An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1092

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2003

DALE ALAN FREEZE,
    Plaintiff

v .                                     Cabarrus County
                                        No. 99-CVD-1864
ANGELA DAWN FREEZE,
    Defendant

    Appeal by defendant from orders entered 13 September 2001 and 25 February 2002 by Judge Donna H. Johnson in Cabarrus County District Court. Heard in the Court of Appeals 21 May 2003.

    No brief for plaintiff-appellee.

    Legal Services of Southern Piedmont, Inc., by Heather R. Manry, for defendant-appellant.

    HUNTER, Judge.

    Angela Dawn Freeze (“defendant”) appeals from a child support order and an order denying her motion to amend the child support order. Defendant claims the trial court erred in calculating Dale Alan Freeze's (“plaintiff”) child support obligation by failing to include plaintiff's lump sum workers' compensation settlement as income attributable to plaintiff. We agree and therefore reverse the trial court's orders and remand this case for the trial court to recalculate plaintiff's child support obligation, taking into account plaintiff's workers' compensation lump sum settlement.
    The procedural history and pertinent facts of this case are summarized as follows. On 31 August 1999, plaintiff filed acomplaint against defendant, seeking custody and support of his and defendant's minor children, Devin Lee Freeze and Dalton Tyler Freeze. Subsequently, on 4 October 1999, defendant filed an answer and counterclaim seeking custody of the children and child support from plaintiff. A consent order was filed on 19 July 2000, granting sole legal custody and temporary child support, in the amount of $124.00 per week, to defendant. The amount of temporary child support was calculated pursuant to the North Carolina Child Support Guidelines. At the time the temporary child support order was entered, plaintiff was receiving $528.58 per week in workers' compensation from Continental General Tire. The temporary child support was calculated using plaintiff's workers' compensation payments. Plaintiff received weekly workers' compensation payments from Continental General Tire from January 2000 to 28 April 2001, when plaintiff agreed to voluntarily resign from his employment with Continental General Tire in order to receive a workers' compensation settlement. Plaintiff received a lump sum of approximately $24,000.00 in June 2001, pursuant to the settlement.
    A hearing was held on 9 August 2001 to determine the amount of permanent child support that plaintiff was obligated to pay. Neither party filed a motion to deviate from the North Carolina Child Support Guidelines prior to the hearing. Defendant's counsel argued at the hearing that plaintiff's workers' compensation lump sum settlement of approximately $24,000.00 was income under the North Carolina Child Support Guidelines and therefore, requestedthe trial court to consider this settlement amount received in calculating plaintiff's child support obligation.
    On 13 September 2001, a child support order was filed, in which the trial court ordered plaintiff to pay $330.50 per month for his two minor children. The child support calculation was based solely upon plaintiff's ongoing gross monthly salary of $1,560.00 and did not take into account the lump sum workers' compensation payment. Subsequently, on 21 September 2001, defendant filed a motion to amend judgment, in which defendant requested the court to include the lump sum workers' compensation payment of approximately $24,000.00 in calculating plaintiff's child support payments. A hearing on defendant's motion was held on 1 October 2001. Thereafter, on 25 February 2002, the trial court filed an order denying defendant's motion to amend judgment. The trial court noted in its findings that, “[t]he North Carolina Child Support Guidelines specifically state one-time lump sum payments are includable as income, but that they shall be distinguished from on-going income.” The court additionally found that, “the North Carolina Child Support Guidelines do not specify how those lump-sum payments shall be distinguished from on-going income.” The court reasoned that because defendant did not file a motion to deviate from the North Carolina Child Support Guidelines, the court was unable to consider the lump sum workers' compensation settlement received by plaintiff in calculating plaintiff's child support payments. Accordingly, the court concluded defendant had failed to show good cause for amending the judgment entered.    The sole issue on appeal is whether the trial court erred in calculating plaintiff's child support obligation by failing to include plaintiff's lump sum workers' compensation settlement of approximately $24,000.00 as income attributable to plaintiff. We conclude such failure was error and therefore, reverse the child support order and order denying defendant's motion to amend judgment. We remand this case for the trial court to recalculate plaintiff's child support obligation, taking into account plaintiff's lump sum workers' compensation settlement payment.
    The North Carolina Child Support Guidelines in effect at the time the child support order at issue was entered defined “'income'” as “actual gross income of the parent, if employed to full capacity, or potential income if unemployed or underemployed.” N.C. Child Support Guidelines, 1998 Ann. R. N.C. 33, 34. Further, under these guidelines, “[g]ross [i]ncome” specifically included “workers compensation benefits.” Id. Moreover, these same guidelines stated, “[w]hile includable as income, non-recurring, one-time payments should be distinguished from ongoing income.” Id. Therefore, a one-time lump sum workers' compensation payment was clearly included as “gross income” under our 1998 Child Support Guidelines. Thus, we conclude the trial court erred in failing to include plaintiff's lump sum workers' compensation settlement as income attributable to plaintiff in calculating plaintiff's child support obligation.
    There was no need for defendant to file a motion to deviate since the inclusion of the lump sum amount in the calculation didnot require the trial court to deviate from the guidelines. The trial court was correct in stating in its order denying defendant's motion to amend judgment that the 1998 guidelines did “not specify how . . . lump-sum payments shall be distinguished from on-going income.” Thus, we recommend that on remand, the trial court look to the guidelines effective 1 October 2002 for guidance in determining how to treat the lump sum payment which state:
        When income is received on an irregular, non- recurring, or one-time basis, the court may average or prorate the income over a specified period of time or require an obligor to pay as child support a percentage of his or her non- recurring income that is equivalent to the percentage of his or her recurring income paid for child support.

N.C. Child Support Guidelines, 2002 Ann. R. N.C. 33, 34-35. For the foregoing reasons, we reverse the trial court's child support order and the trial court's denial of defendant's motion to amend judgment. We remand this case for the trial court to recalculate plaintiff's child support obligation, taking into account plaintiff's lump sum workers' compensation settlement payment.
    Reversed and remanded.
    Judges MARTIN and GEER concur.
    Report per Rule 30(e).

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