Shaw v. Shaw

Court of Appeals of North Carolina

Shaw v. Shaw

306 S.E.2d 506, 63 N.C. App. 775, 1983 N.C. App. LEXIS 3183

CourtCourt of Appeals of North Carolina

DecidedSeptember 6, 1983

DocketNo. 8221DC1023

StatusPublished

Cited by2 cases

This text of 306 S.E.2d 506 (Shaw v. Shaw) 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

Shaw v. Shaw, 306 S.E.2d 506, 63 N.C. App. 775, 1983 N.C. App. LEXIS 3183 (N.C. Ct. App. 1983).

Pincite

Opinion

HEDRICK, Judge.

Plaintiff assigns as error that the court’s findings of fact do not support its conclusions of law that the court was unable to determine the amount of arrearages due and that plaintiffs motion thus should be denied. Plaintiff also assigns as error the court’s failure to make a conclusion of law as to the amount of ar-rearages owed by defendant. Plaintiff contends she presented a prima facie case that defendant owed a determined amount of child support, and that defendant, by raising the affirmative defense of payment, had the burden of offering proof of any payments made and their amount. Since defendant failed to produce sufficient evidence of payment, plaintiff claims her motion should have been granted.

A delinquent parent’s right to receive credit for expenditures paid outside an order of the court in an action to enforce the collection of arrearages in child support was recognized in Goodson v. Goodson, 32 N.C. App. 76, 231 S.E. 2d 178 (1977). There, the Court held “the better view allows credit when equitable considerations exist which would create an injustice if credit were not allowed. Such a determination necessarily must depend upon the facts and circumstances in each case.” Id. at 81, 231 S.E. 2d at 182. Subsequently, in Jones v. Jones, 52 N.C. App. 104, 278 S.E. 2d 260 (1981), this Court held “[t]he trial court has . . . wide discretion in deciding initially whether justice requires that a credit be given under the facts of each case and then in what amount the credit is to be awarded.” Id. at 109, 278 S.E. 2d at 264.

While a delinquent parent’s right to receive credit for payments made outside of a court order has been recognized, it must be remembered that payment is an affirmative defense and as such it must be pleaded by the party asserting it. N.C. Gen. Stat. [778]*778Sec. 1A-1, Rule 8(c). “[T]he general rule is that the burden of showing payment must be assumed by the party interposing it.” Auto Finance Co. v. McDonald, 249 N.C. 72, 74, 105 S.E. 2d 193, 194 (1958) (citations omitted); Critcher v. Ogburn, 30 N.C. App. 182, 186, 226 S.E. 2d 414, 416 (1976). A party seeking credit for payments outside a court order thus has the burden of producing evidence showing that he has made such payments and the amount thereof.

In the instant case, the defendant claimed that he was entitled to credit for payment but failed to show the amount paid. The trial court found that defendant had indeed made payments to plaintiff, but did not find as a fact that defendant was entitled to credit, nor did the court make a finding as to the amount of such credit. The lack of these specific findings prevents this Court from determining whether the trial judge acted properly in denying plaintiffs motion. Because the court’s order does not contain sufficient findings to support its judgment, the judgment must be vacated. We remand this case to the District Court for further findings, conclusions, and a judgment consistent with this decision.

Vacated and remanded.

Judges Wells and Phillips concur.

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HEDRICK, Judge.

Plaintiff assigns as error that the court’s findings of fact do not support its conclusions of law that the court was unable to determine the amount of arrearages due and that plaintiffs motion thus should be denied. Plaintiff also assigns as error the court’s failure to make a conclusion of law as to the amount of ar-rearages owed by defendant. Plaintiff contends she presented a prima facie case that defendant owed a determined amount of child support, and that defendant, by raising the affirmative defense of payment, had the burden of offering proof of any payments made and their amount. Since defendant failed to produce sufficient evidence of payment, plaintiff claims her motion should have been granted.

A delinquent parent’s right to receive credit for expenditures paid outside an order of the court in an action to enforce the collection of arrearages in child support was recognized in Goodson v. Goodson, 32 N.C. App. 76, 231 S.E. 2d 178 (1977). There, the Court held “the better view allows credit when equitable considerations exist which would create an injustice if credit were not allowed. Such a determination necessarily must depend upon the facts and circumstances in each case.” Id. at 81, 231 S.E. 2d at 182. Subsequently, in Jones v. Jones, 52 N.C. App. 104, 278 S.E. 2d 260 (1981), this Court held “[t]he trial court has . . . wide discretion in deciding initially whether justice requires that a credit be given under the facts of each case and then in what amount the credit is to be awarded.” Id. at 109, 278 S.E. 2d at 264.

While a delinquent parent’s right to receive credit for payments made outside of a court order has been recognized, it must be remembered that payment is an affirmative defense and as such it must be pleaded by the party asserting it. N.C. Gen. Stat. [778]*778Sec. 1A-1, Rule 8(c). “[T]he general rule is that the burden of showing payment must be assumed by the party interposing it.” Auto Finance Co. v. McDonald, 249 N.C. 72, 74, 105 S.E. 2d 193, 194 (1958) (citations omitted); Critcher v. Ogburn, 30 N.C. App. 182, 186, 226 S.E. 2d 414, 416 (1976). A party seeking credit for payments outside a court order thus has the burden of producing evidence showing that he has made such payments and the amount thereof.

In the instant case, the defendant claimed that he was entitled to credit for payment but failed to show the amount paid. The trial court found that defendant had indeed made payments to plaintiff, but did not find as a fact that defendant was entitled to credit, nor did the court make a finding as to the amount of such credit. The lack of these specific findings prevents this Court from determining whether the trial judge acted properly in denying plaintiffs motion. Because the court’s order does not contain sufficient findings to support its judgment, the judgment must be vacated. We remand this case to the District Court for further findings, conclusions, and a judgment consistent with this decision.

Vacated and remanded.

Judges Wells and Phillips concur.

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Bluebook (online)

306 S.E.2d 506, 63 N.C. App. 775, 1983 N.C. App. LEXIS 3183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaw-v-shaw-ncctapp-1983.

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