Jackson v. Jackson, COA20-699

Docket NºCOA20-699
Citation868 S.E.2d 104, 280 N.C.App. 325
Case DateNovember 16, 2021
CourtCourt of Appeal of North Carolina (US)

280 N.C.App. 325
868 S.E.2d 104

Lisa JACKSON, Plaintiff,
v.
Samuel L. JACKSON, Defendant.

No. COA20-699

Court of Appeals of North Carolina.

Filed November 16, 2021


Fox Rothschild LLP, by Michelle D. Connell, Raleigh, and Kip D. Nelson, Greensboro, for plaintiff-appellee.

Sandlin Family Law Group, Raleigh, by Deborah Sandlin, for defendant-appellant.

GORE, Judge.

¶ 1 Samuel L. Jackson ("defendant") appeals from an order in which the trial court established child support at the contractual amount set forth in the parties’ separation agreement, and ordered defendant pay $21,505 in damages and $5,000 in attorney fees. Defendant argues that (1) the trial court erred in awarding child support to Lisa Jackson ("plaintiff"); (2) the trial court erred in awarding damages to plaintiff because the parties’ contractual obligations had terminated; (3) the trial court erred in awarding attorney fees to plaintiff and not to defendant; and (4) the trial court erred by imputing

868 S.E.2d 107

income to defendant. We affirm in part, vacate in part, and remand.

I. Background

¶ 2 Plaintiff and defendant married in 1992, and three children were born to the marriage.1 On 17 May 2013, plaintiff and defendant separated and were subsequently divorced. In October 2013, the parties executed a separation agreement and property settlement ("separation agreement"), which resolved, inter alia , issues of child custody, child support, and attorneys’ fees. The parties agreed to share equal physical and legal custody of the minor children. In the separation agreement, the parties agreed that defendant would pay plaintiff $1,150 per month in child support. The parties agreed that the child support payments shall terminate on the first occurrence of:

(1) The parties’ youngest living child reaches the age of 18 or graduates from high school or its equivalent, whichever occurs last, so long as satisfactory progress towards graduation is being made, but no later than age 20;

(2) Emancipation of the children;

(3) Death of the children;

(4) Death of [defendant]; or

(5) A court of competent jurisdiction enters a court order modifying or terminating child support.

The parties further agreed that if either party shall be required to bring a civil action to obtain performance of the separation agreement, the prevailing party shall be entitled to indemnification by the other party for reasonable attorneys’ fees. The separation agreement was never incorporated into a court order.

¶ 3 In the summer of 2016, plaintiff moved from Raleigh, North Carolina to Wilmington, North Carolina to live with her fiancé. At this time, the parties’ oldest child had reached the age of majority. The parties’ second child moved to Wilmington with plaintiff while their youngest child remained in Raleigh with defendant.

¶ 4 On 15 June 2017, defendant filed a motion in the cause for child support alleging plaintiff owed a duty of child support to defendant, because at the time the parties’ only remaining minor child was living solely with defendant. Defendant requested the trial court award temporary and permanent child support pursuant to the North Carolina Child Support Guidelines, terminate the child support obligations contained in the separation agreement, and award defendant reasonable attorneys’ fees. On 19 January 2018, plaintiff filed a complaint alleging defendant breached the parties’ contract by unilaterally lowering, and subsequently ceasing, child support payments. Plaintiff sought specific performance of child support arrearages and reasonable attorneys’ fees. Plaintiff also requested the trial court consolidate defendant's and plaintiff's actions.

¶ 5 In August of 2018, the parties’ youngest daughter moved to Wilmington to live with plaintiff. On 12 September 2018, defendant voluntarily dismissed his motion for temporary child support, but not his action for permanent child support. On 2 January 2019, defendant filed his answer to plaintiff's complaint asserting the affirmative defense that the child support obligation under the separation agreement should terminate upon the trial court entering an order in defendant's action.

¶ 6 A hearing was held on 22 April 2019. On 17 September 2019, the Honorable Judge Walczyk sent an email to the parties with a written rendering of her ruling but had yet to enter an order in the matter. On 30 October 2019, following the hearing but before the trial court entered its order, plaintiff filed a motion requesting the trial court enter a temporary restraining order and preliminary injunction against defendant to hold in trust the funds from property sales by defendant, because defendant had previously informed plaintiff of his intent to appeal the trial court's order in her favor. Defendant objected to plaintiff's motion. The trial court denied plaintiff's motion as insufficient to warrant the entry of a temporary restraining order and preliminary injunction.

868 S.E.2d 108

¶ 7 On 10 December 2019, the trial court entered an order establishing child support in favor of plaintiff in the amount of $1,150 per month, the contractual amount. The trial court concluded plaintiff was not entitled to specific performance but awarded plaintiff $21,505 in damages for defendant's breach of contract and awarded plaintiff $5,000 in attorneys’ fees. On 13 January 2020, defendant gave timely notice of appeal from the trial court's 10 December 2019 order.

II. Standard of Review

¶ 8 "Our review of a child support order is limited to determining whether the trial court abused its discretion." Brind'Amour v. Brind'Amour , 196 N.C. App. 322, 327, 674 S.E.2d 448, 452 (2009). "Under this standard of review, the trial court's ruling will be overturned only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." Roberts v. McAllister , 174 N.C. App. 369, 374, 621 S.E.2d 191, 195 (2005) (citation omitted). "The trial court must, however, make sufficient findings of fact and conclusions of law to allow the reviewing court to determine whether a judgment, and the legal conclusions that underlie it, represent a correct application of the law." Id. (citation omitted).

III. Child Support

¶ 9 "A separation agreement is a contract between the parties and the court is without power to modify it except (1) to provide for adequate support for minor children, and (2) with the mutual consent of the parties thereto where rights of third parties have not intervened." McKaughn v. McKaughn , 29 N.C. App. 702, 705, 225 S.E.2d 616, 618 (1976) (citation omitted). "[W]here parties to a separation agreement agree upon the amount for the support and maintenance of their minor children, there is a presumption in the absence of evidence to the contrary, that the amount mutually agreed upon is just and reasonable." Fuchs v. Fuchs , 260 N.C. 635, 639, 133 S.E.2d 487, 491 (1963). A party seeking an initial judicial determination of child support, where the parties have previously executed an unincorporated separation agreement, must "show the amount of support necessary to meet the reasonable needs of the children at the time of the hearing." Boyd v. Boyd , 81 N.C. App. 71, 76, 343 S.E.2d 581, 585 (1986). The trial court will not alter the amount of child support contractually agreed upon by the parties, unless the amount necessary to meet the reasonable needs of the child substantially differs from the agreed upon amount. Id.

¶ 10 This Court in Pataky v. Pataky laid out the step-by-step process a trial court must take when analyzing a claim for child support, where the parties previously entered into an unincorporated separation agreement:

[T]he court should first apply a rebuttable presumption that the amount in the agreement is reasonable and, therefore, that application of the guidelines would be "inappropriate." The court should determine the actual needs of the child at the time of the hearing, as compared to the provisions of the separation agreement. If the presumption of reasonableness is not rebutted, the court should enter an order in the separation agreement amount and make a finding that application of the guidelines would be inappropriate. If, however, the court determines by the greater weight of the evidence, that the presumption of reasonableness afforded the separation agreement allowance has been rebutted, taking into account the needs of the child existing at the time of the hearing and considering the factors enumerated in the first sentence of G.S. § 50-13.4(c), the court then looks to the presumptive guidelines established through operation of G.S. § 50-13.4(c1) and the court may nonetheless deviate if, upon motion of either party or by the court sua sponte , it determines application of the guidelines "would not meet or would exceed the needs of the child ... or would be otherwise unjust or inappropriate."

Pataky v. Pataky , 160 N.C. App. 289, 305, 585 S.E.2d 404, 414-15 (2003), aff'd per curiam , 359 N.C. 65, 602 S.E.2d 360 (2004).

¶ 11 Defendant first contends that the trial court erred by applying the Pataky presumption because his child support obligation under the unincorporated separation

868 S.E.2d 109

agreement terminated when he became the custodial parent for the parties only minor child....

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1 practice notes
  • Jain v. Jain, COA21-468
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • June 21, 2022
    ...and make findings of specific fact on the child's actual past expenditures and present reasonable expenses." Jackson v. Jackson , 280 N.C. App. 325, 2021-NCCOA-614, ¶ 16, 868 S.E.2d 104 (quotation marks and citation omitted). "These findings must, of course, be based upon competen......
1 cases
  • Jain v. Jain, COA21-468
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • June 21, 2022
    ...and make findings of specific fact on the child's actual past expenditures and present reasonable expenses." Jackson v. Jackson , 280 N.C. App. 325, 2021-NCCOA-614, ¶ 16, 868 S.E.2d 104 (quotation marks and citation omitted). "These findings must, of course, be based upon competen......

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