Statute Interpretation


#1

Child support cannot be modified retroactively, which means the court could order you to pay child support from mid-2003 through December 2005, as long as the order was in effect you were obligated to pay on it. It can be modified retroactively, but only to the date you filed the motion to modify child support. This applies even though the children were living with you. If you are found in contempt of court, you could face many different consequences including being ordered to pay the money and facing time in jail. Given the circumstances I doubt the judge would order you to spend time in jail. Your situation is legally complex and you should consult with an attorney as soon as possible.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

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Charlotte, NC 28262
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Chapel Hill, NC 27514
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The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#2

My husband and his ex were separated in 1998 and divorced in 1999. The custody agreement for their 2 children (her-physical custody, him-visitation, joint legal) and child support order were incorporated into the divorce decree. Child support was paid by us promptly until mid-2003 when children were sent to live with us by ex and her live-in lover with oral agreement of change and no child support to be paid by ex. This was a “test” year. Children were 11 and 9-1/2 at the time. No modification was filed because my husband and I didn’t want to put children through the trauma (ex is mentally disturbed and would have dragged children through the court - she would have insisted on cutting the baby in half in story of Solomon). Ex “stole” children back against their will in late 2004, but returned them voluntarily 5 months later after my husband agreed to no child support for another year. We finally filed papers for custody and child support in December 2005 when children were 13-1/2 and 12. We are still awaiting a court hearing on child support (my husband was awarded custody in April 2007, however, venue was changed to the current county we live in for child support to be heard). Of course, in order to delay child support, she has recently filed to obtain full custody and demanding psych evals on all even though children don’t want to live with her…but I digress here. In any event, the children have lived with us for 4-1/2 years less 5 months of a hostage situation. She has taken the position (and asked the question on this forum while not disclosing that there had been a substantial change in circumstances)that she is entitled to child support from mid-2003 until December 2005 when the actual Request for Modication was filed by my husband’s attorney. NCGS 50.13-10(d)(3), states that (d)"For purposes of this section, a child support payment or the relevant portion thereof, is not past due, and no arrearage accrues…(3)“During any period when the child is living with the supporting party pursuant to a valid court order or to an express or implied written or oral agreement transferring primary custody to the supporting party”. My husband and I believe that means that we are not obligated to child support to her during the time that the children resided with us (and yes, they attended school here, etc - she has had approximately 80 days of visitation a year at her choice) although we recognize that we may be obligated for the 5 months of the hostage situation. Are we correct in our interpretation of the statute? The only reason we didn’t file any papers prior to December 2005 was due to concern for the children and our expectation that she would involve them in the court case (which she is predictably now doing). And, one other question…our April 2007 hearing ordered visitation for her and she set the landspeed record for violating it by returning the children late on the next 3 visitations (not accidentally, but because she doesn’t believe the laws and rules apply to her). What exactly happens to a parent if they are found in contempt of a Court Order subsequent to the filing of a Show Cause? Thanks!