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Ferguson v. Ferguson

Court of Appeals of North Carolina

December 31, 2014

THOMAS E. FERGUSON, Plaintiff
v.
WENDY R. FERGUSON, Defendant

Heard in the Court of Appeals September 8, 2014

Page 31

Hamilton Moon Stephens Steele & Martin, PLLC, by Amy Simpson Fiorenza, for Plaintiff (no brief).

The Law Offices of Kenneth T. Davies, by Kenneth T. Davies and Alyssa V. Andrew, for Defendant.

ERVIN, Judge. Judge MCCULLOUGH concurs. Judge BELL concurs in part and dissents in part in separate opinion.

OPINION

Page 32

Appeal by defendant from orders entered 29 October 2013 and 9 December 2013 by Judge Paige B. McThenia in Mecklenburg County District Court, No. 04 CVD 19402.

ERVIN, Judge.

Defendant Wendy R. Ferguson appeals from an order denying her motion to deviate from the child support guidelines and ordering Defendant to pay Plaintiff Thomas E. Ferguson child support in the amount of $919 per month, to make payments intended to reduce a child support-related arrearage in the amount of $191.43 per month, and to pay Plaintiff's attorney's fees and from an amended order requiring income withholding in connection with her child support and arrearage obligation.[1] On appeal, Defendant argues that the trial court erred by refusing to deviate from the child support guidelines, by including private school tuition costs as an extraordinary expense in calculating Defendant's child support obligation, and by entering the amended withholding order after an appeal had been noted from the trial court's child support order. After careful consideration of Defendant's challenges to the trial court's orders in light of the record and the applicable law, we conclude that the trial court's child support and amended income withholding orders should be reversed and vacated, respectively, and that this case should be remanded to the Mecklenburg County District Court for further proceedings not inconsistent with this opinion.

I. Factual Background

Plaintiff and Defendant were married on 20 August 1994, separated on 28 October 2003, and divorced on 6 April 2005. The parties are the parents of two minor children, Carrie and Brian. [2] On 7 January 2005, Judge Ben S. Thalheimer entered a consent judgment addressing equitable distribution, child custody, child support, and visitation issues that provided, in pertinent part, that Plaintiff would have primary physical custody of the children; that Defendant would have visitation with the children at designated times; that Defendant would pay the tuition and daycare expenses associated with the children's attendance at Northside Christian Academy; and that Plaintiff would pay the children's healthcare and all other expenses.

On 11 January 2008, Defendant filed a motion seeking to have the existing custody and support arrangements modified on the grounds that there had been substantial and material changes in circumstances affecting the welfare of the children, including a reduction in the amount of time that Defendant had been able to spend with the children and changes in the expenses that needed to be incurred on behalf of the children. On 28 January 2009, Plaintiff filed a response to Defendant's motion in which he denied the material allegations of Defendant's motion and sought the entry of an order providing for a modification of the existing child support arrangement. On 17 September 2009, the trial court entered an order awarding Plaintiff primary physical custody of the children, establishing a schedule pursuant to which Defendant was entitled to visitation with the children, and indicating that a separate

Page 33

order modifying the existing child support arrangements would be entered.

On 27 October 2010, Defendant filed a motion seeking to obtain the entry of a child support order that deviated from the child support guidelines. At a hearing held on 25 April 2012 and 6 June 2012, Defendant presented evidence regarding her net monthly income, shared family expenses, debts, and other monthly expenses affecting herself and the children and asserted that her father sometimes helped her make her mortgage payments when she needed financial assistance. In addition, Plaintiff presented evidence regarding his monthly income, shared family expenses, the cost of the children's attendance at Northside Christian Academy, and other monthly expenses for the children, including amounts associated with the purchase of food and the cost of recreational activities.

On 29 October 2013, the trial court entered an order denying Defendant's motion to deviate from the child support guidelines, ordering Defendant to pay child support in the amount of $919 per month, requiring Defendant to pay a $15,314 child support-related arrearage at the rate of $191.43 per month, compelling Defendant to pay Plaintiff's attorney's fees, and imposing a wage withholding requirement to ensure the making of the required support and arrearage reduction payments. On 15 November 2013, Defendant noted an appeal from the 29 October 2013 order to this Court. On 9 December 2013, the trial court entered an amended wage withholding order. On 19 December 2013, Defendant noted an appeal from the 9 December 2013 order to this Court.

II. Substantive Legal Analysis

A. Motion to Deviate from Child Support Guidelines

In her first challenge to the trial court's order, Defendant contends that the trial court erred by refusing to deviate from the child support guidelines in calculating the amount of child support that she owed Plaintiff. More specifically, Defendant asserts that the trial court erred by failing to make adequate findings of fact concerning the reasonable needs of the children and the

Page 34

relative ability of each party to provide support. Defendant's argument has merit.

1. Standard of Review

" Child support orders entered by a trial court are accorded substantial deference by appellate courts and our review is limited to a determination of whether there was a clear abuse of discretion." Leary v. Leary, 152 N.C.App. 438, 441, 567 S.E.2d 834, 837 (2002). Similarly, " [a] trial court's deviation from the [child support] [g]uidelines is reviewed under an abuse of discretion standard." Beamer v. Beamer, 169 N.C.App. 594, 597, 610 S.E.2d 220, 223 (2005). " Under this standard of review, the trial court's ruling will be overturned only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." Ludlam v. Miller, __ N.C.App. __, __, 739 S.E.2d 555, 558 (2013) (quoting Spicer v. Spicer, 168 N.C.App. 283, 287, 607 S.E.2d 678, 682 (2005)). " The trial court must, however, make sufficient findings of fact and conclusions of law to ...


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