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Sarno v. Sarno

Court of Appeals of North Carolina

August 19, 2014

MICHELLE D. SARNO, Plaintiff,
v.
VINCENT J. SARNO, Defendant

Heard in the Court of Appeals June 4, 2014

The Law Office of Mr. Richard B. Johnson, P.A., by Richard B. Johnson, for plaintiff-appellant, cross-appellee.

Krusch & Sellers, P.A., by Rebecca K. WattsMs., for defendant-appellee, cross-appellant.

Judges STEPHENS and MCCULLOUGH concur.

Appeal by Plaintiff and Defendant from Order entered 24 April 2013 by Mecklenburg County. No. 09-CVD-5222.

OPINION

STROUD, Judge.

Plaintiff and defendant each appeal from an order for permanent child support and attorney fees. Because the order from which the parties have appealed is interlocutory

Page 372

and they have failed to argue that they are entitled to an interlocutory appeal based upon impairment of a substantial right, we dismiss both parties' appeals.

I. Background

Plaintiff and defendant were married in 2000 and one child was born to their marriage, in 2003. They separated in 2006 and later divorced. In 2009, plaintiff filed a complaint including claims for child custody and support, and defendant filed an answer and counterclaims also seeking custody, child support, and attorney's fees. Trial on the issues of child support and custody began on 6 June 2011 and 7 June 2011. On 23 March 2012, the trial court entered an order of permanent child custody, which specifically reserved the issue of child support for later determination. In the custody order, the trial court concluded that " [t]here was insufficient time to hear evidence and rule on claims for child support and attorney fees and the court retains jurisdiction to rule on this issue." On 24 July 2012, plaintiff filed a motion to modify custody based on several alleged changes of circumstances, including claims that the custody order was based upon the fact that plaintiff had planned to move to Vermont at the time of the June 2011 hearing, but she had since decided to remain in North Carolina.

The trial court resumed trial on the issue of permanent child support on 14 September 2012. On 24 April 2013, the trial court entered an order for permanent child support and attorney fees. In this order, the trial court found that plaintiff's motion to modify custody, filed on 24 July 2012, was still pending. The trial court found that at the 2011 trial, plaintiff had maintained " with certainty" that she would relocate to Vermont on 15 July 2011 and sought primary custody of the minor child. The permanent custody order had awarded primary custody of the child to defendant and had set a visitation schedule based upon the fact that plaintiff would be residing in Vermont and the defendant and child in North Carolina, with " extended time in the summers and school holidays" but " not enough overnights" to require that plaintiff's child support be established under Schedule B of the Child Support Guidelines.

The trial court also found that despite the visitation schedule established in the custody order, since plaintiff had remained in North Carolina, she had actually exercised additional weekend visitation during the school year, beyond that dictated by the custody order. The trial court found that " plaintiff's testimony of her overnights did not convince the court of an exact amount of parenting time" and that defendant's theory for calculating the parties' overnights was " confusing." The trial court found that plaintiff had 135 overnight visits per year, sufficient for child support to be set on Worksheet B, but based upon the uncertainty of the exact amount of visitation as well as additional findings of fact regarding the parties' financial situations and sharing of expenses, established child support accordingly, based upon Schedule A. The trial court also found that " while there is a motion to modify custody outstanding, child support needs to be established based on the current order and practice of the parties."

The trial court also made findings, when addressing the issue of attorney's fees, as to the delay in the progress of the case. The court found that " procedurally, this case has been slowed by the heavy case load of the court system, trial strategy decisions by the Plaintiff's counsel, the health issues of the prior trial counsel, as well as personal decisions by Plaintiff." One of these decisions was that " after receiving an undesirable result in the custody [matter], Plaintiff changed course, and opted to stay in North Carolina, presumably believing that this would negate the ...


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