N.C. Court of Appeals Family Law Update – Contempt of Court
The Powers Law Firm in Charlotte is dedicated to providing helpful information to people interested in the NC Divorce Laws.
To that end, we regularly post materials on our blog and website regarding advances in the law and legal rulings.
We believe good decisions during divorce are predicated on good information and sound legal advice. Divorce is complicated and sometimes an emotional, messy affair. We want to help people. That’s why we do what we do – Bill Powers, Charlotte Divorce Lawyer
What’s in this Blog Post?
In this blog post, we will discuss civil contempt in family law cases in North Carolina.
Civil contempt can serve as a powerful tool to enforce Court Orders.
In the family law context, it is often used to compel parents to comply with child custody and support orders.
What’s new in Divorce in North Carolina?
N.C. Court of Appeals, on July 5, published a new batch of cases, two of which provided insight and clarity into some nuances within NC family law.
In Bossian v. Bossian, the Court—authored by Judge April Wood—touched on an array of issues including private modification of a custody order, effectuating a prior contempt order, and Rule 59 & Rule 60 Motions.
Background Fact Pattern
In Bossian, the parties were married in August 1998 and had two minor children before they eventually separated and divorced after February 2013.
A child custody and support order was entered in February 2015 granting primary custody of the parties’ two minor children to the Plaintiff-mother and secondary physical custody in the form of visitation during the minor children’s school breaks to the Defendant-father, who was living in Rhode Island.
The Order also required Defendant to pay $1,225.87 in monthly child support until the order was modified or terminated.
In March 2015, the court resolved the pending equitable distribution claim requiring Defendant to pay a $1,800 distributive award to Plaintiff from the proceeds following the sale of the marital home. These two orders remained in effect and were never modified by the court.
Shortly after, in January 2016, the parties privately agreed—absent the court’s involvement or permission—to modify the custody order allowing the parties’ younger minor son to move and live with Defendant-father, who ostensibly would assume primary custody.
The minor child remained with Defendant from January 2016 until July 2018 when he returned to North Carolina to live with Plaintiff. Defendant did not pay child support pursuant to the child support order during this period.
Later, in March 2020, Plaintiff filed a show cause motion to hold Defendant in contempt for Defendant’s failure to pay child support, unreimbursed medical expenses, and the distributive award pursuant to the March 2015 Order.
After a contempt hearing, the trial court entered an order in September 2020 holding Defendant in contempt for his failure to pay his aforementioned legal obligations, as well as awarding Plaintiff attorney’s fees.
A few days following the Contempt Order, Plaintiff filed a Rule 60 Motion for Relief to correct a clerical error resulting in a lower miscalculation of Defendant’s child support arrearages.
Defendant filed a Rule 59 Motion for Relief from Civil Contempt and Attorney’s Fees arguing that no evidence was presented at the hearing of Defendant’s current ability to pay—a statutory requirement to be held in civil contempt—contesting his civil contempt adjudication.
Both the party’s respective motions were heard at a hearing in April 2021. The presiding judge granted Plaintiff’s Rule 60 Motion and denied Defendant’s Rule 59 Motion.
The judge concluded the hearing by inquiring whether Defendant had purged his contempt pursuant to the September 2020 Contempt Order. The judge found that Defendant had the present ability to purge his contempt and ordered Defendant to pay $9,300—a reduction from the previously ordered $31,398.52—and be taken into custody until he had satisfied this purge amount.
Defendant appealed the trial court’s granting of Plaintiff’s Rule 60 Motion, denial of Defendant’s Rule 59 Motion, and Defendant’s order to be taken into custody.
Court of Appeals’ Holding & Key Takeaways
The Court of Appeals in its reasoning provided several takeaways in its Bossian holding:
1. A Judge May Effectuate a Previously Adjudicated Contempt Order Without Providing New Notice to the Contemnor
Defendant’s first argument was that the trial court’s holding him in contempt and his arrest after the April 2021 hearing on the party’s respective Rule 59 and 60 motions was a violation of his due process rights because he was not provided notice of the potential contempt hearing and of his arrest.
The Court disagreed holding that so long as the original contempt order was properly initiated—via a judicial order to show cause—and the contemnor had notice of the order and has presently not purged his contempt, then it is within a trial court judge’s discretion whether to stay or effectuate the enforcement of a civil contempt order.
Neither the trial court’s use of a second contempt order to enforce the original contempt order, nor the modification of the original purge amount in a second contempt order, constitutes a “new” contempt order that would require new notice.
2. A Clerical Error in a Contempt Order Does Not Give a Contemnor Legal Justification to Not Comply with the Order
The next argument that Defendant makes is that because both parties were contending that there were errors in the original contempt order, his failure to make the ordered payments could not be willful because he did not have the ability to comply, thereby preventing him from being held in contempt.
The Court noted that two statutory elements of civil contempt are that the contemnor’s violation is willful (i.e., an ability to comply and an intentional failure to do so) and he must have the actual ability to take reasonable measures to comply. However, it disagreed with Defendant’s argument citing Rule 62(b), and held that absent a Rule 62 motion to stay a contempt order, a contemnor’s compliance is mandatory.
3. Private Agreement, Absent a Court Order, Does Not Justify Noncompliance with a Court Order
The final key takeaway from the Court of Appeals’ ruling in Bossian is a contemnor’s noncompliance is still willful regardless of if the parties privately agree to not comply with a court order.
Defendant argued that it was error for the trial court to deny his Rule 59 motion because the evidence showed that his non-payment of his child support obligation was not willful due to the parties’ private modification of the child custody agreement.
The Court was unpersuaded by this argument.
The Court emphasized that pursuant to N.C. law, a child support order can only be modified by the court via a pending child support action and a showing of changed circumstances.
The Court iterated, and then later reiterated, that parties may not modify a court order through extrajudicial written or oral agreement, and a party has an obligation to follow a court order until it has been lawfully changed via judicial decree.
Charlotte Divorce Lawyers – Powers Law Firm
- Equitable Distribution
- Civil Contempt
- Child Support
- Why you should hire a Divorce Lawyer
- Domestic Violence Protective Orders
What you need to know about equitable distribution in North Carolina
Equitable distribution is a method of distributing assets and debt from marriage. It can be done by agreement without going to court, but this is not always possible given it can be a contentious issue during separation and divorce.
There are a lot of factors that are taken into consideration when determining the equitable distribution of assets and debts between spouses.
If you’re going through a divorce in Charlotte, it’s important to make sure you hire an experienced lawyer who understands this complicated process.
This blog post explains what equitable distribution is and why it helps to hire a Charlotte Divorce Lawyer.
What does equal distribution mean?
Equitable distribution is a legal term that means fair or just. It’s the process where courts in North Carolina distribute property and debt during divorce proceedings.
It is not necessarily equal division of property, but rather an equitable distribution.
The value of Marital property is part of any claim for equitable distribution.
The value of the separate property is not.
Marital property and the fair market value of the marital property can be subject to disputes and therefore litigation. If deemed property acquired by either spouse during the marriage, for the benefit of the marriage, that could be considered marital property unless the Court determines otherwise.
Property acquired prior to marriage is not necessarily automatically deemed separate property.
That’s important because the value of the separate property is not considered as part of a claim for equitable distribution in NC.
The date of separation may become important in considering equitable distribution in NC.
That is particularly true in issues involving something referred to as Divisible Property.
What is Divisible Property?
Divisible property is marital property that underwent any appreciation or diminution in value since the date of separation.
As such, if the fair market value of the property improves after the date of separation, that may be deemed in certain circumstances to be divisible property.
Divisible property can be a contentious subject between the parties – Bill Powers, Charlotte Divorce Lawyer
The date of separation, relative to debt and the acquisition of debt in improvements of assets ordinarily thought of marital property, may also be part of the equation regarding what is divisible property.
The parties in negotiations, and the Court in the event of litigation over marital property issues, will consider the date of marriage in the determination of debts and assets, the date of separation, when the property acquired appreciates or depreciates, and the value of the marital property before and after legal separation as part of any ruling on divisible property.
Marital Settlement Agreements in North Carolina
Marital settlement agreements are one way in which equitable distribution can be accomplished. These types of arrangements often require a lot of work and negotiation between both parties, but they allow for a more flexible approach when it comes to the division of property during divorce proceedings.
When it comes to equitable distribution, the main question is what counts as marital property. North Carolina law defines this as any asset or debt acquired by either spouse during the course of a marriage.
This includes income earned from employment, investments, and business interests.
Value of Separate Property
Separate property is also taken into consideration when determining equitable distribution of assets. Separate property includes any asset or debt that one spouse owned prior to the marriage, as well as gifts and inheritances given solely to one party during the course of a marriage.
When the separate property becomes mixed with marital assets, it can sometimes be difficult to determine how much of the combined property should be considered separate.
Property and debts that were acquired during a marriage must be divided between spouses.
The division of marital property is often one of the most contested aspects of divorce proceedings, especially when there are significant differences in earnings or other factors related to each party’s financial situation.
It’s important to work with an experienced attorney who can help guide you through this difficult process.
Protecting your property
If you’re going through a divorce in Charlotte, it’s essential to make sure that your assets and debts are protected during the equitable distribution process.
A divorce lawyer can help you protect your assets and make sure that the division of property is done fairly.
It’s important to understand equitable distribution before going through a divorce in North Carolina.
Indeed, part of answering the question “Should I Get Divorced” should involve careful consideration of your assets and whether getting divorced makes financial sense for you and your loved ones.
That necessarily includes consideration of what is marital property vs separate property.
Marital property in NC is subject to the NC Equitable Distribution Laws, separate property is not.
There are times when people come to us, ask some questions, and thereafter decide to work on the marriage. And that’s OK. We are here to help provide information, not press for separation and divorce – Bill Powers, Charlotte Divorce Lawyer
So, if you’re interested in learning more about this process, we think it’s a good idea to seek legal counsel from an experienced attorney who understands how these types of cases work.
Hiring a Charlotte Family Law attorney like Bill Powers can help ensure that your property and other rights aren’t jeopardized by family law proceedings.
Factors considered in the division of property
Whether you’re filing for divorce or are trying to defend your rights in family court, it’s important to consider the factors that will be used when dividing property under equitable distribution in North Carolina.
The value of an asset can also be considered when determining how it will be divided under equitable distribution laws.
Another important factor is contributions made to a marriage by either party. This includes the financial contributions made to the marriage by either party.
It’s important that you understand what assets will be divided under equitable distribution laws before filing for divorce.
For example, if you own a business or work in an industry that is expected to grow in the future, it’s important to protect your interests by working with legal professionals who understand how equitable distribution works and can help safeguard your rights during this process.
“Fault” is not a factor
If you’re currently considering filing for divorce, it’s important to consider the issues that will be addressed during equitable distribution proceedings.
Equitable distribution is a legal process that can help ensure a fair division of property between spouses in North Carolina. This includes assets acquired before marriage as well as gifts and inheritances given to either party after the marriage has begun.
The Court does not take into consideration who is at fault or caused the marriage to end if one party files for divorce in North Carolina. NC is a “no fault” state, but it may be relevant to alimony and something called Post Separation Support or “PSS.”
This means that even though adultery can sometimes play a role in determining alimony, the Court will not consider who cheated during equitable distribution proceedings
We firmly believe it is important to protect your interests by working with legal professionals who understand how property division works and can help you safeguard your rights during this process.
“Equitable” does not always mean equal
It’s important to understand that equitable distribution is not the same as equal division.
In fact, equity refers to a standard of fairness and justice within the community. This means that spouses may have an unequal split when it comes to property division under North Carolina law.
Accurate appraisals are critical
An important consideration in North Carolina’s equitable distribution law is the division of assets, which can be a complex process that requires an accurate appraisal.
Divorce lawyers may recommend you hire valuation experts who can help determine whether certain properties are community property or separate property.
This includes homes and other types of real estate as well as businesses or investments owned by either party during the marriage
Why hire Charlotte Divorce Lawyers?
As Charlotte Divorce Lawyers, we believe it’s important to protect your rights during family law proceedings.
The process of equitable distribution can be complex and requires an understanding of how these types of cases work in order to ensure that you receive fair treatment under the law.
Facing divorce can be very scary for spouses who are currently considering legal separation and eventually filing for divorce.
However, with a quality legal team on your side, you can feel more confident knowing that they are working to protect your rights and interests as well as those of your family during this process.
Bill Powers is an experienced Charlotte Divorce Lawyer who has been practicing law in the State of North Carolina since 1992.
He is located in Charlotte, North Carolina, and works with clients throughout the surrounding areas including Indian Trail, Monroe, and Waxhaw in Union County, Mooresville, In Iredell County, and in Charlotte, in Mecklenburg County.
Equitable distribution is the process of dividing marital property between spouses. This can be a complex process that requires an understanding of how these types of cases work in order to ensure that you receive fair treatment under the NC family laws.
If this sounds intimidating and you want help enacting these principles, let us know.
Call the divorce lawyers at Powers Law Firm, P.A. to determine our availability to help. Prior to discussing your legal matter, we will conduct a “Conflict Check.”
Consultation fees apply for family law cases which may include things like separation, divorce, child custody, support, and ED – Equitable Distribution.Learn More
The doctrine of Equitable Adoption is a judicially created “equitable” remedy that may, under very narrow circumstances, recognize a parent-child relationship in the absence of formal legal adoption.
Under the doctrine, inheritance rights may apply as a matter of equity when and if the child’s parents die intestate and those parents intended to but failed to formally perform a legal adoption before passing away.
Such claims are closely scrutinized and rarely applied under the NC Adoption Laws – Bill Powers, Charlotte Family Law Attorney
The essential elements of the doctrine include consideration of things such as:
- Whether there was an agreement, implied or express, to adopt a child; and,
- Whether such agreement is relied upon; and,
- The natural parents’ performance in surrendering/giving up custody; and,
- The performance of the child, while living with the foster parents, and whether she or he (the child) acts as the foster parents’ child; and,
- Foster parents’ partial performance in taking the child at issue into the home and treating such child as their own;
- Whether or not the Foster Parent had a Will (intestacy).
North Carolina Law on Equitable Adoption
The NC Supreme Court in 1997 acknowledged the doctrine for the first and only time in Lankford v. Wright.
In Lankford, the biological mother gave birth to a child, but shortly after entered into a written agreement with her neighbors, to raise and adopt her.
The foster parents held her out as their child publicly in all respects. Unfortunately, they died without a valid will, thus seemingly making the NC Law of Intestate Succession applicable.
The NC intestacy statute applied, ostensibly preventing the Petitioner from receiving anything from the people she thought of as her mother and father.
The Petitioner sought a Declaratory Judgment regarding her status and rights of an alleged heir of the related estate.
The North Carolina Supreme Court granted Petitioner’s petition and sought to answer the question of whether the Doctrine of Equitable Adoption recognizes inheritance rights of a non-formally adopted child whose foster parents died intestate.
The Supreme Court created legal standing that had never before been recognized under either the Common Law or by the statute. Given the long history of North Carolina, that is truly remarkable – Bill Powers, Charlotte Family Law Lawyer
In so doing, the Court specifically limited the applicability of the doctrine to circumstances when a child was supposed to be adopted but the foster adoptive parents failed to formalize the adoption prior to their death.
The Court, attempting to narrow its opinion and creating new law, added that the doctrine “is limited to facts comparable to those presented” for “claims made by an equitably adopted child against the estate of the foster parent.”
Will the Doctrine of Equitable Adoption be expanded?
Probably not, at least not by the North Carolina Court of Appeals.
If appealed further, the NC Supreme Court may be asked to expand the application of the Equitable Adoption in Shearin v. Brown.
That doesn’t seem very likely given the fact-pattern in Shearin.
That matter involves a granddaughter seeking to be declared an heir of her biological—but not legal—grandfather.
Following her father’s death, Petitioner became very close with her biological grandfather, who publicly expressed to her an intention that she receive his assets someday.
The decedent passed away, intestate.
His obituary identified his biological granddaughter, the Petitioner, as his only grandchild.
The issue arose when a distant relative of the decedent applied for letters of administration for his estate and listed himself and a few others as the sole heirs to the Estate, rather than the biological granddaughter.
At the trial court, Petitioner claimed that she was the sole heir under North Carolina’s intestacy statutes by virtue of alleged equitable adoption of her father.
The Court in Sherin found, as a matter of law, the facts of the case at hand did not support a finding that Equitable Adoption should apply.
On appeal, Petitioner requested that the Court enlarge or otherwise expand the legal theory established in Lankford to allow for an adult to benefit under the theory of Equitable Adoption.
The NC Court of Appeals found in favor of Respondents citing the narrow application of the Lankford holding and the Court’s lack of “authority to redraw the boundaries of the doctrine as delineated in that decision.”
As the Court noted, the facts as presented did not show the Petitioner was taken into the home, as a minor, by the foster parent.
The Petitioner was not raised by the foster parents from childhood, acting as if such child was a legally adopted son.
The Supreme Court in Lankford emphasized, the remedy is limited in instances to protect someone who was supposed to have been adopted by the foster parents.
The Court of Appeals further distinguished the Shearin case by stating that the majority of jurisdictions in the US that recognize equitable adoption have limited its application to claims made by an equitably adopted child against the estate of the foster parents, not the heir of an alleged equitably adopted child.
Virtual School and Online Learning is new to just about everyone in Charlotte.
It’s OK if you’re a bit stressed out.
There’s frankly a lot to juggle between work, household chores, and maintaining some semblance of a schedule.
The reality of school closures and dealing with the Coronavirus is setting in.
CMS has in effect pressed parents into service as “co-teachers” in a virtual learning environment.
If you’re having marital problems, considering separation or divorce, anxiety about teaching kids at home is entirely normal, if not to be expected.
There are some steps and plans to put in place that may help.
This hasn’t happened before
We are all, at least to some extent, creatures of habit.
Establishing a daily routine can be soothing.
It may help to be thoughtful in setting up certain rules for virtual learning, thereby avoiding creating the opportunity for bad habits.
Kitchen table, ‘virtual learning’ isn’t necessarily a bad thing. The key is to set parameters, removing distractions as much as possible – Bill Powers, Divorce Lawyer
With the continued closures of schools, restaurants, churches, and remote workplace arrangements, we are all dealing with the unfamiliar.
The new normal is anything but normal. It can be downright discombobulating.
Starting the new Charlotte Meck school year on-line, with its occasional start-up glitches, it’s important to be mindful that there will be an adjustment period.
It also may be necessary to set certain parameters, including workspace zones, areas of separation, quiet places, and tear down goals to convert the kitchen table from school to the place to gather and eat a family.
Virtual classes and schoolwork
Most people go into the profession of education voluntarily.
Educators go to school, study hard, and obtain a teaching certificate because they love working with kids and helping people learn.
Many later go on to receive a Master’s degree and/or Doctorate in education.
It’s a passion.
Classroom teachers feel chosen, led to the profession.
I’ve never understood why teachers don’t get paid more. I suspect many parents now share in my belief that they deserve a big-time raise – Bill Powers, Charlotte Collaborative Lawyer
Don’t reinvent the wheel. It makes sense to talk to friends, family, and neighbors about what works.
Reach out to people, call them, post on social media, exchange ideas about how to keep kids focused. Ask questions:
- What’s the best way to keep children engaged?
- How do you address special needs or learning styles?
- Are there better technologies or ways of doing things?
- What are the potential problem areas to anticipate and avoid?
- What works?
- What doesn’t work?
Collaboration is key.
Reach out to your child’s teacher. Social distancing results in, well, distancing, and separation from others.
We don’t always realize how important personal interaction is in educating children.
Seeing your teacher at “drop off” or at school events, if even for a short while, is part of the education process.
That’s clearly lost with virtual and remote learning.
Teachers probably don’t enjoy the virtual education process either.
They like kids.
They enjoy and thrive through interaction with others.
And they weren’t necessarily trained to teach by video.
If you have questions or concerns, talk to your child’s teacher. Share both concerns and successes.
Tell them the issues you encounter at home. Ask for advice and possible resources. Seek out their opinions.
And probably most importantly, thank your teacher.
Tell them how much you appreciate them.
Maybe share you did not fully realize how hard their job is until you tried doing it yourself.
Normalcy and regular patterns help in organizing the process of educating your loved-on.
Focus on the positives. Virtual learning can be more efficient. It may allow for less “slack time” or time wasted administering education such as “bio breaks,” rest periods, and putting seats in chairs.
Establish a designated “workspace” for members of the family.
Be intentional about it.
Require the learning area to be organized, free from clutter.
If it’s the kitchen table, remove everything including seemingly innocuous objects like salt-and-pepper shakers, centerpieces, and anything not related to doing school work.
Create a checklist of items:
- Internet Connectivity
Charlotte Child Custody Information
“What type of lawyer are you?” That’s a common question lawyers get from people they meet.
Attorneys in smaller jurisdictions may answer, “I do a little bit of everything,” or “I’m a general practitioner.”
In big-city Charlotte and Mecklenburg County, responses to that same question may include “criminal defense lawyer” or “family law attorney” or “corporate counsel.”
Lawyers in Charlotte tend to limit and define their professional practices by types of legal matters.
Frankly, I think that’s a shame. Small town North Carolina gets in right. That’s especially true if the legal issue involves divorce, children, and other marital problems – Bill Powers, Divorce Attorney
How is it that the former President of the North Carolina Advocates for Justice, and well-known “Charlotte attorney,” has come to that conclusion?
What do “divorce lawyers” do?
Here’s a little known fact, even among legal professionals.
In providing legal services, lawyers who handle matters involving custody, divorce, ED (equitable distribution), and marital unfaithfulness, while they may refer to themselves as “divorce lawyers,” actually do a lot of different things.
They must be prepared to handle an incredibly diverse range of different legal issues.
I have been practicing law since 1992. I’ve litigated many different types of cases. I’ve handled murder charges, personal injury claims, and real estate closings. I’ve drafted wills and powers of attorney. Nothing in my humble opinion is more potentially complicated than a divorce with children – Bill Powers
Our law firm prefers to focus on the individual legal need and the client, rather than practice-group designations.
We refer to ourselves as courtroom lawyers and litigators.
And to do that, Bill Powers has traveled extensively throughout North Carolina to help people with a wide range of different legal needs.
What is “family law” anyway?
Lawyers in Charlotte who refer to themselves as “family law attorneys” don’t take every case or client who walks through the door.
It’s not that they are bad people or unwilling to help.
The vast, vast majority of attorneys I know are compassionate people, dedicated to helping others. Indeed, people go into law because of their passion to make a difference – Bill Powers
As such, if a lawyer declines to accept your case for representation, they may be inexperienced or simply don’t enjoy certain aspects of handling those particular types of legal issues.
In fact, it’s more than OK. It’s downright professional.
Lawyers must be competent to handle a legal matter.
That’s one of the first rules of being a lawyer.
If a lawyer tells you they want to refer you to another attorney for all or part of a case, don’t take offense.
It’s likely not you; chances are they are actually a really good attorney.
It’s both ethical and professional to look out for your best interests rather than take a case that doesn’t fit a particular skill set.
The best lawyers I know aren’t afraid to admit someone else may be a better fit or more experienced to handle something – Bill Powers
The value of practical experience and institutional memory
We are resolute in our belief that no two cases are exactly the same.
While there may be certain similarities in case files, your circumstances, and individual needs, are truly unique.
Divorce often involves careful consideration of several different types of law or areas of practice.
It can be a difficult thing indeed to find an attorney with any level of experience willing to take on a heart balm case involving allegations of “Criminal Conversation” and “Alienation of Affection.”
If you own a home with someone, transferring title to real estate may be necessary as part of getting divorced.
If you have a retirement plan (401K, IRA – Individual Retirement Account, pension plan, savings incentive match plan, etc.), the execution of a QDRO – Qualified Domestic Relations Order is likely appropriate.
If you own a business or a fractional share of a company, it helps to know when to bring in a financial planner or forensic accountant for professional advice.
Some lawyers love being in the courtroom, litigating.
Others only work with collaborative law matters, never seeing the inside of a courtroom or arguing a case to completion.
Prior experiences, both good and bad, very much direct my legal advice and what I think is best for a client. Given the number of different types cases I’ve handled across North Carolina, we bring a fair amount of institutional wisdom and common-sense to the process.
Call Attorney Bill Powers now to schedule your consultation.
Legal consultations for divorce, child support, equitable distribution, visitation, etc., (“family law legal issues”) involve a consultation fee and hourly rates. That is different from other types of cases our law firm handles.
For example, we do not charge consultation fees for DWI charges or other criminal charges in North Carolina. Similarly, we do not charge hourly rates or establish a consultation fee for car accident cases or other “personal injury” matters.
NC Divorce Laws – Topics of Interest
- The First Step in Divorce
- No-Fault Divorce in North Carolina
- What is Collaborative Divorce?
- When should I hire a Divorce Lawyer?
Sometimes married couples who plan on getting divorced think it’s a good idea to settle-up with a spouse and then retain a lawyer to draw up the necessary paperwork.
Clearly, it’s preferable to be reasonable and proceed in good faith in dealing with your spouse, particularly in instances where the marriage has fallen apart but the respective parties still care for one another.
Marriage offers an economy of scale that extends beyond just tax rates, deductions, and claiming eligible dependents.
Legal Separation and dividing a household often involve substantially increased living expenses.
Establishing and maintaining two separate households on the same income, especially when children are involved, can result in expenses that are in fact more than doubled.
It’s therefore understandable some might think they’re saving money by “working things out” in advance without the participation of legal counsel.
We understand short-term cash flow may be an issue.
At the same time, you worked hard for your house, retirement, 401K, and other personal and marital assets.
You should protect them.
Getting divorced is a major life event.
While an attorney is not required to prepare a Separation Agreement or to even file for divorce in North Carolina, once certain documents are executed and/or filed, some mistakes cannot be fixed – Bill Powers
If you don’t know what QDRO stands for (qualified domestic relations order) or what happens if you fail to timely allege a claim for Equitable Distribution, we urge you to consult with an experienced divorce lawyer in Charlotte.
I did some research on Google
The Internet can be a helpful source of information, at least during the formative stages of a divorce.
If nothing else, on-line research can get you up-to-speed on some of the important terms and general precepts of getting divorced in North Carolina.
Unfortunately, there is a tremendous amount of either misleading or incorrect “free advice” out there.
It is our considered opinion that self-help forums and purportedly “simple online divorce forms” involving post-separation support, child custody agreements, alimony, and Equitable Distribution are problematic at best.
Indeed, executing (signing) some agreements without the advice of a lawyer can have long term, negative, and irrevocable consequences.
It’s imperative to have a thorough understanding of your assets and the true value of the “marital estate.”
That often necessitates a review of bank records, real property valuation(s), mortgages, taxes, and the NC Child Support Guidelines before negotiating or agreeing to terms of separation.
Marriage by its very nature involves a comingling of assets.
Separating and distributing assets, hopefully without harming or reducing their value or incurring substantial financial penalties, can be a challenging if not vexing process.
We believe good decisions are predicated on having accurate, complete information.
That applies to both financial records and protecting your individual legal rights.
Some people tell their spouse, “I want a divorce,” not fully understanding the full range of consequences and how truly complicated determining child visitation, support, and distribution of assets can be.
“The financial aspects of ending a marriage are a common source of conflict and can be as troublesome as settling any hotly contested dispute in court – Bill Powers, Mecklenburg Divorce Lawyer
Before doing anything, perhaps even before telling your spouse you want a divorce, we think it’s important to fully understand your legal rights relative to your particular marriage.
You and your marriage are unique
Contrary to what some might think, one size does not fit all.
That is especially true regarding divorce in North Carolina.
Marital circumstances are rarely exactly the same from one marital relationship to another.
If that weren’t the case, it wouldn’t matter who you married.
What is important to you, how you raise your family, your faith, spending habits, and where you live might not mean a hill of beans to anyone else besides you.
That might even be true for your spouse.
There are reasons people get divorced.
As such, the advice of friends and family, as well-meaning as it may be, is all too often inapplicable to your individual matter, your financial condition, your personal concerns, needs, and circumstances.
It also may be flat out wrong and directly contrary to the divorce laws in North Carolina.
Even close friends and family often do not fully share the intricacies, difficulties, and nuances of their marriages.
Suffice it to say, some things better go unsaid.
Experience shows, those “embarrassing” and “unsaid” issues can be the reason for the divorce in the first place and possibly a point of contention in the future.
Friends and family also may feel it more important to support you and your feelings, rather than be brutally honest regarding certain issues and human frailties.
They also may not have all the facts or a full understanding of what the law is, rather than what they think it is or should be.
One of the benefits of the attorney-client privilege allows for complete disclosure of all the facts and circumstances of a divorce.
“You should tell your divorce lawyer the whole truth, even if it might be a bit embarrassing. Our job is to provide sound legal advice, not to judge you” – Bill Powers
Legal Reference Materials: Separation, Support, Custody, and Divorce
- What does Absolute Divorce mean?
- What does Joint Custody mean?
- What am I entitled to in a Divorce?
- How long does it take to get Divorced in North Carolina?
- Child Custody and Visitation During the Coronavirus
- NC Divorce Laws
Nationwide, January 6, 2020 has been informally designated as “Divorce Day.” Charlotte divorce lawyers anticipate a sharp increase in call volume immediately following the holidays.
While it may be popular to call it “Divorce Day,” in North Carolina, it might be better entitled, “Divorce Year.”
In part that is because the NC divorce laws, with certain exceptions, ordinarily mandate a minimum period of separation of 12 months before filing for divorce is authorized under the law.
Filing for divorce tends to slow down before Thanksgiving. Planning for separation and divorce spikes at the beginning of every new year – Bill Powers, Charlotte Divorce Lawyer
There are important legal filings and contractual agreements in the period leading up to the formal entry of a divorce order.
That may include things like:
- Post Separation Support (formerly referred to as temporary alimony)
- Child Custody
- Child Support
- Separation Agreement
- Living Arrangements
- Asset valuation
- Equitable Distribution
- Transfer of Real Property and Marital Assets
Separating a marital estate can be complicated.
Even with the most modest of assets, it tends to be a time-consuming process.
What is the first step to getting divorced?
That’s a great question and one we wish more people would ask themselves before taking certain actions.
Unless there is some sort of abusive behavior necessitating the institution of safety measures or a 50B protective order, we generally do not recommend packing up and moving out. There are important legal rights relative to divorce that deserve careful consideration before action – Bill Powers, Divorce Attorney
We strongly recommend you speak with an attorney before doing anything. Timing and preparation can be key.
It also may prove to be a better financial decision to proceed with caution, gathering important documentation and information before saying, “I want a divorce.”
There are generally consequences to actions in family law cases. Prior to making any major, life-changing decision, we recommend you speak to one of our Charlotte divorce lawyers.
Whether it is our law firm or another located in Mecklenburg County, proceeding in haste can make the process unnecessarily expensive, adversarial, and emotionally taxing.
How much do lawyers cost for divorce?
Retaining a divorce attorney in Charlotte may be a bit different from your prior experiences with lawyers.
First, unlike traffic ticket lawyers or attorneys who handle minor criminal charges, there often is an initial consultation fee.
Divorce lawyers in Mecklenburg County (at least at our law office, the Powers Law Firm PA) bill hourly.
Some attorneys also require some sort of retainer. That may involve something called a True Retainer to reserve their legal services. A True Retainer is earned immediately and is not billed against.
A true retainer is paid to ensure the availability of the divorce lawyer. It also may serve to prevent legal representation to an adverse party in the separation and divorce.
Legal fees predicated on hourly work, as earned, are separate and apart from the True Retainer.
Other law firms require a retainer to be held in trust, from which legal fees are billed on a periodic basis.
At Powers Law Firm we charge:
- Initial Consultation
- True Retainer
- Hourly Rates billed weekly and/or bi-weekly
We accept credit cards, personal checks, and other traditional forms of payment. We prefer not to hold funds in trust, instead billing clients after work is performed.
We also prefer to put everything in writing. We want to make sure clients fully understand what is and what is not included in legal representation.
We seek to be completely up front and transparent with clients about the costs of hiring a divorce lawyer. It takes time to go through the contract of representation and explaining anticipated costs – Bill Powers
Expert fees, filing fees, costs of discovery, and other expenses of litigation are not part of legal representation. We also do not charge a flat rate for legal services.
Divorce Day is a good time to start looking for a lawyer and planning, educating yourself on the true costs of getting divorced.
The attorney-client relationship
Prior to speaking with a divorce lawyer at our office, we perform a conflicts check and further confirm availability for legal representation.
We want to help, understanding separation and divorce, especially in matters involving large marital estates, children, and Equitable Distribution, is a trying process.
To be clear, we are unable to assist every person who calls our office.
Our law firm is careful in client selection, limiting the number of matters we undertake for legal representation.
That means we accept a limited number of new clients on an annual basis. We want to be able to focus on the complexity of cases, working hard to make ourselves available for consultation and regular communication.
That means we purposely limit the overall number of clients we represent.
There are some matters we may feel it better to refer an inquiry to another lawyer or law firm.
Our goal is to make clear, from the outset, how the process works and what we do to help people going through difficult times. Legal representation for a divorce is a long-term relationship. We want clients to feel comfortable with us and our professional perspectives – Bill Powers, Divorce Lawyer
Call our law office now to determine the firm’s availability and the costs of legal representation: 704-342-4357
Related Legal Issues and Topics of Interest:
- When is the Best Time to get Divorced?
- Separation and Divorce Tips
- Post Separation Support and Alimony
- I Want a Divorce
- Legal Fees
- The First Step in Divorce
- Divorce after separation
- Surviving the Holidays
Surviving the holidays in a difficult marriage can be difficult at best. Despite that, legal separation and filing for divorce in Charlotte tend to decline during certain seasons.
Pre-existing problems in a marriage may be exacerbated by family commitments and the hustle brought on by the time of the year.
Some parents stay married for the children, thinking to themselves, “I want to give them one more special time before moving forward.”
Those are completely reasonable feelings.
Our job as Charlotte divorce lawyers is not to convince you to separate or end the marriage.
Indeed, once advised of their legal rights, some people choose to stay married and work things out.
That’s OK with us. The key is to determine what is best for you and your family.
We believe good decision-making, like sound legal advice, is predicated on possessing good information – Bill Powers
Anticipating the end of a relationship can be bitter-sweet, if not downright hard.
That is made all the more difficult if there are uncertainties and questions about the application of the divorce laws to any given marriage.
When is the best time to file for divorce?
Frankly, there really isn’t one “best answer” to that question.
Timing can be an important consideration but it is by no means the sole or only factor to take into account.
Family law cases are as varied and different as the people involved in a marriage.
There are differing, complex issues to consider including the education of children, filing of taxes, and above all, your safety and that of loved-ones.
Without question, “surviving the holidays” does not include suffering through physical violence, sexual assault, or other criminal acts.
If you fear for your safety or that of your children, there are protective measures that may be undertaken separate and apart from the formal filing for divorce.
Filing for divorce is often the last step in the ending a marriage in North Carolina. In large measure that is due to the mandatory period of legal separation as set forth in the NC divorce laws – Bill Powers
While we are more than willing to speak about seasons of the year, relative to planning and filing for divorce, that is to some extent putting the cart before the horse.
We believe it best to have all the facts/documentation in hand before filing any type of legal proceeding.
In complex family law matters, those involving child custody and visitation or marital estates requiring careful consideration of financial records and Equitable Distribution, the parties may agree to proceed by way of a Separation Agreement.
Collaborative Divorce may also be an option to consider. “Filings” in court (Clerk of Court) in those instances may be sporadic if not limited.
It is increasingly popular for married parties to work through the specifics of divorce privately.
Assuming there aren’t disputes over Post Separation Support or “PSS” or visitation issues, even if between contentious spouses, many issues may be handled via negotiations, the voluntary exchange of financial records, by and through legal counsel.
We do recommend potential clients begin the process of selecting a divorce lawyer as soon as possible.
Even if you would like to wait until after the holiday season to move forward, it’s a good idea to plan for that.
Lawyers, like doctors, are subject to schedules and pre-existing commitments.
Put simply, if you’d like to sit down and talk a divorce law, call now and schedule an appointment.
We also do not strictly require clients to come to our law office.
We will use secure video conferencing.
Will the judge be mad if I don’t try to work things out?
Generally speaking, the answer is, “No.”
North Carolina, with certain limited exceptions, is considered a no-fault divorce state.
That doesn’t mean Family Court Judges in Mecklenburg County prefer acrimony and/or unreasonable litigants.
That is especially true when considering the best interests of children.
We believe the better practice is to proceed in good faith, seeking equitable and fair resolutions to disputes. Litigation is expensive and frankly, at times, not merited – Bill Powers
As such, the Court does not mandate counseling and working through marital issues.
A judge is not going to try to convince anyone to remain married against their will.
It will demand the parties are honest, that they disclose all relevant records/materials associated with the marriage, and that all Court Orders are followed.
Related Legal Issues and Topics of Interest
- When is the Best Time to get Divorced?
- Separation and Divorce Tips
- Collaborative Divorce
- What is Collaborative Divorce?
- Post Separation Support and Alimony
- I Want a Divorce
- NC Divorce Laws – Chapter 50
Charlotte Divorce Lawyer Bill Powers
If you have questions about your legal options, we may be able to help.
The first step involves calling our law firm and speaking with a legal assistant.
It’s a good idea, prior to meeting, to check for conflicts and availability for legal representation. It’s also a good idea to understand the costs of a formal consultation and retention of the firm as counsel – Bill Powers
Call Bill Powers NOW: 704-342-4357Learn More
You can always elect to represent yourself in most legal matters before the Court. In response to the question, “Is a lawyer required for divorce?” the answer is “No.”
That’s also often true for many other types of legal matters, including traffic tickets, car accidents, and criminal charges.
There are very few instances when a lawyer would be “required,” and even then, as a practical matter, courts rarely demand lawyers get involved.
Our system of justice allows for self-representation.
It is an aspect of the Common Law we adopted (and in part still recognize) as a Brittish Colony.
You may have heard of the legal term for that: Pro Se
From Latin, it roughly means, “for oneself” or “in one’s own behalf.”
Under the NC divorce laws, you may argue for yourself in court. Of course, you can also give yourself a haircut and pull your own teeth if you have a cavity.
There is no law against that.
Arguing a complex legal matter in court can be an overwhelming, if not daunting process.
You could find yourself feeling pretty alone in a crowd, as our court system is often bustling with activity.
While a lawyer is not necessarily required, it is our firm belief that legal representation is a really good idea.
Divorce in North Carolina can be complicated. There are a fair number of moving parts, many of which are interrelated and can easily affect one another. Lawyers aren’t required, but we think it helps to have a divorce lawyer on your side in court – Bill Powers, Charlotte Divorce Lawyer
The “No-Fault” Divorce
Sometimes people use the term, “uncontested divorce,” misunderstanding the meaning relative to the laws specific to each state.
The NC divorce laws are somewhat unique, if not downright unusual in certain circumstances.
That’s nothing to fret about. We believe our laws are fair, reasonable, and just.
The point is, you should not rely on what you think the divorce laws are or what they should be.
What applies in another state may be completely inconsistent with the separation and divorce statutes here.
For example, certain jurisdictions require proof of “fault,” meaning one spouse caused a divorce and/or by their acts, the moving party is entitled to a divorce.
In North Carolina, the fault for divorce is rarely an issue.
Without some pretty unique circumstances, one cannot hold up divorce proceedings, arguing, “There aren’t grounds for divorce.”
If the parties have been legally separated long enough, one party may institute a divorce, even if the other spouse disagrees and wants to stay married.
** Each case is different. There are some instances where the fault may become an issue when divorce is sought due to “grounds.” If you have questions about this or any other legal issue involving your divorce, speak with an experienced divorce lawyer immediately.
Is there such a thing as a “Simple Divorce?”
Frankly, one of the most common things we hear potential clients say is, “It’s a simple divorce. It won’t take much time or effort. We agree about everything.”
With all due respect, it’s our opinion there rarely exists such a thing.
Even in the most modest of financial circumstances, there can and often are disputes about the disposition of assets and perhaps, more importantly, debt.
What you think fair or reasonable or even “obvious” may not necessarily be the case for your spouse.
One would be incredibly remiss in failing to acknowledge a marriage results in, by its very nature, a co-mingling of assets, debts, and legal responsibilities.
If children are involved, issues about custody, visitation, and support are always a possible source of disagreement or dispute.
One of the more common contributing factors to divorce is financial problems.
Even if there are no substantial assets, like a house, cars, or retirement accounts, issues may arise in Equitable Distribution or “ED” in the apportionment and responsibility for the debt in marriage.
As such, prior to doing anything, including separating or having the “I want a divorce conversation,” we think it’s smart to consult with an attorney.
Related Legal Issues – Is a Lawyer Required?
- What is Collaborative Divorce?
- Post Separation Support and Alimony
- I Want a Divorce
- What is Alienation of Affection in North Carolina
- Divorce with Kids
- Legal Fees
Divorce Lawyers in Charlotte – Powers Law Firm PA – Bill Powers
We have found good decisions often require good information.
Getting divorced, or even separated, has consequences.
Prior to making a rash decision, even in instances where the spouses wish to work collaboratively with one another, schedule an office visit with a Charlotte Divorce Lawyer.
Find out how much will it cost to get a divorce. Ask, “How much are legal fees?”
It won’t hurt our feelings if all you do is consult with our law firm and decide it’s better to seek counseling and stay married. Hiring a lawyer is not required.
Our law firm is dedicated to trial skills and courtroom advocacy.
Preparation, careful analysis of the NC divorce laws and consideration of the myriad of financial aspects of child custody, post-separation support, alimony, and equitable distribution are merited.
Separating and ending a marriage can take longer than you think.
Indeed, it may be more complicated than getting married in the first place.
We’re here to help explain these and other legal issues relative to your marriage, your financial condition, and your family life, relative to the divorce laws.
Call now to schedule your confidential consultation.
Consultation fees DO APPLY in family law, divorce, and separation issues at our firm.Learn More
Little v. Little is an unpublished family law decision by the NC Court of Appeals. In part, the opinion is helpful to attorneys in understanding the process/logic of calculating child support, especially for parents who are self employed.
As an unpublished decision, “Abigail B. Little v. Everett D. Little” (the formal caption of the lawsuit/opinion) does not carry precedential value. It is not binding legal authority in family court.
The matter stems from a family court dispute in Union County, North Carolina and the ruling of the Monroe District Court Judge. The defendant in the case, Mr. Little, appeals from a court order regarding a motion to modify child support.
The defendant argues the Court made an error in calculating income, as a self employed person, and therefore used the incorrect financial figures in calculating a child support obligation. One would be remiss in failing to note that child support in North Carolina is subject to the Child Support Guidelines.
The materials provided by Charlotte divorce lawyer Bill Powers are intended as a reference source for family law attorneys, paralegals, legal assistants. There is instructional value in reviewing the processes by which child support is calculated in determining whether a modification of child support is merited.
Legal professionals know to read and download the original opinion Little v. Little.
IN THE COURT OF APPEALS OF NORTH CAROLINA No.
COA19-212 Filed: 1 October 2019 Union County, No. 09-CVD-1926
ABIGAIL B. LITTLE (now ABIGAIL L. COBLE), Plaintiff, v. EVERETTE D. LITTLE, Defendant.
Appeal by defendant from order entered 6 December 2018 by Judge Joseph J. Williams in Union County District Court.
Heard in the Court of Appeals 4 September 2019. No brief filed on behalf of plaintiff-appellee. Christopher A. Gray for defendant-appellant. BERGER, Judge. Everette D. Little (“Defendant”) appeals from an order that modified his child support obligation. On appeal, Defendant contends that the trial court erroneously calculated his income for purposes of determining his child support obligation. We disagree. Factual and Procedural Background
LITTLE V. LITTLE Opinion of the Court – 2 –
Defendant and Abigail L. Coble (“Plaintiff”) were married in August 1999 and separated in May 2008. There were two children born of the marriage. On February 27, 2009, Plaintiff and Defendant entered into a separation agreement that addressed claims for equitable distribution, spousal support, child custody, and child support. Pursuant to the terms of the separation agreement, Defendant was required to pay $900.00 per month in child support for the parties’ minor children. The separation agreement was incorporated into the parties’ divorce judgment on July 23, 2009. On October 16, 2015, Plaintiff filed a motion to modify child support. After a hearing was held, the trial court entered an Order Granting Plaintiff’s Motion to Modify Child Support on December 6, 2018, in which the trial court ordered Defendant to pay $1,681.00 per month in child support. It is from this Order that Defendant appeals. Analysis Defendant contends that the trial court erroneously calculated his income for purposes of determining his child support obligation. We disagree. “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.” Head v. Mosier, 197 N.C. App. 328, 333, 677 S.E.2d 191, 195 (2009) (citation and quotation marks omitted). “To support a reversal, an appellant must show that the trial court’s actions were manifestly
LITTLE V. LITTLE Opinion of the Court – 3 –
unsupported by reason.” Id. (internal citation and quotation marks omitted). “If different inferences may be drawn from the evidence, [the judge sitting without a jury] determines which inferences shall be drawn …, and the findings are binding on the appellate court.” Cauble v. Cauble, 133 N.C. App. 390, 395-96, 515 S.E.2d 708, 712 (1999) (alterations in original) (internal citation and quotation marks omitted). Modification of a child support order requires a two-step process. N.C. Gen. Stat. § 50-13.7 (2017). “First, a court must determine whether there has been a substantial change in circumstances since the date the existing child support order was entered.” Head, 197 N.C. App. at 333, 677 S.E.2d at 195. “Once a substantial change in circumstances has been shown by the party seeking modification, the trial court then proceeds to follow the Guidelines and to compute the appropriate amount of child support.” Id. at 334, 677 S.E.2d at 196 (internal citation and quotation marks omitted). Pursuant to the North Carolina Child Support Guidelines, child support calculations are “based on the parents’ current incomes at the time the order is entered.” Form AOC–A–162, Rev. 8/15. The Guidelines define “income” as: a parent’s actual gross income from any source, including but not limited to income from employment or selfemployment (salaries, wages, commissions, bonuses, dividends, severance pay, etc.), ownership or operation of a business, partnership, or corporation . . . . Except as otherwise provided, income does not include the income of a person who is not a parent of a child for whom
LITTLE V. LITTLE Opinion of the Court – 4 –
support is being determined, regardless of whether that person is married to or lives with the child’s parent or has physical custody of the child. Form AOC–A–162, Rev. 8/15. With regard to a parent’s income from self-employment or operation of a business, the Guidelines provide, in pertinent part, Gross income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, is defined as gross receipts minus ordinary and necessary expenses required for self-employment or business operation. . . . Expense reimbursements or in-kind payments (for example, use of a company car, free housing, or reimbursed meals) received by a parent in the course of employment, or operation of a business are counted as income if they are significant and reduce personal living expenses. AOC–A–162, Rev. 8/15 (emphasis added). Specifically excluded from “ordinary and necessary expenses” are those “determined by the court to be inappropriate for determining gross income” for purposes of calculating child support. AOC–A–162, Rev. 8/15. Moreover, “income and expenses from self-employment or operation of a business should be carefully reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support obligation.” AOC–A–162, Rev. 8/15 (emphasis added).
LITTLE V. LITTLE Opinion of the Court – 5 –
In the present case, Defendant’s sole argument on appeal1 is that the trial court should not have factored his current wife’s income of $34,656.00 when it calculated Defendant’s income in finding of fact 14, which states: Defendant is presently self-employed and earns a gross monthly income of approximately $13,345.00. In calculating Defendant’s income, the Court looked to Defendant’s 2017 Amended Individual Income Tax Return. The Court took the income amount listed as “Farm Income” on line 18, and added back the following deductions to Defendant’s income: $18,300.00 in charitable deductions; $6,600.00 for Defendant’s other child’s school expenses; $8,650.00 for insurance deductions; and $34,656.00 for Defendant’s current wife’s income, for a total of $175,249.00. The Court specifically finds that it is not appropriate to consider losses carried forward from prior years. As to Defendant’s current wife’s income, the Court specifically finds that her involvement in the business is not enough to justify her salary as she simply keeps up with accounting, but Defendant does the work. Further, the Court finds that Defendant’s contention that he pays employees more than he earns is disingenuous. The Court did apply a deduction of $15,125.00 for Defendant’s selfemployment expenses. At the hearing, Defendant’s current wife affirmed that she is “basically the office manager for L&L Farms” and that her employee status had remained the same 1 We note that Defendant’s brief is not in compliance with Rule 28 of our Rules of Appellate Procedure, which requires the “body of the argument” to “contain citations of the authorities upon which the appellant relies.” N.C.R. App. P. 28(b)(6). Defendant merely provides citations to the applicable standard of review, but does not offer any authority to support his sole argument on appeal. “Our Supreme Court has held Rule 28(b) to be a nonjurisdictional rule.” Lipscomb v. Mayflower Vehicle Sys., 213 N.C. App. 440, 447, 716 S.E.2d 345, 350 (2011). Thus, we will not dismiss Defendant’s appeal because “[n]oncompliance with rules of this nature, while perhaps indicative of inartful appellate advocacy, does not ordinarily give rise to the harms associated with review of unpreserved issues or lack of jurisdiction.” Id. (citation and quotation marks omitted).
LITTLE V. LITTLE Opinion of the Court – 6 –
since at least November 2017. When asked how she is paid, she testified that neither Defendant nor she “really draw a paycheck. We just pay our bills.” When asked how she paid for the bills for the business and for the house, she testified she had a personal account that she uses for personal expenses and that the majority of bills are paid out of the business account. In addition, she stated her personal account consists only of child support checks she receives every month from her former spouse. She further testified that as the office manager she made $2,888.58 a month, about one thousand dollars more than what Defendant reported to make in his 2017 amended income tax return, which was amended a couple weeks before the hearing on Plaintiff’s motion to modify child support. Based on the evidence and testimony at the hearing, it is apparent that the trial court did not deem the $34,656.00 paid to Defendant’s current wife to be an “ordinary and necessary” business expense, and specifically found in finding 14 that “her involvement in the business [was] not enough to justify her salary as she simply keeps up with accounting, but Defendant does the work” and “that Defendant’s contention that he pays employees more than he earns is disingenuous.” See Cauble, 133 N.C. App. at 399, 515 S.E.2d at 714 (emphasizing that the determination of what is an ordinary and necessary expense is in the trial court’s discretion and will not be disturbed on appeal if its findings specifically show that its decision to disallow the deduction of the business expense in calculating income was not manifestly
LITTLE V. LITTLE Opinion of the Court – 7 –
unsupported by reason). These findings demonstrate that the trial court’s decision to include $34,656.00 in Defendant’s income was not manifestly unsupported by reason. “Because the Guidelines vest the trial court with the discretion to disallow the deduction of any business expenses which are inappropriate for the purposes of calculating child support, . . . the trial court’s decision in the instant case to disallow the claimed expense[ ] must be upheld[.]” Kennedy v. Kennedy, 107 N.C. App. 695, 700, 421 S.E.2d 795, 798 (1992) (citation omitted). Accordingly, the trial court did not abuse its discretion.
Judge MURPHY concurs. Judge INMAN concurs in result only. Report per Rule 30(e).