Volume 100 — North Carolina Court of Appeals Reports

1. Divorce and Alimony 24 (NCI3d) — child support — order prior to equitable distribution — no error The trial court did not err by entering a child support order prior to determination of a pending equitable distribution action. The language of N.C.G.S. <cross_reference>50-20</cross_reference> (f) contemplates that a child support order may precede an equitable distribution order, and no child support order is ever final. Delaying the child support order in this case until after the equitable distribution issue was decided would have prolonged an already long-pending case. Am Jur 2d, Divorce and Separation 923. <block_quote> Divorce and separation: effect of trial court giving consideration to needs of children in making property division — modern status. 19 ALR4th 239.</block_quote> 2. Divorce and Alimony 24.9 (NCI3d) — child support — findings — sufficient The trial court made sufficient findings of fact to support its child support order of $37,871.89 a year for two children where the court adjusted the payment downward from $57,500; the record is replete with evidence that the family had enjoyed a very high standard of living; the trial court incorporated by reference defendant's affidavit that outlined his expenses and debts; the ability of the father to pay was not an issue; and the findings regarding the wife's estate demonstrated the requisite specificity despite the trial court's reluctance to place an exact dollar figure on plaintiff's estate. Am Jur 2d, Divorce and Separation 1039-1042. <block_quote> Excessiveness or adequacy of money awarded as child support. 27 ALR4th 1864.</block_quote> 3. Divorce and Alimony 24.6 (NCI3d) — child support — percentage of custody — evidence sufficient There was sufficient evidence in a child support action to support the finding that defendant had physical custody<page_number>Page 335</page_number> of the children ten percent of the time and therefore should pay ninety percent of the support expenses during that period. Am Jur 2d, Divorce and Separation 1039-1042. <block_quote> Excessiveness or adequacy of money awarded as child support. 27 ALR4th 1864.</block_quote> 4. Divorce and Alimony 24.1 (NCI3d) — child support — guidelines — not considered The trial court did not err in a child support action by failing to consider the child support guidelines then in effect where the guidelines were only advisory in nature at the time the order was entered. The trial judge at that time was neither required to follow nor refer to the advisory guidelines in his order. Am Jur 2d, Divorce and Separation 1039-1042. <block_quote> Excessiveness or adequacy of money awarded as child support. 27 ALR4th 1864.</block_quote> 5. Divorce and Alimony 24.1 (NCI3d) — child support — use of formula — no error The trial court did not err in its use of a formula in determining the final child support payment, although a portion of the award was reduced, where the trial judge used a cost-sharing formula adjusted to reflect monies saved by the custodial parent while the children were visiting the non-custodial parent and to reflect the cost of transporting the children between the two houses for visitation. The visitation reduction portion of this formula was rejected because it ignored the fact that certain costs of the custodial parent are not removed when a child visits a non-custodial parent. It was noted that North Carolina adopted guidelines based on the income-sharing approach for determining child support as of 1 July 1990, and that use of any cost-sharing formula by a trial judge is now improper in North Carolina. Am Jur 2d, Divorce and Separation 1039-1042. <block_quote> Excessiveness or adequacy of money awarded as child support. 27 ALR4th 1864.</block_quote><page_number>Page 336</page_number> 6. Divorce and Alimony 24.1 (NCI3d) — child support — retroactive — actual expenditures The trial court did not err in a child support action by awarding retroactive child support based solely on evidence of actual expenditures. Although plaintiff wife contended that defendant should be ordered to pay retroactive support at the prospective rate, retroactive support is based solely on the amount actually expended for the support of the minor children during the time in question. Am Jur 2d, Divorce and Separation 1039-1042. <block_quote> Excessiveness or adequacy of money awarded as child support. 27 ALR4th 1864.</block_quote> 7. Divorce and Alimony 24.1 (NCI3d) — child support — income tax exemption — assigned to husband The trial court did not err in a child support action by assigning to defendant husband the right to claim the minor children as dependents for income tax purposes. N.C.G.S. 105-149, which until 1989 provided that the parent furnishing the chief support of the child was entitled to the exemption, has been repealed in an apparent effort to bring North Carolina's tax laws into conformity with the 1984 revisions of federal tax statutes. Federal law provides that the custodial parent may waive the right to claim an exemption, and several courts have held that a trial court may order a custodial parent to waive the right to claim the exemption. Am Jur 2d, Divorce and Separation 1019, 1020, 1025. <block_quote> State court's authority, in marital or child custody proceeding, to allocate federal income tax dependency exemption for child to non-custodial parent under sec. 152(e) of the Internal Revenue Code 126 U.S.C.S. sec. 152(e)). 77 ALR4th 786.</block_quote> 8. Divorce and Alimony 27 (NCI3d) — child custody and support — attorney fees The trial court did not err by failing to award attorney fees where the case involved both child support and child custody from June of 1986 until 8 March 1988, when the child custody issue was resolved through negotiations arbitrated by the trial judge after trial began; the trial judge determined that as of 8 March the proceeding became one of only child<page_number>Page 337</page_number> support in which he had to make the additional finding that defendant had refused to provide adequate support at the time the action was instituted in order to award attorney's fees; the trial judge found that defendant had provided adequate support when the suit was first filed and refused to award attorney's fees; and the judge found that even if the action was both a custody and support case plaintiff had sufficient means to defray the expenses of the suit. Am Jur 2d, Divorce and Separation 597. <block_quote> Amount of attorneys' fees in matters involving domestic relations. 59 ALR3d 152.</block_quote>

1. Assignments 2 (NCI4th) — assignment of contract rights — assignor not buyer — UCC — common law Even if plaintiff's assignor was not technically a "buyer" in a transaction with defendant so as to permit it to assign its contractual rights against defendant pursuant to N.C.G.S. <cross_reference>25-2-103</cross_reference> (1), the assignor's contractual rights were assignable under the common law. Am Jur 2d, Assignments 7, 27. 2. Uniform Commercial Code 11 (NCI3d) — express warranty — action for breach — privity not required Privity is not required to assert a claim for breach of express warranty. Am Jur 2d, Sales 718, 720. 3. Uniform Commercial Code 11 (NCI3d) — letter to accounting firm — express warranty to firm's client A letter from defendant's president to an accounting firm purchasing a computer accounting system for a plumbing distributor which referenced the accounting firm's "plumbing distributor client" and guaranteed defendant's "programming with full return and refund privileges for the software and<page_number>Page 429</page_number> printer should our programming not perform as warranted" constituted an express warranty to both the accounting firm and its client in order to induce both to complete the purchase of a software system from defendant. Therefore, the plumbing distributor could validly assign its claim against defendant for breach of the express warranty. Am Jur 2d, Sales 377, 379. 4. Uniform Commercial Code 26 (NCI3d); Rules of Civil Procedure 15.2 (NCI3d) — breach of express warranty — special damages — litigation by consent Plaintiff was entitled to recover for breach of express warranty of a computer system both its general damages and its special damages for additional sums expended for attempts by defendant to make the system work. Although plaintiff failed to plead damages involving special circumstances, the pleadings were deemed amended to include this issue where plaintiff introduced evidence of these damages without objection at trial and the parties thus tried this issue by implied consent. N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 15 (b); N.C.G.S. <cross_reference>25-2-714</cross_reference> (2). Am Jur 2d, Sales 1280, 1297, 1351, 1374.