WATAUGA COUNTY on behalf of Nicole R. McKiernan, Plaintiff
DAVID DWAYNE SHELL, Defendant.
in the Court of Appeals 13 February 2019.
by plaintiff from order entered 6 February 2018 by Judge
Larry Leake in District Court, Watauga County No. 09 CVD 389.
Santi Watson Capua Wilson & Garrett, PLLC, by Chelsea
Bell Garrett, for plaintiff-appellant.
brief filed for defendant-appellee.
Watauga County Child Support Enforcement Agency appeals a
trial court order staying a IV-D child support proceeding
initiated by the Avery County Child Support Enforcement
Agency to establish "continuing support and
maintenance" "as required by the North Carolina
Child Support Guidelines, N.C. G.S. 50-13.4[;]" the stay
order was based upon a pending appeal in the related Chapter
50 child custody proceeding between the parents of the
children. The trial court acted under a
misapprehension of the applicable law in determining it had
no jurisdiction to consider a Chapter IV-D child support
enforcement claim while the Chapter 50 custody appeal was
pending. We reverse the stay order and remand for further
proceedings in accord with this opinion.
Nicole McKieran and Father David D. Shell are the parents of
two minor children for whom plaintiff Watauga County Child
Support Enforcement Agency sought to establish child support.
Mother and Father are also defendants in a child custody
proceeding under Chapter 50 of the North Carolina General
Statutes brought in 2009 by the children's paternal
grandparents as plaintiffs. See Shell v. Shell, ___
N.C.App. ___, ___, 819 S.E.2d 566 (2018). An order modifying
child custody was appealed to this Court, and we will quote
the background as stated in the opinion in the custody case:
This appeal arises from the modification of a 2012 custody
order. Plaintiffs, David and Donna Shell, are the paternal
grandparents of the children, Sam and Kim. Defendant David
Shell is the son of plaintiffs and father of Sam and Kim.
Defendant Nicole Green is the children's mother and has
married since the prior order and is now Nicole McKiernan. We
will identify all parties by their relation to Sam and Kim.
Therefore, plaintiffs will be referred to as the
"Grandparents," defendant Shell as
"Father" and defendant Green as "Mother."
Although both parents are "defendants," the
interests of defendant Father are aligned with plaintiff
Grandparents and are opposed to the interests of defendant
The prior custody order was entered in May 2012. Father was
granted sole legal and physical custody of the children and
Mother had visitation rights. . . .
On 3 June 2016, Mother moved to modify custody alleging that
since the prior custody order there had been a substantial
change of circumstances affecting the welfare of the children
because she had remained sober for several years, maintained
a job for over two years, and gotten remarried. She also
alleged that Father had become more difficult to deal with
regarding visitation. He refused to send the children's
homework so the children could complete it during visits with
Mother, and he denied Mother information about the
children's school activities and would not allow her to
On 17 and 30 January 2017, the trial court held a hearing on
the motion to modify custody. The trial court entered an
order modifying custody on 6 February 2017, which determined
there had been a substantial change of circumstances
affecting the welfare of the children and modified custody,
granting Father and Mother joint legal custody, with Mother
receiving primary physical custody. Father and Grandparents
appeal[ed on 8 March 2017 and 18 July 2017, respectively.]
Id. at ___, 819 S.E.2d at 569-70 (footnotes
omitted). The order appealed from in Shell is from
Watauga County, file number 09 CVD 389.
the appeal in Shell was pending before this Court,
on 4 May 2017, the Avery County Child Support Enforcement
Agency filed a verified complaint on behalf of Mother against
Father for IV-D child support. See generally N.C.
Gen. Stat. § 110-129(7) (2017) ("'IV-D'
case means a case in which services have been applied for or
are being provided by a child support enforcement agency
established pursuant to Title IV-D of the Social Security Act
as amended and this Article."). The IV-D child support
case was filed in Avery County, file number 17 CVD 116.
Custody claims are not considered in IV-D child support cases
as noted in Gray v. Peele:
We understand that the order failed to address child custody
because this case was heard in Wake County Civil IV-D
District Court and prosecuted by the Wake County Child
Support Enforcement Agency on behalf of Plaintiff. The
"Civil IV-D" session of District Court is commonly
referred to as "child support court." Chapter 110
of the North Carolina General Statutes sets out a
comprehensive statutory scheme for establishment of child
support orders and enforcement of those orders in cases which
fall under that Chapter, defined as "a case in which
services have been applied for or are being provided by a
child support enforcement agency established pursuant to
Title IV-D of the Social Security Act as amended and this
Article." N.C. Gen. Stat. § 110-129(7) (2011). N.C.
Gen. Stat. § 110- 129.1(a)(3) grants to the Department
of Health and Human Services the "power and duty"
Establish and implement procedures under which in IV-D cases
either parent or, in the case of an assignment of support,
the State may request that a child support order enforced
under this Chapter be reviewed and, if appropriate, adjusted
in accordance with the most recently adopted uniform
statewide child support guidelines prescribed by the
Conference of Chief District Court Judges.
Because of the specialized nature of the IV-D session of
court, motions for modification of custody are not heard, nor
do Child Support Enforcement agencies represent ...