Payne v. Payne

370 S.E.2d 428, 91 N.C. App. 71, 1988 N.C. App. LEXIS 718
CourtCourt of Appeals of North Carolina
DecidedAugust 2, 1988
DocketNo. 8727DC1194
StatusPublished
Cited by1 cases

This text of 370 S.E.2d 428 (Payne v. Payne) 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
Payne v. Payne, 370 S.E.2d 428, 91 N.C. App. 71, 1988 N.C. App. LEXIS 718 (N.C. Ct. App. 1988).

Opinion

BECTON, Judge.

By virtue of a consent judgment entered 9 February 1982, plaintiff, Mary Carpenter Payne, was awarded custody of the parties’ two minor children, and defendant, Jerry D. Payne, was ordered to pay $65 per week for child support. The consent judgment was modified pursuant to defendant’s motion on 19 December 1985, and as a result, the defendant was awarded primary custody of one of the parties’ minor children. He was also ordered to pay $220 in past due child support, and all future child support payments were stayed.

On 9 February 1987, defendant moved again for modification of the court’s custody order, alleging that both children resided with him and seeking child support. The trial judge concluded that the case did not qualify for disposition on the Expedited Calendar for Domestic Court cases and scheduled a hearing on the Regular Domestic Calendar in March 1987.

On 5 May 1987, the trial judge awarded custody of both minor children to defendant but did not order plaintiff to “pay any specific amount of support.” Defendant appeals from the trial judge’s failure to schedule the case on the Expedited Domestic Calendar and from its 5 May 1987 order. We remand.

I

We will first consider defendant’s contention that this case should have been scheduled for hearing on the Expedited Calendar for Domestic cases. Chapter 50, Article 2 of the North Carolina General Statutes provides specific guidelines for disposing of all child support cases expeditiously. N.C. Gen. Stat. Sec. 50-36(a) provides that expedited procedures shall apply to all child support cases in any judicial district or county in which an expedited process has been established. Gaston County has an expedited calendar for domestic cases.

In the instant case, defendant filed his motion for modification of the custody order on 9 February 1987. On 5 May 1987, the [73]*73trial judge entered an order finally disposing of the case. Plaintiff argues that because this began as a child custody case, it did not qualify for expedited process as a child support case, and the trial judge correctly scheduled it for hearing on the Regular Calendar.

Assuming, arguendo, that this case relates mainly to child support and thus qualified for expedited process under Chapter 50, Article 2, we fail to see how defendant was prejudiced by the court’s placement of this case on the Regular Domestic Calendar. Section 50-32 provides, in relevant part, that “[ejxcept where paternity is at issue, in all child support cases the district court judge shall dispose of the case from filing to disposition within 60 days . . . .” The case was originally scheduled for hearing during the 27 March 1987 session of Domestic Court. The case was continued on 8 April 1987 which was within the 60 day requirement of N.C. Gen. Stat. Sec. 50-32. This assignment of error is overruled.

II

We now turn to defendant’s assignments of error regarding the custody order. This custody struggle involves the parties’ two minor children — Amy and Angie Payne. In its 19 December 1985 order, which was not appealed, the trial judge awarded plaintiff custody of Amy Payne and awarded defendant custody of Angie Payne. Neither party was required to pay child support, and they were to share medical expenses equally.

Upon a hearing in response to defendant’s motion to modify the December 1985 order, the trial judge awarded custody of Amy Payne to defendant as well, after finding that Amy had moved into defendant’s home in defiance of the December 1985 order. The trial judge then concluded “[t]hat while the plaintiff owes a duty of support for Angie Payne and Amy Payne, because of her current income and expenses, she should not be ordered to pay any specific amount of support at this time.”

Defendant raises three issues on appeal regarding the custody order: 1) whether the trial judge erred by failing to make detailed findings of fact as required by N.C. Gen. Stat. Sec. 5043.4(b) and (c), and by finding facts that conflicted with the evidence; 2) whether the trial judge erred by concluding that the plaintiff did not have the means or ability to pay child support; [74]*74and 3) whether the trial judge erred by failing to consider Amy Payne’s affidavit.

A

Defendant’s first two contentions are so intertwined that we will consider them together. Defendant essentially contends that the trial judge’s findings of fact are inadequate to support its conclusion that plaintiff should not be required to pay child support.

The obligation to support children falls equally on both parents. N.C. Gen. Stat. Sec. 50-13.4(b) and (c) affords the trial judge a great deal of discretion in determining the amount of support a parent must pay. The trial judge may consider, among other things, the relative ability of the parents to provide support, or the inability of one to provide support, and the needs and estate of the child. Moreover, payments shall be in an amount needed to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, and accustomed standard of living of the child and the parties. These competing concerns were thoroughly addressed by our Supreme Court in Coble v. Coble, 300 N.C. 708, 268 S.E. 2d 185 (1980) in which the court noted that an order for child support “must be based upon the interplay of the trial court’s conclusions of law as to (1) the amount of support necessary to ‘meet the reasonable needs of the child’, and (2) the relative ability of the parties to provide that amount.” However, the trial judge’s conclusions “must themselves be based upon factual findings specific enough to indicate to the appellate court that the judge below took ‘due regard’ of the particular ‘estates, earnings, conditions, [and] accustomed standard of living’ of both the child and the parents. It is a question of fairness and justice to all concerned.” Coble, 300 N.C. at 713, 268 S.E. 2d at 189 (citation omitted).

Applying the foregoing principles to the instant case, we note that the trial judge, in its 5 May 1987 and 30 July 1987 orders combined, found the following summarized facts to which defendant took exception:

(6) Plaintiff resided with her mother; her expenses totaled $1,065.50 per month, and her income totaled $970 per month.
[75]*75(9) Defendant was remarried and resided with his wife and children, his expenses totaled $1,818 per month, his income totaled $1,748 per month, and he has additional income of approximately $20 per week.
(13) Amy Payne has the needs of the average sixteen-year-old and these can be met only by defendant at this time.
(14) Plaintiffs expenses exceed her income and she has great credit card expenses caused in large part by the defendant’s failure to pay court ordered child support in a timely manner, and she does not have either the present ability or resources to pay child support to defendant at this time.

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Bluebook (online)
370 S.E.2d 428, 91 N.C. App. 71, 1988 N.C. App. LEXIS 718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/payne-v-payne-ncctapp-1988.