{ "id": 12121345, "name": "TRANSYLVANIA COUNTY DEPARTMENT OF SOCIAL SERVICES O/B/O DONLYN JNE. DOWLING, MOTHER AND MINOR CHILD, Plaintiffs v. JOHN M. CONNOLLY, III, Defendant", "name_abbreviation": "Transylvania County Department of Social Services ex rel. Dowling v. Connolly", "decision_date": "1994-06-07", "docket_number": "No. 9329DC660", "first_page": "34", "last_page": "42", "citations": [ { "type": "official", "cite": "115 N.C. App. 34" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "11 ALR5th 259", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "opinion_index": -1 }, { "cite": "47 ALR3d 1031", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "Ga. Code Ann. \u00a7 19-6-19", "category": "laws:leg_statute", "reporter": "Ga. Code Ann.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": -1 }, { "cite": "263 Ga. 53", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1236733 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ga/263/0053-01" ] }, { "cite": "260 Ga. 227", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1224832 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "228" }, { "page": "924" } ], "opinion_index": 0, "case_paths": [ "/ga/260/0227-01" ] }, { "cite": "314 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "899" }, { "page": "900" } ], "opinion_index": 0 }, { "cite": "252 Ga. 512", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1199326 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "513" }, { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/ga/252/0512-01" ] }, { "cite": "238 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "239 Ga. 466", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1157914 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ga/239/0466-01" ] }, { "cite": "185 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "228 Ga. 277", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1121011 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ga/228/0277-01" ] }, { "cite": "262 Ga. 231", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1232654 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ga/262/0231-01" ] }, { "cite": "261 Ga. 874", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1228942 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "875" }, { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/ga/261/0874-01" ] }, { "cite": "42 U.S.C.A. \u00a7 666", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "pin_cites": [ { "page": "(a)(9)(c)", "parenthetical": "requiring all states to give full faith and credit to child support orders of other states to the extent payments are vested" } ], "opinion_index": 0 }, { "cite": "271 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 345", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521273 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0345-01" ] }, { "cite": "Ga. Code Ann. \u00a7 19-6-19", "category": "laws:leg_statute", "reporter": "Ga. Code Ann.", "weight": 4, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "425 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "439" } ], "opinion_index": 1 }, { "cite": "108 N.C. App. 722", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525502 ], "year": 1993, "pin_cites": [ { "page": "730" } ], "opinion_index": 1, "case_paths": [ "/nc-app/108/0722-01" ] }, { "cite": "231 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "182", "parenthetical": "credit on child support obligation permitted where \"equitable considerations\" exist" }, { "page": "182" } ], "opinion_index": 1 }, { "cite": "32 N.C. App. 76", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548623 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "81", "parenthetical": "credit on child support obligation permitted where \"equitable considerations\" exist" }, { "page": "81" } ], "opinion_index": 1, "case_paths": [ "/nc-app/32/0076-01" ] } ], "analysis": { "cardinality": 779, "char_count": 18453, "ocr_confidence": 0.757, "pagerank": { "raw": 4.16751294121532e-07, "percentile": 0.9120989293198175 }, "sha256": "005c3960b65a1eafef3a746ce44a8ec1244a9aaf36b09e3287b744de4c174242", "simhash": "1:74a7f247e28b9870", "word_count": 3035 }, "last_updated": "2023-07-14T22:58:18.676868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JOHN concurs.", "Judge GREENE concurs in separate opinion." ], "parties": [ "TRANSYLVANIA COUNTY DEPARTMENT OF SOCIAL SERVICES O/B/O DONLYN JNE. DOWLING, MOTHER AND MINOR CHILD, Plaintiffs v. JOHN M. CONNOLLY, III, Defendant" ], "opinions": [ { "text": "JOHNSON, Judge.\nDonlyn Dowling (plaintiff) appeals from an order filed 26 January 1993 in Transylvania County District Court, denying her claim for past due child support and concluding that John M. Connolly, III (defendant) did not owe any sums for arrearage for child support.\nPlaintiff and defendant married on 27 March 1981; a child was born of the marriage on 15 August 1984, and the parties separated on 16 April 1990. An interim order was entered requiring defendant to pay $100.00 per week until entry of the divorce decree. On 3 October 1990, a divorce decree was signed in Douglas County, Georgia, and ordered:\nThe defendant shall pay child support in the amount of $260.00 per week, beginning October 5, 1990. Child support shall continue until the child marries, dies, or becomes otherwise emancipated. This award of child support is based upon an annual income of $80,000.00 and is within the present child support guidelines.\nOn 11 June 1991, plaintiff, a resident of Florida, through the Transylvania County Department of Social Services, instituted this action for past due child support, pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA). North Carolina General Statutes \u00a7 52A-1 to -32 (1992).\nThe record contains a copy of twenty-three checks from Margie Connolly (Mrs. Connolly), defendant\u2019s mother, made payable to the parties\u2019 child. Mrs. Connolly produced other checks showing six payments to various utilities, four payments to Trust Company Bank, five payments to medical providers for the child, and five payments to plaintiff.\nAfter the hearing, the trial court made the following pertinent findings of fact:\n4. . . . that an order was entered in Georgia upon the testimony of the Plaintiff directing the Defendant to pay the stun of $240 per week in child support; . . .\n5. Thereafter the parents of the Defendant, on his behalf, made consistent payments for the support and maintenance of the child; that attached hereto and marked Exhibit A are copies of the checks from September, 1990, until the date of the trial of this action representing payments made to the Plaintiff for the support and maintenance of the minor child.\n10. That while the Plaintiff testified that she received no monies from the Defendant for child support from the date of separation until the date of this trial, the Court finds as a fact that there was [sic] systematic and adequate payments made which were for the use and benefit of the minor child during the entire period.\nThe court concluded \u201c[t]hat adequate child support payments were made from the date of separation until the date of the trial\u201d and that \u201c[djefendant does not owe any sums for arrearage for child support.\u201d Therefore, the court ordered that plaintiff \u201crecover nothing from the Defendant in this cause.\u201d\nThere are two issues raised which are dispositive of this appeal: (1) Whether the trial court may modify a child support order so as to relieve defendant of any obligation to pay accrued arrearages due under the order, and (2) whether the trial court may allow defendant father credit for child support payments made to plaintiff by defendant\u2019s mother on behalf of defendant.\nPlaintiff brought an action pursuant to URESA to collect child support arrearages that have accrued under a Georgia order. This order is entitled to full faith and credit to the extent it represents past due child support payments which are vested. North Carolina General Statutes \u00a7 50-13.10(b) (1987). Thus, this Court is required to enforce that order to the extent the accrued arrearages are not subject to modification by the courts of Georgia. Fleming v. Fleming, 49 N.C. App. 345, 271 S.E.2d 584 (1980); 42 U.S.C.A. \u00a7 666(a)(9)(c) (Cum. Supp. 1994) (requiring all states to give full faith and credit to child support orders of other states to the extent payments are vested).\nUnder Ga. Code Ann. \u00a7 19-6-19(a), an order for child support can only be modified by a petition filed \u201cby either former spouse showing a change in the income and financial status of either former spouse or in the needs of the child[.]\u201d Ga. Code Ann. \u00a7 19-6-19(a) (Cum. Supp. 1993). Because retroactive modification of a child support order would \u201cvitiate the finality of the judgment obtained as to each past due installment,\u201d a trial court may not retroactively modify a child support obligation. Hendrix v. Stone, 261 Ga. 874, 875, 412 S.E.2d 536, 538 (1992). See also Donaldson v. Donaldson, 262 Ga. 231, 416 S.E.2d 514 (1992); Butterworth v. Butterworth, 228 Ga. 277, 185 S.E.2d 59 (1971); accord North Carolina General Statutes \u00a7 50-13.10(a), (b)(1987) (past due child support is vested when it accrues and is subject to divestment only as provided by law and only if written motion is filed and due notice is given to all parties before payment is due).\nIn this case, the child support arrearages due to plaintiff accrued prior to the filing of this action. Because (1) there is no evidence that defendant petitioned for a modification of the child support order pursuant to Ga. Code Ann. \u00a7 19-6-19(a), and (2) an order modifying the child support order can operate only prospectively, the trial court erred in modifying the Georgia support order by forgiving defendant for the accrued arrearages.\nWe must now consider whether the trial court erred in giving defendant credit for support payments made on behalf of defendant by defendant\u2019s mother.\nIf the rendering court has not reduced the arrearage to judgment or determined the amount of the arrearage, the responding court has the authority to determine the amount of the arrearage due under the out-of-state child support order. The responding court should take into account any payments that the obligor can prove were made under the order. The law of the rendering state, however, governs the issue of whether the obligor is entitled to credit for any child support payments allegedly made to the obligee directly and contrary to the provisions of the order requiring payment through the clerk or a child support agency. See John L. Saxon, Enforcement and Modification of Out-of-State Child Support Orders, Special Series No. 13, Institute of Government (1994) (citing Margaret C. Haynes, Interstate Child Support Remedies 104 (Margaret C. Haynes and G. Diane Dodson eds., 1989) ).\nA defense based on the payment of arrearage is different from the issue of the court\u2019s authority to retroactively modify or reduce a vested child support arrearage. Retroactive modification involves the attempt to reduce an undisputed, unpaid arrearage that has accrued under the order; the defense of payment is a challenge to the amount of money that actually remains unpaid under the order considering any credits to be applied. Id.\nWhile the general rule in the state of Georgia is that the prohibition on retroactive application seems to preclude the allowance of \u201ccredit\u201d for payments previously made, the Georgia courts have recognized equitable exceptions to this rule. In Daniel v. Daniel, 239 Ga. 466, 238 S.E.2d 108 (1978), the Court recognized an equitable exception \u201cwhere the father had in fact provided child support and failure to allow him credit for such support would require double payment.\u201d Skinner v. Skinner, 252 Ga. 512, 513, 314 S.E.2d 897, 899 (1984). In Daniel, pursuant to a child custody agreement, the father was to pay $117 per month to the mother during the months of September to May when the mother had custody of the children, but not during the months of June through August when the father had custody of the children. The year after the husband and wife divorced, the children remained with their father from September to February because the mother went back to school. The father made no child support payments during those months and the mother later sued for those child support payments. Rejecting the mother\u2019s contentions, the Court opined:\n[W]hile we recognized [in Daniel] that a father is not entitled to modify the terms of the decree without the sanction of the court, we also recognized that this rule is inequitable in some situations where the father in fact has provided child support. Thus, credit for the father\u2019s voluntary expenditures consented to by the mother as alternatives to child support, or excusal for nonpayment of support obligations where the mother has requested that the father have custody of the children and he supported them during such period, may be appropriate so that the father is not required to pay child support twice when there is no resulting unfairness to the mother or children. In Daniel, however, it was stressed that such an equitable ruling required an \u201cunusual combination of facts[.]\u201d\nSkinner, 252 Ga. at 514, 314 S.E.2d at 900. Footnote one in Skinner makes reference to other cases analogous to Daniel-, these cases \u201calso involved situations where the father had paid child support or its equivalent and the mother was seeking to require the father to pay child support again.\u201d Id. Reach v. Owens, 260 Ga. 227, 228, 391 S.E.2d 922, 924 (1990) clarified this \u201cunusual combination of facts\u201d further:\nThe rule set forth in Daniel applies only in those unusual cases when the parties have agreed to some modification of the divorce decree and equity requires that the noncustodial parent receive a \u201ccredit\u201d for the support the parent should have provided under the decree. Daniel does not support the use of such a \u201ccredit\u201d as a set-off against future child support, alimony, or property division payments.\nSee also Brown v. Dept. of Human Resources, 263 Ga. 53, 428 S.E.2d 81 (1993).\nIn the case sub judice, we first examine the checks made payable to plaintiff. The evidence is undisputed that during the period of time the arrearages accrued, plaintiff willingly consented to and accepted these five child support payment checks totalling $1,150.00 made payable to her by defendant\u2019s mother on defendant\u2019s behalf. We further note defendant\u2019s mother was the sole provider of the child during the summer months plaintiff allowed the child to spend with her. Defendant was also aware of these various support payments his mother was providing on his behalf. We believe this undisputed evidence clearly indicates some agreed or understood modification of the court order by plaintiff mother and defendant. Therefore, as in Daniel, we believe an \u201cunusual combination of facts\u201d exists here and that equity requires that defendant should receive a \u201ccredit\u201d on the arrearages for the $1,150.00 child support payments defendant\u2019s mother paid directly to plaintiff on defendant\u2019s behalf. Certainly, plaintiff should not reap the benefit of the grandmother\u2019s benevolence regarding the $1,150.00 support payments made directly to her, with her consent, and on behalf of defendant, when there is no resulting unfairness to plaintiff or the child.\nLikewise, we believe defendant should also receive credit for the monies his mother paid as support in the form of utility bills. These payments totalling $69.01 were made by defendant\u2019s mother directly to various utility companies on behalf of plaintiff, as indicated in the record.\nThe evidence does not support the trial court\u2019s findings, however, that defendant \u201cthrough his parents furnished adequate support for the minor child, which included ... various cash payments\u201d concluding \u201cthat adequate child support payments were made from the date of separation until the date of the trial of this cause for the use, benefit, and support of the minor child[.]\u201d Defendant should not receive credit for payments defendant\u2019s mother made directly to the child. The evidence is undisputed that these checks were payable directly to the child because, in Mrs. Connolly\u2019s words, \u201c[h]e takes a lot of pride in the checks being made out to him.\u201d Mrs. Connolly also testified that she \u201chad money there for him in the bank that he can write checks for whatever he wants \u2014 needs\u2014clothing and things.\u201d Further, when plaintiff was asked if she was able to use these checks for the child\u2019s benefit, she testified:\nNo I\u2019m not . . . [bjecause those are sent to my son, put in his checking account, and he signed them, he keeps up with them, every penny that he has, every penny. He knows exactly how much interest he gains and the only time that he spends any of that money is when he wants to buy Nintendo games or things of that nature. . . . The money goes for whatever he desires. He will not \u2014 he won\u2019t buy clothes. Most little boys don\u2019t want to spend their money on clothes. And it certainly doesn\u2019t go to his upkeep. None of it has gone to his upkeep at all; none; zero. It goes for whatever he wants. And that does not include clothes or food.\nThe evidence further shows that plaintiff borrowed money from her son\u2019s account which was established by his grandmother, and that she was paying her son back with interest. Because of this evidence concerning the minor child\u2019s control over this money, we find that defendant should not have received credit for these payments made to the minor child.\nWe further find defendant should not have received credit for the payments to Trust Company Bank or to medical providers. The evidence is undisputed that the payments to Trust Company Bank were payments for a car which, although driven by plaintiff, was titled in the names of Mrs. Connolly and defendant. As to credit for payments made to medical providers for the child, these are not permitted because these payments were defendant\u2019s responsibility under the terms of the divorce decree.\nThe trial judge was required to follow Georgia law in determining whether the court order could be modified with respect to the accrued arrearages, and as to whether to allow defendant credits against his past due child support. Thus, we conclude that the trial court erred in (1) modifying the court order by forgiving defendant for the accrued arrearages, and (2) not giving defendant a \u201ccredit\u201d of $1,219.01 on the accrued arrearages.\nThe judgment of the trial court is accordingly reversed. The case is remanded to the trial court for a determination of the arrearages due and payable pursuant to the Georgia order and for the court to give defendant credit of $1,219.01 on said arrearages.\nJudgment is reversed and remanded.\nJudge JOHN concurs.\nJudge GREENE concurs in separate opinion.", "type": "majority", "author": "JOHNSON, Judge." }, { "text": "Judge Greene\nconcurring.\nI write separately only to emphasize the difference between a retroactive modification of a child support order and a credit on a child support obligation. These differences apply not only in Georgia, but also in North Carolina. Retroactive modification of past due child support is prohibited. See N.C.G.S. \u00a7 50-13.10(a), (b) (1987). Credits on a court-ordered child support obligation are permitted if the oblig- or has substantially complied with the child support order. See Homer H. Clark, Jr., The Law of Domestic Relations in the United States \u00a7 17.3, at 748 (2d ed. 1988) [hereinafter Clark] (distinguishing between credits and modifications); Goodson v. Goodson, 32 N.C. App. 76, 81, 231 S.E.2d 178, 182 (1977) (credit on child support obligation permitted where \u201cequitable considerations\u201d exist). For example, payments made by a third party to the custodian may be credited against the support obligation. Clark at 748-49. For another example, when the obligor fails to make payments as ordered but makes payments directly to the child, no credit is allowed unless the custodial parent consents. Clark at 749; see Pieper v. Pieper, 108 N.C. App. 722, 730,425 S.E.2d 435, 439 (1993). Furthermore, as for payments to third parties for expenses incurred on behalf of the child, credit is more likely if the expense is incurred \u201cwith the consent or at the request of the parent with custody.\u201d Goodson, 32 N.C. App. at 81, 231 S.E.2d at 182.", "type": "concurrence", "author": "Judge Greene" } ], "attorneys": [ "Attorney General Michael F. Easley, by Associate Attorney General Sybil Mann, for the State-appellant.", "Ramsey, Hill, Smart, Ramsey & Pratt, P. A., by Michael K. Pratt, for defendant-appellee." ], "corrections": "", "head_matter": "TRANSYLVANIA COUNTY DEPARTMENT OF SOCIAL SERVICES O/B/O DONLYN JNE. DOWLING, MOTHER AND MINOR CHILD, Plaintiffs v. JOHN M. CONNOLLY, III, Defendant\nNo. 9329DC660\n(Filed 7 June 1994)\n1. Divorce and Separation \u00a7 417 (NCI4th)\u2014 arrearages under Georgia child support order \u2014 forgiving arrearages error\nThe trial court erred in modifying a Georgia support order by forgiving defendant for accrued arrearages under that order where there was no evidence that defendant petitioned for a modification of the child support order pursuant to Ga. Code Ann. \u00a7 19-6-19(a), and an order modifying the child support order can operate only prospectively.\nAm Jnr 2d, Divorce and Separation \u00a7\u00a7 1056 et seq.\n2. Divorce and Separation \u00a7\u00a7 389, 393\u2014 child support \u2014 credit for payments made by mother \u2014 no credit for payments to child or medical providers\nThe trial court did not err in giving defendant credit for support payments made on behalf of defendant by defendant\u2019s mother where those payments consisted of checks made payable to plaintiff and payments made directly to various utility companies on behalf of plaintiff, since the evidence indicated that there was some agreed or understood modification of the court order by plaintiff and defendant, and plaintiff should not reap the benefit of the grandmother\u2019s benevolence regarding the support payments made directly to her, with her consent, and on behalf of defendant, when there was no resulting unfairness to plaintiff or the child; however, defendant was not entitled to credit for support payments which consisted of payments made directly to the child by defendant\u2019s mother, since the child had exclusive control over that money and did not use it for clothes or food, nor should defendant receive credit for payments to a bank for a car driven by plaintiff and titled in the names of defendant and his mother or for payments to medical providers, since those payments were defendant\u2019s responsibility under the terms of the divorce decree.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 1018 et seq.\nRight to credit on accrued support payments for time child is in father\u2019s custody or for other voluntary expenditures. 47 ALR3d 1031.\nSpouse\u2019s right to set off debt owed by other spouse against accrued spousal or child support payments. 11 ALR5th 259.\nJudge Greene concurring.\nAppeal by plaintiff from order entered 26 January 1993 by Judge Stephen F. Franks in Transylvania County District Court. Heard in the Court of Appeals 22 March 1994.\nAttorney General Michael F. Easley, by Associate Attorney General Sybil Mann, for the State-appellant.\nRamsey, Hill, Smart, Ramsey & Pratt, P. A., by Michael K. Pratt, for defendant-appellee." }, "file_name": "0034-01", "first_page_order": 66, "last_page_order": 74 }