Watauga Cty. o/b/o McKiernan v. Shell ( 2019 )


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  •                 IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA18-687
    Filed: 19 March 2019
    Watauga County, No. 09 CVD 389
    WATAUGA COUNTY on behalf of Nicole R. McKiernan, Plaintiff
    v.
    DAVID DWAYNE SHELL, Defendant.
    Appeal by plaintiff from order entered 6 February 2018 by Judge Larry Leake
    in District Court, Watauga County. Heard in the Court of Appeals 13 February 2019.
    Di Santi Watson Capua Wilson & Garrett, PLLC, by Chelsea Bell Garrett, for
    plaintiff-appellant.
    No brief filed for defendant-appellee.
    STROUD, Judge.
    The Watauga County Child Support Enforcement Agency appeals a trial court
    order staying a IV-D child support proceeding initiated by the Avery County Child
    Support Enforcement Agency to establish “continuing support and maintenance” “as
    required by the North Carolina Child Support Guidelines, N.C.G.S. 50-13.4[;]” the
    stay order was based upon a pending appeal in the related Chapter 50 child custody
    proceeding between the parents of the children.1              The trial court acted under a
    1We have listed the caption of this case as shown in the order on appeal, but we note that Watauga
    County file number 09 CVD 389 is a Chapter 50 custody claim involving different parties, while the
    Chapter IV-D child support claim which is the subject of this appeal is file number 17 CVD 116. The
    actual plaintiffs in Watauga County file number 09 CVD 389, David W. and Donna Shell, did not
    appear as parties in this appeal.
    WATAUGA CTY. O/B/O MCKIERNAN V. SHELL
    Opinion of the Court
    misapprehension of the applicable law in determining it had no jurisdiction to
    consider a Chapter IV-D child support enforcement claim while the Chapter 50
    custody appeal was pending. We reverse the stay order and remand for further
    proceedings in accord with this opinion.
    I.      Background
    Mother Nicole McKieran and Father David D. Shell are the parents of two
    minor children for whom plaintiff Watauga County Child Support Enforcement
    Agency sought to establish child support. Mother and Father are also defendants in
    a child custody proceeding under Chapter 50 of the North Carolina General Statutes
    brought in 2009 by the children’s paternal grandparents as plaintiffs. See Shell v.
    Shell, ___ N.C. App. ___, ___, 
    819 S.E.2d 566
    (2018). An order modifying child custody
    was appealed to this Court, and we will quote the background as stated in the opinion
    in the custody case:
    This appeal arises from the modification of a 2012
    custody order. Plaintiffs, David and Donna Shell, are the
    paternal grandparents of the children, Sam and Kim.
    Defendant David Shell is the son of plaintiffs and father of
    Sam and Kim. Defendant Nicole Green is the children’s
    mother and has married since the prior order and is now
    Nicole McKiernan. We will identify all parties by their
    relation to Sam and Kim. Therefore, plaintiffs will be
    referred to as the “Grandparents,” defendant Shell as
    “Father” and defendant Green as “Mother.” Although both
    parents are “defendants,” the interests of defendant Father
    are aligned with plaintiff Grandparents and are opposed to
    the interests of defendant Mother.
    The prior custody order was entered in May 2012.
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    WATAUGA CTY. O/B/O MCKIERNAN V. SHELL
    Opinion of the Court
    Father was granted sole legal and physical custody of the
    children and Mother had visitation rights. . . .
    On 3 June 2016, Mother moved to modify custody
    alleging that since the prior custody order there had been
    a substantial change of circumstances affecting the welfare
    of the children because she had remained sober for several
    years, maintained a job for over two years, and gotten
    remarried. She also alleged that Father had become more
    difficult to deal with regarding visitation. He refused to
    send the children’s homework so the children could
    complete it during visits with Mother, and he denied
    Mother information about the children’s school activities
    and would not allow her to participate.
    On 17 and 30 January 2017, the trial court held a
    hearing on the motion to modify custody. The trial court
    entered an order modifying custody on 6 February 2017,
    which determined there had been a substantial change of
    circumstances affecting the welfare of the children and
    modified custody, granting Father and Mother joint legal
    custody, with Mother receiving primary physical custody.
    Father and Grandparents appeal[ed on 8 March 2017 and
    18 July 2017, respectively.]
    Id. at ___, 819 S.E.2d at 569-70 (footnotes omitted). The order appealed from in Shell
    is from Watauga County, file number 09 CVD 389.
    While the appeal in Shell was pending before this Court, on 4 May 2017, the
    Avery County Child Support Enforcement Agency filed a verified complaint on behalf
    of Mother against Father for IV-D child support. See generally N.C. Gen. Stat. § 110-
    129(7) (2017) (“‘IV-D’ case means a case in which services have been applied for or
    are being provided by a child support enforcement agency established pursuant to
    Title IV-D of the Social Security Act as amended and this Article.”). The IV-D child
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    WATAUGA CTY. O/B/O MCKIERNAN V. SHELL
    Opinion of the Court
    support case was filed in Avery County, file number 17 CVD 116. Custody claims are
    not considered in IV-D child support cases as noted in Gray v. Peele:
    We understand that the order failed to address child
    custody because this case was heard in Wake County Civil
    IV–D District Court and prosecuted by the Wake County
    Child Support Enforcement Agency on behalf of Plaintiff.
    The “Civil IV–D” session of District Court is commonly
    referred to as “child support court.” Chapter 110 of the
    North Carolina General Statutes sets out a comprehensive
    statutory scheme for establishment of child support orders
    and enforcement of those orders in cases which fall under
    that Chapter, defined as “a case in which services have
    been applied for or are being provided by a child support
    enforcement agency established pursuant to Title IV–D of
    the Social Security Act as amended and this Article.” N.C.
    Gen. Stat. § 110–129(7) (2011). N.C. Gen. Stat. § 110–
    129.1(a)(3) grants to the Department of Health and Human
    Services the “power and duty” to
    Establish and implement procedures under
    which in IV–D cases either parent or, in the
    case of an assignment of support, the State
    may request that a child support order
    enforced under this Chapter be reviewed and,
    if appropriate, adjusted in accordance with
    the most recently adopted uniform statewide
    child support guidelines prescribed by the
    Conference of Chief District Court Judges.
    Because of the specialized nature of the IV–D
    session of court, motions for modification of custody are not
    heard, nor do Child Support Enforcement agencies
    represent parents in regard to any custody issues.
    
    235 N.C. App. 554
    , 559, 
    761 S.E.2d 739
    , 743 (2014).
    Based upon the trial court’s Chapter 50 custody order, as of February 2017,
    the children were in the primary physical custody of Mother, and Avery County Child
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    WATAUGA CTY. O/B/O MCKIERNAN V. SHELL
    Opinion of the Court
    Support Enforcement Agency then filed its complaint to establish child support on
    her behalf:
    (c)    Actions or proceedings to establish, enforce, or
    modify a duty of support or establish paternity as initiated
    under this Article shall be brought in the name of the
    county or State agency on behalf of the public assistance
    recipient or nonrecipient client. Collateral disputes
    between a custodial parent and noncustodial parent,
    involving visitation, custody and similar issues, shall be
    considered only in separate proceedings from actions
    initiated under this Article. The attorney representing the
    designated representative of programs under Title IV-D of
    the Social Security Act shall be deemed attorney of record
    only for proceedings under this Article, and not for the
    separate proceedings. No attorney/client relationship shall
    be considered to have been created between the attorney
    who represents the child support enforcement agency and
    any person by virtue of the action of the attorney in
    providing the services required.
    N.C. Gen. Stat. § 110-130.1(c) (2017) (emphasis added).
    On 20 September 2017, the Avery County District Court entered an order
    transferring venue of the IV-D child support action to Watauga County and ordered
    that “it shall be combined into Watauga County File No.:09 CVD 389 and set for their
    10/2/17 Civil Session.” Although the order “combining” the cases is not in our record
    on appeal, this is an uncontested finding of fact in the stay order on appeal. We also
    note that “combining” a IV-D child support action with a Chapter 50 custody action
    is statutorily prohibited by N.C. Gen. Stat. § 110-130.1. 
    Id. (“Collateral disputes
    between a custodial parent and noncustodial parent, involving visitation, custody and
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    WATAUGA CTY. O/B/O MCKIERNAN V. SHELL
    Opinion of the Court
    similar issues, shall be considered only in separate proceedings from actions initiated
    under this Article. The attorney representing the designated representative of
    programs under Title IV-D of the Social Security Act shall be deemed attorney of
    record only for proceedings under this Article, and not for the separate proceedings.”
    (emphasis added)).
    On 6 February 2018, after the children had been residing with Mother for
    nearly a year without entry of a child support order, the trial court entered an order
    staying the IV-D child support action. The case caption on the stay order is Watauga
    County on behalf of Nicole R. McKiernan, Plaintiff, v. David Wayne Shell, Defendant,
    with a file number of 09-CVD-389 – the Chapter 50 custody file number – based upon
    the “combination” of the IV-D child support and custody cases. To support entry of
    the stay order, the trial court made the following pertinent findings:
    10.     The Court finds that the case of Kanupp v Kanupp,
    
    148 N.C. App. 716
    , 
    562 S.E.2d 117
    , reported in full
    at Kanupp v. Kanupp, 2002 N.C. App. LEXIS 1705
    (N.C. Ct. App., Feb. 19, 2002) would be controlling in
    this factual setting in that the court does not have at
    this time authority to hear the action.
    11.     The Court also finds that it is in the interest of
    judicial efficiency for this matter to not be
    adjudicated until there is a final determination by
    Court of Appeals as to the underlying custody
    dispute.
    12.     The Court also finds that N.C. Gen. Stat. § 1-294
    requires the staying of this action in that the Court
    finds this matter is embraced within that action
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    WATAUGA CTY. O/B/O MCKIERNAN V. SHELL
    Opinion of the Court
    which is on appeal.
    The stay order decreed: “That this matter be stayed until a mandate is issued from
    the North Carolina Court of Appeals regarding the underlying custody dispute which
    is currently on appeal and jurisdiction is returned to this Court.”
    On 6 March 2018, plaintiff appealed the 6 February 2018 stay order. On 21
    August 2018, this Court issued its opinion in Shell, affirming the trial court order
    modifying custody. See Shell, ___ N.C. App. ___, ___, 
    819 S.E.2d 566
    .
    On 29 August 2018, the trial court entered a temporary child support order in
    the IV-D claim. Based upon entry of the temporary child support order, Father filed
    a motion to dismiss this appeal as moot because the trial court had entered a
    temporary child support order after this Court’s opinion in Shell, and that order notes
    that another hearing would be held in September 2018.2 This Court previously
    denied the motion to dismiss as moot by order entered on 3 October 2018.
    To summarize, there are at least four orders tangled into the controversy
    before us:
    (1)   The order modifying custody which was appealed and affirmed by this
    Court in Shell. See 
    id. (2) An
    order issued in Avery County which transferred venue of the IV-D
    claim and “combined” it with the pending Chapter 50 custody action.
    2“A case is ‘moot’ when a determination is sought on a matter which, when rendered, cannot have any
    practical effect on the existing controversy.” Swanson v. Herschel, 
    174 N.C. App. 803
    , 805, 
    622 S.E.2d 159
    , 160 (2005) (citation and quotation marks omitted).
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    WATAUGA CTY. O/B/O MCKIERNAN V. SHELL
    Opinion of the Court
    (3) The stay order on appeal which stayed the IV-D child support claim, under
    the Chapter 50 custody case file number, based on the pending Chapter 50 custody
    appeal.
    (4) The temporary child support order entered after this appeal of the stay
    order was pending before us.
    However, only the 6 February 2018 stay order is on appeal before this Court.
    II.    Interlocutory Appeal
    The trial court’s stay order is not a final order which disposes of all claims, so
    this appeal is interlocutory. See Gray v. 
    Peele, 235 N.C. App. at 556
    –57, 761 S.E.2d
    at 741 (“Generally, there is no right of immediate appeal from interlocutory orders
    and judgments. An interlocutory order is one made during the pendency of an action,
    which does not dispose of the case, but leaves it for further action by the trial court
    in order to settle and determine the entire controversy. On the other hand, a final
    judgment is one which disposes of the cause as to all the parties, leaving nothing to
    be judicially determined between them in the trial court.” (citation omitted)).
    Plaintiff argues that this Court should “sua sponte” hear this appeal because the trial
    court’s error impairs the ability of the Child Support Enforcement Agency to
    expeditiously obtain a child support order on behalf of the parents and children who
    need financial assistance. Plaintiff notes that this case presents an “easy-to-abuse
    process whereby a responsible parent could delay paying their obligation for a long
    time.” Our Supreme Court noted this Court’s discretion to consider an appeal for
    similar reasons,
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    WATAUGA CTY. O/B/O MCKIERNAN V. SHELL
    Opinion of the Court
    Ordinarily, an appeal from an interlocutory order
    will be dismissed as fragmentary and premature unless the
    order affects some substantial right and will work injury to
    appellant if not corrected before appeal from final
    judgment. However, the appellate courts of this State in
    their discretion may review an order of the trial court, not
    otherwise appealable, when such review will serve the
    expeditious administration of justice or some other exigent
    purpose. Such discretion is not intended to displace the
    normal procedures of appeal, but inheres to appellate
    courts under our supervisory power to be used only in those
    rare cases in which normal rules fail to administer to the
    exigencies of the situation. When discretionary review is
    allowed, the question of appealability becomes moot.
    Such is the case here. The Court of Appeals
    determined that a trial on the merits of this protracted
    controversy would be facilitated by allowing immediate
    appeal from the pretrial orders. Accordingly, it reviewed
    the merits of the orders pursuant to its supervisory
    authority contained in G.S. 7A—32(c). The issue of
    premature appeal thereupon became moot and arguments
    on the point were rendered feckless. Hence, we consider
    the opinion of the Court of Appeals on the merits of this
    controversy, expressing no opinion on the appealability of
    the interlocutory orders.
    Stanback v. Stanback, 
    287 N.C. 448
    , 453–54, 
    215 S.E.2d 30
    , 34–35 (1975) (citations
    omitted).
    Based upon the “combination” of the custody and IV-D cases and the stay order,
    Mother went for over two years with no child support order at all, and since the trial
    court did not have jurisdiction to enter an order on child support during the pendency
    of this appeal, this is one of “those rare cases in which the normal rules fail to
    administer to the exigencies of the situation.” 
    Id. at 454,
    215 S.E.2d at 34; see N.C. R.
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    WATAUGA CTY. O/B/O MCKIERNAN V. SHELL
    Opinion of the Court
    App. P. 2 (allowing this Court to “suspend or vary the requirements” of our rules “[t]o
    prevent manifest injustice”). Further, clarification of the trial court’s authority to
    enter a IV-D child support order while a Chapter 50 custody appeal is pending is also
    in the public interest. See generally Hoke Cnty. Bd. of Educ. v. State, 
    198 N.C. App. 274
    , 279, 
    679 S.E.2d 512
    , 517 (2009) (“Notwithstanding the foregoing, Rule 2 of the
    North Carolina Rules of Appellate Procedure allows this Court to suspend its rules to
    prevent manifest injustice to a party, or to expedite decision in the public interest.”
    (citation and brackets omitted)). There can be no doubt that this case is a “manifest
    injustice[,]” to the children involved and is of great “public interest” and import. 
    Id. Therefore, we
    elect to invoke our power pursuant to Rule 2 to hear this appeal
    notwithstanding the fact that the order is interlocutory.
    III.     Standard of Review
    “When evaluating the propriety of a trial court’s stay order the appropriate
    standard of review is abuse of discretion. A trial court may be reversed for abuse of
    discretion only if the trial court made a patently arbitrary decision, manifestly
    unsupported by reason.” Meares v. Town of Beaufort, 
    193 N.C. App. 49
    , 64, 
    667 S.E.2d 244
    , 254 (2008) (citation and quotation marks omitted). Further, the trial court may
    also abuse its discretion by making a discretionary decision based upon a
    misapprehension of the applicable law. See generally Matter of Skinner, 
    370 N.C. 126
    , 146, 
    804 S.E.2d 449
    , 462 (2017) (“It is well-established in this Court’s decisions
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    WATAUGA CTY. O/B/O MCKIERNAN V. SHELL
    Opinion of the Court
    that a misapprehension of the law is appropriately addressed by remanding the case
    to the appropriate lower forum in order to apply the correct legal standard.”).
    IV.   Trial Court’s Jurisdiction
    The trial court based the stay order upon its determination that it did not have
    jurisdiction to hear the IV-D child support claim for several reasons, though all were
    based upon the pending appeal in the Chapter 50 custody case. The IV-D child
    support complaint was filed after the appeal of the custody order, in another county
    and with different parties. Although the order “combining” the cases is not before us,
    the Avery County trial court had no authority to “combine” the Chapter 50 custody
    case, which was at that time on appeal before this Court, with the newly-filed IV-D
    action. See N.C. Gen. Stat. § 110-130.1(c). This erroneous “combination” of the IV-D
    child support and custody actions led the Watauga County trial court to determine it
    did not have jurisdiction to consider child support while appeal on custody was
    pending before this Court.
    The trial court gave three reasons for the stay order. First, it relied upon the
    unpublished case of Kanupp v. Kanupp, 
    148 N.C. App. 716
    , 
    562 S.E.2d 117
    (2002)
    (unpublished), which it deemed “controlling,” but because Kanupp is unpublished, it
    by definition cannot be “controlling” authority.          N.C. R. App. P. 30(e)(3) (“An
    unpublished decision of the North Carolina Court of Appeals does not constitute
    controlling legal authority.” (emphasis added)).
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    WATAUGA CTY. O/B/O MCKIERNAN V. SHELL
    Opinion of the Court
    Next, the trial court’s reliance upon North Carolina General Statute § 1-294
    was also mistaken. See McKyer v. McKyer, 
    179 N.C. App. 132
    , 139, 
    632 S.E.2d 828
    ,
    832 (2006) (“With respect to this issue, N.C. Gen. Stat. § 1–294 (2005) provides:
    ‘When an appeal is perfected as provided by this Article it stays all further
    proceedings in the court below upon the judgment appealed from, or upon the matter
    embraced therein; but the court below may proceed upon any other matter included in
    the action and not affected by the judgment appealed from.’ This Court has held,
    based on N.C. Gen. Stat. § 1–294, that ‘once a custody order is appealed, the trial
    court is divested of jurisdiction over all matters specifically affecting custody.’”
    (citations and parenthetical omitted)).
    Finally, the trial court found it was “in the interest of judicial efficiency for this
    matter to not be adjudicated until there is a final determination by Court of
    Appeals[.]” But we note that Mother was required to wait approximately a year after
    the custody order before the trial court entered the stay order and another six months
    because of the stay order before entry of a temporary support order. Even if a long
    delay in considering child support is somehow “efficient” for the trial court, judicial
    efficiency must not trump the needs of the children for support, particularly where
    North Carolina General Statute § 50-19.1 requires the IV-D child support and custody
    matters to remain separate.
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    WATAUGA CTY. O/B/O MCKIERNAN V. SHELL
    Opinion of the Court
    North Carolina General Statute § 50-19.1 clears up any potential confusion of
    when orders in a domestic case are immediately appealable and the trial court retains
    jurisdiction to proceed with other claims. See N.C. Gen. Stat. § 50-19.1 (2017).3 In
    fact, North Carolina General Statute § 50-19.1 specifically allows a child support
    claim to proceed while a custody claim is on appeal, even if the claims are in the “same
    action” from inception:
    Notwithstanding any other pending claims filed in
    the same action, a party may appeal from an order or
    judgment adjudicating a claim for absolute divorce, divorce
    from bed and board, child custody, child support, alimony,
    or equitable distribution if the order or judgment would
    otherwise be a final order or judgment within the meaning
    of G.S. 1A-1, Rule 54(b), but for the other pending claims
    in the same action. A party does not forfeit the right to
    appeal under this section if the party fails to immediately
    appeal from an order or judgment described in this section.
    An appeal from an order or judgment under this section
    shall not deprive the trial court of jurisdiction over any
    other claims pending in the same action.
    N.C. Gen. Stat. § 50-19.1 (emphasis added). The trial court thus acted under a
    misapprehension of the law in determining it had no jurisdiction to consider the IV-
    D child support claim because of the pending Chapter 50 custody appeal. See 
    id. Unfortunately, although
    the trial court did have jurisdiction to enter a child
    support order when it entered the stay during the pendency of the appeal of the
    custody claim, it did not have jurisdiction to enter an order in the child support claim
    3 North Carolina General Statute § 50-19.1 has been amended, though the amendment is not relevant
    to this case. See N.C. Gen. Stat. § 50-19.1 (2019).
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    WATAUGA CTY. O/B/O MCKIERNAN V. SHELL
    Opinion of the Court
    during a pending appeal in the child support claim. Notice of appeal from the child
    support stay order was filed on 6 March 2018, so the trial court would have had no
    jurisdiction to enter the temporary child support order – or any other child support
    order. Since this appeal deals with the child support claim, it is not covered by North
    Carolina General Statute § 50-19.1. See generally 
    id. Thus, the
    trial court did not
    have jurisdiction to enter a child support order when the child support claim was at
    issue on appeal. See 
    id. (noting the
    trial court may consider “other pending claims”
    while a claim in the same action is pending, not the same claim). The trial court had,
    and still has, no jurisdiction to enter child support orders until this opinion is issued,
    and the appeal is no longer pending before this Court or any higher Court. See
    generally Lowder v. Mills, Inc., 
    301 N.C. 561
    , 581, 
    273 S.E.2d 247
    , 259 (1981) (“[A]ll
    orders entered by Judge Seay after defendants’ notice of appeal on 9 May 1980 are
    void for want of jurisdiction. Thus the orders entered 15 May 1980 approving the
    payment of fees and expenses in this case must be vacated.”)
    V.     Conclusion
    We reverse the stay order and note that the trial court did not have jurisdiction
    to enter any further orders regarding child support during the pendency of this
    appeal. We remand for rehearing of the child support claim. We also note that the
    IV-D child support claim and the Chapter 50 custody claim should not be “combined”
    according to North Carolina General Statute § 50-19.1, so on remand they should be
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    WATAUGA CTY. O/B/O MCKIERNAN V. SHELL
    Opinion of the Court
    severed to avoid future confusion or jurisdictional issues arising from the
    “combination.”
    REVERSED and REMANDED.
    Judges TYSON and ARROWOOD concur.
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Document Info

Docket Number: 18-687

Filed Date: 3/19/2019

Precedential Status: Precedential

Modified Date: 12/13/2024