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Dillingham v. Ramsey

Court of Appeals of North Carolina

September 17, 2019

KELLI DILLINGHAM, Plaintiff,
v.
SCOTT RAMSEY, Defendant.

          Heard in the Court of Appeals 13 February 2019.

          Appeal by plaintiff from order entered 26 January 2018 by Judge Andrea F. Dray in District Court, Buncombe County, No. 05 CVD 1276

          Sharpe & Bowman, PLLC, by Brian W. Sharpe, for plaintiff-appellant.

          Siemens Family Law Group, by Brenda Coppede, for defendant-appellee.

          STROUD, JUDGE.

         Mother appeals the trial court's order based upon its calculation of past due child support and allowing Father to pay arrears at the rate of $100.00 per month. Mother invited any error in the calculation of the child support arrears. Where Father was obligated under a 2009 order to pay child support and failed to pay Mother $24, 400.00, the trial court abused its discretion by ordering Father to pay the arrears at the rate of $100.00 per month-or over a period of 20 years and 4 months-when, based on Father's high income, he had the ability to pay the entire amount.

         I. Background

         Mother and Father married in 1996 and divorced in 2006. Together they have four children. Father was required to pay $4, 877.00 per month in child support under a 30 October 2009 order. At the time of the 2009 order, his monthly gross income was $28, 401.00, and his monthly expenses were $16, 282.00. Mother's monthly gross income was $3, 927.00, her monthly expenses were $5, 313.00, and her expenses for the children were $3, 491.00. Because of the parties' high combined income, the trial court set child support based upon the parties' incomes and the needs of the parties and children. The October 2009 order decreed that "[Father] shall pay child support to Plaintiff in the sum of $4, 877.00 per month, retroactive to February 1, 2009." The order did not address any reduction in child support upon a child turning 18; in fact, the order failed to address cessation of child support at all.

         In September 2015, after the parties' oldest child started attending college, Father unilaterally reduced his child support payment by 25 percent. Father reduced his monthly child support payment by an additional 25 percent once their second oldest child began attending college. Father did not file any request for modification with the court before reducing the payments.

         On 3 November 2016, Mother filed a motion for contempt and show cause requesting Father be found in contempt of court for failure to pay child support as required by the 2009 order, requesting the past due child support and attorney's fees. On 24 January 2017, Father filed a motion to modify child support and custody, seeking modification of custody and a reduction of child support. On 23 February 2017, Mother filed a response to Father's motion and requested modification of child support due to father's increase in income and the needs of the children. The parties agreed on the issues of child custody and child support modification and entered a consent order before the hearing on the contempt motion. On 5 December 2017, a hearing was held on Mother's motion for contempt for failure to pay child support. The trial court entered an order on 26 January 2018 finding Father failed to pay as required by the 2009 order, but was not in willful contempt, and required him to pay $24, 400.00 in child support arrears in $100.00 monthly installments.[1] Mother timely appealed and Father cross-appealed.[2]

         II. Calculation of Arrearage

         Mother argues that the trial court "miscalculated the child support arrearage as $24, 400 when it should have been $26, 840." But, at trial, Mother's counsel only requested $24, 400.00 in his closing statement:

Based on the testimony I heard that would be a total reduction in aggregate of $24, 400 from the time period beginning in September 2015 when the first reduced payment was made through December 2016, the month immediately preceding defendant's filing of his motion to modify the support amount.

         Mother asked the trial court for $24, 400.00, and the trial court ordered Father to pay that amount in child support arrears. To the extent that it was an error not to include child support payments for January 2017 in the trial court's calculations, it is invited error, and Mother "may not base an appeal on an alleged error that she invited." See Quevedo-Woolf v. Overholser, __ N.C.App. __, __ 820 S.E.2d 817, 835 (2018). This argument is dismissed.

         III. Payment of Arrearage

         Mother argues that "[t]he trial court abused its discretion by enforcing the arrearage in installments of only $100 per month[, ]" as this will extend the payment of the arrears over 20 years, until the children who were to benefit from the child support are in their thirties, while Father earns over $1, 700, 000 per year and has the ability to pay all of the arrears.

         No prior cases address a trial court's determination of how child support arrears should be paid in this context-where it appears the payor has the ability to pay arrears immediately-but as in child support matters generally, the trial court has broad discretion to order a remedy supported by the facts and circumstances in the particular case:

Computing the amount of child support is normally an exercise of sound judicial discretion, requiring the judge to review all of the evidence before him. Absent a clear abuse of discretion, a judge's determination of what is a proper amount of support will not be disturbed on appeal. In exercising sound judicial discretion, a trial judge is guided by the following general principles:
By the exercise of his discretion, a judge ought not to arrogate unto himself arbitrary power to be used in such a manner so as to gratify his personal passions or partialities. A judge is subject to reversal for abuse of discretion only upon a showing by a litigant that the challenged actions are manifestly unsupported by reason.

Plott v. Plott, 313 N.C. 63, 69, 326 S.E.2d 863, 867-68 (1985) (citation, parentheticals, and ellipsis omitted) (quoting Clark v. Clark, 301 N.C. 123, 128-29, 271 S.E.2d 58, 63 (1980)).

         Mother does not challenge any specific findings of fact as unsupported by the evidence in her brief, but she argues that "[i]n the order on appeal, the trial court offered no reasoning or findings of fact to support its ruling for periodic payments of $100 per month towards a substantial arrearage." Father argues that Mother abandoned any issue of the amount of the monthly payments toward arrears by not requesting a specific amount before the trial court.

         We first reject Father's argument that Mother abandoned the issue of how the arrears would be paid by not requesting a specific monthly payment. Here, there would have been no reason for Mother to request any particular monthly payment. Father has not raised any inability to promptly pay the entire arrears at trial or on appeal.

         As the order on appeal notes, the allegations of Mother's "motion to Show Cause are uncontroverted." Father unilaterally reduced his child support payments based on his belief that he had the right to do so, but he did not. As the trial court's order acknowledges, Father had no right to reduce his payments and he violated the 2009 order by reducing the payments. In addition, Mother had a clear legal right to enforce the 2009 order. The trial court's rationale for not finding Father in civil or criminal contempt was based upon his voluntary payment of expenses for the adult children. Mother does not challenge on appeal the ...


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