Copyright 1998 - N.C. Administrative Office of the Courts


Orange County, ex rel., JoAnn Laws Byrd, individually and as mother and natural guardian of Jessica Nicole Byrd, minor child, Plaintiff, v. Charles Allen Byrd,     Defendant.

____________________________

Orange County, ex rel., Kimberly Jan Moore, individually and as mother and natural guardian of Jeremy Allen Byrd minor child, Plaintiff, v. Charles Allen Byrd, Defendant.

No. COA97-1366

No. COA97-1367

(Filed 16 June 1998)

1.    Divorce and Separation § 416 (NCI4th)-- child support arrearages -- stricken for time in jail -- insufficient findings

    Defendant was not entitled to have his child support arrearages stricken for the time he was in jail on criminal charges due to his inability to post bond where there was no evidence to support the trial court's findings as to the dates of his incarceration and his ineligibility for work release. N.C.G.S. § 50-13.10(d)(4).

2.    Divorce and Separation § 426 (NCI4th)-- compensation settlement -- child support lien -- apportionment not permitted

    The trial court does not have the authority to "apportion" the proceeds of a workers' compensation settlement on which there are liens for past due child support. Rather, the settlement is available for the entire lien for past due child support pursuant to N.C.G.S. § 58-3-185, subject only to the amount of attorney fees approved by the Industrial Commission for the employee's workers' compensation counsel pursuant to N.C.G.S. § 97-90.

    Appeals by plaintiff Orange County from orders entered 6 August 1997 by Judge Joe Buckner in Orange County District Court. Heard in the Court of Appeals 19 May 1998.

    Coleman, Gledhill & Hargrave P.C., by Leigh Peek, for plaintiff appellant.

    Sheridan & Steffan, P.C., by Kim K. Steffan, for defendant appellee.

    HORTON, Judge.

    Defendant Charles Allen Byrd and JoAnn Laws Byrd have a minor child named Jessica. On 8 July 1993, defendant signed a Voluntary Support Agreement (VSA) in case No. 93-CVD-1144, agreeing to pay support for Jessica. Defendant and Kimberly Jan Moore have a minor child named Jeremy. On 18 May 1995, defendant signed a VSA in case No. 95-CVD-584, agreeing to pay prospective support for Jeremy, and to repay past-paid public assistance in the amount of $8,500.00.

    On 12 July 1994, defendant was injured in a compensable accident at work, and was paid temporary total disability benefits for a period of time. He returned to his former work on 5 January 1995. As a result of his injuries, defendant was again out of work from 12 April 1996 to 16 December 1996, during which time he received temporary total disability benefits. Defendant was released to return to work on 14 December 1996. On 16 December 1996, defendant was arrested on criminal charges and could not make bail. Defendant was in custody from 16 December 1996 through 20 February 1997. Defendant hired counsel for the criminal case and promised to pay his attorneys' fees of $2,915.00 upon settlement of his workers' compensation claim. Defendant has other pending criminal matters and expects to need $1,995.00 to pay for attorneys' fees, court costs and probation fees. Defendant had a 35% permanent disability to his foot as a result of his injury by accident, and reached a full and final settlement of his workers' compensation claim in the amount of $18,000.00.

    On 19 March 1997, plaintiff Orange County Child Support Enforcement Office (CSE) sent two notices of liens on the proceeds of defendant's settlement to North Carolina Homebuilders, the insurance carrier in defendant's compensation case. The notice in No. 93-CVD-1144, Jessica's case, reflected that defendant had a past due balance of $5,108.13 for unpaid child support. The notice in No. 95-CVD-584, Jeremy's case, stated that defendant had a past due balance of $11,402.71 for unpaid child support.

    On 19 March 1997, defendant filed a motion to reduce his child support obligation based on a decrease in his income as the result of his injury. On 8 April 1997, defendant filed a motion that the court "apportion" his workers' compensation proceeds. Both cases were heard on 5 May 1997, and similar orders were entered in both cases. Based on defendant's pleadings, affidavits, payment history, and reduced income, the trial court: reduced defendant's child support obligation; struck the arrears of child support which accrued between 16 December 1996 and 20 February 1997 when defendant was in custody; and determined that defendant's arrearages were $5,334.13 for No. 93-CVD-1144, and $11,104.71 for No. 95-CVD-584. The trial court then apportioned defendant's $18,000.00 workers' compensation settlement between defendant's counsel in the workers' compensation case ($4,500.00), defendant's counsel in his criminal cases for fees and costs ($4,910.00), Orange County Clerk of Court to be applied to child support arrearages ($5,000.00), and to defendant personally ($3,590.00).

    A resolution of plaintiff's appeals from the 5 May 1997 orders requires that we determine: (I) whether the trial court erred in striking defendant's child support arrearages for the period defendant was incarcerated and unable to make bail on criminal charges; and (II) whether the trial court had the authority to "apportion" the proceeds of defendant's workers' compensation settlement.

I.

    [1]In each order, the trial court found as a fact that: defendant's workers' compensation payments continued through 16 December 1996 when defendant was arrested for criminal charges; defendant remained in jail from 16 December 1996 through 20 February 1997 due to his inability to post bond, and he was not eligible for work release during that period of time. Based on those findings of fact and pursuant to N.C. Gen. Stat. § 50- 13.10(d)(4) (1995), the trial court concluded that defendant was entitled to have his child support arrearages stricken for the period he was in jail. The trial court then reduced the amount of defendant's arrearages in each case to reflect the stricken payments.

    There is no evidence in the record on which the trial court could base its findings of fact. Defendant contends that paragraphs five and six of his verified motion provide support for the court's findings. While those paragraphs detail defendant's criminal woes and the financial costs of extricating him from them, they neither set out the dates of his incarceration nor his ineligibility for work release. We also note that defendant did not ask in either of his motions that any of his arrearages be stricken because of his incarceration. The trial court's findings of fact are not supported by competent evidence and, therefore, the order of the trial court must be reversed.