Yes, “the trial court upon its own motion or upon a timely request of a party may deviate from the Guidelines. Blair v. Jackson, 138 N.C.App 284, 288, 531 S.E.2d 240, 243 (2000). “Any party in a pending action requesting a variance from the guidelines must, unless the request is made in the original pleadings, give at least ten days written notice as required in N.C.G.S. §50-13.5(d)(1).” Browne v. Browne at 624, 400 S.E.2d at 740. “In the absence of such a timely notice, the trial court will hear only such evidence as may be necessary for a determination of a proper application of the relevant child support formula as from time to time the Conference of Chief District Court Judges adopts.” Id. “Absent a timely and proper request for a variance of the guidelines, support set consistent with the guidelines is conclusively presumed to be in such amount as to meet the reasonable needs of the child for health, education and maintenance.” In addition, “the Court may deviate from the Guidelines in cases where application would be inequitable to one of the parties or to the child(ren). Brooker v. Brooker, 133 N.C.App. 285, 291, 515 S.E.2d 234, 238 (1999). Should a court decide to deviate from the Guidelines, its decision to deviate will not be disturbed on appeal absent a clear abuse of discretion. Sain v. Sain, 134 N.C.App. 460, 465, 517 S.E.2d 921, 926 (1999).
In making the determination to deviate from the Guidelines, the following four-step process is employed:
- The trial court must determine the presumptive child support amount under the Guidelines;
- The trial court must hear evidence as to the reasonable needs of the child for support and the relative ability of each parent to provide support;
- The trial court must determine, by the greater weight of this evidence, whether the presumptive support amount 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 other unjust or inappropriate; and
- Following its determination that deviation is warranted, or order to allow effective appellate review, the trial court must then enter written findings of fact showing the presumptive child support amount under the Guidelines, the reasonable needs of the child; the relative ability of each party to provide support; and the application of the Guidelines would exceed or would not meet the reasonable needs of the child or would be “otherwise unjust or inappropriate”. Id.
Thus, a trial may deviate from the Guidelines, but such may only be had by a timely request for either party, or upon the Court's own motion should the Court determine that it would be inequitable to a party or to a child to determine child support as per the Guidelines.
F. Conclusion
The implementation of the Guidelines have significantly simplified the process for establishing child support in North Carolina and other states. For this reason, many child support cases are settled by the parties, or their attorneys, rather than by a judge. The cases that proceed to court are usually those wherein it is difficult to determine a party's gross income, or wherein the parties do not agree whether to use Worksheet A or Worksheet B, due to the custody of the child(ren). |
