entered 2 June 2017, 27 July 2017, and 20 November 2017
in the Court of Appeals 14 January 2019.
by Defendant from Orders entered 2 June 2017, 27 July 2017,
and 20 November 2017 by Judge Kimberly Best in Mecklenburg
County No. 09 CVD 28068 District Court.
& Smith, PLLC, by Matthew R. Arnold, for
Plumides, Romano, Johnson & Cacheris, P.C., by Richard B.
Johnson, for defendant-appellant.
and Procedural Background
Bolger (Defendant) appeals from three separate Orders: (A)
Modifying Permanent Child Support; (B) Denying in part his
Motion to Reconsider and Revise the Order Modifying Permanent
Child Support filed under N.C. R. Civ. P. 52, 59 and 60; and
(C) Reconsidering and revising the Order Modifying Permanent
Child Support. The Record before us demonstrates the
following relevant facts:
and Shaneekqua Simms (Plaintiff) are the parents of a minor
child born in 2009. In July 2006, prior to his relationship
with Plaintiff, Defendant was injured in a work-related car
accident when the vehicle in which he was a passenger was
struck head on by a stolen car. Defendant has been disabled
and unable to work ever since. Defendant received weekly
temporary total workers' compensation benefits following
point in 2009, the State of North Carolina, on
Plaintiff's behalf, initiated this action against
Defendant seeking to establish paternity of the minor child,
establishing Defendant's child support obligation and
seeking medical insurance. On 26 May 2010, the Mecklenburg County
District Court entered an Order establishing Defendant's
paternity of the minor child, setting his child support
obligation at $349 per month, with arrearages and fees for
the DNA test, and requiring him to pay 24% of uninsured
medical expenses for the child.
July 2011, Defendant, pro se, filed a Motion for
Modification of Child Support alleging he was no longer
receiving weekly Workers' Compensation benefits. He
attached a copy of a North Carolina Industrial Commission
Order Approving and Agreement for Partial Compromise
Settlement and Release (Workers' Comp settlement). The
Workers' Comp settlement disclosed Defendant had received
third-party settlement funds of $606, 666.67. Defendant
settled the disability portion of his workers'
compensation case for a $292, 500 lump sum award which
included an attorneys' fee. Future medical expenses were
left open. Defendant received a net amount of $826, 041.67
from these settlements and deposited the amount of $793,
976.42 into an investment account (Baird Account) which he
uses to generate interest and dividend income as his primary
source of income.
September 2011, Plaintiff filed a verified Motion seeking,
inter alia, modification of child support and
attorneys' fees. The parties' respective motions for
modification of child support both filed in 2011 were not
heard until 25 October 2016. The trial court entered its
Order Modifying Permanent Child Support and Awarding
Attorneys' Fees on 2 June 2017 (June Order).
June Order, the trial court found Defendant had received
non-recurring income in the amount of $826, 041.67. The trial
court further found Defendant's current monthly income,
comprised of interest and dividend income, Social Security
income, and Social Security child benefit, was $5, 485. Based
on this, the trial court calculated Defendant's child
support obligation under the North Carolina Child Support
Guidelines (the Guidelines) to be $1, 004.78 per month.
Factoring in Social Security benefits paid directly to
Plaintiff for the child as a result of Defendant's
disability, this resulted in the trial court ordering
Defendant to pay $702.78 per month in prospective child
support. The trial court further determined, based on the
modified child support award and giving Defendant credits for
payments made and Social Security Benefits paid for the
child, Defendant owed an arrearage of $36, 443.04 for the
time period between the time Plaintiff filed her motion and
entry of the June Order. The trial court also ordered
Defendant to make a lump sum payment from his non-recurring
income in the Baird Account of $156, 947.91 to be placed in
trust for the child. Additionally, the trial court awarded
Plaintiff $25, 000 in attorneys' fees.
June 2017, Defendant filed a Motion to "Reconsider and
Revise" the June Order, seeking relief under Rules 52,
59, and 60 of the North Carolina Rules of Civil Procedure.
Defendant's Motion requested: (1) the trial court correct
an error stemming from Defendant's financial affidavit
resulting in his Social Security income being counted twice
in his current monthly income; (2) the trial court reconsider
his ongoing child support obligation in light of the fact the
lump sum payment of support and attorneys' fees from the
Baird Account would have a corresponding impact on his
monthly income; and (3) modification of the requirement the
funds be placed in a trust account.
Motion was heard on 17 July 2017 and the trial court rendered
its ruling allowing Defendant's Motion in part and
setting the case for rehearing on 27 July 2017. On 27 July
2017, the trial court entered its Order on Defendant's
Motion to Reconsider and Revise the June Order (July Order).
In the July Order, the trial court granted Defendant's
Motion in part: granting a new trial on the "double
counting" of Defendant's Social Security benefits;
re-addressing the lump sum distribution to a trust account;
and consideration of an additional award of attorneys'
fees. The trial court denied Defendant's request to
reconsider his child support obligation in light of the
reduction in principal in the Baird Account. The same day,
Defendant filed a motion requesting the trial court deviate
from the Guidelines. The trial court denied this motion. The
trial court held its new hearing, and on 20 November 2017
entered a written Order (November Order).
November Order, the trial court revised its finding of
Defendant's monthly income to $4, 455. Under the
Guidelines and applying a credit for Social Security
payments, the trial court ordered Defendant to pay
prospective child support in the amount of $553.35 per month.
The trial court also recalculated Defendant's arrearages
from September 2011 through entry of its Order. Rather than
calculate Defendant's arrearages based on his current
income, the trial court used Defendant's income for each
individual year from 2011 through November 2017.
trial court's November Order modified the lump sum award
of support from the Baird Account, requiring it be placed in
an account bearing both the names of Plaintiff and the child,
with Plaintiff being named custodian of the account. Further,
the trial court awarded Plaintiff additional attorneys'
fees of $16, 240.
November Order serves as a final judgment in this case
resolving all pending issues. In his timely Notice of Appeal,
Defendant expressly preserves his appeal from the June, July,
and November Orders. Consequently, Defendant's appeal is
properly before this Court. N.C. Gen. Stat. §
presents the following issues for review: (I) Whether the
trial court erred in concluding there was a substantial
change in circumstances justifying a modification of child
support; (II) Whether the trial court erred in making its
lump sum award of child support without deviating from the
Guidelines; (III) Whether the trial court erred in ordering
the lump sum amount to be held in a custodial account for the
child; (IV) Whether the trial court erred in calculating
Defendant's arrearages based on his historical income in
each individual year; and (V) Whether the trial court abused
its discretion in awarding Plaintiff attorneys' fees.
support orders entered by a trial court are accorded
substantial deference by appellate courts and our review is
limited to a determination of whether there was a clear abuse
of discretion." Leary v. Leary, 152 N.C.App.
438, 441, 567 S.E.2d 834, 837 (2002). "In a case for
child support, the trial court must make specific findings
and conclusions. The purpose of this requirement is to allow
a reviewing court to determine from the record whether a
judgment, and the legal conclusions which ...