Presentation on theme: "The Duty to provide Child Support"— Presentation transcript:
1The Duty to provide Child Support Presented to N.C. child support conferenceJ. David AbernethyPO Box 669Newton NCAugust 22, 2012
2Nature of dutyOrigin is common law: N.C.G.S. 4-1, Common law declared to be in force.G.S (b) enlarges a mother’s responsibilitiesDuty of support an obligation imposed by law arising from parental status, rather than being a debtSee Alamance Co., 315 N.C. 362, 338 S.E.2d 87
3Nature of DutyGrandparents share primary liability for support of a grandchild under G.S (b) if their minor, unemancipated child becomes a parent.Liability still exists even though the grandparent is not in loco parentis with the grandchild.Whitman, 139 N.C. App. 44, affd. 353 N.C. 360
4Scope of duty Guidelines now cover most cases G.S (c) states general standard: consider child’s reasonable needs and parties’ relative ability to provide supportAward reviewed under abuse of discretion standard; Plott, 313 N.C. 63, 326 S.E.2d 863 (1985) . Most often reversed when award exceeds parent’s entire income. Beall, 290 N.C. 669 (1976).
5Scope of duty - Necessaries Necessaries traditionally includes food, clothing, and medical care reasonably required for the preservation of healthQuestion whether necessaries or not is a mixed question of law and fact and is submitted to the jury; classes of necessaries are instructed by the court; actual necessity, and whether reasonable price, is for the jury. - Smith, 19 N.C. 26
6Scope of Duty – continuity of child’s residence with custodial parent Question - If child is living for a substantial part of the year at a boarding school or college paid for by the non-custodial parent, should the amount of support paid to the custodial parent be adjusted, and if so, for what items?
7Scope of Duty – continuity of child’s residence with custodial parent Answer – In the best and most recent case, trial court did not adjust for fixed expenses such as mortgage, insurance, and property taxes, but adjusted other expenses individually without using a uniform percentage; award supported by parent’s affidavit allocating expenses. Affirmed.Koufman, 330 N.C. 93
8Duty of those other than parents Those standing in loco parentis may acquire a duty to support. The duty to support should accompany the right to custody. Price v. Howard, 356 N.C. 68.
9Duty of those other than parents Secondary liability did not attach to a stepfather in the absence in the record of evidence indicating the natural father’s capability to provide support. (Birth certificate falsely stated stepfather was father, without stepfather’s knowledge.) Moyer, 122 N.C. App. 723
10Duty of those other than parents The obligation of a grandfather who signed a bond to remain in full force and effect unless the principal fully carried out the provisions of a child support judgment was not limited by the amount stated in the bond, as the sum stated was intended neither as a penalty nor as liquidated damages. Peeler, 202 N.C. 123
11Problem Fact pattern: How do you solve a problem like Maria? The Sharapova family, who lives in North Carolina, seeks your advice concerning seventeen year-old Maria’s possibility of winning the Wimbledon singles championship and its large cash prize.
12ProblemIn light of your extensive expertise in the area of child support, prepare during the next ten minutes your presentation on options for legally structuring Maria’s family status, and the effects of each option on ownership of Maria’s past and future earnings and her and her parents’ rights and duties to one another.
13Problem - Family Status Options Status quoEmancipation of Maria
14Problem – Recovery of past paid support Question: Can Maria’s parents recover from Maria’s newly enlarged estate for child support they paid in the past?
15Problem – Recovery of past paid support Answer – Past support can’t be recovered from Maria’s estateRemember, support paid isn’t a debt. Receipt of support doesn’t create a debt.Lee, 245 N.C. 570, 96 S.E.2d 726
16Problem: poor parents, wealthy child Now, suppose Mr. and Mrs. Sharapova lose it all their fortunes in a Ponzi scheme and can’t find work. Do they have a remedy to apply funds from Maria’s estate, or Maria’s current earnings, for Maria’s current support?
17Problem: poor parents, wealthy child Answer – yes, one procedure would be to appoint a guardian for Maria’s estateParent is the natural guardianGuardian may apply accruing interest for child’s maintenance – Mull, 100 N.C. 46Parents have right to control child and receive her wages prior to emancipation – Shoaf, 282 N.C. 287
18Problem – scope of dutyAre Maria’s tennis-related expenses necessaries? Who decides whether to incur them? If she eats a bowl of strawberries and cream at Wimbledon, is this part of necessaries or not?
19Commencement of dutyThe duty to support arises when the child is born, rather than from date of receipt of a demand letter, Guilford County, 149 N.C. App. 663, or when a support order is entered, Freeman, 103 N.C. App. 801.
20Termination of duty - Emancipation Emancipation may be complete or partial
21Termination of duty - Emancipation Partial emancipation usually means nothing more than the parent’s relinquishment of the right to the child’s earnings for a certain period or under certain circumstances. The duty of support and the right of control are unaffected. Burbage, 263 N.C. 317
22Termination of duty - Emancipation Complete emancipation may occur by act of the parent when he surrenders all right to the child’s earnings and services, as well as the right to control and custody of the child’s person. By corollary, the parent is relieved of the duty of support unless the child is too young or weak to support itself. Burbage, 263 N.C. 317
23Termination of duty - Emancipation Complete emancipation occurs by operation of law upon the child’s marriage. Burbage, 263 N.C. 317
24Termination of duty - Emancipation Complete emancipation occurs by operation of law when the parent abandons or fails to support the child, only as to the parent’s rights; the parent is not freed of his parental obligations. Burbage, 263 N.C. 317 (1965).
25Termination of duty - Emancipation Emancipation is not presumed; it must be proven by the one asserting it.A formal contract is unnecessary; it may be expressed in writing, orally or implied from the parent’s conduct and surrounding circumstancesContinued filial piety does not prove non-emancipation. Burbage, 263 N.C. 317
26Termination of duty - Emancipation Age of majority within power of the legislature to setG.S (c): Age 18, but in court’s discretion may extend to age 20 or if the child graduates or ceases to attend primary or secondary school on a regular basis. Constitutes complete emancipation by operation of law. Burbage. (COA cases are indulgent towards children struggling in school due to handicaps or poverty in the home.)
27Termination of duty - emancipation A payor may unilaterally terminate support payments only when the child either graduates from high school or attains the age of 20 years. To terminate on the ground that the child is no longer attending school or is failing to make satisfactory progress towards graduation, a payor has an affirmative duty to seek a court order. Leak, 129 N.C. App. 42
28Termination of duty - Emancipation 1979 statutory amendment to G.S removed both the statutory and the common law duties of parents to support their disabled adult children. Yates, 93 N.C. App. 787, affirmed 325 N.C Wells, 227 N.C. 614, had found the existence of such a duty under the common law.
29Termination of DutyThe duty to pay child support is personal, and terminates at the parent’s death. Denial of Refund, 303 N.C. 102
30Extension of DutyA parent can bind himself by contract to support a child past majority, and such a contract is enforceable as any other contract.Church, 261 N.C. 764
31Extension of DutyA consent order that child support payments continue past the age of majority is enforceable by contempt proceedings. White, 289 N.C. 592
32Extension of DutyWhere a separation agreement, supported by consideration, required a parent to pay child support until the death of the child or remarriage of the mother, the parent’s contention that the marriage of the child was legally equivalent to its death could not be sustained. Church, 261 N.C Same result where contract said pay to age 18. Mullen, 277 N.C. 623.
33Extension of Duty After death of parent A contract to support surviving the parent’s death to become a charge against his estate must be clearly shown. Denial of Refund, 303 N.C. 102