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Sarno v. Sarno

Court of Appeals of North Carolina

September 19, 2017

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

          Heard in the Court of Appeals 9 August 2017.

         Appeal by Plaintiff from order entered 24 April 2013 by Judge Ronald L. Chapman in Mecklenburg County District Court. No. 09-CVD-5222 (RLC)

          Plumides, Romano, Johnson & Cacheris, PC, by Richard B. Johnson, for plaintiff-appellant.

          Krusch & Sellers, P.A., by Leigh B. Sellers, for defendant-appellee.

          HUNTER, JR., Robert N., Judge.

         Michelle D. Sarno ("Plaintiff") appeals an order awarding child support, attorney's fees, and costs to her ex-husband, Vincent J. Sarno ("Defendant"). On appeal, Plaintiff argues the trial court committed the following errors: (1) deviating from the North Carolina Child Support Guidelines ("the Guidelines") without making the proper findings; (2) awarding Defendant attorney's fees; (3) awarding Defendant costs; and (4) crediting Defendant for overpaying child support. We vacate and remand in part and affirm in part.

         I. Factual and Procedural Background

         This case arises from a protracted dispute between Plaintiff and Defendant. Plaintiff and Defendant married on 15 July 2000 and have one child together. Plaintiff works as a teacher, and Defendant works at Rack Room Shoes, "in an accounting capacity." During the summer of 2006, [1] the parties separated.

         On 3 March 2009, Plaintiff filed a complaint, seeking child custody, child support, and equitable distribution of the parties' property. On 14 March 2009, Defendant filed an answer and motion to dismiss. On 23 September 2009, the trial court entered an order for temporary child support. The trial court directed Defendant pay Plaintiff $558.31 monthly in child support. On or about 16 June 2010, the parties entered into a consent order for equitable distribution. On 15 September 2010, Defendant filed an amended answer and counterclaim. Defendant requested child custody, child support, and attorney's fees. Defendant alleged Plaintiff "repeated a desire" to move away, possibly to Vermont.

         On 6 and 7 June 2011, the trial court began trial for child custody, child support, and attorney's fees. On 14 June 2011, the trial court rendered its judgment in open court, and referenced findings of fact it would make in a later order. On 11 August 2011, the trial court held a hearing to address "some issues that have come up with the visitation and custody schedule[, ]" child support, and attorney's fees.

         On 31 August 2011, nunc pro tunc to 14 June 2011, the trial court entered an order terminating temporary child support. Plaintiff filed a petition for a writ of mandamus in October 2011, requesting the trial court to issue "its finding of fact or its 'other reasons' for its [August 2011] ruling." The trial court held a hearing on 19 October 2011. At the hearing, the trial court stated it was "uncertain as to whether [it has] any authority whatsoever on that case at [that] point." Although the trial court had "findings of fact ready[, ]" it was unsure how to proceed, due to the procedural posture of the case.

         On 23 March 2012, the trial court entered an order of permanent child custody, specifically reserving the issue of child support for later determination. The trial court found Plaintiff, now engaged to a man from Vermont, still "explored" the Vermont area as a possible new home. Additionally, Plaintiff planned to relocate to Vermont around 15 July 2011, and "expressed minimal, if any, concern about the effect [her] move away from [the child] would have on [the child]." The trial court expressed "concern[ ]" and noted Plaintiff's "failure to give recognition to [the child]'s need for stability and a relationship with both parents[.]" Accordingly, the trial court ordered the parties to share joint, legal custody. The trial court awarded Defendant primary physical custody, starting at Plaintiff's relocation on 15 July 2011, and Plaintiff secondary physical custody. In the order, the trial court concluded "[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 child custody. Plaintiff alleged a change of circumstances, namely she planned to remain in North Carolina, instead of moving to Vermont, as stated at the June 2011 hearings.

         On 14 September 2012, the trial court resumed trial to determine permanent child support. The hearing largely consisted of arguments from counsel, not testimony from either party.

         On 24 April 2013, the trial court entered an order for permanent child support and attorney's fees. The trial court found Plaintiff's motion to modify custody was still pending. Additionally, the trial court found the parties deviated from the visitation schedule set in the custody order. Because Plaintiff did not move to Vermont, as originally maintained, Plaintiff exercised additional weekend visitation. However, the trial court found "[Plaintiff]'s testimony of her overnights did not convince the court of an exact amount of parenting time." Additionally, Defendant's theory for calculating overnights "was confusing." The trial court based its child support "on the current order and practice of the parties[, ]" although a motion to modify custody was pending.

         The trial court calculated child support should be "between a Worksheet A and a Worksheet B[.]" The trial court calculated the monthly child support amount at $380.50, between 15 July 2011 and 31 December 2011. The trial court awarded Defendant $425.00 in monthly child support, effective 1 January 2012. The trial court also awarded Defendant $2, 000 for "reimbursement of overpayment of child support[.]" The trial court ordered Plaintiff to pay $9, 400 in attorney's fees and costs.

         On 20 May 2013, Defendant's counsel filed a certificate of service for the 24 April 2013 order. On 19 and 28 June 2013, Plaintiff and Defendant filed notices of appeal, respectively.

         In an opinion filed 19 August 2014 and an order entered 10 September 2014, this Court dismissed Plaintiff's and Defendant's appeals regarding the order for permanent child support and attorney's fees. Sarno v. Sarno, 235 N.C.App. 597, 762 S.E.2d 371 (2014). This Court held the appeals were interlocutory, because the child support order was a temporary order. Id. at 599-601, 762 S.E.2d at 372-74.

         On 16 April and 14 May 2014, the trial court held hearings on Plaintiff's motion to modify child custody. In an order entered 31 October 2014, the trial court modified custody and awarded primary physical and legal custody to Defendant. On 17 November 2014, Defendant filed a "Rule 52 Motion to Amend Findings and to Make Additional Findings; Rule 60 Motion to Correct Clerical Errors[.]" On 1 April 2016, the trial court sent a notice of hearing regarding Defendant's motions. In an order file stamped 19 and 20 April 2016, the trial court dismissed, with prejudice, Defendant's motions, after Defendant's counsel failed to appear at the hearing.

         On 20 May 2016, Defendant filed a Rule 60 Motion to correct clerical errors. Defendant requested the trial court strike "with prejudice" from its April order, and dismiss Defendant's motions without prejudice. Additionally, Defendant's counsel alleged she reviewed the court file on 12 May 2016. However, the "Memorandum of Judgment/Order had not yet been filed." On 15 June 2016, Plaintiff filed notice of appeal.

         II. Jurisdiction

         Defendant alludes to an untimely notice of appeal by Plaintiff. The record evinces confusion regarding the file date of the judgment. The judgment is stamped on both 19 and 20 April 2016. Additionally, the record indicates the judgment was not filed on 12 May 2016. Plaintiff alleges she did not receive the judgment until on or about 20 May 2016. To confuse matters even further, there is no certificate of service attached to the judgment.

         Regardless of any defect in Plaintiff's notice of appeal, we treat her appeal as a petition for writ of certiorari. In our discretion, we grant her petition for writ of certiorari and address the merits of her appeal.

         III. 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." Mason v. Erwin, 157 N.C.App. 284, 287, 579 S.E.2d 120, 122 (2003) (citation and quotation marks omitted). "Only a finding that the judgment was unsupported by reason and could not have been a result of competent inquiry, or a finding that the trial judge failed to comply with the statute . . . will establish an abuse of discretion." Wiencek-Adams v. Adams, 331 N.C. 688, 691, 417 S.E.2d 449, 451 (1992) (internal citations omitted). However, "[t]he trial court must . . . make sufficient findings of fact and conclusions of law to allow the reviewing court to determine whether a judgment, and the legal conclusions that underlie it, represent a correct application of the law." Ludlam v. Miller, 225 N.C.App. 350, 355, 739 S.E.2d 555, 558 (2013) (quoting Spicer v. Spicer, 168 N.C.App. 283, 287, 607 S.E.2d 678, 682 (2005))

         We typically review an award of attorney's fees under N.C. Gen. Stat. § 50-13.6 (2016) for abuse of discretion. However, when reviewing whether the statutory requirements under section 50-13.6 are satisfied, we review de novo. Hudson v. Hudson, 299 N.C. 465, 472, 263 S.E.2d 719, 724 (1980) (citation omitted). Only when these requirements have been met does the standard of review change to abuse of discretion for an examination of the amount of attorney's fees awarded. Burr v. Burr, 153 N.C.App. 504, 506, 570 S.E.2d 222, 224 (2002) (citing Hudson, 229 N.C. at 472, 263 S.E.2d at 724).

         IV. Analysis

         We review Plaintiff's contention in four parts: (A) deviation from the Guidelines; (B) attorney's fees; (C) costs awarded to Defendant; and (D) credit for overpayment of child support.

         A. Deviation from the Guidelines

         Plaintiff argues the trial court failed to make proper findings when it deviated from the Guidelines. We agree.

          N.C. Gen. Stat. § 50-13.4(c) (2012)[2] includes a presumption that the trial court shall apply the Guidelines. Id. However, if the trial court completes the following ...


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