Carteret Cnty. ex rel. Amor v. Kendall , 231 N.C. App. 534 ( 2014 )

NO. COA13-603
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
CARTERET COUNTY o/b/o, LANNI AMOR
V KENDALL,
Plaintiff,
v. Carteret County
No. 12 CVD 1150
IV-D No. 5339303
GREGORY S. KENDALL,
Defendant.
Appeal by Plaintiff from order entered 8 March 2013 by Judge
Paul M. Quinn in Carteret County District Court. Heard in the
Court of Appeals 21 October 2013.
Erin B. Meeks for Plaintiff.
No brief filed by Defendant.
DILLON, Judge.
Carteret County, on behalf of Lanni Amor Vero Kendall
(Plaintiff), appeals from the trial court’s order denying
enforcement in North Carolina of a child support order originally
entered in Colorado against Plaintiff’s ex-husband, Gregory S.
Kendall (Defendant). We reverse.
I. Factual & Procedural Background
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Plaintiff and Defendant lived in Colorado at the time of their
divorce in January 2009. When the divorce decree was entered, the
Colorado court also entered an order requiring Defendant to pay
child support for their minor child. Defendant subsequently
relocated to North Carolina, prompting Plaintiff to seek
registration and enforcement of the Colorado child support order
in North Carolina. A notice of registration of the Colorado order
in North Carolina was issued on 15 October 2012 and served on
Defendant on or about 26 October 2012.
Defendant timely filed a request for a hearing to contest
enforcement of the Colorado order in North Carolina. The matter
was heard in Carteret County District Court on 7 February 2013, at
which time Defendant contended, essentially, that he had
wrongfully been required to register as a sex offender in North
Carolina and that this error had prevented him from securing
employment through which he could earn wages to pay child support.
Counsel for Plaintiff countered that Defendant’s contention was
without merit, as it bore no relation to any of the seven
statutorily prescribed defenses available to contest registration
and enforcement of the child support order under N.C. Gen. Stat.
§ 52C-6-607(a). The trial court issued its ruling in open court
as follows:
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I’m going to go off the grill on this one and
I’ll say the same thing I did to you and this
might be wrong – what I’m getting ready to do.
I’m going to make up an eighth reason,
(inaudible), and I’m not going to register the
Order here today and . . . they’re certainly
free to appeal this and they probably will[.]”
. . . .
They’re going to appeal this so, again,
[Defendant], I feel for your position. I’m
going to buy you a little more time on this
but uh, eventually this is going to come down
on you, okay? So do some scrambling, do
whatever you need to do, but from today’s
standpoint, [we] don’t have an angry Plaintiff
here, she’s moved to Colorado and I’m not
going to register the Order. It’s very
appealable just like uh, another case I did
today but I’m going to advocate a little bit
for you today. All right. Have a good day.
The trial court subsequently entered a written order on 8
March 2013, finding that “Defendant [did] not raise any of the
defenses enumerated in N.C. Gen. Stat. § 52C-6-607(a)” and that
“Defendant’s evidence [did] not support any of the defenses
enumerated in 52C-6-607.” Notwithstanding these findings, the
trial court concluded as a matter of law that “in light of
Defendant’s legal challenge to his status as a registered sex
offender, equity demands that the Colorado child support order not
be registered in the State of North Carolina at this time.” From
this order, Plaintiff appeals.
II. Analysis
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Plaintiff contends that the trial court erred in failing to
confirm registration and permit enforcement of the Colorado child
support order in the State of North Carolina. We agree.
The trial court’s decision to deny enforcement of the child
support order constituted a conclusion of law, reviewable by this
Court de novo on appeal. State ex rel. Lively v. Berry, 187 N.C.
App. 459, 462, 653 S.E.2d 192, 194 (2007). Under the de novo
standard, “we may freely substitute our judgment for that of the
[trial] court.” Ayers v. Bd. of Adjustment for Town of
Robersonville Through Roberson, 113 N.C. App. 528, 530-31, 439
S.E.2d 199, 201 (1994).
N.C. Gen. Stat. § 52C-6-607 provides as follows:
(a) A party contesting the validity or enforcement
of a registered order or seeking to vacate the
registration has the burden of proving one or more
of the following defenses:
(1) The issuing tribunal lacked personal
jurisdiction over the contesting party;
(2) The order was obtained by fraud;
(3) The order has been vacated, suspended, or
modified by a later order;
(4) The issuing tribunal has stayed the order
pending appeal;
(5) There is a defense under the law of this
State to the remedy sought;
(6) Full or partial payment has been made; or
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(7) The statute of limitations under G.S. 52C-
6-604 precludes enforcement of some or all of
the arrears.
(b) If a party presents evidence establishing a
full or partial defense under subsection (a) of
this section, a tribunal may stay enforcement of
the registered order, continue the proceeding to
permit production of additional relevant evidence,
and issue other appropriate orders. An uncontested
portion of the registered order may be enforced by
all remedies available under the law of this State.
(c) If the contesting party does not establish a
defense under subsection (a) of this section to the
validity or enforcement of the order, the
registering tribunal shall issue an order
confirming the order.
N.C. Gen. Stat. § 52C-6-607 (2011). This court has described the
defenses enumerated in N.C. Gen. Stat. § 52C-6-607(a) as “narrowly-
defined[,]” Welsher v. Rager, 127 N.C. App. 521, 525–26, 491 S.E.2d
661, 663–64 (1997), and as an “exclusive list of defenses”
available to a party contesting the validity or enforcement of a
registered order, State, By & Through Albemarle Child Support
Enforcement Agency ex rel. George v. Bray, 130 N.C. App. 552, 557,
503 S.E.2d 686, 690 (1998) (emphasis added).
Here, the trial court acknowledged both in open court and in
its written order that Defendant had failed to carry his burden
with respect to any of the relevant defenses under N.C. Gen. Stat.
§ 52C-6-607(a). Upon careful examination of the record on appeal
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and the transcript of the 7 February 2013 hearing, we agree that
Defendant has not raised any defenses relevant to contesting
enforcement of the child support order. Defendant’s primary
defense, which the trial court evidently accepted and used as its
basis to rule in Defendant’s favor, was his purported inability to
earn wages due to the fact that he had been improperly required to
register as a sex offender. This position – that it would be
unfair to obligate him to pay child support under the circumstances
– was clearly equitable in nature. We are aware of no authority
supporting the proposition that an equitable defense may be raised
to defend against enforcement of an out-of-state child support
order registered in North Carolina. To the contrary, in Berry,
this Court specifically held as follows:
The trial judge erroneously concluded as a
matter of law that “enforcement of foreign
support orders under Chapter 52C of the
General Statutes of North Carolina is an
equitable remedy.” Chapter 52C provides a
legal remedy, not an equitable remedy. Any
equitable defenses to the child support
obligations that defendant may wish to raise
can be raised only in Florida. If defendant
is successful in Florida, he could then
contest enforcement of the orders “in North
Carolina under G.S. 52C-6-607(a)(3) on the
grounds that the order has been modified.”
187 N.C. App. at 464, 653 S.E.2d at 195 (citations
omitted).
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Accordingly, we must conclude in the instant case that the
trial court’s equitable basis for refusing to enforce the child
support order was erroneous as a matter of law. Defendant’s
failure to raise any of the applicable statutory defenses required
the trial court to confirm registration of the Colorado child
support order such that the order could be properly enforced in
North Carolina.
REVERSED.
Chief Judge MARTIN and Judge STEELMAN concur.