Durham Cty. v. AdamsÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-929
Filed: 20 March 2018
Durham County, No. 16 CVD 3299
DURHAM COUNTY, on behalf of TERRANCE ADAMS, Plaintiff,
v.
ALMA ADAMS, Defendant.
Appeal by Plaintiff from orders entered 19 April 2017 and 1 May 2017 by Judge
Fred Battaglia in Durham County District Court. Heard in the Court of Appeals 22
February 2018.
Peterkin Law Firm, PLLC, by Timothy J. Peterkin, for Plaintiff-Appellant.
Foil Law Offices, by N. Joanne Foil and Britney R. Weaver, for Defendant-
Appellee.
HUNTER, JR., Robert N., Judge.
Terrance Adams (“Plaintiff”) appeals a child support order and an order
awarding attorneys’ fees to Alma Adams (“Defendant”). Plaintiff argues the trial
court erred in dismissing Plaintiff’s complaint for child support because Plaintiff had
a statutory right to seek a child support order. Plaintiff also argues the trial court
erred in awarding Defendant attorneys’ fees because Plaintiff’s child support action
was not frivolous. We conclude the trial court properly dismissed Plaintiff’s
complaint for child support since Plaintiff and Defendant’s Separation Agreement
DURHAM CTY. V. ADAMS
Opinion of the Court
covering child support had been incorporated into the divorce order in a prior ruling
by the trial court, and Plaintiff admitted there was no substantial change in
circumstances. We also conclude the trial court did not abuse its discretion in
awarding Defendant attorneys’ fees.
I. Factual and Procedural Background
Plaintiff and Defendant were married on 4 June 2005. One minor child was
born of the marriage on 13 April 2009. On or about 8 April 2013, the couple separated.
The parties entered into a Separation and Property Settlement Agreement (“the
Agreement”) on 8 April 2013. This Agreement provides the parties have joint legal
and physical custody of the minor child. The terms of this Agreement provided the
parties split all expenses related to caring for the minor child, including day care and
medical expenses. The Agreement does not otherwise mention child support.
Plaintiff served Defendant with a summons and complaint for absolute divorce
on 16 April 2014, and the trial court entered judgment on 19 May 2014. On 18 April
2016, the parties entered into a Modified Parenting Agreement. This modified
agreement states it “is not intended to replace the terms of the Separation Agreement
incorporated as an Order of the Court by Judge James T. Hill on May 19, 2014 in
full.”
On 12 July 2016, Plaintiff retained the public services of Durham County Child
Support Services in order to establish a child support order against Defendant.
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Opinion of the Court
Plaintiff’s child support complaint contained several false statements
including: (1) the complaint provided the parties were married on 4 June 2006, when
in fact they were married on 4 June 2005; (2) the complaint lists the parties’ date of
separation as 31 May 2014, when in fact the parties separated on 8 April 2013; (3)
the complaint alleges the minor child had received or was then receiving public
assistance when in fact the minor child has never received public assistance; and (4)
the complaint states Defendant should be ordered to provide medical coverage or
support for the minor child, when in fact Defendant has provided medical insurance
for the minor child since his birth.
On 26 September 2016, Defendant filed an answer and counterclaim.
Defendant denied Plaintiff’s false statements in the Answer portion and also asserted
counterclaims for child support and specific performance.
On 22 September 2016 and 27 September 2016, Defendant’s counsel sent two
letters to Mary Drake, the assigned case worker who verified Plaintiff’s complaint, at
Durham County Child Support Enforcement Agency requesting Plaintiff’s 2015 W-2
form. Defendant did not receive a response from either letter. On 7 October 2016,
Defendant’s counsel issued a discovery request to Plaintiff, in care of Attorney
Nathan L. McKinney (who signed the Child Support Complaint), and Defendant
again received no response.
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Opinion of the Court
On 3 November 2016, Defendant’s counsel spoke with the Assistant County
Attorney. The Assistant County Attorney informed Defendant’s counsel the Durham
County Child Support Enforcement Agency does not respond to discovery or
deposition notices because the County Attorney represents the Child Support
Enforcement Agency and not Plaintiff. Defendant’s Counsel then sent all discovery
requests directly to Plaintiff. Plaintiff did not respond to Defendant’s discovery
requests and Defendant’s counsel elected to depose Plaintiff on 30 November 2016.
During the deposition, Plaintiff acknowledged he received the discovery
requests, but chose not to provide the information prior to the deposition. Included
in Defendant’s discovery requests were questions relating to Plaintiff’s wife and
Plaintiff’s W-2 forms for the past two years. Plaintiff produced a W-2 form at the
deposition. However, Plaintiff redacted much of the information on the W-2 form.
Plaintiff also refused to answer questions related to the redacted information during
his deposition. Also in his deposition, Plaintiff stated he sought the services of
Durham County Child Support Enforcement Agency to secure child support to assist
him with paying for the minor child’s track-out camps, as well as before and after
school care costs. Plaintiff acknowledged already having a court order reflecting the
cost share responsibility of these expenses.
Additionally, Plaintiff admitted during his deposition there were no substantial
changes in circumstances affecting the needs of the minor child since the entry of the
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Opinion of the Court
court order incorporating the Agreement. Plaintiff moved forward with the child
support suit because the Agreement “was a bad situation for [him], and [he] needed
to get out of it.”
On 1 December 2016, Defendant filed a Motion for Attorneys’ Fees. In that
motion, Defendant stated:
[Counsel for Defendant] has been informed through
Durham County Assistant Attorney . . . that Plaintiff . . .
retained the Agency to secure child support to assist him
with paying for the minor child’s track out camps, and
before and after school care. The average monthly amount
paid by Plaintiff . . . for said childcare is $318.00 per month.
Upon learning of this exact figure, Defendant . . . sent
Plaintiff . . . a text message informing him that she would
be sending him a check for half of the childcare costs for
November and December 2016. Plaintiff . . . sent a text
message back to Defendant . . . telling her not to send the
money to him and also not to pay the provider directly. . . .
Defendant . . . mailed payment to Plaintiff . . . despite his
stated refusal to accept it.
....
Plaintiff . . . has necessitated the filing of this action
for attorney’s fees due to his frivolous suit against
Defendant and his unwillingness to provide needed
documentation, and also his stated refusal to accept
payment from Defendant.
Upon information and belief, Plaintiff[’s] wife,
Kameeleon Johnson, works at Durham County Child
Support Enforcement and has been a driving factor behind
this suit and behind [Plaintiff’s] refusal to cooperate. At
his deposition, Plaintiff . . . refused to answer any questions
involving his wife, even including stating her name and
place of employment.
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Opinion of the Court
After a hearing on 19 January 2017, the trial court entered an order on child
support on 19 April 2017. In that order the trial court concluded Plaintiff has
“unclean hands in this action,” and Plaintiff’s complaint for child support is a
“frivolous suit.” The trial court dismissed Plaintiff’s complaint for child support with
prejudice.
In an order entered 1 May 2017, the trial court found “Plaintiff’s Complaint for
Child Support was a frivolous lawsuit without merit which forced the Defendant to
incur substantial attorney’s fees in defense.” The trial court concluded Plaintiff “filed
the frivolous Complaint for Child Support without even reading the Complaint,” and
forced Defendant to “incur substantial attorney’s fees.” The trial court ordered
Plaintiff to pay “$9,000.00 of Defendant’s attorney’s fees.”
Plaintiff timely appealed.
II. Standard of Review
In reviewing a child support order, this Court’s review “is limited to a
determination [of] whether the trial court abused its discretion.” Johnston Cty. ex
rel. Bugge v. Bugge, 218 N.C. App. 438, 440, 722 S.E.2d 512, 514 (2012) (Spicer v.
Spicer, 168 N.C. App. 283, 287, 607 S.E.2d 678, 682 (2005)).
“The trial court’s decision to impose or not to impose mandatory sanctions
under N.C.G.S. § 1A-1, Rule 11(a) is reviewable de novo as a legal issue.” Turner v.
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Opinion of the Court
Duke Univ., 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989). Under this de novo review
this Court will determine:
(1) whether the trial court’s conclusions of law support its
judgment or determination, (2) whether the trial court’s
conclusions of law are supported by its findings of fact, and
(3) whether the findings of fact are supported by a
sufficiency of the evidence. If the appellate court makes
these three determinations in the affirmative, it must
uphold the trial court’s decision to impose or deny the
imposition of mandatory sanctions under N.C.G.S. § 1A-1,
Rule 11(a).
Brown v. Brown, 112 N.C. App. 614, 617, 436 S.E.2d 404, 406 (1993) (quoting Turner
v. Duke Univ., 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989)).
“[I]n reviewing the appropriateness of the particular sanction imposed, an
‘abuse of discretion’ standard is proper[.]” Turner at 165, 381 S.E.2d at 714.
III. Analysis
Plaintiff first argues the trial court denied Plaintiff his statutory right to seek
a child support order when the trial court dismissed Plaintiff’s complaint. At the
outset we note Plaintiff’s brief fails to cite any case law or North Carolina statute in
support of his contention the trial court denied his statutory right to seek a child
support order when the trial court dismissed his complaint. Rather, Plaintiff cites
federal law 42 U.S.C. § 654, which is persuasive authority and not binding on this
Court.
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The trial court found the parties’ “separation agreement is dually enforceable
through the divorce judgment[.]” Furthermore, the trial court found “that there has
been no substantial change in circumstances affecting the welfare of the child, and
therefore that no - - there should be no changes to the award of what is contained in
the judgment as incorporated in the separation agreement.” We therefore conclude
the trial court did not abuse its discretion in dismissing Plaintiff’s complaint for child
support.
Plaintiff next argues the trial court “improperly referenced” Plaintiff’s income
because such a fact is “irrelevant and suggests the court was implementing an income
test for access to Child Support Services, when no such requirement exists.” Under
N.C. Gen. Stat. § 50-13.4(c), the trial court properly evaluated Plaintiff’s income to
determine if the amount of support paid for the minor child meets the reasonable
needs of the child. Additionally, our State Supreme Court has stated the trial court
should evaluate the relative ability of the parties to pay support when it makes a
child support order. Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980).
We conclude the trial court did not err in referencing Plaintiff’s income since that
information was relevant to Plaintiff’s claim for child support.
Plaintiff next challenges the validity of the separation agreement’s
incorporation into the divorce decree. Plaintiff admitted in his brief and in his
deposition he asked for the parties’ separation agreement, which stated the parties
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Opinion of the Court
would equally share child care expenses, to be made a part of the divorce order.
[W]henever the parties bring their separation agreements
before the court for the court’s approval, it will no longer be
treated as a contract between the parties. All separation
agreements approved by the court as judgments of the
court will be treated similarly, to-wit, as court ordered
judgments. These court ordered separation agreements, as
consent judgments, are modifiable, and enforceable by the
contempt powers of the court, in the same manner as any
other judgment in a domestic relations case.
Walters v. Walters, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983). There is no
evidence tending to show the trial court failed to properly incorporate the separation
agreement into the divorce order. This argument is without merit.
Plaintiff also contends he did not need to show a substantial change in
circumstances in order to modify the child support order because there was not a prior
child support order in place. As discussed supra, we conclude the trial court properly
incorporated the separation agreement into its divorce order. Therefore, a valid child
support order exists. This argument is without merit.
Finally, Plaintiff contends the trial court improperly awarded Defendant
attorneys’ fees since Plaintiff’s complaint for child support was not frivolous.
“A claim is frivolous if a proponent can present no rational argument based
upon the evidence or law in support of [it].” Griffith v. N.C. Dep’t of Corr., 196 N.C.
App. 173, 174, 675 S.E.2d 72, 73 (2009). Here, the trial court found as fact Plaintiff’s
complaint was frivolous. The trial court also found numerous errors in the complaint:
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(1) the incorrect date of marriage; (2) the incorrect date of separation; and (3) a false
statement regarding the minor child receiving public assistance in the past or
presently. The trial court also found Plaintiff never saw a copy of the complaint until
the date of his deposition, and the complaint requested Defendant to provide the
minor child’s medical coverage when in fact Defendant has provided medical
insurance for the minor child since birth. The trial court also found Plaintiff failed to
“take action” to correct these errors.
Finally, the trial court found “Defendant’s counsel had to expend considerable time
in investigating Plaintiff’s claims and the false accusations in his complaint,
including having to take Plaintiff’s deposition and review considerable
documentation.” Additionally, Plaintiff admitted there was an existing court order
to provide for the support of the minor child when Plaintiff filed his complaint.
These facts support the trial court’s conclusion Plaintiff’s complaint was
frivolous.
The trial court evaluated the fees Defendant incurred in having to defend
against Plaintiff’s frivolous suit. Counsel for Defendant informed the trial court her
legal fees totaled $17,013.85. In its order, the trial court determined Defendant’s
counsel’s hourly rate was reasonable “for the area given for her level of experience
and expertise.” The trial court did not require Plaintiff to pay the total amount
incurred, but ordered Plaintiff to pay $9,000.00. We conclude the trial court therefore
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reasonably and properly considered the evidence of Defendant’s fees in calculating
Defendant’s award.
Plaintiff cannot show the trial court abused its discretion in awarding
Defendant attorneys’ fees in this case.
AFFIRMED.
Judges DIETZ and ZACHARY concur.
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