Gray v. Peele , 235 N.C. App. 554 ( 2014 )

NO. COA13-1333
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
TAMI L. GRAY,
Plaintiff,
v. Wake County
No. 08 CVD 003713
DARRELL KEITH PEELE,
Defendant.
Appeal by defendant from order entered 9 August 2013 by
Judge Daniel J. Nagle in Wake County District Court. Heard in
the Court of Appeals 22 May 2014.
No brief filed on behalf of plaintiff-appellee.
Elisabeth P. Clary for intervenor plaintiff-appellee Wake
County Child Support Enforcement.
Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for
defendant-appellant.
HUNTER, JR., Robert N., Judge.
Darrell Keith Peele (“Defendant”) appeals from an order
denying his motion to modify child support. Defendant contends
that the prior child support order entered in 2010 was temporary
in nature and that the trial court erred in requiring him to
demonstrate that a substantial change in circumstances had taken
place since the entry of the existing order. Defendant also
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challenges the trial court’s conclusions and findings of fact.
For the following reasons, we dismiss the appeal as
interlocutory.
I. Factual & Procedural History
Tami L. Gray (“Plaintiff”) and Defendant were married on 30
April 1994. During the marriage, Plaintiff and Defendant had
one child, L.K.P., who was born in March 1999. Plaintiff and
Defendant subsequently divorced.
On 24 October 2000, the Granville County District Court
entered a temporary child support order that, pursuant to the
North Carolina Child Support Guidelines, required Defendant to
pay the presumptive sum of $685.57 per month for the minor
child. On 17 April 2001, when the child was 2 years old, the
court entered a permanent custody order giving Plaintiff primary
physical custody of L.K.P. and Defendant Wednesday evening,
alternating weekend, and holiday visitation rights. The custody
order also provided that “[t]he parties may exercise such other
and further residency periods with the minor child as may be
mutually agreed upon by the parties.”
On 21 February 2003, the court modified the temporary child
support order, requiring Defendant to pay $685.57 per month in
accordance with the previous child support order, plus an
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additional $100 per month towards arrearages. Nearly five years
later, in February 2008, the action was transferred to Wake
County and an order was entered permitting the local Child
Support Enforcement Agency to intervene on behalf of Plaintiff.
Thereafter, on 4 May 2010, Defendant filed a motion to
modify his child support obligation, citing loss of work and
unemployment, as well as the fact that L.K.P. had been staying
with him an additional night during the week. Following a
hearing on the motion, the trial court entered an order on 6
August 2010 based on a consent agreement between the parties
reducing Defendant’s monthly child support obligation to $500
per month.
On 10 October 2010, the parties mutually agreed to
implement a week-on/week-off custody arrangement, although the
custody order was not formally modified. After the parties
implemented this agreement, Defendant stopped paying child
support without seeking a modification from the trial court and
without Plaintiff’s consent. On 31 August 2011, Plaintiff
withdrew from the agreement and demanded that Defendant revert
to the custody schedule contained in the 17 April 2001 custody
order. Despite Plaintiff’s objections, however, the record
evidence shows that the parties continued the week-on/week-off
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custody arrangement until the hearing in this matter in May of
2013 -- a period of over 2 years and seven months. On 27
September 2011, Defendant filed a motion to modify custody
alleging the existence of many changes in the parties’
circumstances and the child’s needs, requesting an award of
primary custody or in the alternative, that the “Court modify
the 2001 Custody Order such that the parties immediately resume
and maintain the week-on week-off custodial schedule that they
have been operating under for the past year.” This motion
remains pending in the trial court.
Thereafter, Defendant filed a separate motion to modify
child support on 10 April 2012 and again on 31 January 2013,
alleging that circumstances had changed in that he had
experienced a period of unemployment, his home had been
foreclosed upon, his car had been repossessed, and his financial
condition had deteriorated. Defendant also cited the week-
on/week-off custody schedule in the motion. Defendant’s motion
to modify child support was heard at the 24 May 2013 “term of
Wake County Civil IV-D District Court.” Following a hearing
concerning the motion to modify child support only, the trial
court entered an order dated 9 August 2013 concluding, inter
alia, that:
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2. Defendant earns income on a monthly basis
and is capable of contributing to the
support of the minor child, [L.K.P.].
3. Defendant should be required to pay child
support for the minor child, [L.K.P.].
4. A change in the physical custody of a
child constitutes a substantial change in
circumstances warranting modification of an
existing child support order.
5. While a change in the physical custody of
the minor child existed from to [sic] 10
October 2010 to 31 August 2011, the
defendant failed to file a motion to modify
child support and was not precluded from
filing by physical disability, mental
incapacity, indigency, misrepresentation of
another party, or other compelling reason,
and the change in physical custody no longer
exists and payment has vested.
6. The existing ordered support amount is
sufficient to meet the reasonable needs of
the minor child.
(Internal citation omitted). Accordingly, the trial court
denied Defendant’s motion to modify child support and ordered
Defendant to continue to make child support payments of $500 per
month as previously ordered. Defendant filed timely notice of
appeal from the trial court’s order.
II. Jurisdiction
Defendant argues that we have jurisdiction to consider this
order because it is not interlocutory. We disagree.
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Generally, there is no right of immediate
appeal from interlocutory orders and
judgments. An interlocutory order is one
made during the pendency of an action, which
does not dispose of the case, but leaves it
for further action by the trial court in
order to settle and determine the entire
controversy. On the other hand, a final
judgment is one which disposes of the cause
as to all the parties, leaving nothing to be
judicially determined between them in the
trial court.
Hausle v. Hausle, ___ N.C. App. ___, ___, 739 S.E.2d 203, 205-06
(2013) (citations, quotation marks, and brackets omitted). “The
reason for this rule is to prevent fragmentary, premature, and
unnecessary appeals by permitting the trial court to bring the
case to final judgment before it is presented to the appellate
courts.” Peters v. Peters, ___ N.C. App. ___, ___, 754 S.E.2d
437, 439 (2014) (citation, quotation marks, and brackets
omitted). “In the child support context, an order setting child
support is not a final order for purposes of appeal until no
further action is necessary before the trial court upon the
motion or pleading then being considered.” Banner v. Hatcher,
124 N.C. App. 439, 441, 477 S.E.2d 249, 250 (1996).
In the literal sense of the word, no child support order
entered in this state is “permanent” because it “may be modified
or vacated at any time, upon motion in the cause and a showing
of changed circumstances[.]” N.C. Gen. Stat. § 50-13.7(a)
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(2013). Nevertheless, our case law provides that a child
support order may be characterized as “permanent” when the order
is based on the merits of the case and intended to be final.
See Miller v. Miller, 153 N.C. App. 40, 47–48, 568 S.E.2d 914,
919 (2002).
With respect to child custody orders, we have said that
“[a] temporary order is not designed to remain in effect for
extensive periods of time or indefinitely.” Gary v. Bright, ___
N.C. App. ___, ___, 750 S.E.2d 912, 915 (2013) (internal
quotation marks and citation omitted).
[A]n order is temporary if either (1) it is
entered without prejudice to either party[;]
(2) it states a clear and specific
reconvening time in the order and the time
interval between the two hearings was
reasonably brief[;] or (3) the order does
not determine all the issues. If the order
does not meet any of these criteria, it is
permanent.
Woodring v. Woodring, ___ N.C. App. ___, ___, 745 S.E.2d 13, 18
(2013) (alterations in original) (internal quotation marks and
citation omitted).
With respect to child support orders, our case law is less
developed, but not totally devoid of guiding precedent. See,
e.g., Miller, 153 N.C. App. 40, 568 S.E.2d 914; Cole v. Cole,
149 N.C. App. 427, 562 S.E.2d 11 (2002); Banner, 124 N.C. App.
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439, 477 S.E.2d 249. In these cases, we have looked to the
intent behind the trial court’s order to determine if a support
order is temporary. In doing so, we have considered whether the
order explicitly identifies itself as a temporary order and
whether the language of the order contemplates that another
“permanent” order will be entered at a future point in time.
Miller, 153 N.C. App. at 47–48, 568 S.E.2d at 919; Cole, 149
N.C. App. at 433–44, 562 S.E.2d at 14–15.
A claim for either child support or custody can be brought
and heard by the trial court independently, so in one sense, a
final determination of one claim would be entirely separate of
the other. But in many cases, and this is one of them, the
amount of child support depends in large part upon the custodial
schedule and the custodial schedule is in dispute. In fact,
N.C. Gen. Stat. § 50-13.4 establishes child support guidelines
which are based upon the applicable custodial schedule and a
presumption that child support shall be set in accordance with
the guidelines unless the parties’ incomes place their case
outside of the guidelines or there is a request for deviation
from the guidelines and the trial court makes findings that a
deviation is justified in the particular case. See generally
Pataky v. Pataky, 160 N.C. App. 289, 295-96, 585 S.E.2d 404,
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408-09 (2003) (discussing in detail the origins of and
procedures applicable to the child support guidelines), aff’d in
part and disc. rev. dismissed in part, 359 N.C. 65, 602 S.E.2d
360 (2004); N.C. Gen. Stat. § 50-13.4(c), (c1).
This statutory scheme and the presumption of application of
the guidelines makes the claims of child custody and child
support legally interdependent. Here, there is a pending motion
to modify custody which, if allowed, would fundamentally alter
the facts upon which the trial court based its child support
decision. After entry of the 6 August 2010 child support order,
the parties agreed that the minor child would live with each
party during alternate weeks, and the evidence indicated that
this living arrangement continued up to the time of the hearing
in May of 2013. Although plaintiff “withdrew her consent” from
that arrangement on 31 August 2011, they continued to alternate
custody weekly. On 27 September 2011, defendant moved to modify
the parties’ custody order to reflect the new arrangement. On
10 April 2012, defendant also moved to modify child support,
alleging as part of the justification for this request the
actual custodial arrangement the parties had been following. On
18 April 2013, defendant also filed notice that he would
request a deviation from the North Carolina
Child Support Guidelines and requests the
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Court to consider the Defendant’s deviation
when applying the guidelines and to take
into consideration the custodial schedule of
the parties. The Defendant asserts that the
Child Support Guidelines are unreasonable
because the parties maintained a fifty/fifty
(50/50) custodial schedule for the minor
child since October 2010. Based upon
information and belief, the Defendant
believed the Order was in effect for a 50/50
schedule and has since discovered that the
Custody Order may not have been signed and
the Plaintiff and Defendant have exercised a
50/50 custody since October 2010.
The order on appeal only addressed the child support
issues, while leaving the custody issues unresolved—nearly two
years after defendant had moved to modify the custody order to
reflect the actual custody schedule. We understand that the
order failed to address child custody because this case was
heard in Wake County Civil IV-D District Court and prosecuted by
the Wake County Child Support Enforcement Agency on behalf of
Plaintiff. The “Civil IV-D” session of District Court is
commonly referred to as “child support court.” Chapter 110 of
the North Carolina General Statutes sets out a comprehensive
statutory scheme for establishment of child support orders and
enforcement of those orders in cases which fall under that
Chapter, defined as “a case in which services have been applied
for or are being provided by a child support enforcement agency
established pursuant to Title IV–D of the Social Security Act as
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amended and this Article.” N.C. Gen. Stat. § 110–129(7) (2011).
N.C. Gen. Stat. § 110-129.1(a)(3) grants to the Department of
Health and Human Services the “power and duty” to
Establish and implement procedures under
which in IV-D cases either parent or, in the
case of an assignment of support, the State
may request that a child support order
enforced under this Chapter be reviewed and,
if appropriate, adjusted in accordance with
the most recently adopted uniform statewide
child support guidelines prescribed by the
Conference of Chief District Court Judges.
Because of the specialized nature of the IV-D session of
court, motions for modification of custody are not heard, nor do
Child Support Enforcement agencies represent parents in regard
to any custody issues. While we appreciate this procedural
situation and the reason that one motion was heard while the
other remained pending, despite its apparent relevance to the
issues raised in the motion to modify child support, we have to
determine the interlocutory nature of the order based upon the
law. The present order failed to resolve the pending custody
issue or even to address the parties’ custodial arrangement
during the entire relevant period, even though the custodial
schedule was in dispute.1 The trial court simply ordered the
1
All the trial court could do in this situation, since the
pending custody motion was not under consideration, was to make
findings regarding the past practice of the parties and whether
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parties to continue following the prior order, awarding
plaintiff $500 per month despite the fact that the actual
custody arrangement had changed.
A change in the custodial arrangement is a substantial
change in circumstances affecting child support, as the trial
court itself noted, citing Kowalick v. Kowalick, 129 N.C. App.
781, 787, 501 S.E.2d 671, 675 (1998). Without knowing the
custody arrangement, the trial court cannot determine which
child support worksheet to use, or whether to deviate from the
guidelines. See N.C. Gen. Stat. § 50-13.4(c1) (2011) (“The
guidelines shall include a procedure for setting child support,
if any, in a joint or shared custody arrangement which shall
reflect the other statutory requirements herein.”); N.C. Child
Support Guidelines, AOC-A-162 (2011). So, in effect, this order
simply temporarily continues the existing support order until
the trial court can hear the custody issues.
This would also explain why the trial court made findings
of fact about the parties’ incomes and all information needed to
set guideline child support, but failed to make any findings
any retroactive modification of the child support obligation
might be justified, and the trial court did make findings
concerning this issue. Indeed, defendant did not dispute that
the effective date of any retroactive child support modification
would be the date of filing of his motion to modify child
support.
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addressing the justification for deviation from the guidelines
or any determination of the amount of child support which would
be required by the guidelines, and then simply continued in
effect the $500.00 child support amount which the parties had
agreed upon in 2010. If the trial court had intended this to be
a permanent child support order, the findings and conclusions of
law would not support this child support amount, which ignores
the findings of fact about the parties’ incomes and other
relevant numbers and fails to make any findings as to a need to
deviate from the guidelines. But as a temporary order entered
by the child support enforcement court to provide for payment of
child support until the pending motion to modify custody can be
determined and child support set based upon the actual custodial
schedule, the order makes sense both legally and practically.
Where our record demonstrates that there was at the time of
the hearing a motion to modify custody pending, with the actual
custodial schedule uncertain and in dispute, and the child
support obligation is presumptively directly dependent upon the
custodial schedule, allowing the present child support order to
be immediately appealed would lead to “fragmentary, premature[,]
and unnecessary appeals[.]” Peters, ___ N.C. App. at ___, 754
S.E.2d at 439 (first alteration in original). Therefore, we
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hold that the present order is interlocutory and dismiss the
appeal.2
III. Conclusion
For the foregoing reasons, defendant’s appeal from the
child support order is dismissed.
DISMISSED.
Judges ERVIN and DAVIS concur.
2
We note that the Legislature recently enacted Session Law 2013-
411, codified at N.C. Gen. Stat. § 50-19.1 (2013), which governs
appeals from certain family law orders while other claims remain
pending. However, this statute only became effective 23 August
2013, after the order on appeal was entered. 2013 N.C. Sess.
Laws ch. 411, § 2. Indeed, defendant has not argued that this
statute applies here. Therefore, we do not address how this
statute might affect our analysis.