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Harnett County v. De La Rosa

Court of Appeals of North Carolina

March 17, 2015

HARNETT COUNTY obo Chelle B. De la Rosa, Plaintiffs,
v.
Patricio A. De la Rosa, Defendant

Heard in the Court of Appeals November 18, 2014

Page 107

Harnett County. No. 10 CVD 2326.

No plaintiff-appellee brief filed.

Elizabeth Myrick Boone, for defendant-appellant.

STROUD, Judge. Judges CALABRIA and McCULLOUGH concur.

OPINION

Page 108

Appeal by defendant from order entered 28 February 2014 by Judge Mary H. Wells in District Court, Harnett County.

STROUD, Judge.

Patricio De la Rosa appeals order awarding child support arrears to mother Chelle De la Rosa. For the following reasons, we reverse.

I. Background

On 13 December 2011, father Patricio De la Rosa (" Father" ) filed a complaint for custody and child support, divorce from bed and board, and equitable distribution. On 13 April 2011, mother Chelle De la Rosa (" Mother" ) answered the complaint and counterclaimed for custody and child support, divorce from bed and board, equitable distribution, and alimony and post-separation support. On 26 September 2011, the trial court entered an order granting the parties

Page 109

" joint legal custody with [Mother] having primary physical custody and [Father] having secondary custody in the form of visitation" and requiring Father to pay Mother

$1,878.00 per month as temporary child support beginning August 1, 2011, and [Father] shall establish an allotment or other direct pay to ensure this payment is made. Once begun, he shall take no steps to modify it without a court order. In the event the employment status of either party changes, either party may motion the court to modify the same.

The 2011 order also provided that " [t]his is a temporary, non-prejudicial order that does not preclude either party from presenting any evidence they now could, or hereinafter acquire at any further hearings in this matter."

On 31 August 2012, Father filed a motion to modify child support, which was still $1,878.00 per month. In his motion Father alleged " a substantial change of material circumstances affecting the welfare of the minor children[,]" including his discharge from the United States Army on 19 June 2012, his subsequent lack of employment, and his travel expenses to visit the children. Mother filed no response to Father's motion, but on 23 October 2012, Harnett County Child Support Services (" Harnett County" ) filed a motion to intervene as defendant in this case, a motion to redirect child support payments to the North Carolina Child Support Centralized Collections, a motion to sever the issue of child support from the other issues in the case, and a motion to establish arrears and set up a payment plan for the arrears.

On 13 March 2013, the trial court entered an " ORDER TO INTERVENE AND REDIRECT PAYMENTS" which granted all of Harnett County's motions and also addressed Father's motion to modify child support.[1] As to the motion to modify, the trial court found:

There has been a change of circumstances since the entry of the Order referred to above which materially affects the welfare of the minor children to wit: [Father] is currently unemployed having been discharged from the U.S. Army without benefits and his motion to modify should be allowed.

The trial court ordered Father to pay $222 a month in child support beginning that month as " a temporary, non[-]prejudicial amount" and stated that retroactive child support would be determined " at a later date.[2] [H]owever[,] it is admitted that there is an arrearage amount and that the [Father] shall begin payments on this amount, the amount total to be determined" but that payment should currently be " 100.00 per month, until paid in full." The trial court then set a review hearing for 24 June 2013 and decreed that " [t]his is a temporary, non-prejudicial order[.]"

On 23 September 2013, the trial court held a review hearing. At the beginning of the hearing, Harnett County's attorney noted that there were issues of " ongoing support and that of arrears." On 28 February 2014, the trial court entered an order finding:

1. This is an action on . . . [Harnett County]'s Motion to Add Pay Frequency on Arrears.
2. There is an ongoing support order requiring [Father] to pay $222.00 per month for child support.
3. [Mother] and [Father] are physically and mentally capable of ...

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