SHERRY A. BLANTON
v
.
KENNON W. FITCH
No brief filed for plaintiff-appellee.
Colin P. McWhirter, attorney for defendant-appellant.
THOMAS, Judge.
The primary issue here is whether a non-custodial parent may
be required to make reimbursement under a child support order for
counseling bills where the services were rendered in North Carolina
by a pastoral counselor and social worker residing, but not
certified or licensed, in this State.
The specific provision in the consent order is as follows:
That [Kennon W. Fitch] agrees to carry medical
insurance on the minor children and to be
responsible for any deductibles. That each
other parties shall be responsible for one-
half of uninsured medical bills, this
including dental, or orthodontist, doctor,
psychological, hospital and prescribed
medications.
The trial court found that defendant, Kennon W. Fitch, is
liable for one-half of the $1,440.00 counseling bill. He appeals,
and based on the reasoning herein, we reverse the trial court. The facts are as follows: Plaintiff, Sherry A. Blanton, and
defendant entered into the consent order on 19 February 1997. It
established child support as well as custody of their two minor
children.
From approximately August of 1997 to June of 1998, both
children received counseling from Crystal Champion. One child had
a learning disability and received counseling for problems with
self-esteem, and the other received counseling for difficulties she
experienced regarding the transition from private to public school.
Champion has a Master's Degree in Divinity, is an ordained
minister, and is endorsed by her denomination affiliation, the
Alliance of Baptist, as a pastoral counselor. She is also licensed
in South Carolina as a social worker. Champion is employed at
Spartanburg Regional Medical Facility in Spartanburg, South
Carolina, as a social worker, but agreed to counsel the children
from her home in Shelby, North Carolina, because it was more
convenient for plaintiff and the children. She possesses no
certificates or licenses from the State of North Carolina
authorizing her to counsel here, however.
The counseling fee was at the rate of $40.00 per hour and
totaled $1440.00. Plaintiff paid the bills and mailed a copy of
them to defendant at approximately the time the services were
rendered. Defendant did not reimburse her.
In September 1997, one child was also treated by the Child &
Family Development Center for a developmental reading disorder.
The fee for these services totaled $832.50. Plaintiff submittedcopies of the bills to defendant but, as with Champion's bills,
defendant did not file them with his insurance carrier or reimburse
her for one-half.
On 15 July 1999, plaintiff filed her motion for reimbursement
on a form titled “Motion and Notice of Hearing for Child Support
Order.” The trial court treated it as a motion for reimbursement
of medical and psychological expenses. An order to show cause for
contempt was apparently also issued, but was not included in the
record. After finding that defendant was not in civil contempt,
the trial court determined that the bills for both sets of
counseling services totaled $2,272.50, and ordered defendant to
reimburse plaintiff in the amount of $1,136.25. Defendant's
assignments of error concern only the bills from Champion, with
$770.00 being his portion.
Among his assignments of error, defendant contends the trial
court abused its discretion by requiring him to reimburse plaintiff
for the services of Champion, who rendered such services in
violation of North Carolina licensing laws and public policy. We
agree with this contention.
Section 90-331 of the North Carolina General Statutes is a
general provision making it unlawful for anyone, not licensed under
the Professional Counselors Act, to “engage in the practice of
counseling.” N.C. Gen. Stat. § 90-331 (1999). The evidence
supports the conclusion that Champion “engaged in the practice of
counseling.” First, she billed plaintiff on business-styled
stationery captioned “Crystal Champion, M.Div.,” with “PastoralCounselor” typed immediately below it. Inscribed at the bottom of
the stationery is Champion's North Carolina address and phone
number. Second, Champion provided services to the children thirty-
six times over a two-year period, all in Shelby.
There are exceptions to the general prohibition against
unlicensed counseling, however, set forth in section 90-332.1.
Among these exceptions are:
(1) [A]ny . . . person registered, certified,
or licensed by the State to practice any other
occupation or profession while rendering
counseling services in the performance of the
occupation or profession for which the person
is registered, licensed, or certified.
(5) Any ordained minister or other member of
the clergy while acting in a ministerial
capacity who does not charge a fee for the
service, or any person invited by a religious
organization to conduct, lead, or provide
counseling to its members when the service is
not performed for more than 30 days a year.
(6) Any nonresident temporarily employed in
this State to render counseling services for
not more than 30 days in a year, if the person
holds a license or certificate required for
counselors in another state.
N.C. Gen. Stat. § 90-332.1 (1999) (emphasis added).
Champion is a fee-based pastoral counselor, but is not
certified in North Carolina under N.C. Gen. Stat. § 90-380 et
seq., which set forth the procedures for certification of such
counselors. Although she is licensed in South Carolina as a social
worker, she is not licensed in North Carolina under Chapter 90B,
which regulates social work certification and licensure.
Therefore, the exception under section 90-332.1(1) does not apply.
Champion is an ordained minister, but she charged a fee inthis case and was not invited to perform services by a religious
organization. Section 90-332.1(5) is therefore not applicable.
Finally, the trial court found Champion to be a resident of
North Carolina even though her primary employment is out of state.
Thus, the exception in 90-332.1(6) does not apply.
Chapter 90B, which regulates social workers, also provides an
exception to its licensing requirement:
Nothing in this Chapter shall be construed as
prohibiting a nonresident clinical social
worker certified, registered, or licensed in
another state from rendering professional
clinical social work services in this State
for a period of not more than five days in any
calendar year.
N.C. Gen. Stat. 90B-8(b) (1999) (emphasis added). However,
Champion does not qualify for this exception because she is a
resident of Shelby, North Carolina.
We can find no basis upon which Champion's services were
statutorily permitted in North Carolina. The stated purpose of the
Licensed Professional Counselors Act, N.C. Gen. Stat. § 90-329
(1999), the Fee-Based Practicing Counselor Certification Act, N.C.
Gen. Stat. § 90-381 (1999), and the Social Worker Certification
and Licensure Act, N.C. Gen. Stat. § 90B-2 (1999), is to protect
the public by regulating the services provided by these health-care
providers. The protection of the public interest mandated by these
statutes prohibits a court from ordering reimbursement for services
performed in violation of them. Cf. Hawkins v. Holland, 97 N.C.
App. 291, 388 S.E.2d 221 (1990) (prohibiting unlicensed contractors
from enforcing construction contracts where, by statute, licensurewas mandated before entering into contracts). Moreover, a non-
custodial parent liable for the cost of psychological services for
his children is clearly a person the legislature seeks to protect
by regulating counselors and social workers. See Furr v. Fonville
Morisey Realty, Inc., 130 N.C. App. 541, 545, 503 S.E.2d 401, 405
(1998) (“[I]llegality is a defense to the enforcement of an
otherwise binding, voluntary contract in violation of a statute
only where the party seeking to void the contract is a victim of
the substantive evil the legislature sought to prevent.”), disc.
review allowed, 350 N.C. 94, 532 S.E.2d 529, disc. review dismissed
as improvidently allowed, 351 N.C. 41, 519 S.E.2d 314 (1999).
Based on our holding, we need not address defendant's other
assignments of error. Accordingly, we reverse that part of the
trial court's order requiring reimbursement for one-half of the
cost of Champion's counseling services.
REVERSED.
JUDGES HUDSON and JOHN concur.
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