                              NO. 13-760

                   NORTH CAROLINA COURT OF APPEALS

                          Filed: 4 March 2014


ALANA WILLIAMS RESPESS,

    Plaintiff,

    v.                               Beaufort County
                                     No. 07 CVD 606
                                         08 CVD 570
MURPHY TODD RESPESS,

    Defendant,

    and

BOYD AND SUSAN RESPESS,

    Intervenors.

    Appeal by defendant from order entered 16 October 2012 by

Judge Christopher B. McLendon in Beaufort County District Court.

Heard in the Court of Appeals 11 December 2013.


    Pritchett & Burch, PLLC, by Lloyd C. Smith, Jr., Lloyd C.
    Smith, III, and R. Gray Jernigan for plaintiff-appellee.

    Ward and Smith, P.A., by John M. Martin, for defendant-
    appellant.


    STEELMAN, Judge.

    The trial court did not err by denying visitation with the

minor children to defendant. The trial court did not err by

ordering that plaintiff was entitled to child support or by

imputing income to defendant. The order of the trial court is
                                                 -2-
remanded for additional findings on the amount of income to be

imputed      to    defendant          and       the    amount       of    retroactive          child

support. The trial court did not err by transferring a vehicle

to   plaintiff       as       part    of    defendant’s        child       support      arrearage

without calculating the value of the vehicle. The trial court’s

award of attorney’s fees to plaintiff included the findings of

fact required by N.C. Gen. Stat. § 50-13.6, and the trial court

did not err in calculating a reasonable amount of attorney’s

fees.      However,      we    remand        this     issue    to    the       trial    court   for

findings as to plaintiff’s reasonable expenses as they pertain

to her ability to pay for counsel.

                     I. Factual and Procedural Background

       Plaintiff         Alana       Respess     and    defendant         Todd    Respess       were

married on 22 August 1986, separated in 2006, and were divorced

on 15 June 2009. They have four children: Jessica, born in 1987;

Amanda, born 1993; Allysa, born 1998; and Noah, born in 2002. In

2005 defendant admitted to plaintiff that                                he had engaged in

inappropriate sexual activity with Jessica, and on 3 May 2007

defendant         pled    guilty        to      five    felony        counts       of    indecent

liberties      with       a    child.      In    Case    No.    05       CRS    54090,     he   was

sentenced to 16 to 24 months imprisonment, suspended for                                          36

months of supervised probation on condition that he register as

a    sex    offender,         submit       to   electronic          monitoring,         have    only
                                        -3-
supervised visitation with his children, and serve a four month

active sentence. This sentence was completed in December 2009.

In     Case   No.   07    CRS   1209,      defendant      pled     guilty   to   four

additional counts of indecent liberties, and was sentenced to

consecutive terms of 16 to 24 months imprisonment, with the

first to begin at the expiration of the active sentence in 05

CRS 54090. The four sentences were suspended on the same terms

as in 05 CRS 54090, with the sentences to expire on 28 August

2011, 27 April 2013, 27 December 2015, and 26 April 2017.

       On 7 May 2007 plaintiff filed a complaint seeking temporary

and    permanent    custody     of   the    three       minor    children    (Jessica

reached majority in 2005). Plaintiff alleged that defendant had

violated the conditions established by the Beaufort County DSS

for visitation and that he was not “a fit and proper person” to

have     custody    of    the     children.        In    his     answer,    defendant

counterclaimed, seeking custody, child support,1 and attorney’s

fees. In her reply, plaintiff requested that defendant be denied

all contact with the minor children. On 21 May 2008 plaintiff

filed     a   complaint     for      divorce,       child       support,    equitable

distribution,       and   attorney’s       fees.    In    his    answer,    defendant

1
  On 12 June 2007 the minor children’s paternal grandparents
(intervenors) moved to intervene and sought visitation with the
minor children. Their motion was granted on 6 August 2007. The
trial court granted the intervenors visitation. The intervenors
are not a party to this appeal.
                                           -4-
denied   the    material     allegations         of    plaintiff’s      complaint    and

counterclaimed for child support, equitable distribution, and

attorney’s fees. Plaintiff filed a reply on 25 August 2008. The

parties were granted a divorce on 15 June 2009.

      On 16 October 2012 the trial court entered an order on the

issues   of     child   custody,     child       support,    visitation,     and    the

attorney’s fees associated with litigation of these issues. At

that time only Alyssa and Noah were minors. The provisions of

the     court’s     order       concerning            custody,    visitation,       and

prospective child support apply only to those two children. The

court    made    findings       concerning       defendant’s      sexual    abuse    of

Jessica and his subsequent behavior towards her and his other

children, and concluded that it would be “totally inappropriate”

and   detrimental       to   the    best    interests       of    the   children    for

defendant to have “visitation or custodial relationships of any

type”    with     the   minor      children.      The     trial   court    also     made

findings concerning the effect of defendant’s sexual abuse upon

his employment situation, and found that it was appropriate for

the court to impute an income of approximately $50,000 a year to

defendant, an amount that was about half of his previous annual

earnings. The trial court concluded that plaintiff was entitled

to retroactive and prospective child support, and to attorney’s

fees.
                                       -5-
      Defendant appeals.



                 II. Denial of Visitation to Defendant

      In his first argument, defendant contends that the trial

court committed reversible error by denying him visitation with

the minor children. We disagree.

                           A. Standard of Review

      “Under our standard of review in custody proceedings, ‘the

trial court’s findings of fact are conclusive on appeal if there

is evidence to support them, even though the evidence might

sustain findings to the contrary.’ Whether those findings of

fact support the trial court's conclusions of law is reviewable

de novo.” Mason v. Dwinnell, 190 N.C. App. 209, 221, 660 S.E.2d

58, 66 (2008) (quoting Owenby v. Young, 357 N.C. 142, 147, 579

S.E.2d    264,   268    (2003)   (other      citation    omitted).    “A    trial

court’s    unchallenged     findings    of    fact   are     ‘presumed     to    be

supported by competent evidence and [are] binding on appeal.’ If

the   trial   court’s    uncontested      findings      of   fact   support     its

conclusions of law, we must affirm the trial court’s order.”

Mussa v. Palmer-Mussa, 366 N.C. 185, 191, 731 S.E.2d 404, 409

(2012) (quoting Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d

729, 731 (1991) (other citation omitted).

                                   B. Analysis
                                         -6-
      Defendant argues, based on the holding of Moore v. Moore,

160 N.C. App. 569, 587 S.E.2d 74 (2003), that the trial court

did not comply with the provisions of N.C. Gen. Stat. § 50-

13.5(i), and contends the trial court’s finding that it was not

in the children’s best interests to have visitation with him was

not supported by its other findings.

      Under    N.C.   Gen.   Stat.   §    50-13.1(a)       “the     word   ‘custody’

shall be deemed to include custody or visitation or both.” It is

long-established      that   a   trial    court’s      determination       of    child

custody,     including     visitation,         must   be   guided    by    the   best

interests of the child:

              [W]e apprehend the true rule to be that the
              court’s primary concern is the furtherance
              of the welfare and best interests of the
              child   and   its  placement   in   the   home
              environment that will be most conducive to
              the   full  development   of   its   physical,
              mental, and moral faculties. All other
              factors, including visitorial rights of the
              other   applicant,   will   be   deferred   or
              subordinated to these considerations[.]

Griffith v. Griffith, 240 N.C. 271, 275, 81 S.E.2d 918, 921

(1954). This standard is incorporated in N.C. Gen. Stat. § 50-

13.2(a), which directs the trial court to “award the custody of

[a] child to such person . . . as will best promote the interest

and welfare of the child.”

      It is also well-established that “the applicable standard

of   proof    in   child   custody   cases       is   by   a   preponderance,      or
                                    -7-
greater weight, of the evidence.” Speagle v. Seitz, 354 N.C.

525, 533, 557 S.E.2d 83, 88 (2001) (citing Jones v. All American

Life Ins. Co., 312 N.C. 725, 733, 325 S.E.2d 237, 241 (1985)).

       Although courts seldom deny visitation rights to a non-

custodial parent, a trial court may do so if it is in the best

interests of the child:

              [T]he welfare of a child is always to be
              treated as the paramount consideration[.] .
              . . Courts are generally reluctant to deny
              all visitation rights to the divorced parent
              of a child of tender age, but it is
              generally agreed that visitation rights
              should not be permitted to jeopardize a
              child's welfare.

Swicegood v. Swicegood, 270 N.C. 278, 282, 154 S.E.2d 324, 327

(1967) (citing Griffin v. Griffin, 237 N.C. 404, 75 S.E. 133

(1953)). See also, In re Custody of Stancil, 10 N.C. App. 545,

551,    179    S.E.2d   844,   848-49     (1971)   (“‘The   rule   is   well

established in all jurisdictions that the right of access to

one’s child should not be denied unless the court is convinced

such visitations are detrimental to the best interests of the

child.’”) (quoting Willey v. Willey, 253 Iowa 1294, 1302, 115

N.W. 2d 833, 838 (1962)). This principle is codified in N.C.

Gen. Stat. § 50-13.5(i), which provides that:

              In any case in which an award of child
              custody is made in a district court, the
              trial judge, prior to denying a parent the
              right of reasonable visitation, shall make a
              written finding of fact that the parent
                               -8-
         being denied visitation rights is an unfit
         person to visit the child or that such
         visitation rights are not in the best
         interest of the child. (emphasis added).

    The statutory language is straightforward and unambiguous

and requires that if a trial court does not grant reasonable

visitation to a parent, its order must include a finding either

that the parent is “an unfit person to visit the child” or that

visitation with the parent is “not in the best interest of the

child.” Although our Supreme Court has not issued an opinion

discussing this statute, during the past 30 years this Court has

issued numerous opinions applying N.C. Gen. Stat. § 50-13.5(i).

For example, in King v. Demo, 40 N.C. App. 661, 666-667, 253

S.E.2d 616, 620 (1979), we stated that:

         Unless   the   child’s   welfare  would   be
         jeopardized, courts should be generally
         reluctant to deny all visitation rights to
         the divorced parent of a child of tender
         age. Moreover, G.S. 50-13.5(i) provides
         [that] . . . “prior to denying a parent the
         right of reasonable visitation, [the trial
         court] shall make a written finding of fact
         that the parent being denied visitation
         rights is an unfit person to visit the child
         or that such visitation rights are not in
         the best interest of the child.”

(citing Swicegood, and Stancil). And, in Johnson v. Johnson, 45

N.C. App. 644, 647, 263 S.E.2d 822, 824 (1980), we held that:

         In awarding visitation privileges the court
         should be controlled by the same principle
         which governs the award of primary custody,
         that is, that the best interest and welfare
                                    -9-
             of the child is the paramount consideration.
             . . . G.S. 50-13.5(i) provides that “[i]n
             any case in which an award of child custody
             is made in a district court, the trial
             judge, prior to denying a parent the right
             of reasonable visitation, shall make a
             written finding of fact that the parent
             being denied visitation rights is an unfit
             person to visit the child or that such
             visitation rights are not in the best
             interest of the child.”

(citing   Swicegood).     During   the    33   years   since   Johnson   was

decided, we have consistently followed both its application of

the   best    interests    standard      to    disputes   between   parents

regarding child custody and visitation, and its acceptance of

the plain language of N.C. Gen. Stat. § 50-13.5(i). See, e.g.,

Correll v. Allen, 94 N.C. App. 464, 471, 380 S.E.2d 580, 584

(1989) (“Visitations may be denied if visitation is not in the

child’s best interest.”) (citation omitted); Raynor v. Odom, 124

N.C. App. 724, 733, 478 S.E.2d 655, 660 (1996) (“G.S. 50-13.5(i)

requires that ‘the trial judge prior to denying a parent the

right of reasonable visitation, shall make a written finding of

fact that the parent being denied visitation rights is an unfit

person to visit the child or that such visitation rights are not

in the best interests of the child.’”); and Maxwell v. Maxwell,

212 N.C. App. 614, 622, 713 S.E.2d 489, 495 (2011) (“Our General

Assembly has provided that: ‘. . . prior to denying a parent the

right of reasonable visitation, [the trial court] shall make a
                                       -10-
written finding of fact that the parent being denied visitation

rights    is    an   unfit   person    to   visit    the     child     or    that      such

visitation rights are not in the best interest of the child.’

N.C. Gen. Stat. § 50-13.5(i) (2009)”). Thus, “it is generally

agreed    that       visitation   rights      should       not   be     permitted       to

jeopardize a child's welfare.” Swicegood, 270 N.C. at 282, 154

S.E. 2d at 327.

       In the present case, the trial court found, as required by

N.C.   Gen.     Stat.    §   50-13.5(i),    that     it    would      not   be    in    the

children’s best interests to have any visitation with defendant.

This     ultimate       finding   of   fact    was        supported     by       numerous

evidentiary findings of fact, including the following:

                                       . . .

               12. The Court had the opportunity to observe
               the demeanor of each of the witnesses called
               by the parties and to hear their testimony.

               13. The Court formed opinions as to the
               veracity of each witness having had the
               occasion to observe said witnesses and to
               hear their testimony.

               14. On August 4, 2005 . . . the Defendant .
               . . confessed to [plaintiff] that he had
               engaged in inappropriate sexual behavior
               with Jessica Respess. . . .

                                       . . .

               17. In 2007, the Plaintiff . . . move[ed] to
               Kansas[.].

                                       . . .
                    -11-


30. After the revelations of August 4, 2005
to the Plaintiff by the Defendant, [law
enforcement authorities] . . . began a
criminal investigation of the Defendant[.]

31. On August 18, 2005, the Defendant made a
voluntary statement to Investigators . . .
regarding his voluntary sexual acts with his
minor daughter, Jessica.

32. Said voluntary statement, which was . .
. acknowledged to be true and accurate
during his testimony by the Defendant is
incorporated herein[.]

                    . . .

34. In March of 2002 . . . Defendant slept
in the same bed with Jessica who . . . [was]
14 years of age. . . . Between February 2003
and August 2004, the Defendant touched
Jessica on her bare breasts many times,
kissed Jessica’s breasts on occasion, and
rubbed   Jessica’s   vaginal  area   numerous
times. The Defendant estimates that he put
his finger inside of Jessica’s vagina and
kissed   her   breasts   on  at   least   ten
occasions.

35. Between August 2004 and August 18, 2005,
the Defendant touched Jessica’s breast more
than ten times, rubbed her vaginal area ten
to twelve times, inserted his finger inside
of Jessica’s vaginal area ten or twelve
times, and kissed her bare breasts three or
more times.

36. The Defendant allowed or caused Jessica
to have an orgasm while riding straddled on
top of him a number of times.

37. The Defendant was charged with multiple
sex offenses and indecedent liberties with a
minor child in October of 2005 in Beaufort
County.
                    -12-


                   . . .

43. The Defendant was ordered by the
Department of Social Services as conditions
of being able to visit with his children not
to be alone with the children out of the
presence of the Plaintiff, not to kiss the
children on the lips, not to allow them to
sit on his lap . . . [and] not to otherwise
engage any type of physical touching or
activity that could be determined to be
sexual grooming. During the year of 2006,
the Defendant . . . engaged in these
prohibited activities.

                   . . .

45. Amanda Respess, who is now 18 years of
age but is still in high school, testified
as did her younger sister, Allysa. Both of
these individuals gave forthright testimony
which is highly creditable.

                   . . .

47. Based upon the testimony of Amanda
Respess and Allysa Respess, which the Court
finds to be creditable, the Court determines
that the Defendant engaged in the following
behaviors:

A. Would rub their chest to awaken them in
the morning, although, they were of an age
to have developed breasts.

B. Would rub lotion on their backs and their
naked buttocks under the pretense of making
sure their skin was soft.

C. Would spend[] hours combing their hair
just as he had previously done with Jessica.

D. After the Defendant was separated from
the home in August of 2005, he suggested to
Amanda that, since she was a minor and an
                    -13-
excellent shot, that an accidental shooting
of the Plaintiff, her mother, would be
appropriate. . . .

E. Saw both children at inappropriate times
and places in violation of the restrictions
placed on his visitation[.] . . .

F. Would take the minor child, Allysa, by
himself to a barn behind [her] residence . .
. and would threaten Allysa with physical
punishment . . . if she revealed that he had
taken her away from the family unit.

48. Amanda and Allysa Respess both testified
that they wanted no contact with the
Defendant, their father, of any type. . . .

                    . . .

52. After the Defendant was indicted on the
multiple sexual charges . . . three men who
belonged   to  the   same   church  as [the
Intervenors] and the Defendant, went to see
the Defendant at his trailer[.] . . .

53. In this meeting . . . the Defendant
stated that he “never molested anyone who
hadn’t reached puberty” and further stated
that if “he wished to live with his
daughter, it was no one else’s business.”

54. Between November 2005 and . . . July
2007, Judy Kilpatrick, a Department of
Social Services case worker, had . . .
conversations with the Defendant[, who] . .
. told [her] many disturbing things which
included but were not necessarily limited to
the following:

A. He had a love affair with Jessica and he
fell in love with her.

B. Jessica came to him and pursued him.
                    -14-
C. Jessica was a better wife than the
Plaintiff and that he would like to have a
wife like her.

D. The Plaintiff didn’t satisfy his sexual
needs and this was the reason he was
involved with Jessica.

E. The Defendant stated “[Alana] was the
problem” and the reason he engaged in sexual
behavior with his minor child, Jessica.

F. The Defendant referred to his daughter,
Jessica Respess, when she was a minor with
the nickname “Luscious Lips” and admitted
kissing her and his other children directly
on the lips and nibbling with his teeth on
Jessica’s lower lip.

55. The Defendant also . . . told the
Plaintiff . . . that the problems arising
out of his destructive behavior with his
daughter were the fault of the Plaintiff.

56. The Defendant, after he was charged with
criminal indecent liberties . . . left notes
with his daughter, Jessica, suggesting how
she might testify so that his behavior did
not look so bad.

                   . . .

58. The Defendant also, during the period of
time when he was not supposed to write to or
communicate with his minor children, sent
messages to the minor children[.] . . .

59. The Plaintiff introduced numerous hand-
written letters and notes from the Defendant
to his minor children indicating that he
still did not see anything wrong with what
he had done, which . . . were written and
delivered in violation of the restrictions
imposed   upon  communication   between   the
[defendant] and his children[, and] . . .
contained [inappropriate] language[.] . . .
                    -15-


60. On May 3, 2007, the Defendant entered
pleas of guilty to five counts of indecent
liberties with the minor child, Jessica
Respess.

61. . . . [In] File Number 05 CRS 54090, he
[pled] guilty to a Class F, Level 1 Felony
and was sentenced to . . . [16 to 24] months
of an active sentence suspended for thirty
six months of supervised probation upon the
condition   that   he  register  as  a   sex
offender, submit to electronic monitoring,
have supervised visitation only with his
children, and serve a four month active
sentence in jail. This sentence expired
December 29, 2009.

62. . . . [In] File Number 07 CRS 1209 in
Count 1, he [pled] guilty to the charge of
indecent liberties . . . [and received the
same sentence as in File No. 54090,] to run
at the expiration of the 05 CRS 54090 and
which sentence was suspended on the same
terms and conditions as the sentence handed
down in O5 CRS 54090. . . . [T]his sentence
would expire on August 28, 2011.

63.   In  this   same   criminal  case,   the
Defendant [pled] guilty to a second count of
indecent liberties . . . and [received] an
identical sentence . . . [that] would run at
the expiration of the active sentence in
Count 1 and . . . expire on April 27, 2013.

64.   In  this   same   criminal case,  the
Defendant [pled] guilty to a third count of
indecent liberties . . . and was sentenced
to an identical sentence as in the first
count . . . [to] run at the expiration of
the active sentence in Count 2 and . . .
expire on December 27, 2015.

65.   In  this   same  criminal   case,  the
Defendant [pled] guilty to a fourth count of
indecent liberties . . . and was sentenced
                    -16-
to an identical sentence as in the first
count . . . [to] run at the expiration of
the active sentence in Count 3 and . . .
expire on April 26, 2017.

66.   If   the   Defendant   were   to  have
unsupervised visitation or custody as he
sought in his counterclaim, he would be in
violation of the terms of the Superior Court
Order suspending his active sentences.

67. As a condition of the sentence imposed
in . . . file number 05 CRS 54090, the
Defendant served an active prison sentence .
. . from May 2007 through December 2007.

                   . . .

71. Amanda Respess, having a date of birth
of May 25, 1993 . . . [has] health problems
as she has developed Neurofibromatosis,
which is a disease which affects the nerve
endings in the brain[.] . . .

                   . . .

75. Allysa Respess . . . is a very mature 13
year old girl who testified creditably in
Court. . . .

                   . . .

77. The minor child, Noah, is in the fourth
(4th) grade. He is very energetic and enjoys
. . . scholastic and community activities[.]

                   . . .

80.   The  three   minor  children,  Amanda,
Allysa, and Noah, are doing extraordinarily
well in Smith Center, Kansas, and their
environment should not be disturbed.

81. The Plaintiff took the children to
family counseling . . . with Cyndee Fintel
who spoke to the Court’s expert, Dr. Harold
                     -17-
May, and recommended that there be no
visitation between the minor children and
the Defendant.

                    . . .

85. Dr. Harold May, Ph.D., of the Carolina
Center . . . testified as the Court's
appointed expert.

                    . . .

89. Dr. May has not seen the minor children
in over three years and six months as of the
date of this hearing.

                    . . .

91. The present therapist . . . for the
Defendant is Michael Doughtie, who . . .
testified that the Defendant . . . viewed
Jessica more as a wife than as a daughter[,
and that] . . . the sexual abuse of Jessica
had begun at least in 1998.

92. Mr. Doughtie also testified creditably
that as recently as June of 2010, the
Defendant expressed concerns about “Jessica
getting married” and that the Defendant was
“losing her.” These remarks were further
evidence that the Defendant had made Jessica
Respess, in his mind, both a mother and a
wife figure.

93. These comments made to Mr. Doughtie
combined with the Defendant’s other actions
such as grooming the minor children, Amanda
and   Allysa,  are    creditable   and   strong
evidence   indicating    that  the    Defendant
should never have any contact with his three
younger children.

94. The Court rejects the suggestions of Dr.
May that the children should have any
contact with the Defendant as it is not in
the children’s best interest so to do.
                                     -18-


                                     . . .

              125. The Defendant engaged in a prolonged,
              deliberate, and willful course of sexually
              abusing Jessica Respess.

                                     . . .

              146. As a further mixed finding of fact and
              conclusion of law, the Court concludes that
              the Defendant’s . . . sexual molestation of
              his oldest daughter over a period of not
              less than five (5) years, his refusal to
              accept responsibility for it, his continued
              obsession with his minor daughter[,] . . .
              his grooming behaviors to his two youngest
              daughters, the threats he made to his
              youngest daughter[], and his refusal to
              accept ultimate responsibility make him a
              totally   inappropriate   person   to   have
              visitation or custodial relationships of any
              type with his minor children, and the Court
              finds as a mixed finding of fact and
              conclusion of law that it would be actually
              adverse to any good interest of the minor
              children for the Defendant to have any
              contact whatsoever, and the Court must be
              vigilant in preventing the same.

We hold that the trial court made the finding required by N.C.

Gen. Stat. § 50-13.5(i) that it was not in the best interests of

the minor children that defendant have visitation. This finding

was supported by other, unchallenged, findings, and the trial

court did not err by denying visitation to defendant.

       In seeking to persuade us to reach a contrary conclusion,

defendant relies primarily on the case of Moore v. Moore, 160

N.C.   App.    569,   587   S.E.2d   74   (2003),   which   he   contends   is
                                                   -19-
“controlling” and requires us to reverse the trial court. After

careful review, we conclude that Moore is not dispositive of

this issue.

       Moore arose from a custody dispute between the divorced

parents         of    a   minor          child.    The       plaintiff-father’s           visitation

rights were suspended after the child disclosed sexual contact

between the plaintiff and the child. The trial court denied the

plaintiff’s motion to reinstate visitation and found that it

would      not       be   in       the    child’s       best    interests      for        plaintiff’s

visitation to be reinstated. Moore, 160 N.C. App. at 571, 587

S.E.2d at 75. On appeal, this Court reversed the trial court,

based      on    application             of   a   new    standard      for     a    trial    court’s

denial of visitation rights, and held for the first time that

(1)    a    trial         court’s         denial    of       visitation      is     tantamount     to

termination of parental rights, and therefore requires the trial

court      to    apply       the     “clear,       cogent,       and    convincing”          evidence

standard applicable to termination cases; (2) to comply with

N.C.    Gen.         Stat.     §    50-13.5(i),          a    trial    court       must    apply   the

standard applicable to a custody dispute between a parent and a

non-parent, and may not apply the best interests of the child

standard absent a written finding that the parent was unfit or

had engaged in conduct inconsistent with his protected status as

a parent; and (3) the trial court must state that these findings
                                    -20-
were based on clear, cogent, and convincing evidence. Id. at

573-74, 584 S.E.2d at 76.

       In this case, the trial court found that visitation between

defendant and the minor children was not in the children’s best

interest, but did not find that defendant was unfit or that his

conduct was inconsistent with his protected parental status, and

did not state that its decision to deny visitation was based on

clear, cogent, and convincing evidence. Defendant argues that

the trial court’s ruling did not comply with the dictates of

Moore. However, we conclude that the standard articulated in

Moore directly conflicts with prior holdings of this Court and

our Supreme Court and therefore does not control our decision in

the instant case.

       “According to well-established law, ‘[w]here a panel of the

Court    of   Appeals   has   decided     the   same   issue,   albeit    in   a

different case, a subsequent panel of the same court is bound by

that    precedent,   unless    it   has   been   overturned     by   a   higher

court.’” State v. Perry, __ N.C. App. __, __, 750 S.E.2d 521,

534 (quoting In re Appeal of Civil Penalty, 324 N.C. 373, 384,

379 S.E.2d 30, 37 (1989)), disc. review denied, __ N.C. __, 749

S.E.2d 852 (2013). Thus, as a general rule, we are bound by

prior opinions of this Court.
                                   -21-
     However, this Court has no authority to reverse existing

Supreme Court precedent. See Rogerson v. Fitzpatrick, 121 N.C.

App. 728, 732, 468 S.E.2d 447, 450 (1996) (“It is elementary

that this Court is bound by holdings of the Supreme Court [of

North Carolina]”) (citation omitted), and Cannon v. Miller, 313

N.C. 324, 327 S.E.2d 888 (1985) (the Court of Appeals lacks

authority to overrule decisions of the Supreme Court of North

Carolina and has a “responsibility to follow those decisions,

until otherwise ordered by the Supreme Court”). “Further, our

Supreme Court has clarified that, where there is a conflicting

line of cases, a panel of this Court should follow the older of

those two lines.” State v. Gardner, __ N.C. App. __, __, 736

S.E.2d 826, 832 (2013) (citing In re R.T.W., 359 N.C. 539, 542

n.3, 614 S.E.2d 489, 491 n.3 (2005), superseded by statute on

other grounds as recognized in In re M.I.W., 365 N.C. 374, 376,

722 S.E.2d 469, 472, rehearing denied, 365 N.C. 568, 724 S.E.2d

512 (2012)).

     As discussed above, numerous cases from both this Court and

our Supreme Court have long held that issues of child custody

and visitation are determined by the best interest of the child,

based upon the preponderance of the evidence. In addition, this

Court has consistently interpreted N.C. Gen. Stat. § 50-13.5(i)

as   written,   without   adding    additional   requirements   to   the
                                          -22-
statute’s text or deviating from the general rules governing

child custody. The holding of Moore diverged sharply from this

controlling precedent in significant respects.

      First, Moore directed trial courts to apply to a custody

dispute between a child’s parents the standard applicable to a

dispute     between    a    parent    and    a     non-parent.       In   Petersen   v.

Rogers, 337 N.C. 397, 403-04, 445 S.E.2d 901, 905 (1994), our

Supreme Court held that, in a custody dispute between a child’s

natural parent and a non-parent, “absent a finding that parents

(i)   are   unfit     or    (ii)   have     neglected    the     welfare     of   their

children,     the     constitutionally-protected             paramount      right    of

parents to custody, care, and control of their children must

prevail.” However, in Owenby, 357 N.C. at 145, 579 S.E.2d at

266-67,     which     was   decided       before    Moore,     our    Supreme     Court

explicitly ruled that Petersen was inapplicable to a custody

dispute between parents:

             We acknowledged the importance of this
             liberty interest [of parents] nearly a
             decade ago when this Court held: “absent a
             finding that parents (i) are unfit or (ii)
             have   neglected   the   welfare    of   their
             children,   the  constitutionally    protected
             paramount right of parents to custody, care,
             and control of their children must prevail.”
             . . . Therefore, unless a natural parent’s
             conduct has been inconsistent with his or
             her   constitutionally    protected    status,
             application of the “best interest of the
             child” standard in a custody dispute with a
             nonparent offends the Due Process Clause of
                                   -23-
            the United States Constitution. Furthermore,
            the protected right is irrelevant in a
            custody   proceeding  between  two   natural
            parents, whether biological or adoptive, or
            between two parties who are not natural
            parents. In such instances, the trial court
            must determine custody using the “best
            interest of the child” test.

(emphasis   added)    (quoting   Petersen,   337   N.C.    at   403-04,   445

S.E.2d at 905, and citing Price v. Howard, 346 N.C. 68, 78-79,

484 S.E.2d 528, 534 (1997) (internal citation omitted), Quilloin

v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 520, 98 S. Ct.

549 (1978), and Adams v. Tessener, 354 N.C. 57, 61, 550 S.E.2d

499, 502 (2001)). Moore’s holding that the Petersen presumption

applies to a trial court’s decision to deny visitation rights to

a non-custodial parent contradicts our Supreme Court’s holding

that Petersen is “irrelevant” to a dispute between parents and

that   “[i]n   such   instances,   the    trial    court   must   determine

custody using the ‘best interest of the child’ test.” Id.

       Moore also failed to state a substantive or precedential

basis for its holding that an order denying visitation was the

functional equivalent of the termination of parental rights, and

therefore required a trial court to apply the               standards for

termination proceedings. Our jurisprudence has long recognized

significant differences between a child custody order, which is

subject to modification upon a showing of changed circumstances,

and orders for adoption or for termination of parental rights,
                                      -24-
which are permanent. See, e.g., Stanback v. Stanback, 287 N.C.

448, 456, 215 S.E.2d 30, 36 (1975) (“A judicial decree in a

child custody and support matter is subject to alteration upon a

change of circumstances affecting the welfare of the child and,

therefore, is not final in nature.”) (citations omitted), and

Owenby, 357 N.C. at 145, 579 S.E.2d at 267 (“[A] termination of

parental   rights     order   completely      and   permanently    severs   all

rights and obligations of the parent to the child and the child

to the parent[.]”) (citation omitted).

      We also note that in In re T.K., D.K., T.K., & J.K., 171

N.C. App. 35, 613 S.E.2d 739, aff’d 360 N.C. 163, 622 S.E.2d 494

(2005), we affirmed a trial court’s permanency planning order,

holding that the trial court properly made findings as to the

best interest of the children. Judge Tyson dissented in part,

and   argued   that   the     trial   court   had    failed   to   follow   the

standards set out in Moore, that denial of visitation rights

“effectively terminated respondent’s parental rights,” T.K., 171

N.C. App. at 42, 613 S.E.2d at 743, and that the “trial court

erred by denying respondent all visitation rights . . . without

finding her to be unfit or engaging in conduct inconsistent with

her parental rights. Absent proper findings supported by clear,

cogent, and convincing evidence, the trial court’s conclusions

of law are erroneous[.]” Id. at 44, 613 S.E.2d at 744-45 (citing
                                     -25-
Moore). Our Supreme Court rejected this opportunity to ratify or

adopt the holding of Moore, and affirmed the majority opinion.

      Prior    to    the     decision      in    Moore,   binding   precedent

consistently held that (1) the standard in a custody dispute

between a child’s parents is the best interest of the child; (2)

the   applicable    burden    of   proof    is   the   preponderance    of   the

evidence;     (3)   the    principles   that     govern   a   custody   dispute

between a parent and a non-parent are irrelevant to a custody

action between parents; and (4) a trial court complies with N.C.

Gen. Stat. § 50-13.5(i) if it makes the finding set out in the

statute. Moore does not acknowledge these cases or articulate a

basis on which to distinguish it from earlier cases. We conclude

that Moore does not control the outcome of this case, and that

defendant is not entitled to relief based on Moore.

      Defendant also argues that the trial court’s finding that

visitation between defendant and the minors would not be in the

children’s best interest is not supported by its other findings.

We reject this argument and note the trial court’s extensive

findings, quoted above. We conclude that the trial court did not

commit reversible error by denying defendant visitation and that

the trial court’s ruling in this regard should be affirmed.

                                III. Child Support
                                       -26-
       In his next argument, defendant contends that the trial

court erred by (1) calculating retroactive child support based

upon    the   child   support    guidelines,    rather     than   evidence    of

plaintiff’s       actual    expenditures;      (2)    applying       the    2011

guidelines to his retroactive child support obligation, rather

than the 2006 guidelines; (3) imputing an amount of income to

him that was       not supported by proper findings; (4) awarding

plaintiff     a   vehicle   without    determining    its    value;   and    (5)

finding that defendant had willfully refused to pay any child

support without excuse or explanation. We agree in part.

                  A. Calculation of Retroactive Child Support

       “‘Child support awarded prior to the time a party files a

complaint is properly classified as retroactive child support. .

. . Child support awarded, however, from the time a party files

a complaint for child support to the date of trial is . . .

[termed] prospective child support[.]’” Carson v. Carson, 199

N.C. App. 101, 105, 680 S.E.2d 885, 888 (2009) (quoting Taylor

v. Taylor, 118 N.C. App. 356, 361, 455 S.E.2d 442, 446 (1995),

rev’d   on    other   grounds,   343    N.C.   50,   468    S.E.2d   33    (1996)

(internal citations omitted)).

       N.C. Gen. Stat. § 50-13.4(c) states that the trial “court

shall determine the amount of child support payments by applying

the presumptive guidelines established pursuant to subsection
                                               -27-
(c1) of this section.” The guidelines in effect at the time of

this hearing state that

               [i]n cases involving a parent’s obligation
               to support his or her child for a period
               before a child support action was filed
               (i.e.,    cases     involving    claims    for
               “retroactive    child   support”   or   “prior
               maintenance”), a court may determine the
               amount of the parent’s obligation (a) by
               determining the amount of support that would
               have been required had the guidelines been
               applied at the beginning of the time period
               for which support is being sought, or (b)
               based on the parent’s fair share of actual
               expenditures for the child’s care. . . .

Standing alone, this provision would allow a trial court to

calculate       retroactive           child       support      by     reference     to     the

guidelines. However, in Robinson v. Robinson, 210 N.C. App. 319,

333, 707 S.E.2d 785, 795 (2011), we held that “‘[r]etroactive

child support payments are only recoverable for amounts actually

expended       on       the   child’s     behalf      during   the     relevant    period.’

Therefore,          a    party      seeking       retroactive       child   support      must

present sufficient evidence of past expenditures made on behalf

of     the     child,         and    evidence       that    such      expenditures       were

reasonably necessary.” (quoting Rawls v. Rawls, 94 N.C. App.

670,    675,    381       S.E.2d     179,     182    (1989),    and    citing     Savani    v.

Savani, 102 N.C. App. 496, 501, 403 S.E.2d 900, 903 (1991)).

       The     rule       stated     in     the     Guidelines      conflicts     with     the

holding of Robinson. We have held that:
                                          -28-
              Nowhere in the statute does the legislature
              authorize   the     Conference     to   override
              existing   case    law    in   formulating   the
              Guidelines. Although the Guidelines are
              formulated   by   the    Conference   of   Chief
              District   Judges     pursuant    to   authority
              granted them by the legislature in N.C. Gen.
              Stat. § 50-13.4(c1), the Conference is not a
              legislative body, and the Guidelines are not
              codified in the North Carolina General
              Statutes. . . . Therefore, we find that if
              the trial court follows the Guidelines in
              awarding retroactive child support in cases
              involving       unincorporated        separation
              agreements, instead of controlling case law,
              the court is in error.

Carson, 199 N.C. App. at 107, 680 S.E.2d at 889. Carson and

Robinson,      construed         together,       require       that       an     award    of

retroactive      child       support       be     supported          by     evidence       of

plaintiff’s      actual      expenditures        for    the    children        during     the

period for which she seeks retroactive child support.

       Plaintiff acknowledges the cases cited above, but argues

that   “the    Court    of    Appeals     was    mistaken       in    its      decision   in

Robinson.” However, we “are bound by opinions of prior panels of

this   Court    deciding      the   same     issue.”      Easton      v.       J.D.   Denson

Mowing,   173    N.C.     App.    439,    441,    620    S.E.2d       201,      202   (2005)

(citing     Civil      Penalty).     We      conclude         that    this       issue    is

controlled by Robinson and Carson, and that the trial court’s

award of retroactive child support must be reversed and remanded

for findings on plaintiff’s actual expenditures for the children

during the relevant time period.
                                             -29-
                         B. Application of 2011 Guidelines

       Next,    defendant       argues       that   the       trial       court    erred    by

calculating his retroactive child support obligation using the

2011, as opposed to the 2006, guidelines. However, as we have

held    that    the    trial    court    erred      by    using       the   guidelines       to

calculate      retroactive       child       support,         we   do     not     reach    this

argument.

                                C. Imputation of Income

       Defendant       argues    next    that       the       trial       court    erred    in

determining the amount of income it imputed to defendant. The

trial    court        imputed     to     defendant            an     annual       income    of

approximately $50,000. Defendant argues that this amount was not

supported by the trial court’s other findings or the evidence.

We   agree     and    remand    for    the    trial      court       to   make    additional

findings as to defendant’s earning ability.

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

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

is made. A party’s capacity to earn may, however, be the basis

for an award where the party ‘deliberately acted in disregard of

his obligation to provide support.’ Before earning capacity may

be used as the basis of an award, there must be a showing that

the actions reducing the party’s income were taken in bad faith

to avoid family responsibilities. . . . [T]his showing may be
                                           -30-
met by a sufficient degree of indifference to the needs of a

parent’s children.” McKyer v. McKyer, 179 N.C. App. 132, 146,

632 S.E.2d 828, 836 (2006) (citing Atwell v. Atwell, 74 N.C.

App.   231,    235,    328   S.E.2d      47,     50    (1985),   quoting      Sharpe   v.

Nobles,    127      N.C.   App.   705,     708,    493   S.E.2d      288,    290   (1997)

(internal citation omitted), and citing Bowers v. Bowers, 141

N.C. App. 729, 732, 541 S.E.2d 508, 510 (2001)). In this case,

defendant does not challenge the trial court’s findings as to

the effect of his intentional “course of sexually abusing” his

daughter and the resultant loss of the licenses he needed to

continue      his    previous     career    as     a   stockbroker     and    insurance

agent, or the trial court’s decision to impute income to him.

What defendant does argue is that the trial court’s ruling on

the amount of income imputed to him was not supported by its

findings.      The    court’s     findings        on   the   issue    of    defendant’s

earning capacity include the following:

                                         . . .

              109. The Defendant earned a gross sum of One
              . . . ($100,000.00) in the year 2005 and if
              he had continued to [sell] insurance and be
              licensed as a . . . Stock Broker, he could
              have earned not less than . . . ($50,000.00)
              per year each year since that time.

                                         . . .

              115. The Defendant has no living expenses as
              his wife, a banker with BB&T, apparently
              provides for him. . . .
                                 -31-


          116. The Defendant testified that he could
          not   secure   employment   in   his   former
          employment as an insurance salesman or stock
          broker because of his felony convictions.

          117. The Defendant reported Zero income tax
          in 2009 despite apparently working as a
          farrier and earning a gross income of . . .
          ($8,000.00). He also used business expenses
          deductions in 2009 for a portion of his home
          which he admitted that he did not own or pay
          for.

          118. In 2010, he indicated that he had lost
          . . . ($10,086,00) in income from his
          employment as a farrier, but this included .
          . . ($15,628.00) in car and truck expenses
          and . . . ($7,480.00) in supplies.

          119. The Defendant's tax returns for 2009
          and 2010 were not creditable evidence of his
          earning capacity.

                                 . . .

          124. In the present case, before his arrest
          and conviction, the Defendant father was
          employed as an insurance salesman and stock
          broker, and capable of earning a gross
          salary of at least . . . ($100,000.00) per
          year, a net salary of . . . ($50,000.00), or
          a monthly salary of . . . ($4,167.00) per
          month at a minimum.

                                 . . .

          132. . . . Defendant’s income from all
          sources is imputed to be . . . ($4,167.00)
          per month.

    The   court   found   that   defendant   had   previously   earned

$100,000 and imputed a current income of approximately $50,000,

or half of his previous salary. However, the findings do not
                                    -32-
establish any basis for the court’s imputation in 2011 of half

of what he earned in 2005, as opposed to some other fraction or

amount. “[T]he findings of fact on this issue are insufficient

to support the trial court’s determination of                the amount of

income that should be imputed to [defendant]. A trial court must

‘make sufficient findings of fact and conclusions of law to

allow the reviewing court to determine whether a judgment, and

the   legal    conclusions   that   underlie     it,   represent   a   correct

application of the law.’” McKyer, 179 N.C. App. at 147-48, 632

S.E.2d at 837 (quoting Spicer v. Spicer, 168 N.C. App. 283, 287,

607 S.E.2d 678, 682 (2005)) (emphasis in original). We conclude

that the court’s determination that it was appropriate to impute

income to defendant should be upheld, but that the order must be

remanded for findings detailing how the trial court arrives at

the amount of income to be imputed to defendant.

                     D. Transfer of Vehicle to Plaintiff

      Defendant    argues    next   that   the    trial    court   erred   by

awarding plaintiff a 1997 Ford Expedition as an “additional form

of child support” without determining the vehicle’s value and

deducting it from the child support award. We disagree.

      Defendant cites N.C. Gen. Stat. § 50-13.4(e):

              (e) Payment for the support of a minor child
              shall be paid by lump sum payment, periodic
              payments, or    by transfer of title or
              possession of personal property of any
                                      -33-
             interest therein, or a security interest in
             or possession of real property, as the court
             may order. The court may order the transfer
             of title to real property solely owned by
             the obligor in payment of arrearages of
             child support so long as the net value of
             the   interest   in    the   property  being
             transferred does not exceed the amount of
             the arrearage being satisfied. . . .

Defendant notes that if the trial court orders the transfer of

real property in payment of child support arrearages it must

determine the property’s value. He argues that an “analogous

situation    exists    here,”    that   the   trial    court   “should      have

determined the Vehicle’s value and deducted that amount from the

total child support award” and that the court’s “failure to do

so constitutes error.” However, N.C. Gen. Stat. § 50-13.4(e)

does   not   require   the    trial   court   to   determine   the   value   of

personal property applied towards child support arrearage and

defendant does not offer any support for his contention that

such a transfer is “analogous” to a transfer of real property or

any    authority   for   us     to    supplement    the   statute    with    an

additional requirement not found therein.

       And, defendant does not dispute the trial court’s finding

of fact that:

             144. The only vehicle the Plaintiff [had]
             available to her is a 1997 Ford Expedition
             until May 2010 which has 285,000 miles on it
             as of the date of this hearing which she has
             had since the parties’ separation although
             this   vehicle  has   been  titled   to  the
                                  -34-
            Defendant. She is seeking this vehicle as an
            additional form of child support from the
            Defendant. The Defendant has agreed for said
            in kind child support to be also paid since
            the Plaintiff has maintained all expenses of
            this vehicle. The Defendant will sign over
            title of said vehicle to the Plaintiff on or
            before June 15, 2012. . . .

Thus, defendant concedes that (1) the vehicle was fifteen years

old and had 285,000 miles on it at the time of the hearing; (2)

although it had been titled in his name, plaintiff had assumed

responsibility for “all expenses” of the vehicle; and (3) he

consented to transfer of the vehicle as an additional form of

child support.

    “[T]o obtain relief on appeal, an appellant must not only

show error, but that appellant must also show that the error was

material and prejudicial, amounting to denial of a substantial

right that will likely affect the outcome of an action.” Starco,

Inc. v. AMG Bonding & Ins. Servs., 124 N.C. App. 332, 335, 477

S.E.2d 211, 214 (1996) (citation omitted). Defendant does not

assert   any   prejudice   from   the    court’s   alleged   error.    In

addition,   defendant   does   not   dispute   that   he   consented   to

transfer the vehicle to plaintiff, a finding supported by his

testimony. Given the defendant’s failure to articulate a legal

basis for interpreting N.C. Gen. Stat. § 50-13.4(e) in a manner

not supported by the statute’s text, any prejudice arising from

the court’s alleged error, or any reason to grant relief on the
                                            -35-
basis of a transfer to which he consented, we decline to hold

that   the    court     erred       by    transferring      the     1997    vehicle   to

plaintiff without making a specific finding as to its value.

            E. Failure to Pay Any Child Support After August 2006

       In   defendant’s       next       argument,   he    argues    that    the   trial

court erred by finding “that, although [he] has resources to pay

some child support, he [had] ‘willfully failed to pay any child

support without excuse.’” Defendant does not dispute that he

failed to pay any child support after August 2006, but argues

that he presented evidence of his inability to find employment.

However,     the   court      was    not     required      to   believe     defendant’s

testimony. We hold that this finding was supported by evidence

in the record.

                                    III. Attorney’s Fees

       In his final argument, defendant contends that the trial

court erred by awarding attorney’s fees to plaintiff. Defendant

argues that the trial court erred in finding that defendant had

the    ability     to   pay     attorney’s         fees,    basing    its    award    of

attorney’s fees in part on its finding that defendant had acted

in bad faith, and finding that plaintiff had insufficient means

to pay attorney’s fees. We agree in part.

                                 1. Standard of Review
                                        -36-
       N.C.   Gen.     Stat.    §    50-13.6   (2013)      states   that   in    any

proceeding for child custody or support:

              [T]he court may in its discretion order
              payment of reasonable attorney’s fees to an
              interested party acting in good faith who
              has insufficient means to defray the expense
              of the suit. Before ordering payment of a
              fee in a support action, the court must find
              as a fact that the party ordered to furnish
              support has refused to provide support which
              is adequate under the circumstances existing
              at the time of the institution of the action
              or proceeding[.] . . .

       “To award attorney's fees in an action for custody and

support,

              [t]he   trial  court   must   make  specific
              findings of fact relevant to: (1) The
              movant’s ability to defray the cost of the
              suit, specifically that the movant is unable
              to employ counsel so that he may proceed to
              meet the other litigant in the suit; (2)
              whether the movant has initiated the action
              in good faith; (3) the attorney’s skill; (4)
              the attorney’s hourly rate charged; and (5)
              the nature and extent of the legal services
              performed.

Hennessey v. Duckworth,__ N.C. App. __, __, 752 S.E.2d 194, __

(2013) (quoting Cameron v. Cameron, 94 N.C. App. 168, 172, 380

S.E.2d 121, 124 (1989) (citations omitted). Pursuant to N.C.

Gen. Stat. § 50-13.6, in a custody action, a trial court “has

the discretion to award attorney’s fees to an interested party

when   that    party    is     (1)   acting    in   good    faith   and    (2)   has

insufficient means to defray the expense of the suit. The facts
                                     -37-
required by the statute must be alleged and proved[.] . . .

Whether these statutory requirements have been met is a question

of law, reviewable on appeal.” Hudson v. Hudson, 299 N.C. 465,

472, 263 S.E.2d 719, 723 (1980).

                                    2. Analysis

      The trial court made the following findings:

              1. This action for child custody was brought
              by the Plaintiff in good faith and she is
              without sufficient funds to defray the
              expenses of this custody lawsuit including
              all of her attorneys’ fees.

              2. As this is a proceeding for child support
              of the parties’ three minor children, the
              Plaintiff may be entitled to the entry of an
              Order requiring the [defendant] to pay some
              or all of her reasonable attorneys’ fees
              pursuant to N.C.G.S. Section 50-13.6.

              3. The Defendant, who is the party who is
              going to be ordered to furnish support, has
              refused to provide support of any type, and
              has refused to provide support which is
              adequate under the circumstances existing at
              the time of the institution of this action
              or proceeding.

      Defendant does not dispute that these findings meet the

statutory requirements discussed above. He does not challenge

the   trial    court’s   determination      of    a   reasonable   amount   of

attorney’s     fees,   which   we   affirm.      However,   defendant   raises

other arguments about the court’s award of attorney’s fees to

plaintiff.
                                       -38-
       Defendant    argues     first   that     the   trial    court    erred   by

finding   that     he   “has   resources”     available   to     pay   attorney’s

fees. Defendant directs our attention to evidence he presented

tending to show that he faces economic challenges. However, the

trial court was not required to find his evidence credible. He

also argues that the trial court should not have considered the

fact   that   his   living     expenses   are    being    paid    by   his   wife,

because she has no legal obligation to support his children.

However, “where a party’s new spouse shares responsibility for

the party’s expenses and needs, it is proper for the court to

consider income received by the new spouse[.]” Harris v. Harris,

188 N.C. App. 477, 487, 656 S.E.2d 316, 321-22 (2008) (citing

Wyatt v. Wyatt, 35 N.C. App. 650, 651-52, 242 S.E.2d 180, 181

(1978).

       The underlying premise of this argument is that before it

could award attorney’s fees to plaintiff, the trial court had to

make findings about his ability to pay these fees. Defendant

cites no authority for this proposition and our Supreme Court

has held that “‘we do not believe that the determination of

whether a party has sufficient means to defray the necessary

expenses of the action requires a comparison of the relative

estates of the parties’” and “that N.C.G.S. § 50-13.6 does not

require the trial court to compare the relative estates of the
                                            -39-
parties[.]” Van Every v. McGuire, 348 N.C. 58, 59-60, 497 S.E.2d

689, 690 (1998) (quoting Taylor, 343 N.C. at 57, 468 S.E.2d at

37. We conclude that the trial court was not required to find

that   defendant         “had   resources”      available      in    order      to    award

attorney’s fees to plaintiff, making it unnecessary for us to

analyze the evidentiary support for this finding of fact.

       Defendant also argues that the trial court erred by basing

its award of attorney’s fees on his “bad faith in requesting

custody or visitation.” This argument lacks merit. In Finding

No. 145, the trial court stated that:

            145. Moreover, the Court, as a mixed finding
            of fact and conclusion of law, determines
            that the Defendant’s insistence upon a trial
            seeking   custody  or   visitation  of   his
            children and defending against the claims of
            his former wife, the Plaintiff, for the same
            and for her claims of child support are in
            bad faith, not well taken, and he has
            adequate resources available to him to
            reimburse her for some or all of her
            attorney’s fees.

Defendant     concedes          that    “this      Finding/Conclusion           was    not

included     in     the    findings         related   to   the       attorney’s       fees

award[.]” There is no evidence that the trial court’s award of

attorney’s        fees    to    plaintiff       was   “based        on”   its    passing

reference    to     bad     faith      in   this   finding.      Defendant       is    not

entitled to relief based upon this argument.
                                       -40-
      Defendant also challenges the evidentiary support for the

trial    court’s    finding     that   plaintiff     “is   without   sufficient

funds to defray the expenses of this custody lawsuit including

all     of   her   attorneys’    fees[.]”      The   trial   court   made   the

following findings regarding plaintiff’s income, expenses, and

estate:

                                       . . .

             102.   The  Plaintiff has   been  a  nurse
             registered by the State of North Carolina
             from 1987 through 2007, and has been a
             Registered Nurse in Kansas from 1999 until
             [the] present.

             103. The Plaintiff is presently employed
             with the Smith Center School District as the
             School Nurse. She also runs the concession
             stand to earn extra money. The Plaintiff's
             gross monthly earnings from all sources is .
             . . ($3,033.42). The Plaintiff has earned
             approximately . . . ($3,033.00) per month
             from all sources since August 2006.

             104. The Plaintiff paid a total of . . .
             ($7,740.70) in premiums for the three minor
             children’s, Amanda, Allysa, and Noah, health
             insurance coverage[.] . . .

             105. The children were approved for Health
             Wave coverage on October 26, 2009, so the
             Plaintiff could secure health insurance on
             her three minor children at no additional
             cost.

             106. The Plaintiff has sought to recover a
             portion of the out of pocket expenses paid
             by her . . . as a portion of the retroactive
             and   prospective  child   support  in   the
             percentage of the Plaintiff’s income to the
                                           -41-
                Defendant’s income as hereinafter determined
                and imputed by the Court.

                                           . . .

                132. The Plaintiff’s income from all sources
                is . . . ($3,033.00) per month[.]

      The       court’s     findings      are      sufficient       with    regards     to

plaintiff’s income. However, the trial court made no findings as

to   her    expenses       or    her     assets    and     estate.    We     remand    for

additional findings to support the trial court’s finding that

plaintiff had insufficient means to defray the cost of counsel.

                                           Conclusion

      We    affirm        the    trial    court’s     ruling       denying     defendant

visitation       with     the    minor     children,       its     determination       that

plaintiff was entitled to child support, its ruling that it was

proper to impute income to defendant, and its transfer of the

1997 vehicle to plaintiff. We reverse and remand the order with

regard     to    the    amount    of     retroactive       child    support    to     which

plaintiff may be entitled, the amount of income that may be

imputed     to    defendant,       and    for     additional       findings    regarding

plaintiff’s expenses as it pertains to her claim for attorney’s

fees.      In    its    discretion,       the      trial    court     may     take    such

additional evidence as it deems necessary.

      AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

      Judges STEPHENS and DAVIS concur.
