Mendez v. Mendez, Court of Appeals of North Carolina, December 21, 2021

Defendant sought a modification of child support, citing the changing needs of the children based on their involvement in new activities, including music lessons, fencing, and acting classes. Defendant also requested an award of attorney’s fees in the amount of $7,300.00. The trial court order a reduction of child support, affirmed the trial courts ruling on extraordinary expenses and did not award defendant attorney fees.

Of course, defendant appealed and the court wrestled with the issues of potential errors of a) not imputing income to plaintiff, b) whether the children’s activities qualified as “extraordinary expenses” c) the lack of attorney’s fees to defendant.

At first, I was optimistic that the COA would weigh in on whether music, acting and the lost art of fencing would be considered adjustments defined as “extraordinary expenses.” However, the vast majority of the opinion focused on the issue of imputation of income based on bad faith.

Plaintiff, the obligor, earned income from two different sources (Department of Defense and Veterans Affairs disability). Plaintiff voluntarily left his employment at the DOD due to various documented medical ailments, and prostate cancer. He then sought to embark on a legal career by enrolling in Columbia School of Law.

The court reinforced that a voluntary reduction in income alone is not sufficient to support bad faith, and that unemployment or underemployment does not mean, standing along, that a party acts in bad faith. COA reasoned that despite the physical pain, plaintiff continued to work and provide support, which appeared to be the fact that swung both the trial court and COA that he was acting in good faith.

The COA declined to specifically address the extraordinary expenses issue, relying on the discretion a trial court has in determining an extraordinary expense. Curious is that the COA opinion indicates no evidence was presented at trial tending to show that any of the children possessed any special needs or significant talent which would require such activities.

The takeaway here, other than we never got a good answer on whether artistic pursuits can qualify as extraordinary expenses in the absence of demonstrated talent – is that a party can voluntarily quit employment – and that act of voluntarily quitting employment can be considered “being unemployed, not by choice,” if the reasons are compelling enough.

January 12, 2022/by FamilyLaw