In re Register

ARNOLD, Judge. Respondent Carol Malpass contends: first, that the evidence does not support Judge Burnett’s finding of fact that she “is deliberately depressing her income, and is failing to fulfill her earning capacity because of her disregard for her responsibility to provide reasonable support for her child,” and second, that the findings of fact fail to support the judge’s conclusion that Ms. Malpass has the earning capacity to support her child. Finally, appellant argues that N.C.G.S. 50-13.4(b) which governs the support of minor children mandates Kenneth Register, the child’s natural father, bear the entire burden of supporting Vicki. [68] Ms. Malpass stringently protests the judge’s finding that she deliberately depressed her income, yet her own testimony provides evidence to support such a finding. She testified: she has a high school degree and one year of college; she has not worked in seven years except for a two week period when she was separated from Mr. Malpass; payment for the two weeks was approximately $160; she is in good physical condition; and she does not work because she feels there would be nothing left after paying for child care and transportation costs. While respondent attempted to explain why she does not work, her testimony does support the finding that she deliberately depressed her income. She is physically able to work and is as well or better educated than a major portion of the nation’s work force. Despite the recent influx of women in the work force, we recognize that Ms. Malpass has the absolute right to stay at home and care for her six-year-old child. However, she also has the legal and moral obligation to support her minor child. Ms. Malpass asserts that N.C.G.S. 50-13.4(b) relieves her of this obligation by placing on the father the primary responsibility of support. The statute provides: (b) In the absence of pleading and proof that circumstances of the case otherwise warrant, the father, the mother, or any person, agency, organization or institution standing in loco parentis shall be liable, in that order, for the support of a minor child. Such other circumstances may include, but shall not be limited to, the relative ability of all the above-mentioned parties to provide support or the inability of one or more of them to provide support, and the needs and estate of the child. Upon proof of such circumstances the judge may enter an order requiring any one or more of the above-mentioned parties to provide for the support of the child, as may be appropriate in the particular case .... The record in this case contains adequate “proof that the circumstances” warrant support by the mother in addition to the natural father. The child, Vicki, was removed from the home pursuant to a petition filed by the social services office alleging that she was abused. When Ms. Malpass decided to resume marital habitation with her second husband, the child re [69] mained in the custody of her grandparents upon order of the court. Vicki continues to live with her grandparents. The appellant argues that “other circumstances” in the statute should be limited to a showing that the father is unable to provide adequate support for the child based on his income and position in life. However, the statute itself states: “Such other circumstances may include, but shall not be limited to ...” proof that the father cannot provide support. Appellant also cites multiple authorities for the proposition that she should not pay support under the statutory scheme. None of the cases cited involved a fact situation similar to the one at hand. Hicks v. Hicks, 34 N.C. App. 128, 237 S.E. 2d 307 (1977), cited by appellant, recognizes the mother’s obligation to support her child. This Court stated that where the plaintiff-mother sought reimbursement for support expenses “The plaintiff is not entitled to be compensated for support for the children provided by others, nor is she entitled to be reimbursed for sums expended by her for the support of the children which represent her share of support as determined by the trial judge .Id. at 130. N.C.G.S. 50-13.4(b) authorizes the judge to order support of a minor child by both parents under circumstances such as those in this case. Further, the statute does not require a finding by the trial court that the father is unable to bear the support burden alone prior to ordering payments by the child’s mother. The evidence supports the findings of fact and the findings logically lead to the conclusions by the trial judge. The decision of the trial judge is Affirmed. Judge Erwin concurs. Judge Wells dissents.