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Durham County v. Adams

Court of Appeals of North Carolina

March 20, 2018

DURHAM COUNTY, on behalf of TERRANCE ADAMS, Plaintiff,
v.
ALMA ADAMS, Defendant.

          Heard in the Court of Appeals 22 February 2018.

         Appeal by Plaintiff from orders entered 19 April 2017 and 1 May 2017 by Judge Fred Battaglia in Durham County No. 16 CVD 3299 District Court.

          Peterkin Law Firm, PLLC, by Timothy J. Peterkin, for Plaintiff-Appellant.

          Foil Law Offices, by N. Joanne Foil and Britney R. Weaver, for Defendant-Appellee.

          HUNTER, JR., ROBERT N., JUDGE.

         Terrance Adams ("Plaintiff") appeals a child support order and an order awarding attorneys' fees to Alma Adams ("Defendant"). Plaintiff argues the trial court erred in dismissing Plaintiff's complaint for child support because Plaintiff had a statutory right to seek a child support order. Plaintiff also argues the trial court erred in awarding Defendant attorneys' fees because Plaintiff's child support action was not frivolous. We conclude the trial court properly dismissed Plaintiff's complaint for child support since Plaintiff and Defendant's Separation Agreement covering child support had been incorporated into the divorce order in a prior ruling by the trial court, and Plaintiff admitted there was no substantial change in circumstances. We also conclude the trial court did not abuse its discretion in awarding Defendant attorneys' fees.

         I. Factual and Procedural Background

         Plaintiff and Defendant were married on 4 June 2005. One minor child was born of the marriage on 13 April 2009. On or about 8 April 2013, the couple separated. The parties entered into a Separation and Property Settlement Agreement ("the Agreement") on 8 April 2013. This Agreement provides the parties have joint legal and physical custody of the minor child. The terms of this Agreement provided the parties split all expenses related to caring for the minor child, including day care and medical expenses. The Agreement does not otherwise mention child support.

         Plaintiff served Defendant with a summons and complaint for absolute divorce on 16 April 2014, and the trial court entered judgment on 19 May 2014. On 18 April 2016, the parties entered into a Modified Parenting Agreement. This modified agreement states it "is not intended to replace the terms of the Separation Agreement incorporated as an Order of the Court by Judge James T. Hill on May 19, 2014 in full."

         On 12 July 2016, Plaintiff retained the public services of Durham County Child Support Services in order to establish a child support order against Defendant.

         Plaintiff's child support complaint contained several false statements including: (1) the complaint provided the parties were married on 4 June 2006, when in fact they were married on 4 June 2005; (2) the complaint lists the parties' date of separation as 31 May 2014, when in fact the parties separated on 8 April 2013; (3) the complaint alleges the minor child had received or was then receiving public assistance when in fact the minor child has never received public assistance; and (4) the complaint states Defendant should be ordered to provide medical coverage or support for the minor child, when in fact Defendant has provided medical insurance for the minor child since his birth.

         On 26 September 2016, Defendant filed an answer and counterclaim. Defendant denied Plaintiff's false statements in the Answer portion and also asserted counterclaims for child support and specific performance.

         On 22 September 2016 and 27 September 2016, Defendant's counsel sent two letters to Mary Drake, the assigned case worker who verified Plaintiff's complaint, at Durham County Child Support Enforcement Agency requesting Plaintiff's 2015 W-2 form. Defendant did not receive a response from either letter. On 7 October 2016, Defendant's counsel issued a discovery request to Plaintiff, in care of Attorney Nathan L. McKinney (who signed the Child Support Complaint), and Defendant again received no response.

         On 3 November 2016, Defendant's counsel spoke with the Assistant County Attorney. The Assistant County Attorney informed Defendant's counsel the Durham County Child Support Enforcement Agency does not respond to discovery or deposition notices because the County Attorney represents the Child Support Enforcement Agency and not Plaintiff. Defendant's Counsel then sent all discovery requests directly to Plaintiff. Plaintiff did not ...


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