Crews v. Paysour, 261 N.C. App. 557 (2018)
- Facts: Plaintiff and Defendants are the parents of a minor child. In 2012, Plaintiff filed an action for custody and child support. A temporary order for child support was entered in August of 2012. The parties were both in medical school at that time. Once they graduated and completed residency, their incomes increased. In 2014, Defendant filed notice for a permanent custody and child support hearing. In September 2014, the trial court heard evidence towards child support. No written order came from that hearing. In December 2014, a “rendition of judgment” was issued to the parties in a letter. In October 2015, the parties scheduled a conference to go over proposed orders and objections. In December 2015, the trial court finally entered an order for Plaintiff to pay child support prospectively and $23,529.00 in arrears for the period from December 2014 through October 2015. In a previous appeal, the Court remanded, based on a misapprehension of law, and allowed the trial court to consider more evidence. On remand, the trial court did not consider new evidence but accepted the Defendant’s arguments made in his appeal. Plaintiff appealed.
- Issue: Was the trial court in error in its failure to find evidence on remand?
- Rationale: The case largely turns on lack of competent evidence. When the case was remanded for the first time in May 2017, the trial court did not receive any new evidence yet made findings of fact regarding child support payments made after the September 2014 hearing. Those facts were unsupported by the record. Arguments of counsel are not evidence. Despite counsel for both parents making arguments about the issue of payments, the issues for amount and overpayment, if any, were not addressed. Since no evidence was received, the findings of fact were not based on competent evidence. This is notable since this case became non-guideline, which requires additional findings for living expenses, with the child’s needs and expenses based on the standard of living. Since no evidence was presented, there would be no way for the trial court to determine a proper child support amount to satisfy the needs.
- Lessons and Observations:
- Findings of fact must be based upon competent evidence presented at trial, and the arguments of counsel are not evidence. In this case, on remand, the court should have received new evidence to establish the needs of the child based on an accustomed standard of living, and the ability of the parents to meet that need, because it was a nonguideline case (parents income was over the guideline range). This case was further remanded for a new trial.