Ugochukwu v. Ugochukwu

627 S.E.2d 625, 176 N.C. App. 741, 2006 N.C. App. LEXIS 600
CourtCourt of Appeals of North Carolina
DecidedMarch 21, 2006
DocketCOA05-919
StatusPublished
Cited by2 cases

This text of 627 S.E.2d 625 (Ugochukwu v. Ugochukwu) 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
Ugochukwu v. Ugochukwu, 627 S.E.2d 625, 176 N.C. App. 741, 2006 N.C. App. LEXIS 600 (N.C. Ct. App. 2006).

Opinion

CALABRIA, Judge.

Kingsley Chuks Ugochukwu (“plaintiff’) appeals a child support order, requiring payment of all current child support and child support in arrears as a purge for being held in civil contempt for failure to pay child support. We affirm.

Plaintiff and Chioma Ugochukwu (“defendant”) divorced in 1998 in England. At the time of the divorce, plaintiff and defendant were the parents of two minor children, who have resided primarily with *743 defendant since plaintiff and defendant separated. In early 1999 the Coventry County Court in England ordered plaintiff to pay child support to defendant in the sum of 375 pounds per month, per child. Both plaintiff and defendant subsequently relocated to the United States, and plaintiff and defendant agreed that the monthly amount of child support for both children in United States dollars equaled $1,252.50. The English order was registered in Cuyahoga County, Ohio for enforcement purposes.

Plaintiff paid the amount of child support ordered under the English order until September 2002. Plaintiff also paid defendant an additional amount of approximately $2,000.00 each month, which plaintiff claims was advance child support payments. The trial court determined, however, that these payments “were gifts to the [d]e-fendant[] and were not advances on child support.”

Beginning in November 2002 and continuing through entry of the Durham County District Court’s order, plaintiff unilaterally varied his monthly child support payments, for a total arrearage of $10,415.91. At the time of entry of the Durham County District Court’s order, plaintiff was employed as a family physician, earning a monthly gross salary of $10,866.00. Plaintiff’s gross yearly earnings at the time he varied his child support payments were as follows: $122,327.21 for 2004; $40,065.36 for 2003; and $40,114.88 for 2002. Defendant is a university professor who earns a monthly salary of $4,893.12 for nine months each year as well as $3,000.00 for a summer course.

Defendant subsequently filed a notice of registration of a foreign support order and a motion to modify and enforce child support. Based on, inter alia, the aforementioned findings, the trial court concluded that there had been a substantial change of circumstances affecting the welfare of the minor children, increased plaintiff’s required monthly child support payments, held plaintiff in civil contempt, and awarded defendant attorney fees. Plaintiff appeals.

On appeal, plaintiff initially argues that “the trial court erred in failing to apply- English law in determining whether payments to appellant in excess of the amount owed for child support were advance payments of child support.” We note that it is unclear from the record whether the trial court applied English law or North Carolina law in determining whether arrears existed under the English order because the trial court made no finding as to the applicable law. This Court has recognized that substantive questions of law regarding support orders are determined according to the law of *744 the “issuing state.” New Hanover County v. Kilbourne, 157 N.C. App. 239, 247, 578 S.E.2d 610, 616 (2003). The Uniform Interstate Family Support Act (“UIFSA”) defines the “issuing state” as “the state in which a tribunal issues a support order[.]” N.C. Gen. Stat. § 52C-1-101(9) (2005). England is a “state” given that it has enacted laws or procedures for enforcement of support orders that are “substantially similar to [UIFSA], the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Child Support Act.” N.C. Gen. Stat. § 52C-l-101(19)(b) (2005); Foreman v. Foreman, 144 N.C. App. 582, 550 S.E.2d 729 (2001).

North Carolina General Statutes § 8-4 (2005) states:

When any question shall arise as to the law of . . . any foreign country, the court shall take notice of such law in the same manner as if the question arose under the law of this State.

Our Supreme Court has said, under this statute, “[t]he party seeking to have the law of a foreign jurisdiction apply has the burden of bringing such law to the attention of the court.” Leonard v. Johns-Manville Sales Corp., 309 N.C. 91, 95, 305 S.E.2d 528, 531 (1983). Moreover, the North Carolina Rules of Civil Procedure state, in pertinent part,

A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or by other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Chapter 8 of the General Statutes and State law. The court’s determination shall be treated as a ruling on a question of law.

N.C. Gen. Stat. § 1A-1, Rule 44 (2005).

In this case, plaintiff failed to raise either by the pleadings or any other reasonable written notice that an issue regarding foreign law existed. Although plaintiff claims that the foreign order, which was submitted with defendant’s motion to modify, sufficiently raised this issue, we disagree. The mere fact that a foreign order was attached to one of defendant’s motions does not provide the trial court with written notice that there is a conflict between the laws of this state and a foreign jurisdiction. The law of North Carolina and the law of England may have been substantially similar on the issue of arrears, and plaintiff provided no written notice to the contrary. This matter was, therefore, not appropriately raised to the trial court in accord- *745 anee with the North Carolina Rules of Civil Procedure. Accordingly, even if the trial court failed to apply English law in determining whether arrears existed under the order, it did not err in failing to do so given that plaintiff failed to properly raise this issue. Thus, this assignment of error is without merit.

Plaintiff next argues, “the trial court erred in finding that the payments to defendant in excess of the amount for child support constituted gifts[] and not advance payments of child support.” In his argument, plaintiff argues that the trial court was in error under English law by determining that plaintiffs excess payments amount to a gift. We have no basis by which to review this assignment of error given that plaintiff failed to comply with N.C. R. App. P. 28 (d)(l)c (2005) (“the appellant must reproduce as appendixes to the brief... relevant portions of statutes, rules, or regulations, the study of which is required to determine questions presented in the brief’)- Accordingly, we need not address this assignment of error.

Plaintiff further argues that the trial court erred in holding him in civil contempt. Our review of a contempt proceeding “is limited to whether the findings of fact by the trial judge are supported by competent evidence and whether those factual findings are sufficient to support the judgment.” McMiller v. McMiller, 77 N.C. App.

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645 S.E.2d 408 (Court of Appeals of North Carolina, 2007)

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Bluebook (online)
627 S.E.2d 625, 176 N.C. App. 741, 2006 N.C. App. LEXIS 600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ugochukwu-v-ugochukwu-ncctapp-2006.