IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-2
No. COA20-823
Filed 4 January 2022
Burke County, No. 11 CVD 1211
TIMOTHY BRYAN BARUS, Plaintiff,
v.
LESLIE KILLIAN COFFEY, Defendant,
v.
RAMONA BARUS, Intervenor.
Appeal by plaintiff from order entered 29 May 2020 by Judge Robert A.
Mullinax, Jr. in District Court, Burke County. Heard in the Court of Appeals 8 June
2021.
Law Office of Jared T. Amos, PLLC, by Jared T. Amos, for plaintiff-appellant.
J. Steven Brackett Law Office, by J. Steven Brackett, for defendant-appellee.
STROUD, Chief Judge. ¶1 Plaintiff appeals an order dismissing his motion for modification of child
support based upon North Carolina General Statute § 1A-1, Rule 12(b)(6). Taking
the allegations of the motion as true, as required upon review of a motion to dismiss,
Father’s motion for modification states a claim upon which relief can be granted, so
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2022-NCCOA-2
Opinion of the Court
we reverse and remand.
I. Background
¶2 Plaintiff-father and defendant-mother were married in 1998, had two children,
and divorced in 2011-2012.1 In 2014, a permanent custody order was entered with
the parties sharing “joint care, custody, and control[,]” awarding “primary placement”
to Father during the school year and joint placement during summer months (“2014
Permanent Order”).2 Under the 2014 Permanent Order, neither party paid child
support. ¶3 On 4 April 2017, Father filed a verified motion requesting a modification of
custody, medical coverage, and child support (“2017 Motion”). On 5 July 2017,
Mother responded to Father’s 2017 Motion and requested a change to the “exchange
schedule.” Other orders and documents were filed regarding issues beyond the scope
of this appeal, but a hearing was set for the 2017 Motion. The 2017 Motion hearing
was continued many times and was ultimately held on 25 July 2018, 10 September
2018, 12 September 2018, 11 October 2018, and 29 October 2018. Based on these
hearing dates the trial court entered an order on 7 May 2019 entitled, “ORDER FOR
MODIFICATION OF CUSTODY, CONTEMPT, and ATTORNEY FEES” (“May 2019
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Opinion of the Court
Order”). While the title of the order does not mention medical coverage or support,
the first paragraph of the order notes it is addressing Father’s “request to establish
child support and modify the Order as it relates to health insurance.” ¶4 In the May 2019 Order, the trial court denied both parties’ motions to modify
the 2014 Permanent Order in any way and left it in “full force and effect.” The May
2019 Order does not include any findings or conclusions of law regarding the motion
for medical coverage or child support, nor are these issues mentioned in the decree
beyond noting the 2014 Permanent Order would “remain in full force and effect.” ¶5 Thereafter, the trial court entered another order on 11 October 2019 on
Father’s 2017 Motion; the order is entitled “ORDER ON MODIFICATION OF CHILD
SUPPORT AND MEDICAL COVERAGE” (“October 2019 Order”). The trial court
notes the hearing date for the modification of child support and medical coverage was
7 May 2019, the same date as entry of the May 2019 Order leaving the 2014
Permanent Order in effect.3 The trial court denied Father’s motion to modify medical
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2022-NCCOA-2
Opinion of the Court
insurance coverage and child support in the October 2019 Order. The October 2019
Order was not appealed. Because we do not have a transcript from the 2018 hearings
or the court date in May 2019 when the order was entered, we cannot determine if
the parties knew the trial court planned to issue another order based upon the 2018
hearings after entry of the May 2019 Order. The May 2019 Order makes no mention
of a further determination or order and explicitly notes it is considering child support
and medical coverage, yet the May 2019 Order ultimately made no findings or
conclusions of law addressing the 2017 Motion as to child support or medical
coverage. ¶6 Almost four months after the trial court entered the May 2019 Order, and a bit
more than one month before the October 2019 Order was entered, Father filed
another motion to modify child support on 30 August 2019 (“2019 Motion”). The 2019
Motion is the subject of this appeal. On 23 January 2020, the trial court held a
hearing on Father’s 2019 Motion; at that hearing Mother’s counsel made an oral
“motion to dismiss [Father’s] Motion to Modify upon its failure to state a claim upon
which relief could be granted.” ¶7 By order entered 29 May 2020, the trial court found the 2019 Motion “vaguely
references ‘the parents’ current incomes and circumstances[,]’” and thus “the
[Father’s] minimal allegations set forth in his [2019] Motion fail to provide [Mother]
sufficient notice to allow [Mother] to prepare an appropriate defense to [Father’s]
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Opinion of the Court
[2019 M]otion” (“2020 Order”). The trial court concluded, “[t]he [Father’s] Motion
fails to state a claim upon which relief can be granted.” The trial court entered an
order granting Mother’s “Motion to Dismiss pursuant to Rule 12b(6)” and dismissing
Father’s 2019 Motion. Father appeals only the 2020 Order.
II. Motion to Dismiss
¶8 Father contends the trial court erred in granting Mother’s motion to dismiss
his motion to modify child support under Rule 12(b)(6) for failure to state a claim
upon which relief can be granted.
A. Standard of Review
¶9 We addressed a similar issue in Stern v. Stern, where the father filed a motion
for modification of custody, and the mother moved to dismiss his motion. Stern v.
Stern, 264 N.C. App. 585, 586–87, 826 S.E.2d 490, 492 (2019). The trial court did not
state specific grounds for dismissal in Stern, but this Court ultimately addressed the
issue as a motion to dismiss under North Carolina Rule of Civil Procedure 12(b)(6),
the same basis as was used in this case:
This Court has stated that dismissal of a motion to modify child support when only the allegations in the motion and the court file are considered by the trial court is a summary procedure similar to judgment on the pleadings. A trial court’s ruling on a motion for judgment on the pleadings is subject to de novo review on appeal. The trial court is required to view the facts and permissible inferences in the light most favorable to the nonmoving party. All well
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2022-NCCOA-2
Opinion of the Court
pleaded factual allegations in the nonmoving party’s pleadings are taken as true and all contravening assertions in the movant’s pleadings are taken as false. All allegations in the nonmovant’s pleadings, except conclusions of law, legally impossible facts, and matters not admissible in evidence at the trial, are deemed admitted by the movant for purposes of the motion. .... . . . But whether considered as a motion for judgment on the pleadings or as a motion to dismiss under Rule 12(b)(6), our standard of review is the same: we review the ruling de novo and we consider Father’s allegations in the motion to modify as true and determine whether the allegations are sufficient to state a claim upon which relief may be granted under some legal theory.
Id. at 588–89, 826 S.E.2d at 493–94 (citations, quotation marks, and brackets
omitted).
B. Substantial Change in Circumstances
¶ 10 Under North Carolina’s Child Support Guidelines, a child support order is
subject to modification based on a substantial change of circumstances if a motion to
modify is filed at least three years after entry of the prior order and there is a
difference of 15% or more in the amount of child support currently payable based
upon application of the Guidelines:
N.C. Gen. Stat. § 50–13.7(a)(2007) authorizes a North Carolina court to modify or vacate an order of a North Carolina court providing for the support of a minor child at any time upon motion in the cause by an interested party and showing of changed circumstances. Modification
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Opinion of the Court
of an order requires a two-step process. First, a court must determine whether there has been a substantial change in circumstances since the date the existing child support order was entered. The 2006 Guidelines provide: In a proceeding to modify the amount of child support payable under a child support order that was entered at least three years before the pending motion to modify was filed, a difference of 15% or more between the amount of child support payable under the existing order and the amount of child support resulting from application of the guidelines based on the parents’ current incomes and circumstances shall be presumed to constitute substantial change of circumstances warranting modification of the existing child support order. When the moving party has presented evidence that satisfies the requirements of the fifteen percent presumption, they do not need to show a change of circumstances by other means. The Court’s determination of whether changed circumstances exist is a conclusion of law. Upon finding a substantial change in circumstances, the second step is for the court to enter a new child support order that modifies and supersedes the existing child support order. Once a substantial change in circumstances has been shown by the party seeking modification, the trial court then proceeds to follow the Guidelines and to compute the appropriate amount of child support.
Head v. Mosier, 197 N.C. App. 328, 333–34, 677 S.E.2d 191, 195–96 (2009) (citations, quotation marks, and brackets omitted).4 4 While North Carolina General Statute §§ 50-13.4, -13.7 and the Child Support Guidelines
have since been amended, the amendments do not change our analysis on appeal. See generally N.C. Gen. Stat. §§ 50-13.4, -13.7; 2020 Child Support Guidelines.
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Opinion of the Court ¶ 11 North Carolina’s 2020 Child Support Guidelines (“Guidelines”) provide that a
substantial change in circumstances is presumed where a child support order “was
entered at least three years before the pending motion to modify was filed” and there
is “a difference of 15% or more between the amount of child support payable under
the existing order and the amount of child support resulting from application of the
guidelines based on the parents’ current incomes”:
In a proceeding to modify the amount of child support payable under a child support order that was entered at least three years before the pending motion to modify was filed, a difference of 15% or more between the amount of child support payable under the existing order and the amount of child support resulting from application of the guidelines based on the parents’ current incomes and circumstances shall be presumed to constitute a substantial change of circumstances warranting modification of the existing child support order.
C. Father’s Motion to Modify Child Support
¶ 12 Here, the specific basis for granting Mother’s 12(b)(6) motion to dismiss was
Father’s 2019 “Motion fails to state a claim upon which relief can be granted”
specifically because the “minimal allegations set forth in his Motion fail to provide
[Mother] sufficient notice[.]” But Father filed his motion for modification on an AOC
form and made factual allegations to support his motion. ¶ 13 Father used AOC-CV-600, Rev. 3/03 entitled “MOTION AND NOTICE OF
HEARING FOR MODIFICATION OF CHILD SUPPORT ORDER” as based upon
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Opinion of the Court
North Carolina General Statutes §§ 50-13.7 and -13.10. The entirety of the form is
filled out including the appropriate county, court file number, and Father’s and
Mother’s full names and addresses. The form provides that Father “moves the Court
modify the Order for Child Support now in effect in this action[.]” The form then
notes specifically that Father wants to modify the 25 August 2014 order in effect. The
form then states, “Since the current Order for Child Support was entered,
circumstances have changed as follows” and Father added the following allegations:
More than three years have elapsed since the entry of the prior order and there is a difference of 15% or more between the amount of child support payable under the existing order and the amount of child support resulting from application of the guidelines based on the parents’ current incomes and circumstances.
¶ 14 Father then requested that the Order for Child Support be modified by
increasing child support and added that he was requesting “Increased/establish
support from the Defendant to the Plaintiff based upon N.C. Support guidelines.” The
form is signed by Father’s attorney and dated. The notice of hearing portion is also
filled out to give Mother notice of a hearing on 3 October 2019 at 9:00am. ¶ 15 Father’s motion plainly contains the allegations required to state a claim for
modification of child support based upon the presumption of substantial change of
circumstances according to the Child Support Guidelines. See generally Head, 197
N.C. App. at 333–34, 677 S.E.2d at 195–96. Father alleged the order he is attempting
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2022-NCCOA-2
Opinion of the Court
to modify was entered in 2014 and there has been a change since that time of 15% or
more in the amount of child support payable based upon application of the Guidelines.
Father’s allegations need not be any more specific under the Guidelines or the
statutes upon which the AOC form he used was based. See generally N.C. Gen. Stat.
§§ 50-13.7, -13.10; 2020 North Carolina Child Support Guidelines. ¶ 16 Because this issue comes on appeal from dismissal based on Rule 12(b)(6), we
cannot address the issue of whether there has actually been a substantial change of
circumstances justifying modification of child support; the only question is whether
Father stated a claim upon which relief may be granted. “The function of a motion to
dismiss is to test the law of a claim, not the facts which support it.” White v. White,
296 N.C. 661, 667, 252 S.E.2d 698, 702 (1979) (citation and quotation marks omitted).
We must take all Father’s allegations as true, Stern, 264 N.C. App. at 588, 826 S.E.2d
at 493, and the motion makes all the allegations required to state a claim for a
modification of child support under North Carolina General Statutes §§ 50-13.7 and
-13.10 and the Child Support Guidelines. See generally N.C. Gen. Stat. §§ 50-13.7, -
13.10; 2020 Guidelines. ¶ 17 The motion’s reference to “the parties’ current incomes and circumstances” is
not “vague” in the context of the AOC form for a motion to modify child support, the
cited statutes on the form, and the Guidelines. It is perfectly clear that Father is
requesting an increase of child support, to be paid to him by Mother, calculated based
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2022-NCCOA-2
Opinion of the Court
upon the Guidelines and the current incomes and other relevant financial
circumstances of the parties. There is no requirement for Father’s motion to allege
the actual incomes of the parties or any other detailed financial information. It is
also clear that Father claims he is entitled to a modification of child support based
upon the presumption created by the Guidelines because it had been three years since
entry of the last order and the alleged 15% difference between child support under
the 2014 Permanent Order -- which was zero -- and a calculation of child support
based upon the parties’ current incomes and circumstances. Although we recognize
the mathematical fact that 15% of zero is still zero, 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. Even where neither parent
pays child support to the other because of the custodial schedule and the numbers
used in the original calculation of child support, as was apparently the situation for
these parties in 2014, it is still possible to do a Guideline calculation of each parent’s
child support obligations based upon current circumstances to determine if Mother
would now owe child support to Father. Father contends that calculation would
result in a change in the child support obligations of each party and that Mother
would owe child support to him. ¶ 18 Considering the confusion regarding which issues were addressed by the May
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Opinion of the Court
2019 and October 2019 orders, we also note that as part of the rationale for granting
Mother’s motion to dismiss, the trial court did not find or conclude that the court had
already addressed the issue of child support in the May 2019 Order. If the most
recent child support order was the May 2019 Order instead of the 2014 Order, three
years would not have passed since entry of the prior child support order when Father
filed his motion to modify child support on 30 August 2019, and the time period for a
presumption under the Guidelines would not apply. See generally Head, 197 N.C.
App. at 333–34, 677 S.E.2d at 195–96. And the October 2019 Order was entered after
Father filed the motion to modify child support, but it did not address the August
2019 motion to modify. As noted above, we cannot determine if Father had reason to
know in August 2019 that the trial court intended to enter another order based upon
the 2018 hearings, in addition to the May 2019 Order. The May 2019 Order purports
to address all the issues presented and does not give any indication that a further
order would be entered. We recognize, given the convoluted procedural history of this
case and the many hearings on different motions, it is possible the trial court had
considered the issue of child support again since 2014, but the later orders in our
record do not specifically address the issue of child support, and we must base our
ruling on those orders. ¶ 19 Again, we express no opinion on whether Father will be entitled to a
modification of child support on remand, as that will depend upon the parties’ actual
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Opinion of the Court
incomes and relevant expenses under the Child Support Guidelines. We simply hold
that Father’s motion for a modification of child support was set out in adequate detail
to give Mother notice of his claim as he made all the factual allegations required by
the AOC form under North Carolina General Statutes §§ 50-13.7 and -13.10 and the
Child Support Guidelines. Father’s motion was on the AOC form specifically
intended for motions to modify child support. Since Father’s motion stated a claim
for modification of child support, the trial court erred by dismissing the motion for
failure to state a claim under Rule 12(b)(6).
III. Conclusion
¶ 20 We reverse the order dismissing Father’s motion to modify child support based
upon Rule 12(b)(6) and remand for further proceedings.
REVERSED AND REMANDED.
Judges COLLINS and WOOD concur.
Footnotes
[1] Father’s complaint alleges a divorce date in 2011; Mother’s answer alleges 2012. The exact date of divorce is not relevant to this appeal.
[2] The order also addresses the intervenor who is not relevant to this appeal.
[3] The 11 October 2019 “ORDER ON MODIFICATION OF CHILD SUPPORT AND MEDICAL COVERAGE” notes specifically that it is regarding “[t]he Plaintiff’s April 4, 2017 motion for modification of medical coverage and motion for modification of support” and “was heard” “on May 7, 2019.” But our record on appeal and the transcripts filed do not show any evidentiary hearing held on 7 May 2019. 7 May 2019 was the date of entry of the “ORDER FOR MODIFICATION OF CUSTODY, CONTEMPT and ATTORNEY FEES” which was based upon the hearing held on multiple dates through 2018. Considering the transcripts and both orders, it appears that both orders were based upon the evidence presented at the series of hearing dates in 2018. The trial court entered two separate orders based upon the 2018 hearing dates, the May 2019 Order and the October 2019 Order.