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Sex offender gets no reduction in child support

A father said he couldn’t afford to pay child support because he lost his job after being convicted of sexually abusing his daughter, but that excuse foundered because he should have foreseen that the abuse would lead to his job loss.

The North Carolina Court of Appeals has ruled that Michael Metz, who once made $18,867 a month as a nurse anesthetist, must pay $2,627 per month for support of his four children even though he insists his criminal record makes finding a job extremely difficult.

The court’s ruling upholds Mecklenburg County District Court Judge Jane V. Harper’s order in the child support case, Metz v. Metz (Lawyers Weekly No. 11-07-0562, 14 pp.).

Writing for the court, Chief Judge John C. Martin concluded that Michael Metz acted voluntarily when he sexually abused his daughter and that he should have known his actions would lead to termination of his employment and a reduction in income.

Metz was convicted of sexual battery in 2009 and served 60 days in jail.

“Criminal prosecution, conviction, registration as a sex offender, termination of his employment in the field of nursing, and difficulty finding employment in any other field are clearly foreseeable results of the abuse which the father voluntarily committed, and to argue otherwise approaches absurdity,” Martin wrote in the June 7 opinion.

The court upheld Harper’s order imputing income from Metz’s employment as a nurse anesthetist at Presbyterian Hospital for the purpose of determining the amount of his child support obligation.

Michael Metz had appealed the order, arguing that his loss of employment and subsequent difficulty in finding other employment were not the result of bad faith.

Metz’s lawyer, Richard B. Johnson of Charlotte, said he was surprised by the holding. He said the holding may make it easier in future cases to find that child support obligors have acted in bad faith when they are terminated from their employment and aren’t able to earn as high an income as the one used to determine the child support obligation.

“This is a big step for bad faith,” Johnson said.

The key factual distinction between Metz and other reported cases, Johnson and lawyers Preston Odom and Jonathan Feit – who represented Linda Metz, Michael’s ex-wife – all agreed, was that Metz’s actions outside of work had led to his termination, the revocation of his professional licenses and his alleged difficulty finding new employment.

A key finding by the trial court that the Court of Appeals upheld was that from Michael Metz’s point of view, it should have been reasonably foreseeable that sexually abusing his daughter would lead to his termination from Presbyterian Hospital.

Johnson said the holding may open the door to more cases involving bad faith claims in which behavior outside an obligor’s workplace leads to termination or other circumstances that can cause a loss of or reduction in earning capacity.

Odom said the fact that the conduct occurred outside work was a distinction without a difference.

Johnson said Michael Metz was contemplating a petition for discretionary review to the Supreme Court.

Feit said he wasn’t surprised by the Court of Appeals’ ruling. “Based on previous [appellate] opinions, I think this holding was consistent, and the court got it right.”

While foreseeability is a complicated issue, Feit said, “Nobody can argue with a straight face that the consequences of the defendant’s actions in this case were not foreseeable.”

Feit said he could envision other scenarios in which forseeability would be more of an issue, but those would be cases in which the allegations were not as dramatic, offensive and scandalous as in Metz. Under the facts of Metz, he said, the result was obvious.

Order to pay stands

After his termination from Presbyterian, Metz briefly worked as a pizza deliveryman, earning $6.85 per hour. In the opinion, Martin wrote that after Metz’s conviction, he lost the deliveryman job because of the possibility of his contact with children.

Odom said he wasn’t aware of Metz’s current circumstances, and Johnson would not comment on the case other than to discuss the legal principles involved.

Regardless of Metz’s circumstances, Feit said, “He is under court order to pay [the child support] amount. We expect him to do that.”

If he doesn’t, Feit said, “The remedy is contempt for failing to comply with a court order.”

When a person is found in contempt of a court order, he said, “There are a whole host of things the court can do, from giving a stern talking-to to the person to incarcerating him and anything in between.”

Feit said it was important not to lose sight of the fact that Metz created the situation by sexually abusing his daughter.

“Their four children still need to be fed, housed, clothed and cared-for, and shifting the responsibility for that to their mother, in my opinion, seems more unfair than looking at the fairness issue from his point of view,” Feit said.

Feit said the message Metz sends to child support obligors is that they won’t be able to do something awful outside of work that causes them to lose their jobs and get away with not having to pay child support or pay at a reduced level.

“This is a reminder to family lawyers that there are cases and scenarios in which just because people don’t currently have the income to meet a child support obligation doesn’t mean they are off the hook.”

Opinion Brief

Case name: Metz v. Metz

Court: North Carolina Court of Appeals

Judges: Chief Judge John C. Martin; Judges Rick Elmore and Martha Geer, concurring

Date: June 7, 2011

Plaintiffs’ attorneys: Jonathan D. Feit and Preston O. Odom III and Sarah M. Brady of James McElroy & Diehl (Charlotte)

Defendants’ attorneys: Richard B. Johnson (Charlotte)

Issues: Did the trial court err by imputing income to a defendant-father who was terminated from his employment after being convicted of sexual battery for sexually abusing his daughter, where due to his conviction and registration as a sex offender, he allegedly could not find employment?

Holding: A judge committed no abuse of discretion in setting a divorced sex offender’s child support obligation at $2,627 per month. The defendant-father’s loss of his position as a nurse anesthetist, the forfeiture of his professional licenses, subsequent difficulty in finding other employment and resulting loss in income were voluntary and the result of bad faith on his part.

Opinion digest: See page 12.

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