Berens v. Berens
| Docket Number | COA 21-436 |
| Decision Date | 02 August 2022 |
| Citation | 284 N.C.App. 595,876 S.E.2d 680 |
| Parties | Michael M. BERENS, Plaintiff v. Melissa C. BERENS, Defendant. |
| Court | North Carolina Court of Appeals |
James, McElroy & Diehl, P.A., by Gena Graham Morris, and Preston O. Odom, III, Charlotte, for Plaintiff-Appellee.
Fox Rothschild LLP, Raleigh, by Troy D. Shelton and Connell and Gelb PLLC by Michelle D. Connell, Raleigh, for Defendant-Appellant.
¶ 1 This appeal is the fifth to our Court in this nine-year old action between these parties concerning the dissolution of their marriage.
¶ 2 This appeal was taken by Defendant Melissa C. Berens ("Mother") from an order (the "2021 Modification Order") entered on 5 January 2021 modifying the obligation of Plaintiff Michael Berens ("Father") to pay child support for the minor children born to the marriage.
¶ 3 Father and Mother married in 1989, had six children during the marriage, separated in July 2012, and divorced in December 2014.
¶ 4 In 2013, Father commenced this action, including a claim for child support.
¶ 5 In 2015, the trial court entered a temporary child support order, directing Father to pay monthly child support at a certain level.
¶ 6 In May 2017, a trial was held to establish permanent child support obligations. At the time of trial, three of the children were still minors. The trial court took the matter under advisement for 14 months, finally entering its permanent child support order in July 2018.
¶ 7 During these 14 months, one of the three minor children turned 18. Accordingly, in May 2018 – two months before the trial court entered its permanent order – Father moved to modify the 2015 temporary order (the order that was still in place), based on the change of circumstance that a child had reached adulthood.
¶ 8 In July 2018, while Father's motion was pending, the trial court entered its permanent order, based on the evidence presented 14 months prior, without taking into account that one of the children had turned 18 years old in the interim. In its 2018 permanent order, the trial court retroactively increased Father's child support obligation from 2013, which required Father to make a lump sum payment to account for the retroactive increase over the previous five years. Both parties appealed the 2018 permanent order, which was the fourth appeal to our Court in this matter.
¶ 9 In January 2020, we issued our opinion in that fourth appeal, affirming the 2018 permanent order. Berens v. Berens , 269 N.C. App. 474, 837 S.E.2d 215 (2020) (unpublished) (" Berens IV"). On the child support issue, we held, in part, that the trial court did not err by not taking into account that a child had turned 18 while the matter was under advisement, recognizing that "[Father] may now file a motion to modify support in light of another child reaching the age of majority." Berens IV , *10.
¶ 10 Eight months later in September 2020, the trial took up Father's May 2018 motion to modify the 2015 temporary child support order. On the day of trial, Father filed a supplement to his May 2018 motion to clarify that the order from which he was seeking modification was now the 2018 permanent order.
¶ 11 All the while, Father made the retroactive lump sum payment and continued paying his obligations as directed by the trial court in its July 2018 permanent order.
¶ 12 In January 2021, the trial court entered its 2021 Modification Order, determining that a change of circumstance had indeed occurred in May 2018 when one of the children turned 18 and graduated from high school. Based on this determination, the trial court retroactively reduced Father's child support obligation from June 2018. Thus, the trial court directed Mother to pay back $40,859.28 received from Father since June 2018. Mother timely appealed.
¶ 13 Mother argues that the trial court erred in two ways, which we address in turn.
¶ 14 Mother first argues that the trial court had no authority to change the child support payments retroactively from June 2018, based on N.C. Gen. Stat. § 50-13.10(a) (2021). She reasons that this statute does not allow a trial court to modify any child support obligation which accrued before Father filed his modification motion; that Father's motion to modify filed in May 2018 does not qualify as a motion which could trigger the trial court's authority since the motion was to modify the 2015 temporary order which had since been mooted by the 2018 permanent order; and that, therefore, the trial court's authority to modify could not extend to Father's monthly obligation which accrued prior to September 2020, when Father filed his supplemental motion. She concludes that, therefore, we should strike the portion of the 2021 Modification Order which directs her to repay Father $40,859.28 for the "overpayments" he made back to his May 2018 child support payment.
¶ 15 Father essentially argues that his motion to modify filed in May 2018 should be sufficient to trigger Section 50-13.10(a), notwithstanding that the motion was filed before the 2018 permanent order was entered.
¶ 16 We disagree with Mother for two reasons, addressed below.
¶ 17 First, we so conclude based on a reason not argued by Father: The portion of Section 50-13.10(a) – which prohibits a trial court from retroactively modifying any child support obligation that arose prior to the filing of a motion to modify – does not apply. This statute only applies to "past due" obligations, and Father was not "past due" on any child support obligation.
¶ 18 Prior to the enactment of Section 50-13.10 in 1987, under our common law a trial court had the discretion to "retroactively modify child support arrearages when equitable considerations exist which would create an injustice if modification is not allowed." Craig v. Craig , 103 N.C. App. 615, 619, 406 S.E.2d 656, 658 (1991) (citations omitted). In its discretion, a trial court could modify child support obligations accruing before the filing of any motion. Our Supreme Court has essentially recognized this common law authority. Specifically, a case cited in Craig for this proposition was affirmed by our Supreme Court; namely, Gates v. Gates , 69 N.C. App. 421, 317 S.E.2d 402 (1984), aff'd per curiam , 312 N.C. 620, 323 S.E.2d 920 (1985). In Gates , we held that a trial court could retroactively reduce a parent's child support obligation from the time his minor child turned 18, where no motion had previously been filed, where "it would work an injustice to require [the supporting parent] to pay according to the letter of the [prior] Order[.]" Id. at 430, 317 S.E.2d at 408.
¶ 19 In 1987, our General Assembly enacted Section 50-13.10(a), which stripped a trial court of some discretion recognized under common law to modify child support obligations accruing prior to the filing of a motion:
Id. (). The plain language of this statute provides that only "past due" obligations which accrued after the date that the parent seeking modification files and gives notice of his motion may be modified (italicized portion). The statute, though, further provides that a "child support obligation" (without any reference to "past due" obligations) may, otherwise, be modified as "provided by law" (underlined portion), which includes our common law recognized in the precedent from our Court and our Supreme Court cited above.
¶ 20 There is nothing in the record before us which suggests that, at the time the 2021 Modification Order was entered, Father was "past due" in any payment he was required to make under prior orders. Accordingly, even if Father's May 2018 motion was mooted by our affirmance of the 2018 permanent order, the trial court was not prohibited under Section 50-13.10(a) from modifying Father's child support obligation accruing from the time that one of the children was emancipated. And the 2021 Modification Order otherwise supports the retroactive change under our case law: Mother was aware that her child had turned 18 and had graduated high school; Mother was aware in May 2018 that Father was seeking a reduction in his child support obligation based on this change of circumstance; and Mother would not be prejudiced by the retroactive change.
¶ 21 It could be argued that, notwithstanding the plain language of Section 50-13.10, we should consider the stated purpose of Section 50-13.10 to strip a trial court's common law authority to modify any child support obligation accruing prior to the filing and notice of a motion to modify, whether past due or not. Indeed, our Supreme Court has instructed that "[t]he primary goal of statutory construction is to effectuate the purpose of the legislature in enacting the statute." State v. Hooper , 358 N.C. 122, 125, 591 S.E.2d 514, 516 (2004). But that Court further instructs that "[t]he first step in determining a statute's purpose is to examine the statute's plain language" and that "[w]here the language of the statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning." Id. Here, the plain language of the statute only abrogates a trial court's authority with respect to obligations that vested but which have not yet been paid.
¶ 22 It could be argued that our interpretation...
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