               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-185

                                 Filed: 19 April 2016

Mecklenburg County, No. 09 CVD 11064

CRAIG STEVEN SMITH, Plaintiff,

             v.

VERA CRANFORD SMITH, Defendant.


      Appeal by plaintiff and cross-appeal by defendant from orders and judgments

entered 1 June 2010, 21 February 2011, 10 May 2011, 31 August 2011, 17 June 2013,

22 July 2013, 20 November 2013, 28 January 2014, and 9 July 2014 by Judge Donnie

Hoover in Mecklenburg County District Court. Heard in the Court of Appeals 25

August 2015.


      James, McElroy & Diehl, P.A., by Preston O. Odom, III, G. Russell Kornegay,
      III, and John Paul Tsahakis, for plaintiff.

      William L. Sitton, Jr., Attorney at Law, by William L. Sitton, Jr.; and Brendle
      Law Firm, PLLC, by Andrew S. Brendle, for defendant.


      GEER, Judge.


      Plaintiff Craig Steven Smith appeals from the trial court’s equitable

distribution judgment, three corresponding qualified domestic relations orders, and

a permanent child support and custody order. Plaintiff primarily argues on appeal

that the trial court erred by requiring him to pay his children’s private school tuition

without finding that his children have a reasonable need for private schooling that a

public school education cannot provide. Because the parties’ combined yearly income
                                    SMITH V. SMITH

                                   Opinion of the Court



exceeds the level at which the presumptive North Carolina Child Support Guidelines

(“the Guidelines”) apply, we hold that the trial court was not required to make

findings mandated by the Guidelines.         Instead, we hold that the trial court’s

conclusion that private school is a reasonable need of the children is fully supported

by the court’s findings of fact that private school is part of the children’s accustomed

standard of living, that the parties are capable of paying the tuition, and that the

parties have previously agreed that their children would be educated in private

school. We therefore affirm the trial court’s order that plaintiff pay his children’s

private school tuition. Because the parties have shown that the trial court failed to

make adequate findings of fact with respect to certain aspects of the child support

and equitable distribution orders, we reverse those orders and remand for further

findings of fact. We find no error with respect to the custody order and affirm it.

                                         Facts

       Plaintiff and defendant married on 1 August 1992. They met while employed

as certified public accountants at the same company in New Orleans, Louisiana.

They   later   moved to     Houston,    Texas    where    plaintiff   took   a   job   with

PricewaterhouseCoopers (“PwC”).        Three children were born to their marriage:

Margaret (“Meg”) on 13 October 1996; Emilie on 16 January 1999; and Lara on 8

April 2002.




                                          -2-
                                   SMITH V. SMITH

                                  Opinion of the Court



      In August 2003, they moved from Houston to Charlotte, North Carolina so that

plaintiff could pursue his career as an equity partner with PwC. Within a few years

after the move to Charlotte, plaintiff’s income as an equity partner substantially

increased from approximately $150,000.00 in 2003 to over $500,000.00 by 2007.

During the same period, defendant’s salary decreased from around $80,000.00 to

approximately $38,000.00, as she became the primary caregiver for the children and

plaintiff became the primary supporting parent.

      Ever since the children began school, plaintiff and defendant shared a mutual

desire to educate their children in private schools. When the parties relocated to

Charlotte, they enrolled their three children at Providence Day School (“PDS”), where

they presently remain enrolled.

      The parties separated on 1 June 2007, when defendant left the marital home

a few months after plaintiff discovered that defendant was having an extramarital

affair and was pregnant from that affair. From the date of separation until February

2009, the parties shared physical custody of the children, with each parent having

the children for nearly an equal amount of time. However, beginning in February

2009 and continuing until the trial court entered a temporary custody order in

February 2011, defendant unilaterally restricted plaintiff’s time with the children to

every other weekend.




                                         -3-
                                   SMITH V. SMITH

                                  Opinion of the Court



      Also upon separation, plaintiff began objecting to the children’s continued

enrollment at PDS. He agreed for them to finish the 2007-2008 school year at PDS,

but expressed his desire to enroll them at a less expensive private school, even though

he never made a significant effort to identify one.      Plaintiff did not voluntarily

contribute to the PDS tuition after the 2007-2008 school year. Defendant therefore

paid the children’s tuition for the 2008-2009 and 2009-2010 school years with money

from the children’s individual Uniform Transfers to Minors Act (“UTMA”) accounts

in the amounts of $53,810.00 and $49,804.18, respectively, for each school year. She

also utilized individual savings accounts to pay the 2009-2010 tuition.

      Plaintiff filed for absolute divorce on 8 May 2009, which the trial court granted

on 17 September 2009. In his complaint for divorce, plaintiff also sought primary

custody of the children and an unequal equitable distribution of the marital property

in his favor. Defendant filed an answer and counterclaim on 19 June 2009, seeking

continued primary custody, retroactive and prospective child support, and an unequal

distribution of the marital property in her favor.

      The trial court entered a final equitable distribution pretrial order on 1 June

2010. In this order, the parties stipulated to classifying three of plaintiff’s PwC

retirement accounts -- a 401(k) plan, a “Keough” plan, and a “RBAP” plan -- as marital

property until the date of separation and any post-separation accruals in those

accounts as plaintiff’s separate property. Also, on 23 December 2010, the parties



                                         -4-
                                   SMITH V. SMITH

                                  Opinion of the Court



stipulated in writing that they would equally divide the net equity received from the

sale of the marital residence.

      On 21 February 2011, the trial court entered a temporary child support order,

requiring plaintiff to pay $5,000.00 in child support to defendant on the first of each

month beginning 1 August 2010 and all of the children’s private school tuition at PDS

going forward. Also on 21 February 2011, the trial court entered a temporary custody

order essentially maintaining the custody arrangement created by defendant in

February 2009.    This order provided that plaintiff would have the children for

approximately six overnights a month and for four weeks of the children’s summer

vacation.

      On 22 July 2013, the trial court entered its final equitable distribution order

in which it ordered an unequal distribution in favor of defendant. The order was

based on findings including, but not limited to, the extent of defendant’s inheritance,

the value of plaintiff’s PwC partnership interest as of the date of separation, and the

classification and valuation of plaintiff’s PwC retirement accounts. With regard to

defendant’s inheritance, the trial court acknowledged her maternal inheritance of

over $916,000.00, which she contributed to the marriage. However, the trial court

made no findings relating to defendant’s substantial paternal inheritance, aside from

three parcels of real property. In relation to plaintiff’s PwC partnership valuation,

although the court “question[ed] the accuracy and validity of both parties’ methods of



                                         -5-
                                   SMITH V. SMITH

                                  Opinion of the Court



computing the value,” it ultimately concluded that “Defendant/Wife’s methodology

appears to be the most appropriate of the two.”

      The trial court further found, despite prior stipulations to the contrary, that

the post-separation accruals in plaintiff’s three PwC retirement plans were divisible

property. Plaintiff thereafter filed several post-trial motions on 1 August 2013, which

the court granted pursuant to Rules 52 and 59 of the Rules of Civil Procedure. As a

result, the trial court entered an amended equitable distribution order on 20

November 2013 reclassifying these post-separation accruals as plaintiff’s separate

property. Then, on 28 January 2014, the trial court entered three qualified domestic

relations orders (“QDROs”), distributing defendant’s shares of these retirement plans

accordingly.

      Upon entering a permanent custody order on 9 July 2014, the trial court

reversed course from the temporary custody arrangement and granted the parties

joint and equal physical custody on a week-on-week-off basis. In addition, the trial

court awarded “permanent joint legal care, custody, and control of the minor children”

to both the parties. Also on 9 July 2014, the trial court entered a permanent child

support order, in which the trial court reduced plaintiff’s monthly support

contribution from $5,000.00 to $4,000.00 as a result of the changed custody

arrangement. It further required plaintiff to pay $95,520.65 in retroactive child




                                         -6-
                                   SMITH V. SMITH

                                  Opinion of the Court



support to defendant for the time period from the date of separation through 30 June

2009.

        Because of the parties’ substantial combined income, the trial court

determined that the presumptive requirements of the child support Guidelines were

not applicable. With regard to private school tuition, the trial court found that “[i]t

continue[d] to be in the best interest of the minor children to be enrolled at [PDS],”

and that plaintiff “is well-able and capable of providing substantial support on behalf

of the minor children to maintain that standard of living that they have enjoyed prior

to the parties’ separation . . . .” Based on its findings, the trial court ordered that

plaintiff “be solely responsible for every tuition and expense payment due and payable

to [PDS],” but required defendant to reimburse plaintiff for 25% of the tuition

expenses going forward. Additionally, plaintiff was required to pay $116,409.18 in

reimbursements to defendant for tuition for the 2007-2008, 2008-2009, and 2009-

2010 school years paid out of her account and the children’s accounts.

        Plaintiff timely appealed the permanent custody and support orders, as well

as the final equitable distribution order and corresponding QDROs to this Court.

Shortly thereafter, defendant timely filed a cross-appeal, challenging the custody,

support, and equitable distribution orders, as well.

                                     Discussion




                                         -7-
                                      SMITH V. SMITH

                                   Opinion of the Court



      As a general matter, where the trial court sits without a jury, “the judge is

required to ‘find the facts specially and state separately its conclusions of law thereon

and direct the entry of the appropriate judgment.’ ” Coble v. Coble, 300 N.C. 708, 712,

268 S.E.2d 185, 188-89 (1980) (quoting N.C.R. Civ. P. 52(a)). Thus, “ ‘the standard of

review on appeal is whether there was competent evidence to support the trial court’s

findings of fact and whether its conclusions of law were proper in light of such facts.’ ”

Oakley v. Oakley, 165 N.C. App. 859, 861, 599 S.E.2d 925, 927 (2004) (quoting Shear

v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)). The

findings of fact are supported by competent evidence “even when the record includes

other evidence that might support contrary findings.” Static Control Components,

Inc. v. Vogler, 152 N.C. App. 599, 603, 568 S.E.2d 305, 308 (2002). “The trial court’s

conclusions of law, however, are reviewed de novo.” Casella v. Alden, 200 N.C. App.

24, 28, 682 S.E.2d 455, 459 (2009).

I.    Appeal from Temporary and Interlocutory Orders

      Before addressing the parties’ appeals from the final orders in these

proceedings, we must address plaintiff’s appeals from the trial court’s 21 February

2011 temporary child support and custody order and the 31 August 2011

interlocutory order denying plaintiff’s post-trial motions. Plaintiff acknowledges the

well-observed rule that a temporary interlocutory order made moot by virtue of a

subsequent permanent order is not reviewable by this Court. See, e.g., Metz v. Metz,



                                           -8-
                                    SMITH V. SMITH

                                   Opinion of the Court



212 N.C. App. 494, 498, 711 S.E.2d 737, 740 (2011) (refusing to challenge temporary

support order mooted by subsequent permanent order). In an attempt to circumvent

this rule, plaintiff cites to In re A.N.B., 232 N.C. App. 406, 408, 754 S.E.2d 442, 445

(2014) (quoting Thomas v. N.C. Dep’t of Human Res., 124 N.C. App. 698, 705, 478

S.E.2d 816, 821 (1996), aff’d per curiam, 346 N.C. 268, 485 S.E.2d 295 (1997)),

arguing that this Court has a duty to address the issues he raises in these mooted

orders because “the ‘question involved is a matter of public interest.’ ”

      We do not agree that this matter raises any issue of public interest. Matters

of public interest are, for example, matters such as “preventing unwarranted

admission of juveniles into [psychiatric] treatment facilities[.]” Id. We do not believe

that the court-ordered child custody and support arrangements are comparable

matters of public interest. Accordingly, the temporary child support order and the

interlocutory post-trial order are moot on account of the subsequent entry of the

permanent child support order and are not reviewable by this Court.

      Plaintiff also seeks review of these orders pursuant to a writ of certiorari under

Rule 21(a)(1) of the Rules of Appellate Procedure. However, “it is well-established

that where an argument is moot, no appellate review should lie.” In re J.R.W., ___

N.C. App. ___, ___, 765 S.E.2d 116, 119 (2014) (declining to suspend the Rules of

Appellate Procedure under Rule 2 when arguments moot), disc. review denied, 367

N.C. 813, 767 S.E.2d 840 (2015). We, therefore, deny plaintiff’s request for certiorari.



                                          -9-
                                     SMITH V. SMITH

                                    Opinion of the Court



II.   Child Support

      Plaintiff appeals, and defendant cross-appeals, from a number of rulings in the

permanent child support order of 9 July 2014. Both parties challenge the trial court’s

findings of fact and conclusions of law related to the payment of their children’s

private school tuition, while plaintiff also challenges the findings of fact related to the

retroactive and prospective child support awards. Each challenge is addressed in

turn below.

      A.      Private School Tuition

      Plaintiff contends that the trial court erroneously ordered him to pay his

children’s private school tuition at PDS without making findings of fact as to the

children’s particular needs for private school pursuant to North Carolina’s applicable

child support statute. That statute reads:

              Payments ordered for the support of a minor child shall be
              in such amount as to meet the reasonable needs of the child
              for health, education, and maintenance, having due regard
              to the estates, earnings, conditions, accustomed standard
              of living of the child and the parties, the child care and
              homemaker contributions of each party, and other facts of
              the particular case.

N.C. Gen. Stat. § 50-13.4(c) (2015) (emphasis added). The question whether a trial

court can require a higher income parent, such as plaintiff, to pay his children’s

private school tuition without a specific showing that his children need the

advantages offered by private schooling is a matter of first impression for this Court.



                                           - 10 -
                                    SMITH V. SMITH

                                   Opinion of the Court



However, we do not agree with plaintiff’s contentions that a trial court must find such

a specific need prior to ordering a higher income parent to pay this expense as a

component of child support.

      The trial court made numerous findings in the permanent child support order

regarding the parties’ respective incomes. The trial court found that as of 2011,

plaintiff “was earning at least $522,000/year at PwC,” that his “gross income has

increased each year since 2004[,]” and that “[t]here is no reason to assume that [his]

gross monthly income will remain at or below $43,000.00 per month for the current

fiscal year.” The trial court also found that defendant’s income in the years from 2007

to 2011 fluctuated from approximately $36,000.00 to $51,000.00.          Based on the

parties’ combined income, the court determined that “[c]hild support in this matter is

not subject to the N.C. Child Support Guidelines” and, therefore, that private school

tuition was not a “deviation” from the Guidelines or an “extraordinary expense” as

set forth in the Guidelines.

      The trial court further found that “[p]rior to taking up residence in Charlotte,

North Carolina . . . Meg and Emilie were enrolled at Providence Day School” and that

the youngest child, Lara, “has remained a full-time student at PDS since August of

2007.” The court also found that plaintiff “testified that it was his preference that

the Smith children continue attending private school[,]” but that he claimed “there

are other private schools in the Charlotte region that charge significantly less tuition



                                          - 11 -
                                    SMITH V. SMITH

                                   Opinion of the Court



than PDS . . . [which] should be preferred[,]” even though he had not “present[ed]

[any] evidence regarding accreditation, curricula or tuition and expenses for these

specific alternative schools.”

      Ultimately, the trial court concluded that the parties were capable of paying

for their children’s private school tuition based on their respective gross incomes.

Furthermore, the trial court concluded that the parties must continue to educate their

children in private school “[i]n order to maintain the standard of living to which the

minor children are accustomed” and to remain consistent “with the stated intent of

both parties that the minor children attend private school versus public school[.]”

      Normally, “[t]he court shall determine the amount of child support payments

by applying the presumptive guidelines . . . .” N.C. Gen. Stat. § 50-13.4(c). However,

when “the parents’ combined adjusted gross income is more than $25,000 per month

($300,000 per year), the supporting parent’s basic child support obligation cannot be

determined by using the child support schedule.” N.C. Child Support Guidelines,

2016 Ann. R. N.C. at 50. “The schedule of basic child support may be of assistance to

the court in determining a minimal level of child support.” Id. But, “ ‘[f]or cases with

higher combined monthly adjusted gross income, child support should be determined

on a case-by-case basis.’ ” Taylor v. Taylor, 118 N.C. App. 356, 362, 455 S.E.2d 442,

447 (1995) (quoting Guidelines, 1991 Ann. R. N.C.), rev’d on other grounds, 343 N.C.

50, 468 S.E.2d 33 (1996).



                                          - 12 -
                                    SMITH V. SMITH

                                   Opinion of the Court



      Thus, where the parties’ income exceeds the level set by the Guidelines, the

trial court’s support order, on a case-by-case basis, “ ‘must be based upon the interplay

of the trial court’s conclusions of law as to (1) the amount of support necessary to meet

the reasonable needs of the child and (2) the relative ability of the parties to provide

that amount.’ ” Id. (quoting Newman v. Newman, 64 N.C. App. 125, 127, 306 S.E.2d

540, 542 (1983)). The determination of a child’s needs is “largely measured by the

‘accustomed standard of living of the child.’ ” Cohen v. Cohen, 100 N.C. App. 334, 339,

396 S.E.2d 344, 347 (1990).

      Even though the expense of private school has never been specifically

addressed in higher income cases, our appellate courts have long recognized that a

child’s reasonable needs are not limited to absolutely necessary items if the parents

can afford to pay more to maintain the accustomed standard of living of the child.

See, e.g., Williams v. Williams, 261 N.C. 48, 57, 134 S.E.2d 227, 234 (1964) (“In

addition to the actual needs of the child, a [parent] has a legal duty to give his [or

her] children those advantages which are reasonable considering his [or her] financial

condition and his [or her] position in society.”); Loosvelt v. Brown, ___ N.C. App. ___,

___, 760 S.E.2d 351, 362 (2014) (“In addition to the actual needs of the child, a father

has a legal duty to give his children those advantages which are reasonable

considering his financial condition and his position in society.”).




                                          - 13 -
                                    SMITH V. SMITH

                                   Opinion of the Court



      Despite this well-established law, plaintiff contends that in order for the trial

court to award the expense of private school tuition, it must first find that a child’s

special needs -- for example, a child’s health issues or disabilities -- require private

school and that public school cannot adequately meet such needs. In making this

argument, he cites Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577 (2000). This

Court in Biggs held that in order to deviate from the Guidelines and allow for such

“extraordinary expenses” as private school tuition, the trial court must make

adequate findings relating to the reasonable needs of the child for such extraordinary

expenses. Id. at 298, 524 S.E.2d at 581. Biggs is inapplicable, however, when, as

here, the trial court was not bound by the Guidelines because the parents’ income

exceeds the level governed by the Guidelines.

      Plaintiff also relies on case law that predates the establishment of the

presumptive Guidelines to support his argument. He claims that Brandt v. Brandt,

92 N.C. App. 438, 444, 374 S.E.2d 663, 666 (1988), aff’d per curiam, 325 N.C. 429, 383

S.E.2d 656 (1989), is applicable here because it holds that a party fails to show that

“private school is a necessary or reasonable expense” when there is “no evidence . . .

[that a child] could not excel in public school.” He also cites to Evans v. Craddock, 61

N.C. App. 438, 443, 300 S.E.2d 908, 912 (1983), and Falls v. Falls, 52 N.C. App. 203,

215, 278 S.E.2d 546, 554-55 (1981) for the same proposition.




                                          - 14 -
                                         SMITH V. SMITH

                                        Opinion of the Court



       While we do not find these cases wholly inapplicable simply because they

predate the presumptive Guidelines,1 we also do not find them relevant to this appeal

because they do not reflect the parents’ accustomed standards or desires in high-

income cases. They, therefore, shed little light on the needs of children in higher

income families in which “need” is determined based on their “accustomed standard

of living,” as this Court’s decisions in Loosvelt and Williams require.

       In addition, in contrast to this case, in all three cases cited by plaintiff, the

parents had not mutually agreed to enroll, and in fact had enrolled, their children in

private school before the time of trial. See Brandt, 92 N.C. App. at 444, 374 S.E.2d

at 666 (indicating one party was not consulted prior to child’s enrollment in private

school by other party); Evans, 61 N.C. App. at 443, 300 S.E.2d at 912 (“On remand, .

. . [t]he trial judge should also determine if the defendant agreed to pay the tuition .

. . .”); Falls, 52 N.C. App. at 215, 278 S.E.2d at 555 (acknowledging children were not

attending private school and parents’ lack of intent to enroll them in private school).

Thus, the mutual intent of both parents to educate their children in private school,

together with their children’s actual enrollment, is a consideration in determining

the “accustomed standard of living” of the parties.




       1“Before  the guidelines, the law referred to the needs of the child as the basis of the award;
therefore, pre-guidelines cases are instructional.” Suzanne Reynolds, 2 Lee’s North Carolina Family
Law § 10.16, at 542 n.132 (5th. ed. 2015).

                                               - 15 -
                                    SMITH V. SMITH

                                   Opinion of the Court



      In this high-income case, the trial court properly addressed the reasonable

needs of the children as measured by their accustomed standard of living, consistent

with Cohen, 100 N.C. App. at 339, 396 S.E.2d at 347. The trial court’s findings of fact

regarding the children’s consistent enrollment in private schools and the parties’

continual desire to educate their children in private schools adequately support the

court’s conclusion that private schooling is a reasonable need of the children given

their accustomed standard of living.

      Plaintiff, however, further argues that even though his children had always

been enrolled in private school, the payment of the PDS tuition had resulted in “estate

depletion.” According to plaintiff, they were only able to afford the tuition by using

defendant’s maternal inheritance.        In effect, he challenges the trial court’s

determination that he is capable of paying his children’s tuition. We disagree.

      In support of his argument, plaintiff points to his own testimony that upon

moving to Charlotte, his children’s tuition was paid for at least in part by defendant’s

separate money from her maternal inheritance. Specifically, plaintiff testified that

the tuition “was funded out of salary and Vera’s inheritance.” He, therefore, claims

that because defendant’s inheritance is now depleted, he is incapable of affording the

tuition payments.

      The trial court, however, based its determination that plaintiff is able to pay

the tuition expenses on its finding that beginning with the 2007-2008 school year,



                                          - 16 -
                                   SMITH V. SMITH

                                  Opinion of the Court



plaintiff’s salary had increased to over $500,000.00 a year and was no less than

$43,000.00 a month. The court found that plaintiff’s own financial affidavit from 2011

claimed $11,568.00 in monthly expenses for his three children, an amount that

included tuition payments of nearly $5,000.00 a month and $5,000.00 in child support

payments owed to defendant each month. The trial court also found that plaintiff’s

other reasonable monthly expenses included $3,700.00 in personal expenses per

month and another $3,700.00 in shared family expenses per month. Finally, the trial

court found that from the date of separation through 2011, plaintiff had been able to

make contributions to his retirement accounts and charitable contributions in the

approximate amount of $10,000.00 per month. However, the court concluded that

plaintiff’s religious contributions of $4,500.00 per month would not be included in his

reasonable expenses.

      Thus, even though plaintiff points to his own testimony that paying for his

children’s tuition created a standard of living commensurate with estate depletion, it

is apparent that the trial court gave little weight to that testimony and found, to the

contrary, that plaintiff contributed personally to his children’s tuition prior to

separation and that, given his income and reasonable expenses, he can afford to pay

for the tuition. Despite plaintiff’s contentions, however, the court’s findings are

supported by the evidence, including his own testimony. Indeed, despite contending

in conclusory fashion that the findings regarding his income and expenses are



                                         - 17 -
                                           SMITH V. SMITH

                                          Opinion of the Court



unsupported by competent evidence, plaintiff fails to make any specific argument to

support that contention.2 We, therefore, consider those findings binding on appeal.

In totaling plaintiff’s reasonable monthly expenses, including tuition, and comparing

them to the monthly earnings found by the trial court, we hold that these findings

are specific enough to support the conclusion that plaintiff is capable of paying his

children’s tuition. Whether the parties had previously used defendant’s inheritance

to pay their children’s tuition is, therefore, irrelevant to their present ability to pay.

        Accordingly, because the trial court’s determinations regarding the reasonable

needs of the children to attend private school -- as established by their accustomed

standard of living and past actions -- and plaintiff’s ability to pay for this tuition are

adequately supported by competent findings of fact, we affirm the trial court’s order

requiring plaintiff to pay his children’s private school tuition.

        Plaintiff next contends that the order that he pay retroactive private school

tuition to defendant is improper because (1) defendant should not recover money she

paid to PDS out of her children’s UTMA accounts, (2) the award requires

reimbursement of funds paid outside the pertinent time period for retroactive

support, and (3) the permanent support award fails to account for payments he




        2Plaintiff  specifically challenges the findings that his religious contributions are not
reasonable expenses. We address those arguments infra as plaintiff’s arguments in that regard relate
to prospective child support and not to his ability to pay his children’s tuition. Thus, he fails to argue
effectively here how the trial court’s calculations of his income and expenses preclude him from paying
his children’s tuition.

                                                 - 18 -
                                   SMITH V. SMITH

                                  Opinion of the Court



already made to defendant for tuition payments. We address these arguments in

sequence.

      The trial court found in the permanent child support order that the parties’

three children each have a UTMA account at Merrill Lynch of which defendant is the

custodian. The support order also found that defendant paid for her three daughters’

2008-2009 and 2009-2010 PDS tuition primarily out of their individual UTMA

accounts, in a total amount of $103,614.18. Concluding that plaintiff was responsible

for all the tuition expenses for his children for the 2007-2008, 2008-2009, and 2009-

2010 school years, the trial court decreed that plaintiff shall reimburse defendant for

the $53,810.00 payment made out of the UTMA accounts for the 2008-2009 school

year; that plaintiff shall reimburse defendant for the $49,804.18 payment made out

of the UTMA accounts for the 2009-2010 school year; and that defendant thereafter

shall reimburse each UTMA account on a pro rata basis within 90 days from the entry

of the permanent support order.

      In calculating retroactive child support awards, the trial court must determine

“the amount actually expended by [the dependent spouse] which represent[s] the

[supporting spouse’s] share of support.” Hicks v. Hicks, 34 N.C. App. 128, 130, 237

S.E.2d 307, 309 (1977). The dependent spouse “is not entitled to be compensated for

support for the children provided by others[.]” Id. Notwithstanding this established

rule of law, because the trial court ordered that defendant reimburse her children’s



                                         - 19 -
                                    SMITH V. SMITH

                                   Opinion of the Court



UTMA accounts upon receipt of the child support award from plaintiff, we do not

agree with plaintiff’s first argument that the trial court erred by reimbursing

defendant for amounts that she did not pay.

      Plaintiff next urges that defendant’s claim for retroactive child support

improperly included $41,225.18 in tuition payments defendant made on 22 June, 2

November, and 7 December of 2009 because retroactive child support is only

recoverable for the amount expended three years prior to the date of filing. He cites

to Napowsa v. Langston, 95 N.C. App. 14, 21, 381 S.E.2d 882, 886 (1989), arguing

that retroactive child support is recoverable by defendant “(1) to the extent she paid

[plaintiff’s] share of such expenditures, and (2) to the extent the expenditures

occurred three years or less before . . . the date she filed her claim for child support.”

However, the limitation plaintiff is referencing only limits reimbursement to three

years prior to the filing of the action. See N.C. Gen. Stat. § 1-52(2) (2015). Since

defendant filed her claim for retroactive child support on 19 June 2009, the statute

of limitation has no application to payments defendant made after that date. Indeed,

Napowsa held that “ ‘each . . . expenditure by the mother creates in her a new right

to reimbursement.’ ” 95 N.C. App. at 21, 381 S.E.2d at 886 (quoting Tidwell v. Booker,

290 N.C. 98, 116, 225 S.E.2d, 816, 827 (1976)).

      Lastly, plaintiff argues that Finding of Fact No. 194 in the permanent support

order credits him with paying only $5,810.00 in PDS tuition for the 2007-2008 school



                                          - 20 -
                                    SMITH V. SMITH

                                   Opinion of the Court



year. He claims this amount is $3,000.00 too low, as the court determined in Finding

of Fact No. 108 that “Plaintiff/Father was credited with one-half (1/2) of payment

three (3) (made on November 1, 2007) or $5,810.00 and $3,000.00 of payment four (4)

(made on February 1, 2008) from his separate funds.” We agree with plaintiff that

there is an inconsistency in the trial court’s findings, and we, therefore, remand to

the trial court for findings of fact resolving this inconsistency and recalculation of the

amount owed by plaintiff to defendant in retroactive child support.

      Defendant’s sole argument with respect to the private school tuition part of the

permanent child support order is that the trial court erred in requiring her to

reimburse plaintiff for 25% of the PDS tuition. Defendant contends that the trial

court failed to make any findings of fact explaining its basis for the 25% figure, which

departs from a pro-rata distribution of support requirements based on the parties’

respective incomes. We agree.

      “ ‘The ultimate objective in setting awards for child support is to secure support

commensurate with the needs of the children and the ability of the [obligor] to meet

the needs.’ ” Robinson v. Robinson, 210 N.C. App. 319, 333, 707 S.E.2d 785, 795

(2011) (quoting Cauble v. Cauble, 133 N.C. App. 390, 394, 515 S.E.2d 708, 711 (1999)).

This objective is fulfilled by making adequate findings regarding the “estates,

earnings, conditions, accustomed standard of living . . ., the child care and




                                          - 21 -
                                    SMITH V. SMITH

                                   Opinion of the Court



homemaker contributions of each party, [or] other facts of the particular case.” N.C.

Gen. Stat. § 50-13.4(c).

       In this instance, Finding of Fact No. 121 in the permanent support order set

out the parties’ respective annual incomes from 2007 to 2011. It is apparent from the

trial court’s findings that plaintiff’s income perennially dwarfed defendant’s income,

accounting for almost 90% of the parties’ combined income. The trial court made no

other findings of fact that could support its order that defendant pay 25% of the

tuition payment when her income accounts for only 10% of the combined income.

While the record contains evidence upon which the trial court might justify its award,

we agree with defendant that the trial court’s determination of the amount she was

required to pay is not supported by adequate findings of fact. We, therefore, reverse

the child support award, and remand to the trial court for further findings of fact to

support its determination.

      B.     Retroactive Child Support

      Plaintiff also appeals several other aspects of the retroactive child support

order apart from the private school tuition. He argues the order (1) lacks adequate

factual findings, (2) is marred by internal inconsistencies, and (3) fails to account for

payments already made to defendant.

      “ ‘[A] party seeking retroactive child support must present sufficient evidence

of past expenditures made on behalf of the child, and evidence that such expenditures



                                          - 22 -
                                     SMITH V. SMITH

                                    Opinion of the Court



were reasonably necessary.’ ” Loosvelt, ___ N.C. App. at ___, 760 S.E.2d at 355

(quoting Robinson, 210 N.C. App. at 333, 707 S.E.2d at 795).                  Recoverable

expenditures are those “ ‘actually expended on the child’s behalf during the relevant

period.’ ” Id. (quoting Robinson, 210 N.C. App. at 333, 707 S.E.2d at 795). Affidavits

are acceptable means by which a party can establish these expenditures. Savani v.

Savani, 102 N.C. App. 496, 502, 403 S.E.2d 900, 904 (1991). Any “[e]videntiary issues

concerning credibility, contradictions, and discrepancies are for the trial court . . . to

resolve and, therefore, the trial court’s findings of fact are conclusive . . . if there is

competent evidence to support them despite the existence of evidence that might

support a contrary finding.” Smallwood v. Smallwood, 227 N.C. App. 319, 322, 742

S.E.2d 814, 817 (2013).

      Here, the permanent child support award directed plaintiff to pay defendant

$95,520.65, “representing the difference between the monthly cash support ordered

. . . for the period beginning June 1, 2007 through June, 2009 and the total amount

actually paid” during that time period. Plaintiff first argues that the findings of fact

regarding this retroactive child support payment are not supported by competent

evidence because defendant testified inconsistently as to the numbers sworn to in her

financial affidavit and because such numbers were skewed for the relevant time

period as a result of the changed custody arrangement. We disagree.




                                           - 23 -
                                     SMITH V. SMITH

                                    Opinion of the Court



      Defendant initially testified in June 2010 that her expense affidavit relevant

to retroactive child support for the period of June 2007 to June 2009 was based only

on her year-end expenses for 2009, suggesting those expenses were not reflective of

actual expenditures during that period. However, defendant adequately explained

during the permanent support hearing on 21 December 2011 that the expenses set

out in her June 2009 financial affidavit were “the same” as the previous two years’

expenses because she “used those two years of expenses to verify . . . the numbers

[she] was placing on [her] affidavit.” She provided an updated affidavit of financial

standing on 8 September 2011 corroborating this testimony.                  Because this

inconsistency cited by plaintiff raises only credibility issues to be resolved by the trial

court, and evidence before the court otherwise established her expenditures for the

relevant time period, we find that the trial court’s findings in this regard were based

on competent evidence.

      Plaintiff also argues that because the custodial arrangement changed

significantly in February 2009, giving defendant increased time with the children,

her affidavit based on expenditures made in 2009 does not properly reflect

expenditures made from June 2007 until January 2009.                However, at the 21

December 2011 hearing, defendant testified repeatedly to the static nature of the

shared and individual expenses of her children from the date of separation through

2010 and that she had taken into account any increase or decrease that may have



                                           - 24 -
                                     SMITH V. SMITH

                                    Opinion of the Court



occurred in the two years prior to the filing of her affidavit in June 2009. The trial

court made corresponding findings of fact, ultimately concluding that the children’s

monthly individual and shared expenses totaled $6,285.00. Accordingly, we affirm

the trial court’s ruling awarding retroactive child support for this period.

       As a final matter, plaintiff points out a clerical error in the support order.

Finding of Fact No. 183 states that plaintiff “is well able and capable of paying

$4,000.00 per month” in retroactive support for the June 2007 to June 2009 time

period. However, Finding of Fact No. 193 suggests that the trial court intended this

monthly payment to be $5,000.00 for this time period.           This intent, which is

inconsistent with Finding of Fact No. 183, is reflected in Conclusion of Law No. 14 in

the support order, which states that the $4,000.00 per month permanent support

payment effective 1 March 2012 “represents a 20% reduction in the amount of child

support” plaintiff was paying prior to that date. Accordingly, we remand to the trial

court for correction of the clerical error.

       Plaintiff’s last argument with respect to the retroactive support directive is

that the trial court failed to take into account the $43,085.00 payment he made to

defendant on 5 October 2007, and therefore its conclusions were not supported by

appropriate findings of fact. However, plaintiff testified that the $43,085.00 payment

“represented what we computed as her share of the October distribution [of marital




                                              - 25 -
                                    SMITH V. SMITH

                                   Opinion of the Court



assets] minus the expenses we had discussed.” Accordingly, we hold the court did not

err by failing to credit this amount to plaintiff as a child support payment.

      C.      Prospective Child Support

      Plaintiff contends that the trial court erred in calculating his prospective child

support requirement by failing to make sufficient findings of fact regarding (1)

defendant’s   paternal   inheritance    and    (2)   defendant’s   reasonable   monthly

expenditures. The trial court’s award to defendant of prospective child support in the

amount of $4,000.00 per month effective 1 March 2012, a reduction from the

temporary child support order, was based on plaintiff’s “increased custodial time”

with the children, defendant’s ability to work additional hours, plaintiff’s “substantial

earned income” and defendant’s earned income, the “needs and expenses of the minor

children and their accustomed standard of living,” and, lastly, “the passive income

that Defendant/Mother can realize from her non-retirement assets and accounts[.]”

      “[T]he trial court is required to make findings of fact with respect to the factors

listed in [N.C. Gen. Stat. § 50-13.4(c)],” including findings on “the parents’ incomes,

estates, and present reasonable expenses in order to determine their relative ability

to pay.” Sloan v. Sloan, 87 N.C. App. 392, 394, 360 S.E.2d 816, 818, 819 (1987)

(emphasis added). “[T]o determine the relative abilities of the parties to provide

support, the court ‘must hear evidence and make findings of fact on the parents’

income[s], estates (e.g., savings; real estate holdings, including fair market value and



                                          - 26 -
                                    SMITH V. SMITH

                                   Opinion of the Court



equity; stocks; and bonds) and present reasonable expenses.’ ” Taylor, 118 N.C. App.

at 362-63, 455 S.E.2d at 447 (quoting Little v. Little, 74 N.C. App. 12, 20, 327 S.E.2d

283, 290 (1985)). “At the very least, a trial court must determine what major assets

comprise the parties’ estates and their approximate value.” Sloan, 87 N.C. App. at

395, 360 S.E.2d at 819; see also Sloop v. Friberg, 70 N.C. App. 690, 695-96, 320 S.E.2d

921, 925 (1984) (holding that finding of fact regarding party’s total estate is

“required”).

      Throughout the child support and equitable distribution proceedings, both

parties put on evidence of the sizeable inheritance defendant had received from her

father after his passing following the date of separation. Defendant testified to being

the sole heir of her father’s estate, which comprised a 401(k) plan worth in excess of

$800,000.00, an IRA worth approximately $60,000.00, a Certificate of Deposit worth

approximately $100,000.00, a bank account with Bank Corp. South worth

approximately $208,000.00, various other bank accounts worth anywhere from

$7,000.00 to $13,000.00, three vehicles, and two parcels of real estate with a tax value

in excess of $103,000.00. Although defendant claimed that some of this money is

inaccessible or “subject to tax” if she were to withdraw it immediately, she also

admitted that she received an initial distribution of $30,000.00 from her father’s

401(k), and would continue receiving yearly distributions from this account, as well

as “approximately $700.00 a month” from her mother’s pension, which passed to her



                                          - 27 -
                                    SMITH V. SMITH

                                   Opinion of the Court



through her father’s estate. Despite this evidence, the trial court’s findings of fact

regarding permanent child support erroneously lack any mention of these assets

other than a vague allusion to her “non-retirement assets and accounts” as a partial

impetus for reducing the monthly award from $5,000.00 to $4,000.00 in the

permanent support order.

      Defendant argues that notwithstanding these omissions, the trial court

considered these components of her estate in calculating the child support award and

that, as a result, plaintiff has failed to show prejudicial error. Defendant also claims

that the pre-Guidelines cases plaintiff cites requiring findings on defendant’s estate

are irrelevant here because post-Guidelines cases suggest that specific findings of

one’s estate are only required when a party requests a deviation from the Guidelines.

We disagree with both contentions.

      First, the post-Guidelines cases that defendant cites are not high-income cases,

but rather are cases controlled by the Guidelines and, therefore, irrelevant to the

issues in this case. Second, defendant’s paternal inheritance is both voluminous and

convoluted in nature. There are a number of issues regarding her inherited estate --

including monthly distributions and tax implications -- that impact defendant’s

ability to immediately utilize this estate to pay her children’s monthly expenses.

Without specific findings of fact addressing this inheritance, we cannot determine

whether the trial court gave due regard to the factors enumerated in N.C. Gen. Stat.



                                          - 28 -
                                    SMITH V. SMITH

                                   Opinion of the Court



§ 50-13.4(c). Consequently, we reverse the prospective child support award and

remand for findings of fact relating to defendant’s paternal inheritance.

      Plaintiff next argues that the trial court’s determinations regarding the

reasonableness of his expenses, particularly his monthly religious contributions and

401(k) loan repayment expenses, were not supported by any finding of fact. We

disagree. The trial court detailed in its findings of fact plaintiff’s total individual

monthly expenditures as of the June 2010 hearings and his personal expenses as of

the date of the permanent child support order.            In each finding, the trial court

determined that plaintiff’s monthly religious contributions totaled more than half of

his monthly expenditures, and if excluded, would result in plaintiff having personal

expenses of only $3,700.00 each month. The trial court also made a finding that of

plaintiff’s $22,839.33 of itemized monthly deductions, “$955.00 is a loan payment that

Plaintiff/Father pays to himself as a result of borrowing against one of his retirement

accounts” and that such an amount “should not be itemized as a deduction.”

      When determining the reasonable needs and expenses of the parties in

domestic actions, “absent contrary indications in the record, there is no requirement

that a specific conclusion as to the reasonableness of such expenses be made[.]” Byrd

v. Byrd, 62 N.C. App. 438, 441, 303 S.E.2d 205, 208 (1983). Where there are no

contrary indications in the record, “a lack of a specific conclusion as to reasonableness

will not necessarily be held for error[.]” Coble, 300 N.C. at 714, 268 S.E.2d at 190.



                                          - 29 -
                                     SMITH V. SMITH

                                    Opinion of the Court



Although there was no specific conclusion as to the reasonableness of plaintiff’s

religious contributions or his $955.00 loan repayment, the trial court’s ultimate

conclusions as to plaintiff’s reasonable expenses were supported by its findings of fact,

which were in turn supported by competent evidence. We, therefore, affirm those

aspects of the trial court’s permanent support order.

III.   Custody

       A.    Admissibility of Dr. Neilsen’s Expert Testimony

       Defendant first contends that the trial court erred in admitting Dr. Linda

Neilsen’s expert testimony and corresponding exhibits in the areas of “adolescent

psychology, father-daughter relationships and shared parenting, and scientific

research on father-daughter relationships and shared parenting.” We note that “trial

courts are afforded ‘wide latitude of discretion when making a determination about

the admissibility of expert testimony’ ” and such a decision “will not be reversed on

appeal absent a showing of abuse of discretion.” Howerton v. Arai Helmet, Ltd., 358

N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (quoting State v. Bullard, 312 N.C. 129,

140, 322 S.E.2d 370, 376 (1984)).

       Our Supreme Court has established “a three-step inquiry for evaluating the

admissibility of expert testimony: (1) Is the expert’s proffered method of proof

sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at

trial qualified as an expert in that area of testimony? (3) Is the expert’s testimony



                                           - 30 -
                                       SMITH V. SMITH

                                      Opinion of the Court



relevant?” Id. (internal citations omitted). Here, defendant challenges both Dr.

Neilsen’s competency as an expert and the relevancy of her testimony.

       We first address defendant’s challenge to Dr. Neilsen’s competency to testify

to matters of clinical psychology and, specifically, facts relating to the parties’

relationships with their children. Dr. Neilsen testified that she was as a professor of

adolescent psychology at Wake Forest University and had 15 years of experience

researching shared parenting and father-daughter relationships. The trial court,

upon qualifying Dr. Neilsen as an expert, made clear that she was not qualified “to

talk about any specifics of this case or these children.” Accordingly, Dr. Neilsen

testified to, among other things, “research regarding young adults who have grown

up in shared parenting families and sole parenting families . . . .” When referring to

“these” children, her testimony focused on the children within this research, and not

the parties’ children specifically.

       “Under the North Carolina Rules of Evidence, a witness may qualify as an

expert by reason of ‘knowledge, skill, experience, training, or education,’ where such

qualification serves as the basis for the expert’s proffered opinion.” Id. at 461, 597

S.E.2d at 688 (quoting N.C.R. Evid. 702(a)). Given Dr. Neilsen’s extensive experience

and education in research related to shared parenting relationships, and the trial

court’s limitation of her testimony to those areas, we hold that the trial court did not

err in concluding that Dr. Neilsen was qualified to testify as an expert witness.



                                             - 31 -
                                    SMITH V. SMITH

                                   Opinion of the Court



      We next address defendant’s arguments that Dr. Neilsen’s testimony was

irrelevant. Relevant evidence is defined as evidence having “any tendency to make

the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” N.C.R. Evid.

401. “ ‘[I]n judging relevancy, it should be noted that expert testimony is properly

admissible when such testimony can assist the [trier of fact] to draw certain

inferences from facts because the expert is better qualified than the [trier of fact] to

draw such inferences.’ ” Howerton, 358 N.C. at 462, 597 S.E.2d at 688-89 (quoting

State v. Goode, 341 N.C. 513, 529, 461 S.E.2d 631, 641 (1995)). Furthermore, a trial

court has inherent authority to limit the admissibility of expert testimony under Rule

403 of the Rules of Evidence. Howerton, 358 N.C. at 462, 597 S.E.2d at 689. Rule

403 provides that relevant evidence may nonetheless be excluded “if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.”

      We find Dr. Neilsen’s testimony regarding research on shared parenting

arrangements was relevant to the custodial arrangement in this case because it

assisted the trial court in deciding what was in the best interests of the children. As

the trial court found in Finding of Fact No. 90, based on Dr. Neilsen’s testimony, “six

(6) monthly overnights is grossly inadequate for a parent to participate in shared



                                          - 32 -
                                    SMITH V. SMITH

                                   Opinion of the Court



residential parenting and to maintain an engaged, authoritative relationship with

the minor children . . . .”

       Defendant has not shown that the trial court erred in deciding that the

probative nature of the testimony was not outweighed by a danger of unfair prejudice,

confusion of the issues, or misleading the trier of fact. Other than the fact that the

trial court assigned significant weight to Dr. Neilsen’s testimony in altering the final

custody determination, defendant fails to point to any way in which the testimony

unfairly prejudiced defendant or confused or misled the trial court. Although a party

“may disagree with the trial court’s credibility and weight determinations, those

determinations are solely within the province of the trial court.”         Brackney v.

Brackney, 199 N.C. App. 375, 391, 682 S.E.2d 401, 411 (2009).

       Accordingly, we find that the trial court did not abuse its discretion in

admitting Dr. Neilsen’s testimony or the corresponding authenticated exhibits.

Furthermore, to the extent defendant argues that the findings in the custody order

based on Dr. Neilsen’s testimony are unsupported by competent evidence, we disagree

and affirm the trial court.

       B.     Award of Equal Physical Custody

       Defendant next argues that the trial court’s findings of fact that underlie the

order’s provision for an equal custody arrangement are unsupported by competent

evidence because they arbitrarily ignore or alter the findings of fact in the temporary



                                          - 33 -
                                   SMITH V. SMITH

                                  Opinion of the Court



custody order. Defendant essentially contends that without a showing of changed

circumstances prior to the permanent custody order, the trial court was not permitted

to deviate from the findings in the temporary order. We disagree.

      “If a child custody order is temporary in nature and the matter is again set for

hearing, the trial court is to determine [permanent] custody using the best interests

of the child test without requiring either party to show a substantial change of

circumstances.” LaValley v. LaValley, 151 N.C. App. 290, 292, 564 S.E.2d 913, 915

(2002). Therefore, “ ‘[t]he rule established by section 50-13.7(a) and developed within

our case law requires a showing of changed circumstances only where an order for

permanent custody already exists.’ ” Lamond v. Mahoney, 159 N.C. App. 400, 404,

583 S.E.2d 656, 659 (2003) (quoting Regan v. Smith, 131 N.C. App. 851, 853, 509

S.E.2d 452, 454-55 (1998)).

      Subsequent to the trial court’s entry of the Order for Temporary Custody and

Temporary Child Support on 21 February 2011, hearings were held on the issues of

custody and child support in September of 2011. Because the 21 February 2011 order

was temporary, the trial court was not required to find changed circumstances in

order to deviate from that earlier order in entering the 9 July 2014 permanent child

support and custody order.

      Next, defendant challenges the trial court’s Findings of Fact Nos. 62, 70, 77,

80, and 85 in the permanent custody order. Finding of Fact No. 62 states that when



                                         - 34 -
                                      SMITH V. SMITH

                                     Opinion of the Court



the parties first daughter was born, “Plaintiff/Father took a couple of days off from

work at her birth and the month of December to help care for [her]” and that at this

time defendant “reduced her work schedule by approximately half.” Finding of Fact

No. 70 states that both parties “had a loving relationship with the minor children

during the marriage and were actively involved in the minor children’s daily care and

activities . . .,” while Finding of Fact No. 77 states that “Plaintiff/Father has not been

precluded by his work and travel schedule from maintaining an active and involved

relationship with the minor children since the date of separation.” In addition,

Findings of Fact Nos. 80 and 85 state, respectively, that “Defendant/Mother is

actively involved in the minor children’s daily care and activities” and that the equal

custody arrangement “during the summer of 2011 worked very well for the minor

children as well as the parties . . . .”

       Defendant argues that Finding of Fact No. 62 arbitrarily deletes the portion of

the corresponding finding from the temporary order that states: “With the exception

of December 1996, Mother has been the primary custodian of Meg since her birth.”

Because the trial court was not bound to repeat the findings of fact from the

temporary order, but rather could determine what findings it found most pertinent

or which evidence was entitled to greater weight, defendant has presented no

legitimate basis for questioning Finding of Fact No. 62.




                                            - 35 -
                                   SMITH V. SMITH

                                  Opinion of the Court



      We also find that the record contains ample evidence to support Findings of

Fact Nos. 70, 77, and 80, despite the fact that there may also be evidence to the

contrary which supported the temporary order. Competent evidence suggests that

plaintiff has played a major part in his children’s upbringing both before and after

the date of separation. During the marriage, the evidence indicated that plaintiff

made efforts to make it home for dinner, bathe his children, and put them to bed.

Furthermore, the trial court heard evidence that plaintiff spent significant amounts

of time both before and after the date of separation participating in his daughters’

extracurricular activities. Because these findings were based on competent evidence,

even though there was evidence to the contrary, we reject defendant’s challenges to

Findings of Fact Nos. 70, 77, and 80.

      As a final matter, we note that defendant has no basis for contesting Finding

of Fact No. 85 as unsupported by the evidence because it is based directly on her

testimony that she believed “splitting the summer custody has worked out very well.”

We therefore, hold that these findings of fact are supported by competent evidence

and that they furthermore support the conclusion of the trial court that an equally

shared custodial arrangement is in the best interests of the children.

      C.     Award of Joint Legal Custody

      Plaintiff essentially repeats his assault on the trial court’s order requiring him

to pay his children’s private school tuition by arguing that such an order erroneously



                                         - 36 -
                                    SMITH V. SMITH

                                   Opinion of the Court



contradicts the trial court’s grant of “permanent joint legal and physical care, custody,

and control of the minor children[.]” Specifically, plaintiff points to the fact that the

permanent child custody order granting the parties joint legal custody requires that

“Plaintiff/Father and Defendant/Mother shall make joint decisions on all major issues

affecting the health, education, and general welfare of the minor children, including

but not limited to educational issues . . . .” However, the order also concludes that

“[i]t continues to be in the best interest of the minor children to be enrolled at

Providence Day School.”

      This Court has held that legal custody “refer[s] generally to the right and

responsibility to make decisions with important and long-term implications for a

child’s best interest and welfare.” Diehl v. Diehl, 177 N.C. App. 642, 646, 630 S.E.2d

25, 27 (2006). Although our General Assembly has not defined “joint legal custody,”

this omission “implies a legislative intent to allow a trial court ‘substantial latitude

in fashioning a joint [legal] custody arrangement,’ ” Id. at 647, 630 S.E.2d 28 (quoting

Patterson v. Taylor, 140 N.C. App. 91, 96, 535 S.E.2d 374, 378 (2000)), so long as the

court “focus[es] on the best interests and welfare of the child[.]” Patterson, 140 N.C.

App. at 96, 535 S.E.2d at 378.

      Plaintiff relies on Diehl in arguing that the trial court erred in “simultaneously

award[ing] both parties joint legal custody, but stripp[ing] [plaintiff] of all decision-

making authority” regarding where the children were enrolled in school. 177 N.C.



                                          - 37 -
                                    SMITH V. SMITH

                                   Opinion of the Court



App. at 646, 630 S.E.2d at 28. However, in Diehl, this Court reversed the trial court’s

order because, although it gave both parties joint legal custody, it granted primary

decision-making authority on all issues to one parent. Id. Nothing in Diehl limits

the authority of the trial court to decide what is in the best interests of the children

if there is a conflict between the parents. The trial court here did not violate Diehl

by awarding joint custody, while simultaneously giving one parent primary decision-

making authority over the children’s schooling.           Instead, the trial court awarded

joint legal custody, but exercised its authority, given the disagreement between the

parents, to determine that it was in the best interests of the children to remain

enrolled at PDS. This determination was adequately supported by findings of fact

that the children had been enrolled exclusively at PDS, that they had excelled at PDS,

and that both parents preferred private school over public school. Because plaintiff

does not challenge these findings of fact, they are binding on appeal and amply

support the trial court’s conclusion that it is in the best interests of the children to

continue attending PDS.

IV.   Equitable Distribution

      A.     Defendant’s Paternal Inheritance as a Distributional Factor

      Plaintiff asserts that the trial court committed reversible error by failing to

make findings of fact and corresponding conclusions of law relating to defendant’s

paternal inheritance of nearly $1.25 million as a distributional factor. We agree.



                                          - 38 -
                                    SMITH V. SMITH

                                   Opinion of the Court



      In an equitable distribution action, N.C. Gen. Stat. § 50-20(c)(1) (2015)

provides that one of the factors the court “shall” consider in making an equitable

division of property is “[t]he income, property, and liabilities of each party at the time

the division of property is to become effective.” (Emphasis added.) “[W]hen evidence

of a particular distributional factor is introduced, the court must consider the factor

and make an appropriate finding of fact with regard to it.” Fox v. Fox, 114 N.C. App.

125, 135, 441 S.E.2d 613, 619 (1994).

      Here, the trial court erroneously made no mention of defendant’s paternal

inheritance in the final equitable distribution order. Defendant attempts to justify

the trial court’s failure to specifically address this inheritance by citing a conclusion

in the order that states: “The Court notes that a number of factors which relate to the

distributional factors to be considered by the Court . . . are found in other sections of

the findings of fact herein. . . . [This] does not mean that the Court did not consider

them as distributional factors.”     However, this general conclusion is simply not

adequate to compensate for the total lack of findings to address defendant’s paternal

inheritance. See Rosario v. Rosario, 139 N.C. App. 258, 262, 533 S.E.2d 274, 276

(2000) (“[A] finding stating that the trial court has merely given ‘due regard’ to the

section 50-20 factors is insufficient as a matter of law.”).

      Defendant also argues that because the inheritance is not a specifically

enumerated factor in N.C. Gen. Stat. § 50-20, the court is not required to make such



                                          - 39 -
                                    SMITH V. SMITH

                                   Opinion of the Court



specific findings.   Contrary to defendant’s arguments, we find that defendant’s

inheritance qualifies as “property.” Accordingly, we reverse the order and remand

for findings of fact regarding defendant’s paternal inheritance.

      B.     Amendment of the Equitable Distribution Order

      Defendant also challenges the order granting plaintiff’s motion to amend the

22 July 2013 equitable distribution order pursuant to Rules 52 and 59 of the Rules of

Civil Procedure. In response, plaintiff claims that defendant failed to give proper

notice of appeal of this order pursuant to Rule 3(d) of the Rules of Appellate Procedure

because defendant’s notice of cross-appeal only designated the amended equitable

distribution order entered on 20 November 2013 and failed to designate the

simultaneously-entered order granting plaintiff’s Rule 52 and 59 post-trial motions.

      Rule 3(d) requires that a notice of appeal “designate the judgment or order

from which appeal is taken . . . .” If the court does not have proper notice, it will not

have jurisdiction over the matter. Von Ramm v. Von Ramm, 99 N.C. App. 153, 156,

392 S.E.2d 422, 424 (1990). However, there are exceptions to this rule that allow us

to liberally construe a notice of appeal. The first is that “ ‘a mistake in designating

the judgment, or in designating the part appealed from if only a part is designated,

should not result in loss of the appeal as long as the intent to appeal from a specific

judgment can be fairly inferred from the notice and the appellee is not misled by the

mistake.’ ” Id. at 156-57, 392 S.E.2d at 424 (quoting Smith v. Indep. Life Ins. Co., 43



                                          - 40 -
                                    SMITH V. SMITH

                                   Opinion of the Court



N.C. App. 269, 274, 258 S.E.2d 864, 867 (1979)). “Second, if a party technically fails

to comply with procedural requirements in filing papers with the court, the court may

determine that the party complied with the rule if the party accomplishes the

‘functional equivalent’ of the requirement.” Id. at 157, 392 S.E.2d at 424 (quoting

Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 101 L. Ed. 2d 285, 291, 108 S.

Ct. 2405, 2409 (1988)).

       Neither of these exceptions is applicable here. The second exception is clearly

inapplicable because defendant actually complied with all the procedural

requirements of filing her notice of appeal. The first exception is also inapplicable as

suggested in Von Ramm and Chee v. Estes, 117 N.C. App. 450, 451 S.E.2d 349 (1994),

two cases with circumstances analogous to those here. In Chee, the trial court found

that because the plaintiff had noticed an appeal “from the judgment entered in

accordance with the verdict . . . it cannot be fairly inferred from the notice that

plaintiffs intended as well to appeal the denial of their motion for new trial.” Id. at

452, 451 S.E.2d at 351. The converse occurred in Von Ramm, where the appellant

noticed appeal from the judgment denying a Rule 59 motion, but this Court found it

could not fairly infer from the notice of appeal the appellant’s intent to appeal the

order underlying the appellant’s Rule 59 motion. 99 N.C. App. at 157, 392 S.E.2d at

425.




                                          - 41 -
                                     SMITH V. SMITH

                                    Opinion of the Court



      Similarly, here, defendant clearly included the Amended Judgment and Order

regarding equitable distribution in her notice of appeal, but failed to include the order

entered granting plaintiff’s Rule 52 and 59 motions. Consistent with Von Ramm and

Chee, we hold that we cannot fairly infer defendant’s intent to appeal the order

granting plaintiff’s Rule 52 and 59 motions and, therefore, we do not have jurisdiction

to address the issues raised by defendant on appeal regarding the grant of plaintiff’s

motion. As defendant has not requested we review these issues pursuant to a petition

for writ of certiorari, we also decline to review these issues under Rule 21 of the Rules

of Appellate Procedure.

      C.     Plaintiff’s Post-Separation Payments Towards the Marital Debt

      Plaintiff contends the trial court improperly classified two debt payments in

the final Equitable Distribution Order. First, plaintiff claims the trial court failed to

designate as divisible property in its findings of fact plaintiff’s post-separation debt

payments in the amount of $101,441.00 towards the marital mortgage, property

taxes, homeowners’ insurance, repairs, and neighborhood residence fees. Second,

plaintiff claims the trial court also erred in failing to account for $11,764.00 in country

club dues as divisible property.

      The final equitable distribution order found that the parties stipulated that

upon the sale of the marital home, each would receive half of its net equity, defined

as “the gross sales price less mortgage payoffs, realtor commissions, tax prorations,



                                           - 42 -
                                    SMITH V. SMITH

                                   Opinion of the Court



revenue stamps, homeowners’ association dues, mutually agreed upon repairs, and

other closing costs directly attributable to the sellers . . . .” The trial court later

concluded that “[b]y entering into the referenced Stipulations, the parties have fully

and finally resolved any and all claims arising out of each party’s marital and,

separate and/or divisible property interests in and into the marital residence.”

      The trial court further found that while plaintiff was responsible for all

mortgage fees and other expenses relating to the marital home from the date of

separation until the date the marital residence was sold, plaintiff lived in the house,

but did not pay defendant her share of the rental value, which was no less than

$3,500.00 per month.       This value, the trial court concluded, exceeded the

expenditures that plaintiff incurred on a monthly basis, therefore leaving “no

divisible property interest [in the marital home] to be valued, classified, and/or

awarded in this Judgment.”

      In regard to the parties’ country club membership, the trial court found that

“[t]he Ballantyne Country Club’s membership was in Plaintiff/Husband’s name[,]”

that “the initiation fee was paid from a portion of Defendant/Wife’s inheritance[,]”

and that after the date of separation, defendant “had no right to utilize the facilities

. . . unless she was a guest of Plaintiff/Husband.” The trial court also made a finding

that the membership was sold and transferred along with the marital residence,

which was “divided equally between the parties” pursuant to the parties’ stipulations.



                                          - 43 -
                                    SMITH V. SMITH

                                   Opinion of the Court



In conclusion, the trial court found there was “no divisible property interest . . . to

take into account with regard to any monthly dues or assessments that

Plaintiff/Husband may have incurred and paid to Ballantyne Country Club.”

      It is well settled that “divisible property includes ‘[i]ncreases and decreases in

marital debt and financing charges and interest related to marital debt.’ ” Warren v.

Warren, 175 N.C. App. 509, 517, 623 S.E.2d 800, 805 (2006) (quoting N.C. Gen. Stat.

§ 50-20(b)(4)(d) (2003)). Furthermore, “mortgage payments and payment of property

taxes, have been treated by this Court as payments made towards a marital debt.”

Smith v. Smith, 111 N.C. App. 460, 510, 433 S.E.2d 196, 226 (1993), rev’d in part on

other grounds, 336 N.C. 575, 444 S.E.2d 420 (1994).

      It is also true that “[i]n equitable distribution actions, our courts favor written

stipulations which are duly executed and acknowledged by the parties.” Fox, 114

N.C. App. at 132, 441 S.E.2d at 617. Stipulations are treated as “judicial admissions

which, unless limited as to time or application, continue in full force for the duration

of the controversy.” Id. at 131, 441 S.E.2d at 617.

      Plaintiff makes general assertions that the trial court’s findings of fact

regarding the classification of these marital debts are unsupported by competent

evidence, but fails to point to any specific evidence that suggests they are erroneous.

As such, they are binding on appeal. We further hold that these findings adequately

support the trial court’s corresponding conclusions of law that plaintiff has no



                                          - 44 -
                                    SMITH V. SMITH

                                   Opinion of the Court



divisible property interest in the payments made towards the marital residence or

the country club membership. This is evident because after the date of separation

and until these interests were sold, defendant was effectively barred from realizing

any benefit from these marital interests. Furthermore, the stipulations referenced

by the trial court indicate that the net equity in the marital residence, including the

country club membership, was split evenly between the parties, thereby resolving all

claims arising out of the interests in the marital residence. Accordingly, we affirm

this portion of the final equitable distribution order.

      D.     Valuation of Plaintiff’s Partnership Interest

      Plaintiff lastly argues that the trial court failed to make appropriate findings

of fact regarding the valuation methodology used for valuing plaintiff’s PwC

partnership interest. Here, the trial court examined at length both parties’ valuation

methods, and the proffered evidence supporting them.          Although it ultimately

questioned “the accuracy and validity of both parties’ methods of computing the value

of Plaintiff/Husbands’ partnership interest in PricewaterhouseCoopers, LLP,” the

trial court adopted defendant’s methodology after concluding that it “appears to be

the most appropriate of the two.” The court arrived at a date of separation value of

$94,118.00 by taking the net capital account balance (“CAB”) as of the date of

separation and subtracting the outstanding loan balance owed to PwC as of the date

of separation. The parties do not dispute this outstanding loan balance of $93,190.00.



                                          - 45 -
                                    SMITH V. SMITH

                                   Opinion of the Court



The trial court found from defendant’s evidence that the CAB is impacted by three

different numbers: “(1) Capital contributions during the Time Period in question, (2)

increases in capital (shares of earned income[)] during the Time Period, and (3)

decreases to capital (mainly withdrawals in distributions made to the partner[)]

during the Time Period[.]” Applying these factors, the trial court arrived at a date of

separation net CAB of $187,308.00. Subtracting the undisputed outstanding loan

balance from this amount, the trial court concluded plaintiff’s partnership valuation

totaled $94,118.00.

      “If there is ‘no single best approach to valuing’ an asset, ‘[t]he task of [this

Court] on appeal is to determine whether the approach used by the trial court

reasonably approximated’ the value of the asset at the date of separation.” Fountain

v. Fountain, 148 N.C. App. 329, 338, 559 S.E.2d 25, 32 (2002) (quoting Poore v. Poore,

75 N.C. App. 414, 419, 331 S.E.2d 266, 270 (1985)). If it appears that “ ‘the trial court

reasonably approximated the net value of the [asset] . . . based on competent evidence

and on a sound valuation method or methods, the valuation will not be disturbed.’ ”

Id. (quoting Poore, 75 N.C. App. at 422, 331 S.E.2d at 272). Although plaintiff urges

that the trial court should have adopted his methodology rather than defendant’s, the

trial court’s adopted approach appears to apply sound techniques and relies upon

competent evidence to “reasonably approximate[]” the value of plaintiff’s PwC




                                          - 46 -
                                    SMITH V. SMITH

                                   Opinion of the Court



partnership interest. Plaintiff has, therefore, failed to demonstrate that the trial

court erred in valuing his partnership interest.

                                      Conclusion

      We affirm the trial court’s custody order. We further affirm the trial court’s

child support order requiring plaintiff to pay his children’s private school tuition at

PDS in full upon due according to a payment plan allowed by PDS on a prospective

basis until changed circumstances or further review. However, because we find that

the trial court’s orders regarding child support and equitable distribution were not

fully supported by appropriate findings of fact, we reverse these orders and remand

for further findings of fact as to the following: (1) defendant’s paternal inheritance,

both as to the child support and equitable distribution orders, (2) defendant’s ability

to reimburse plaintiff for 25% of their children’s PDS tuition, (3) the clerical error in

Finding of Fact No. 183 of the child support order, erroneously requiring plaintiff pay

$4,000.00 per month to defendant in child support for the period from 1 June 2007

through June 2009, and (4) the inconsistency between Findings of Fact Nos. 108 and

194 in the child support order regarding plaintiff’s payment of private school tuition

for the 2007-2008 school year. We leave the decision regarding whether to hear

additional evidence to the sound discretion of the trial judge.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      Judges BRYANT and TYSON concur.



                                          - 47 -
