Sikes v. Sikes

391 S.E.2d 855, 98 N.C. App. 610, 1990 N.C. App. LEXIS 452
CourtCourt of Appeals of North Carolina
DecidedJune 5, 1990
DocketNo. 8910DC758
StatusPublished
Cited by2 cases

This text of 391 S.E.2d 855 (Sikes v. Sikes) 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
Sikes v. Sikes, 391 S.E.2d 855, 98 N.C. App. 610, 1990 N.C. App. LEXIS 452 (N.C. Ct. App. 1990).

Opinions

COZORT, Judge.

Defendant appeals from an order of the trial court ordering defendant to pay back child support, prospective child support, a portion of expenses incurred for special education for one child, and a portion of plaintiffs attorney’s fees. We affirm.

The parties were formerly husband and wife, having married on 24 June 1968. Four children were born of the marriage, two daughters, born 29 March 1970 and 6 November 1971, and two sons, born 15 April 1976 and 24 June 1977. The parties are now divorced. Pursuant to an amended separation agreement, all four children had resided with defendant since 5 February 1986.

On 21 August 1986, plaintiff filed an action for custody and child support. Defendant filed Answer, and the matter came on for hearing in October of 1986 in Wake County District Court before Judge L. W. Payne. The record does not disclose the contents of that hearing. In January of 1987, Judge Payne sent notice to the parties’ attorneys that an order was due and should be presented to the court by 20 February 1987. On 23 February 1987 Judge Payne ordered counsel to appear in court to report the status of the case and the reason for the order not having been [613]*613drafted. Thereafter, counsel met in chambers with Judge Payne, who signed an Interim Order on 10 March 1987 as follows:

* Upon a conference in Chambers with Counsel for the Plaintiff and the Defendant, on March 6, 1987, and upon representations that the custody of the two minor children Derick Brendon Sikes and Warren James Sikes will be transferred to the Plaintiff, the undersigned Judge of the District Court of Wake County, North Carolina, is of the opinion that an Interim Order regarding custody and support of the two minor sons of the parties, Derick Brendon Sikes and Warren James Sikes, should be entered, pending further negotiations and possible agreement between the parties on certain matters.
Now, Therefore, it is hereby Ordered, Adjudged and DECREED:
1. That upon entry of this order, the Defendant shall physically transfer custody of the two minor sons to the Plaintiff.
2. The Defendant, by consent, shall pay to the Plaintiff for the support and maintenance of the two minor children, the sum of $200 per month per child, commencing with the entry of this Order for March, 1987, and a like sum on or before the 10th day of each and every month thereafter until an agreement between the parties with respect to an appropriate level of child support can be reached, or absent such agreement, until further Orders of this Court. The said monthly amount specified herein shall be without preference or prejudice as to a subsequent determination of an appropriate level of child support.
3. The parties and their respective Counsel are instructed to immediately negotiate and diligently attempt to reach an agreement with respect to an appropriate level of monthly child support, an apportionment of unreimbursed hospital, medical and dental expenses, and an apportionment of the expenses of psychological counseling currently being provided by Ms. Rosie Zeigler.
4. In the absence of such agreement, and upon motion of either party, this Court will make such determination of child support and apportionment of hospital, medical, dental, and psychological expenses on March 20, 1987, based upon the financial circumstances at that time and enter an Order.

[614]*614Again, however, the parties failed to come to an agreement on the issue of child support. Defendant procured new counsel. A hearing was held on 22 October 1987 before Judge Jerry W. Leonard, but at the close of the second day of testimony the matter had not concluded and was continued. Hearing of the case was not resumed until 5 January 1988, when the hearing was concluded. The trial court received evidence concerning the parties’ respective present incomes and expenses, actual past and present expenses of the children, the youngest son’s educational needs, and other evidence. On 2 March 1989, Judge Leonard entered an order making findings and conclusions and ordering defendant (1) to pay child support in the amount of $300.00 per month per child, (2) to pay $4,600.00 in back child support dating from March 1987, (3) to provide insurance coverage for the parties’ children and be responsible for all costs of medical and dental care not covered by insurance, (4) to contribute to the private school expenses incurred for the youngest son from March 1987 through completion of the school year in 1988, and (5) to pay a portion of plaintiff’s attorney’s fees. Defendant appealed.

By his first three assignments of error, defendant assigns error to the order of retroactive and prospective child support on the grounds that defendant was in compliance with a previous order of child support, the trial court failed to find a change in circumstances justifying a modification of that previous order, and the court was without authority to modify that order retroactively. We find no merit to this argument. The Interim Order clearly and unequivocally was intended to facilitate the transfer of custody to plaintiff pending an agreement between the parties or a determination by the trial court as to an appropriate level of support. The order entered by Judge Leonard in March of 1989 was “manifestly the first time a determination on the merits of the issue of child support was made,” and thus no findings relating to a change in circumstances were required. Little v. Little, 74 N.C. App. 12, 19, 327 S.E.2d 283, 289 (1985). The March 1989 order did not constitute a modification of a previous order for support, much less a retroactive one.

Defendant also contends that the trial court made insufficient findings and conclusions to support the payment for retroactive child support. We do not agree. Under N.C. Gen. Stat. § 50-13.4(c), a trial court may order a defendant to pay retroactive child support representing his or her fair share of the amount actually expended [615]*615by the plaintiff which represented the defendant’s share of support, taking into consideration the reasonable needs of the children and the ability of the defendant to pay during the time for which reimbursement is sought. Warner v. Latimer, 68 N.C. App. 170, 175, 314 S.E.2d 789, 792 (1984). In the March 1989 Order, the trial court made specific findings concerning the actual sums expended by plaintiff since custody of the sons was transferred to her pursuant to the Interim Order, the reasonableness of those sums, and defendant’s ability to contribute to the payment of those past expenditures. Defendant correctly notes the trial court’s error in denominating the amount due for retroactive child support as “arrears.” We do not, however, find prejudicial error in the trial court’s misnomer.

Defendant further contends that the trial court erred in finding that both parties had the ability to contribute to the support of the minor children and that the sums ordered as support were reasonable, because the trial court failed to make a finding as to his net income. The court found that defendant’s gross income was $53,540.00, as compared to plaintiff’s gross income of $13,100.00, and made findings about the parties’ expenses, plaintiff’s net income, and the children’s expenses. We hold that these findings are sufficient under N.C. Gen. Stat.

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Bluebook (online)
391 S.E.2d 855, 98 N.C. App. 610, 1990 N.C. App. LEXIS 452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sikes-v-sikes-ncctapp-1990.