An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1451
                       NORTH CAROLINA COURT OF APPEALS
                             Filed:      19 August 2014
JULIA M. FOSS,
     Plaintiff

                                              Iredell County
      v.
                                              No. 05 CVD 2831

ROGER MILLER, JR.,
     Defendant


      Appeal by plaintiff from order entered 2 May 2013 by Judge

H. Thomas Church in Iredell County District Court.                  Heard in the

Court of Appeals 8 May 2014.


      Julia M. Foss, pro se.

      Pressly, Thomas         &   Conley,     P.A.,    by    Gary   Thomas,     for
      Defendant.


      ERVIN, Judge.


      Plaintiff     Julia    M.   Foss    appeals     from   an   order   awarding

custody of the parties’ children to Defendant Roger Miller, Jr.,

and establishing an amount of child support that Plaintiff was

required to pay to Defendant.             On appeal, Plaintiff argues that

the trial court erred by refusing to deviate from the child

support guidelines, by failing to consider evidence relating to

the difference between the cost of living in California and the
                                                 -2-
cost of living in North Carolina, and by failing to allow for

Plaintiff’s extraordinary expenses in calculating the amount of

child       support       that     she    owed     to       Defendant.            After      careful

consideration           of     Plaintiff’s       challenges          to    the    trial      court’s

order in light of the record and the applicable law, we conclude

that the trial court’s order should be affirmed in part and

reversed in part and that this case should be remanded to the

Iredell       County         District     Court        for     further          proceedings       not

inconsistent with this opinion.

                                   I. Factual Background

                                   A. Substantive Facts

       Plaintiff          and     Defendant      were       married        on    15    July     1995,

separated on 30 October 2004, and divorced on 11 January 2006.

The parties are the parents of two minor children, Aaron and

Martin.1           On     25    January    2005,        the     parties         entered      into    a

separation agreement which provided that they were to have joint

legal and physical custody of the children; that “[h]usband and

[w]ife       shall      equally        divide    all     day        care    expenses,         school

expenses          and   expenses        relating       to      the    needs       of   the      minor

children”;          and        that,   “[b]ased         upon     the       divisions       of     the

expenses, the reasonable needs of the minor children and the

fact       that    [h]usband       and    [w]ife       earn     a    comparable          wage,   the
       1
      “Aaron” and “Martin” are pseudonyms used                                     for    ease      of
reading and to protect the children’s privacy.
                                        -3-
parties agree that neither party shall be required to pay the

other child support.”            The parties’ separation agreement was

subsequently incorporated into the divorce judgment.

    In 2010, Plaintiff moved from North Carolina to California

and married her current husband, Raymond Foss.                 After moving to

California,       Plaintiff    saw    the   children   periodically     and   made

several trips to visit them in North Carolina.                 At one point in

2012, Plaintiff refused to return the children to North Carolina

after visiting with them in California, an action which required

Defendant to come to California for the purpose of retrieving

them.

                              B. Procedural History

    On 17 July 2012, Plaintiff filed a motion to modify the

existing child custody and support arrangements.                 On 13 August

2012, Defendant filed a response to Plaintiff’s motion and a

counter-motion for       child custody and support.              On 29 August

2012, Plaintiff voluntarily dismissed her modification motion.

On 19 November 2012, Plaintiff filed a new motion in which she

sought to have the existing custody and support arrangements

modified.     On 5 March 2013, Plaintiff filed a motion for child

support     and    a   motion    to    deviate    from   the    child    support

guidelines in the event that the trial court awarded custody to

Defendant.
                                        -4-
    In   early      2013,     Plaintiff’s     motions    came    on   for   hearing

before the trial court in Iredell County District Court.                      On 2

May 2013, the trial court entered an order denying Plaintiff’s

motion to deviate from the child support guidelines, granting

Defendant primary legal and physical custody of the children,

and ordering Plaintiff to pay child support to Defendant in the

amount of $1,033.00 per month.                Plaintiff noted an appeal to

this Court from the trial court’s order.

                      II. Substantive Legal Analysis

              A. Deviation from Child Support Guidelines

    In      her    first    challenge    to     the     trial    court’s    order,

Plaintiff    argues    that     the   trial   court     erred    by   refusing    to

deviate from the child support guidelines in calculating the

amount of support that she owed Defendant.                  More specifically,

Plaintiff argues that the trial court erroneously failed to make

findings of fact that addressed the children’s need for support

in the course of making its deviation decision.                         Plaintiff’s

argument has merit.

                              1. Standard of Review

    “Child support orders entered by a trial court are accorded

substantial       deference    by   appellate   courts     and    our    review   is

limited to a determination of whether there was a clear abuse of

discretion.”       Leary v. Leary, 152 N.C. App. 438, 441, 567 S.E.2d
                                      -5-
834, 837 (2002).       Similarly, “[a] trial court’s deviation from

the [child support] [g]uidelines is reviewed under an abuse of

discretion standard.”        Beamer v. Beamer, 169 N.C. App. 594, 597,

610 S.E.2d 220, 223 (2005).          “Under this standard of review, the

trial court’s ruling will be overturned only upon a showing that

it was so arbitrary that it could not have been the result of a

reasoned decision.”         Ludlam v. Miller, __ N.C. App. __, __, 739

S.E.2d 555, 558 (2013) (quoting Spicer v. Spicer, 168 N.C. App.

283, 287, 607 S.E.2d 678, 682 (2005)).             “The trial court must,

however, 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.”          Id. at __, 739 S.E.2d at 558.

               2. Sufficiency of Trial Court’s Findings

    “Child support is to be set 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.’”     Buncombe Cnty. ex rel. Blair v. Jackson, 138 N.C.

App. 284, 287, 531 S.E.2d 240, 243 (2000) (quoting N.C. Gen.

Stat. § 50-13.4(c)).          “Child support set consistent with the

Guidelines is conclusively presumed to be in such amount as to

meet the reasonable needs of the child and commensurate with the
                                         -6-
relative abilities of each parent to pay support.”                      Id. at 287,

531 S.E.2d at 243.

       “If the trial court imposes the presumptive amount of child

support under the Guidelines, it is not . . . required to take

any     evidence,   make     any   findings         of   fact,     or    enter    any

conclusions of law ‘relating to the reasonable needs of the

child for support and the relative ability of each parent to

[pay or] provide support.’”             Biggs v. Greer, 136 N.C. App. 294,

297, 524 S.E.2d 577, 581 (2000) (quoting Browne v. Browne, 101

N.C. App. 617, 624, 400 S.E.2d 736, 740 (1991)).                   “However, upon

a     party’s   request    that    the    trial     court      deviate     from   the

Guidelines . . . or the court’s decision on its own initiative

to deviate from the presumptive amounts . . . [,] the court must

hear evidence and find facts related to the reasonable needs of

the child for support and the parent’s ability to pay[.]”                         Id.

at 297, 524 S.E.2d at 581; Gowing v. Gowing, 111 N.C. App. 613,

618, 432 S.E.2d 911, 914 (1993)                (stating that        “[t]he second

paragraph of N.C. [Gen. Stat.] § 50–13.4(c) provides that[,]

when a request to deviate is made and such evidence is taken,

the court should hear the evidence and ‘find the facts relating

to    the   reasonable     needs   of    the   child     for     support    and   the

relative    ability   of    each   parent      to    provide     support’”).       In

making the required findings, “the trial court must consider
                                       -7-
‘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.’”               Beamer, 169

N.C. App. at 598, 610 S.E.2d at 224 (quoting State ex rel.

Fisher v. Lukinoff, 131 N.C. App. 642, 645, 507 S.E.2d 591, 594

(1998)).    As a result, given that Plaintiff requested the trial

court to deviate from the child support guidelines, the trial

court was required to “hear evidence and find facts related to

the reasonable needs of the child for support and the parent’s

ability to pay.”         Biggs, 136 N.C. App. at 297, 524 S.E.2d at

581.

       In its order, the trial court found as fact that:

           18.   The Defendant has a Bachelor of Arts
                 Degree in Accounting and works full
                 time at Inmar, Inc. as a computer
                 programmer. He currently has a monthly
                 gross income of $8,333.00.     He pays
                 health insurance premiums for the minor
                 children in the amount of $230.00 per
                 month.

           19.   The   Plaintiff   is   employed   as   a
                 Respiratory Therapy Instructor at San
                 Joaquin   Valley   College   in   Rancho
                 Cordova, California. She currently has
                 a monthly gross income of $6,265.00.

           20.   [Aaron]   attends  Mooresville  Middle
                 School and will begin Mooresville High
                 School next year. He is very active in
                      -8-
      sports, particularly baseball, where he
      participates in travel baseball.

21.   [Martin]       attends      Mooresville
      Intermediate School and will attend
      Mooresville Middle School next year.
      Both boys have attended schools in the
      Mooresville area since kindergarten and
      both are A/B students.

22.   The Court, outside the presence of the
      Plaintiff   and    Defendant    and   his
      counsel, interviewed the boys and both
      expressed the desire to remain in the
      primary custody of the Defendant. Both
      also stated that they would like to
      have   more   interaction    with   their
      mother.

23.   The Court would find that both the
      Plaintiff and the Defendant love their
      sons.   The Court would also find that
      it is in the best interest of the minor
      children   that  they  remain   in  the
      primary custody of the Defendant with
      the Plaintiff having secondary custody
      in the form of visitation as set out
      below.

24.   Both parties owe a duty of support for
      the minor children. As noted above the
      Plaintiff filed a Motion asking the
      Court to deviate from the child support
      guidelines.    The Court held a hearing
      and   heard   evidence  from  both  the
      Plaintiff and Defendant on Plaintiff’s
      motion.    After hearing this evidence
      the Court finds that the Plaintiff’s
      Motion to Deviate should be denied.
      Thus, the Court would find that the
      Plaintiff should begin paying the sum
      of $1033.00 per month as support for
      the two minor children. This sum being
      determined from the Worksheet A as
      submitted by the Defendant.
                                        -9-
            25.    The Custody and Support Order below is
                   in the best interest of the minor
                   children.

A careful examination of these findings establishes that the

trial   court     failed    to   make     specific   findings   regarding    the

reasonable needs of the children for support as required by N.C.

Gen. Stat. § 50–13.4(c).          Aside from the amount of the premiums

needed to ensure that the children had adequate health coverage,

the trial court made no specific findings concerning the amount

of expenses that needed to be incurred in order to meet the

children’s needs.      More specifically, the trial court’s findings

do   not   establish       the   amount    necessary    to   provide   for   the

children’s education, maintenance, or other expenses.                   As was

the case in Beamer, the trial court’s order, while addressing

the amount needed to provide the children with health insurance

coverage, was devoid of any               findings relating to     the amount

needed to ensure that the children’s educational, maintenance-

related, and other needs were met.                   As a result, the trial

court’s order did not contain sufficient findings of fact to

permit a proper determination of whether the trial court abused

its discretion in denying Plaintiff’s request for deviation from

the child support guidelines.             Beamer, 169 N.C. App. at 599, 610

S.E.2d at 224.
                                          -10-
     In seeking to persuade us to reach a different result,

Defendant     argues      that    the     trial    court’s     findings       of    fact

“reflect     the    evidence      presented       by   [Defendant]       as    to    the

expenses associated with the children’s needs, including basic

living   expenses,        transportation     to    school     and   sports     events,

healthcare and vacations.”              However, as the Supreme Court has

stated, “[i]t is not enough that there may be evidence in the

record    sufficient       to   support    findings      which   could      have    been

made[;] [instead,] [t]he trial court must itself determine what

pertinent facts are actually established by the evidence before

it[.]”     Beamer, 169 N.C. App. at 599, 610 S.E.2d at 224 (quoting

Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)).

Thus, the fact that the record contains evidence from which the

necessary findings could have been made does not absolve the

trial    court     from   the    responsibility        for   actually    making      the

required findings.

     As we have previously held, the “failure of the lower court

to   make    findings       regarding      the     reasonable       needs     of    the

child[ren] for support mandates remand for further findings of

fact.”      State v. McGuire, 174 N.C. App. 347, 351, 620 S.E.2d

899, 902 (2005); Spicer, 168 N.C. App. at 294-95, 607 S.E.2d at

686 (holding that the case before the Court should be remanded

to the trial court for the making of additional findings of fact
                                       -11-
given   the     trial    court’s     failure     to     make    specific    findings

concerning the reasonable needs of the child); Coble, 300 N.C.

at 713, 268 S.E.2d          at 189     (holding that,           without sufficient

factual findings regarding the amount of support necessary to

meet the reasonable needs of the child, an appellate court lacks

the ability to determine whether the trial court’s order has

adequate evidentiary support).             As a result, the trial court’s

order must be reversed and this case must be remanded to the

Iredell   County    District       Court   for    the    entry    of   a   new   order

addressing Plaintiff’s request for a deviation from the child

support   guidelines       that     contains     adequate       findings    of    fact

concerning the reasonable needs of the minor children.

                        B. Cost of Living Differential

    Secondly, Plaintiff contends that the trial court abused

its discretion by failing to consider the difference between the

cost of living in California and the cost of living in North

Carolina.     More specifically, Plaintiff contends that the trial

court erred by sustaining Defendant’s objection to the admission

of evidence that she contends would have reflected this cost of

living differential.        Plaintiff’s argument lacks merit.

    At    the    hearing     held    before      the    trial    court,    Plaintiff

attempted to introduce a document comparing the cost of living

in California and the cost of living in North Carolina.                            The
                                         -12-
trial court sustained Defendant’s objection to the admission of

this evidence.           In her brief, Plaintiff states that she was

prepared     to    elicit      evidence    that     the    cost        of   living    in

California was substantially higher than the cost of living in

North Carolina so that her income had less value in California

than would have been the case in the event that she lived in

North   Carolina.           Although   “the     significance      of    the   excluded

evidence must be made to appear in the record” “[i]n order for a

party   to   preserve        for   appellate     review    [a    challenge      to   the

exclusion of evidence],” State v. Jacobs, 363 N.C. 815, 818, 689

S.E.2d 859, 861 (2010) (citation, quotation marks, and brackets

omitted), Plaintiff does not appear to have made an offer of

proof or taken any other action                   sufficient to establish the

nature of the evidence that she sought to have the trial court

consider.         As    a   result,    since     Plaintiff      has     not   properly

preserved her challenge to the exclusion of this evidence for

appellate review, she is not entitled to relief from the trial

court’s order on the basis of this argument.

                       C. Extraordinary Expense Adjustment

    Finally,           Plaintiff       contends     that        the     trial    court

erroneously failed to take certain extraordinary expenses that

Plaintiff claims to have incurred into account in establishing

the amount of child support that she was required to pay to
                                     -13-
Defendant.     More specifically, Plaintiff argues that the trial

court abused its discretion by failing to treat the                   travel-

related expenses that she incurred in order to visit with the

children as extraordinary expenses in the course of calculating

the amount of child support that she was obligated to pay to

Defendant.    We disagree.

                            1. Standard of Review

      “The    trial   court    is    vested   with    discretion    to     make

adjustments to the guideline amounts for extraordinary expenses,

and the determination of what constitutes such an expense is

likewise within its sound discretion.”            Doan v. Doan, 156 N.C.

App. 570, 574, 577 S.E.2d 146, 149 (2003) (citing Biggs, 136

N.C. App. at 298, 524 S.E.2d at 581).            As part of that process,

the   trial   court   has     the   discretion   to   determine     “how   the

expenses are to be apportioned between the parties.”               Mackins v.

Mackins, 114 N.C. App. 538, 549, 442 S.E.2d 352, 359, disc.

review denied, 337 N.C. 694, 448 S.E.2d 527 (1994).            “It is well

established that where matters are left to the discretion of the

trial court, appellate review is limited to a determination of

whether there was a clear abuse of discretion.”            White v. White,

312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).             As a result, we

will review the trial court’s decision to refrain from adjusting

the child support award approved in its prior order to reflect
                                      -14-
Plaintiff’s     visitation-related         travel    expenses    utilizing     an

abuse of discretion standard of review.

       2. Validity of Trial Court’s Expense Adjustment Decision

       According to the child support guidelines, the trial court

“may    make   adjustments      for   extraordinary     expenses      and   order

payments for such term and in such manner as the [c]ourt deems

necessary.”     Mackins, 114 N.C. App. at 548, 442 S.E.2d at 358.

The “extraordinary expenses [contemplated by the child support

guidelines] include . . . [a]ny expenses for transportation of

the child(ren) between the homes of the parents.”                    Id. at 549,

442 S.E.2d at 359.

       At the hearing, Plaintiff testified that the cost of the

children’s travel between North Carolina and California would

amount to approximately $250.00 per month.                  However, Plaintiff

acknowledged     that     the     children    had    only    visited     her   in

California on two occasions between 2010 and 2013 and that the

travel cost estimate set out in her testimony was based on the

assumption     that     the     children     would   make    three     trips   to

California each year.           In addition, Defendant claimed to have

spent $4,000 for the purpose of going to California and bringing

the children back to North Carolina after Plaintiff’s refusal to

return them at the conclusion of the 2012 visit.                 Finally, the

trial court absolved Plaintiff of any responsibility for paying
                                                   -15-
child    support       during       the      eight        week       summer     period      when     the

children were scheduled to be with her in California.                                              After

thoroughly       reviewing          the      entire           record,      we        are   unable     to

conclude       that        the   trial           court’s        decision        to     refrain      from

adjusting       the        amount      of        child        support    that         Plaintiff      was

obligated to pay to Defendant to account for these estimated

transportation costs was “so arbitrary that it could not have

been the result of a reasoned decision.”                                Ludlam, __ N.C. App.

at __, 739 S.E.2d at 558.

    Although           the       child       support           guidelines        treat        expenses

incurred to transport children between their parents’ homes as

extraordinary expenses that may be utilized to adjust the trial

court’s ultimate child support award, the trial court is not

required    to      adjust       the     amount          of    child    support        owed    by    one

parent    to     another         solely          because       one     party     claims       to    have

incurred       or     to     expect         to     incur        such    extraordinary            travel

expenses.       Instead, the extent to which such expenses should be

recognized and the manner in which they should be recognized is

a matter committed to the sound discretion of the trial court.

Doan, 156 N.C. App. at 574, 577 S.E.2d at 149; Mackins, 114 N.C.

App. at 549, 442 S.E.2d at 359.                           In view of the fact that the

record provided a substantial basis for questioning the accuracy

of Plaintiff’s cost estimate, the fact that both parties appear
                                       -16-
to    have   incurred    and   absorbed    such    extraordinary      visitation-

related expenses, and the fact that the trial court absolved

Plaintiff     from   any     obligation    to     make    support    payments     to

Defendant for the eight week              summer    period during which the

children were to be visiting with Plaintiff in California, we

are unable to conclude, based on the present record, that the

trial     court   abused       its   discretion     by     failing    to      adjust

Plaintiff’s support obligation to reflect her estimate of the

cost of bringing the children to California to visit with her.

       In seeking to persuade us to reach a different result,

Plaintiff directs our attention to our decision in Meehan v.

Lawrance, 166 N.C. App. 369, 602 S.E.2d 21 (2004), in which we

held that the trial court’s decision to adjust the amount of

child support that the defendant was obligated to pay to the

plaintiff to account for visitation-related travel expenses did

not     constitute      an   abuse   of   discretion.         In     making     that

determination, we concluded that the trial court’s extraordinary

expense adjustment had sufficient evidentiary support given that

the record contained evidence tending to show that the defendant

had    actually   incurred      between   $300.00    to    $500.00    in   monthly

visitation-related expenses.          Id. at 384, 602 S.E.2d at 30.              The

record support for the adjustment that Plaintiff sought in this

case was, as we have already noted, much weaker than that at
                                           -17-
issue in      Meehan       given that the adjustment amount upon which

Plaintiff relied was clearly an approximation and that Plaintiff

admitted      that    her    proposed      extraordinary       expense   adjustment

assumed a much greater level of visitation-related travel than

had actually occurred in the past.                   In light of this set of

circumstances and the fact that the procedural posture before

the Court in this case is the exact opposite of the procedural

posture    in      which    we   were    called    upon   to    decide   the    issue

addressed in Meehan, Meehan does not provide any basis for a

decision to overturn the trial court’s decision with respect to

this issue.          As a result, Plaintiff’s final challenge to the

trial court’s order has no merit.

                                   III. Conclusion

       Thus, for the reasons set forth above, we conclude that

Plaintiff’s challenge to the sufficiency of the trial court’s

findings of fact relating to the issue of whether Plaintiff’s

request for a deviation from the child support guidelines should

have   been     allowed      has   merit    and    that   Plaintiff’s        remaining

challenges to the trial court’s order do not.                    As a result, the

trial court’s order should be, and hereby is, affirmed in part

and reversed in part and this case should be, and hereby is,

remanded      to    the    Iredell      County    District     Court   for    further

proceedings not inconsistent with this opinion.
                         -18-
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

Judges ROBERT N. HUNTER, JR., and DAVIS concur.

Report per Rule 30(e).
