PATRICIA CHILDRESS COLE,
Plaintiff,
v
.
EDDY DEAN COLE,
Defendant.
William H. Heafner, for the plaintiff-appellee.
Stephen S. Schmidly, for the defendant-appellant.
WYNN, Judge.
Defendant appeals from the trial court's entry of a child
support order on 22 December 2000, as amended by a subsequent order
filed on 25 January 2001. Defendant argues that the trial court
impermissibly awarded plaintiff a retroactive increase in the
amount of a pre-existing child support obligation. We disagree.
Plaintiff and defendant were married on 14 September 1975 and
separated on 4 January 1999. Four children were born of the
marriage, including three children who were minors as of the date
of the parties' separation. On 8 February 1999, plaintiff filed an
action for custody and support of the minor children. Defendant
answered, and on 1 June 1999 the parties filed a Memorandum of
Order whereby defendant agreed to pay plaintiff $125.00 per week
for child support beginning on 4 June 1999. On 3 June 1999, thetrial court, per Judge William M. Neely, entered a Consent Order
providing in part as follows:
[I]t . . . appearing to the Court that the
Plaintiff and Defendant having settled all
current issues for hearing as shown in the
attached Memorandum of Order and based upon
said Memorandum of Order and the pleadings in
this case, the Court enters the following
Order by and with the consent of the parties:
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED
that:
1. This Order is temporary and entered
without prejudice to either party.
. . .
4. The Defendant shall pay One Hundred
Twenty-Five Dollars ($125.00) per week
for child support beginning on Friday,
June 4, 1999. The payments shall be made
into the Office of the Clerk of Superior
Court of Randolph County.
. . .
7. The Court reserves the right to
modify this Order based upon the future
circumstances of the parties.
Subsequently, Judge Neely entered an Inactive Order on 27 June
2000 providing as follows:
It appearing to the undersigned that this is a
domestic relations case in which a Temporary
Order has been entered and the parties
continue to function under said Temporary
Order and do not appear at this time to desire
a final hearing on the merits.
It is now therefore ordered that this case be
placed on the inactive docket and removed from
the ready calendar.
On 22 December 2000, the trial court, per Judge V. Bradford
Long, entered a Child Support Order providing in part as follows: THIS MATTER, coming on to be heard before the
Honorable V. Bradford Long, District Court
Judge presiding in Judicial District 19B,
and being heard in Randolph County, North
Carolina, on December 1, 2000 upon the
complaint of the Plaintiff for child support
filed in this matter on February 8, 1999.
. . . .
The Court makes the following findings of fact
by the greater weight of the evidence based
upon the matters established of record and the
stipulations of the parties.
. . .
4. That the plaintiff filed a complaint on
February 8, 1999, which was served upon the
defendant on February 8, 1999 . . . . This
complaint, in part, prayed the court to enter
an award of child support in favor of the
plaintiff against the defendant for the use
and benefit of the minor children of the
parties.
5. That the parties entered into a memorandum
of judgment contained on AOC Form CV220, which
was filed in this matter on June 1, 1999.
. . . Judge Neely indicated by his notation on
the order that he did not examine the parties
in open court as to their understanding of the
memorandum. . . . .
6. In paragraph 1 of the memorandum of
judgement it is noted:
“1. This order is temporary and entered
without prejudice to either party.”
The order further recites in paragraph 4:
“4. The Defendant shall pay $125.00 per
week for child support beginning on
Friday, June 4, 1999. The payments shall
be made through the office of the Clerk
of Superior Court of Randolph County.”
7. The parties at this [1 December 2000]
hearing, stipulated to the amount of support
due from the defendant to the plaintiff under
the North Carolina Child Support Guidelines.
A copy of worksheet A, which is stipulated toby both the plaintiff and the defendant, is
attached to this order and incorporated by
reference . . . herein.
8. The parties further stipulate neither the
plaintiff nor the defendant have made any
motion to deviate from the North Carolina
Child Support Guidelines.
9. The parties stipulate the only issue to be
determined by the Court is the effective date
of the application of the guidelines amount of
child support.
A. The defendant contends: The holdings
of Fuchs v[.] Fuchs, 260 N.C. 635, 133
S.E.2d 487 (1963), and Biggs v. Greer,
136 N.C. App. 294, 524 S.E.2d 577 (2000),
control so that the support sought by the
plaintiff from the date of the filing of
the complaint through the date of the
entry of the [3 June 1999 temporary
consent] order is retrospective support
because of the entry of the temporary
child support order.
B. The plaintiff contends that the
holding in State ex. rel. Fisher v.
Lukinoff, 131 N.C. App. 642, 507 S.E.2d
591 (1998), control[s] so that the child
support requested since the filing of the
complaint [on 8 February 1999] through
the date of the entry of the [3 June 1999
temporary consent] order is prospective
support and the Court is bound to order
this support as there has not been a
motion to deviate from the guidelines.
10. The Court takes judicial notice that the
common standard and practice in Judicial
District 19-B is that parties enter a
temporary order prior to the Court hearing any
evidence, which typically provides for some
form of support for minor children from
parents not living in the home with their
children and some form of time sharing or
visitation between minor children and both
parents. These orders are entered without the
Court making any findings of fact and are
entered without prejudice to either party[,]
. . . [t]hus allowing the parties to ask the
Court to enter an initial award withoutshowing a substantial change of circumstances.
This temporary order was entered with regard
to: children's primary residence, child
support, visitation with defendant and
counseling for minor children.
11. . . . This court determines as a matter
of law that the child support order should be
entered prospectively from the date of the
filing of the complaint and that the entry of
the temporary child support order is not a bar
to this court entering the initial child
support order on December 1, 2000,
prospectively from the filing of the complaint
[on 8 February 1999].
12. The parties further stipulate at the time
the temporary child support order was entered
the child support guidelines were not applied.
Based upon these findings, the trial court concluded that
defendant's ongoing child support obligation, under North
Carolina's Child Support Presumptive Guidelines, 2002 Ann. R. N.C.
33 (Guidelines), is $824.00 per month. The trial court further
concluded:
3. The temporary order entered June 1, 1999,
was not an initial child support award and was
entered without prejudice to either party and
is not a bar to the court awarding child
support prospectively from the date of the
filing of the complaint.
4. The Court is required to run the child
support obligation prospectively from the date
of the filing of the complaint under the
holding of the State ex. rel[.] Fisher v.
Lukinoff, 131 N.C. App. 642, 507 S.E.2d 591
(1998) case.
5. The application of the . . . Guidelines
since the date of the filing of the Complaint
through the date of the hearing requires a
total amount of support to be paid in the
amount of $18,264.20.
6. The defendant is entitled to a credit for
support paid under the Temporary Support Orderin the total amount of $9,750.00.
7. The defendant's arrearage, after giving
credit for support paid under the temporary
order upon prospective application of the
. . . Guidelines is $8,514.20.
Accordingly, the trial court ordered defendant to pay
plaintiff child support in the ongoing amount of $842.00 monthly
beginning as of the date plaintiff filed her complaint, 8 February
1999. The trial court also established defendant in arrears in the
amount of $8,514.20 as of 1 December 2000, and ordered defendant to
pay an additional $150.00 monthly until such time as the $8,514.20
arrearage is reduced to zero. Defendant subsequently moved to
amend the 22 December 2000 order, and on 25 January 2001 the trial
court filed an order amending the 22 December 2000 order by adding
a finding of fact and conclusion of law that there had been no
extraordinary sudden financial emergency between the entry of the
temporary support order and the 1 December 2000 hearing. Defendant
appeals.
-------------------------------------------------------
Defendant brings forth six assignments of error on appeal.
However, defendant has abandoned his first assignment of error by
failing to argue it in his brief. See N.C.R. App. P. 28(b)(6)
(2002).
The remainder of defendant's assignments of error are
encompassed in the single argument in his brief contending that the
trial court “erred in awarding the plaintiff retroactive child
support from the date of the filing of the plaintiff's
complaint[.]” The basis for defendant's contention is that the 3June 1999 consent order “constituted a prior child support order”
and could not be modified retroactively absent a finding by the
trial court that a “sudden financial emergency existed” requiring
plaintiff to expend sums in excess of the existing child support
order. See Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577
(2000); Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963).
Defendant's contention is without merit.
In Sikes v. Sikes, 330 N.C. 595, 411 S.E.2d 588 (1992), our
Supreme Court held that a district court may enter an interim order
for child support wherein it contemplates entering a permanent
order at a later time. The Court further held that the interim
child support order could be modified later because no final
determination of the proper amount of child support had previously
been made. The Sikes Court held that Fuchs (barring courts from
ordering retroactive increases in child support without some
evidence of an emergency situation) and Ellenberger v. Ellenberger,
63 N.C. App. 721, 306 S.E.2d 190 (requiring a showing of a change
in circumstances before child support payments may be changed),
aff'd in part and rev'd in part, 309 N.C. 631, 308 S.E.2d 714
(1983), do not apply until a determination on the merits of the
issue of child support is first made.
In State ex rel. Fisher v. Lukinoff, 131 N.C. App. 642, 507
S.E.2d 591 (1998), this Court noted that “for purposes of computing
child support, the portion of the award 'representing that period
from the time a complaint seeking child support is filed to the
date of trial,' is 'in the nature of prospective child support.'” Id. at 646-47, 507 S.E.2d at 595 (citations omitted). As
“prospective child support is to be awarded for the time period
between the filing of a complaint for child support and the hearing
date, [N.C. Gen. Stat. §] 50-13.4(c) [1999] applies and requires
application of the Guidelines with respect to that period[.]” Id.
at 647, 507 S.E.2d at 595 (citations omitted) (emphasis added).
Construing Sikes and Lukinoff together, we hold that trial
courts must apply G.S. § 50-13.4(c) in determining the amount of
prospective child support payments, which generally includes the
period between the filing of the complaint for child support and
the hearing date. Furthermore, in entering a prospective child
support order, the trial court need not take any evidence or make
findings of fact or conclusions of law, so long as it imposes the
presumptive amount of child support pursuant to the Guidelines.
See Biggs, 136 N.C. App. at 297, 524 S.E.2d at 581. On the other
hand, retroactive child support (consisting of either (1) child
support awarded prior to the date a party files a complaint
therefor, or (2) a retroactive increase in the amount provided in
an existing support order) is not based on the presumptive
Guidelines, see Luckinoff, and is subject to the constraints of
Fuchs and Ellenberger. See Sikes.
In the instant case, as in Sikes, it is clear that the trial
court's 3 June 1999 Consent Order was not intended as a final
determination on the issue of child support. Rather, it set a
temporary amount of child support that was consented to by the
parties, in contemplation of setting a different amount at a latertime after a hearing. As the 3 June 1999 order was not a
determination following a hearing on the merits of the issue of
child support, it was temporary in nature and therefore subject to
subsequent modification. See Sikes. Furthermore, as no final
determination on the merits of the issue of child support had
previously been made, and no hearing on the issue of child support
had previously been held, the trial court was required, under G.S.
§ 50-13.4(c), to apply the child support Guidelines in awarding
prospective child support as of 8 February 1999, the time
plaintiff's complaint for child support was filed. See Lukinoff,
131 N.C. App. at 647, 507 S.E.2d at 595 (“prospective child support
is to be awarded for the time period between the filing of a
complaint for child support and the hearing date”).
As the trial court awarded prospective child support according
to the Guidelines as of the date plaintiff filed her complaint for
child support, the award of such support was not retroactive in
nature and this Court's holding in Biggs is therefore inapplicable.
Accordingly, the trial court's 22 December 2000 child support
order, and 25 January 2001 order amending same, is,
Affirmed.
Judges HUDSON and THOMAS concur.
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