Domestic Relations – Parent & Child – Support – Guidelines Deviation – Attorney’s Fees – Costs – Appeals

Sarno v. Sarno (Lawyers Weekly No. 011-289-17, 22 pp.) (Robert Hunter Jr., J.) (Hunter Murphy, J., dissenting) Appealed from Mecklenburg County District Court (Ronald Chapman, J.) N.C. App.

Holding: Even though the trial court made findings regarding the parties’ average monthly incomes, health insurance costs for their child, and work-related child care costs, the court’s order lacks findings regarding the appropriate amount of support under the child support guidelines or about the child’s needs and the parties’ ability to pay that amount.

We vacate the trial court’s child support order and its award of a child support credit to defendant, and we remand for further findings. We affirm the trial court’s award of attorney’s fees and costs to defendant.

Where the trial court found that the defendant-father is an interested party acting in good faith who has insufficient means to defray the expense of the suit, and where these findings are supported by the evidence, the trial court’s award of attorney’s fees to the father meets the requirements of G.S. § 50-13.6.

The trial court did not abuse its discretion when its award of attorney’s fees included fees related to the father’s response to the plaintiff-mother’s prior petition for a writ of mandamus. Although the father argued the petition was moot, he then addressed the merits of the petition, in case this court concluded the petition was not moot. We cannot say defendant’s filing was wholly unnecessary.

Although the father’s answer and counterclaim neither requested costs nor included a general prayer for relief, the father is entitled to relief which the allegations in the pleadings will justify. Therefore, we affirm the trial court’s award of costs to the father.

With regard to the trial court’s award of a $2,000 credit to the father for overpayment of child support, since the trial court did not receive evidence on this issue other than defense counsel’s argument, the trial court’s findings on this issue are not supported by the evidence. We vacate this portion of the order and remand for further findings.

Vacated and remanded in part; affirmed in part.

Dissent
(Murphy, J.) I would not reach the merits because the appellant has not filed a petition for writ of certiorari and does not ask us to treat her brief as such.