Opinion
No. COA14–967.
03-17-2015
Jennifer E. MOORE, Plaintiff, v. Heath L. McLAUGHLIN, Defendant.
No brief filed on behalf of plaintiff-appellee. Krusch & Sellers, P.A., by Rebecca K. Watts, for defendant-appellant.
No brief filed on behalf of plaintiff-appellee.
Krusch & Sellers, P.A., by Rebecca K. Watts, for defendant-appellant.
STEELMAN, Judge.
Plaintiff's action was discontinued due to lack of service on the defendant and the failure to secure an endorsement or the issuance of an alias and pluries summons. The action is deemed commenced on the filing date of the summons that was served on defendant, which is the controlling date for determining which child support is retroactive and which child support is prospective. The trial court erred by awarding prospective child support for the time period prior to the commencement of the action, and determining defendant's income by averaging his income for several years prior to the hearing.
I. Factual and Procedural History
Jennifer E. Moore (plaintiff) and Heath L. McLaughlin (defendant) were previously married and were divorced in February 2007. The parties were the parents of a child born 19 September 2007. On 23 July 2010 the Union County Child Support Enforcement Agency, acting on behalf of plaintiff, filed a complaint against defendant seeking child support. A summons was issued the same day, but was never served on defendant. On 12 September 2011 an alias and pluries summons was issued, but was never served on defendant. On 14 February 2012 another alias and pluries summons was issued, which was served on defendant on 24 February 2012. On 29 October 2013 defendant's parental rights in the minor child were terminated. On 30 October 2013 an order was entered by Judge Joseph Williams, granting plaintiff's request to release the Union County Child Support Enforcement Agency from further responsibility for the child support action.
A hearing upon the action for child support was conducted before Judge Helms on 17 February 2014. On 1 May 2014, the court entered a child support order. The trial court calculated defendant's income by averaging his income for the years 2010 through 2013, and ordered defendant to pay child support arrears in the amount of $71,253.00 for the period from 1 August 2010 through 31 October 2013.
Defendant appeals.
II. Timeliness of Defendant's Appeal
The trial court entered its child support order on 1 May 2014. Rule 3(c) of the North Carolina Rules of Appellate Procedure provides in relevant part that in civil actions a party must file and serve a notice of appeal:
(1) within thirty days after entry of judgment if the party has been served with a copy of the judgment within the three day period prescribed by Rule 58 of the Rules of Civil Procedure ; or
(2) within thirty days after service upon the party of a copy of the judgment if service was not made within that three day period[.] ...
Rule 58 provides that “[s]ervice and proof of service shall be in accordance with Rule 5.” N.C. Gen.Stat. § 1A–1, Rule 5(b) in turn provides in part that “[s]ervice by mail shall be complete upon deposit of the pleading or paper enclosed in a post-paid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service.” Therefore, under N.C. R.App. P. 3(c)(1) defendant was required to file notice of appeal from the 1 May 2014 child support order by 2 June 2014, provided that he was properly served with the order. Defendant filed a notice of appeal on 20 June 2014, eighteen days after this deadline. However, on 9 October 2014 defendant filed a “Conditional Petition for Writ of Certiorari” asking that if “this Court determines that [defendant's] Notice of Appeal in this matter was not timely filed” we issue a writ of certiorariin order to reach the merits of his appeal. The petition asserts that: (1) the child support order bore a certificate of service indicating that both parties were served by mail on 1 May 2014; (2) no postage was affixed to the envelope in which defendant's copy of the order was mailed, and; (3) as a result, defendant did not receive a copy of the order until 18 June 2014. The petition was accompanied by defendant's sworn affidavit attesting to these facts. On 22 October 2104 plaintiff filed a pro seresponse to defendant's petition for writ of certiorari.In her response, plaintiff challenges defendant's credibility, asserting that the petition for writ of certiorariwas “simply another ploy” by defendant to “stall for time” and alleging that after defendant's prior counsel had “crossed an ethical line” by reviewing the notes from the child support hearing, defendant then “fabricate[d] this story” in order to appeal. Plaintiff does not cite to competent evidence in the record to support her conclusory allegations, which we disregard.
N.C. R.App. P. 21(a) provides in relevant part that the writ of certiorari“may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action [.]” Under N.C. R.App. P. 3(c)(2), if the child support order was not mailed with proper postage, as required by Rule 5, which is cited in Rule 58, then the time for appeal did not begin to run until 18 June 2014, when defendant had actual notice of the order. In that case, his notice of appeal was timely filed on 20 June 2014. However, assuming, arguendo,that defendant's notice of appeal was not timely filed, we elect in our discretion to grant his petition for writ of certiorariin order to reach the merits of his appeal.
III. Child Support Order
A. Standard of Review
“ ‘Child support orders entered by a trial court are accorded substantial deference by appellate courts and our review is limited to a determination of whether there was a clear abuse of discretion.’ “ Mason v. Erwin, 157 N.C.App. 284, 287, 579 S.E .2d 120, 122 (2003) (quoting Leary v. Leary, 152 N.C.App. 438, 441, 567 S.E.2d 834, 837 (2002) ). However, “ ‘[a trial] court by definition abuses its discretion when it makes an error of law.’ “ In re A.F.,––– N.C.App. ––––, ––––, 752 S.E.2d 245, 248 (2013) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392, 414 (1996) ). In addition, “[w]here, as here, the trial court sits without a jury, the judge is required to ‘find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.’ “ Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 188–89 (1980) (quoting G.S. 1A–1, Rule 52(a) ). “ ‘[T]he trial court's findings of fact are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary.’ Whether those findings of fact support the trial court's conclusions of law is reviewable de novo.” Respess v. Respess,––– N.C.App. ––––, ––––, 754 S.E.2d 691, 695 (2014) (quoting Mason v. Dwinnell,190 N.C.App. 209, 221, 660 S.E.2d 58, 66 (2008) (internal quotation omitted). “Under a de novoreview, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (internal quotation omitted).
B. Date of Commencement of Action
The trial court awarded child support for the period from 1 August 2010 until 29 October 2013, based on the court's application of the child support guidelines for the entire period. Defendant argues that plaintiff's action did not commence until 14 February 2012 and that the trial court was required to award retroactive child support (for which, as discussed below, the trial court does not employ the child support guidelines under the law applicable to this hearing), for the time between 1 August 2010 and 14 February 2012. We agree.
As a general rule, “ ‘[c]hild support awarded prior to the time a party files a complaint is properly classified as retroactive child support.... Child support awarded, however, from the time a party files a complaint for child support to the date of trial is ... [termed] prospective child support [.]’ “ Respess,––– N.C.App. at ––––, 754 S.E.2d at 702–03 (quoting Carson v. Carson, 199 N.C.App. 101, 105, 680 S.E.2d 885, 888 (2009) (internal citation omitted). Therefore, the relevant date for purposes of distinguishing between retrospective and prospective child support is the date that plaintiff's action was commenced. Ordinarily, this will be the date that the complaint is filed. SeeN.C. Gen.Stat. § 1A–1, Rule 3(a) (a “civil action is commenced by filing a complaint with the court”). However:
While an action can commence by filing a complaint, this is only so when certain requirements are met. SeeN.C. Gen.Stat. § 1A–1, Rule 3(a)(2). Rule 3 provides that the complaint “be served in accordance with the provisions of Rule 4.... If the complaint is not filed within the period specified in the clerk's order, the action shall abate.” Rule 4 requires the summons and petition to be served on the opposing party within sixty (60) days of issuance.
Bryson v. Cort,193 N.C.App. 532, 537, 668 S.E.2d 84, 88 (2008). In addition:
If the opposing party is not served within sixty (60) days, Rule 4(d) permits the action to be continued by obtaining an alias or pluries summons, within ninety (90) days after the date of issue of the last preceding summons. N.C. Gen.Stat. § 1A–1, Rule 4(d)(2). Additional alias or pluries summons can be issued to continue to relate back to the date of the original complaint if obtained within ninety (90) days of the date the previous alias or pluries summons was issued.” Rule 4 [ (e) ] further states ... [that when] there is neither endorsement by the clerk nor issuance of alias or pluries summons within the time specified in Rule 4(d), the action is discontinued as to any defendant not theretofore served with summons within the time allowed. Thereafter, alias or pluries summons may issue, or an extension be endorsed by the clerk, but, as to such defendant, the action shall be deemed to have commenced on the date of such issuance or endorsement.N.C. Gen.Stat. § 1A–1, Rule 4(e).
Bryson,193 N.C.App. at 537–38, 668 S.E.2d at 88 (emphasis added). Thus:
[W]here there is neither endorsement nor issuance of an alias or pluries summons within ninety (90) days after issuance of the last preceding summons, the action is discontinued and treated as if it had never been filed. Under Rule 4(e), an extension can be endorsed by the clerk or an alias or pluries summons can be issued after the ninety (90) days has run, but ‘the action is deemed to have commenced, as to such a defendant, on the date of the endorsement or the issuance of the alias or pluries summons.’ “
Brysonat 538, 668 S.E.2d at 88–89 (citing Johnson v. City of Raleigh, 98 N.C.App. 147, 148–49, 389 S.E.2d 849, 851 (1990), and quoting Lemons v. Old Hickory Council, 322 N.C. 271, 275, 367 S.E.2d 655, 657 (1988) ). “A discontinuance breaks the chain of summonses and a summons endorsed more than 90 days after the issuance of the original summons does not relate back to the original date of filing of the complaint.” In re Adoption of Searle, 74 N.C.App. 61, 65, 327 S.E.2d 315, 318 (1985) (citing Lackey v. Cook, 40 N.C.App. 522, 253 S.E.2d 335 (1979) ).
In the instant case, the first summons was issued on 23 July 2010. Plaintiff had sixty days, until 21 September 2010, to serve the summons, and 90 days, until 21 October 2010, to either cause the summons to be endorsed or to secure the issuance of an alias and pluries summons. The summons was not served on defendant by 21 September 2010 and no endorsement was secured or an alias and pluries summons issued. As a result, plaintiff's action was discontinued on 21 October 2010. On 12 September 2011, plaintiff secured the issuance of an alias and pluries summons. Because the action had been discontinued, a new case commenced on that date. The 12 September 2011 summons was not served and plaintiff failed to secure an endorsement or to procure the issuance of an alias and pluries summons; therefore, the action was discontinued on 11 December 2011.
A third summons was issued on 14 February 2012, and was served on defendant on 24 February 2012. Therefore, plaintiff's child support action commenced on 14 February 2012. Child support awarded for the period between that date and 29 October 2013 was prospective child support, while child support awarded for the period between 1 August 2010 and 14 February 2012 was retroactive child support. We conclude that the child support order entered in this case must be remanded for an award of retroactive child support for this period.
Because the trial court will be required to award retroactive child support on remand, we note that under the law applicable to this case, “an award of retroactive child support [must] be supported by evidence of plaintiff's actual expenditures for the [child.]” Respess,––– N.C.App. at ––––, 754 S.E.2d at 703 (citing Robinson v. Robinson, 210 N.C.App. 319, 333, 707 S.E.2d 785, 795 (2011), and Carson, 199 N.C.App. at 107, 680 S.E.2d at 889 ). On remand, the trial court should make findings regarding plaintiff's actual expenditures on behalf of the child and may, if necessary, allow additional evidence to be presented on this issue.
Section 8 of Session Law 2014–77 amended N.C. Gen.Stat. § 50–13.4(c1), effective 22 July 2014, to provide that the Conference of Chief District Court Judges are to begin to prescribe presumptive child support guidelines for retroactive child support as well as for prospective child support. Revised Child Support Guidelines were promulgated by the Conference of Chief District Court Judges, effective 1 January 2015 and applicable to child support actions heard on or after that date. The revised guidelines provide that in “cases involving a parent's obligation to support his or her child for a period before a child support action was filed (i.e., cases involving claims for “retroactive child support” or “prior maintenance”), a court may determine the amount of the parent's obligation (a) by determining the amount of support that would have been required had the guidelines been applied at the beginning of the time period for which support is being sought, or (b) based on the parent's fair share of actual expenditures for the child's care.... “ Because the present case was heard prior to the effective date, the 2011 child support guidelines apply.
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C. Calculation of Prospective Child Support
In his second argument, defendant asserts that the trial court erred in its award of prospective child support by computing his income through the averaging of his income for the years 2010 through 2013. We agree.
Under N.C. Gen.Stat. § 50–13.4(c) child support shall be awarded “in such amount as to meet the reasonable needs of the child” and shall be determined “by applying the presumptive guidelines established pursuant to subsection (c1) of this section.” “ ‘It is well established that child support obligations are ordinarily determined by a party's actual income at the time the order is made or modified.’ ‘Under the Child Support Guidelines, [c]hild support calculations ... are based on the parents' current incomes at the time the order is entered.’ “ State ex rel. Midgett v. Midgett, 199 N.C.App. 202, 207, 680 S.E.2d 876, 879 (2009) (quoting Ellis v. Ellis, 126 N.C.App. 362, 364, 485 S.E.2d 82, 83 (1997), and Holland v. Holland, 169 N.C.App. 564, 567, 610 S .E.2d 231, 234 (2005) ).
In the present case, the evidence at the hearing established that after defendant retired from the military, he was employed as a contractor for Lockheed Martin beginning in February 2010. His earnings for 2010 and 2011 were $238,000 and $339,000 respectively, which included bonus pay for employment in a combat zone. After defendant returned to the United States, his income for 2012 and 2013 fell to between $110,000 and $120,000, as he was no longer eligible for combat pay. In its order awarding child support, the trial court calculated defendant's income by calculating the average of his income for the years 2010 through 2013 rather than his income at the time of the hearing, without making findings that would have justified deviation from the child support guidelines. “On remand the trial court will make new findings on Father's monthly gross income based on the evidence in the record. In this regard, the court must determine Father's gross income as of the time the child support order was originally entered, not as of the time of remand nor on the basis of Father's average monthly gross income over the years preceding the original trial.” Lawrence v. Tise, 107 N.C.App. 140, 149, 419 S.E.2d 176, 182 (1992). In its discretion, the trial court may take additional evidence on this issue.
IV. Conclusion
For the reasons discussed above, we conclude that the trial court erred by failing to distinguish between retroactive child support awarded for the period between 1 August 2010 and 14 February 2012, and prospective child support for the period between 14 February 2012 and 29 October 2013. The trial court also erred in calculating defendant's income by averaging his income for the years from 2010 to 2013. Accordingly, the trial court's order is
REVERSED AND REMANDED.
Judges DIETZ and INMAN concur.
Report per Rule 30(e).
Opinion
Appeal by defendant, upon writ of certiorai, from order entered 1 May 2014 by Judge William F. Helms, III, in Union County District Court. Heard in the Court of Appeals 21 January 2015.