Nguyen v. Heller-Nguyen , 248 N.C. App. 228 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1186
Filed: 5 July 2016
Wake County, No. 10 CVD 19466
TU N. NGUYEN, Plaintiff,
v.
ALICIA HELLER-NGUYEN, Defendant.
Appeal by Defendant from an order entered 11 June 2015 by Judge Anna E.
Worley in Wake County District Court. Heard in the Court of Appeals 13 April 2016.
No appellee brief filed by Plaintiff.
Gailor Hunt Jenkins Davis & Taylor, PLLC, by Carrie B. Tortora and
Jonathan S. Melton, for Defendant-Appellant.
HUNTER, JR., Robert N., Judge.
Alicia Heller-Nguyen (“Defendant”) appeals following an order on Tu N.
Nguyen’s (“Plaintiff”) motion for reappointment of a Parenting Coordinator,
Parenting Coordinator Sydney Batch’s motion for an order terminating her parenting
coordinator appointment and awarding her past due fees, and Parenting Coordinator
Sydney Batch’s Notice of a Determination that Requires a Court Hearing. On appeal,
Defendant contends (1) the trial court did not have jurisdiction to modify child
support, (2) erred in reappointing Parenting Coordinator Batch, and (3) erred in
offsetting Plaintiff’s child support arrears. We affirm in part and remand in part.
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
I. Factual and Procedural History
Plaintiff and Defendant married on 19 June 1993. They had four children
during their marriage, three boys and one girl, ages eleven, twelve, fifteen, and
seventeen. They separated on 31 October 2010.
Thereafter, Defendant filed a domestic violence protective order (“DVPO”)
against Plaintiff on 12 November 2010. The DVPO gave Defendant sole custody of
the minor children and prohibited Plaintiff from contacting his children “whatsoever
. . . at any time.”
On 22 November 2010, Plaintiff filed a verified complaint for joint legal custody
and primary physical custody of the children. He alleged the children’s best interests
would be best served by having the trial court award him temporary and permanent
physical custody, with Defendant having visitation rights. Additionally, he moved to
have Defendant submit to a psychiatric evaluation.
On 10 January 2011, Defendant filed a verified answer and raised
counterclaims for child custody and child support. On 29 January 2011, Defendant
filed a verified amended answer and amended counterclaims for child custody, child
support, equitable distribution, post separation support, alimony, and moved to have
the trial court impose a temporary restraining order on Plaintiff to prevent him from
transferring assets, and moved to have Plaintiff submit to a psychiatric evaluation.
-2-
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
On 24 February 2011, Plaintiff filed a reply and objected to Defendant’s motion for a
temporary restraining order and psychiatric evaluation.
On 25 August 2011, the trial court issued a temporary child custody order and
found it was in the children’s best interests to award the parties joint legal custody
and to award Plaintiff physical custody every Wednesday night, and every other
Thursday, Friday, and Saturday. The trial court gave Defendant physical custody on
all other days and nights. The trial court ordered both parties to undergo psychiatric
evaluations.
On 11 October 2011, the trial court appointed Helen Oliver to serve a two-year
parenting coordinator term. On 23 December 2011, Plaintiff and Defendant divorced.
On 23 July 2012, Parenting Coordinator Oliver moved to be relieved from her duties
because Plaintiff failed to pay her for her services.
On 24–25 September 2012, the trial court heard Plaintiff on his complaint and
Defendant on her counterclaims. After hearing the testimony of several witnesses
and reviewing the evidence, the trial court issued a 27 March 2013 order and found
it was in the children’s best interests to award the parties joint legal custody. The
trial court gave Defendant residential and primary physical custody and gave
Plaintiff secondary custody with visitation rights set out in the order. The trial court
ordered Plaintiff to pay $2,740.94 on the fifth day of every month as temporary child
-3-
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
support, and found him to be in arrears of $7,705.00. The trial court ordered Helen
Oliver, or a substitute, to continue serving as a Parenting Coordinator.
On 11 April 2013, the trial court issued an order awarding Defendant
$2,982.00 per month in alimony. Further, the trial court found Plaintiff was in
$74,550.00 of alimony arrears.
On 8 May 2013, the trial court amended its 27 March 2013 order, corrected
typographical errors, and recalculated Plaintiff’s arrears based upon medical
expenses he paid without being reimbursed. Plaintiff’s child support obligation
remained the same at $2,740.94 per month.
On 29 August 2013, Plaintiff filed a verified motion to modify child support and
alimony. He alleged, “there has been a substantial change in circumstances
warranting a reduction of [his] child support obligation and his alimony obligation in
that: [his] business and source of income . . . has received a substantially decreased
revenue from two major customers . . . which was in no way foreseeable.” Further,
his business, Healthy Home Insulation, Inc., took on wage and tax expenses, which
decreased his income.
On 13 March 2014, the trial court entered a consent order and appointed
Sydney Batch to serve as Parenting Coordinator for one year. On 18 June 2014,
Parenting Coordinator Batch moved to terminate her appointment because
“Defendant has never been able to pay the initial retainer for parenting coordination
-4-
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
services,” and “[t]o date Defendant has only been able to make one payment of
$500.00.”
On 25 June 2014, Plaintiff filed a verified motion to modify child custody. He
alleged “there has been a substantial change in circumstances affecting the welfare
of the minor children warranting a modification of the [children’s] custodial
arrangements.” He alleged the following, inter alia:
A. The parties agreed to the appointment of Sydney Batch
as Parenting Coordinator. Ms. Batch has been in the case
since approximately March 13, 2014. Ms. Batch has tried
to arrange for the engagement of counselors or therapists
to assist with the rehabilitation of Plaintiff’s relationship
with [his child], which has been alienated and destroyed by
Defendant and, upon information and belief, Defendant’s
mother. Ms. Batch has also attempted to arrange for [two
of the other children] to see a counselor. Ms. Batch has
researched and recommended counselors and therapists
for the parties to consider and approve, but Defendant has
found an excuse as to why each counselor should not be
used. Plaintiff believes that Defendant does not want the
children to see counselors or therapists. Upon information
and belief, Defendant has threatened to sue at least one of
the therapists if he met with the children.
B. Defendant’s behaviors and attitudes towards Plaintiff
are toxic, hostile, aggressive, and full of anger, and the
intensity of their behaviors and attitudes has grown since
the entry of the Custody Order. This has had a direct
impact on the minor children and their relationship with
Plaintiff.
Plaintiff alleged the 8 May 2013 amended child custody and child support order “does
not serve the minor children’s best interests” because “[custody] [e]xchanges need to
be as few as possible, and the minor children need consistent time and more time
-5-
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
with their father.” He asked the trial court to modify the 8 May 2013 custody order
to give him more time with the children. This motion was made in addition to
Plaintiff’s 29 August 2013 motion to modify child support.
On 20–22 August 2014, the trial court heard the parties on Plaintiff’s 29
August 2013 motion to modify child support and alimony, and his 25 June 2014
motion to modify child custody. Plaintiff argued to reduce child support and alimony
based upon a substantial change in circumstances. The trial court did not
immediately enter an order following the hearing.
On 15 September 2014, Parenting Coordinator Batch filed, pursuant to N.C.
Gen. Stat. § 50-97, Wake County Domestic Form 26, “Parenting Coordinator’s Notice
of Determination that Requires a Court Hearing,” with the trial court. In the sworn
form, Parenting Coordinator Batch “determined that [she] [was] not qualified to
address or resolve certain issues in the case,” specifically:
1. The ordering of reunification therapy and appointment
of a reunification therapist for [two] minor children . . . .
2. The ordering of therapy and appointment of therapists
for [the four] minor children . . . .
3. The ordering of communication between the parties via
the Our Family Wizard website.
4. The modification of the Amended Child Custody and
Child Support Order to allow for a change of Wednesday
drop-off time.
Parenting Coordinator Batch requested the trial court resolve these issues.
-6-
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
On 3 November 2014, Plaintiff moved to reappoint Parenting Coordinator
Batch for “at least another two years.” He alleged the following:
8. This case has a long and tortuous history. Defendant’s
behaviors and attitudes towards Plaintiff are toxic, hostile,
aggressive, and full of anger, and, upon information and
belief, spill over into her parenting and the children’s
behavior, emotions, and attitudes suffer as a result. The
children’s mental and emotional wellbeing hangs in the
balance, and they are under a tremendous amount of stress
while residing with Defendant.
9. Defendant has successfully alienated [two of the four
children] from Plaintiff. Plaintiff has not seen [these two
children] in over 10 months, and . . . 6 months
[respectively]. . . .
11. As a result of Defendant’s behaviors, the parties have
had to employ therapists for each child and [a]
reunification therapist so that [two of the children] can be
reunified with Plaintiff. . . .
13. Ms. Batch’s services and judgment have been required
throughout her appointment. Without her involvement, it
is highly unlikely that the reunification process would be
in its current position; additionally, it is highly unlikely
that the children would be as active as they are in therapy.
14. This case is a “high conflict case” within the meaning of
N.C. Gen. Stat. § 50-90. . . .
17. It would serve the children’s best interest for this Court
to reappoint Ms. Batch as parenting coordinator for at least
another two years, so that Ms. Batch can continue to
monitor the children’s mental and emotional well being
and continue to assist the children in improving and
maintaining their relationship with [Plaintiff].
18. The parties are able to pay the cost of a parenting
-7-
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
coordinator. The parties should be ordered to pay the costs
of a parenting coordinator as deemed appropriate and fair
by the Court.
On 4 November 2014, Parenting Coordinator Batch filed a verified motion to
terminate her appointment and collect her past due fees. According to Parenting
Coordinator Batch, Defendant stated she could only “afford to pay $80.00 per month”
towards her outstanding balance of parenting coordinator fees, even though Plaintiff
paid Defendant “over $25,000.00 in the past two months.” Parenting Coordinator
Batch asked the trial court to remove her as parenting coordinator, order Defendant
to pay the past due fees, and sought “any other relief that the Court deems just and
proper.”
On 6 March 2015, the trial court issued an order on Plaintiff’s motions to
modify child support and child custody. The trial court found a substantial change
in circumstances that affects the children’s best interests and warranted a
modification of Plaintiff’s child support obligation. Further, the trial court found
“Defendant was employed by Wake County in its EMS department” and voluntarily
quit her job during litigation. The trial court found Plaintiff sold his assets in Healthy
Home Insulation, Inc. in July 2014 and began working for Healthy Home’s purchaser.
The trial court found Plaintiff’s gross monthly income decreased by 40–50% and his
reasonable monthly expenses including child support were $4,565.00. The trial court
-8-
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
found Plaintiff paid Defendant’s parenting coordinator fees, totaling $5,382.50. The
trial court made the following conclusions of law, inter alia:
1. This Court has personal and subject matter jurisdiction
to enter this Consent Order.
2. Each party has the present ability to comply with the
provisions of this Order.
3. Since the entry of the [11 April 2013] Alimony Order,
there has been a substantial change in circumstances
warranting a modification of Plaintiff’s alimony obligation
set forth herein, and said modification is [in] in the minor
child’s best interests.
4. Since the entry of the [8 May 2013 Amended] Child
Support Order, there has been a substantial change in
circumstances warranting a modification of Plaintiff’s child
support obligation as set forth herein, and said
modification is in the minor’s best interests.
Based upon the substantial change in circumstances, the trial court reduced
Plaintiff’s alimony obligation to $900.00 per month, and using Worksheet B, reduced
his child support obligation to $1,802.46 per month. The trial court concluded
Plaintiff’s child support arrears totaled $59,826.42, and his alimony arrears totaled
$73,407.72.
On 10 March 2015, the trial court heard the parties on Plaintiff’s motion for
reappointment of a parenting coordinator, and Parenting Coordinator Batch’s “Notice
of Determination that Requires a Court Hearing” to terminate her services, collect
past fees owed to her by Defendant, to order therapy, appoint therapists, order the
-9-
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
parties to use the Our Family Wizard website, and change the custody order to allow
for Wednesday drop off times. On 11 June 2015, the trial court issued an order on
Plaintiff’s motion and Parenting Coordinator Bach’s motion. The trial court made
the following findings of fact and conclusions of law, inter alia:
18. This case is a complex custody case which has a long,
unfortunate history of extremely high conflict and domestic
violence. The Court is concerned that the stress and
discord between the parties will have a lasting negative
affect on the minor children. . . .
23[–26]. [Each of the four children has been assigned a
therapist].
37. Defendant refused to sign a release for the PC to speak
with Defendant’s therapist.
38. Both parties have been inconsistent in bringing the
minor children to therapy for scheduled appointments.
39. Defendant has threatened mental health providers
with legal action if they saw the children.
40. It is unclear whether Defendant sincerely desires the
minor children to have a productive and healthy
relationship with Plaintiff.
41. When the PC was appointed, Defendant followed most
of the PC’s directives. Defendant does not abide by some of
the PC’s decisions, and the Court considered issuing a show
cause [sic] to Defendant from the bench due to her lack of
compliance. Defendant has obstructed the therapy process
and compounded the problems in this case by refusing to
sign releases or by revoking her consent for therapists to
speak with one another and/or the PC. Defendant has at
times been rude, hostile, and uncooperative in her
communications with the PC and other mental health
- 10 -
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
providers. Defendant has not made any progress in
deescalating the conflict between the parties, and
Defendant believes that at times the PC has been rude,
hostile, and biased in her communications with her.
42. Plaintiff wants a relationship with his children, but his
efforts are and continue to be frustrated by Defendant.
Plaintiff has made progress in understanding the need for
therapy for his children, and he has been cooperative with
the therapists involved in this case. He has signed all
releases requested of him. . . .
46. The PC does not have any impairment which would
prohibit her from communicating effectively with either
party, and each party has the ability to participate with the
PC. There is no indication of favoritism or prejudice for or
towards either party by the PC in her interactions with the
parties and decisions in this case, and there is certainly no
indication that the PC is biased in any way based upon who
is paying her fee. . . .
48. The PC’s appointment did not expire prior to the
hearing, and the appointment should be extended via
reappointment as set forth below. . . .
50. Defendant has failed to pay her share of the PC’s fees.
She owes the PC $5,225.86. Plaintiff is willing to pay
Defendant’s share of the PC’s fees so long as he is credited,
dollar for dollar, with each payment he makes on her behalf
as a credit against his outstanding child support arrearage
of approximately $30,000.00.
51. Defendant received a lump-sum payment from Plaintiff
in the amount of $25,000[.00] in the Fall of 2014 for child
support arrears, which she used to pay back taxes, living
expenses, and health insurance. . . .
56. The Court has concerns about whether the minor
children should remain in the primary custody of
Defendant.
- 11 -
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
CONCLUSIONS OF LAW
3. This is a high conflict custody case.
4. Good cause has been shown to the Court for
reappointment of Sydney J. Batch as Parenting
Coordinator as authorized by N.C. Gen. Stat. § 50-99(b).
The trial court appointed Parenting Coordinator Batch for one year, and
ordered the following:
1. Plaintiff’s Motion for Reappointment of Parenting
Coordinator is GRANTED.
2. The parties are operating under the following
custody/visitation order: Amended Child Custody and
Child Support Order entered on May 8, 2013. . . .
7. [Parenting Coordinator] General Authority: The
authority of the Parenting Coordinator shall be as
delineated herein and shall be limited to matters that will
aid the parties in:
A. Identifying disputed issues;
B. Reducing misunderstandings;
C. Clarifying priorities;
D. Exploring possibilities for compromise;
E. Developing methods of collaboration in parenting;
and
F. Complying with the Court’s order of custody,
visitation, or guardianship, including the Custody
Order.
8. Areas of Domain of General Authority: If a dispute arises
concerning one of the following checked areas, the
Parenting Coordinator has the authority to make minor
changes to the custody/visitation order or to make decisions
to resolve a dispute if the issue was not addressed in the
custody/visitation order:
- 12 -
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
A. Transition time/pickup/delivery
B. Sharing of vacations and holidays
C. Method of pick up and delivery
D. Transportation to and from visitation . . . .
17. Parenting Coordinator Fees:
A. The parents have the financial capacity to pay for
the Parenting Coordinator. The parties shall pay the
Parenting Coordinator for all of her time and costs incurred
in processing the case. . . . Nonpayment of fees may subject
the nonpaying parent to prosecution for indirect contempt
of Court for failure to abide by the Order. . . .
B. The Parenting Coordinator’s hourly fee shall be
paid as follows: Father shall pay 50% and Mother shall pay
50%. . . .
C. If one parent pays 100% of the Parenting
Coordinator fee, then that party has a right of
indemnification against the other parent up to the
percentage allocation for which the other parent was
responsible. This reimbursement may be enforced by
contempt.
D. If Plaintiff pays for Defendant’s share of the
Parenting Coordinator’s fee, then each dollar paid by
Plaintiff on behalf of Defendant shall reduce Plaintiff’s
child support arrearage by the amount so paid by Plaintiff
on Defendant’s behalf (since this is a direct benefit for the
minor children). . . .
28[–29]. Defendant shall not interfere with the
reunification therapy for [the children] with Plaintiff. . . .
39. [I]f Plaintiff pays for Defendant’s share of the Parenting
Coordinator’s fee or a therapist’s fee, then each dollar paid
by Plaintiff on behalf of Defendant shall reduce Plaintiff’s
child support arrearage by the amount so paid by Plaintiff
on Defendant’s behalf (since this is a direct benefit for the
minor children), or Plaintiff may seek reimbursement from
- 13 -
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
Defendant for said expense . . . .
41. The PC is hereby authorized to speak to all therapists,
service providers, doctors, and any other professionals
working with the Heller-Nguyen family . . . .
On 2 July 2015, Defendant filed her notice of appeal. On appeal, she contests
the 11 June 2015 order. On 7 August 2015, Defendant moved pursuant to Rule 62(d)
to stay all custody proceedings in this matter. On 25 September 2015, the trial court
granted Defendant’s motion to stay.
II. Standard of Review
“In a child custody case, the trial court's findings of fact are conclusive on
appeal if supported by substantial evidence, even if there is sufficient evidence to
support contrary findings. Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. Unchallenged
findings of fact are binding on appeal. The trial court's conclusions of law must be
supported by adequate findings of fact.” Peters v. Pennington, 210 N.C. App. 1, 12–
13, 707 S.E.2d 724, 733 (2011) (citations omitted). “The trial court is vested with
broad discretion in child custody cases, and thus, the trial court’s order should not be
set aside absent an abuse of discretion.” Dixon v. Gordon, 223 N.C. App. 365, 371,
734 S.E.2d 299, 304 (2012) (citation omitted).
III. Analysis
- 14 -
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
Defendant contends (1) the trial court did not have jurisdiction to modify child
support in its 11 June 2015 order (hereinafter “June Order”), (2) erred in reappointing
Parenting Coordinator Batch, and (3) erred in offsetting Plaintiff’s child support
arrears. We affirm in part and remand in part.
Defendant does not challenge the trial court’s findings of fact, and therefore,
the findings are binding on appeal. Peters, 210 N.C. App. at 13, 707 S.E.2d at 733(citations omitted).
A. Jurisdiction to Modify Child Support
Defendant contends the trial court did not have jurisdiction to modify child
support in the June Order because “[t]here was no motion before the trial court to
modify child support.” However, Defendant does not challenge the trial court’s
jurisdiction to modify child custody.
Under North Carolina law, a child support order “may be modified or vacated
at any time, upon [a] motion in the cause and showing of changed circumstances by
either party or anyone interested subject to the limitations of [N.C. Gen. Stat. §] 50-
13.10.” N.C. Gen. Stat. § 50-13.7(a) (2015). “Once ‘the threshold issue of substantial
change in circumstances has been shown’ by a preponderance of the evidence, the
trial court then ‘proceeds to follow the [North Carolina Child Support] Guidelines and
to compute the appropriate amount of child support.’” McGee v. McGee, 118 N.C. App.
19, 26, 453 S.E.2d 531, 535–36 (1995) (citation omitted); see also Armstrong v.
- 15 -
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
Droessler, 177 N.C. App. 673, 675, 630 S.E.2d 19, 21 (2006) (citation omitted). If a
trial court follows this two-step process by making such a finding and calculating the
child support obligation under the North Carolina Child Support Guidelines, then the
trial court modifies the child support obligation.
The record shows Plaintiff moved to modify child support on 29 August 2013.
Through its 6 March 2015 order, the trial court granted Plaintiff’s motion and
changed his monthly child support obligation from $2,740.94 to $1,802.46. Plaintiff’s
child support obligation has remained unchanged and the June Order does not modify
that amount. Notwithstanding the second issue concerning Plaintiff’s child support
arrears, we dismiss Defendant’s contention because the trial court did not modify
Plaintiff’s child support obligation.
Additionally, this Court observes there are no jurisdictional issues concerning
modification of child custody. Prior to the June Order, Parenting Coordinator Batch,
using Wake County Domestic Form 26, requested the trial court modify custody to
allow for Wednesday drop off times. Parenting Coordinator Batch’s request seems to
contemplate the requirements set out by N.C. Gen. Stat. § 50-13.7 (2015),
“Modification of order for child support or custody.” This tends to raise unanswered
questions as to whether a parenting coordinator can move as an interested party to
modify a child support or child custody order under N.C. Gen. Stat. § 50-13.7, and
whether standard forms like Wake County Domestic Form 26 can qualify as a “motion
- 16 -
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
in the cause . . . showing a changed circumstances.” N.C. Gen. Stat. § 50-13.7(a).
However, these concerns are not ripe for consideration in the case sub judice because
“It is not the duty of this Court to supplement an appellant’s brief with legal authority
or arguments not contained therein.” Goodson v. P.H. Glatfelter Co., 171 N.C. App.
596, 606, 615 S.E.2d 350, 358 (2005). Moreover, the trial court exercised its discretion
under N.C. Gen. Stat. § 50-92(b), and gave Parenting Coordinator Batch authority to
resolve disputes surrounding transition time, pickup, delivery, and transportation to
and from visitation, instead of granting Parenting Coordinator Batch’s motion as a
motion to modify child custody.1 See N.C. Gen. Stat. § 50-92(b) (2015) (“[T]he court
may authorize a parenting coordinator to decide issues regarding the implementation
of the parenting plan that are not specifically governed by the court order and which
the parties are unable to resolve.”). Accordingly, we dismiss Defendant’s first
contention.
B. Reappointing Parenting Coordinator Batch
Under North Carolina law, “the [trial] court may appoint a parenting
coordinator at any time during the proceedings of a child custody action involving
minor children . . . if all parties consent to the appointment.” N.C. Gen. Stat. § 50-
91(a) (2015). If the parties do not consent to the appointment of a parenting
1 “Notwithstanding the appointment of the parenting coordinator, the court shall retain
exclusive jurisdiction to determine fundamental issues of custody, visitation, and support, and the
authority to exercise management and control of the case.” N.C. Gen. Stat. § 50-91(c) (2015).
- 17 -
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
coordinator, “the court may appoint a parenting coordinator . . . upon entry of a
parenting plan only if the court also makes specific findings that the action is a high-
conflict case, that the appointment of the parenting coordinator is in the best interests
of any minor child in the case, and that the parties are able to pay for the cost of the
parenting coordinator.” N.C. Gen. Stat. § 50-91(b) (2015). Alternatively, for good
cause shown, the trial court may terminate or modify a parenting coordinator’s
appointment “upon motion of either party[,] at the request of the parenting
coordinator, upon the agreement of the parties and the parenting coordinator, or by
the court on its own motion.” N.C. Gen. Stat. § 50-99(a) (2015).
Here, the trial court made the required statutory findings: (1) this is a high
conflict case; (2) reappointing Parenting Coordinator Batch serves the best interests
of the children; and (3) the parties are able to pay for Parenting Coordinator Batch’s
services. Defendant contends the trial court found she is able to pay for Parenting
Coordinator Batch’s services solely because the trial court allowed Plaintiff to pay
such fees on her behalf. This contention is not supported by the record. In the
uncontested findings of fact, the trial court found “[t]he parties are able to pay the
costs of the [Parenting Coordinator],” and noted Plaintiff paid Defendant a lump sum
of $25,000.00 in Fall 2014, in addition to monthly alimony and child support
payments. Further, the trial court voiced concern about Defendant’s interference
with her children’s therapists, and her continued hostility towards Plaintiff and
- 18 -
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
Parenting Coordinator Batch. Therefore, based upon the binding and uncontested
findings of fact and the trial court’s required statutory findings, we hold the trial
court did not abuse its discretion in reappointing Parenting Coordinator Batch.
C. Offsetting Child Support Arrears
N.C. Gen. Stat. § 50-13.10 (2015), “Past due child support vested; not subject
to retroactive modification; entitled to full faith and credit,” protects vested child
support arrears and defines when child support obligations become past due arrears.
Section 50-13.10 sets out the following:
(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. . . .
(d) For purposes of this section, a child support payment or
the relevant portion thereof, is not past due, and no
arrearage accrues:
(1) From and after the date of the death of the minor
child for whose support the payment, or relevant
- 19 -
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
portion, is made;
(2) From and after the date of the death of the
supporting party;
(3) During any period when the child is living with
the supporting party pursuant to a valid court order
or to an express or implied written or oral agreement
transferring primary custody to the supporting
party;
(4) During any period when the supporting party is
incarcerated, is not on work release, and has no
resources with which to make the payment. . . .
(e) When a child support payment that is to be made to the
State Child Support Collection and Disbursement Unit is
not received by the Unit when due, the payment is not a
past due child support payment for purposes of this section,
and no arrearage accrues, if the payment is actually made
to and received on time by the party entitled to receive it
and that receipt is evidenced by a canceled check, money
order, or contemporaneously executed and dated written
receipt. Nothing in this section shall affect the duties of
the clerks or the IV-D agency under this Chapter or
Chapter 110 of the General Statutes with respect to
payments not received by the Unit on time, but the court,
in any action to enforce such a payment, may enter an
order directing the clerk or the IV-D agency to enter the
payment on the clerk's or IV-D agency's records as having
been made on time, if the court finds that the payment was
in fact received by the party entitled to receive it as
provided in this subsection.
Id.In the instant case, the trial court found Parenting Coordinator Batch’s
services directly serve the best interests of the children. On appeal, this uncontested
finding of fact is binding.
- 20 -
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
N.C. Gen. Stat. § 50-95 states, “The parenting coordinator shall be entitled to
reasonable compensation from the parties for services rendered and to a reasonable
retainer.” N.C. Gen. Stat. § 50-95(a) (2015). The trial court may appoint a parenting
coordinator “contingent upon the parties’ payment of a specific fee . . . .” N.C. Gen.
Stat. § 50-95(b) (2015). In the event the parties do not pay the parenting coordinator,
“[t]he parenting coordinator shall not begin any duties until the fee has been paid.”
Id.In North Carolina, the child’s welfare “is the ‘polar star’ in the matters of
custody and maintenance, yet common sense and common justice dictate that the
ultimate object in such matters is to secure support commensurate with the needs of
the child and the ability of the father to meet the needs.” Crosby v. Crosby, 272 N.C.
235, 237, 158 S.E.2d 77, 79 (1967) (citation omitted). To achieve this end, the trial
court declared, “If Plaintiff pays for Defendant’s share of the Parenting Coordinator’s
fee, then each dollar paid by Plaintiff on behalf of Defendant shall reduce Plaintiff’s
child support arrearage by the amount so paid by Plaintiff on Defendant’s behalf
(since this is a direct benefit for the minor children).” This is error to the extent that
it allows Plaintiff to offset vested child support arrears owed to Defendant. See N.C.
Gen. Stat. § 50-13.10(a) (2015).
The trial court may, in its discretion, consider offsetting future advances on
Plaintiff’s child support obligations. The trial court is directed to review the
- 21 -
NGUYEN V. HELLER-NGUYEN
Opinion of the Court
procedural requirements and exceptions enumerated in N.C. Gen. Stat. § 50-13.10(a)
(2015), and to consider other alternatives to continue Parenting Coordinator Batch’s
services to best serve the children’s interests.
We note in passing that this issue may also be resolved through a civil
contempt proceeding against Defendant.
IV. Conclusion
For the foregoing reasons we affirm in part and remand in part.
AFFIRMED IN PART, REMANDED IN PART.
Judges CALABRIA and TYSON concur.
- 22 -