An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA13-460
                        NORTH CAROLINA COURT OF APPEALS

                              Filed:     1 April 2014


ELLEN STEIN (BRASINGTON),
     Plaintiff

      v.                                      Wake County
                                              No. 09 CVD 7126
SCOTT A. BRASINGTON,
     Defendant.


      Appeal by plaintiff from orders entered 18 March 2011 and

20   December    2012   by   Judge    Lori   G.   Christian       in   Wake   County

District Court.         Heard in the Court of Appeals 26 September

2013.


      Wake Family Law Group, by Marc W. Sokol and Julianne B.
      Rothert, for plaintiff-appellant.

      Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for
      defendant-appellee.


      DAVIS, Judge.


      Ellen Brasington, now Ellen Stein (“Plaintiff”), appeals

from the trial court’s 18 March 2011 child support order and 20

December 2012 order granting in part and denying in part the

parties’     respective      motions     under    Rules     52,    59,    and   60.

Plaintiff’s primary argument on appeal is that the trial court
                                    -2-
erred in imputing income to her when calculating child support

because its findings were not supported by competent evidence.

After careful review, we affirm in part, vacate in part, and

remand for additional findings.

                        Factual Background

    Plaintiff   and    Scott   A.     Brasington    (“Defendant”)   were

married on 10 May 1997, separated on 16 March 2008, and are now

divorced.   The parties have four minor children.          Since their

separation, the parties have been “operating voluntarily under a

50/50 shared custodial schedule.”         On 3 November 2009, the trial

court entered a consent order maintaining the equal physical

custody arrangement.

    On 28 June 2010, Plaintiff filed a request to deviate from

the North Carolina Child Support Guidelines.           The trial court

held a hearing on 30 August 2010 and entered its child support

order on 18 March 2011.        The trial court determined that no

evidence was presented to justify a deviation from the Child

Support Guidelines, imputed income to both parties, and ordered

Defendant to pay Plaintiff monthly child support payments of

$451.00.

    On 28 March 2011, both parties filed motions regarding the

trial court’s   18 March 2011       child support order.      Defendant
                                              -3-
moved   for    a   new    trial        or    the    entry    of   an    amended    judgment

pursuant      to   Rule     59    of    the        North    Carolina     Rules    of     Civil

Procedure, alleging that the trial court improperly calculated

his imputed income.          Plaintiff’s motion requested that the trial

court amend the order, set aside the order, or order a new trial

pursuant to Rules 52, 59, and 60.                           In her motion, Plaintiff

contended      that   findings          of    fact     17,    18,      and   21   were    not

supported by competent evidence.

    The parties’ motions came on for hearing on 11 October

2011.    On 20 December 2012, the trial court entered an order

partially granting and partially denying the parties’ respective

motions.      The court concluded that “there is no good cause for

the granting of either party’s various and sundry motions under

Rules   52,    59,    and    60    of       the    North    Carolina     Rules    of     Civil

Procedure with respect to the March 18, 2011 child support order

previously entered by this Court, except in so far as finding of

fact 17(e) of that order miscalculated 20% of the rental income

of the property partially owned by the Plaintiff.”

    The trial court proceeded to recalculate Plaintiff’s income

and adjust Defendant’s child support payments accordingly.                                 The

trial court also computed Defendant’s child support arrearages,

which are not being contested on appeal, in its 20 December 2012
                                   -4-
order.   Plaintiff timely appeals from the 18 March 2011 and the

20 December 2012 orders.1

                                 Analysis

      On appeal, Plaintiff asserts that the trial court erred by

imputing income to her because its findings of fact regarding

the   calculation   of   her   imputed   income   are   not   supported   by

competent evidence.       Plaintiff likewise argues that the trial

court erred in partially denying her Rule 52(b), 59, and 60

motions based on her same contention that these findings are

unsupported.

      When entering a child support award, the trial court is

required to make specific findings of fact and conclusions of

law to support its order.        Leary v. Leary, 152 N.C. App. 438,

441-42, 567 S.E.2d 834, 837 (2002).         “This Court’s review of a

trial court’s child support order is limited to whether there is

competent evidence to support the findings of fact, despite the

fact that different inferences may be drawn from the evidence.”




1
  The thirty day period for appealing the 18 March 2011 order was
tolled by the parties’ respective motions under Rules 52(b) and
59. See N.C.R. App. P.3(c)(3) (“[I]f a timely motion is made by
any party for relief under Rules 50(b), 52(b), or 59 of the
Rules of Civil Procedure, the thirty day period for taking
appeal is tolled as to all parties until entry of an order
disposing of the motion . . . .”).
                                 -5-
Hodges v. Hodges, 147 N.C. App. 478, 482-83, 556 S.E.2d 7, 10

(2001).

    Plaintiff contends that the following findings of fact are

not supported by competent evidence:

          17. The rental property plaintiff owns with
          her current father-in-law[:]    This property
          produces for her a gross personal income,
          after expenses, of $71,280.00.      The court
          finds this figure through the evidence
          presented at trial because the plaintiff’s
          testimony and explanation concerning this
          rental property is not credible:

              a. Plaintiff placed $65,000.00 of her
                 own money as a down payment on this
                 property.

              b. The   property was  purchased with
                 renters already scheduled for the
                 year.

              c. The property rents for $7,500.00 per
                 week.   If it rents for just three
                 weeks per month for only 10 months,
                 this produces a gross income of
                 $225,000.00 per year.

              d. The first and second mortgages on the
                 property are $3,200.00 and $700.00
                 respectively. This totals $46,800.00
                 per year for mortgage payments.

              e. The reasonable expenses for this
                 property are calculated as 20% of the
                 gross income minus the expense for
                 the mortgages or $35,640.00.      Eg.
                 ($225,000.00 – $46,800.00) x 20% =
                 $35,640.00.

              f. This   leaves     $142,560.00   in   net
                                     -6-
                   profits which is divided between the
                   plaintiff   and  her   father-in-law.
                   Therefore, plaintiff has a gross
                   personal income from this property of
                   $71,280.00.

         18. In addition, plaintiff has a masters
         degree in nursing which she earned in
         December 2009 from Duke University. She has
         never taken the required test, although
         eligible, to become a practicing nurse and
         refuses to work as a nurse due to her
         statement that she is pursuing a career in
         the “business side” of nursing.     Plaintiff
         is   voluntarily    underemployed   and    is
         deliberately suppressing her income.      She
         could earn at least $50,000.00 per year as a
         practicing nurse, but for her intentional
         underemployment    and   deliberate    income
         suppression working as a sales person at the
         Apple Store for $10/hr.

         21. It is inconceivable that the plaintiff
         spends this much money in a given month,
         travels and spends what she does on the high
         lifestyle for her children, but only works
         at the Apple store for $10/hr.             Her
         lifestyle   and   spending  habits  for   the
         children are commensurate with someone with
         a masters degree in nursing from Duke
         University      and    income    from     her
         investment/rental property. Her income from
         the Apple Store does not come any where near
         her expenses and cannot meet those expenses.
         Her deliberate income suppression requires
         the court to impute income to her in the
         amount commensurate as stated hereinabove or
         $128,280 per year or $10,106.67 per month.

We discuss each finding in turn.

    Plaintiff    first     asserts    that   finding     of   fact   17   is

unsupported   because    the   “undisputed   evidence”    she   offered   at
                                          -7-
trial indicated that her rental property in the Outer Banks did

not generate a profit in 2010 and was not expected to make a

profit in 2011.            In making this argument, however, Plaintiff

disregards the fact that the trial court expressly found that

Plaintiff’s      testimony      regarding       the   rental      property        was   “not

credible.”

      “In    a     non-jury      trial,       the     weight,       credibility,        and

convincing force of the evidence is for the trial court, who is

in the best position to observe the witnesses and make such

determinations.”           Meehan v. Lawrence, 166 N.C. App. 369, 385,

602   S.E.2d       21,   31    (2004)     (citation,         quotation      marks,      and

brackets omitted); see Burnett v. Wheeler, 133 N.C. App. 316,

318, 515 S.E.2d 480, 482 (1999) (“This Court is deferential to

determinations of child support by district court judges, who

see the parties and hear the evidence first-hand.”).

      In    this    case,      the    trial     court      made   multiple        findings

concerning         Plaintiff’s        lack      of        credibility       at      trial.

Specifically,        the      trial     court       (1)    “[did]     not      find     the

plaintiff’s      testimony      credible      about       her   income   and      expenses

through her testimony at trial and through her deposition;” (2)

determined       that    Plaintiff’s      testimony         regarding       her    current

husband’s financial situation was “not credible and evasive”;
                                         -8-
(3) found that “[P]laintiff is not credible”; and (4) determined

that     Plaintiff’s       explanation    concerning      the        $45,000.00     in

deposits to her account was “not credible” and that “[m]oney is

coming into the plaintiff from some source, but [it] is unclear

to where the funds are coming from.”            The trial court also found

that Plaintiff was voluntarily underemployed and “deliberately

suppressing her income which is a deliberate disregard to the

financial needs of the minor children.”               Based on its assessment

of   the   credibility       of   Plaintiff’s       testimony    concerning        her

financial status, the trial court elected to perform its own

calculation of the gross income derived from the rental property

by   determining     its     potential    annual     income     and     subtracting

mortgage payments and reasonable expenses.

       “Generally,     a    party’s   ability   to     pay    child     support    is

determined by that party’s actual income at the time the award

is made.”     McKyer v. McKyer, 179 N.C. App. 132, 146, 632 S.E.2d

828,   836   (2006).         However,    when   a    party      is    found   to    be

deliberately depressing his or her income or otherwise acting

“in deliberate disregard of the obligation to provide reasonable

support for the child[ren],” the trial court may utilize the

party’s capacity to earn income as the basis for a child support

award.     Metz v. Metz, 212 N.C. App. 494, 500, 711 S.E.2d 737,
                                                   -9-
741        (2011)       (citation         and     quotation       marks        omitted).          The

imputation of income requires a showing of bad faith by that

party, which may be met through evidence of “a sufficient degree

of    indifference            to    the    needs       of    [the]   .    .    .     child[ren],”

McKyer, 179 N.C. App. at 146, 632 S.E.2d at 836, or evidence

that the party is                   “indulging in excessive spending to avoid

family responsibilities,”                       State ex. rel. Williams v. Williams,

179 N.C. App. 838, 841, 635 S.E.2d 495, 497 (2006) (citation and

quotation marks omitted).

       We conclude that the trial court’s unchallenged findings of

fact       14     and    16    stating      that       (1)     Plaintiff       is    “voluntarily

underemployed” and “deliberately suppressing her income” as an

Apple Store employee, earning $10.00 per hour; and (2) given her

monthly         expenses       of    $7,000.00,         “Plaintiff        does      not    have   the

luxury to work in this voluntarily underemployed status as this

is     a    deliberate         disregard          to     the    financial          needs    of    the

children,” are sufficient to support its imputation of income to

Plaintiff from the rental property.                             See Crenshaw v. Williams,

211        N.C.     App.       136,       142,      710        S.E.2d     227,       232     (2011)

(“Unchallenged             findings         are     presumed         to       be    supported      by

competent          evidence         and   are     binding       on   appeal.”             (citation,

quotation marks, and brackets omitted)).
                                           -10-
      Indeed,      in    the    rental    property      context,      this     Court       has

specifically noted that when the evidence indicates that a party

is deliberately suppressing income and “failing to make a good

faith effort to obtain the best and highest rental income from

the   properties,        then     the    trial      court    would    be     required      to

utilize the potential rather than the actual income from the

operation of these rental properties . . . .”                        Lawrence v. Tise,

107   N.C.   App.       140,    148,    419    S.E.2d    176,   181       (1992).         When

calculating        gross       income    from       rental    payments,       the        North

Carolina     Child      Support        Guidelines     instruct       trial    courts       to

subtract     “ordinary         and     necessary      expenses”      from     the        gross

receipts to arrive at the “appropriate level of gross income

available to a parent to satisfy a child support obligation.”

Form AOC-A-162, Rev. 1/11.                Here, the trial court made detailed

findings     calculating         the     potential      gross      receipts       from    the

rental property by computing weekly rental fees — based on a

figure to which Plaintiff testified — for 30 weeks per year.

The trial court then subtracted out the payments for the two

mortgages and reasonable expenses for upkeep and maintenance.

Finally,     the    court       divided       the   total    sum     in    half     because

Plaintiff’s investment partner was entitled to one half of the

income from the property.
                                           -11-
       While Plaintiff contends that the sum arrived at by the

trial court was unreasonable because it does not reflect the

evidence she presented at trial, it is well established that

“[t]he   mere    introduction         of    evidence       does       not    entitle    the

proponent to a finding thereon, since the finder [of fact] must

pass on its weight and credibility.”                    Long v. Long, 71 N.C. App.

405, 407, 322 S.E.2d 427, 430 (1984).                      In light of the trial

court’s determinations that (1) Plaintiff’s testimony regarding

her financial welfare was “evasive”; (2) she was deliberately

suppressing     her   income;    and       (3)    Plaintiff       had       several    large

deposits into her bank accounts that she was not able to account

for,   we   cannot    conclude        that       the    trial     court’s      method     of

calculating     the   income    generated         by     the    rental      property    was

“manifestly unsupported by reason.”                    See Williams, 179 N.C. App.

at 839-40, 635 S.E.2d at 497 (“To disturb the trial judge’s

calculation [of child support], the appellant must demonstrate

that the ruling was manifestly unsupported by reason.”).

       Plaintiff next challenges findings of fact 18 and 21, both

of which address her nursing degree from Duke University, her

current employment at the Apple Store, and the trial court’s

determination that she was deliberately suppressing her income.

Plaintiff   first     draws     our    attention          to    the     fact    that    she
                                      -12-
received an undergraduate degree in nursing from Duke in 2008 —

contrary to the trial court’s findings of fact, which state that

she received her master’s degree in 2009.                While we acknowledge

that these portions of the trial court’s findings 18 and 21 are

erroneous, we conclude that these slight inaccuracies do not

rise to the level of reversible error.                   See In re Estate of

Mullins, 182 N.C. App. 667, 670-71, 643 S.E.2d 599, 601 (“In a

non-jury     trial,   where   there   are     sufficient    findings      of   fact

based   on    competent    evidence      to    support     the    trial   court’s

conclusions of law, the judgment will not be disturbed because

of   other     erroneous      findings        which   do    not     affect      the

conclusions.” (citation omitted)), disc. review denied, 361 N.C.

693, 652 S.E.2d 262 (2007).

     Moreover, Plaintiff has asserted no argument as to how she

was prejudiced by this error.            See Smallwood v. Smallwood, ___

N.C. App. ___, ___, 742 S.E.2d 814, 821 (2013) (explaining that

“appellant has the burden not only to show error, but also to

show that the alleged error was prejudicial and amounted to the

denial of some substantial right” (citation and quotation marks

omitted)).

     Plaintiff also contends that the portions of findings 18

and 21 imputing income to her based on a potential salary of
                                        -13-
$50,000.00 per year were not supported by competent evidence.

While we conclude that the trial court’s finding that Plaintiff

was   deliberately       suppressing     her    income       is   supported         by    the

evidence and the unchallenged findings as discussed above, we

“must   remand     for    additional     findings      of     fact     regarding          the

proper amount” of income to be imputed to Plaintiff.                                McKyer,

179 N.C. App at 148, 632 S.E.2d at 838.

      The Child Support Guidelines require trial courts to base

the   income    imputed    to   a     parent   “on     the    parent’s       employment

potential    and   probable     earnings       level    based     on     the    parent’s

recent work history, occupational qualifications and prevailing

job opportunities and earning levels in the community.”                                  Form

AOC-A-162, Rev. 1/11.           Here, the trial court determined that

Plaintiff      “could    earn    at    least    $50,000.00         per      year     as     a

practicing nurse” and used this amount in calculating her total

imputed income.          However, the sum of $50,000.00 appears to be

based solely on Plaintiff’s testimony at trial that                             she had

applied for a position in the information technology department

of a hospital that concentrated on nursing programs and had a

starting salary of “probably 50 or 60” thousand dollars.                             We do

not believe that this testimony sufficiently supports the trial

court’s     determination       that    Plaintiff       “could       earn      at     least
                                        -14-
$50,000.00 as a practicing nurse.”                 While the trial court made

findings concerning Plaintiff’s occupational qualifications, it

made no findings regarding the availability of nursing positions

in the community or the typical starting salary of a nurse.

      In   McKyer,    this    Court     remanded     to     the    trial      court      for

additional findings where the child support order “provide[d]

ample support for the trial court’s decision to impute income”

to the plaintiff but lacked sufficient findings “to support the

trial court’s determination of the amount of income that should

be imputed” because there were no findings regarding (1) whether

the plaintiff’s employer would permit him to work five days a

week rather than the one day a week he had been working; (2) the

availability of other full-time employment that would pay at his

present    hourly    wage;    and     (3)   the    effect    of        the   plaintiff’s

status as a part-time student.              McKyer, 179 N.C. App. at 147-48,

632 S.E.2d at 837-38.              We believe that McKyer is analogous to

the   present   case,        and     therefore,     we    likewise           remand      for

additional    findings       concerning      the    amount        of    income      to    be

imputed to Plaintiff.

      Because we are remanding for further findings regarding the

proper amount of income to be imputed to Plaintiff, we vacate

the   portion   of    the     trial     court’s      20     December         2012     order
                               -15-
determining that Defendant’s ongoing child support obligation is

$504.00 per month as this sum is based — in part — upon the

amount of income that the trial court imputed to Plaintiff.   See

Crosby v. Crosby, 272 N.C. 235, 238-39, 158 S.E.2d 77, 80 (1967)

(“[W]hen the court fails to find facts so that this Court can

determine that the order is adequately supported by competent

evidence . . . then the order entered thereon must be vacated

and the case remanded for detailed findings of fact.”).

                             Conclusion

    For the reasons stated above, we affirm in part, vacate in

part, and remand for additional findings regarding the amount of

income to be imputed to Plaintiff.

    AFFIRMED IN PART; VACATED IN PART; REMANDED IN PART.

    Judges HUNTER, JR. and ERVIN concur.

    Report per Rule 30(e).
