Domestic Relations – Rule 60 – Calculating Child Support

The trial court did not abuse its discretion in granting Defendant’s Rule 60 motion because the Amended Order corrected only a clerical error in the Original Order; the trial court did not err in ordering a distributive award because Plaintiff’s ability to pay the award can be ascertained from the Record; and the trial court erred in awarding alimony and in calculating child support where it failed to make findings of fact as to Plaintiff’s income.

We affirmed the Rule 60 Order; affirmed the Amended Order in part; vacated and remanded the Amended Order as to alimony and child support; and dismissed Plaintiff’s argument regarding the pretrial order.

Plaintiff appealed from the trial court’s amended equitable distribution, alimony, and child support order entered June 14, 2024 (the Amended Order); and from the trial court’s order, entered June 14, 2024, granting Defendant’s Rule 60 motion to amend the equitable distribution, alimony, and child support order entered March 27, 2024 (the Original Order).

On appeal, Plaintiff argued the trial court erred in modifying the Original Order “under the guise of correcting a clerical error[.]” Specifically, Plaintiff argued the trial court erred by making a substantive change—an award of alimony of $1,250.00 per month—to the Original Order. We disagreed. The trial court properly granted Defendant’s Rule 60(a) motion to correct a clerical error. Because the trial court, by entry of the Amended Order, did not alter “the effect of the [O]riginal [O]rder” and only altered the amount of money involved, the trial court did not abuse its discretion in granting Defendant’s Rule 60(a) motion and in entering the Rule 60 Order and Amended Order. We therefore affirmed the correction of the clerical error in the Amended Order pursuant to Rule 60(a).

Plaintiff next argued the trial court erred in ordering a distributive award “without finding that [Plaintiff] had liquid assets from which to pay the award.” We disagreed. Because Plaintiff’s “ability to pay an award with liquid assets can be ascertained from the record,” the trial court did not abuse its discretion in awarding a distributive award. We therefore affirmed the trial court’s distributive award.

Plaintiff next argued the trial court erred in awarding alimony where the Amended Order incorrectly calculated Plaintiff’s income and failed to include findings as to the parties’ expenses. We agreed. Plaintiff specifically challenged Defendant’s entitlement to alimony, which warrants a de novo review, rather than solely a review based on the trial court’s abuse of discretion. Additionally, Plaintiff attended the hearing, testified as to his 2024 income, and had also provided a financial affidavit prior to the hearing. The trial court, therefore, had the ability to make findings of fact about Plaintiff’s 2024 income—as opposed to solely his 2023 income—and alternatively, had the ability to make findings of fact that Plaintiff’s current income was “not credible, or [] otherwise suspect[,]” which would have permitted the trial court to use Plaintiff’s 2023 income. The trial court therefore erred in basing its award of alimony on Plaintiff’s 2023 income without making the appropriate findings of fact. In addition to the lack of appropriate findings of fact as to Plaintiff’s income, the trial court failed to make “findings of fact sufficiently specific to indicate that the court considered” the parties’ expenses at the time of trial. Accordingly, we vacated the trial court’s award of alimony, and remanded for further findings of fact as to Plaintiff’s current income at the time of the order, or as to Plaintiff’s prior year’s income, so long as the trial court makes the requisite findings of fact that demonstrate Plaintiff’s current income was “not credible, or [] otherwise suspect.”

Finally, Plaintiff argued the trial court erred in calculating child support using incorrect income information. We agreed. We concluded the trial court erred in using Plaintiff’s 2023 income to calculate Plaintiff’s income for purposes of awarding child support without making the appropriate findings of fact. Accordingly, we vacated the trial court’s order, and remanded for additional findings of fact.

Affirmed in part; vacated and remanded in part; and dismissed in part.

Theuerkorn v. Heller (Lawyers’ Weekly No. 011-141-25, 24 pp.) (Julee Flood, J.) Appealed from Catawba County District Court (David W. Aycock, J.) Collins Family & Elder Law Group, by Rebecca K. Watts, for plaintiff-appellant. Wesley E. Starnes, PC, by Wesley E. Starnes, for defendant-appellee. North Carolina Court of Appeals