Over the last 25 years or so there has been considerable confusion as to how retroactive child support should be calculated.
Why the confusion? A brief history
When the North Carolina Supreme Court first recognized an action for retroactive child support in 1976, the Court clearly indicated that a custodial parent could be reimbursed by the non-custodial parent for reasonably necessary expenditures for the support of the child for the period of time before the filing of the child support claim, limited to three years. At this time, the Child Support Guidelines did not exist, and the Courts determined prospective child support amounts in accordance with the statutes:
Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, and other facts of the particular case.
Effective July 1, 1990, the North Carolina legislature charged the Conference of Chief District Judges with developing “uniform statewide presumptive guidelines for the computation of child support obligations” (i.e. the Child Support Guidelines) and with reviewing the guidelines at least once every four years for appropriateness. However, the Guidelines did not address calculations regarding retroactive support. As the Court of Appeals confirmed in 1998, “retroactive child support is calculated by considering reasonably necessary expenditures made on behalf of the child by the party seeking support, and the defendant’s ability to pay during the period in the past for which retroactive support is sought.”
In 2006, the Guidelines addressed retroactive support and offered the Courts a choice between two methods for determining the support amount: 1) basing retroactive support on the Guidelines amount, or 2) basing it on the actual expense paid by the custodial parent. Thus began a somewhat confusing back and forth between the Court of Appeals and the Conference of Chief District Judges. In 2009, the Court of Appeals ruled that the Conference of Chief District Judges did not have the authority to override existing case law in formulating the Guidelines. The Court stated, “if the trial court follows the Guidelines in awarding retroactive child support in cases involving unincorporated separation agreements, instead of controlling case law, the court is in error.” However, in 2011, the Guidelines again included that a trial court could determine retroactive child support by “(a) determining the amount of support that would have been required had the guidelines been applied at the beginning of the time period for which support is being sought, or (b) based on the parent’s fair share of actual expenditures for the child’s care.” Subsequently that same year, the Court of Appeals once again stated, “‘[r]etroactive child support payments are only recoverable for amounts actually expended on the child’s behalf during the relevant period.’ Therefore, a party seeking retroactive child support must present sufficient evidence of past expenditures made on behalf of the child, and evidence that such expenditures were reasonably necessary.” An inconsistent application of the law resulted, and the Court of Appeals again stated in 2014 that the Conference of District Court Judges does not have the authority to override existing case law in formulating the Guidelines, and thus retroactive child support must be based on actual expenditures for the children.
In response to the 2014 Court of Appeals ruling, the North Carolina legislature amended the controlling statute, N.C.G.S. 50-13.4(c1) to provide that “the Conference of Chief District Judges shall prescribe uniform statewide presumptive guidelines for the computation of child support obligations, including retroactive support obligations.” Which brings us to the Guidelines effective January 1, 2015.
The Current Prescribed Method
Presumably, the legislature has now given the Conference of Chief District Judges authority to address retroactive support in the Guidelines.
The current version of the Guidelines again state that a court may determine the amount of a parent’s retroactive obligation “(a) by determining the amount of support that would have been required had the guidelines been applied at the beginning of the time period for which support is being sought, or (b) based on the parent’s fair share of actual expenditures for the child’s care.”
This effectively means that the trial court can consider evidence regarding both analyses, such as evidence related to income, healthcare expenses, child care expenses, housing and utilities expenses, food expenses, clothing and other basic costs for the children.
