Gray v. Peele

NO. COA13-1333

NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2014

TAMI L. GRAY,
Plaintiff,

v. Wake County
No. 08 CVD 003713
DARRELL KEITH PEELE,
Defendant.

Appeal by defendant from order entered 9 August 2013 by

Judge Daniel J. Nagle in Wake County District Court. Heard in

the Court of Appeals 22 May 2014.

No brief filed on behalf of plaintiff-appellee.

Elisabeth P. Clary for intervenor plaintiff-appellee Wake
County Child Support Enforcement.

Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for
defendant-appellant.

HUNTER, JR., Robert N., Judge.

Darrell Keith Peele (“Defendant”) appeals from an order

denying his motion to modify child support. Defendant contends

that the prior child support order entered in 2010 was temporary

in nature and that the trial court erred in requiring him to

demonstrate that a substantial change in circumstances had taken

place since the entry of the existing order. Defendant also
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challenges the trial court’s conclusions and findings of fact.

For the following reasons, we dismiss the appeal as

interlocutory.

I. Factual & Procedural History

Tami L. Gray (“Plaintiff”) and Defendant were married on 30

April 1994. During the marriage, Plaintiff and Defendant had

one child, L.K.P., who was born in March 1999. Plaintiff and

Defendant subsequently divorced.

On 24 October 2000, the Granville County District Court

entered a temporary child support order that, pursuant to the

North Carolina Child Support Guidelines, required Defendant to

pay the presumptive sum of $685.57 per month for the minor

child. On 17 April 2001, when the child was 2 years old, the

court entered a permanent custody order giving Plaintiff primary

physical custody of L.K.P. and Defendant Wednesday evening,

alternating weekend, and holiday visitation rights. The custody

order also provided that “[t]he parties may exercise such other

and further residency periods with the minor child as may be

mutually agreed upon by the parties.”

On 21 February 2003, the court modified the temporary child

support order, requiring Defendant to pay $685.57 per month in

accordance with the previous child support order, plus an
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additional $100 per month towards arrearages. Nearly five years

later, in February 2008, the action was transferred to Wake

County and an order was entered permitting the local Child

Support Enforcement Agency to intervene on behalf of Plaintiff.

Thereafter, on 4 May 2010, Defendant filed a motion to

modify his child support obligation, citing loss of work and

unemployment, as well as the fact that L.K.P. had been staying

with him an additional night during the week. Following a

hearing on the motion, the trial court entered an order on 6

August 2010 based on a consent agreement between the parties

reducing Defendant’s monthly child support obligation to $500

per month.

On 10 October 2010, the parties mutually agreed to

implement a week-on/week-off custody arrangement, although the

custody order was not formally modified. After the parties

implemented this agreement, Defendant stopped paying child

support without seeking a modification from the trial court and

without Plaintiff’s consent. On 31 August 2011, Plaintiff

withdrew from the agreement and demanded that Defendant revert

to the custody schedule contained in the 17 April 2001 custody

order. Despite Plaintiff’s objections, however, the record

evidence shows that the parties continued the week-on/week-off
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custody arrangement until the hearing in this matter in May of

2013 -- a period of over 2 years and seven months. On 27

September 2011, Defendant filed a motion to modify custody

alleging the existence of many changes in the parties’

circumstances and the child’s needs, requesting an award of

primary custody or in the alternative, that the “Court modify

the 2001 Custody Order such that the parties immediately resume

and maintain the week-on week-off custodial schedule that they

have been operating under for the past year.” This motion

remains pending in the trial court.

Thereafter, Defendant filed a separate motion to modify

child support on 10 April 2012 and again on 31 January 2013,

alleging that circumstances had changed in that he had

experienced a period of unemployment, his home had been

foreclosed upon, his car had been repossessed, and his financial

condition had deteriorated. Defendant also cited the week-

on/week-off custody schedule in the motion. Defendant’s motion

to modify child support was heard at the 24 May 2013 “term of

Wake County Civil IV-D District Court.” Following a hearing

concerning the motion to modify child support only, the trial

court entered an order dated 9 August 2013 concluding, inter

alia, that:
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2. Defendant earns income on a monthly basis
and is capable of contributing to the
support of the minor child, [L.K.P.].

3. Defendant should be required to pay child
support for the minor child, [L.K.P.].

4. A change in the physical custody of a
child constitutes a substantial change in
circumstances warranting modification of an
existing child support order.

5. While a change in the physical custody of
the minor child existed from to [sic] 10
October 2010 to 31 August 2011, the
defendant failed to file a motion to modify
child support and was not precluded from
filing by physical disability, mental
incapacity, indigency, misrepresentation of
another party, or other compelling reason,
and the change in physical custody no longer
exists and payment has vested.

6. The existing ordered support amount is
sufficient to meet the reasonable needs of
the minor child.

(Internal citation omitted). Accordingly, the trial court

denied Defendant’s motion to modify child support and ordered

Defendant to continue to make child support payments of $500 per

month as previously ordered. Defendant filed timely notice of

appeal from the trial court’s order.

II. Jurisdiction

Defendant argues that we have jurisdiction to consider this

order because it is not interlocutory. We disagree.
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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.

Hausle v. Hausle, ___ N.C. App. ___, ___, 739 S.E.2d 203, 205-06

(2013) (citations, quotation marks, and brackets omitted). “The

reason for this rule is to prevent fragmentary, premature, and

unnecessary appeals by permitting the trial court to bring the

case to final judgment before it is presented to the appellate

courts.” Peters v. Peters, ___ N.C. App. ___, ___, 754 S.E.2d

437, 439 (2014) (citation, quotation marks, and brackets

omitted). “In the child support context, an order setting child

support is not a final order for purposes of appeal until no

further action is necessary before the trial court upon the

motion or pleading then being considered.” Banner v. Hatcher,

124 N.C. App. 439, 441, 477 S.E.2d 249, 250 (1996).

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, upon motion in the cause and a showing

of changed circumstances[.]” N.C. Gen. Stat. § 50-13.7(a)
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(2013). Nevertheless, our case law provides that a child

support order may be characterized as “permanent” when the order

is based on the merits of the case and intended to be final.

See Miller v. Miller, 153 N.C. App. 40, 47–48, 568 S.E.2d 914,

919 (2002).

With respect to child custody orders, we have said that

“[a] temporary order is not designed to remain in effect for

extensive periods of time or indefinitely.” Gary v. Bright, ___

N.C. App. ___, ___, 750 S.E.2d 912, 915 (2013) (internal

quotation marks and citation omitted).

[A]n order is temporary if either (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. If the order
does not meet any of these criteria, it is
permanent.

Woodring v. Woodring, ___ N.C. App. ___, ___, 745 S.E.2d 13, 18

(2013) (alterations in original) (internal quotation marks and

citation omitted).

With respect to child support orders, our case law is less

developed, but not totally devoid of guiding precedent. See,

e.g., Miller, 153 N.C. App. 40, 568 S.E.2d 914; Cole v. Cole,

149 N.C. App. 427, 562 S.E.2d 11 (2002); Banner, 124 N.C. App.
 -8-
439, 477 S.E.2d 249. In these cases, we have looked to the

intent behind the trial court’s order to determine if a support

order is temporary. In doing so, we have considered whether the

order explicitly identifies itself as a temporary order and

whether the language of the order contemplates that another

“permanent” order will be entered at a future point in time.

Miller, 153 N.C. App. at 47–48, 568 S.E.2d at 919; Cole, 149

N.C. App. at 433–44, 562 S.E.2d at 14–15.

A claim for either child support or custody can be brought

and heard by the trial court independently, so in one sense, a

final determination of one claim would be entirely separate of

the other. But in many cases, and this is one of them, the

amount of child support depends in large part upon the custodial

schedule and the custodial schedule is in dispute. In fact,

N.C. Gen. Stat. § 50-13.4 establishes child support guidelines

which are based upon the applicable custodial schedule and a

presumption that child support shall be set in accordance with

the guidelines unless the parties’ incomes place their case

outside of the guidelines or there is a request for deviation

from the guidelines and the trial court makes findings that a

deviation is justified in the particular case. See generally

Pataky v. Pataky, 160 N.C. App. 289, 295-96, 585 S.E.2d 404,
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408-09 (2003) (discussing in detail the origins of and

procedures applicable to the child support guidelines), aff’d in

part and disc. rev. dismissed in part, 359 N.C. 65, 602 S.E.2d

360 (2004); N.C. Gen. Stat. § 50-13.4(c), (c1).

This statutory scheme and the presumption of application of

the guidelines makes the claims of child custody and child

support legally interdependent. Here, there is a pending motion

to modify custody which, if allowed, would fundamentally alter

the facts upon which the trial court based its child support

decision. After entry of the 6 August 2010 child support order,

the parties agreed that the minor child would live with each

party during alternate weeks, and the evidence indicated that

this living arrangement continued up to the time of the hearing

in May of 2013. Although plaintiff “withdrew her consent” from

that arrangement on 31 August 2011, they continued to alternate

custody weekly. On 27 September 2011, defendant moved to modify

the parties’ custody order to reflect the new arrangement. On

10 April 2012, defendant also moved to modify child support,

alleging as part of the justification for this request the

actual custodial arrangement the parties had been following. On

18 April 2013, defendant also filed notice that he would

request a deviation from the North Carolina
Child Support Guidelines and requests the
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Court to consider the Defendant’s deviation
when applying the guidelines and to take
into consideration the custodial schedule of
the parties. The Defendant asserts that the
Child Support Guidelines are unreasonable
because the parties maintained a fifty/fifty
(50/50) custodial schedule for the minor
child since October 2010. Based upon
information and belief, the Defendant
believed the Order was in effect for a 50/50
schedule and has since discovered that the
Custody Order may not have been signed and
the Plaintiff and Defendant have exercised a
50/50 custody since October 2010.
The order on appeal only addressed the child support

issues, while leaving the custody issues unresolved—nearly two

years after defendant had moved to modify the custody order to

reflect the actual custody schedule. 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
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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. While we appreciate this procedural

situation and the reason that one motion was heard while the

other remained pending, despite its apparent relevance to the

issues raised in the motion to modify child support, we have to

determine the interlocutory nature of the order based upon the

law. The present order failed to resolve the pending custody

issue or even to address the parties’ custodial arrangement

during the entire relevant period, even though the custodial

schedule was in dispute.1 The trial court simply ordered the

1
All the trial court could do in this situation, since the
pending custody motion was not under consideration, was to make
findings regarding the past practice of the parties and whether
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parties to continue following the prior order, awarding

plaintiff $500 per month despite the fact that the actual

custody arrangement had changed.

A change in the custodial arrangement is a substantial

change in circumstances affecting child support, as the trial

court itself noted, citing Kowalick v. Kowalick, 129 N.C. App.

781, 787, 501 S.E.2d 671, 675 (1998). Without knowing the

custody arrangement, the trial court cannot determine which

child support worksheet to use, or whether to deviate from the

guidelines. See N.C. Gen. Stat. § 50-13.4(c1) (2011) (“The

guidelines shall include a procedure for setting child support,

if any, in a joint or shared custody arrangement which shall

reflect the other statutory requirements herein.”); N.C. Child

Support Guidelines, AOC-A-162 (2011). So, in effect, this order

simply temporarily continues the existing support order until

the trial court can hear the custody issues.

This would also explain why the trial court made findings

of fact about the parties’ incomes and all information needed to

set guideline child support, but failed to make any findings

any retroactive modification of the child support obligation
might be justified, and the trial court did make findings
concerning this issue. Indeed, defendant did not dispute that
the effective date of any retroactive child support modification
would be the date of filing of his motion to modify child
support.
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addressing the justification for deviation from the guidelines

or any determination of the amount of child support which would

be required by the guidelines, and then simply continued in

effect the $500.00 child support amount which the parties had

agreed upon in 2010. If the trial court had intended this to be

a permanent child support order, the findings and conclusions of

law would not support this child support amount, which ignores

the findings of fact about the parties’ incomes and other

relevant numbers and fails to make any findings as to a need to

deviate from the guidelines. But as a temporary order entered

by the child support enforcement court to provide for payment of

child support until the pending motion to modify custody can be

determined and child support set based upon the actual custodial

schedule, the order makes sense both legally and practically.

Where our record demonstrates that there was at the time of

the hearing a motion to modify custody pending, with the actual

custodial schedule uncertain and in dispute, and the child

support obligation is presumptively directly dependent upon the

custodial schedule, allowing the present child support order to

be immediately appealed would lead to “fragmentary, premature[,]

and unnecessary appeals[.]” Peters, ___ N.C. App. at ___, 754

S.E.2d at 439 (first alteration in original). Therefore, we
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hold that the present order is interlocutory and dismiss the

appeal.2

III. Conclusion

For the foregoing reasons, defendant’s appeal from the

child support order is dismissed.

DISMISSED.

Judges ERVIN and DAVIS concur.

2
We note that the Legislature recently enacted Session Law 2013-
411, codified at N.C. Gen. Stat. § 50-19.1 (2013), which governs
appeals from certain family law orders while other claims remain
pending. However, this statute only became effective 23 August
2013, after the order on appeal was entered. 2013 N.C. Sess.
Laws ch. 411, § 2. Indeed, defendant has not argued that this
statute applies here. Therefore, we do not address how this
statute might affect our analysis.