Opinion
No. COA03-980
Filed July 20, 2004
1. Appeal and Error — preservation of issues — failure to make argument
Plaintiff's two assignments of error that she failed to argue in her brief are deemed abandoned pursuant to N.C.R. App. P. 28(b)(5).
2. Child Support, Custody, and Visitation — child support — modification
The trial court erred by modifying plaintiff mother's child support obligation where such a modification was not requested by the parties, because: (1) the only issue before the trial court was whether primary custody of the minor child would remain with defendant or be awarded to plaintiff; and (2) there was no motion before the court seeking to modify child support.
Judge TYSON dissenting.
Appeal by plaintiff from judgment entered 27 February 2003 by Judge Daniel F. Finch in Granville County District Court. Heard in the Court of Appeals 21 April 2004.
John M. Dunlow, attorney for plaintiff. Currin Dutra, LLP, by Thomas L. Currin and Amy R. Edge for defendant.
Angela Maria Henderson ("plaintiff") appeals the trial court's judgment ordering her to pay $488 per month in child support to James Bryant Henderson ("defendant"). For the reasons stated herein, we vacate the judgment in part and remand the case to the trial court.
The factual and procedural history of this case is as follows: Plaintiff and defendant were married from 1 September 1984 to 7 March 1995. Their daughter, Michelle Wade Henderson ("Michelle"), was born on 30 November 1990. When the parties divorced, the trial court ordered that the parties share joint custody of Michelle, and that her primary residence be with defendant. Plaintiff was ordered to pay $100 per month in child support to defendant. In December 2001, defendant became engaged to a woman living in California. Defendant and his fiancée agreed that defendant would move to California. In January 2002, defendant informed plaintiff that he intended to move to California at the end of the school year, and he planned to take Michelle with him.
On 26 February 2002, plaintiff filed a Motion in the Cause seeking modification of the "custodial arrangements" and containing the following prayers for relief:
1. That the Court enter an Order granting the Plaintiff and Defendant joint custody of the minor child, Michelle Wade Henderson, and award primary residence to the Plaintiff and visitation with the Defendant.
2. That the Court enter a preliminary injunction enjoining the Defendant from relocating the minor child's residence pending a full hearing on the merits of this Motion.
3. That the Court accept this verified motion as an affidavit on which to base further orders of the Court.
4. For such other and further relief as the Court deems proper and just.
The trial court conducted an evidentiary hearing on 12 July 2002. At the conclusion of the hearing, the trial judge ordered that if defendant moves to California, then it would be in the best interests of the child that primary custody be with defendant, subject to reasonable visitation with plaintiff. The trial judge also directed from the bench that "if the visitation occurs, and if the modified visitation schedule is arranged, that the child support obligation be calculated according to the North Carolina Child Support Guidelines as required by law." On 27 February 2003, the trial court issued its judgment, ordering plaintiff to pay defendant $488 per month in child support. It is from this judgment that plaintiff appeals.
As an initial matter, we note that plaintiff's brief contains arguments supporting only three of the original five assignments of error on appeal. The two omitted assignments of error are deemed abandoned pursuant to N.C.R. App. P. 28(b)(5) (2004). We therefore limit our review to those assignments of error addressed in plaintiff's brief.
The dispositive issue on appeal is whether the trial court erred by modifying plaintiff's child support obligation where such a modification was not requested by the parties. We hold that the trial court erred by ordering the modification.
"An 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. . . ." N.C. Gen. Stat. § 50-13.7 (2003). The trial court may not, on its own, modify an existing child support order. Instead, "[t]he trial court's jurisdiction is limited to the specific issues properly raised by a party or interested person." Bogan v. Bogan, 134 N.C. App. 176, 179, 516 S.E.2d 641, 643 (1999) ( citing Smith v. Smith, 15 N.C. App. 180, 182-83, 189 S.E.2d 525, 526 (1972)).
The case sub judice is analogous to Royall v. Sawyer, 120 N.C. App. 880, 463 S.E.2d 578. In Royall, the divorced parents entered into a consent order for child support. Later, the trial court convened to resolve a custody dispute between the parents. Included in the trial court's judgment on the custody issue was an order that the child attend a private boarding school, and that the father pay for the child's tuition and fees. This Court held that "[t]he only issue before the trial court was the custody of plaintiff's and defendant's son. There was no motion before the trial court to modify the child support. Accordingly, the trial court was without authority to issue an order modifying an earlier Consent Order setting child support." 120 N.C. App. at 882, 463 S.E.2d at 580.
We conclude that, as in Royall, the only issue before the trial court in this case was whether primary custody of Michelle would remain with defendant or be awarded to plaintiff. There was no motion before the court seeking to modify child support. In fact, the Court's statement regarding child support was a conditional statement. The modification of child support was contemplated to take place only in the event that defendant and Michelle moved to California. Thus, the trial court was without authority to modify the existing child support arrangement. For these reasons, we hereby vacate the portion of the trial court's judgment that modifies the existing child support arrangement. Accordingly, it is not necessary to address defendant's remaining assignments of error.
VACATED IN PART AND REMANDED.
Judge McGEE concurs.
Judge TYSON dissents.