August 2022 | No. COA 21-436 (N.C. Ct. App. 2022)
Berens v. Berens (North Carolina 2022)
The prohibition again retroactive modifications of support only applies to past due support. This divorce proceeding, specifically the setting of child support, in this case was prolonged. The father filed to modify the child temporary support order, while the entry of the permanent order was on appeal. The appellate court affirmed the permanent child support order. In the latest appeal, the mother appealed the modification of the permanent order. The father filed to modify based on the emancipation of a child. The trial court modified the order and retroactively reduced the child support amount back to the date of the child’s emancipation, which resulted in a large overpayment. On appeal, the mother argued this violated the rule against retroactive modifications. The appellate court disagreed, finding the statutory language only applies to past due obligations. The father never had a past-due obligation. He had paid all child support as ordered. The appellate court acknowledged potential issues with its position but found the purpose of the statute is to prevent the modification of past-due support. The mother also argued the evidence didn’t support the trial court’s determination of her income. On this issue, the appellate court agreed. The mother, a real estate broker, split her commissions with other brokers and her company. The appellate court found her income calculation didn’t reflect this practice. The appellate court vacated and remanded the order for further findings as to her income and business expenses.
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