in the Court of Appeals 14 November 2017
by defendant from order entered 14 November 2016 by Judge
Jeffrey Evan Noecker in New Hanover County District Court.
New Hanover County, No. 14 CVD 2315
Robbins Yates & Ponton LLP, by Tobias S. Hampson, for
Spruill LLP, by Steven B. Epstein and Andrew H. Erteschik,
Jill Ann Gerber Kaiser appeals from a child support order.
She contends that the order lacks sufficient findings to
support various determinations concerning the parties'
gross income and applicable credits.
explained below, we hold that the court's determination
of Ms. Gerber's regular capital gains income, her
dividend income, maintenance from Ms. Gerber's
fiancé, and several other aspects of the order are
unsupported by sufficient factual findings. We therefore
vacate the order. On remand, the trial court, in its
discretion, may enter a new child support order based on the
existing record or may conduct any further proceedings that
it deems necessary.
and Procedural History
Jill Ann Gerber Kaiser and Plaintiff Robert David Kaiser are
the parents of three minor children. Ms. Gerber and Mr.
Kaiser married in June 2000, separated in June 2014, and
divorced on 4 December 2015. Following the parties'
separation, Ms. Gerber took custody of the three children,
moved to Illinois, and later was awarded primary custody by
June 2014, Mr. Kaiser filed this action seeking a judicial
determination of his child support obligation. While this
action was pending, Mr. Kaiser paid $1, 565 per month to Ms.
Gerber, which he believed to be his child support obligation.
These payments were a combination of cash payments and a $565
per month payment on Ms. Gerber's car debt. On 2 April
2015, Ms. Gerber filed a counterclaim for child support.
July 2016, Mr. Kaiser moved for an order to show cause for
contempt and to modify child custody, alleging that Ms.
Gerber was engaging in a "concerted effort to alienate
the minor children" from him. Mr. Kaiser requested
primary custody of the children. The trial court later
entered an order transferring jurisdiction of any further
child custody matters, including Mr. Kaiser's motion to
modify, to Illinois where Ms. Gerber resides with the
hearing on the issue of child support, Ms. Gerber's
testimony and the exhibits presented showed that she had
significant capital gains each year from 2013 through 2015.
In 2014 and 2015, Ms. Gerber sold mutual fund shares in a
Wells Fargo account, realizing capital gains of $67, 386 in
2014 and $73, 143 in 2015. Ms. Gerber then sold the remaining
assets in that account in early 2016, realizing $10, 345 in
capital gains from this final sale.
Gerber and her accountant both testified that Ms. Gerber
received dividend income in 2014 and 2015 from three sources:
$580 from the Wells Fargo account, $6, 100 from a Vanguard
account, and $1, 541 from a Charles Schwab account. Ms.
Gerber testified that, although the Charles Schwab account
was in her name and she included the dividends on her tax
returns, the account actually belonged to her father and she
did not use the income generated from the account. The
parties' post-nuptial agreement designated the account as
"Wife's Father's Separate Property."
Gerber also testified that she and the children currently
reside in a rental house that costs $3, 500 per month. She
testified that the lease is solely in her name, but that her
fiancé lives with her and pays her $1, 750 per month
to cover his share of the rent and household expenses. Ms.
Gerber explained the she and her fiancé "function
financially like roommates."
Gerber also testified that, between the date of separation
and trial, she incurred $15, 048.88 in expenses for therapy
for the children. The children were treated for PTSD and
anxiety issues as "a result of the relationship with
their father." Ms. Gerber testified that the intent of
the therapy was "to try to repair the damage to the
relationship between Mr. Kaiser and the children"
because the children were afraid of their father, their fear
got worse after they moved to Illinois, and the therapists
were "trying to help them . . . be less afraid of him
and-and relate to him better."
Kaiser testified that Ms. Gerber caused these issues for
their children because she "creates this horrible
situation for the girls where they feel like they've been
abused and abandoned and then, uh, selects these counselors
and tells them all these lies about things that have happened
and tells the kids and creates all these issues."
Kaiser testified regarding the income he receives from his
50% interest in a business called SAJ Media. He provided
documentation of the business's revenues from the first
eight months of 2016 but did not provide a projection for
likely profits for the remainder of the year. Ms. Gerber
asserted that the business typically earned its largest
profit in the final three months of the year. Mr. Kaiser
testified that the net profit for the year "depends on
what happens the rest of the year" and there is no way
"with certainty to know what's going to happen in
the next three months." He testified that
"there's so much uncertainty you really don't
know" because "our year is made or broken in the
Kaiser also testified that, in addition to his income from
SAJ, he had received a total of $50, 000 in financial support
from his parents after he separated from Ms. Gerber. Mr.
Kaiser testified that the $50, 000 he received was a loan
rather than a gift. He explained that there is a written
promissory note for repayment of $30, 000 and an informal
verbal agreement to repay the remaining $20, 000.
November 2016, the trial court entered its child support
order. The trial court found that it was necessary "to
deviate from the presumptive child support guidelines"
due to the length of time that the matter had been pending
and the significant changes in income for both parties. The
trial court stated that its determination of the parties'
incomes was based on "the parties['] 2014-2015 Tax
Returns, their current paystubs, 2015 and 2016 YTD Profit and
Loss Statements of SAJ Media, and the testimony of [Ms.
Gerber's] CPA." The trial court found that Ms.
Gerber's income is $15, 239 per month, including $685 per
month in regular dividends, $6, 095 per month in regular
capital gains, and $1, 750 per month from her fiancé
for maintenance. The court found that Mr. Kaiser's income
is $9, 615 per month, including his salary of $5, 833 per
month from SAJ Media and his profits of $3, 620 per month
from his 50% ownership share of SAJ Media. The trial court
relied on the 2016 year-to-date profits from SAJ Media to
determine Mr. Kaiser's expected yearly income from the
company, without assuming an increase from expected fourth
quarter profits. Ultimately, the trial court found that Mr.
Kaiser's income represents 38.7% of the parties'
combined incomes and Ms. Gerber's income represents
on its findings regarding the parties' incomes and
expenses, the trial court ordered Mr. Kaiser to pay $1, 922
per month in child support to Ms. Gerber. The trial court
determined that Mr. Kaiser had paid a total of $39, 043 in
child support from the date of separation through October
2016, resulting in a $1, 304 overpayment. In making this
determination, the court credited Mr. Kaiser for car payments
of $565 per month on Ms. Gerber's car. The trial court
denied Ms. Gerber's request for payment for the
children's past and future therapy expenses, finding that
the expenses for therapy were "unreasonable and
unnecessary" and Mr. Kaiser was not obligated to pay Ms.
Gerber for them because "the primary cause for any
therapy was [Ms. Gerber's] active alienation of the minor
children against their dad." Ms. Gerber timely appealed.
Gerber challenges virtually every portion of the trial
court's child support order in this case, but her
arguments largely are tied together by a single thread: the
lack of sufficient factual findings to support various legal
determinations concerning the parties' respective child
support obligations. As explained below, we agree that many
of the decisions in the trial court's order lack