Ludlam v. Miller

739 S.E.2d 555, 225 N.C. App. 350, 2013 WL 427114, 2013 N.C. App. LEXIS 124
CourtCourt of Appeals of North Carolina
DecidedFebruary 5, 2013
DocketNo. COA12-637
StatusPublished
Cited by8 cases

This text of 739 S.E.2d 555 (Ludlam v. Miller) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ludlam v. Miller, 739 S.E.2d 555, 225 N.C. App. 350, 2013 WL 427114, 2013 N.C. App. LEXIS 124 (N.C. Ct. App. 2013).

Opinion

McGEE, Judge.

Warren McGee Ludlam (Plaintiff) and Leslie Knox Miller (Defendant) were married in 1992, and separated on 12 June 2006. There were two children (the children) bom of this marriage, both still minors at the time of this appeal. Plaintiff and Defendant entered into a Consent Child Support and Parenting Agreement on 7 June 2006 (the 7 June 2006 agreement). According to the 7 June 2006 agreement, Plaintiff agreed to “transfer a minimum of fifteen (15) percent [353]*353of any inheritance or trust distribution that he receives by reason of the deaths of [Plaintiffs relatives] Helen Ludlam and Martha Ludlam to be held in trust for the benefit of [the children].” The 7 June 2006 agreement further stated that Plaintiff “shall set up a trust account for the children no later than December 31, 2006, and the children’s portion of any distribution . . . will be deposited into the children’s trust accounts within ten (10) days of [Plaintiff’s] receipt.” Plaintiff did not set up a trust account for the children by 31 December 2006. Plaintiff apparently set up a single trust account for the children in 2007, but this trust account was never funded.

Helen Ludlam, Plaintiff’s mother, died 20 December 2008. According to Defendant, Plaintiff “inherited $368,487.26” from his mother’s estate. Defendant does not indicate whether that $368,487.26 consisted of only cash, or whether it also included furniture, jewelry, and “oil and gas trusts” that Defendant claims Plaintiff inherited. A partial cash distribution of $325,953.94 from Helen Ludlam’s estate was distributed to Plaintiff by attorneys for the executors of Helen Ludlam’s estate. Plaintiff had set up individual trust accounts for the children on or about 23 December 2009. From the partial cash distribution of $325,953.94, Plaintiff received $277,060.84, and fifteen percent of it or $48,893.10 was deposited into the children’s trust accounts by 5 January 2010, as required by the 7 June 2006 agreement. Plaintiff also inherited personal property, including jewelry and furniture, from his mother. According to a 23 December 2009 letter sent to the children’s trustee, Plaintiff set aside fifteen percent of the personal property inheritance for the children. There appears to be a dispute concerning whether this personal property was transferred to the children. An email from Plaintiff to Barbara Shyloski (Shyloski) at UBS Bank (UBS), dated 30 October 2009, indicates that Plaintiff received a total cash inheritance of $368,487.26, and that he intended to deposit $27,636.55 into each child’s account. This amount represents a total of $55,273.09 to the children, and is,fifteen percent of $368,487.26. Shyloski was Plaintiff’s financial advisor. She was also a friend of both Plaintiff and Defendant. Shyloski testified that she advised Plaintiff to establish the children’s 2009 separate trust accounts, believing that was preferable to utilizing a single trust account for both children. Shyloski set up the children’s 2009 trust accounts at UBS. The trial court’s findings of fact do not state what Plaintiff inherited from his mother, or how much of this inheritance was transferred into the children’s trust accounts.

[354]*354Additionally, in the 7 June 2006 agreement, Plaintiff and Defendant agreed that Plaintiff would pay $1,000.00 in monthly child support, and that Plaintiff and Defendant would evenly split the costs of health care, private schooling, and other expenses. The 7 June 2006 agreement stated it would remain in effect until: “(1) a custody order is entered by a court of competent jurisdiction or (2) the parties enter another child support, custody or parenting agreement executed in writing with the same formality as this Agreement.” Plaintiff and Defendant entered into a Custody Consent Agreement on 21 January 2010 (the 21 January 2010 agreement), giving primary physical custody of the children to Defendant and secondary physical custody to Plaintiff.

Plaintiff and Defendant were divorced sometime after entry of the 7 June 2006 agreement. Defendant later married David Miller, a major in the armed forces (Major Miller). Plaintiff lost his job in 2008, and he has been unable to find employment since that time. Defendant has also been unemployed since 2008. The trial court found that both Plaintiff and Defendant had “searched for employment but have not been able to secure employment.”

We must note that throughout Defendant’s brief, her appellate attorneys consistently refer to Plaintiff as “a chronically unemployed MBA,” and we find this language argumentative, and in violation of Rule 28(b)(5) of our Rules of Appellate Procedure. We note that Defendant, at the time of appeal, had been unemployed at least as long as Plaintiff, and had, according to testimony, been earning more than Plaintiff at the end of their marriage. In addition, Defendant also has an MBA, is a Certified Financial Advisor, and has passed the test to become a Certified Financial Planner.

Plaintiff filed this action on 2 February 2010, asking the trial court to “enter a child support order based upon the North Carolina Child Support Guidelines.” Defendant answered on 12 April 2010, and filed counterclaims for breach of contract, child support, and attorney’s fees. This matter was heard during the 11 April 2011 and subsequent Civil Sessions of District Court for Guilford County.

Defendant filed a motion for sanctions and criminal contempt against Plaintiff on 20 June 2011. In that motion, Defendant alleged that Plaintiff had made false representations both in his deposition and at the hearing, and had failed to fully comply with discovery. An order was entered on 31 October 2011 (the order) in which the trial court ruled that: (1) the 21 January 2010 agreement served to termi[355]*355nate the 7 June 2006 agreement; (2) Plaintiff was to pay monthly child support in the amount of $156.00; (3) Defendant was to maintain health and dental insurance for the children, including paying the premiums', but Plaintiff and Defendant would equally share all uncovered or un-reimbursed medical and dental costs; (4) Defendant would provide Plaintiff with all necessary health and dental insurance coverage documentation; (5) Plaintiff owed no retroactive child support, and no amount was owed by either party for any expenses previously incurred on behalf of the children; (6) neither Plaintiff nor Defendant was entitled to attorney’s fees or costs; and (7) Defendant’s motion for sanctions and contempt was denied. Defendant appeals.

I.

Defendant raises on appeal thirteen issues related to the order. We affirm in part and reverse and remand in part.

II.

This Court has stated the standard of review applicable to child support orders as follows:

In reviewing child support orders, our review is limited to a determination whether the trial court abused its discretion. Under this standard of review, the trial court’s ruling will be overturned only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision. The trial court must, however, make sufficient findings of fact and conclusions of law to allow the reviewing court to determine whether a judgment, and the legal conclusions that underlie it, represent a correct application of the law.

Spicer v. Spicer, 168 N.C. App. 283, 287, 607 S.E.2d 678, 682 (2005) (citations omitted).

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Bluebook (online)
739 S.E.2d 555, 225 N.C. App. 350, 2013 WL 427114, 2013 N.C. App. LEXIS 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ludlam-v-miller-ncctapp-2013.