*1 617 THE OF IN COURT BROWNE v. BROWNE (1991)] App. 617 [101 Under this cir- competitive bid. ability to obtain a to chill purchaser that a I conclude as a matter law cannot cumstance unethical, for looking unscrupulous, oppressive deceptive, one existing when the supplier for more cost efficient elsewhere a prices. raised has case, defendant is at most liable the evidence this
Under 1986 July 81 contract. August through 1 1985 breaching for deceptive for unfair and judgment I vote to vacate the Accordingly, fees and remand for a deter- including attorney’s practices trade 1985 August through damages breach of mination July 1986 contract. BROWNE, M. JR. JO PERRY BROWNE v. JOSEPH No. 906DC750 (Filed 1991) February (NCI3d)— Alimony support hearing § 24.1 child 1. Divorce and — ability parent needs of children and on reasonable pay findings — give in child action to
Any defendant failure conducted was hearing of his that a be proper request notice without ob- parties introduced evidence waived both because The the evidence. trial the trial court heard jection and on the evidence find enter conclusions required was facts and offered, was and evidence since a conducted to the as criteria also to make the court was 50-13.4(c). justified varying guidelines. 2d, § 1054. Separation Am Divorce and Jur (NCI3d)— Alimony Divorce and 24.1 —estate error children not considered —no to diminish or err refusing court did not trial his provide obligation relieve the father his children had their action because the simply in a child who so can do supporting parent separate own estates. IN THE COURT OF APPEALS *2 children, obligated remains his or her minor even they may though property have of their own. 2d,
Am Jur Divorce Separation §§ 1040. (NCI3d)— Alimony § 3. Divorce and 24.1 child support guide-— lines —health insurance
The trial court did not enter a child order consist- ent with the applicable then in presumptive guideline effect where the guideline twenty-five at that time was percent of income; defendant’s gross correctly trial court calculated twenty-five application percent guideline would require $778 defendant to pay per month as child support; the trial court the guideline by varied amount giving defendant $182.69 a credit of for health insurance maintained defend- children; plaintiff ant and the two and a credit for health insurance was not consistent with the guidelines. N.C.G.S. 5043.4(c). § 2d,
Am Jur Divorce and Separation 1044. (NCI4th)— 4. Appeal and Error alimony pendente lite— interlocutory decree appealable —not
An of an appeal alimony award of lite pendente was dis- interlocutory. missed as 2d,
Am Appeal §§ Jur and Error 138. Judge COZORT concurring.
Appeal by defendant May from order filed 22 1990 in Bertie Riddick, County District Judge Court J. D. III. Heard in the Appeals January Court of
Smith, Skinner, P.A., Smith, Daly & by Lloyd C. Jr. and Jr., Roswald B. Daly, plaintiff-appellee. Hanudel,
Josey, Josey & by C. Kitchin Josey, for defendant- appellant.
GREENE, Judge. action, In this civil the trial court on 27 March awarded custody of two children to plaintiff, ordered the defendant to pay child support, granted alimony lite pendente plaintiff. to the
IN THE COURT OF APPEALS The defendant appeals awards of child alimony lite. pendente
After conducting the evidence considering offered by the parties, the trial court entered the following pertinent find- fact, ings of conclusions of law and order:
Findings of Fact: 9. The gross Defendant’s income from his employment $23,360.00 with the County System Bertie year, School per *3 $2,336.00 paid monthly which is in 10 payments of per month. beneficiary Defendant is the testamentary trust known as the ‘James A. Browne Trust’ which is presently administered Planters National Bank and Company. Trust The Defendant is an beneficiary income only. of this trust The Defendant has received annual income distributions from trust, income, this approximately one-third of which is tax free 1987, $11,850.00; 1988, year as follows: for the $14,250.00; year for the 1989, $13,750.00; year 1990, for the year and for the 1, 1990, $4,200.00 January through March which indicates the Defendant will again receive an annual income of $14,000.00 approximately year per from this trust.
10. The aforesaid two minor children were beneficiaries Defendant; under the Will of the father of the the mother of the Defendant shortly died intestate after the death of the father of the Defendant her leaving as sole heir the Defendant who renounced his right take as such sole heir leaving the two minor children herein the sole heirs of the Defendant’s mother which in resulted the children receiving substantial assets, the home in including parties which the lived at the time of the separation; each child has an estate excess of $300,000.00 consisting of real and personal property. From 1987, 1988, September through September Perry, John M. $4,184.97 Guardian of said children reimbursed the Defendant for 1988, in living expenses for said children September and from through September said Guardian reimbursed the De- $7,495.61 fendant for in living expenses for said children. September Since Superior the Clerk of the Court Guardian, County, of Bertie judicial official overseeing said IN THE COURT OF v. BROWNE BROWNE pay has allowed the Guardian to to the mother for each child month for child as well as to per $250.00 sum each $75.00 dental of the oldest child in the amount of pay bills liv- reimbursing month instead of the Defendant for their per ing expenses.
13. . . . The in- Defendant has also maintained medical surance his wife and his children with Blue Cross and $182.69 Blue Shield his at cost of through employment per separation parties. month since the
Conclusions of Law: 8. The adequate Defendant has income and resources whereby to him he available should be lite, alimony in a reasonable amount and pendente $23,360.00 year he per employment as earns from his as a $14,000.00 year teacher and receives not less than as trust per approximately income one-third of which is not taxable for in- purposes State and Federal so that Defendant has an $37,000.00 year. come in excess of has per given Court *4 his additional consideration to failure to make debt service income, payments, his actual and the needs of the minor children and wife.
The fact that the children have incomes and separate estates relieve obligation does not diminish or of Defendant his minor children. support THEREFORE, Now based foregoing findings fact, ordered, ... it adjudged, conclusions of law is [and] decreed that:
3. The pay $595.00 Defendant is ordered to the sum of month with the per support, payment being as child first such payable Superior due and into the Office of the Clerk of the 15, 1990, County, Bertie on and with like April Court of THE OF IN COURT v. BROWNE
BROWNE App. 617 month. day of each successive the fifteenth on payment present in full force and effect maintain is also to Defendant De- which the coverage medical insurance hospitalization If the present employer. with his for pays fendant has and he maintain substan- is to change employers, Defendant should without the aforesaid tially coverage on similar twenty-five percent finds that Court lapse coverage. $37,360.00 (25%) annual income gross Defendant’s for the pay the Defendant to percentage is a fair he being means that is children which of his two minor children. of said month for the per $778.00 pay hospitaliza- of the medical credit for the cost given When month, he is re- per $182.69 in the amount tion insurance per per $297.50 is in cash which $595.00 quired pay month.
4. . . . per $700.00 will the sum The Defendant
a. entry until lite to the Plaintiff alimony pendente month as Plaintiff, alimony, the death of permanent on of an Order pay- The first such occurs first. whichever remarriage, her Superior the Office of the Clerk will into paid ment be 15, 1990, payment like with a County April on of Bertie Court day of each successive lite the 15th on alimony pendente month. (I) sup- of child the amount whether are: presented The issues (II) 50-13.4; and with N.C.G.S. consistent was determined
port lite appealable. alimony pendente an award of whether I has of child the amount determining The method mov- years, in the last several modification substantial undergone presump- the use of discretionary towards awards away from ing *5 351, Greer, 399 S.E.2d App. 101 v. N.C. See Greer guidelines. tive (1991). for including changes, the prompted Several reasons 399 in the litigated child cases volume of example large the the in the amount of uniformity the desire for courts and district children. similarly situated child 622 IN THE COURT OF 617
Pre 1 October 1987 1987, Prior to 1 the October trial court was set required to child support
in such as to amount meet the needs reasonable of the child education, health, maintenance, and having due regard estates, conditions, the earnings, living accustomed standard of parties, the the child care and homemaker party, contributions of each facts of the particular other case. (1987). 50-13.4(c) N.C.G.S. This not statute did establish for- Instead, mula for the determining amount support. of child statute left computation amount to the sound Plott, 63, 69, discretion of the Plott v. judge. trial (1985). 863, However, S.E.2d court required trial make conclusions of and specific findings law of fact. Id. Specifically, conclusions were required necessary “as to the of support amount ‘to meet the needs of the ability reasonable child’ the relative 68-69, of the parties Id. provide that amount.” at 326 S.E.2d at 867. Findings required were an . appellate “so that court . . ascertain whether the judge gave below ‘due regard [could] estates, conditions, earnings, accustomed living standard of child and the parties, child care and homemaker contribu- ” tions of each party, and other particular facts of the Id. case.’ 69, at S.E.2d at
1 October 1987—30 September 1On advisory October “uniform statewide guidelines for the computation obligations” child support were enacted. (1987). 50-13.4(cl) the advisory Variations from were permitted showing of one or more of eight criteria (cl). specifically listed in subsection Id. Precise guidelines were be established the “Conference of Chief District Judges.” [Court] advisory Id. Under guidelines, these the trial court continued to be to make conclusions and on the reasonable needs of the and the relative abilities of the parents pay support. Id. This was so even when the trial court set support guidelines. consistent with the
1 October 1989—30 September 1990 1On October child support guidelines became pre- sumptive, requirement and the the trial in- every
IN THE APPEALS COURT OF BROWNE v. BROWNE (1991)] App. 617 [101 regarding evidence and make and conclusions findings stance hear ability the “reasonable needs of the child” and the “relative 50-13.4(cl) parent pay support” each to was deleted. N.C.G.S. (1987 1989).The court evidence Supp. required & trial was hear to the needs of the child for and the “relating support reasonable “when ability parent only relative of each re- support” (1987 5043.4(c) . . . .” quested 1989). party Supp. N.C.G.S. & taken, If request such a was made and such evidence was the required findings relating trial court was to make and conclusions to this evidence. Id. The criteria of the version eight previous represent grounds deviating of the statute continued to from 5043.4(d). July the until 1 presumptive guidelines N.C.G.S. § permitted presumptive trial court was to deviate from the only if evidence taken on “the reasonable needs guidelines was ability parent of the child for and the relative of each “if, then evidence re- pay support,” only considering aftér criteria,” garding [eight] one or more of the the trial court found “that not meet the application guidelines would reasonable 5043.4(c). hearing needs of the child . . . .” After the N.C.G.S. § evidence, if presumptive guidelines, the trial court deviated from the the as to required findings trial was to “make fact . . . [any eight] [justified] varing criteria that . . . [sic] the the for the Id. guidelines and basis amount ordered.”
1 October 1990—Present 5043.4(c) amended, again On October Section con- tinuing place presumptive guidelines. nature of the 5043.4(c) 1990). However, July (Supp. eight effective § criteria from the
previously representing grounds deviating presumptive guidelines were deleted. The trial court instead is permitted presumptive guidelines only “upon to deviate from the evidence request party” “relating trial court hear to the reasonable needs of the child for support and relative ability only of each and then if the parent provide support,” trial court determines that “the would not meet or would exceed the reasonable needs of the child the relative considering ability parent of each or would be otherwise provide support . . . .” Id. In unjust inappropriate request the event a is made taken, such evidence is to make trial court of fact and enter conclusions of law to the “relating ability reasonable needs of the child for and the relative Finally, Id. if after parent provide support.” of each IN THE COURT OF App. 617 some amount other than evidence the trial court determines that awarded, amount of should be the trial presumptive *7 justify of fact to the criteria that findings “shall make as the the the ordered.” Id. varying guidelines from and basis for amount 1 1 Under both the October 1989 and the October 1990versions not, guidelines, the trial court is absent a re presumptive evidence, any any to make quest party, required findings a take fact, any “relating of or enter conclusions of law to the reasonable ability the the needs of child for and relative of each to This parent [pay provide support.” requirement advance or] evidentiary notice needless hearings eliminates and needless fact conclusion finding making. party required give and to the the party requesting advance notice is a variance from the guidelines. identify any The statute does not time restrictions for making However, the for a the request hearing. purpose to effectuate of statute, any in party pending requesting a action a variance must, guidelines request from the unless the is made in the original days at least ten written notice pleadings, give required as 50-13.5(d)(1) 1990).In the (Supp. timely absence of such a notice, the will only may trial court hear such evidence as be necessary proper application for a determination of a of the rele vant child formula as from time to time the Conference timely of District Judges adopts. proper Chief Court Absent a request for a variance of the set guidelines, support consistent conclusively with the guidelines presumed to be in such amount health, education, as to meet the reasonable needs of the child for and maintenance.
was entered in March of [1] Because the order of child support presently before this Court 1990, we review the correctness of that order in with the presumptive guidelines accordance in effect at that time. Our review of the record does not reveal motion by either to party requesting hearing trial court conduct a to determine the reasonable needs of the children or the relative However, ability parent pay support of each to for the children. trial, when the case was called for both introduced parties evidence on these relevant issues without objection and the trial court heard Therefore, any the evidence. failure this defendant to give prop er request notice of his that be conducted hearing a was waived. Inc., J. D. Dawson Co. v. Robertson Marketing, N.C. App. Cf. (1989) 62, 66, 376 S.E.2d (party entitled to notice of motion notice); Brandon, may see also Brandon v. waive THE
IN COURT OF App. 617 (1971) 457, 460, (“party entitled notice 179 S.E.2d notice”). a was conducted may such Since motion waive . . . needs of the “relating evidence the reasonable [children] ability pay support” relative of each parent and the offered, find facts and enter trial court was (1987 5043.4(c) Supp. & conclusions on this evidence. N.C.G.S. § 1989). the applica- also if it deviated from required, court was as to the criteria guidelines, findings tion of the to “make fact . . . and the basis [justified] varing [sic] Id. amount ordered.” [2] sions of law on the reasonable needs Here, the trial court entered findings the children of fact and made conclu for support ability the relative The defend parent support. each relating argues ant that the trial court’s and conclusions they needs of the are deficient because reasonable *8 reflect that the trial court did not due consideration to the give of the in establishing income and estates of each children “separate We by the support paid the amount of child to be defendant.” this found fact reject specifically trial court as a argument. $300,000.00consisting each an “in excess of that child had estate trial court personal property.” real and fact that the conclud did the incomes and estates” of the children “separate ed that the of the Defendant to obligation support “not diminish or relieve in this The supporting parent his minor children” is case immaterial. children, minor do so his or her obligated support who can remains to Coffield, v. may Lee though they even have their own. property (1957). 570, 573, In this there 96 728-29 case N.C. S.E.2d by de ample of fact the evidence that the supported are Therefore, able to his children. the support fendant father was in or relieve” the refusing trial court correct “diminish was simply his for his because obligation provide father of separate the children had their own estates.
[3] Notwithstanding the above, the trial court did not enter the applicable presumptive guideline order consistent with the which, time, the twenty-five percent in this case at that correctly court calculated that gross defendant’s income. The trial twenty-five would the guideline require application percent However, support. as per $778.00 defendant month the defendant guideline giving trial court the amount the varied $182.69 in for health insurance per credit the amount of month the two plaintiff defendant the children. maintained the IN THE OF APPEALS COURT App. criteria, According eight the trial court was not allowed vary the presumptive amount of child based upon the A.O.C., “provision health coverage.” insurance Child Support B(6) (New 10/89). Guidelines, AOC-A-162, By varying presump- tive guideline amount because defendant’s maintenance of children, health insurance on the and the plaintiff trial court 5043.4(c) (1987 1989). in acted violation of & Supp. A credit for health insurance should not given have been because such credit was not with consistent the guidelines. Accordingly, we remand this case to the trial to set consistent with presumptive in effect in March of 1990. We note that under the present guidelines parent either . . . “[i]f [car- child(ren) health insurance for the due support, the ries] cost of that are] [who parent
coverage [child(ren)] that and . . . should be deducted form parent’s gross income” computing [sic] monthly adjusted gross pursuant income to the current worksheets. A.O.C., (Rev. Guidelines, 7/90). AOC-A-162, Child Support C
II pendente interlocutory lite are decrees which [4] “[AJwards necessarily do not affect a substantial from which right lies an 7A-27(d).” appeal immediate pursuant G.S. Stephenson v. (1981)(italics 250, 252, Stephenson, 55 S.E.2d added). Accordingly, the defendant’s appeal pendente lite alimony award of as interlocutory. dismissed part Vacated and remanded in and dismissed in part. *9 PARKER Judge concurs.
Judge by separate COZORT concurs opinion.
Judge by concurring separate COZORT opinion. I with concur both ultimate conclusions the majori- reached (1) ty: that the case must be remanded to set consistent (2) statutes; with the applicable and that the lite pendente alimony issue, however, immediately award is not On the first appealable. I cannot with all of agree the issues and opinions discussed ex- pressed by majority.
I initially note party that neither raised trial or at on appeal the issue whether timely request of a was made for evidence
IN THE COURT OF INS. CO. NATIONWIDE MUTUAL
ODUM v. (1987 50-13.4(c) Stat. N.C. Gen. making findings pursuant and § 1990). unnecessary Any discussion that issue is thus Supp. of & Cum. case, majority’s in especially light resolution this to the of Furthermore, I waived. requirement that the notice holding interpretation of N.C. majority’s on the compelled am comment 5043.4(c) any party” means “upon request Stat. Gen. clearly states days’ advance I must statute disagree. ten notice. notice makes for advance only “upon request” provision and no statute Assembly duration. If the General had intended the notice, it could such notice and require specified advance have Thus, issue, I reverse on the first vote length simply thereof. a level which varied the trial court’s order which sets at case to the trial court from the remand the entry of a new order. McPHAUL, ODUM, ARNETTA LEV ATA Administratrix of the Estate Deceased, MANGUM, OXENDINE, and BETTY and JERRY CLIFFORD O. OXENDINE, v. NA of the Estate Plaintiffs Co-executors CLIFTON FARM STATE TIONWIDE MUTUAL INSURANCE COMPANY COMPANY, Defendants MUTUAL AUTOMOBILE INSURANCE No. 9016SC290 1991) (Filed February (NCI3d)— liability § 108 automobile insurance— 1. Insurance liability occurs application in defense to after accident fraud —no liability in vehicle insurance Fraud motor application an oc- liability once has injury is not a defense to insurer’s curred, statutory minimum only to the holding applies but this minimum, statutory any coverage As excess of amount. public precluded policy the insurer is not statute successful, fraud, defense, if asserting defense and such in- liability as to both the against would insulate the insurer 20-279.21(f)(l) third injured party. sured and the (g). 2d, §§ Am Jur Automobile Insurance avoidance, or misrepresentation, for fraud Rescission or *10 risk assigned compulsory, responsibility, financial 83 ALR2d 1104. automobile insurance.