Osborne v. Osborne

Citations: 497 S.E.2d 113; 129 N.C. App. 34; 1998 N.C. App. LEXIS 351Docket: COA97-299

Court: Court of Appeals of North Carolina; March 17, 1998; North Carolina; State Appellate Court

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Barry Lewis Osborne and Lynne Linett Osborne were married in September 1989 and had one child in April 1990. On February 17, 1995, Barry filed for divorce from bed and board, seeking alimony, equitable distribution, child custody, support, and attorney fees, while also requesting a psychological evaluation for Lynne. Lynne countered with a motion for psychological evaluations for both parties and their child. A series of hearings began, with temporary custody awarded to Lynne on April 4, 1995, and multiple continuances requested by Barry. Notably, a contempt ruling against Barry occurred on November 13, 1995, due to noncompliance with child support obligations.

The hearing originally set for December 5, 1995, was postponed because Barry had not completed his psychological evaluations. Further delays occurred, including a missed hearing on February 8, 1996, due to the child's illness. An order on February 28, 1996, rescheduled the hearing to April 11, 1996, but Barry claimed he was not properly notified until the day before the hearing, leading him to request a continuance, which was denied. The court maintained that Barry had been adequately notified through the court's calendar and by mail from Lynne's attorney. Barry attended part of the April 11 hearing, and subsequently filed for a new trial on the grounds of insufficient notice, which was denied on September 5, 1996. Before final rulings were made on April 11 matters, the judge indicated a tendency to award custody to Lynne.

A hearing on child support was held on 18 September 1996, where the plaintiff was present and testified. On 18 October 1996, the district court awarded the defendant custody and ordered the plaintiff to pay child support. The plaintiff is appealing this decision but has abandoned certain assignments of error due to lack of argument in his brief. The appeal first addresses whether the plaintiff received proper notification of the 28 February 1996 'Order of Continuance', which postponed the custody and child support hearing to 11 April 1996. 

Under North Carolina law, notifications for custody and support motions must be provided with at least ten days' notice. The defendant requested both child custody and support at the 11 April hearing, which necessitated proper notice to the plaintiff. Relevant procedural rules stipulate how notices must be served, including delivery to the party or their attorney, or by mail. The defendant failed to notify the plaintiff through any of these prescribed methods and there is no evidence of the plaintiff having actual notice ten days prior to the hearing. 

As a result, the plaintiff contends that the district court erred by denying his motion for continuance, arguing that lack of proper notice violated his Due Process rights. This denial of the motion is subject to review on appeal. The plaintiff was represented by counsel during the 11 April hearing, which occurred nearly a year after the initial scheduling of custody and support issues.

Plaintiff failed to demonstrate any evidence or witnesses he would present if properly notified of the hearing. Despite improper notification, the trial court's refusal to continue the hearing was upheld because the plaintiff did not show material prejudice. The trial court also denied the motion for a new hearing without error. Additionally, the plaintiff contested the district court's reliance on potential income rather than actual income for child support calculations. The court's findings revealed that the plaintiff, who retired in 1993 at age 51 earning $15.76 per hour, was unemployed by September 1996, receiving $1,902 monthly in retirement benefits. He was eligible to work and earn up to $20,000 annually without affecting his retirement benefits. The district court concluded that the plaintiff was voluntarily unemployed, intentionally lowering his income to avoid supporting his daughter. Based on the findings, the court determined child support using the plaintiff's potential income, supported by competent evidence. The use of potential income was appropriate under North Carolina law, which allows for such determinations when a parent is voluntarily unemployed or underemployed, considering work history and job opportunities. The plaintiff's early retirement and continued unemployment were choices that influenced the support calculations.

The trial court's decision to base child support on the plaintiff's potential income was deemed appropriate and without error. The plaintiff claimed entitlement to a deduction from gross income due to supporting another minor child, but the district court did not make findings on this matter despite evidence presented by the plaintiff. The case is remanded for the district court to determine whether the plaintiff had a seventeen-year-old child residing with him at the time of the hearing and, if so, the amount of deduction applicable until the child turns eighteen. The Child Support Guidelines allow deductions for financial responsibility towards other children living with the party, but the plaintiff did not provide evidence of the income of the other parent of his seventeen-year-old, leading to a presumption of zero income for that parent.

Additionally, the district court's decision to require the plaintiff to pay half of the defendant's attorney fees was upheld. The court found the defendant acted in good faith and could not afford the lawsuit's expenses without suffering financial hardship. It also determined the plaintiff had failed to provide adequate support during litigation. The plaintiff's argument that the relative financial positions of the parties should be compared before awarding attorney fees was rejected, as no such requirement exists. The ruling is affirmed in part, reversed in part, and remanded for further findings regarding the child support deduction issue.