63 N.C. App. 775 | N.C. Ct. App. | 1983
Plaintiff assigns as error that the court’s findings of fact do not support its conclusions of law that the court was unable to determine the amount of arrearages due and that plaintiffs motion thus should be denied. Plaintiff also assigns as error the court’s failure to make a conclusion of law as to the amount of ar-rearages owed by defendant. Plaintiff contends she presented a prima facie case that defendant owed a determined amount of child support, and that defendant, by raising the affirmative defense of payment, had the burden of offering proof of any payments made and their amount. Since defendant failed to produce sufficient evidence of payment, plaintiff claims her motion should have been granted.
A delinquent parent’s right to receive credit for expenditures paid outside an order of the court in an action to enforce the collection of arrearages in child support was recognized in Goodson v. Goodson, 32 N.C. App. 76, 231 S.E. 2d 178 (1977). There, the Court held “the better view allows credit when equitable considerations exist which would create an injustice if credit were not allowed. Such a determination necessarily must depend upon the facts and circumstances in each case.” Id. at 81, 231 S.E. 2d at 182. Subsequently, in Jones v. Jones, 52 N.C. App. 104, 278 S.E. 2d 260 (1981), this Court held “[t]he trial court has . . . wide discretion in deciding initially whether justice requires that a credit be given under the facts of each case and then in what amount the credit is to be awarded.” Id. at 109, 278 S.E. 2d at 264.
While a delinquent parent’s right to receive credit for payments made outside of a court order has been recognized, it must be remembered that payment is an affirmative defense and as such it must be pleaded by the party asserting it. N.C. Gen. Stat.
In the instant case, the defendant claimed that he was entitled to credit for payment but failed to show the amount paid. The trial court found that defendant had indeed made payments to plaintiff, but did not find as a fact that defendant was entitled to credit, nor did the court make a finding as to the amount of such credit. The lack of these specific findings prevents this Court from determining whether the trial judge acted properly in denying plaintiffs motion. Because the court’s order does not contain sufficient findings to support its judgment, the judgment must be vacated. We remand this case to the District Court for further findings, conclusions, and a judgment consistent with this decision.
Vacated and remanded.