Appeal by defendant from an order entered 4 February 2005 by
Judge Joseph E. Turner in Guilford County District Court. Heard
in the Court of Appeals 27 March 2006.
Guilford County Attorney's Office, by Deputy County Attorney
Angela F. Liverman, for plaintiff-appellant.
No brief submitted by defendant-appellee.
BRYANT, Judge.
The Guilford County Child Support Enforcement Agency (GCCSEA -
plaintiff), on behalf of Wilamenia N. Norwood, appeals an order
entered 4 February 2005 denying a request to establish income wage
withholding
(See footnote 1)
from Akan B. Davis (defendant) in support of T.A.
(See footnote 2)
Davis, his minor child.
GCCSEA filed a complaint on 19 October 2004, on behalf of
plaintiff seeking adjudication of paternity, child support, and
medical insurance for T.A., reimbursement of past paid publicassistance and wage withholding. The parties submitted to DNA
paternity testing on 26 March 2003, and the probability of
paternity was 99.99%. Defendant did not contest paternity at the
7 January 2004 hearing. GCCSEA testified plaintiff was not working
due to an accident and she was receiving public assistance for her
three minor children, one of whom was defendant's child. Defendant
testified he earned approximately $3,743.56 per month. Defendant
also testified he paid $117.00 for health insurance premiums and
voluntarily pays $300.00 monthly for another child he is obligated
to support. Defendant stated he voluntarily gives plaintiff
$200.00 monthly for T.A. After hearing the evidence regarding the
parties' earnings, the trial court imputed minimum wage earnings
for plaintiff because she was working before the accident and a
worksheet “A” was completed. According to the N.C. Child Support
Guidelines, the monthly child support obligation for defendant was
$565.00. The complaint requested income wage withholding be
implemented immediately. At the hearing, GCCSEA requested
defendant pay $565.00 for current child support and $30.00 for
arrears through wage withholding. In its order, the trial court
denied plaintiff's request for wage withholding.
______________________________
On appeal plaintiff argues the trial court erred by failing to
order the provision for wage withholding in a IV-D
(See footnote 3)
child supportcase pursuant to N.C. Gen. Stat. §§ 110-136.3 and 110-136.4(b). We
note defendant did not file a brief.
“When determining a child support award, a trial judge has a
high level of discretion, not only in setting the amount of the
award, but also in establishing an appropriate remedy.”
Taylor v.
Taylor, 128 N.C. App. 180, 182, 493 S.E.2d 819, 820 (1997)
(citation omitted). However, the court's discretion is curtailed
in IV-D cases in which services involve a child support enforcement
agency.
McGee v. McGee, 118 N.C. App. 19, 31, 453 S.E.2d 531, 538
(1995). Mandatory statutory provisions applicable to IV-D cases
require the trial court to order wage withholding.
Id. at 31, 453
S.E.2d at 538.
North Carolina General Statutes Section 110-136.3 states
“[a]ll child support orders, civil or criminal, entered or modified
in the State in IV-D cases
shall include a provision ordering
income withholding to take effect immediately[.]” N.C. Gen. Stat.
§ 110-136.3 (2005) (emphasis added). Section 110-136.4(b) states
“[w]hen a new or modified child support order is entered, the
district court judge shall, after hearing evidence regarding the
obligor's disposable income, place the obligor under an order for
immediate income withholding.” N.C. Gen. Stat. § 110-136.4(b)
(2005) (emphasis added).
The evidence in the case
sub judice showed defendant had gross
monthly earnings of $3,743.56. Defendant was given a $300.00
credit on worksheet “A” for his voluntary payment for another minorchild and $117.00 credit for monthly payments for health insurance
premiums. The trial court found “[p]laintiff has applied for Child
Support Services and the Child Support Agency is required to
provide service to [eligible] individuals” and GCCSEA had requested
immediate wage withholding pursuant to N.C.G.S. § 110-136.3. Based
on its findings and conclusions, the trial court ordered defendant
to pay $565.00 per month in child support for T.A. and $375.00 in
arrears ($30.00 per month), beginning 1 February 2005.
Despite the fact this is a child support order in a IV-D case,
the trial court “denied the request for income withholding from the
[d]efendant's disposable income.” Contrary to the statutory
mandate applicable in IV-D cases, the trial court failed to order
wage withholding from defendant.
See McGee at 29, 453 S.E.2d at
537 (the trial court erred by failing to direct income withholding
to ensure payment of the father's child support arrearage).
Therefore, we must reverse and remand to the trial court for entry
of judgment ordering immediate income withholding pursuant to
N.C.G.S. § 110-136.4(b).
See Griffin v. Griffin, 103 N.C. App. 65,
68, 404 S.E.2d 478, 480 (1991) (The trial court properly withheld
income to assure “that all children . . . who are in need of
assistance in securing financial support from their parents will
receive assistance regardless of their circumstances.”) (citation
omitted).
Reversed and remanded.
Chief Judge MARTIN and Judge HUDSON concur.
Footnote: 1