Domestic Relations – Pataky Analysis – Unincorporated Separation Agreement

The court must recalculate the child support order to correct the double-counting of uninsured medical expenses and to clarify the allocation of therapy costs.

The trial court’s order is affirmed as to the award of attorneys’ fees, reversed as to the calculation of Father’s child support obligation and arrears, and remanded for further proceedings.

Defendant Father appealed from the trial court’s order awarding permanent child support, permanent child custody, and attorneys’ fees to Plaintiff Mother, raising multiple challenges to the court’s determinations.

Father’s first argument concerned the application of the so-called “Pataky presumption,” which recognizes a rebuttable presumption that child support amounts specified in a separation agreement are reasonable. He contended the trial court erred by failing to apply this analysis when setting child support in accordance with the Child Support Guidelines rather than the separation agreement. We disagreed. The unincorporated separation agreement explicitly provided that in the event of a substantial change in circumstances, either party could seek a judicial determination of child support. Because the agreement expressly contemplated judicial modification, the application of the Pataky presumption was unnecessary. The trial court’s consideration of the separation agreement, without presuming its child support provision to be reasonable, comported with the parties’ intent and did not constitute error.

Father next challenged the court’s child support calculations, asserting that uninsured medical expenses were improperly included in both the arrears and prospective calculations. The court’s order assessed Father’s obligation at $2,294 per month, including his pro rata share of the child’s therapy expenses, while also calculating arrears for the same therapy expenses under a Temporary Custody Order. This resulted in double-counting and, as such, an abuse of discretion. The order is therefore reversed and remanded for recalculation of Father’s arrears, with the court clarifying whether Mother is responsible for paying the full therapy costs initially, with Father reimbursing his pro rata share through child support, or whether the expense is to be treated differently.

Finally, Father argued that the award of attorneys’ fees to Mother lacked sufficient findings or evidence showing her inability to pay. We disagreed. The trial court found that Mother’s monthly income was $4,880.22 and that the reasonable value of her attorney’s service to her was at least $75,615.75 (not including the $5,420.25 in attorneys’ fees that Father already owed to Mother pursuant to terms of the Civil Contempt Order). Father was unable to show that the award of attorneys’ fees “was unsupported by reason and could not have been a result of competent inquiry.”

Affirmed in part, reversed in part, and remanded.

Brown v. Miller (Lawyers’ Weekly No. 011-309-25, 19 pp.) (Valerie Zachary, J.) Appealed from Mecklenburg County District Court (J. Rex Marvel, J.) Modern Legal, by Theresa E. Viera, for plaintiff-appellee. Sodoma Law, by Rebecca K. Watts, for defendant-appellant. North Carolina Court of Appeals