Child Support, Custody, and Visitation--support_-retroactive modification--adjustment of
vested arrears
The trial court erred in a child support case by adjusting defendant father's vested child
support arrears in violation of N.C.G.S. § 50-13.10, because: (1) child support payments may not
be reduced retroactively so as to grant relief from arrears absent a compelling reason; and (2) the
trial court's forgiving of $1,272.00 arrears based on the fact that the sum represented past paid
public assistance which was paid before defendant knew of the existence of his child is not a
reason that satisfies any of the situations described in N.C.G.S. § 50-13.10(a)(2).
Coleman, Gledhill & Hargrave, P.C., by Leigh Peek, for
plaintiff appellant.
No brief filed by defendant appellee.
McCULLOUGH, Judge.
Dominique Dejuante Wilson was born on 15 February 1991 to
plaintiff Genevieve Harris and defendant Daren Keyes. On 4 August
1998, defendant entered into a voluntary support agreement pursuant
to N.C. Gen. Stat. § 110-132, -133 and -136, which required him to:
(1) pay current child support of $265.00 per month, effective 1
August 1998; (2) provide health insurance for the child within
sixty days of the order; (3) pay $3,445.00 in prior maintenance;
and (4) pay $1,272.00 to reimburse the State for past paid public
assistance. The $1,272.00 arrears to the State was to be repaid at
a rate of $20.00 per month.
In March 2002, plaintiff and defendant each filed a Motion andNotice of Hearing for Modification of Child Support Order.
Plaintiff requested an increase in child support, while defendant
requested a decrease in child support and termination of his
arrears. By order dated 20 May 2002, the trial court applied the
Child Support Guidelines to the case, increased defendant's child
support obligation to $291.00 per month, and noted “that a
substantial change underlies the modification of this order.” The
order also reduced defendant's arrears by $1,272.00, the amount due
to the State for past paid public assistance. With regard to the
arrears, the trial court made the following pertinent findings of
fact:
8. This order was initiated in 1997, and
Defendant has a vested total arrears of
$4499.56, of which $1272.00 is past paid
public assistance owed to the State of
North Carolina.
9. The Court finds it appropriate to forgive
the portion of the Defendant's vested
arrears which represents past paid public
assistance rendered for the minor child
prior to the Defendant knowing of the
minor child's existence, namely the
$1272.00, as the minor child was born in
1991 and Defendant was not informed as to
the birth of the child until 1997.
10. That the remainder of the arrears, namely
$3,227.56, shall be repaid at the rate of
$20.00 per month, such that effective May
1, 2002, the Defendant's child support
obligation shall be $311.00, with $291.00
to current support and $20.00 to the
arrears.
The trial court also concluded:
4. That it is appropriate to forgive that
portion of the Defendant's arrears which
represents past paid public assistance
owed to the State of North Carolina prior
to the Defendant knowing of the minor
child's existence.
The trial court indicated that its order was effective 1 May 2002.
Plaintiff appealed.
On appeal, plaintiff contends the trial court's adjustment of
defendant's vested child support arrears violated N.C. Gen. Stat.
§ 50-13.10 (2001) and 42 U.S.C. § 666(a)(9) (2001). For the
reasons stated herein, we agree and reverse the order of the trial
court.
N.C. Gen. Stat. § 50-13.10 states:
(a) Each past due child support payment
is vested when it accrues and may not
thereafter be vacated, reduced, or otherwise
modified in any way for any reason, in this
State or any other state, except that a child
support obligation may be modified as
otherwise provided by law, and a vested past
due payment is to that extent subject to
divestment, if, but only if, a written motion
is filed, and due notice is given to all
parties either:
(1) Before the payment is due or
(2) If the moving party is precluded by
physical disability, mental
incapacity, indigency,
misrepresentation of another party,
or other compelling reason from
filing a motion before the payment
is due, then promptly after the
moving party is no longer precluded.
Stated another way, child support payments may not be reduced
retroactively so as to grant relief from arrears, absent a
compelling reason. Van Nynatten v. Van Nynatten, 113 N.C. App.
142, 144, 438 S.E.2d 417, 418 (1993).
In the present case, defendant voluntarily agreed to repay
$1,272.00 in past paid public assistance and $3,445.00 in prior
maintenance costs in August 1998. Upon both plaintiff's and
defendant's motions, the trial court conducted a hearing on 24April 2002 and clearly articulated that it would forgive the
$1,272.00 arrears because that sum represented past paid public
assistance which was paid before defendant knew of the existence of
his child. This reason does not satisfy any of the situations
described in N.C. Gen. Stat. § 50-13.10(a)(2) and is therefore an
insufficient basis upon which the reduction was predicated.
As the trial court did not point to “physical disability,
mental incapacity, indigency, misrepresentation of another party,
or other compelling reason[,]” it had no legal basis to
retroactively modify defendant's vested child support arrears. See
N.C. Gen. Stat. § 50-13.10(a)(2). We are also mindful that
[t]he purpose of a child support
proceeding is to determine the nature and
extent of the support required. The initial
determination is subject to modification or
vacation at any time upon motion and a showing
of changed circumstances. The support issue
thus may be before the court on numerous
occasions during a child's minority.
Leach v. Alford, 63 N.C. App. 118, 123, 304 S.E.2d 265, 268 (1983)
(citation omitted). While we must reverse the retroactive
modification in this case, we note that both plaintiff and
defendant are entitled to move for modification or vacation of
child support in the future and may prevail upon a showing of
changed circumstances.
The order of the trial court is hereby
Reversed.
Judges WYNN and ELMORE concur.
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