MICHELLE D. SARNO, Plaintiff,
VINCENT J. SARNO, Defendant.
in the Court of Appeals 9 August 2017.
by Plaintiff from order entered 24 April 2013 by Judge Ronald
L. Chapman in Mecklenburg County District Court. No.
Plumides, Romano, Johnson & Cacheris, PC, by Richard B.
Johnson, for plaintiff-appellant.
& Sellers, P.A., by Leigh B. Sellers, for
HUNTER, JR., Robert N., Judge.
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.
Factual and Procedural Background
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,
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
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
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
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."
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.
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.
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.
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.
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,
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.
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.
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.
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.
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.
Standard of Review
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))
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).
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
Deviation from the Guidelines
argues the trial court failed to make proper findings when it
deviated from the Guidelines. We agree.
Gen. Stat. § 50-13.4(c) (2012) includes a presumption that
the trial court shall apply the Guidelines. Id.
However, if the trial court completes the following ...