Domestic Relations – Parent & Child – Support – School Attendance – Autism Spectrum

Malone v. Hutchinson-Malone (Lawyers Weekly No. 011-114-16, 10 pp.) (Donna Stroud, J.) Appealed from Durham County District Court (Doretta Walker, J.) N.C. App.

Holding: Where the parties’ incorporated separation agreement allowed the plaintiff-father to stop paying child support earlier than G.S. § 50-13.4(c) would allow, the trial court was required to apply the statute rather than the terms of the separation agreement.

We reverse the trial court’s order terminating plaintiff’s child support obligations.

If an agreement to pay child support is more generous than the governing statute as to the amount or duration of support, then the agreement controls. But if the contractual child support amount or duration is less than that required by statute, the child support obligee may still recover support up to the amount and duration required by the statute.

The parties’ child, “Doug,” has autism spectrum disorder. The parents’ separation agreement, which was incorporated into their divorce judgment, allowed the plaintiff-father to stop paying child support when Doug “becomes emancipated … or turns age eighteen, unless he is still a full-time secondary school student in which case it will continue until he is no longer a full-time secondary school student or turns age twenty, whichever first occurs.”

The agreement requires “full-time” school attendance, but G.S. § 50-13.4(c)(2) only requires that the student “attend school on a regular basis” and “make satisfactory academic progress towards graduation….”

The trial court appears to have based its determination to grant plaintiff’s motion to terminate solely on the basis that Doug was not a “full-time” student, based upon the language of the separation agreement, without consideration of the language in § 50-13.4(c)(2).

Since Doug was still being homeschooled, and he actually received a diploma in August of 2013, it would seem that he was likely regularly attending school and making “satisfactory academic progress towards graduation” from January 2013 until August 2013. If that is true, based upon the findings before us, plaintiff’s child support obligation would end as of August 2013, when Doug received his diploma. Because the trial court failed to consider the proper statutory terminating events for the child support obligation, we must remand for the trial court to make additional findings of fact and the necessary conclusions of law.

Furthermore, the statute gives the trial court discretion to terminate child support between the child’s eighteenth birthday and high school graduation. The trial court also failed to consider this statutory grant of discretion. While the trial court may reach the same result on remand, the result must be supported by findings of fact based upon the applicable law.

An additional reason for remand is that we are unable to discern from the record when plaintiff stopped paying child support or the effective date of the trial court’s order.

Because the denial of defendant’s motion for contempt and attorney’s fees was predicated on the erroneous determination that plaintiff was no longer obligated to pay child support because Doug was no longer a full-time student, we also reverse and remand this portion of the trial court’s order.

Reversed and remanded.