State ex rel. Albemarle Child Support Enforcement Agency ex rel. Miller v. Hinton

556 S.E.2d 634, 147 N.C. App. 700, 2001 N.C. App. LEXIS 1254
CourtCourt of Appeals of North Carolina
DecidedDecember 18, 2001
DocketNo. COA00-1316
StatusPublished
Cited by3 cases

This text of 556 S.E.2d 634 (State ex rel. Albemarle Child Support Enforcement Agency ex rel. Miller v. Hinton) 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
State ex rel. Albemarle Child Support Enforcement Agency ex rel. Miller v. Hinton, 556 S.E.2d 634, 147 N.C. App. 700, 2001 N.C. App. LEXIS 1254 (N.C. Ct. App. 2001).

Opinion

McCULLOUGH, Judge.

On 11 April 2000, a hearing was held to establish paternity and child support for the minor child, Cordell Ballard Smith, Jr. Evidence [701]*701for the State showed that Brenda Miller and defendant, Ivory Hinton, went to junior high school together in Gates County, North Carolina. Ms. Miller saw defendant at a club in November 1985; around 21 November 1985, they engaged in sexual relations. Defendant and Ms. Miller had sexual relations at least two more times in November and December 1985.

On 8 September 1986, Ms. Miller gave birth to Cordell Ballard Smith, Jr. Ms. Miller wrote defendant a note approximately eight months after the child was bom to inform defendant that he was the baby’s father. Defendant and Ms. Miller later had a telephone conversation, during which defendant acknowledged that he was the father of Ms. Miller’s son. However, the child’s birth certificate, which was filed on 16 September 1986, listed Cordell Ballard Smith as the father. Ms. Miller initially believed Mr. Smith was the biological father of her child because she and Mr. Smith were engaged in a sexual relationship prior to and after Ms. Miller’s relationship with defendant. Their relationship was suspended from January 1985 to January 1986 because Mr. Smith was in prison. During that time, Ms. Miller became involved with defendant.

The Gates County Child Support Enforcement Agency initiated an action for paternity and child support on behalf of Ms. Miller and her son. In March 1998, genetic testing confirmed that Mr. Smith was not the biological father of the child; as a result, no further action was taken against him. On 25 November 1998, Ms. Miller filed a complaint, alleging that defendant was the father of her child. Genetic tests performed in February 1999 showed a 99.62% probability that defendant was the biological father of Cordell Ballard Smith, Jr.

On 17 June 1999, a hearing was held to adjudicate paternity, establish child support, recover past public assistance, provide medical insurance for the child, initiate wage withholding and trade line reporting, and recover the costs of the action. When defendant failed to timely file an answer or other responsive pleading and did not appear to defend the action, the trial court entered a default order for paternity and child support against him. In the default order, defendant was adjudicated the natural biological father of the child and was ordered to pay child support in the amount of $324.00 per month, effective 1 July 1999. The default order was filed on 4 August 1999. However, the default order was set aside by stipulation of the parties on 13 January 2000 because there was legitimate confusion on the part of defendant regarding whether he was to appear in court on 17 [702]*702June 1999. Evidence in the form of affidavits revealed that defendant received contradictory correspondence from the Gates County Child Support Office which reasonably led him to believe the 17 June 1999 hearing had been continued.

On 20 December 1999, defendant filed a “Notice to Deviate from Child Support Guidelines,” requesting that the trial court deviate from the child support guidelines (Guidelines) and conduct an evidentiary hearing on the needs of the minor child and the ability of the parties to pay child support. At the hearing, Ms. Miller, defendant, and Gina Mizelle, an employee of the Albemarle Child Support Enforcement Agency, testified. Ms. Miller testified that defendant was the father of her child and had acknowledged him during his infancy, while defendant testified that he did not remember Ms. Miller and did not know the minor child. Defendant stated that he moved to New York in December 1986 and lived there for two years with his aunt. He also testified that he had never visited the minor child or given him gifts. Ms. Mizelle testified about the genetic test results and the calculation of child support.

After considering the evidence, the trial court found that defendant was the biological father of the minor child, Cordell Ballard Smith, Jr. The trial court also found that deviation from the Guidelines was warranted, and ordered defendant to pay $150.00 per month. The trial court further noted that defendant had paid $1,621.35' in child support before the 17 June 1999 order was set aside, and gave him a credit for that amount by ordering that the money be applied to the child support obligation established in its order. Defendant’s child support obligation was ordered to commence effective 1 May 2000. The State appealed.

In its sole assignment of error, the State contends the trial court committed reversible error when it set the effective date of its order as 1 May 2000 as opposed to January 1999, the first month after the filing of the complaint. Specifically, the State argues the trial court failed to consider the weight of the evidence and failed to make adequate findings of fact to support its conclusions that a deviation from the Guidelines was proper and not award child support from the filing of the complaint. For the reasons set forth, we agree and reverse and remand the case for further findings of fact regarding the propriety of an award of prospective child support.

When considering the propriety of the trial court’s deviation from the Guidelines, we employ an abuse of discretion standard. Coble v.

[703]*703Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980). The trial court’s “determination as to the proper amount of child support will not be disturbed on appeal absent a clear abuse of discretion, i.e. only if ‘manifestly unsupported by reason.’ ” State ex rel. Fisher v. Lukinoff, 131 N.C. App. 642, 644, 507 S.E.2d 591, 593 (1998). “Thus, to determine whether the trial court abused its discretion in computation of a child support award deviating from the Guidelines, its findings of fact must show justification for the deviation and a basis for the amount ordered.” Fisher, 131 N.C. App. at 644-45, 507 S.E.2d at 593; see also Gowing v. Gowing, 111 N.C. App. 613, 618-19, 432 S.E.2d 911, 914 (1993). Guidance is provided in Sain v. Sain, 134 N.C. App. 460, 517 S.E.2d 921 (1999), where deviation is described as a four-step process:

First, the trial court must determine the presumptive child support amount under the Guidelines. N.C.G.S. § 50-13.4(c).

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556 S.E.2d 634, 147 N.C. App. 700, 2001 N.C. App. LEXIS 1254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-albemarle-child-support-enforcement-agency-ex-rel-miller-v-ncctapp-2001.