Domestic Relations – Parent & Child – Support – Downward Modification – Insufficient Showing – Civil Practice – Draft Orders – Venue 

Orange County ex rel. Clayton v. Hamilton (Lawyers Weekly No. 11-07-0675, 13 pp.) (Linda Stephens, J.) Appealed from Orange County District Court. (Joseph M. Buckner, J.) N.C. App. Click here for the full-text opinion.

Holding: The defendant-father incurred no additional cost in covering his child on his wife’s health insurance policy, which also covered her son from a previous marriage; moreover, the mother was providing coverage for the child on her health insurance policy. The trial court did not err in failing to give the father credit for medical insurance coverage purchased for his child.

We affirm the trial court’s denial of the father’s motion for a downward modification of his child support obligation.

In support of his argument for a downward modification of his child support obligation, the father also cited the mother’s child support payments for her three children from a later marriage as evidence of a substantial change in her income, or “circumstances.” Defendant relied on New Hanover Child Support Enforcement v. Rains, 193 N.C. App. 208, 666 S.E.2d 800 (2008), for the proposition that our Child Support Guidelines do not exclude child support payments from income. However, such reliance is incomplete and misleading.

Far from endorsing the use of child support as income, the court in Rains went so far as to urge the Conference of Chief District Court Judges, which has authority over the guidelines, to consider the route taken in the majority of other states, which have “excluded from income child support received for one child when determining the support obligations for another child.”

The father challenged opposing counsel’s ex parte contact with the trial court, i.e., sending the court a proposed order. Our statutes and case law clearly allow for the common trial court practice of asking parties to prepare orders. Where the trial court asked both parties to prepare proposed orders, and where copies of the plaintiff’s order were provided to defendant via his trial counsel, the trial court did not err when it considered this ex parte communication.

Finally, the original child custody and support action began in Orange County, where the mother then resided with her father. Although she has since moved a number of times and currently resides in Wake County, the trial court was within its discretion to determine that the mother’s permanent mailing address in Orange County remains her legal address. The trial court did not abuse its discretion when it denied defendant’s motion for a change of venue.

Affirmed.