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Child Support and Credit for Overpayment

BARHAM V. BARHAM, 2022-NCCOA-798 (unpublished).

Facts: Plaintiff and Defendant are parents of eight children. At this time, all eight children have attained the age of majority (18). There have been numerous child support orders in their case for their children. When their seventh child graduated from high school and turned 18, a motion to modify was filed and a consent order was entered that required Plaintiff to pay $716 a month for support for the final eighth child. Plaintiff instead paid 1 cent per pay period. Plaintiff also filed a motion seeking to establish credit for overpayment of child support, alleging that he overpaid from 2013-2019 by $12,486.95, and that overpayment should be applied to the prospective award from the modification. Defendant filed for contempt for nonpayment of support. Trial court found Plaintiff in contempt, he appeals.

Issue: Did the trial court err by holding Plaintiff in contempt for not paying child support even when he overpaid?

Holding: No.

Reasoning: Plaintiff’s argument was that there could be no past-due child support because as each payment of $716 became due, his account was already in the positive due to his overpayment in 2013-2019. In essence, each future child support payment was deemed paid as soon as it vested. However, in North Carolina, there is no definitive rule regarding child support credits. Granting a credit is not an automatic right even when a trial court finds that a parent overpaid child support. It is discretionary and may be used to prevent an injustice. The law remains clear that a party cannot unilaterally stop paying the court ordered support. It is the duty of the parent to file for modification and seek to change the obligation.

Notes: In this case, if Plaintiff knew he overpaid during this period, then why did he not introduce this evidence during the modification proceeding or seek to include overpayment in his consent order? This case shows that the ability to receive a credit is not a defense to contempt. But did the fact that the overpayment period began in 2013 have anything to do with the outcome? It might have. This is not a case where the overpayment from a current order was from a month or two ago. Rather, this is a case where the overpayment stemmed from years ago and was for prior support orders. There may be a distinction in the time period and sequence of orders.