Miller v. Miller

568 S.E.2d 914, 153 N.C. App. 40, 2002 N.C. App. LEXIS 1070
CourtCourt of Appeals of North Carolina
DecidedSeptember 17, 2002
DocketCOA00-823, COA00-945
StatusPublished
Cited by27 cases

This text of 568 S.E.2d 914 (Miller v. Miller) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. Miller, 568 S.E.2d 914, 153 N.C. App. 40, 2002 N.C. App. LEXIS 1070 (N.C. Ct. App. 2002).

Opinions

CAMPBELL, Judge.

Defendant appeals from two judgments of the trial court. COAOO-823 is an appeal from the 22 December 1999 order for child support and counsel fees. COAOO-945 is an appeal from the 24 April 2000 order finding defendant in contempt for not paying back child support in violation of the 22 December 1999 order. These appeals were consolidated for hearing.

COAOO-823

As this appeal from the 22 December 1999 order is the last in a series of orders setting child custody and child support, it is necessary to set out the procedural history of this case so as to provide a clear understanding of defendant’s argument.

[42]*42Plaintiff and defendant were granted an absolute divorce on 24 April 1995. They had one child born of the marriage, Tyler Ray Miller, born 17 November 1989. On 24 February 1997, Judge Kimberly S. Taylor (“Judge Taylor”) of the Davidson County District Court, issued an order for temporary child support. In her order, Judge Taylor stated: “no order has ever been entered regarding the custody of Tyler Ray Miller and an action is pending in Guilford County wherein defendant claims custody is to [be] determined.” Judge Taylor went on to find the relative earnings of the parties, and using Worksheet A of the North Carolina Child Support Guidelines (which is used when the child is in the sole custody of one parent, here the plaintiff), determined that defendant should pay $124.00 per week in child support. In her order, Judge Taylor specifically stated that “[djefendant shall pay $124.00 per week to the Plaintiff for the support and maintenance of Tyler Ray Miller as temporary child support until the custody of said child is determined in Guilford County.” The action for child custody and child support that was pending in Guilford County was transferred to Davidson County, where, by agreement of the parties, it was then scheduled for court ordered mediation with R.B. Smith as the mediator.

The mediation conference was held on 7 July 1998. The mediator’s report indicated that the parties had reached an agreement on all issues, and that a consent judgment was to be filed in the matter. The agreement reached by the parties during the mediation was embodied in a document entitled “Memorandum of Judgment/Order,” also dated 7 July 1998, and set out the terms of custody agreement, granting each party joint custody and setting the schedule for when Tyler would be with each parent. In addition, there was a provision in paragraph 1, sub-paragraph (8) of the agreement which provided that the parties agreed that: “Child support to be calculated pursuant to child support guidelines.” The agreement contained the following relevant stipulations, as set forth in paragraph 3 of AOC Form 220:

(a) With the signing of this Memorandum by the presiding judge, this Memorandum shall become a judgment/order of the court and shall be deemed entered pursuant to Rule 58 of the North Carolina Rules of Civil Procedure on the date filed with the Clerk;
(b) the provisions of this Memorandum are fair and reasonable and each party has had ample opportunity to obtain legal advice concerning the legal effect and terms of this Memorandum;
[43]*43(c) this Memorandum is enforceable by the contempt powers of the court should any party not comply with its terms; [and]
(f) signatures of the parties on the formal judgment/order are not necessary [.]

This agreement was signed by both plaintiff and defendant and their respective counsel. Both parties then acknowledged that they had read the agreement and stipulations, that they entered into the agreement voluntarily, and that they understood the legal effect of this agreement. The agreement was then signed by Judge Jack E. Klass (“Judge Klass”) of the Davidson County District Court, and was filed on 17 July 1998.

Plaintiffs attorney subsequently drew up a proposed, formal consent order incorporating the custody provisions agreed to in the mediation. The issue of child support payments was left open as information regarding defendant’s earnings was needed to complete the calculations. The proposed order and a request for defendant’s financial information were mailed to defendant’s attorney on or about 31 July 1998. There is nothing in the record to indicate that plaintiff’s attorney received a response to the proposed order or to his request for defendant’s financial information.

Plaintiff’s attorney then issued a subpoena to defendant’s employer to obtain defendant’s wage information. After receiving this information, plaintiff’s attorney drew up a revised formal consent order which included the calculations for child support pursuant to the child support guidelines. According to these calculations, defendant’s child support payment was to be $170.00 per week.

Finally, after receiving no response to the revised order, plaintiff’s attorney presented the revised order to the court with a request that the judge sign the order based on the Memorandum of Judgment/Order which had been filed 17 July 1998. On 10 September 1998, Judge James M. Honeycutt (“Judge Honeycutt”) signed the revised consent order, but in response to a request from counsel for defendant, plaintiff’s attorney delayed filing the revised agreement until defendant’s counsel had an opportunity to review it. On 25 September 1998, having heard nothing further from defendant’s counsel, plaintiff’s attorney filed the revised order.

[44]*44On 9 October 1998, defendant filed a motion to have the revised consent order set aside since the language of the order recited “and it appearing to the court from the signatures of the parties and their respective counsel subscribed below that the parties have reached an agreement at mediation on the matters [in] controversy and, with the consent of the parties,” and that neither defendant nor his attorney had consented to the entry or filing of the order. Judge Honeycutt granted this motion with regard to the child support provisions in the order, but refused to set aside the provisions for child custody. Defendant then gave notice of appeal to this Court regarding the order, however, we held the appeal was interlocutory.

The final judgment regarding these issues, and the order from which defendant now appeals, was issued on 22 December 1999, by Judge Mark S. Culler (“Judge Culler”). Judge Culler held a hearing on the matter, wherein plaintiff testified and presented evidence of the parties’ earnings, plaintiff’s expenses, and the child’s reasonable expenses (including medical and dental insurance).

After recounting the history of these proceedings in his order, Judge Culler made findings regarding the earnings and expenses of the parties. He also found that neither party had filed a motion to modify child support, and that the plaintiff was “still pursuing calculation of the child support based on the Child Support Guidelines effective as of the memorandum of judgment.” In addition, Judge Culler found that defendant was continuing to make payments of $124.00 per week as required by the temporary child support order issued by Judge Taylor.

In his conclusions of law, Judge Culler stated that plaintiff was entitled to child support as calculated by the guidelines, and ordered defendant to pay $162.00 per week in child support.

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Cite This Page — Counsel Stack

Bluebook (online)
568 S.E.2d 914, 153 N.C. App. 40, 2002 N.C. App. LEXIS 1070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-miller-ncctapp-2002.