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Watauga County v. Shell

Court of Appeals of North Carolina

March 19, 2019

WATAUGA COUNTY on behalf of Nicole R. McKiernan, Plaintiff
v.
DAVID DWAYNE SHELL, Defendant.

          Heard in the Court of Appeals 13 February 2019.

          Appeal by plaintiff from order entered 6 February 2018 by Judge Larry Leake in District Court, Watauga County No. 09 CVD 389.

          Di Santi Watson Capua Wilson & Garrett, PLLC, by Chelsea Bell Garrett, for plaintiff-appellant.

          No brief filed for defendant-appellee.

          STROUD, JUDGE.

         The 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.[1] 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.

         I. Background

         Mother 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 Mother.
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 participate.
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.

         While 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" to
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 ...

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