in the Court of Appeals 22 February 2018.
by Plaintiff from orders entered 19 April 2017 and 1 May 2017
by Judge Fred Battaglia in Durham County No. 16 CVD 3299
Peterkin Law Firm, PLLC, by Timothy J. Peterkin, for
Law Offices, by N. Joanne Foil and Britney R. Weaver, for
HUNTER, JR., ROBERT N., JUDGE.
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.
Factual and Procedural Background
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.
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
July 2016, Plaintiff retained the public services of Durham
County Child Support Services in order to establish a child
support order against Defendant.
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.
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.
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.
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 ...