              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-929

                                Filed: 20 March 2018

Durham County, No. 16 CVD 3299

DURHAM COUNTY, on behalf of TERRANCE ADAMS, Plaintiff,

             v.

ALMA ADAMS, Defendant.


      Appeal by Plaintiff from orders entered 19 April 2017 and 1 May 2017 by Judge

Fred Battaglia in Durham County District Court. Heard in the Court of Appeals 22

February 2018.


      Peterkin Law Firm, PLLC, by Timothy J. Peterkin, for Plaintiff-Appellant.

      Foil Law Offices, by N. Joanne Foil and Britney R. Weaver, for Defendant-
      Appellee.


      HUNTER, JR., Robert N., Judge.


      Terrance Adams (“Plaintiff”) appeals a child support order and an order

awarding attorneys’ fees to Alma Adams (“Defendant”). Plaintiff argues the trial

court erred in dismissing Plaintiff’s complaint for child support because Plaintiff had

a statutory right to seek a child support order. Plaintiff also argues the trial court

erred in awarding Defendant attorneys’ fees because Plaintiff’s child support action

was not frivolous.    We conclude the trial court properly dismissed Plaintiff’s

complaint for child support since Plaintiff and Defendant’s Separation Agreement
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                                    Opinion of the Court



covering child support had been incorporated into the divorce order in a prior ruling

by the trial court, and Plaintiff admitted there was no substantial change in

circumstances.     We also conclude the trial court did not abuse its discretion in

awarding Defendant attorneys’ fees.

                             I. Factual and Procedural Background


         Plaintiff and Defendant were married on 4 June 2005. One minor child was

born of the marriage on 13 April 2009. On or about 8 April 2013, the couple separated.

The parties entered into a Separation and Property Settlement Agreement (“the

Agreement”) on 8 April 2013. This Agreement provides the parties have joint legal

and physical custody of the minor child. The terms of this Agreement provided the

parties split all expenses related to caring for the minor child, including day care and

medical expenses. The Agreement does not otherwise mention child support.

         Plaintiff served Defendant with a summons and complaint for absolute divorce

on 16 April 2014, and the trial court entered judgment on 19 May 2014. On 18 April

2016, the parties entered into a Modified Parenting Agreement.           This modified

agreement states it “is not intended to replace the terms of the Separation Agreement

incorporated as an Order of the Court by Judge James T. Hill on May 19, 2014 in

full.”

         On 12 July 2016, Plaintiff retained the public services of Durham County Child

Support Services in order to establish a child support order against Defendant.


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      Plaintiff’s child support complaint contained several false statements

including: (1) the complaint provided the parties were married on 4 June 2006, when

in fact they were married on 4 June 2005; (2) the complaint lists the parties’ date of

separation as 31 May 2014, when in fact the parties separated on 8 April 2013; (3)

the complaint alleges the minor child had received or was then receiving public

assistance when in fact the minor child has never received public assistance; and (4)

the complaint states Defendant should be ordered to provide medical coverage or

support for the minor child, when in fact Defendant has provided medical insurance

for the minor child since his birth.

      On 26 September 2016, Defendant filed an answer and counterclaim.

Defendant denied Plaintiff’s false statements in the Answer portion and also asserted

counterclaims for child support and specific performance.

      On 22 September 2016 and 27 September 2016, Defendant’s counsel sent two

letters to Mary Drake, the assigned case worker who verified Plaintiff’s complaint, at

Durham County Child Support Enforcement Agency requesting Plaintiff’s 2015 W-2

form. Defendant did not receive a response from either letter. On 7 October 2016,

Defendant’s counsel issued a discovery request to Plaintiff, in care of Attorney

Nathan L. McKinney (who signed the Child Support Complaint), and Defendant

again received no response.




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                                  Opinion of the Court



      On 3 November 2016, Defendant’s counsel spoke with the Assistant County

Attorney. The Assistant County Attorney informed Defendant’s counsel the Durham

County Child Support Enforcement Agency does not respond to discovery or

deposition notices because the County Attorney represents the Child Support

Enforcement Agency and not Plaintiff. Defendant’s Counsel then sent all discovery

requests directly to Plaintiff. Plaintiff did not respond to Defendant’s discovery

requests and Defendant’s counsel elected to depose Plaintiff on 30 November 2016.

      During the deposition, Plaintiff acknowledged he received the discovery

requests, but chose not to provide the information prior to the deposition. Included

in Defendant’s discovery requests were questions relating to Plaintiff’s wife and

Plaintiff’s W-2 forms for the past two years. Plaintiff produced a W-2 form at the

deposition. However, Plaintiff redacted much of the information on the W-2 form.

Plaintiff also refused to answer questions related to the redacted information during

his deposition. Also in his deposition, Plaintiff stated he sought the services of

Durham County Child Support Enforcement Agency to secure child support to assist

him with paying for the minor child’s track-out camps, as well as before and after

school care costs. Plaintiff acknowledged already having a court order reflecting the

cost share responsibility of these expenses.

Additionally, Plaintiff admitted during his deposition there were no substantial

changes in circumstances affecting the needs of the minor child since the entry of the



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court order incorporating the Agreement. Plaintiff moved forward with the child

support suit because the Agreement “was a bad situation for [him], and [he] needed

to get out of it.”

       On 1 December 2016, Defendant filed a Motion for Attorneys’ Fees. In that

motion, Defendant stated:

                      [Counsel for Defendant] has been informed through
               Durham County Assistant Attorney . . . that Plaintiff . . .
               retained the Agency to secure child support to assist him
               with paying for the minor child’s track out camps, and
               before and after school care. The average monthly amount
               paid by Plaintiff . . . for said childcare is $318.00 per month.
               Upon learning of this exact figure, Defendant . . . sent
               Plaintiff . . . a text message informing him that she would
               be sending him a check for half of the childcare costs for
               November and December 2016. Plaintiff . . . sent a text
               message back to Defendant . . . telling her not to send the
               money to him and also not to pay the provider directly. . . .
               Defendant . . . mailed payment to Plaintiff . . . despite his
               stated refusal to accept it.

               ....

                      Plaintiff . . . has necessitated the filing of this action
               for attorney’s fees due to his frivolous suit against
               Defendant and his unwillingness to provide needed
               documentation, and also his stated refusal to accept
               payment from Defendant.
                      Upon information and belief, Plaintiff[’s] wife,
               Kameeleon Johnson, works at Durham County Child
               Support Enforcement and has been a driving factor behind
               this suit and behind [Plaintiff’s] refusal to cooperate. At
               his deposition, Plaintiff . . . refused to answer any questions
               involving his wife, even including stating her name and
               place of employment.



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                                    Opinion of the Court



      After a hearing on 19 January 2017, the trial court entered an order on child

support on 19 April 2017.      In that order the trial court concluded Plaintiff has

“unclean hands in this action,” and Plaintiff’s complaint for child support is a

“frivolous suit.” The trial court dismissed Plaintiff’s complaint for child support with

prejudice.

      In an order entered 1 May 2017, the trial court found “Plaintiff’s Complaint for

Child Support was a frivolous lawsuit without merit which forced the Defendant to

incur substantial attorney’s fees in defense.” The trial court concluded Plaintiff “filed

the frivolous Complaint for Child Support without even reading the Complaint,” and

forced Defendant to “incur substantial attorney’s fees.”       The trial court ordered

Plaintiff to pay “$9,000.00 of Defendant’s attorney’s fees.”

      Plaintiff timely appealed.

                                   II. Standard of Review

      In reviewing a child support order, this Court’s review “is limited to a

determination [of] whether the trial court abused its discretion.” Johnston Cty. ex

rel. Bugge v. Bugge, 218 N.C. App. 438, 440, 722 S.E.2d 512, 514 (2012) (Spicer v.

Spicer, 168 N.C. App. 283, 287, 607 S.E.2d 678, 682 (2005)).

      “The trial court’s decision to impose or not to impose mandatory sanctions

under N.C.G.S. § 1A-1, Rule 11(a) is reviewable de novo as a legal issue.” Turner v.




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                                     Opinion of the Court



Duke Univ., 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989). Under this de novo review

this Court will determine:

               (1) whether the trial court’s conclusions of law support its
               judgment or determination, (2) whether the trial court’s
               conclusions of law are supported by its findings of fact, and
               (3) whether the findings of fact are supported by a
               sufficiency of the evidence. If the appellate court makes
               these three determinations in the affirmative, it must
               uphold the trial court’s decision to impose or deny the
               imposition of mandatory sanctions under N.C.G.S. § 1A-1,
               Rule 11(a).

Brown v. Brown, 112 N.C. App. 614, 617, 436 S.E.2d 404, 406 (1993) (quoting Turner

v. Duke Univ., 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989)).

         “[I]n reviewing the appropriateness of the particular sanction imposed, an

‘abuse of discretion’ standard is proper[.]” Turner at 165, 381 S.E.2d at 714.

                                          III. Analysis

         Plaintiff first argues the trial court denied Plaintiff his statutory right to seek

a child support order when the trial court dismissed Plaintiff’s complaint. At the

outset we note Plaintiff’s brief fails to cite any case law or North Carolina statute in

support of his contention the trial court denied his statutory right to seek a child

support order when the trial court dismissed his complaint. Rather, Plaintiff cites

federal law 42 U.S.C. § 654, which is persuasive authority and not binding on this

Court.




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      The trial court found the parties’ “separation agreement is dually enforceable

through the divorce judgment[.]” Furthermore, the trial court found “that there has

been no substantial change in circumstances affecting the welfare of the child, and

therefore that no - - there should be no changes to the award of what is contained in

the judgment as incorporated in the separation agreement.” We therefore conclude

the trial court did not abuse its discretion in dismissing Plaintiff’s complaint for child

support.

      Plaintiff next argues the trial court “improperly referenced” Plaintiff’s income

because such a fact is “irrelevant and suggests the court was implementing an income

test for access to Child Support Services, when no such requirement exists.” Under

N.C. Gen. Stat. § 50-13.4(c), the trial court properly evaluated Plaintiff’s income to

determine if the amount of support paid for the minor child meets the reasonable

needs of the child. Additionally, our State Supreme Court has stated the trial court

should evaluate the relative ability of the parties to pay support when it makes a

child support order. Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980).

We conclude the trial court did not err in referencing Plaintiff’s income since that

information was relevant to Plaintiff’s claim for child support.

      Plaintiff next challenges the validity of the separation agreement’s

incorporation into the divorce decree. Plaintiff admitted in his brief and in his

deposition he asked for the parties’ separation agreement, which stated the parties



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                                   Opinion of the Court



would equally share child care expenses, to be made a part of the divorce order.

             [W]henever the parties bring their separation agreements
             before the court for the court’s approval, it will no longer be
             treated as a contract between the parties. All separation
             agreements approved by the court as judgments of the
             court will be treated similarly, to-wit, as court ordered
             judgments. These court ordered separation agreements, as
             consent judgments, are modifiable, and enforceable by the
             contempt powers of the court, in the same manner as any
             other judgment in a domestic relations case.

Walters v. Walters, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983). There is no

evidence tending to show the trial court failed to properly incorporate the separation

agreement into the divorce order. This argument is without merit.

      Plaintiff also contends he did not need to show a substantial change in

circumstances in order to modify the child support order because there was not a prior

child support order in place. As discussed supra, we conclude the trial court properly

incorporated the separation agreement into its divorce order. Therefore, a valid child

support order exists. This argument is without merit.

      Finally, Plaintiff contends the trial court improperly awarded Defendant

attorneys’ fees since Plaintiff’s complaint for child support was not frivolous.

      “A claim is frivolous if a proponent can present no rational argument based

upon the evidence or law in support of [it].” Griffith v. N.C. Dep’t of Corr., 196 N.C.

App. 173, 174, 675 S.E.2d 72, 73 (2009). Here, the trial court found as fact Plaintiff’s

complaint was frivolous. The trial court also found numerous errors in the complaint:



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                                    Opinion of the Court



(1) the incorrect date of marriage; (2) the incorrect date of separation; and (3) a false

statement regarding the minor child receiving public assistance in the past or

presently. The trial court also found Plaintiff never saw a copy of the complaint until

the date of his deposition, and the complaint requested Defendant to provide the

minor child’s medical coverage when in fact Defendant has provided medical

insurance for the minor child since birth. The trial court also found Plaintiff failed to

“take action” to correct these errors.

Finally, the trial court found “Defendant’s counsel had to expend considerable time

in investigating Plaintiff’s claims and the false accusations in his complaint,

including    having   to   take    Plaintiff’s   deposition   and   review   considerable

documentation.” Additionally, Plaintiff admitted there was an existing court order

to provide for the support of the minor child when Plaintiff filed his complaint.

      These facts support the trial court’s conclusion Plaintiff’s complaint was

frivolous.

      The trial court evaluated the fees Defendant incurred in having to defend

against Plaintiff’s frivolous suit. Counsel for Defendant informed the trial court her

legal fees totaled $17,013.85. In its order, the trial court determined Defendant’s

counsel’s hourly rate was reasonable “for the area given for her level of experience

and expertise.” The trial court did not require Plaintiff to pay the total amount

incurred, but ordered Plaintiff to pay $9,000.00. We conclude the trial court therefore



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reasonably and properly considered the evidence of Defendant’s fees in calculating

Defendant’s award.

      Plaintiff cannot show the trial court abused its discretion in awarding

Defendant attorneys’ fees in this case.

      AFFIRMED.

      Judges DIETZ and ZACHARY concur.




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