Green v. Carter

900 S.E.2d 108

Tricosa GREEN, Plaintiff,

v.E’Tonya CARTER, Defendant.

No. COA22-494

Court of Appeals of North Carolina.

Filed March 19, 2024

Appeal by plaintiff from order entered 3 November 2021 by Judge J. Rex Marvel in District Court, Mecklenburg County. Heard in the Court of Appeals 11 April 2023. Mecklenburg County, No. 18CVD17655

Wofford Law, PLLC, by J. Huntington Wofford and Rebecca B. Wofford, Charlotte, for plaintiff-appellant.

Collins Family Law Group, Monroe, by Rebecca K. Watts, for defendant-appellee.

STROUD, Judge.

[1] This case raises the issue of whether Plaintiff, who is not the child’s parent but who is a person acting as a parent, can be required to pay child support under North Carolina General Statute Section 5043.4(b). Based on long-established North Carolina law, the short answer is no: Plaintiff cannot be required to pay child support unless she is the child’s mother or father or she agreed formally, in writing, to pay child support.

[2] The long answer requires us to interpret North Carolina General Statute Section 5043.4(b), which governs both primary liability and secondary liability for child support. See N.C. Gen. Stat. § 5043.4(b) (2019). The difference between primary and secondary liability for child support is that a person may be held secondarily liable for child support only if the people who are primarily liable – the child’s parents – cannot adequately provide for the child’s needs. See id. Indeed, North Carolina General Statute Section 5043.4(b) first establishes that a child’s "mother" and "father" have primary liability for child support. Id. A "mother" is the female parent of a child, either as a biological parent or as an adoptive parent. Merriam-Webster’s Collegiate Dictionary 810 (11^th ed. 2005). Similarly, a "father" is the male parent of a child, whether as a biological parent, by adoption, by legitimation, or by adjudication of paternity. Id. at 456.

[3] North Carolina General Statute Section 5043.4(b) also sets out who can have secondary liability for child support: "any other person, agency, organization or institution standing in loco parentis." N.C. Gen. Stat § 5043.4(b). "Standing in loco parentis." means "in the place of a parent" and "may be defined as one who has assumed the status and obligations of a parent without a formal adoption." In re A.P., 165 N.C. App. 841, 845, 600 S.E.2d 9, 12 (2004) (citations and quotation marks omitted). Further, North Carolina General Statute Section 5043.4(b) limits secondary liability for child support to a person standing in loco parentis only if that person has "voluntarily assumed the obligation of support in writing." N.C. Gen. Stat. § 50-13.4(b).

[4] Because the parties are women who were previously in a romantic relationship, never married, and share custody of the child equally, the trial court determined that Plaintiff is primarily liable to pay child support, as a "parent," based on a novel "gender neutral" interpretation of North Carolina General Statute Section 50-13.4. But based on the well-established law discussed below, the trial court did not have a legal basis to order Plaintiff to pay child support. Instead of being "gender neutral" in application, the trial court’s interpretation of North Carolina General Statute Section 5043.4(b) created a different result than would have been required under the law if the parties to this case had been a heterosexual couple. North Carolina General Statute Section 5043.4(b) has the same application to both same-sex unmarried couples who have a child by in vitro fertilization as to unmarried heterosexual couples who have a child by in vitro fertilization if the male partner is not the donor of the sperm; neither can be required to pay child support.

Further, the General Assembly has given instructions in North Carolina General Statute Section 12-3(16) on when a statute may have a gender neutral interpretation, and Section 50-13.4 is not covered by this statute. See N.C. Gen. Stat. § 12-3(16) (2019). In addition, Plaintiff also could not be secondarily liable to pay child support because this would violate established precedent addressing child support liability for a person standing in loco parentis to a child, regardless of gender. See generally N.C. Gen. Stat. § 50-13.4. For these reasons, as explained in detail below, we reverse the trial court’s order and remand for further proceedings.

I. Background

This summary is based on the findings of fact in the trial court’s orders as the findings were not challenged on appeal. See In re K.W., 282 N.C. App. 283, 286, 871 S E.2d 146, 149 (2022) ("Unchallenged findings of fact are deemed supported by the evidence and are binding on appeal."). The parties are two women, never married to one another, who were in an "on again off-again" romantic relationship. During the parties’ relationship, they planned to have a child together. The parties participated in an in vitro fertilization ("IVF") program in the State of New York. Both parties signed the IVF Agreement in November 2015, jointly selected a sperm donor, and Partner¹ paid for the IVF process.

In November 2016, in the State of Michigan, Mother gave birth to Alisa.² On Alisa’s birth certificate, Mother is listed as the child’s mother. Under Michigan law, Partner "could not be listed on the minor child’s birth certificate." The parties jointly selected a name for the child which reflected both of their names. Partner presented a proposed parenting agreement to Mother, but the parties never signed the agreement.

The parties later ended their romantic relationship, and both moved to North Carolina. In September 2018, Partner filed a child custody proceeding in Mecklenburg County against Mother, seeking custody of Alisa. In March 2019, the trial court entered a Temporary Parenting Arrangement Order granting Partner some visitation with Alisa. On 16 September 2019, at the close of the hearing on permanent custody, the trial court announced its ruling in the child custody proceeding granting the parties joint legal and physical custody. The parties immediately began operating under the joint custodial schedule.

On 11 October 2019, after the trial court’s mid-September rendition of its ruling in the custody proceeding, Mother filed a "verified complaint for child support; motion to consolidate and attorney’s fees[.]" Mother alleged Partner "has acted as and been treated as a parent to [Alisa] since before her birth" and has exercised custodial time with Alisa based on the permanent custody arrangement rendered on 16 September 2019. Mother alleged Partner "(i) is a parent to [Alisa] in the same sense as the heterosexual terms ‘Mother’ and ‘Father’ are used, (ii) is standing in loco parentis to [Alisa], and (iii) has voluntarily assumed the obligation of support of [Alisa], in writing." Mother asserted claims for child support under North Carolina General Statute Section 50-13.4 and for attorney’s fees. Mother also moved to consolidate the child custody and child support cases, which was allowed.

On or about 24 October 2019, the trial court entered the permanent custody order granting Partner joint legal and physical custody of Alisa. The permanent custody order includes findings of fact about both parties, their relationship, Alisa’s birth, and their current circumstances. The trial court found Partner had been a substantial part of Alisa’s life since her birth. The court concluded that Partner and Alisa had a parent-child relationship, and that Mother had "acted in a manner inconsistent with her protected status as a parent and[,]" as such, "ha[d] waived her constitutional right to exclusive care, custody, and control of the minor child based on clear, cogent, and convincing evidence." The trial court then concluded both Partner and Mother were "fit and proper to exercise joint legal custody and share physical custody of [Alisa]." The court set a permanent child custody arrangement granting an equal number of days with each party. The custody order is a final order which was not appealed.

On 2 December 2019, the trial court entered a temporary child support order. The trial court found Partner, as "De Facto Mother[,]" was a parent to Alisa "in the same sense as the heterosexual terms ‘Mother’ and ‘Father’ are used" and both parties were "equally liable" for Alisa’s support. The trial court ordered Partner to pay Mother $604.21 in monthly child support and to continue paying the health insurance premiums for Alisa; the trial court ordered Mother to continue paying work-related child-care expenses for Alisa. On 16 December 2019, Partner filed an answer to Mother’s complaint for child support. Partner identified herself as "Non-Parent" in her answer and denied any liability for child support or attorney’s fees.

On 26 March 2021, Partner filed a "Motion to Dismiss, Answer and Motion to Return Child Support." Partner claimed that she was not the "biological or adoptive parent" of Alisa but she was a de facto parent, or standing in loco parentis, and as such was not liable for child support to Mother under North Carolina law. Partner also moved to vacate the temporary child support order and for Mother to reimburse her for $8,458.94 in child support that she had paid under the temporary support order. Further, Partner moved for dismissal under North Carolina General Statute Section 1A-1, Rule 12(b)(6) for failure to state a claim. The trial court heard Partner’s motion to dismiss on 1 June 2021 and entered an order denying Partner’s motion to dismiss on 1 September 2021.

On 7 September 2021, the trial court held a hearing on permanent child support. At the close of Mother’s evidence, Partner moved again to dismiss the complaint for child support because she, as a non-parent, could not be liable for child support under North Carolina law. The trial court denied Partner’s motion without clarification or explanation.

During closing arguments, Partner again argued North Carolina law, "as...