Glatz v. Glatz , 98 N.C. App. 324 ( 1990 )

HEDRICK, Chief Judge.

In her fourth assignment of error, plaintiff contends “[t]he trial court committed error in denying the plaintiff’s motion for attorney’s fees.” We disagree. Plaintiff argues that G.S. 110-136.6(a) “clearly authorizes the award of [attorney’s] fees in income withholding cases.” G.S. 110-136.6(a) provides in pertinent part:

The amount withheld may also include court costs and attorneys fees as may be awarded by the Court in non-IV-D cases . . . (emphasis added).

In denying plaintiff’s motion for an award of attorney’s fees, the trial judge found that “[t]he plaintiff’s claim for relief did not allege any arrearages under the order of [the] Illinois court for attorney’s fees and/or court costs.” The record on appeal supports Judge Martin’s finding and further demonstrates that plaintiff first asserted a claim for attorney’s fees in her motion filed on 31 January 1989; this motion being filed three months after the entry of the income withholding order on 18 October 1988.

We find the language in G.S. 110436.6(a) allowing court costs and attorney’s fees to be included in the amount withheld by the court clearly contemplates that such claims should be asserted prior to the entry of the withholding order. Therefore, we hold the trial judge had no authority to allow plaintiffs motion for an award of attorney’s fees in the present case, and his order denying plaintiff’s motion will be affirmed.

Plaintiff’s fifth assignment of error states “[t]he District Court committed error by refusing to consider the income of the defendant’s professional association when calculating the defendant’s disposable income.” In granting the income withholding order on 18 October 1988, Judge Martin made the following finding with respect to defendant’s disposable income:

32. The Court finds that the defendant has a disposable income of Fifty Two Thousand Dollars ($52,000.00) annually, or Four Thousand Three Hundred Thirty Three Dollars ($4,333.00) per month.

Although plaintiff questions the trial judge’s findings with respect to defendant’s disposable income in her “Motion to Amend Judgment and Motion For a New Trial,” no exceptions are noted in the record on appeal to any of the trial judge’s findings on this issue. “When findings of fact are not challenged by exceptions in the record, they are presumed to be supported by competent evidence and are binding on appeal.” Tinkham v. Hall, 47 N.C. App. 651, 652-653, 267 S.E.2d 588, 590 (1980). Thus, this assignment of error has no merit.

Finally, in assignments of error Nos. 1, 2, and 3, plaintiff contends the trial court erred by (1) refusing to enforce the automatic adjustment provisions contained in the Illinois child support judgment, (2) allowing defendant a credit against his child support obligation for items purchased for the minor children, and (3) refusing to award prejudgment interest on defendant’s child support arrearage. In support of each of these contentions, plaintiff argues the trial court erred in failing to fully enforce the child support provisions included in the Illinois divorce judgment because such provisions would be unenforceable under North Carolina law. We agree.

In the present case, plaintiff and defendant entered into a separation agreement which, among other things, provided for the support of the minor children and contained the provisions cited above. This agreement was made part of the Illinois divorce decree with both parties’ knowledge and consent. In making the agreement part of the divorce judgment, the Illinois court found: “[the agreement] is not unconscionable and ought to receive the approval of this Court. . . .”

“The full faith and credit clause in the United States Constitution, Article IV, Sec. 1, requires that the judgment of the court of one state must be given the same effect in a sister state that it has in the state where it was rendered.” Fleming v. Fleming, 49 N.C. App. 345, 349, 271 S.E.2d 584, 587 (1980). In the case sub judice, the Illinois judgment incorporating the parties’ separation agreement was never registered in North Carolina and remained a valid and fully enforceable judgment of another state entitled to enforcement according to its terms in this state. Therefore, the trial judge erred in not extending full faith and credit to the Illinois judgment by (1) refusing to enforce the automatic adjustment provisions, (2) allowing defendant a credit against his child support obligation, and (3) refusing to award prejudgment interest to plaintiff.

Thus, this cause must be remanded to the District Court, Stokes County, for an entry of an order awarding plaintiff interest on the judgment and adjusting the payments on the judgment in accordance with the Wholesale Price Index, and deleting any credits for defendant for items purchased for the minor children.

Affirmed in part; reversed and remanded in part.

Judges Phillips and Duncan concur.