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Leak v. Leak

April 07, 1998

SUE B. LEAK, PLAINTIFF-APPELLEE,
v.
GRADY D. LEAK, DEFENDANT-APPELLANT.



Appeal by defendant from order entered 3 February 1997 by Judge Elaine M. O' Neal in Durham County District Court. Heard in the Court of Appeals 27 January 1998.

The opinion of the court was delivered by: Wynn, Judge.

N.C. Gen. Stat. § 50-13.4(c) permits a supporting parent to unilaterally terminate child support payments to a child who has graduated from high school or attained the age of 20. Because the 18 year old child in this case had not graduated from high school, we uphold the trial court's determination that the father improperly terminated his support payments without court approval. Further, we hold that the trial court properly ordered the father to pay increased support for his son and the mother's attorney's fees.

The father in this case -- an adJudged incompetent person acting though his legal guardian -- unilaterally terminated child support payments shortly after his son's eighteen birthday in March of 1996. He contended that his obligation to pay child support terminated automatically because his son neither attended high school on a regular basis nor made satisfactory progress towards graduation from high school.

In response, the mother petitioned the trial court for continued payments and arrears, as well as an increase in the amount of the father's support obligation. The mother submitted with her petition a Financial Affidavit listing expenses for both herself and son and explaining that increased child support was warranted by a change of circumstances arising from her having diabetes mellitus. This condition, she asserted, reduced her income to only $200.00 per month because she was forced to take a medical leave of absence from work.

Following a hearing, District Court Judge Elaine O'Neal concluded as a matter of law that the son was regularly attending school and making satisfactory progress towards graduation. Accordingly, she ordered the father to continue paying support to his son. The court also increased his support payments from $211.36 per month to $396 per month, with payment of arrears accruing from July of 1996. Finally, judge O'Neal ordered the father to pay the mother's attorney fees in the amount of $959.00. The father appealed to this Court.

I.

The father first argues that the trial court erred in holding that he had an affirmative duty under N.C. Gen. Stat. § 50-13.4(c) to bring a motion before the court prior to terminating his support payments to his 18 year-old son.

N.C.G.S. § 50-13.4(c) provides that court ordered child support payments terminate when the child reaches the age of 18 except:

(1) If the child is otherwise emancipated,... (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.

N.C.G.S. § 50-13.4(c)(1993).

The father in this case unilaterally terminated his support payments to his son because he believed that the son was not attending classes on a regular basis and was not making satisfactory progress towards his graduation. According to the father, our legislature authorized him to take such action as a payor of child support when it declared at the outset of N.C.G.S. § 50-13.4(c) that "[p]ayments ordered for the support of a child shall terminate at the age of 18." This mandatory language, the father argues, when read in light of the remainder of the statute, permits a payor to unilaterally terminate child support obligations when the child, who is not otherwise emancipated but is still in high school at age 18, ceases to attend school on a regular basis or fails to make satisfactory progress towards graduation.

According to the trial court, however, the statute contemplates unilateral termination of support payments for a child still in high school at age 18 only if that child has graduated from high school or attained the age of 20 when the support payments are terminated. We agree with the trial court. N.C.G.S. § 50-13.4(c), provides in a concluding paragraph that:

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.

Thus, N.C.G.S. § 50-13.4(c) permits a payor to unilaterally terminate his child supports payments to a child who has reached age 18 only upon the occurrence of one of the events provided for in that concluding paragraph - i.e., when the child graduates from high school, or when the child attains the age of 20. This reading represents the more common sense interpretation of the statute. In fact, to allow a parent to unilaterally determine whether a child is regularly attending school, or is making satisfactory progress towards graduation would undermine the purpose of this statute, which is to provide continuing child support for children in school. Clearly, any parent desiring to terminate child support for an under 20 year old unemanicipated child still in school, need only satisfy the court by motion that the child is not making satisfactory progress towards graduation. Accordingly, we hold that the trial court correctly determined that under N.C.G.S. § ...


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