                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA14-1400

                                    Filed: 5 April 2016

Durham County, No. 06CVD2127

PATRICK MALONE, Plaintiff,

               v.

LEIGH HUTCHINSON–MALONE, Defendant.


        Appeal by defendant from order entered 26 June 2014 by Judge Doretta L.

Walker in District Court, Durham County. Heard in the Court of Appeals 21 May

2015.


        No brief filed, for plaintiff–appellee.

        Leigh A. Hutchinson–Malone, pro se, defendant–appellant.


        STROUD, Judge.


        Defendant appeals from an order terminating plaintiff’s child support

obligations and denying her motion for contempt and attorney’s fees. Because the

trial court terminated plaintiff’s child support obligation based solely upon the terms

of the parties’ incorporated agreement, which was less generous than North Carolina

General Statute § 50-13.4 as to the terminating events for the child support

obligation, we must reverse and remand to the trial court for entry of a new order

based upon North Carolina General Statute § 50-13.4.
                               MALONE V. HUTCHINSON–MALONE

                                         Opinion of the Court



                                        I.      Background

      The parties were married on 6 June 1993, separated on or about 15 November

1999, and divorced on 22 December 2006. One child, Doug,1 was born to the parties

during the course of their marriage on 15 July 1994. On 22 March 2013, plaintiff

filed a motion seeking to terminate his obligation to pay child support, which was

established by the parties’ separation agreement as incorporated into their divorce

judgment. The separation agreement acknowledged “that [Doug] has been diagnosed

as having an autism spectrum disorder and is thus a child with special needs who

requires particular care.” The separation agreement then provided for specific child

support payments

                until such time as . . . [Doug] becomes emancipated under
                North Carolina law 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.

In plaintiff’s motion to terminate child support, plaintiff alleged that Doug was no

longer in a home school program or in a secondary school, that Doug turned eighteen

in July 2012, and that “the only way for [Doug] to obtain a North Carolina Diploma

is there [sic] enrollment in a GED or Community College High School Program.”

      On 14 May 2013, defendant responded to plaintiff’s motion to terminate child

support alleging that, contrary to plaintiff’s allegations, Doug was “still making



      1   A pseudonym is used to protect the identity of the parties’ son.

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                                    Opinion of the Court



progress towards a NC high school diploma, not a GED, and [wa]s expected to finish

the requirements for his diploma by the summer of 2013.”             On 14 May 2013,

defendant filed a motion for contempt and attorney’s fees, in which she alleged that

plaintiff failed to pay his child support obligations from February 2013 and that such

failure was “willful[] and without legal justification or excuse.”

      On 26 June 2014, the trial court entered an order in which it made numerous

findings of fact and concluded that Doug “did not attend school full time after

December 2012.” Based upon its findings and conclusions, the trial court granted

plaintiff’s motion to terminate his child support obligation and denied defendant’s

motion for contempt and attorney’s fees. Defendant appeals.

                              II.    Motion to Terminate

      Defendant first contends that “the trial court erred in granting the plaintiff’s

motion to terminate[.]” (Original in all caps.)

             [W]hen the trial court sits without a jury, the standard of
             review on appeal is whether there was competent evidence
             to support the trial court’s findings of fact and whether its
             conclusions of law were proper in light of such facts. While
             findings of fact by the trial court in a non-jury case are
             conclusive on appeal if there is evidence to support those
             findings, conclusions of law are reviewable de novo.

Romulus v. Romulus, 215 N.C. App. 495, 498, 715 S.E.2d 308, 311 (2011) (citations

and quotation marks omitted).

      We must first seek to determine the effective date of the termination of child



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                                        Opinion of the Court



support according the trial court’s order. The order states simply “[t]hat the motion

to terminate child support is granted” but fails to include the date of termination.

Defendant’s own brief concedes that plaintiff paid child support until late February

of 2013, and plaintiff’s motion requested termination effective 1 March 2013, but it

is not clear from the order when exactly plaintiff stopped making child support

payments and for what, if any, remaining months defendant contended plaintiff

should be required to further pay child support.2 The order does find that Doug “did

not attend school full time after December 2012[,]” but also includes a finding that

he “returned to being homeschooled by defendant on January 21st 2013 and received

a high school diploma” on 30 August 2013. Reading the order in its entirety and in

conjunction with the other evidence, it appears that the trial court determined

support should terminate as of January of 2013, although again, even defendant

contends plaintiff made payments after this date, though perhaps the February 2013

payment was a late payment for a prior month. Overall, we are unable to discern

when plaintiff stopped paying child support or the effective date of the trial court’s

order.

               What the evidence does in fact show is a matter the trial
               court is to resolve, and its determination should be stated
               in appropriate and adequate findings of fact. . . .
                      Our decision to remand this case for further

         2
         Even assuming it is uncontroverted that plaintiff ceased paying child support on 28 February
2013, as defendant claims, that does not clarify for which month the final payment was made because
a payment made in February could be support for the month of February or could be, for example, a
payment in February intended to support the child for the month of March.

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                                   Opinion of the Court



                    evidentiary findings is not the result of an
                    obeisance to mere technicality. Effective
                    appellate review of an order entered by a trial
                    court sitting without a jury is largely
                    dependent upon the specificity by which the
                    order’s rationale is articulated. Evidence
                    must support findings; findings must support
                    conclusions; conclusions must support the
                    judgment. Each step of the progression must
                    be taken by the trial judge, in logical
                    sequence; each link in the chain of reasoning
                    must appear in the order itself. Where there
                    is a gap, it cannot be determined on appeal
                    whether the trial court correctly exercised its
                    function to find the facts and apply the law
                    thereto.

Farmers Bank, Pilot Mountain v. Michael T. Brown Distributors, Inc., 307 N.C. 342,

352-53, 298 S.E.2d 357, 363 (1983). Therefore, we reverse and remand for further

findings of fact on this issue. But in addition to this relatively minor detail, we would

still have to reverse and remand due to a legal error in this case.

      North Carolina General Statute § 50-13.4(c) provides, in relevant part, that

child support payments

             shall terminate when the child reaches the age of 18 except:
                    ....
                    (2)   If the child is still in primary or secondary
                          school when the child reaches age 18, support
                          payments shall continue until the child
                          graduates, otherwise ceases to attend school
                          on a regular basis, fails to make satisfactory
                          academic progress towards graduation, or
                          reaches age 20, whichever comes first, unless
                          the court in its discretion orders that
                          payments cease at age 18 or prior to high


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                                       Opinion of the Court



                              school graduation.

N.C. Gen. Stat. § 50-13.4(c)(2) (2013).          Thus, as a general rule, North Carolina

General Statute 50-13.4(c)(2) establishes the minimum duration of the child support

obligation under North Carolina law. See id. A supporting parent may enter into an

enforceable agreement to pay more than would be required under the child support

guidelines or to pay for a longer period of time than required by North Carolina

General Statute § 50-13.4(c)(2), but if the contractual child support amount or

duration is less than required by statute, the child support obligee may still recover

child support up to the amount and duration required under the statute.3                 See, e.g.,

Smith v. Smith, 121 N.C. App. 334, 340, 465 S.E.2d 52, 56 (1996) (“The law of this

State establishes that a parent can assume contractual obligations to his child greater

than the law otherwise imposes.”            (citation and quotation marks omitted)); see

generally Pataky v. Pataky, 160 N.C. App. 289, 585 S.E.2d 404 (2003) (providing an

overview for agreements between the parties and deviation from child support

guidelines), aff'd in part and review improvidently allowed in part per curiam, 359

N.C. 65, 602 S.E.2d 360 (2004). Although the provisions of North Carolina General

Statute § 50-13.4(c)(2) as to time for termination are similar to those of the

agreement, they are not exactly the same. Plaintiff agreed to pay child support


       3  We recognize that a child support order may deviate from the amount required by the child
support guidelines and require payment of either more or less than the guideline amount, but any
deviation must still be based upon appropriate factors and supported by findings of fact. N.C. Gen.
Stat. § 50-13.4(c).

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                          MALONE V. HUTCHINSON–MALONE

                                   Opinion of the Court



             until such time as . . . [Doug] becomes emancipated under
             North Carolina law 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 trial court found “[t]hat the incorporated agreement between the parties

is enforceable by this court and that the agreement goes beyond what the guidelines

provide” because the agreement “was a deviation from the child support guidelines

and took into account the child’s special needs and the family’s circumstances.” The

separation agreement does go “beyond what the guidelines provide” as to the monthly

obligation amounts but as to duration of the obligation, the statute is actually more

generous since it does not require “full-time” school attendance for continued

payments, and thus the statute controls. See N.C. Gen. Stat. § 50-13.4(c)(2); see also

Smith, 121 N.C. App. at 340, 465 S.E.2d at 56.

      The trial court made detailed findings of fact regarding Doug’s school

attendance over many years and course work for 2012 and 2013, and plaintiff does

not challenge most of these findings of fact. The trial court ultimately determined

that the course work after December 2012 was not enough to qualify Doug as a “full-

time” student as required by the separation agreement. But this requirement of “full-

time” attendance is the relevant difference between the terms of the agreement and

the statute, since North Carolina General Statute § 50-13.4(c)(2) does not require “full

time” school attendance of school but instead that the student “attend school on a



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                                          Opinion of the Court



regular basis” and “make satisfactory academic progress towards graduation[.]” N.C.

Gen. Stat. § 50-13.4(c)(2). In other words, pursuant to North Carolina General

Statute § 50-13.4(c)(2), if a student attends school regularly, albeit not on a full-time

basis, and continues to make satisfactory academic progress towards graduation,

child support would continue, unless the trial court were to order “in its discretion . .

. that payments cease at age 18 or prior to high school graduation.” See id.

        Here, 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 North Carolina General Statute § 50-13.4(c)(2).                     The findings of fact

establish that Doug was being homeschooled after December 2012 and that Doug

“received a high school diploma” in August of 2013. 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 2013.4 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



        4 We say that this seems to be true, because in addition to the findings of Doug’s continued
home-schooling and ultimate graduation, the trial court also expressed concerns about the legitimacy
of defendant’s home-schooling efforts. All of these findings are also in the context of education of a
child with “autism spectrum disorder” who had non-traditional education for much of his life. We are
unable to reconcile all of these findings, but the question presented in this appeal is not the quality of
Doug’s education or the validity of his high school diploma.

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                          MALONE V. HUTCHINSON–MALONE

                                   Opinion of the Court



consider the proper statutory terminating events for the child support obligation --

“otherwise cease[ing] to attend school on a regular basis” or “fail[ure] to make

satisfactory academic progress towards graduation,” “whichever comes first” -- we

must remand for the trial court to make additional findings of fact and the necessary

conclusions of law. Id.

      Yet North Carolina General Statute § 50-13.4(c)(2) has additional relevant

provisions, since it also grants the trial court discretion to order that child support

payments “cease at age 18 or prior to high school graduation.” Id. Thus, in addition,

to the statutorily-mandated terminating events discussed above, the trial court may

consider whether in its discretion the child support should cease at age 18 but “prior

to high school graduation” under the particular circumstances presented by this case;

again, this is a discretionary determination vested in the trial court. See id. Because

the trial court also failed to consider the statute which gave it discretion to terminate

or continue the child support obligation at age 18, depending upon the trial court’s

ultimate determination based upon the statute on remand, it may be necessary for

the trial court to also make the discretionary ruling on remand. See generally id. We

reverse and remand for the trial court to consider plaintiff’s statutory obligation to

Doug pursuant to North Carolina General Statute § 50-13.4(c)(2). While the trial

court may ultimately come to the same result, it must be supported by the requisite

findings of fact based upon the applicable law.



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                         MALONE V. HUTCHINSON–MALONE

                                  Opinion of the Court



                  III.   Motion for Contempt and Attorney’s Fees

      Defendant next contends that “the trial court erred in denying the defendant’s

motion for contempt and attorney’s fees[.]” (Original in all caps.) Because the denial

of plaintiff’s motion for contempt and attorney’s fees is predicated on the erroneous

determination that plaintiff was no longer obligated to pay child support as of

December 2012 because Doug was no longer a full-time student, we also reverse and

remand this portion of the trial court’s order. Again, depending upon the termination

date of the child support obligation as determined on remand, the trial court could

reach the same result or would need to make additional findings and conclusions

regarding child support arrears owed, as appropriate.

                                     IV.     Conclusion

      For the foregoing reasons, we reverse and remand for further proceedings

consistent with this opinion.

      REVERSED and REMANDED.

      Judges McCULLOUGH and INMAN concur.




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