Barus v. Coffey, January 4, 2022, Court of Appeals of North Carolina, Rule 12(b)(6) and custody modification

The trial court entered a permanent order in 2014 that awarded primary custody to father during the school year and shared custody during the summer months. This order also determined that each party should be financially responsible for the children while in his or her respective care and that the parties should bear equal responsibility for uninsured medical expenses, but that neither would pay support to the other. In 2017, father filed a motion to modify custody, medical coverage, and child support. The trial court heard the 2017 motions in 2018. In May 2019, the court entered its order regarding modification of custody, contempt, and attorney fees. Although the 2019 order in its caption did not mention child support, the body of the order itself indicated that the trial court was also addressing father’s motion to modify child support and in the decree of that order, the trial court denied the motions to modify the 2014 order in any way.

In late summer/early fall 2019, father filed another motion to modify support. This motion was filed on an AOC motion to modify child support form. When father’s 2019 motion to modify child support came on for hearing, mother made an oral motion to dismiss the modification motion, citing Rule 12(b)(6). The trial court granted the motion to dismiss, finding that the motion’s vague references to the parents’ current incomes and circumstances was not sufficient to provide mother with enough notice to properly prepare to defend against the motion. Father appealed from the order dismissing his 2019 motion to modify.

The Court of Appeals reversed the trial court’s dismissal of father’s motion to modify. In reaching this decision, the Court of Appeals noted that the AOC form itself references the relevant child support modification statutes and that father had added allegations to the form motion, specifically that it had been more than three years since the prior support order had been entered, and that there is a difference of 15% or more between the amount of support payable under the order and the amount that would result from a current application of the guidelines. Because of this, father’s motion clearly stated a claim for modification of support.

Rebecca’s Notes

When I read this decision, the Court’s analysis and decision seemed fairly straightforward – so much so that I wondered why this was a published decision. The Court did take the opportunity to address an interesting issue that could potentially come up on remand. They recognized that, mathematically, because the original child support order was set at zero, a 15% change would also be zero, but said that “the Child Support Guidelines do not contemplate foreclosing a parent in this situation from ever seeking a modification of child support based upon changes in the parties’ incomes and changes in the other financial factors addressed by the Guidelines.” So, maybe it’s a published decision because they wanted that issue to be clear to everyone?

February 22, 2022/by FamilyLaw