Snipes v. Snipes, 925DC1301

• Decision Date: 21 March 1995
• Docket Number: No. 925DC1301,925DC1301
• Citation: 118 N.C.App. 189,454 S.E.2d 864
• Parties: Linda L. SNIPES, now Linda Lashley, Appellant, v. John R. SNIPES, Appellee.
• Court: North Carolina Court of Appeals

Page 864

454 S.E.2d 864

118 N.C.App. 189

Linda L. SNIPES, now Linda Lashley, Appellant, v. John R. SNIPES, Appellee.

No. 925DC1301.

Court of Appeals of North Carolina.

March 21, 1995.

Robert U. Johnsen, Wilmington, for plaintiff-appellant.

Shipman & Lea by James W. Lea, III, Wilmington, for defendant-appellee.

JOHN, Judge.

Plaintiff contends the trial court erred by denying her motion to adjust and increase the amount of defendant's monthly child support obligation. We disagree.

Pertinent facts and procedural information are as follows: Plaintiff Linda Lashley (Linda) and defendant John Snipes (John) were previously married and had one child, John R. Snipes, Jr. (Jr.), born 17 March 1981. The parties eventually separated, entering into a "Separation Agreement and Property Settlement" (the Agreement) on 19 February 1987. Linda was given primary custody of Jr., and John agreed to pay the sum of $523.00 each month for Jr.'s support beginning 1 April 1987. The Agreement also specified:

that on the anniversary date of this agreement, this child support payment shall be increased by a percentage equal to the increase, if any, in the consumer price index as published by the Department of Labor and existing on December 31, of the preceding year. Wife shall notify the Clerk of Court of the increase each January and the new figure for support shall be entered on the Court's records.

The parties agreed John's monthly child support payments were to be distributed to Linda by the New Hanover County Clerk of Superior Court. In furtherance of this arrangement and contemporaneously with execution of the Agreement, John filed with the Clerk a "Statement Authorizing Entry of Judgment by Confession" pursuant to N.C.R.Civ.P. 68.1 (1990).

Thereafter, the District Court entered Judgment by Confession (the Judgment) on 27 February 1987, incorporating in substance the entirety of the parties' child support arrangement and providing in relevant part as follows:

IT IS ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

1. That the defendant shall pay through the Clerk of Court to the plaintiff the sum of $523.00 per month to be used for the support and maintenance of their minor child, John R. Snipes, Jr., born March 17, 1981, and the sum shall be paid as follows:

The sum of $523.00 per month beginning on the 1st day of April, 1986 [sic] and continuing thereafter in consecutive payments every month of a like amount until such time as plaintiff notifies the Clerk of a change in the amount of the support obligation, said sum shall change according to a percentage equal to the increase, if any, in the consumer price in[dex] as published by the Department of Labor and existing on December 31 of the preceding year. In January of each year plaintiff shall notify the Clerk of any increase due as a result of an increase, if any, in the consumer price index as published by the Department of Labor and existing on December 31 of the preceding year. Defendant shall continue to make monthly support payments until the minor child ... shall attain the age of eighteen (18) years, or, if the minor child is still in primary or secondary school at the time he attains the age of eighteen (18) years, until the minor child graduates, ceases to attend school on a regular basis, or reaches the age of twenty (20), whichever comes first....

John subsequently made $523.00 child support payments into the Clerk's office each month, commencing 1 April 1987 and continuing until April 1992 without interruption.

On 16 March 1988, Linda notified the Clerk of Court by letter of a 4.4% increase in the consumer price index (C.P.I.). Her letter included this paragraph:

Effective February 19, 1988, please be advised that the monthly child support payment for John R. Snipes, Jr. (Jon-Jon) should increase by 4.4%, or $23.01, making the total monthly allotment $546.01.

No increase was noted in the court's records, however, and John continued to pay $523.00 per month. Linda accepted that sum for nearly four years without advising the Clerk of additional annual increases in the C.P.I. In addition, the record reflects no objection By letter dated 31 January 1992, Linda provided the Clerk with C.P.I. increases for the years 1988 through 1991 as well as the sum she calculated should actually have been paid by John. Specifically, she stated that in 1988, the C.P.I. increase was 4.4%; in 1989, 4.4%; 1990, 4.6%; and in 1991, 6.1%. The letter also contained an express waiver by Linda of the increase allegedly due for 1988, but claimed John should have paid $546.01 for each month in 1989; $570.03 per month in 1990; and $604.80 monthly in 1991.

by Linda to continuation of the $523.00 monthly payments.

Again no notation was subsequently made in the court's records indicating an increase in John's child support obligation, nor was he directed to pay any greater monthly amount. On 3 April 1992, Linda filed a Motion in the Cause requesting adjustment of John's child support obligation so as to reflect computation according to the formula set out in the Judgment. Specifically, she sought "adjust[ments] and increase[s] for each year since 1987" on the grounds that although she had informed the Clerk of the C.P.I. increases, she "ha[d] been unsuccessful in implementing increases ... by this means."

John subsequently requested "amendment" of the Judgment by a Motion in the Cause filed 27 May 1992, alleging the provision for automatic increases in his child support obligation was void as against public policy. He further sought issuance of an order establishing his future obligation by reference to the North Carolina Child Support Guidelines (the Guidelines).

In his 10 June 1992 response to Linda's Motion in the Cause, John reiterated his contention that the child support increase provision of the Agreement (upon which the Judgment was based) was void as against public policy. He further claimed Linda should be equitably estopped from requesting back child support because she had failed to comply with certain notice requirements provided in the Judgment. Additionally, by "countermotion," John asserted that his inability to pay the greater amount of child support sought by Linda constituted a substantial change in circumstances warranting a modification of the Judgment.

Hearing on the three motions was held 3 August 1992. Ultimately, the trial court granted John relief from the Judgment, and allowed his motion requesting that his child support obligation be established in accordance with the Guidelines, calculating the amount thereunder as $506.00 each month beginning 1 September 1992. Linda's motion for modification was expressly denied, as was her prayer to recover the difference between what she alleged John owed and what she had actually received.

The court's order, from which Linda's appeal is taken, includes the following pertinent findings of fact and conclusions of law:

FINDINGS OF FACT

....

3. The aforesaid Separation Agreement and Property Settlement provided ... for an increase in the amount of support on the first anniversary date of this agreement and on each anniversary thereafter by reference to the Consumer Price Index as published by the Department of Labor.

4. The aforesaid provision as to child support was reiterated in a Statement Authorizing Entry of Judgment by Confession executed by the Defendant on February 19, 1987, and a Judgment by Confession which essentially restated the aforesaid agreement of the parties concerning child support and increases thereto was signed by the undersigned Judge and entered on February 27, 1987.

5. The aforesaid Judgment by Confession was entered by this Court without actual hearing by the Court to determine the needs of the child or the abilities of the parties to provide for those needs.

....

CONCLUSIONS OF LAW

....

2. This Court is not bound by the terms and provisions of the agreement of the parties as contained in the Separation Agreement and Property Settlement and the Statement executed by the Defendant and the Judgment by Confession entered herein because the same do not meet the requirements as set forth by the Court of Appeals of North Carolina in Falls v. Falls, 278 S.E.2d 546 (1981) and specifically, said Judgment did not contain the provisions set forth at page 556 thereof.

....

5. Defendant is not in arrears in his obligation to pay child support.

______

Linda's sole argument is that the trial court erred by failing to enforce the Judgment which she contends entitled her to certain increases in child support prior to the 3 August 1992 hearing. She does not contest the amount of child support ordered derived by application of the Guidelines. She also does not dispute the legal theory underlying the court's refusal to allow prospective automatic annual increases in child support by reference to C.P.I. statistics; she therefore has not appealed the court's determination with respect to payments required of John in the future.

Instead, Linda's challenge to the trial court's order is based exclusively upon her contention that the Judgment constituted res judicata concerning increases in child support allegedly due before the 3 August 1992 hearing. As stated in Linda's appellate brief: "[P]laintiff's appeal is directed ... at the effect of the Judgment by Confession entered in 1987 ... and the trial court's ability to retroactively nullify its effect." Stated otherwise, "[t]he plaintiff asks for that which the law has already given her and cannot now take away." See Appellant's Brief, at 9, 12.

The rule allowing for judgments by confession is N.C.R.Civ.P. 68.1, which provides in pertinent part as follows:

(a) For present or future liability.--A judgment by confession may be entered without action at any time in accordance with the procedure prescribed by this rule. Such judgment may be for money due or for money that may become due. Such judgment may also be entered for ... support of minor children.

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