Mackins v. Mackins, 9326SC683

Decision Date03 May 1994
Docket NumberNo. 9326SC683,9326SC683
CourtNorth Carolina Court of Appeals
PartiesMaxine R. MACKINS v. Alonzo MACKINS, Jr.

William G. Robinson, Charlotte, for plaintiff-appellee.

Helms, Cannon, Hamel & Henderson, P.A. by Thomas R. Cannon and William Brady Hamel, Charlotte, for defendant-appellant.

ORR, Judge.

This appeal involves modification of an order for child support. On 5 June 1986, an order for child support was entered ordering defendant to pay plaintiff $800 per month in child support in two monthly installments of $400 each, "with the first installment due and payable on the 1st day of May, 1986, and a like payment due and payable on the 15th day of May, 1986, and similar payments to continue each month thereafter."

On 27 March 1991, plaintiff filed a motion for increased child support based on a substantial change of circumstances. This action came on to be heard during the 4 January 1993 civil term of Mecklenburg County District Court. Subsequently, the trial court found that "[b]oth the incomes of the [p]laintiff and the [d]efendant have increased substantially since the prior order entered in this matter and also as of the filing of this motion [on] March 27, 1991" and that the "needs and expenses of the minor children have increased substantially since 1985." Based on these findings, and upon findings as to the incomes of both plaintiff and defendant, the trial court found that the "[p]laintiff's motion for an increase in child support should be allowed as of the time of filing of this motion...."

The trial court entered its order on 18 February 1993 ordering that

[d]efendant shall pay the sum of One Thousand Two Hundred, Thirty Dollars ($1,230.00) per month in to the office of the Clerk of Superior Court of Mecklenburg County as child support, said sum payable in two payments per month, with a payment of $615.00 beginning April 1, 1991 and a like payment of $615.00 on April 15, 1991 and similar payments to continue each month thereafter pending further orders of this Court.

Further, the trial court determined and ordered that

[a]s the effective date of the time the payments are to begin under this order has passed, the [d]efendant shall pay the difference of $9,890.00 into the office of the Clerk of Superior Court within 90 days from date. The difference of $9,890.00 is the sum between what the [d]efendant was supposed to be paying under the previous order in the amount of $430.00 per month for the months of April, 1991, through February, 1993 (23 months).

I.

On appeal, defendant contends that the trial court erred in ordering him to pay retroactive child support in the amount of $9,890 in the absence of any evidence of an emergency situation or a finding as to actual past expenses. Based on our finding that the trial court's order was not a retroactive modification of child support, we disagree.

Under N.C.Gen.Stat. § 50-13.7, "[a]n order of a court of this State for support of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested subject to the limitations of G.S. 50-13.10." N.C.Gen.Stat. § 50-13.10 states in pertinent part:

(a) Each past due child support payment is vested when it accrues and may not thereafter be vacated, reduced, or otherwise modified in any way for any reason, in this State or any other state, except that a child support obligation may be modified as otherwise provided by law, and a vested past due payment is to that extent subject to divestment, if, but only if, a written motion is filed, and due notice is given to all parties either:

(1) Before the payment is due or

(2) If the moving party is precluded by physical disability, mental incapacity, indigency, misrepresentation of another party, or other compelling reason from filing a motion before the payment is due, then promptly after the moving party is no longer so precluded.

Thus, under N.C.Gen.Stat. § 50-13.10, a child support payment vests when it accrues, and "[a] vested past due payment is subject to divestment only if a party filed a written motion with the court and gave due notice to all parties before the payment was due." Van Nynatten v. Van Nynatten, 113 N.C.App. 142, 145, 438 S.E.2d 417, 418 (1993). "Notice and filing may occur after the payment is due only if the moving party is precluded 'by physical disability, mental incapacity, indigency, misrepresentation of another party, or other compelling reason' from filing a motion before the payment is due." Id. (citation omitted).

In the present case, a child support order was entered on 5 June 1986 ordering defendant to pay child support in the amount of $800 per month. Under this order, defendant's child support obligation became due and payable in two $400 installments on the first and fifteenth of each month. Thus, pursuant to N.C.Gen.Stat. § 50-13.10(a), defendant's child support obligation under the 5 June 1986 order vested after the first and fifteenth of every month, and absent the filing of a motion, these payments could not be modified. See, e.g., Van Nynatten, 113 N.C.App. 142, 438 S.E.2d 417; Pieper v. Pieper, 108 N.C.App. 722, 425 S.E.2d 435 (1993); Craig v. Craig, 103 N.C.App. 615, 406 S.E.2d 656 (1991).

Unlike the plaintiffs in the cases cited above, however, on 27 March 1991, plaintiff in the present case filed a motion for an increase in child support based on changed circumstances pursuant to N.C.Gen.Stat. § 50-13.7. Thus, any child support payments which accrued after the filing of this motion could be subject to modification as provided by law.

The law specifically provides that child support payments may not be reduced retroactively, absent a compelling reason. Van Nynatten, 113 N.C.App. at 144, 438 S.E.2d at 418. Although we have not specifically addressed whether a child support payment may be increased retroactively, the law seems to be that a child support payment may not be retroactively increased without evidence of some emergency situation that required the expenditure of sums in excess of the amount of child support paid. See Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963). The present case does not require us, however, to determine whether a retroactive increase in child support payments is permissible, because, based on the recent holding in Hill v. Hill, 335 N.C. 140, 435 S.E.2d 766 (1993), we find that the increase in child support from April, 1991 through February, 1993 was not a retroactive modification of child support.

In Hill, plaintiff and defendant were married on 14 September 1951 and separated on 1 May 1983. On 4 August 1983, the parties entered into a court approved order in South Carolina in which they settled the issues of alimony, child custody, and distribution of marital assets. Under this order, defendant was obligated to pay plaintiff alimony payments of $900 per month. The parties were divorced, and plaintiff registered the South Carolina support order in Mecklenburg County, North Carolina on 18 December 1985. On 21 December 1987, plaintiff filed a motion seeking a judgment for alimony arrearages, an increase in the amount of alimony and further modifications of the 1983 support order.

Subsequently, the motion was scheduled to be heard on 9 February 1988 but was not actually heard until 28 September 1988. By order entered 24 July 1990, the trial court, among other things, increased plaintiff's alimony award from $900 to $1500 per month effective February 1988 and thereafter monthly. The trial court further ordered:

The Court is informed as of June 29, 1990 that [d]efendant has continued to make alimony payments at the rate of $900.00 per month from February 1988 through the month of June 1990. An arrearage has thus accumulated for a period of 29 months at a rate of $600.00 per month, creating a principal sum due of $17,400.00 in alimony arrearages. Judgment is rendered in favor of [p]laintiff against [d]efendant in that amount plus interest due on each payment ($600.00 per month) from the due date (the first day of each month commencing with the month of February 1988). The Court further directs that this arrearage of $17,400.00 plus accrued interest on each payment shall be liquidated in full by [d]efendant on or before December 1, 1990.

Id. at 142-43, 435 S.E.2d at 767. Defendant appealed to this Court, and this Court unanimously affirmed the trial court's order insofar as it increased the alimony award; a majority of this Court concluded, however, that the trial court was without the authority to make the increase effective February 1988 and reversed only this aspect of the trial court's order, with one judge dissenting on this issue. Defendant appealed to the Supreme Court.

The Supreme Court held that this Court erred in reversing the aspect of the trial court's order making the increase in alimony effective February 1988 and reinstated the order of the trial court. In reversing the decision of this Court, the Supreme Court stated:

We need not consider whether this state's law authorizes retroactive modifications of alimony because we conclude the trial court's order modifying alimony from the date the matter was first noticed for hearing is not a retroactive modification. While this issue has not been addressed previously by this Court, we are persuaded by the rule which prevails in other jurisdictions which states:

Orders which modify alimony or support payments effective as of the date of the petition or subsequent thereto but prior to the date of the order of modification are not subject to the criticism that they have retroactive effect which destroys vested rights. This is true because the modification and the whole proceeding in which it is made are referable to the date of the filing of the petition and any change effective as of that date cannot be said to be retroactive.

Id. at 143-44, 435 S.E.2d at 768 (citations omitted).

The Court...

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