Rettig v. Rettig

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-287 NORTH CAROLINA COURT OF APPEALS Filed: 3 December 2013 CUMBERLAND COUNTY EX REL: KAREN M. RETTIG, Plaintiff, v. Cumberland County No. 12 CVD 2163 DANIEL R. RETTIG JR., Defendant. Appeal by Defendant from order entered 9 November 2012 by Judge Robert J. Stiehl III, in Cumberland County District Court. Heard in the Court of Appeals 28 August 2013. Cumberland County Child Support Enforcement Roxanne Cecile Garner, for Plaintiff. Ferrier Law, Defendant. P.L.L.C., by Kimberly M. Agency, Ferrier, by for DILLON, Judge. Daniel R. Rettig, Jr. (Defendant) appeals from the trial court s order denying his motion to reduce his child support payments. We affirm. I. Factual & Procedural Background -2Karen M. Rettig (Plaintiff) and Defendant were married on 2 August 2004 and separated on 13 April 2010. Plaintiff and Defendant have two minor children. On 19 July 2012, a Temporary Support Order was entered in accordance with the North Carolina Child Support Guidelines (the Guidelines) ordering Defendant to pay a monthly sum of $984.00 as support for his minor children. At the time, Defendant was employed by Purolator, where he worked approximately 48 hours per week earning wages of $19.26 per hour. Defendant also received and continues to receive a monthly benefit under the G.I. bill in the amount of $1,104.00. On 22 August 2012, Defendant resigned from his employment with Purolator to pursue an associate degree at Fayetteville Technical Community College, where he had already registered as a student on Modification 5 on August 28 2012. August Defendant 2012, filed requesting a that Motion his for child support payments be reduced to reflect his income, which, as a result of leaving his employment with Purolator, consisted of only the monthly $1,104.00 G.I. bill benefit. The matter came on for hearing District Court on 27 September 2012. in Cumberland County Defendant proceeded pro se at the hearing, and Plaintiff was represented by counsel from -3Cumberland County Child Support Enforcement Agency. Following an opening statement from Plaintiff s attorney, the court asked Defendant whether he had anything pursuant to [his] motion, to which Defendant responded, Nothing much, Your Honor, just that I m now pursuing full time student status. The order of $984 a month I think it was, that is I wish to be reduced to my current income of $1104. The court then asked Defendant a series of questions, inquiring into the nature of Defendant s previous employment at Purolator, his educational and career goals, and whether he would be able to rely on his present wife s income. Defendant testified that he had worked an average of 48 hours per week at Purolator at a rate of $19.26 per hour; that he aspired to become a mechanical engineer, which, he believed, would require four years of college; and that he was able to rely on his wife s income [t]o a certain extent[.] Following this exchange, the court announced that it had contentions heard of at least one of the parties proceeded to articulate its findings in open court. then orally denied Defendant s motion to reduce and The court his child support payments and granted Plaintiff s request for a permanent child support subsequently order entered of $984.00 per its written order month. of The court permanent child -4support on 9 November 2012, substantially conforming with its in-court ruling. From this order, Defendant appeals. II. Analysis A. Defendant s Motion to Modify Defendant contends that the trial court erred in denying his motion to modify child support. We disagree. A child support order may be modified or vacated at any time, upon motion in the cause and a circumstances by either party . . . . 13.7(a) (2011). [M]odification involves a two-step process. 26, 453 S.E.2d 531, 536 (1995). of showing of changed N.C. Gen. Stat. § 50a child support order McGee v. McGee, 118 N.C. App. 19, The first step for the court in considering whether modification is appropriate is to determine whether there has been a substantial change in circumstances since the date the existing child support order was entered. Head v. Mosier, 197 N.C. App. 328, 333, 677 S.E.2d 191, 195 (2009). Only if the court determines that there has been a substantial change in circumstances will the court proceed to apply the [] Guidelines to calculate the applicable amount of support. McGee, 118 N.C. App. at 27, 453 S.E.2d at 536. The party seeking modification of the child support order bears the burden of proving by a preponderance of the evidence -5that a substantial change in circumstances has occurred since entry of the order. Trevillian v. Trevillian, 164 N.C. App. 223, 224, 595 S.E.2d 206, 207 (2004); Thomas v. Thomas, 134 N.C. App. 591, 592, 518 S.E.2d 513, 514 (1999) ( The moving party has the burden of showing changed circumstances. ). In the absence of findings of fact showing bad faith, child support orders may be modified upon a showing of substantial change in circumstances [which] may be shown in any of several ways [including]: a substantial increase or decrease in the child s needs; a substantial and involuntary decrease in the income of the non-custodial parent even though the child s needs are unchanged; [or] a voluntary decrease in income of either supporting parent, absent bad faith, upon a showing of changed circumstances relating to child oriented expenses. Frey v. Best, 189 N.C. App. 622, 631-32, 659 S.E.2d 60, 68 (2008) (citations omitted) (alterations in original). The trial court s determination of whether changed circumstances exist is a conclusion of law[,] Brooker v. Brooker, 133 N.C. App. 285, 289, 515 S.E.2d 234, 237 (1999), reviewable de novo on appeal, Davison v. Duke Univ., 282 N.C. 676, 712, 194 S.E.2d 761, 783 (1973). Here, Defendant s testimony established that his income had decreased from $5,295.00 to $1,104.00. monthly However, [t]he fact that a husband s salary or income has been reduced -6substantially does not automatically reduction in his support obligation. entitle him to a Johnston Cnty. ex rel. Bugge v. Bugge, __ N.C. App. __, __, 722 S.E.2d 512, 515 (2012) (citation omitted) (alteration in original). The trial court may refuse to modify support and/or alimony on the basis of an individual s earning capacity instead of his actual income when the evidence presented to the trial court shows that a husband has disregarded his marital and parental obligations by: (1) failing to exercise his reasonable capacity to earn, (2) deliberately avoiding his family s financial responsibilities, (3) acting in deliberate disregard for his support obligations, (4) refusing to seek or to accept gainful employment, (5) wilfully refusing to secure or take a job, (6) deliberately not applying himself to his business, (7) intentionally depressing his income to an artificial low, or (8) intentionally leaving his employment to go into another business. Id. (citations omitted) (emphasis in original). When the evidence shows that a party has acted in bad faith , the trial court may refuse to modify the support awards. Id. (citation and quotation marks omitted). The trial court made the following pertinent findings of fact in its Order of Permanent Child Support: 8. A Temporary Support Order was entered on July 19, 2012 ordering the Defendant to pay according to the North Carolina Guidelines the sum of $984.00 per month as current support for the care and benefit of the -7minor children. 9. . . . Defendant has represented that he was making $19.26 per hour while employed at Purolator. 10. That the Defendant work[ed] on average about 48 hours per week. 11. That the Defendant has since remarried and he has the ability to rely in part or completely on his current wife s income. 12. That the Defendant resigned from his job at Purolator on August 22, 2012 purportedly to pursue an advanced education. 13. That currently the Defendant has available to him $1,104.00 per month in a G.I. bill. . . . . 17. That the conduct of the Defendant is a wholesale disregard of his rights to provide adequately for the care, support and maintenance of [his] two minor children. 18. That the Defendant quitting his job two weeks after entry of the July 19, 2012 child support order is in bad faith. 19. That the Defendant quitting his job at Purolator undermines a legitimate and reasonable amount of child support. 20. That currently the amount of child support would drop from $984.00 per month to $189.00 per month if the Defendant s GI Bill income were used to calculate child support. . . . . 22. The following information was used to -8calculate credits: the Defendant s income and Income: The Defendant was imputed the wages that he was making at Purolator which is $4,191.00 per month. . . . . 24. The amount of ongoing child support is based on the North Carolina Child Support Guidelines. 25. The Defendant has the ability to pay the amount ordered. We conclude that these findings are supported by Defendant s testimony at the 27 September 2012 hearing and the competent evidence of record. Further, in light of these findings, we discern no abuse of discretion in the trial court s decision to deny Defendant s motion to modify his child support obligation. Defendant made the conscious decision to leave his job at Purolator, thereby depriving himself of the ability to comply with the temporary child support order entered just a few weeks earlier. court may deny As this Court has previously held, [t]he trial modification upon intentionally left his employment. a finding that Defendant Bugge, __ N.C. App. at __, 722 S.E.2d at 515 (citing Wolf v. Wolf, 151 N.C. App. 523, 527, 566 S.E.2d 516, 519 (2002)). We cannot say based upon the circumstances presented that the trial court s decision to deny -9Defendant s motion was arbitrary or manifestly unsupported by reason. See State v. Locklear, 331 N.C. 239, 248, 415 S.E.2d 726, 732 (1992) ( The test for abuse of discretion requires the reviewing court to determine whether a decision is manifestly unsupported by reason, or so arbitrary that it could not have been the result of a reasoned decision. ). Defendant questioning contends prejudiced that [him] the and trial as a court s result mode a of substantial injustice ensued and that the evidence ascertained was not done in accordance with North Carolina Rules of Evidence, G.S. § 8C-1, Rule 611. We disagree. [T]he trial judge s broad discretionary power to supervise and control the trial will not be disturbed [on appeal] absent a manifest abuse of discretion. 43, 52, S.E.2d and [m]ode 617 order 687, of 693 State v. Bethea, 173 N.C. App. (2005). interrogation Rule and 611 governs the presentation of witnesses and provides, in pertinent part, that the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue -10embarrassment. N.C. Gen. Stat. § 8C-1, Rule 611(a) (2011). Our review of the transcript reveals that the trial court s questioning of Defendant was focused but not impermissibly leading in order to procure relevant responses from Defendant, a pro se litigant. Defendant s assertion that the court dictated the outcome of the case by asking leading questions designed to elicit certain responses is belied by the following exchange, which indicates that the court did not ask Defendant any leading questions until after Defendant had had an opportunity to present his side of the case: [THE COURT]: Okay, anything pursuant to your motion, sir? [DEEFNDANT]: Nothing much, Your Honor, just that I m now pursuing full time student status. The order of $984 a month I think it was, that is I wish to be reduced to my current income of $1104. [THE COURT]: Anything else from you? [DEFENDANT]: No, Your Honor. [THE COURT]: Okay, when I get done asking you questions, I assume you re done then. The court then asked Defendant a series of questions in order to ascertain the nature of Defendant s prior employment and future educational and career ambitions. Upon completing its questioning, the court afforded Defendant another opportunity to -11provide further testimony in support of his position: [THE COURT]: Anything else you want me to know? [DEFENDANT]: No, Your Honor. Defendant s contention that witness is without merit. [c]ourtrooms are he was treated as a hostile Moreover, Defendant s assertion that intimidating environments for pro se litigants is unavailing, as our Courts have declined to treat pro se litigants differently from those represented, for instance, by all of the five largest law firms in the state. Bledsoe v. County of Wilkes, 135 N.C. App. 124, 125, 519 S.E.2d 316, 317 (1999); see also Strauss v. Hunt, 140 N.C. App. 345, 348-49, 536 S.E.2d 636, 639 (2000). court was Defendant, within and its discretion Defendant s in We hold that the trial its contentions mode on of this questioning issue are overruled. B. Order for Permanent Child Support Defendant raises several challenges to the trial court s Order for Permanent Child Support. We address these contentions in turn. Initially, we note that [t]he trial court is given broad discretion in child custody and support matters. be upheld if substantial competent evidence Its order will supports the -12findings of fact. Meehan v. Lawrence, 166 N.C. App. 369, 375, 602 S.E.2d 21, 25 (2004). If the record indicates substantial evidence to support the trial court s findings of fact, such findings are conclusive on appeal, even if record evidence might sustain findings to the contrary. Id. (citation and quotation marks omitted); see also Leary v. Leary, 152 N.C. App. 438, 441, 567 S.E.2d 834, 837 (2002) ( 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. ). Defendant contends that the trial court erred by not utilizing the actual income of the parties at the time [the court entered] the permanent order[.] Defendant cites State v. o/b/o Midgett v. Midgett, 199 N.C. App. 202, 680 S.E.2d 876 (2009), for the proposition that child support obligations are ordinarily determined by a party s actual income at the time the order is made or modified. Id. at 207, 680 S.E.2d at 879 (quoting Ellis v. Ellis, 126 N.C. App. 362, 364, 485 S.E.2d 82, 83 (1997)). However, as this Court also stated in Midgett, a party s capacity to earn income may become the basis of an award if it is found that the party deliberately depressed its income or otherwise acted in deliberate disregard of the obligation to -13provide reasonable support for the child. Id. (quoting Askew v. Askew, 119 N.C. App. 242, 244 45, 458 S.E.2d 217, 219 (1995)) (emphasis added). We have already upheld, supra, the trial court s decision to deny Defendant s request for modification on grounds that Defendant voluntarily suppressed his income. Implicit in this holding is our determination that the trial court did not abuse its discretion in deviating from Defendant s actual income and imputing to Defendant the income he had been earning at the time of the temporary child support order when it entered the permanent child support order. With respect to Plaintiff s income, Defendant contends that the trial court erred when it took no evidence from the Plaintiff as to her actual income at the time of the hearing and made no finding as to her gross income[.] This contention is undermined the by the fact that appended to trial court s temporary and permanent orders is a child support obligation worksheet reflecting Plaintiff s income. Although the worksheet reflects Plaintiff s income at the time the temporary order was entered, the amount of child support ordered by the temporary order, which was calculated based upon the Guidelines, could not be altered once the trial court denied Defendant s motion for modification. See Lewis v. Lewis, 181 N.C. App. 114, 638 S.E.2d -14628 (2007) (holding that the trial court erred when it modified support change after in concluding that circumstances). there Thus, had the been trial no substantial court was not required to make additional findings with respect to Plaintiff s income at the time it entered the permanent order. Defendant further contends that the trial court erred by considering his current wife s income in determining Defendant s child support obligation. previously stated, calculated based This contention is without merit. Defendant s upon the child Guidelines, As support payments were and not into account the income of his current wife. do take Moreover, we believe that the trial court s finding of fact 11 that Defendant has the ability to rely in part or completely on his current wife s income was merely superfluous and unnecessary to support the court s conclusion that modification was unwarranted, as this conclusion was amply permanent order. supported by the other findings See In re Adoption of Cunningham in the ex rel. Cunningham, 151 N.C. App. 410, 418, 567 S.E.2d 153, 158 (2002) (declining to consider whether certain findings in the trial court s order were supported by competent evidence upon concluding that other findings in the order were sufficient to support the trial court s conclusion). -15Defendant contends that the trial court erred in failing to take any evidence regarding the reasonable needs of his minor children at the 27 September 2012 hearing. Defendant cites Armstrong v. Droessler, 177 N.C. App. 673, 676, 630 S.E.2d 19, 21 (2006), substantial changed for the decrease proposition in circumstance a only that parent s if [a] income accompanied decrease in the needs of the child. voluntary can by and constitute a a substantial However, the trial court s determination that there had not been a change in circumstances sufficient to warrant modification obviated the need for the court to consider evidence of the children s needs. Moreover, we note that the amount of support entered in the permanent order was based upon the Guidelines and that [c]hild support set in accordance with the Guidelines is conclusively presumed to be in such amount as to meet the reasonable needs of the child and commensurate with the relative abilities of each parent to pay support. Beamer v. Beamer, 169 N.C. App. 594, 596, 610 S.E.2d 220, 222 23 (citation omitted); N.C. Gen. Stat. § 50 13.4(c) (2011). Finally, we Accordingly, this contention is overruled. note Defendant s contention that the trial court erred in ordering him to provide medical coverage for his children without making any findings concerning his ability to -16procure the same at a reasonable cost. This contention is misplaced, however, as the plain language of the trial court s order does not actually require Defendant to children s medical coverage at the present time. pay for his Rather, the order states that Defendant shall provide [his minor children] with medical coverage or other like program if available at a reasonable cost as a benefit of Defendant s employment . . . . (Emphasis added). Thus, while Defendant s ability to provide medical coverage for his children may become relevant if and when he obtains employment providing the relevant medical benefits, this issue is not properly before us at the present time. III. Conclusion For the foregoing reasons, we affirm the trial court s 9 November 2012 order. AFFIRMED. Judges BRYANT and STEPHENS concur. Report per Rule 30(e).

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