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Spicer v. Spicer2/1/2005
PUBLISHED
In his appeal from a child support order, plaintiff Sean Christian Spicer contends primarily that the trial court erred in concluding that a trust fund established for his support following a disabling automobile accident was non-recurring income within the meaning of the North Carolina Child Support Guidelines, 2005 Ann. R. N.C. 47 (Rev. Oct. 2002) ("the Guidelines") and ordering him to pay $74,722.80 to establish a trust fund for the support of his son. We conclude that the trial court did not err in determining that the settlement was non-recurring income and that it could be used to establish a child support trust. Because, however, the trial court failed to make sufficient findings of fact regarding the reasonable needs of the child, we must remand for further proceedings.
Factual Background
The Spicers were married on 20 June 1998 and their son was born 1 January 1999. At that time, Mr. Spicer, who was the sole financial provider for the family, worked for Time Warner Cable Company, earning approximately $25,000.00 annually. On 1 April 1999, Mr. Spicer was severely injured when a truck swerved into his lane and collided head-on with his vehicle. As a result of his injuries, Mr. Spicer was in a coma for several weeks, was hospitalized for approximately four months, and underwent rehabilitation for approximately one year. Mr. Spicer's cognitive abilities, including his short-term memory, have been severely impaired as a result of his traumatic head injury.
Mr. Spicer ultimately entered into a lump-sum settlement with the company that owned the truck. Mr. Spicer's father, a financial planner, placed the settlement proceeds in an inter vivos family trust, naming Sean Spicer as grantor and himself as trustee. The trust instrument provides that Sean Spicer, as grantor, has the right to "alter, amend, or revoke" the trust agreement "in whole or in part at such time as may see fit by written notice delivered to the Trustee." Although the instrument provides that the trustee may "pay to or for the benefit of [Sean Spicer] . . . such amounts of the income and principal of this trust as [Sean Spicer] may in writing request," it also includes a spendthrift clause. After payments to resolve a medical insurance subrogation claim and for litigation expenses, a balance of $622,690.22 remained in the trust.
The Spicers separated on 27 March 2000, approximately a year after the accident. A final divorce decree was entered 1 June 2001. On 10 July 2001, Mr. Spicer filed a complaint seeking joint custody of his son. On 31 August 2001, Ms. Spicer filed an answer and counterclaim seeking temporary and permanent custody of the child.
A consent order for permanent custody and visitation was entered on 28 March 2003, granting Ms. Spicer permanent custody of the child and granting Mr. Spicer permanent supervised visitation. On 10 June 2003, the trial court entered an order for permanent child support, in which the court (1) applied the Guidelines to Mr. Spicer's recurring income resulting in a child support obligation of $460.02 per month, (2) treated Mr. Spicer's entire trust principal as non-recurring income under the Guidelines, (3) determined that it would be unjust to Mr. Spicer and inappropriate to use the methods specified in the Guidelines to calculate the amount of non-recurring income to be applied toward child support, (4) ordered, based on application of a formula, a lump sum payment of $74,722.80 from the trust principal to be placed in a second trust for the child, and (5) awarded Ms. Spicer $5,583.75 in attorneys' fees and costs. Mr. Spicer has appealed from this order.
Discussion
Under N.C. Gen. Stat.
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