NO. COA02-358
Defendant.
Appeal by plaintiff from orders entered 24 August 2001 and 7
January 2002 by Judge Charles E. Brown in Rowan County District
Court. Heard in the Court of Appeals 12 November 2002.
Robert A. Lester for plaintiff-appellant.
Carole Carlton Brooke for defendant-appellee.
MARTIN, Judge.
Plaintiff Rowan County Department of Social Services, on
behalf of Mary H. Harrison (“Harrison”), appeals the entry of
orders denying its request for reimbursement from defendant Jerry
L. Hamilton for past paid public assistance and dismissing its
motion for a new trial or amendment to the prior order as untimely
served on defendant. We affirm the order of the trial court
denying plaintiff's request for reimbursement for past paid public
assistance, but reverse the dismissal of plaintiff's motion for a
new trial or amendment to the order and remand for consideration of
that motion on the merits. Defendant and Harrison were married from 1979 until 1990; two
children were born of the marriage. On 19 January 1995, an order
was entered in Rowan County District Court awarding defendant
exclusive care, legal custody, and control of the two children. In
a related matter, on 22 March 1995, the Iredell County District
Court entered an order determining defendant had legal custody of
the children effective 18 January 1995, and that from 1 September
1994 through 18 January 1995, defendant had temporary custody of
the children. The order suspended defendant's child support
obligation effective 10 March 1995, and noted defendant's arrears
on AFDC and non-AFDC payments were zero. On 1 November 1995, the
Rowan County District Court entered an order modifying the prior
arrangement and giving legal custody and control of one child to
defendant and the other to plaintiff. The order terminated
defendant's child support obligation effective 21 September 1995.
The order provided that thereafter, Harrison would exclusively
support one child and would not be entitled to seek reimbursement
for support expenses for that child after 21 September 1995.
Likewise, defendant was obligated to support the other child
exclusively and would not be permitted to seek reimbursement for
support expenses after that date.
On 24 May 2001, plaintiff moved to intervene in the matter and
to reinstate defendant's child support obligation and obtain
reimbursement for any past paid public assistance for both children
pursuant to G.S. § 110-135. Following a hearing on plaintiff's
motion, the trial court entered an order on 24 August 2001 allowingplaintiff's motion to intervene, ordering that defendant pay
$310.00 in monthly support to Harrison for the child living with
her, and denying plaintiff's request for reimbursement from
defendant for past paid public assistance in the amount of $12,201
which the court found Harrison received for the support of the
child in her custody from October 1995 through December 2000. In
denying reimbursement, the trial court found that the order in the
Iredell County District Court case, which was later transferred to
Rowan County, suspended defendant's support obligation as of 10
March 1995, and that plaintiff would not be permitted to seek
reimbursement for arrears that accrued during the time when
defendant's support obligation was suspended. The order was served
on defendant by mail on 14 August 2001.
On 29 August 2001, plaintiff filed a motion pursuant to G.S.
§ 1A-1, Rule 59 seeking a new trial, or in the alternative, a
hearing to establish the amount of arrears for past paid public
assistance owed by defendant and amendment of the order to
establish a monthly arrears obligation for defendant. In support
of its motion, plaintiff averred that under G.S. § 110-135, receipt
of past paid public assistance creates a debt to the State by the
responsible parents, and that plaintiff had timely filed its motion
to intervene and for reimbursement within five years of Harrison's
receipt of the last grant of public assistance, as required by the
statute. Plaintiff asserted it was an error of law for the trial
court to have concluded otherwise. Plaintiff served a copy of the
Rule 59 motion on defendant in accordance with Rule 5 of the Rulesof Civil Procedure by depositing it in the mail on 29 August 2001,
5 days after entry of the order. Plaintiff also personally served
defendant with a copy of the motion on 5 September 2001.
On 7 January 2002, the trial court entered an order dismissing
plaintiff's Rule 59 motion as untimely after finding the motion was
personally served on defendant on 5 September 2001, more than the
permissible 10 days after the 24 August 2001 filing of the order.
The trial court did not make any findings regarding plaintiff's
service of the motion by mail on 29 August 2001. Plaintiff appeals
from the order entered 24 August 2001 concluding it was not
entitled to reimbursement from defendant, and the order entered 7
January 2001 dismissing its Rule 59 motion for a new trial, or in
the alternative, amendment of the prior order.
Plaintiff first argues the trial court erred in denying its
request for reimbursement from defendant for past paid public
assistance. In support thereof, plaintiff cites G.S. § 110-135,
providing in relevant part:
Acceptance of public assistance by or on
behalf of a dependent child creates a debt, in
the amount of public assistance paid, due and
owing the State by the responsible parent or
parents of the child. Provided, however, that
in those cases in which child support was
required to be paid incident to a court order
during the time of receipt of public
assistance, the debt shall be limited to the
amount specified in such court order. This
liability shall attach only to public
assistance granted subsequent to June 30,
1975, and only with respect to the period of
time during which public assistance isgranted, and only if the responsible parent or
parents were financially able to furnish
support during this period . . . .
No action to collect such debt shall be
commenced after the expiration of five years
subsequent to the receipt of the last grant of
public assistance.
N.C. Gen. Stat. § 110-135 (2002). Plaintiff argues the trial court
erred in denying its request because, assuming the request for
reimbursement was timely, and plaintiff asserts it was, the sole
limitation on its ability to obtain reimbursement under the statute
is a finding that the parent is financially unable to reimburse the
State. Plaintiff notes the trial court made no such finding here.
Plaintiff concedes, however, that in determining whether to order
reimbursement, the trial court is entitled to consider a variety of
additional factors, including the parties' conduct, the equities of
the case, and other relevant facts.
In
Moore County v. Brown, 142 N.C. App. 692, 543 S.E.2d 529,
disc. review denied, 353 N.C. 728, 550 S.E.2d 780 (2001), this
Court recently held that a trial court is vested with discretion
to consider equity in determining whether to order reimbursement
under G.S. § 110-135, and that a court's denial of a request for
reimbursement due to equitable considerations should be afforded
substantial deference. In so holding, we noted “[t]rial court
orders regarding the obligation to pay child support 'are accorded
substantial deference by appellate courts and our review is limited
to a “determination of whether there was a clear abuse of
discretion.”'”
Id. at 694-95, 543 S.E.2d at 531 (citations
omitted). We observed the trial court “was not required to grantDSS' motion simply because DSS moved to establish arrearages within
the applicable statute of limitations;” rather, the court possessed
“considerable discretion to consider both law and equity in
determining whether to grant DSS' motion.”
Id. at 695, 543 S.E.2d
at 531.
Here, plaintiff maintains the trial court failed to make
findings of its consideration of any such additional factors in
this case, and thus, its order cannot stand. Significantly,
however, the trial court made findings that the Iredell County
District Court suspended defendant's support obligation and zeroed
out his arrears as of 10 March 1995, and that the public assistance
was paid to Harrison between October 1995 and December 2000 when
defendant's support obligation was not in effect. In addition, the
record establishes that on 1 November 1995, the Rowan County
District Court awarded each parent custody of one child; terminated
defendant's support obligation as of 21 September 1995; determined
defendant would only be responsible for providing support to the
child in his custody; and ordered that Harrison not be permitted to
seek reimbursement from defendant for support expenses for the
child in her custody, for whom she subsequently sought public
assistance. There is no evidence in the record, and the trial
court made no finding, that this order terminating defendant's
support obligation and prohibiting Harrison from seeking
reimbursement for support expenses was ever modified during the
period in which Harrison received public assistance.
In light of the trial court's ability to consider equitablefactors in determining whether to order reimbursement, and in light
of the highly deferential standard under which we must review its
order, we hold this evidence sufficient to show that the trial
court's denial of plaintiff's request was not wholly unsupported by
reason, or otherwise a manifest abuse of discretion.
II.
In its second argument, plaintiff maintains the trial court
erred in dismissing its Rule 59 motion as untimely. We agree. The
trial court dismissed the motion after finding it was personally
served on defendant on 5 September 2001, more than the permitted 10
days from the 24 August 2001 entry of the order to which plaintiff
excepted. However, the trial court failed to consider or make
findings with respect to plaintiff's asserted service of the motion
on defendant by mail on 29 August 2001, only 5 days after the order
was entered. Service by mail was a valid means of service for the
Rule 59 motion. N.C. Gen. Stat. 1A-1, Rule 5(b) (2001).
As our Supreme Court has noted, a motion under Rule 59 must be
served no later than 10 days after the entry of the order.
Stem v.
Richardson, 350 N.C. 76, 78, 511 S.E.2d 1, 2 (1999). Additionally,
“[a]ccording to the clear language of Rule 58, the moving party is
entitled to three additional days to file a motion for a new trial
pursuant to Rule 59 if service of the [order] was made by mail.”
Id. Thus, “the moving party is allowed a total of thirteen days
from the date that the [order] is entered
to serve by mail a motion
for a new trial, rather than the ten-day period provided in Rule
59(b).”
Id. (emphasis added). Therefore, under the clear languageof
Stem, not only was plaintiff entitled to serve its Rule 59
motion by mail, but it had 13 days from entry of the order to do
so, given that the order was served by mail on 14 August 2001.
Plaintiff's motion was served on defendant by mail on 29 August
2001, 5 days after entry of the order, and well within the 13-day
time frame for doing so.
Plaintiff's subsequent attempt to effectuate personal service
on defendant does not nullify its earlier timely and valid service
by mail. Accordingly, we reverse the dismissal of plaintiff's Rule
59 motion, and remand to the trial court for a consideration of the
motion on its merits.
Affirmed in part; reversed in part, and remanded.
Chief Judge EAGLES and Judge GREENE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***