Sarno v. SarnoÂ
2017 N.C. App. LEXIS 756
| N.C. Ct. App. | 2017Background
- Michelle Sarno and Vincent Sarno separated in 2006 and have one child; custody and support were litigated after separation.
- Temporary child support was set in 2009; custody was decided in 2012 with Defendant awarded primary physical custody beginning when Plaintiff planned to relocate.
- A later hearing (April 2013 order) set permanent child support, awarded Defendant attorney’s fees ($9,400) and costs ($3,500), and gave Defendant a $2,000 credit for alleged overpayment of support.
- Plaintiff appealed, arguing the court improperly deviated from the Child Support Guidelines without required findings, erred in awarding attorney’s fees and costs, and lacked evidence to credit Defendant for overpayment.
- The Court of Appeals treated the brief as a certiorari petition, reviewed for abuse of discretion, and (1) vacated and remanded the deviation-from-Guidelines and overpayment-credit portions for further findings; (2) affirmed the attorney’s fees and costs awards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Deviation from Child Support Guidelines | Trial court deviated without making the required four-step findings (presumptive amount, needs, ability to pay, written findings) | Court acknowledged some income and expense findings but conceded it failed steps 2–4 | Vacated and remanded: trial court failed to make requisite findings; may reopen hearing and receive evidence |
| Award of Attorney's Fees under G.S. § 50-13.6 | Fees improper because findings insufficient and relative estates should be compared | Trial court found Defendant an interested party acting in good faith and lacking means; fees were for contested custody/support and response to mandamus | Affirmed: statutory findings (good faith, insufficient means) supported; comparison of estates not required |
| Fees for response to writ of mandamus | Response was unnecessary/moot so fees should not be awarded for it | Defendant contended response and preservation of arguments were reasonable given procedural confusion | Affirmed: court could reasonably award fees for responding; not an abuse of discretion |
| Award of $2,000 credit for alleged overpayment of child support | No competent evidence in record (only counsel argument at 2012 hearing) to support overpayment findings | Defendant relied on earlier trial testimony and exhibits from 2011 hearings | Vacated and remanded: insufficient competent evidence in record to support findings or credit; trial court may receive additional evidence |
Key Cases Cited
- Spicer v. Spicer, 168 N.C. App. 283 (N.C. Ct. App. 2005) (sets out the four-step deviation analysis and required findings for departing from Guidelines)
- Van Every v. McGuire, 348 N.C. 58 (N.C. 1998) (statute does not require trial court to compare parties’ relative estates when awarding fees)
- Wiencek-Adams v. Adams, 331 N.C. 688 (N.C. 1992) (appellate standard: trial court’s child support judgment reviewed for abuse of discretion and must have sufficient findings)
- Hudson v. Hudson, 299 N.C. 465 (N.C. 1980) (addresses standard of review for statutory attorney’s fee prerequisites)
- Collins, State v. Collins, 345 N.C. 170 (N.C. 1996) (argument of counsel is not competent evidence)
- Mason v. Erwin, 157 N.C. App. 284 (N.C. Ct. App. 2003) (child support orders receive substantial deference on appeal)