The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1400
Filed: 5 April 2016
Durham County, No. 06CVD2127
PATRICK MALONE, Plaintiff,
v.
LEIGH HUTCHINSON–MALONE, Defendant.
Appeal by defendant from order entered 26 June 2014 by Judge Doretta L.
Walker in District Court, Durham County. Heard in the Court of Appeals 21 May
2015.
No brief filed, for plaintiff–appellee.
Leigh A. Hutchinson–Malone, pro se, defendant–appellant.
STROUD, Judge.
Defendant appeals from an order terminating plaintiff’s child support
obligations and denying her motion for contempt and attorney’s fees. Because the
trial court terminated plaintiff’s child support obligation based solely upon the terms
of the parties’ incorporated agreement, which was less generous than North Carolina
General Statute § 50-13.4 as to the terminating events for the child support
obligation, we must reverse and remand to the trial court for entry of a new order
based upon North Carolina General Statute § 50-13.4.
MALONE V. HUTCHINSON–MALONE
Opinion of the Court
I. Background
The parties were married on 6 June 1993, separated on or about 15 November
1999, and divorced on 22 December 2006. One child, Doug,1 was born to the parties
during the course of their marriage on 15 July 1994. On 22 March 2013, plaintiff
filed a motion seeking to terminate his obligation to pay child support, which was
established by the parties’ separation agreement as incorporated into their divorce
judgment. The separation agreement acknowledged “that [Doug] has been diagnosed
as having an autism spectrum disorder and is thus a child with special needs who
requires particular care.” The separation agreement then provided for specific child
support payments
until such time as . . . [Doug] becomes emancipated under
North Carolina law or turns age eighteen, unless he is still
a full-time secondary school student in which case it will
continue until he is no longer a full-time secondary school
student or turns age twenty, whichever first occurs.
In plaintiff’s motion to terminate child support, plaintiff alleged that Doug was no
longer in a home school program or in a secondary school, that Doug turned eighteen
in July 2012, and that “the only way for [Doug] to obtain a North Carolina Diploma
is there [sic] enrollment in a GED or Community College High School Program.”
On 14 May 2013, defendant responded to plaintiff’s motion to terminate child
support alleging that, contrary to plaintiff’s allegations, Doug was “still making
1 A pseudonym is used to protect the identity of the parties’ son.
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Opinion of the Court
progress towards a NC high school diploma, not a GED, and [wa]s expected to finish
the requirements for his diploma by the summer of 2013.” On 14 May 2013,
defendant filed a motion for contempt and attorney’s fees, in which she alleged that
plaintiff failed to pay his child support obligations from February 2013 and that such
failure was “willful[] and without legal justification or excuse.”
On 26 June 2014, the trial court entered an order in which it made numerous
findings of fact and concluded that Doug “did not attend school full time after
December 2012.” Based upon its findings and conclusions, the trial court granted
plaintiff’s motion to terminate his child support obligation and denied defendant’s
motion for contempt and attorney’s fees. Defendant appeals.
II. Motion to Terminate
Defendant first contends that “the trial court erred in granting the plaintiff’s
motion to terminate[.]” (Original in all caps.)
[W]hen the trial court sits without a jury, the standard of
review on appeal is whether there was competent evidence
to support the trial court’s findings of fact and whether its
conclusions of law were proper in light of such facts. While
findings of fact by the trial court in a non-jury case are
conclusive on appeal if there is evidence to support those
findings, conclusions of law are reviewable de novo.
Romulus v. Romulus, 215 N.C. App. 495, 498, 715 S.E.2d 308, 311 (2011) (citations
and quotation marks omitted).
We must first seek to determine the effective date of the termination of child
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Opinion of the Court
support according the trial court’s order. The order states simply “[t]hat the motion
to terminate child support is granted” but fails to include the date of termination.
Defendant’s own brief concedes that plaintiff paid child support until late February
of 2013, and plaintiff’s motion requested termination effective 1 March 2013, but it
is not clear from the order when exactly plaintiff stopped making child support
payments and for what, if any, remaining months defendant contended plaintiff
should be required to further pay child support.2 The order does find that Doug “did
not attend school full time after December 2012[,]” but also includes a finding that
he “returned to being homeschooled by defendant on January 21st 2013 and received
a high school diploma” on 30 August 2013. Reading the order in its entirety and in
conjunction with the other evidence, it appears that the trial court determined
support should terminate as of January of 2013, although again, even defendant
contends plaintiff made payments after this date, though perhaps the February 2013
payment was a late payment for a prior month. Overall, we are unable to discern
when plaintiff stopped paying child support or the effective date of the trial court’s
order.
What the evidence does in fact show is a matter the trial
court is to resolve, and its determination should be stated
in appropriate and adequate findings of fact. . . .
Our decision to remand this case for further
2
Even assuming it is uncontroverted that plaintiff ceased paying child support on 28 February
2013, as defendant claims, that does not clarify for which month the final payment was made because
a payment made in February could be support for the month of February or could be, for example, a
payment in February intended to support the child for the month of March.
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Opinion of the Court
evidentiary findings is not the result of an
obeisance to mere technicality. Effective
appellate review of an order entered by a trial
court sitting without a jury is largely
dependent upon the specificity by which the
order’s rationale is articulated. Evidence
must support findings; findings must support
conclusions; conclusions must support the
judgment. Each step of the progression must
be taken by the trial judge, in logical
sequence; each link in the chain of reasoning
must appear in the order itself. Where there
is a gap, it cannot be determined on appeal
whether the trial court correctly exercised its
function to find the facts and apply the law
thereto.
Farmers Bank, Pilot Mountain v. Michael T. Brown Distributors, Inc., 307 N.C. 342,
352-53, 298 S.E.2d 357, 363 (1983). Therefore, we reverse and remand for further
findings of fact on this issue. But in addition to this relatively minor detail, we would
still have to reverse and remand due to a legal error in this case.
North Carolina General Statute § 50-13.4(c) provides, in relevant part, that
child support payments
shall terminate when the child reaches the age of 18 except:
....
(2) If the child is still in primary or secondary
school when the child reaches age 18, support
payments shall continue until the child
graduates, otherwise ceases to attend school
on a regular basis, fails to make satisfactory
academic progress towards graduation, or
reaches age 20, whichever comes first, unless
the court in its discretion orders that
payments cease at age 18 or prior to high
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school graduation.
N.C. Gen. Stat. § 50-13.4(c)(2) (2013). Thus, as a general rule, North Carolina
General Statute 50-13.4(c)(2) establishes the minimum duration of the child support
obligation under North Carolina law. See id. A supporting parent may enter into an
enforceable agreement to pay more than would be required under the child support
guidelines or to pay for a longer period of time than required by North Carolina
General Statute § 50-13.4(c)(2), but if the contractual child support amount or
duration is less than required by statute, the child support obligee may still recover
child support up to the amount and duration required under the statute.3 See, e.g.,
Smith v. Smith, 121 N.C. App. 334, 340, 465 S.E.2d 52, 56 (1996) (“The law of this
State establishes that a parent can assume contractual obligations to his child greater
than the law otherwise imposes.” (citation and quotation marks omitted)); see
generally Pataky v. Pataky, 160 N.C. App. 289, 585 S.E.2d 404 (2003) (providing an
overview for agreements between the parties and deviation from child support
guidelines), aff'd in part and review improvidently allowed in part per curiam, 359
N.C. 65, 602 S.E.2d 360 (2004). Although the provisions of North Carolina General
Statute § 50-13.4(c)(2) as to time for termination are similar to those of the
agreement, they are not exactly the same. Plaintiff agreed to pay child support
3 We recognize that a child support order may deviate from the amount required by the child
support guidelines and require payment of either more or less than the guideline amount, but any
deviation must still be based upon appropriate factors and supported by findings of fact. N.C. Gen.
Stat. § 50-13.4(c).
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until such time as . . . [Doug] becomes emancipated under
North Carolina law or turns age eighteen, unless he is still
a full-time secondary school student in which case it will
continue until he is no longer a full-time secondary school
student or turns age twenty, whichever first occurs.
The trial court found “[t]hat the incorporated agreement between the parties
is enforceable by this court and that the agreement goes beyond what the guidelines
provide” because the agreement “was a deviation from the child support guidelines
and took into account the child’s special needs and the family’s circumstances.” The
separation agreement does go “beyond what the guidelines provide” as to the monthly
obligation amounts but as to duration of the obligation, the statute is actually more
generous since it does not require “full-time” school attendance for continued
payments, and thus the statute controls. See N.C. Gen. Stat. § 50-13.4(c)(2); see also
Smith, 121 N.C. App. at 340, 465 S.E.2d at 56.
The trial court made detailed findings of fact regarding Doug’s school
attendance over many years and course work for 2012 and 2013, and plaintiff does
not challenge most of these findings of fact. The trial court ultimately determined
that the course work after December 2012 was not enough to qualify Doug as a “full-
time” student as required by the separation agreement. But this requirement of “full-
time” attendance is the relevant difference between the terms of the agreement and
the statute, since North Carolina General Statute § 50-13.4(c)(2) does not require “full
time” school attendance of school but instead that the student “attend school on a
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regular basis” and “make satisfactory academic progress towards graduation[.]” N.C.
Gen. Stat. § 50-13.4(c)(2). In other words, pursuant to North Carolina General
Statute § 50-13.4(c)(2), if a student attends school regularly, albeit not on a full-time
basis, and continues to make satisfactory academic progress towards graduation,
child support would continue, unless the trial court were to order “in its discretion . .
. that payments cease at age 18 or prior to high school graduation.” See id.
Here, the trial court appears to have based its determination to grant plaintiff’s
motion to terminate solely on the basis that Doug was not a “full-time” student, based
upon the language of the separation agreement, without consideration of the
language in North Carolina General Statute § 50-13.4(c)(2). The findings of fact
establish that Doug was being homeschooled after December 2012 and that Doug
“received a high school diploma” in August of 2013. Since Doug was still being
homeschooled, and he actually received a diploma in August of 2013, it would seem
that he was likely regularly attending school and making “satisfactory academic
progress towards graduation” from January 2013 until August 2013.4 If that is true,
based upon the findings before us, plaintiff’s child support obligation would end as of
August 2013, when Doug received his diploma. Because the trial court failed to
4 We say that this seems to be true, because in addition to the findings of Doug’s continued
home-schooling and ultimate graduation, the trial court also expressed concerns about the legitimacy
of defendant’s home-schooling efforts. All of these findings are also in the context of education of a
child with “autism spectrum disorder” who had non-traditional education for much of his life. We are
unable to reconcile all of these findings, but the question presented in this appeal is not the quality of
Doug’s education or the validity of his high school diploma.
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Opinion of the Court
consider the proper statutory terminating events for the child support obligation --
“otherwise cease[ing] to attend school on a regular basis” or “fail[ure] to make
satisfactory academic progress towards graduation,” “whichever comes first” -- we
must remand for the trial court to make additional findings of fact and the necessary
conclusions of law. Id.
Yet North Carolina General Statute § 50-13.4(c)(2) has additional relevant
provisions, since it also grants the trial court discretion to order that child support
payments “cease at age 18 or prior to high school graduation.” Id. Thus, in addition,
to the statutorily-mandated terminating events discussed above, the trial court may
consider whether in its discretion the child support should cease at age 18 but “prior
to high school graduation” under the particular circumstances presented by this case;
again, this is a discretionary determination vested in the trial court. See id. Because
the trial court also failed to consider the statute which gave it discretion to terminate
or continue the child support obligation at age 18, depending upon the trial court’s
ultimate determination based upon the statute on remand, it may be necessary for
the trial court to also make the discretionary ruling on remand. See generally id. We
reverse and remand for the trial court to consider plaintiff’s statutory obligation to
Doug pursuant to North Carolina General Statute § 50-13.4(c)(2). While the trial
court may ultimately come to the same result, it must be supported by the requisite
findings of fact based upon the applicable law.
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Opinion of the Court
III. Motion for Contempt and Attorney’s Fees
Defendant next contends that “the trial court erred in denying the defendant’s
motion for contempt and attorney’s fees[.]” (Original in all caps.) Because the denial
of plaintiff’s motion for contempt and attorney’s fees is predicated on the erroneous
determination that plaintiff was no longer obligated to pay child support as of
December 2012 because Doug was no longer a full-time student, we also reverse and
remand this portion of the trial court’s order. Again, depending upon the termination
date of the child support obligation as determined on remand, the trial court could
reach the same result or would need to make additional findings and conclusions
regarding child support arrears owed, as appropriate.
IV. Conclusion
For the foregoing reasons, we reverse and remand for further proceedings
consistent with this opinion.
REVERSED and REMANDED.
Judges McCULLOUGH and INMAN concur.
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