than three years has elapsed between entry of an order establishing support
and a motion to modify, and there is greater than a 15% disparity between the
standing support obligation and the recalculated obligation under the Guidelines.12
But in the 26 March 2021 Amended Child Support Order the trial court concluded
the parties’ combined gross incomes for both 2014 and 2016 exceeded the limit set by
the Guidelines and therefore “[t]he North Carolina Child Support Guidelines are not
applicable in this action . . . .” Regardless, the trial court also found:
150. There has been a substantial change in
circumstances as of the filing of the [Mother’s] Motion to
Modify on December 16, 2014 as it had been more than
three years since the entry of the last Order and that Order
is more than three years old and there is a 15% disparity
between the support Ordered and the current support
obligation.
151. There has been a substantial change in
circumstances as of the filing of [Father’s] Motion to Modify
on October 21, 2016 as the minor child, [G.K.], had turned
18 on October 21, 2016 and graduated for high school.
¶ 55 We first note that both parties filed motions alleging substantial changes in
12 The North Carolina Child Support Guidelines are established pursuant to North
Carolina General Statute § 50-13.4 by the Conference of Chief District Judges. The
Guidelines are promulgated by the North Carolina Administrative Office of the Courts, and
the 2011 Guidelines in effect at the time Mother filed her motion may be found at:
https://www.nccourts.gov/assets/documents/publications/guidelines_2011.pdf?VersionId=vT
qhbVaIbGVBsfdM8YXPpyiWx3t3qsS7. The 2015 Guidelines in effect at the time Father filed
his motion may be found at:
https://www.nccourts.gov/assets/documents/publications/guidelines_2015.pdf?VersionId=Ro
o8e43y0k2RCzLZZsrUvVBUL6D7Bt74. The presumption was the same at the time both
parties filed their motions.
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circumstances requiring modification of the child support obligation established in
the 2011 Temporary Order. Father’s motion to modify, filed in 2016, alleged “there
[had] been substantial and material changes in circumstances in that” his eldest
daughter had “graduated from high school and turned 18 years of age.” Thus, Father
is apparently not arguing there has been no change in circumstances justifying
modification of child support since 2011; he just argues the trial court should not have
used the language of the Child Support Guidelines to find a substantial change in
circumstances. As a practical matter, this is a distinction without a difference. There
is simply no question that many substantial changes in circumstances relevant to
child support occurred in the period of time from 2011 to the close of evidence in
December 2019, to name a few obvious ones: the parties resolved their property
distribution in 2014; Mother and the children moved out of the marital home in 2014
and Father bought Mother’s interest in the residence, thus eliminating Father’s
obligation under the 2011 Order to pay the mortgage and maintenance expenses for
the benefit of Mother and the children; and the older child attained the age of 18 in
2016. The question is not whether the trial court erred in using language based on
the Guidelines definition of a presumption of a substantial change in circumstances
in a non-Guideline case. The question is whether the trial court should establish
child support based upon the Guidelines or if the parties’ incomes place them outside
the Guidelines, so the trial court must “determine the child support obligation . . .
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2022-NCCOA-741
Opinion of the Court
[by] considering the needs of the child[ren] and the relative ability of each parent to
provide support.” Since we must remand for the trial court to find all these numbers,
we will not address this argument further.
¶ 56 As to Father’s motion to modify, there is no doubt that there was a substantial
change of circumstances in 2016 when the parties’ older child turned 18 years old and
had graduated from high school. Father filed the 2016 motion seeking modification
due to a substantial change in circumstances, namely that his eldest daughter
“graduated from high school and turned 18 years of age on” the day the motion was
filed. He cannot complain that the court found a substantial change of circumstances
resulting from his oldest daughter reaching age 18 when he was the party who sought
modification on that basis. See, e.g., Frugard v. Pritchard, 338 N.C. 508, 512, 450
S.E.2d 744, 746 (1994) (citations omitted) (“A party may not complain of action which
he induced.”).
¶ 57 As discussed above, we have vacated the 2019 Order and remanded for entry
of a new order as to the 2014 and 2016 incomes, and we have already discussed the
need for findings as to the income, expenses, and needs of the children (assuming the
child support calculation is not based upon the Child Support Guidelines) as of the
time of calculation of any child support obligation prior to entry of the order and upon
entry of the child support order. We need not address Father’s remaining arguments
regarding the trial court’s findings and conclusions of law since we must vacate and
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2022-NCCOA-741
Opinion of the Court
remand for entry of new orders.
D. Delay in Hearings and Entry of Orders
¶ 58 Father’s final argument in his brief is the delay between the final Amended
Child Support Order on 26 March 2021 and the evidentiary hearings in 2018 and
2019 resulted in prejudice to Father and confused the trial court. Mother argues
Father “cannot show prejudice from the delay in entering the final order” because he
merely alleges a delay, and that Father actually benefited from the delay because “he
was allowed to pay only $1,300 in child support for years while the parties’ motions
to modify worked their way through” the trial court. Since we have already
determined we must vacate the Child Support Order, Amended Order, and 2019
Order, we will not address the issue as to delay between the hearing and entry of the
order. We also note that much of Father’s argument focuses on the effects of the
COVID-19 restrictions on operations on his restaurants, but we cannot address that
issue as Father’s motion to modify on that basis has not yet been decided by the trial
court. Even though the final child support orders were entered in 2021, after the
pandemic, the last evidentiary hearing ended in December 2019, before the start of
the pandemic in March 2020, and we can address only the issues presented and
decided based on the evidence addressed by the 2021 Amended Order on appeal.
IV. CONCLUSION
¶ 59 We vacate the 2019 Order, the Child Support Order, and the Amended Child
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Opinion of the Court
Support Order and remand for entry of new orders. On remand, the trial court may
rely on the evidence presented in prior evidentiary hearings for the time periods
addressed at those hearings to make new findings of fact as discussed above but must
also hold a hearing to receive additional evidence needed to establish child support.
The trial court shall enter a new order setting the child support obligation for the
entire time period from 2014 until the children both attained age 18 and graduated
from high school, addressing all of the necessary factors including each party’s income
and expenses, the children’s needs, and Father’s ability to pay, and setting out the
manner of payment of the child support. Since the children have now both attained
the age of 18, Father will have no current ongoing child support obligation and the
trial court’s order will establish only past child support, the total amounts owed, how
Father is to pay the child support, and any other related issues properly presented
by the parties. Considering the complexity of the financial evidence already
presented in this case and the need for additional evidence to address the issues of
child support over many years, we suggest, but do not mandate, that the trial court
may in its discretion consider whether an order of reference under North Carolina
General Statute § 1A-1, Rule 53(2) may be appropriate on remand. “The ordering of
a reference is within the sound discretion of the court.” Livermon v. Bridgett, 77 N.C.
App. 533, 536, 335 S.E.2d 753, 755 (1985) (citing Long v. Honeycutt, 268 N.C. 33, 149
S.E.2d 579 (1966)).
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2022-NCCOA-741
Opinion of the Court
VACATED AND REMANDED.
Judges GORE and JACKSON concur.