LINDA SUE WRIGHT,
Plaintiff,
v
.
Carteret County
No. 00 CVD 1052
JEFFERY S. ANDERSON,
Defendant.
Pennington & Smith, by Tamara Avis Smith and Ralph S.
Pennington, for the plaintiff-appellant.
Beswick, Goines & Stephenson, P.A., by George W. Beswick, for
defendant-appellee.
JACKSON, Judge.
Plaintiff and defendant were granted a divorce on 23 May 1991
in Maryland. At the time of filing this action, plaintiff was a
citizen of New Hanover County, North Carolina and defendant was a
citizen of Carteret County, North Carolina. Defendant is a medical
doctor and plaintiff is a registered nurse at New Hanover Medical
Center.
Plaintiff and defendant had a child of this marriage on 26
December 1986. On 28 March 1991, the Maryland court granted
custody in favor of plaintiff and set forth visitation rights fordefendant. On 3 December 1991, the Maryland court modified the
March order and awarded defendant custody without granting
visitation rights to plaintiff. Thereafter on 2 July 1992, the
Maryland court issued a consent order (“Maryland Order”),
addressing equitable distribution, alimony, and child support.
From 1992 until 25 June 2000, the child lived with defendant.
Pursuant to the terms of the Maryland order, plaintiff paid no
child support to defendant. On 26 June 2000, the child began
living with plaintiff. Defendant paid no child support for the
child from 26 June 2000 until ordered to do so in January 2004.
Plaintiff initiated this action on 26 June 2000 in New Hanover
County District Court. Plaintiff initially sought temporary and
permanent custody of the minor child born of the marriage, and
asked the court not to enforce the Maryland Order.
On that same date, plaintiff obtained a Temporary Restraining
Order (“T.R.O.”) restraining defendant from enforcing the Maryland
Order on child custody, and from obtaining physical or legal
custody of the minor child. The T.R.O. was extended, and the
hearing was continued twice.
On 1 August 2000, defendant filed motions, answers, and
counterclaims requesting the court to dismiss plaintiff's action
pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil
Procedure. Defendant also filed a motion to change venue from New
Hanover County to Carteret County. Defendant then filed a petition
to register foreign child custody determination in Carteret County.
On 10 August 2000, an order of temporary custody was enteredproviding that plaintiff was vested with temporary custody of the
child pending an evidentiary hearing. The order further stated
that before modification of the order, the court would hold a
hearing and hear testimony from the child. On 21 August 2000,
plaintiff filed an objection to registration of foreign child
custody determination. On 9 May 2003, plaintiff filed a motion to
enter permanent child custody order. On 17 December 2003, the
trial court heard plaintiff and defendant's claims for child
support, child custody, and attorneys' fees.
The trial court found that: (1) defendant must pay plaintiff
ongoing child support in the amount of $1,563.93 per month
beginning January 2004; (2) plaintiff owed defendant $8,351.87 as
child support arrears for three years immediately preceding the
filing of suit; (3) defendant owed plaintiff $64,041.06 for the
time period from the filing of the complaint through 31 December
2004 as child support arrears; (4) the arrears found to be owed by
defendant to plaintiff would be offset by the amount of arrears the
trial court found that plaintiff owed defendant, for net arrears
owed by defendant to plaintiff of $55,689.19; (5) arrears were to
be paid at a rate of $200.00 per month, in addition to the
$1,563.93 monthly support payment, until the child reaches 18 years
of age, and then at the ongoing child support rate of $1,565.00
until the balance is paid in full; and (6) plaintiff is not
entitled to attorneys' fees because of the earning abilities of the
parties and their present financial state. Plaintiff now appeals. Plaintiff contends that the trial court erred in failing to
find that the Maryland Order prohibited defendant from seeking
child support prior to a modification of that previous order.
Specifically, plaintiff contends that she does not owe defendant
arrears in the amount of $8,351.87, that she is entitled to
interest due on the past child support payments, and that she is
entitled to recover attorneys' fees.
Our review of the trial court's child support order is limited
to whether the trial court abused its discretion. Spicer v. Spicer,
168 N.C. App. 283, 287, 607 S.E.2d 678, 682 (2005) (citing Leary v.
Leary, 152 N.C. App. 438, 441, 567 S.E.2d 834, 837 (2002)). “Under
this standard of review, the trial court's ruling will be
overturned only upon a showing that it was so arbitrary that it
could not have been the result of a reasoned decision.” Id.
“[T]he purpose of our child support law is to ensure that
parents meet their legal obligation to secure support commensurate
with the needs of the child and [the parents'] ability . . . to
meet the needs.” Id. at 290, 607 S.E.2d at 683 (quoting Holt v.
Holt, 29 N.C. App. 124, 126, 223 S.E.2d 542, 544 (1976) (internal
quotation omitted) (emphasis omitted). District courts have broad
discretion to devise an appropriate child support award in light of
the circumstances of all the parties. Id. Further, North Carolina
General Statutes, section 50-13.4(e)(2003) provides:
Payment for the support of a minor child shall
be paid by lump sum payment, periodic
payments, or by transfer of title or
possession of personal property of any
interest therein, or a security interest in or
possession of real property, as the court mayorder. The court may order the transfer of
title to real property solely owned by the
obligor in payment of arrearages of child
support so long as the net value of the
interest in the property being transferred
does not exceed the amount of the arrearage
being satisfied. In every case in which
payment for the support of a minor child is
ordered and alimony or postseparation support
is also ordered, the order shall separately
state and identify each allowance.
Plaintiff's first argument contends that in the Maryland Order
defendant waived his right to child support in exchange for, inter
alia, plaintiff waiving her right to alimony as well as
relinquishing her interest in a jointly-titled sailboat. Based
upon these facts, plaintiff disputes the trial judge's ruling that
she owes defendant child support in arrears in the amount of
$8,351.87.
Courts generally are reluctant to allow attacks on consent
judgments. Reavis v. Reavis, 82 N.C. App. 77, 82, 345 S.E.2d 460,
463 (1986). This policy recognizes that, absent duplicitous
tactics by either party, a negotiated settlement reflects the
desires of both parties, and usually is reached “with an eye to
events likely to follow the judgment.” Id. However, no contract
or agreement between a husband and wife can deprive the court of
its statutory and inherent responsibility to provide for the
welfare of children involved. Story v. Story, 221 N.C. 114, 116, 19
S.E.2d 136, 137 (1942). Parents may not contract away their
obligation toward their children, e.g., repudiating child support,
because the child was not party to that agreement. Id. The
Maryland Order reads in pertinent part,
E. That, based upon the agreement of the parties, ...
the Plaintiff [defendant sub judice] shall abandon
his claim for child support for the minor child,
both now and in the future.
In the instant case, the trial judge made no findings
regarding the Maryland Order. We first must determine whether the
Maryland Order is valid and enforceable in North Carolina. The
Maryland Order is interpreted as a child support order under
Maryland law. See Kramer v. Kramer, 339 A.2d 328, 335 (Md. Ct.
Spec. App. 1975) (stating, the review of an agreement that involves
child support should follow the objective law of contract
interpretation, “what a reasonable person in the position of the
parties would have thought the agreement meant at the time it was
effectuated”). It is clear in this case that both parties, by
specifically addressing the issue of child support in the Maryland
Order, intended this document to govern child support matters.
The Federal Full Faith and Credit for Child Support Orders Act
(FFCCSOA) establishes uniform rules regarding the choice of law
that state courts must follow regarding out-of-state child support
orders. See 28 U.S.C. Sec. 1738(B)(g) (Supp. 1996). When
determining the validity of the Maryland Order, according to the
guidelines set forth in FFCCSOA, we apply Maryland law in
interpreting the order, but North Carolina law in enforcing it.
Kelly v. Otte, 123 N.C. App. 585, 589, 474 S.E.2d 131, 134 (1996)
(emphasis added); disc. rev. denied, 345 N.C. 180, 479 S.E.2d 204
(1996). Here, the distinction is inconsequential because according
to the laws in both states the child support provision in the
Maryland Order is void ab initio. As articulated supra, in NorthCarolina, a husband and wife may freely contract with each other
concerning their property rights, Ritchie v. White, 225 N.C. 450,
453, 35 S.E.2d, 414, 416 (1945) (citation omitted), however,
neither party may contract away the rights of their children. See
Story, 221 N.C. at 116, 19 S.E.2d at 137. Consent orders in which
a parent contracts away a child's right to child support are also
void ab initio in Maryland for similar reasons. See Lacy v. Arvin,
780 A.2d 1180, 1186 (Md. Ct. Spec. App. 2001) (noting, that the
parents of a child . . . owe the child a legal, statutory
obligation of support); see also, Rand v. Rand, 392 A.2d 1149 (Md.
Ct. Spec. App. 1978) (holding a parent owes this obligation of
support to the child, not to the other parent), vacated on other
grounds, 374 A.2d 900 (Md. 1977); Lieberman v. Lieberman, 568 A.2d
1157, 1163 (Md. Ct. Spec. App. 1990) (holding “[a] parent cannot
agree to preclude a child's right to support by the other parent,
or the right to have that support modified in appropriate
circumstances”).
In the case sub judice, this couple effectively contracted
away the property rights of the child, e.g., child support, by
entering into the Maryland Order. In entering into this contract,
defendant did not waive a claim he had a right to waive, but
instead waived a prospective property right of the child.
Defendant was not entitled to make such a waiver. See Story, 221
N.C. at 116, 19 S.E.2d at 137. This prospective waiver of a claim
to any child support “both now and in the future” always is adverse
to the best interest of the child. Any number of factors couldhave arisen severely compromising defendant's ability to provide
support for his minor child, e.g., loss of his medical license,
disability, unforeseen medical expenses related to the child. If
this court allows such agreements to be enforced, the child is the
party who will suffer if her needs can no longer adequately be met
by the party who abdicated his “right” to her child support. In
this instance, the absolute bar on the right to recover any child
support spelled its doom, and it is not necessary to remand this
issue to the trial judge for further findings of fact. For the
reasons stated above, the trial court's ruling is affirmed as to
the award of $8,351.87 in child support arrears owed by plaintiff.
Plaintiff's second claim assigns error to the trial judge's
failure to award attorneys' fees. Specifically, plaintiff asserts
that defendant refused to provide support which was adequate under
the circumstances existing at the time of the filing of this action
and that defendant had the means and ability to pay the child
support but failed to do so. We disagree.
In child support cases, the award of attorneys' fees is
governed by North Carolina General Statutes, section 50-13.6 (2003)
which provides:
In an action or proceeding for the custody or
support, or both, of a minor child, including
a motion in the cause for the modification or
revocation of an existing order for custody or
support, or both, the court may in its
discretion order payment of reasonable
attorney's fees to an interested party acting
in good faith who has insufficient means to
defray the expense of the suit. Before
ordering payment of a fee in a support action,
the court must find as a fact that the party
ordered to furnish support has refused toprovide support which is adequate under the
circumstances existing at the time of the
institution of the action or proceeding;
provided however, should the court find as a
fact that the supporting party has initiated a
frivolous action or proceeding the court may
order payment of reasonable attorney's fees to
an interested party as deemed appropriate
under the circumstances.
(Emphasis added).
In the instant case, the trial judge made no findings of fact,
nor was there any evidence in the record that defendant had been
“ordered to furnish support” and had “refused to provide support,”
a prerequisite to the awarding of attorneys' fees. On the
contrary, the order issued by the trial judge is the first and only
such order requiring defendant to furnish child support. The fact
that the order requires payment of back support is of no
consequence in determining whether plaintiff is entitled to
attorneys' fees. The trial judge concluded as a matter of law that
“based on the earning abilities of the parties and their present
financial state,” neither party was entitled to attorneys' fees.
This determination falls squarely within the purview of the trial
judge, and we see no reason to disturb her ruling. Consequently,
we affirm the trial judge's decision not to grant attorneys' fees
to plaintiff.
Plaintiff's final claim assigns error to the trial judge's
decision not to award interest on the past child support she is
due. Specifically, plaintiff contends that defendant did not pay
child support for three and one half years although defendant had
the means and ability to pay child support, and plaintiff now haslost the use of those funds until it is paid. Plaintiff further
charges that if the court is to allow the defendant to pay that
past due amount over a period of years going forward, she is
entitled to interest on those installment payments. We will
address each argument in turn.
“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, 181, 493 S.E.2d 819 (1997)(quoting Moore
v. Moore, 35 N.C. App. 748, 751, 242 S.E.2d 642, 644 (1978)).
“Absent a clear abuse of discretion, a judge's determination of
what is a proper amount of support will not be disturbed on
appeal.” Taylor, 128 N.C. App. at 181, 493 S.E.2d at 819
(1997)(quoting Plott v. Plott, 313 N.C. 63, 69, 326 S.E.2d 863,
868 (1985)). To support the conclusions of law, the judge also
must make specific findings of fact so that we may determine
whether the judge gave due regard to the facts of this particular
case. Plott, 313 N.C. at 69, 326 S.E.2d at 868. “Such findings are
necessary to an appellate court's determination of whether the
judge's order is sufficiently supported by competent evidence.” Id.
(quoting Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967)). To
disturb the trial judge's calculation, the appellant must
demonstrate that the ruling was manifestly unsupported by reason.
Id. (quoting Clark v. Clark, 301 N.C. 123, 128-29, 271 S.E.2d 58,
63 (1980)). Here there is adequate evidence in the record that the trial
judge in this case took a reasoned and thorough approach to the
determination of total child support allocations, as well as each
party's share of that total, to wit she devoted more than seven
pages in the record to explaining the model she used to determine
the award. North Carolina General Statutes, section 50-13.4 was
designed to be intentionally broad, allowing the trial judge great
discretion in fashioning an appropriate remedy. Griffin v. Griffin,
103 N.C. App. 65, 404 S.E.2d 478 (1991). While the trial judge had
the discretion to order interest on the past due child support,
thereby increasing the net award of $55,689.19 that plaintiff was
due, she elected not to do so. That determination was properly
within her discretion and, therefore, plaintiff's assignment of
error is overruled.
Plaintiff's second challenge rests upon the trial judge's
decision to allow defendant a period of approximately four years
during which to pay the $55,589.19. In citing to our general
statutes, this Court stated that “[u]nder North Carolina law, past
due child support payments vest when they accrue.” Taylor, 128 N.C.
App. at 182, 493 S.E.2d at 820 (citing N.C. Gen. Stat. §
50-13.10(a) (1995)). In holding that interest may be awarded, this
Court reasoned that “[a]llowing plaintiff to defer payment for
years of his obligations...without paying interest on the award,
would effectively grant him an interest-free loan from his
ex-wife.” Id. The trial judge in this case determined that plaintiff was
entitled to $55,689.19, a sum certain if it were due today. If
defendant were simply to write plaintiff a check for the
arrearages, he would be entitled to do so without penalty of
interest. Equity dictates however, that if defendant chooses to
extend the payments he owes his ex-wife over a period of time, she
be compensated for the loss of use of those funds, barring a
finding by the trial judge to the contrary. See generally Id. In
other commercial transactions this compensation usually takes the
form of interest.
The trial judge made no findings of fact or corresponding
conclusions of law justifying the decision to allow defendant to
repay the past due child support amount in installments over a
period of approximately four years, without having to pay any
interest on that amount going forward. Absent findings by a judge
to the contrary, this installment arrangement qualifies as a forced
interest free loan from plaintiff to defendant. Id.
We affirm as to the trial judge's rulings on the amount of
child support arrears owed by plaintiff, and to the judge's rulings
denying attorneys' fees. We also affirm the trial judge's decision
not to award interest on the past due child support, and we remand
to the trial court to make further findings of fact regarding
interest due on the installment plan for the payment of the accrued
child support going forward sufficient to allow this court to
conduct an adequate review of the award.
Affirmed in part, remanded in part.
Judges HUDSON and STEELMAN concur.
Report per 30 (e).
*** Converted from WordPerfect ***