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Simms v. Bolger

Court of Appeals of North Carolina

March 19, 2019

SHANEEKQUA SIMMS, Plaintiff/Mother
LEROY BOLGER, Defendant/Father

          Orders entered 2 June 2017, 27 July 2017, and 20 November 2017

          Heard in the Court of Appeals 14 January 2019.

          Appeal 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.

          Arnold & Smith, PLLC, by Matthew R. Arnold, for plaintiff-appellee.

          Plumides, Romano, Johnson & Cacheris, P.C., by Richard B. Johnson, for defendant-appellant.

          HAMPSON, JUDGE.

         Factual and Procedural Background

         Leroy 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:

         Defendant and Shaneekqua Simms (Plaintiff) are the parents of a minor child born in 2009. In July 2006[1], 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 his accident.

         At some 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.[2] 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.

         On 13 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.

         On 19 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).

         In the 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.

         On 12 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.

         Defendant's 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).

         In the 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.

         The 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.

         Appellate Jurisdiction

         The 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. § 7A-27(b)(2) (2017).


         Defendant 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.

         Standard of Review

         "Child 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 ...

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