Metz v. Metz, filed N.C. Court of Appeals, June 7, 2011 (No. 10-1382). Father was convicted of sexual battery of a minor (one of his own children), and as a consequence, both his licenses as a certified registered nurse anesthetist and registered nurse were suspended, he was placed on the sex offender registry, and he lost his job at which he was earning approximately $18,000 per month. At the time of the child support hearing, he was unemployed, but listed an annual income of $25,000 on his financial affidavit as “speculation” or a “hopeful number.” The trial court imputed income to him in the amount of his previous salary (approximately $18,000 per month) and ordered child support of $2,627 per month. Father appealed. On appeal, Father argued the trial court erred in finding he acted in bad faith, in imputing income to him, and in finding that he is capable of providing child support of $2,627 per month.
The Court of Appeals upheld the trial court’s child support order finding that by listing income in excess of his actual income on his financial affidavit Father waived his objection to imputation of income, that the trial court did not err in finding Father had acted in bad faith because his termination from employment was a foreseeable consequence of his voluntary abuse of his daughter, and that in light of the funds distributed to him in equitable distribution, he had the ability to pay the monthly child support.
Procedural note: The Court of Appeals notes that at the time Father filed his appeal, the appeal was interlocutory because an alimony claim was still pending, but the alimony claim was dismissed subsequent to the filing of the appeal; therefore, the child support order was ripe for appeal.
Orange County ex rel. Clayton v. Hamilton, filed N.C. Court of Appeals, July 5, 2011 (No. 11-113). Father sought a downward modification of child support and a change of venue. At the end of the hearing, the judge asked attorneys for both parties to submit written summaries and proposed orders. The judge denied Father’s motions for modification and for a change of venue and the judge signed Mother’s order. Father appealed, arguing: (1) the trial court’s order was “the fruit of ex parte communication,” (2) the trial court erred in entering the order out of session, (3) the trial court erred in denying his motion to modify, and (4) the trial court erred in denying his motion to change venue.
The Court of Appeals upheld the trial court’s order, finding: (1) a broad reading of Formal Ethics Opinion 13 allows for the submission of proposed orders and the communication in this case was requested by the judge, (2) both Rules 6(c) and 58 of the North Carolina Rules of Civil Procedure allow entry of an order out of session, (3) the trial court did not abuse its discretion in not considering child support Mother receives for other children as a change in circumstances and the trial court did not err in refusing to give Father credit for health insurance premium payments when it cost him nothing to add this child to his policy, and (4) the original child support action was proper in Orange County, and in child support cases, the residence of the parties at the time of the institution of the action is controlling and venue is not affected by a subsequent change of residence of the parties.