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Home / Opinion Digests / Domestic Relations / Domestic Relations – Parent & Child – Support – Income – Bonuses – Retroactive Support – Unincorporated Separation Agreement – Attorney’s Fees

Domestic Relations – Parent & Child – Support – Income – Bonuses – Retroactive Support – Unincorporated Separation Agreement – Attorney’s Fees

Hinshaw v. Kuntz (Lawyers Weekly No. 14-07-0612, 16 pp.) (Rick Elmore, J.) Appealed from Mecklenburg County District Court (Paige McThenia, J.) N.C. App.

Holding: Even if the parties’ regular monthly income meets their children’s needs, the N.C. Child Support Guidelines do not permit the trial court to disregard the parties’ bonus income.

We reverse and remand so the trial court can include the parties’ bonus income in its child support calculations. We affirm the trial court’s denial of plaintiff’s motions for retroactive child support and for attorney’s fees.

The plaintiff-mother’s gross annual income is $122,904. Her 2011 bonus was $30,800, and she received a $17,931 bonus after working for nine months in 2010.

The defendant-father’s gross annual income is $211,000. His bonuses for 2009-2011 were $37,500, $114,000, and $114,002.20, respectively.

The trial court found that both parties can continue to expect annual bonuses from their employers.

The plain language of the Guidelines clearly includes bonus income in the definition of “income.” The Guidelines provide instructions for including even irregular or non-recurring bonuses in parents’ incomes; however, the bonus income here was not irregular or non-recurring.

Finally, there is no provision in the Guidelines which instructs the trial court that it may elect to opt out of including bonus income in its calculations based solely on the premise that the reasonable needs and expenses of the children are otherwise satisfied without its inclusion.

Because the Guidelines include bonus income in the definition of income, and because the bonus income was not irregular or non-recurring, the trial court was required to include the bonus income in calculating the parties’ base income and the overall child support award. Its failure to do so constituted an abuse of discretion.

Retroactive Child Support

The child support amount set out in the parties’ unincorporated separation agreement “expired” once the father’s alimony obligation ended, and the parties were to renegotiate the child support amount pursuant to the Guidelines. Although the parties failed to come to an agreement, the father continued to pay the child support amount set out in the agreement, and he even voluntarily increased his payment by $1,000 per month.

If the mother had found $2,750 to be an acceptable support payment, the parties could have operated under the agreement indefinitely. On these facts, the trial court lacked authority to award retroactive child support because the father, at all requisite times, abided by the terms of the valid, unincorporated separation agreement.

Attorney’s Fees

Excluding her bonus income, and after meeting her and the children’s reasonable needs, the mother has a surplus income of $4,405.78. This alone supports the trial court’s determination that the mother had sufficient means to defray the cost of litigation.

Further, the trial court did not find that the father refused to provide adequate support.

The trial court did not abuse its discretion when it denied the mother’s motion for attorney’s fees.

Affirmed in part, reversed and remanded in part.

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