Catawba County Ex Rel. Child Support Agency v. Loggins , 246 N.C. App. 387 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-711
Filed: 5 April 2016
Catawba County, No. 99 CVD 0519
CATAWBA COUNTY, by and through its CHILD SUPPORT AGENCY, ex. rel.,
SHAWNA RACKLEY, Plaintiff,
v.
JASON LOGGINS, Defendant.
Appeal by Plaintiff from an order entered 29 December 2014 by Judge Gregory
R. Hayes in Catawba County District Court. Heard in the Court of Appeals 2
December 2015.
J. David Abernethy and Patrick, Harper & Dixon, by David W. Hood, for
Plaintiff-Appellant.
Blair E. Cody, III, for Defendant-Appellee.
HUNTER, JR., Robert N., Judge.
Catawba County through its child support agency, ex. rel. Shawna Rackley
(“Plaintiff”) appeals from a district court order granting Jason Loggins’ (“Defendant”)
Rule 60 motion for relief from judgment, and setting aside a 28 June 2001 modified
voluntary support agreement. We affirm the trial court.
I. Factual and Procedural History
On 15 February 1999 the parties signed and filed a “Voluntary Support
Agreement and Order” (“1999 Order”) in Catawba County District Court. The trial
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court approved the agreement the same day. In the 1999 Order, Defendant agreed
to pay “$0.00” in child support for his two children with Shawna Rackley, and starting
1 March 1999, to reimburse the State $1,996.00 for public assistance paid on behalf
of his children. At the time, the children lived with Linda Rackley, the named
plaintiff in the action. Defendant agreed the $0.00 “child support payments . . . shall
continue after the children’s 18th birthday and until the children graduate, otherwise
cease to attend school on a regular basis, fail to make satisfactory academic progress
towards graduation or reach age 20, pursuant to N.C.G.S. § 50-13.4(C).” He assigned
“any unemployment compensation benefits” he received to the child support agency,
and agreed to provide health insurance for his children “when it is available at a
reasonable cost or when it is available through employment.” The 1999 Order stated,
“this case may be reviewed for modification without presenting a showing of
substantial change of circumstances even if this occurs within the first three years of
the establishment of the said order.”
Defendant failed to reimburse the State, and on 16 October 2000 Plaintiff filed
a motion to show cause. The trial court ordered Defendant to appear, and he failed
to do so. He was arrested and later released on a $500.00 cash bond. On 25 January
2001, through a consent order, Defendant agreed to apply his $500.00 bond to his
arrearage of $1,165.12. The trial court found he was employed at Carolina
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Hardwoods earning $9.95 per hour, and was able to comply with the 1999 Order. The
court ordered Defendant to make the $50.00 monthly payments towards his arrears.
Without filing a motion to amend the 1999 Order, the parties entered into a
“Modified Voluntary Support Agreement and Order” on 25 June 2001. Although it is
entitled, “Modified,” it does not reference the original voluntary support agreement
(“VSA”), the 1999 Order, or even show that the District Court established paternity
in 1999. It does not indicate any changed circumstances following a prior order. The
parties also attached a child support worksheet that stated Defendant had a monthly
gross income of $1,724.66, and recommended $419.00 for his monthly child support
obligation.1 The trial court approved the order 28 June 2001 (“2001 Order”).2 This
order is the basis of all controversy on appeal. In the 2001 Order, Defendant agreed
to pay $419.00 per month in child support starting 1 July 2001, and reimburse the
State $422.78 for public assistance given to his children. Defendant also agreed to
provide his children with health insurance, which was available at the time through
1 The parties attached “Work Sheet A,” Form “AOC-CV-627 Rev. 10/98” of the North Carolina
Child Support Guidelines. This is the correct form used to calculate child support when one parent
(or a third party) has primary physical custody of all of the children for whom support is being
determined. This form does not contain a provision concerning a change in circumstance. Had the
parties filed a motion to modify the 1999 Order, they would have been prompted to state the changed
circumstances following the 1999 Order. However, the parties only submitted a VSA and child support
worksheet, which explains the trial court’s lack of findings regarding changed circumstances in the
2001 Order.
2 The 2001 Order was prepared using a DHHS ACTS form, DSS-4524 02/01 CSE/ACTS. This
order does not contain a provision regarding a change in circumstances.
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his employer, Crown Heritage, Inc. Unlike the 1999 Order, the 2001 Order contained
no modification provision.
During the following years, Defendant failed to make monthly child support
payments and payments for public assistance. Plaintiff filed several motions to show
cause, which resulted in hearings and additional orders determining Defendant’s
ever-growing arrears.
Sometime in 2006, the children moved out of Linda Rackley’s home and began
living with their biological mother, Shawna Rackley. On 21 November 2006, Plaintiff
filed a motion to modify the 2001 Order so child support payments would be paid
directly to Shawna Rackley. The trial court granted the motion on 30 November 2006
and captioned this case with Shawna Rackley as a named party.
Without any preceding motion to modify, the parties entered into a consent
order on 25 January 2007. In it, the parties agreed Defendant was in arrears of
$678.00 in child support payments from a prior 2006 order, and $16,422.28 in arrears
from the 1999 Order. The trial court ordered Defendant to make monthly child
support payments of $419.00 with an additional $60.00 going towards arrears.
Through a 5 April 2007 review order, the trial court found Defendant was in
compliance with the 25 January 2007 order, and found his arrearages to be
$15,572.80. The trial court ordered Defendant to continue his monthly child support
payments of $419.00 plus $60.00 towards arrears.
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On 7 April 2011, Defendant filed, pro se, a motion to modify the 2007 review
order. Defendant contended circumstances had changed because he “draw[s]
unemployment [and his] kids [age 17 and 18] have quit school.” The trial court heard
the matter 15 September 2011, and Shawna Rackley failed to appear. In a 15
September 2011 order (“2011 Order), the trial court found a change in circumstance
noting “Defendant was drawing unemployment benefits, since has obtained full time
employment. Eldest child . . . has emancipated according to N.C.G.S. [§] 50-13.4(C).”
Based on the child support guidelines, the trial court reduced Defendant’s monthly
child support obligation to $247.00, and found his arrears to be $6,640.75.
On 13 May 2014, Defendant filed a “Rule 60 Motion Relief from Judgment”
(“Rule 60 Motion”).3 Defendant sought to set aside the 2001 Order and contended,
“prior to June 28, 2001 there was [sic] not any motions filed by the Plaintiff or on her
behalf to modify the ‘then’ existing child support obligation [of $0.00 under the 1999
Order].” The parties were heard on 31 July 2014, and Defendant contended the 1999
Order was a permanent order and the trial court did not have jurisdiction to modify
it without a motion from Plaintiff showing a change in circumstances. He argued the
2001 Order was void and unenforceable as a result. Plaintiff’s counsel conceded,
“[t]here’s no indication that [the 1999 Order] was a temporary order. We use the
3We note a clerical error in Defendant’s Rule 60 motion. The motion cites N.C. R. Civ. Pro.
60(a) instead of Rule 60(b). The trial court noted Plaintiff’s counsel anticipated an argument from
Defendant based upon Rule 60(b), and both parties consented to the trial court hearing the motion
despite this flaw.
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colloquial term ‘permanent’ although every order can be modified, but I would agree
that that’s what we normally refer to as a permanent order rather than a temporary
order.” Following the hearing, defense counsel tendered a draft order to the trial
court without serving it upon Plaintiff’s counsel. On 18 December 2014, the trial
court issued an order and granted Defendant’s Rule 60 Motion and set aside the 2001
Order. The trial court found the following, inter alia:
4. It is clear from the Court file there was not a Complaint
filed . . . . The [1999 Order] was presumably done ‘in lieu
of’ the filing of a Complaint for child support . . . .
5. The Defendant’s initial child support obligation . . . was
$0.00 per month. . . . . [The 1999 Order] did require the
Defendant to reimburse the State . . . $1,966.00 for past
paid public assistance.
6. That there was a subsequent, second VSA filed on the
28th day of June 2001, which is the actual subject of
Defendant’s Rule 60 motion. Said VSA is titled “Modified
Voluntary Support Agreement and Order. . . .”
8. That N.C.G.S. § 50-13.7(a) authorizes a North Carolina
court to modify or vacate an order of a North Carolina court
providing for the support of a minor child at any time upon
a motion in the cause by an interested party and a showing
of changed circumstances. That said statute on its face
requires that there be a “motion in the cause” prior to the
entry of an order modifying child support.
9. That prior to the filing of the June 28, 2001 VSA there
were no motions filed by the Plaintiff or on her behalf, to
modify the “then” existing child support obligation of
$0.00/month of the Defendant.
10. That N.C.G.S. § 50-13.7(a) applies to any “final” or
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“permanent” order entered by a North Carolina court for
the support of a minor child. N.C.G.S. § 50-13.7(a) applies
to and authorizes modification of Voluntary Support
Agreements approved pursuant to G.S. §110-132 and 110-
133.
11. The [1999 Order] was a final or permanent court order
for support of a minor. . . .
22. A subsequent or second VSA does not relie[ve] the party
requesting a modification from the obligation of first filing
a motion in the cause . . . .
The court concluded that the 2001 Order was void and unenforceable because
Plaintiff did not make a motion to modify the 1999 Order. Accordingly, the trial court
set aside the 2001 Order.
On 19 December 2014, Plaintiff filed a motion under Rule 60(b)(1), (3), and (6),
to set aside the above-mentioned 18 December 2014 order. Plaintiff contended the
order was “erroneous and prejudicial” because Defendant did not serve the proposed
order on Plaintiff prior to tendering it to the court. On 22 December 2014, the trial
court granted Plaintiff’s motion and set aside the 18 December 2014 order.
On 29 December 2014, the trial court entered a second order granting
Defendant’s Rule 60 Motion (“2014 Order”). The trial court found it did not have
jurisdiction to enter the 2001 Order because there was no preceding motion from
Plaintiff showing a change in circumstance. Plaintiff filed timely notice of appeal.
On appeal, Plaintiff assigns error to the following: (1) the court concluded the 1999
Order was permanent instead of temporary; (2) the court did not make a finding on
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whether the 2001 Order was a consent order; (3) the court concluded a motion to
modify must precede a modification order; (4) the court concluded the 2001 Order was
void and set it aside; and (5) the trial court did not address whether Defendant was
estopped from moving to set aside the 2001 Order because the court had already
reduced the child support due under the 2001 Order.
After settlement of the record, Defendant filed a motion to dismiss Plaintiff’s
appeal pursuant to Appellate Rule 25. Defendant contends Plaintiff cited a repealed
jurisdictional statute, N.C. Gen. Stat. § 7A-27(c), in its appellate brief, and violated
Appellate Rule 28(a)(6) by failing to state the applicable standard of review. Plaintiff
filed a motion to amend its appellant brief pursuant to Appellate Rule 27. Plaintiff
asserts its mistaken citation to N.C. Gen. Stat. § 7A-27(c) follows the legislature’s
recent reorganization of section 7A-27. The jurisdictional subsections at issue are
N.C. Gen. Stat. §§ 7A-27(b)(2), and (b)(3). Plaintiff concedes the omission of the
standard of review was an inadvertence and mistake on its part. Plaintiff’s errors do
not prejudice Defendant. Therefore, we allow Plaintiff’s motion to amend and deny
Defendant’s motion to dismiss.
II. Jurisdiction
This action arises from a final judgment in a district court. Therefore, this
Court has jurisdiction under N.C. Gen. Stat. § 7A-27(b)(2).
III. Standard of Review
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Usually, our Court reviews a “trial court’s ruling on a Rule 60(b) motion . . . for
an abuse of discretion.” Yurek v. Shaffer, 198 N.C. App. 67, 75, 678 S.E.2d 738, 743
(2009) (citing Barnes v. Wells, 165 N.C. App. 575, 580, 599 S.E.2d 585, 589 (2004)).
However, the issue of “whether a trial court has subject matter jurisdiction is a
question of law, which is reviewable on appeal de novo.” Yurek, 198 N.C. App. at 75,
678 S.E.2d at 744–45 (citations omitted).
IV. Analysis
“In the literal sense of the word, no child support order entered in this state is
‘permanent’ because it may be modified or vacated at any time under N.C. Gen. Stat.
§ 50-13.7(a).” Gray v. Peele, ___ N.C. App. ___, ___, 761 S.E.2d 739, 741 (2014).
Section 50-13.7(a) allows a child support order to be “modified or vacated at any time,
upon motion in the cause and a showing of changed circumstances by either party . .
. .” N.C. Gen. Stat. § 50-13.7(a). This also applies to support agreements because
they “have the same force and effect, retroactively and prospectively . . . as an order
of support entered by the court, and shall be enforceable and subject to modification
in the same manner as is provided by law for orders of the court in such cases.” N.C.
Gen. Stat. § 110-133. Therefore, we treat the 1999 voluntary support agreement, and
its subsequent modification, the same as a child support order entered by the trial
court.
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Trial courts follow a two-step analysis for child support modification. See
McGee v. McGee, 118 N.C. App. 19, 26, 453 S.E.2d 531, 536, disc. review denied, 340
N.C. 359, 458 S.E.2d 189 (1995). First, the trial court must determine whether “a
substantial change of circumstances has taken place; only then does it proceed [to the
second step] to apply the North Carolina Child Support Guidelines to calculate the
applicable amount of child support.” Armstrong v. Droessler, 177 N.C. App. 673, 675,
630 S.E.2d 19, 21 (2006) (citation omitted).
The burden of proving “changed circumstances rests upon the party moving for
modification of support.” Id. This is unique to modifying permanent support orders
because temporary support orders are designed to be in effect for a finite period of
time, thereby making them inherently subject to modification. See Gray, ___ N.C.
App. at ___, 761 S.E.2d at 742 (“A temporary order is not designed to remain in effect
for extensive periods of time or indefinitely.”) (citation omitted).
A child support order is temporary if it meets any of the following criteria: “(1)
it is entered without prejudice to either party, (2) it states a clear and specific
reconvening time in the order and the time interval between the two hearings was
reasonably brief; or (3) the order does not determine all the issues.” Peters v.
Pennington, 210 N.C. App. 1, 13–14, 707 S.E.2d 724, 734 (2011) (quoting Senner v.
Senner, 161 N.C. App. 78, 81, 587 S.E.2d 675, 677 (2003)). In contrast, an order is
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permanent if it “does not meet any of these criteria.” Peters, 210 N.C. App. at 14, 707
S.E.2d at 734.
Here, the 1999 Order is the original child support order. In it, the parties
agreed, among other things, that Defendant would pay $0.00 per month in child
support for his two children, with such support to continue after their 18th birthdays
until they completed or ceased attending school. This child support period spans the
maximum period of time allowed by statute. See N.C. Gen. Stat. § 50-13.4(c). Unlike
a temporary support order, the 1999 Order does not set a clear and specific
reconvening time. While the order allows for the possibility of modification in the
first three years without a showing of changed circumstances, this window of time is
not reasonably brief. Brewer v. Brewer, 139 N.C. App. 222, 228, 533 S.E.2d 541, 546
(2000) (“We hold . . . the [one year] period between the [child custody] hearings was
not reasonably brief.”). Based on the record we cannot hold the trial court abused its
discretion in finding the 1999 Order failed to meet any of the three criteria for
temporary orders. See Peters, 210 N.C. App. at 13–14, 707 S.E.2d at 734.
Nonetheless, this determination is not dispositive of Defendant’s Rule 60 Motion due
to Plaintiff’s procedural shortcomings.
The plain language of N.C. Gen. Stat. § 50-13.7(a) requires a “motion in the
cause and a showing of changed circumstances” as a necessary condition for the trial
court to modify an existing support order. N.C. Gen. Stat. § 50-13.7(a). Our Court
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has held a trial court is “without authority to sua sponte modify an existing support
order.” Royall v. Sawyer, 120 N.C. App. 880, 882, 463 S.E.2d 578, 580 (1995) (citing
Kennedy v. Kennedy, 107 N.C. App. 695, 703, 421 S.E.2d 795, 799 (1992) (trial court
may modify custody only upon a motion by either party or anyone interested))
(citation omitted). Neither party contends the 1999 Order was not an “existing
support order” in 2001, when the parties entered into a second voluntary support
agreement.4
Therefore, the trial court that entered the 2001 Order did not have authority
to enter the order. The 2001 Order is therefore void and “it is immaterial whether
the judgment was or was not entered by consent. ‘[I]t is well settled that consent of
the parties to an action does not confer jurisdiction upon a court to render a judgment
which it would otherwise have no power or jurisdiction to render.’” Allred v. Tucci,
85 N.C. App. 138, 144, 354 S.E.2d 291, 295 (1987) (quoting Saunderson v.
Saunderson, 195 N.C. 169, 172, 141 S.E. 572, 574 (1928)).
After de novo review of the trial court’s jurisdiction, we note a need for
improvement in the area of child support enforcement. Here, the parties entered into
4 We note that a domestic agreement, like the 1999 voluntary support agreement, is a contract.
It “remains modifiable by traditional contract principles unless a party submits it to the court for
approval . . . .” Peters, 210 N.C. App. 1, 14,707 S.E.2d 724, 734 (2011). In theory, the 1999 voluntary
support agreement was modifiable until the parties submitted it to the trial court for approval.
However, the parties submitted the 1999 agreement to the trial court, the court approved it and issued
an order. Therefore, we need not analyze the 2001 Order and Defendant’s consent to modify the 1999
Order in the context of contract modification principals.
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a 1999 voluntary support agreement for a permanent child support obligation of
$0.00. The trial court accepted this agreement and entered the 1999 Order.
Afterwards, the parties attempted to modify the agreement using the County’s
mediation services to increase the child support obligation to $419.00. The mediation
process led the parties to execute another voluntary support agreement and order,
and none of the County’s forms in the mediation process contained language about
changed circumstances. As discussed, this omission creates a jurisdictional
shortcoming leaving the trial court without jurisdiction to modify the 1999 Order.
More importantly, this makes it impossible to enforce the second voluntary support
agreement and order because the trial court did not have jurisdiction to accept the
second voluntary support agreement and enter the modified order. See Whitworth v.
Whitworth, 222 N.C. App. 771, 731 S.E.2d 707 (2012) (reversing and vacating a nunc
pro tunc order that a trial court entered, without jurisdiction, three years after a
party’s motion to intervene). Without improvement in the mediation process and
appropriate revisions to the forms used in that process, our courts must bear cases
like this, enforcing permanent child support orders of $0.00 but not modified
agreements that reflect the intention of the North Carolina Child Support Guidelines.
Lastly, Plaintiff contends Defendant is estopped from challenging the 2001
Order because he successfully moved to reduce the amount of support due under the
order, from $419.00 to $247.00, before moving to set the order aside on jurisdictional
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grounds. We disagree. “A challenge to jurisdiction may be made at any time.” Hart
v. Thomasville Motors, 244 N.C. 84, 90, 92 S.E.2d 673, 678 (1956) (citation omitted).
“A judgment is void, when there is a want of jurisdiction by the court . . . .” Id.
(citation omitted). A void judgment “is a nullity [and] [i]t may be attacked collaterally
at any time [because] legal rights do not flow from it.” Cunningham v. Brigman, 263
N.C. 208, 211, 139 S.E.2d 353, 355 (1964) (citation omitted). Therefore, we must
overrule Plaintiff’s contention.
V. Conclusion
For the foregoing reasons we affirm the trial court.
AFFIRMED.
Judges STEPHENS and INMAN concur.
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