Presentation on theme: "The Duty to provide Child Support Presented to N.C. child support conference J. David Abernethy PO Box 669 Newton NC 28658 August 22, 2012."— Presentation transcript:
The Duty to provide Child Support Presented to N.C. child support conference J. David Abernethy PO Box 669 Newton NC August 22, 2012
Nature of duty Origin is common law: N.C.G.S. 4-1, Common law declared to be in force. G.S (b) enlarges a mothers responsibilities Duty of support an obligation imposed by law arising from parental status, rather than being a debt See Alamance Co., 315 N.C. 362, 338 S.E.2d 87
Nature of Duty Grandparents 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
Scope of duty Guidelines now cover most cases G.S (c) states general standard: consider childs reasonable needs and parties relative ability to provide support Award reviewed under abuse of discretion standard; Plott, 313 N.C. 63, 326 S.E.2d 863 (1985). Most often reversed when award exceeds parents entire income. Beall, 290 N.C. 669 (1976).
Scope of duty - Necessaries Necessaries traditionally includes food, clothing, and medical care reasonably required for the preservation of health Question 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
Scope of Duty – continuity of childs 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?
Scope of Duty – continuity of childs 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 parents affidavit allocating expenses. Affirmed. Koufman, 330 N.C. 93
Duty 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.
Duty of those other than parents Secondary liability did not attach to a stepfather in the absence in the record of evidence indicating the natural fathers capability to provide support. (Birth certificate falsely stated stepfather was father, without stepfathers knowledge.) Moyer, 122 N.C. App. 723
Duty 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
Problem 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 Marias possibility of winning the Wimbledon singles championship and its large cash prize.
Problem In light of your extensive expertise in the area of child support, prepare during the next ten minutes your presentation on options for legally structuring Marias family status, and the effects of each option on ownership of Marias past and future earnings and her and her parents rights and duties to one another.
Problem - Family Status Options Status quoEmancipation of Maria
Problem – Recovery of past paid support Question: Can Marias parents recover from Marias newly enlarged estate for child support they paid in the past?
Problem – Recovery of past paid support Answer – Past support cant be recovered from Marias estate Remember, support paid isnt a debt. Receipt of support doesnt create a debt. Lee, 245 N.C. 570, 96 S.E.2d 726
Problem: poor parents, wealthy child Now, suppose Mr. and Mrs. Sharapova lose it all their fortunes in a Ponzi scheme and cant find work. Do they have a remedy to apply funds from Marias estate, or Marias current earnings, for Marias current support?
Problem: poor parents, wealthy child Answer – yes, one procedure would be to appoint a guardian for Marias estate Parent is the natural guardian Guardian may apply accruing interest for childs maintenance – Mull, 100 N.C. 46 Parents have right to control child and receive her wages prior to emancipation – Shoaf, 282 N.C. 287
Problem – scope of duty Are Marias 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?
Commencement of duty The 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.
Termination of duty - Emancipation Emancipation may be complete or partial
Termination of duty - Emancipation Partial emancipation usually means nothing more than the parents relinquishment of the right to the childs 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
Termination of duty - Emancipation Complete emancipation may occur by act of the parent when he surrenders all right to the childs earnings and services, as well as the right to control and custody of the childs 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
Termination of duty - Emancipation Complete emancipation occurs by operation of law upon the childs marriage. Burbage, 263 N.C. 317
Termination of duty - Emancipation Complete emancipation occurs by operation of law when the parent abandons or fails to support the child, only as to the parents rights; the parent is not freed of his parental obligations. Burbage, 263 N.C. 317 (1965).
Termination 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 parents conduct and surrounding circumstances Continued filial piety does not prove non- emancipation. Burbage, 263 N.C. 317
Termination of duty - Emancipation Age of majority within power of the legislature to set G.S (c): Age 18, but in courts 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.)
Termination 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
Termination 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.
Termination of Duty The duty to pay child support is personal, and terminates at the parents death. Denial of Refund, 303 N.C. 102
Extension of Duty A 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
Extension of Duty A consent order that child support payments continue past the age of majority is enforceable by contempt proceedings. White, 289 N.C. 592
Extension of Duty Where 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 parents 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.
Extension of Duty After death of parent A contract to support surviving the parents death to become a charge against his estate must be clearly shown. Denial of Refund, 303 N.C. 102