Appeal by Defendant from order entered 29 August 2005 by Judge
Amy R. Sigmon in District Court, Catawba County. Heard in the
Court of Appeals 13 September 2006.
Starnes and Killian, PLLC, by Wesley E. Starnes, for
Plaintiff-Appellee.
Respess & Jud, by W. Wallace Respess, Jr.; and Marshall
Hurley, PLLC, by Marshall Hurley, for Defendant-Appellant.
McGEE, Judge.
Roger William Martin (Plaintiff) and Cheryl Walker Martin (now
Davidson) (Defendant) were married on 19 May 1979. The parties
separated on 16 September 1987 and were divorced on 4 November
1988.
The parties have one child, Anita Carol Martin (Anita). Anita
was born 26 February 1986 and has Down's Syndrome. Plaintiff filed
a complaint seeking custody of Anita and child support on 23
December 1992. Defendant filed an answer and counterclaim for
custody and child support on 19 April 1993. The parties entered
into a consent order on 21 June 1994 (the 1994 order), which placedprimary custody of Anita with Defendant and secondary custody with
Plaintiff. The 1994 order also required Plaintiff to maintain
health insurance for Anita and provided as follows:
Plaintiff shall pay the sum of $513.00 per
month payable $119.00 each week beginning
Friday, June 3, 1994 and continuing each
Friday thereafter during the lifetime of Anita
. . . or until such time during Anita['s]
. . . lifetime that she is able to care for
herself and provide for herself economically
or until such time as Anita . . . shall marry,
whichever shall first occur.
Plaintiff filed a motion in the cause to modify the 1994 order
on 23 January 1997. In his motion, Plaintiff alleged the following
change of circumstances:
a. . . . Plaintiff was terminated from his
employment at Norandex, Inc. on May 2,
1996, not through any fault on the part
of . . . Plaintiff, but because of
corporate downsizing;
b. Since May 2, 1996, . . . Plaintiff has
sought employment with several companies
but has been unsuccessful;
c. Since August 1, 1996, . . . Plaintiff has
been self employed at R & R Connections,
with a substantial reduction in
Plaintiff's income since his employment
at Norandex, Inc.;
d. After Plaintiff's termination of
employment from Norandex, Inc., Plaintiff
has had to procure different medical
insurance for himself and the minor child
at a substantial cost to Plaintiff;
e. . . . [D]efendant has remarried and is no
longer employed;
f. . . . Defendant[] no longer requires
work-related child care.
Plaintiff requested that the trial court "enter an order of childsupport in accordance with . . . Plaintiff's income and in
accordance with the North Carolina Child Support Guidelines."
Defendant filed a reply and moved for a deviation from the child
support guidelines to provide for Anita's extraordinary needs.
The trial court entered a consent order on 22 July 1997 (the
1997 order), determining the "Motion in the Cause filed by . . .
Plaintiff seeking a reduction in support and a counter-motion [by]
. . . Defendant for a modification of the prior support orders and
a deviation from the Child Support Guidelines." The 1997 order
provided "[t]hat commencing with the month of July, 1997,
. . . Plaintiff shall pay into the Office of the Clerk of Superior
Court of Catawba County the sum of $95.00 per week, commencing with
Friday, July 4, 1997, and continuing weekly thereafter until
further orders of this Court." The 1997 order also required
Defendant to carry medical insurance for Anita and provided that
Plaintiff and Defendant would each pay fifty percent of any of
Anita's hospital, doctor, drug, dental, opthalmological, and
orthodontic expenses which were not otherwise covered by
Defendant's medical insurance. The 1997 order further stated:
"Except as modified herein, this Court's prior Orders are to remain
in full force and effect."
Plaintiff filed a motion in the cause to terminate child
support on 24 November 2004, alleging that Anita had reached the
age of eighteen and did not attend secondary school. Plaintiff
sought an order terminating his obligation to pay child support for
Anita as of 29 May 2004. Defendant filed a response to Plaintiff'smotion in the cause on 8 December 2004, alleging that Plaintiff
remained obligated to pay child support for Anita pursuant to the
1994 order.
The trial court entered a child support order on 29 August
2005, finding and concluding that the 1997 order superseded the
1994 order as to issues of amount and duration of child support.
The trial court also found that child support under the 1997 order
terminates in accordance with N.C.G.S. § 50-13.4(c), which
provides:
Payments ordered for the support of a child
shall terminate when the child reaches the age
of 18 except:
(1) If the child is otherwise
emancipated, payments shall
terminate at that time;
(2) If the child is still in primary
or secondary school when the child
reaches age 18, support payments
shall continue until the child
graduates, otherwise ceases to
attend school on a regular basis,
fails to make satisfactory academic
progress towards graduation, or
reaches age 20, whichever comes
first, unless the court in its
discretion orders that payments
cease at age 18 or prior to high
school graduation.
In the case of graduation, or attaining age
20, payments shall terminate without order by
the court, subject to the right of the party
receiving support to show, upon motion and
with notice to the opposing party, that the
child has not graduated or attained the age of
20.
N.C. Gen. Stat. § 50-13.4(c) (2005). The trial court further found
that Anita was attending Western Piedmont Community College, whichqualified as a secondary school. Therefore, the trial court
ordered Plaintiff to continue to pay child support as set forth in
the 1997 order until Anita turned twenty, so long as she remained
continuously enrolled in her present program or a substantially
similar program. In the event that Anita ceased attending classes
prior to her twentieth birthday, child support would immediately
end. Defendant appeals.
_______________________
Defendant argues the trial court erred by ordering that
Plaintiff's obligation to pay child support terminate when Anita
reached the age of twenty, or before, if Anita ceased attending
classes. Specifically, Defendant contends the trial court erred in
its conclusion of law that the 1997 order superseded the 1994 order
as to the duration of Plaintiff's child support obligation.
Conclusions of law are reviewable
de novo by this Court.
Evans v.
Evans, 169 N.C. App. 358, 360, 610 S.E.2d 264, 267 (2005).
"In North Carolina, there is no longer a statutory obligation
for parents to support their disabled adult children."
State v.
Benfield, 95 N.C. App. 451, 453, 382 S.E.2d 776, 777 (1989).
However, "a parent can assume contractual obligations to his child
greater than the law otherwise imposes. . . . Thus, a parent may
expressly agree to support his child after emancipation and beyond
majority, and such agreements are binding and enforceable."
Williams v. Williams, 97 N.C. App. 118, 122, 387 S.E.2d 217, 219
(1990) (citations omitted).
In the present case, it is uncontested that in the 1994 orderPlaintiff agreed to pay child support for Anita beyond the age of
her majority until either (1) Anita was able to care for herself
and provide for herself economically, or (2) Anita married. What
the parties dispute in this action is the effect of the 1997 order.
We hold that the 1997 order controls only as to the amount of
child support; it does not control the duration of Plaintiff's
child support obligation. In Plaintiff's 23 January 1997 motion in
the cause to modify child support, Plaintiff only sought a
reduction in the amount of child support, rather than a reduction
in the duration of his child support obligation. In his motion,
Plaintiff's alleged change of circumstances solely addressed the
reduction in Plaintiff's income. Moreover, Plaintiff requested
that the trial court "enter an order of child support in accordance
with . . . Plaintiff's
income and in accordance with the North
Carolina Child Support Guidelines." In his 1997 motion, Plaintiff
never sought a reduction in the duration of his child support
obligation.
Furthermore, in the 1997 order, the parties recognized that
the matter came before the trial court solely upon Plaintiff's
motion "seeking a reduction in support" and Defendant's counter-
motion. The 1997 order also expressly states that "[e]xcept as
modified herein, this Court's prior Orders are to remain in full
force and effect." Although it would have been a better practice
for the 1997 order to have restated all the provisions of the 1994
order with regard to duration, it was not required. Because
Plaintiff's motion requested only a reduction in the amount ofchild support, and in view of the provision that prior orders
remained in full effect, the durational language in the 1997 order
that child support continue "weekly thereafter until further orders
of this Court[,]" dealt only with the amount of child support. In
other words, the amount of child support determined by the 1997
order would remain in effect until further orders of the trial
court.
Plaintiff relies on
Jackson v. Jackson, 102 N.C. App. 574, 402
S.E.2d 869 (1991) in arguing that, "'further Orders of the Court'
language serve[d] as a portion of the Court's reasoning in
rejecting a contention that a parent had obligated himself beyond
the statutorily mandated support period." Plaintiff argues the
same result is mandated in the present case. We disagree.
In
Jackson, the plaintiff and the defendant, who were
divorced, entered into a consent judgment in which the defendant
was required to pay child support for the parties' two minor
children, the younger of whom was disabled.
Jackson, 102 N.C. App.
at 574, 402 S.E.2d at 869. The judgment required the defendant to
pay support until the older child reached age eighteen and further
provided that at that time, the support payments "may be reduced by
agreement of the parties or may be subject to further Orders of the
Court."
Id. The parties' older child became eighteen years old in
1980; the plaintiff filed a motion to increase the defendant's
payments for support of the younger child in 1989, when the younger
child was nineteen years old.
Id. at 574-75, 402 S.E.2d at 869.
The trial court increased the defendant's payments, and thedefendant filed a motion under N.C. Gen. Stat. § 1A-1, Rule
60(b)(5) and Rule 60(b)(6), arguing the trial court's order was
entered under a mistaken impression that North Carolina still
required parents to support their disabled children past the age of
majority.
Id. at 575, 402 S.E.2d at 869-70. The trial court
agreed with the defendant and vacated the order, and the plaintiff
appealed to this Court.
Id. at 575, 402 S.E.2d at 870.
Our Court interpreted the following provision of the parties'
consent judgment:
1. It is understood and agreed that nothing in
this Judgment shall effect [sic] the
obligation of either party to provide for the
continued support and/or necessary medical
expenses and necessities of [the younger
child] beyond the age of her majority and that
all matters pertaining to her support and
maintenance are subject to further Orders of
the Court.
Id. Our Court held as follows:
The only thing that the parties agreed to in
this provision, it seems to us, was that they
were obligated under the law to continue
supporting the child; it cannot be construed
as an agreement to continue supporting her
independent of that obligation. Since [the]
defendant's obligation to continue supporting
the child beyond its minority had been
abrogated by the General Assembly and he had
not contracted to continue the payments apart
from that obligation, the order requiring him
to continue supporting the child had no legal
basis, as the trial court correctly ruled in
setting it aside.
Id. at 576, 402 S.E.2d at 870.
In the present case, despite Plaintiff's contention to the
contrary, our Court in
Jackson did not construe the language
"further Orders of the Court." Our Court simply held that theparties did not obligate themselves to provide support greater than
that required by law.
Id.
In the present case, Plaintiff obligated himself in the 1994
order to support Anita beyond the age of her majority. We hold the
trial court erred by concluding that the 1997 order superseded the
1994 order as to the duration of Plaintiff's child support
obligation and in ordering Plaintiff's child support obligation to
terminate if Anita failed to attend classes or reached the age of
twenty, whichever first occurred. The durational terms of the 1994
order remain in full force and effect. We reverse and remand the
matter to the trial court.
Reversed and remanded.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***