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Gowing v. Gowing8/17/1993
The parties were married on or about 9 December 1979 and separated on 14 March 1991. One child, Travis Benjamin Gowing, was born of the marriage. The child suffers from cerebral palsy and is the beneficiary of a structured settlement from a medical malpractice claim which pays the sum of $2,000.00 per month for his entire life. Until March 1990, defendant was the primary supporter of the family, and the parties and minor child resided in a mobile home in Buncombe County. Plaintiff had been required to stay home with the minor child until he was enrolled in the Irene Wortham Center, but it is no longer necessary for her to remain at home.
Plaintiff appeals the denial of child support on four grounds and the denial of attorney's fees on one. The determination of a child support award is governed by N.C. Gen. Stat. ยง 50-13.4(c), effective since 1 October 1990:
Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case.
The court shall determine the amount of child support payments by applying the presumptive guidelines established pursuant to subsection (c1). However, upon request of any party, the Court shall hear evidence, and from the evidence, find the facts relating to the reasonable needs of the child for support and the relative ability of each parent to provide
support. If, after considering the evidence, the Court finds by the greater weight of the evidence that the application of the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate the Court may vary from the guidelines. If the court orders an amount other than the amount determined by application of the presumptive guidelines, the court shall make findings of fact as to the criteria that justify varying from the guidelines and the basis for the amount ordered. . . .
In its order, the trial court only provided two written findings regarding child support :
Finding #7) That the minor child is the beneficiary of a structured settlement which pays for the minor child's use and benefit the sum of $2,000.00 per month, which substantially exceeds the minor child's expenses and for this reason, there is no need for child support .
Finding #8) That until recently, the Plaintiff was required to stay at home with the minor child, but that the minor child is now enrolled in Irene Wortham Center, and it is no longer necessary that the Plaintiff remain at the home with the minor child.
Plaintiff first contends that the trial court erred in deviating from the child support guidelines because the defendant did not request such deviation as required by the statute. Defendant argues that the denial of child support could have been determined under the guidelines if the trial court found that defendant's monthly gross income at the time of the trial was zero. Defendant's argument is true; however, finding #7 states that no award was granted because the child's settlement exceeds his needs. Since the guidelines do not consider the child's income or property in its computation of support, the trial court deviated from the guidelines.
Plaintiff is correct in her assertion that the statute only allows deviation from the guidelines if a party requests with notice that the trial court take
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