Child support ruling contested

N.C. appeal questions increase tied to wife's lottery winnings

September 24, 2001|By Eric Frazier | Eric Frazier,KNIGHT RIDDER/TRIBUNE

CHARLOTTE, N.C. — CHARLOTTE, N.C.-When Jesse Erwin's wife won $4.4 million in the Canadian lottery five years ago, he quit his job, and the Mecklenburg, N.C., couple started living the high life with a new $400,000 home and a $40,000 car.

Ramona Mason, mother of a child he fathered outside his marriage, figured it only right that she receive bigger child support payments. But she is discovering things are rarely that simple in the legal system.

The North Carolina Court of Appeals recently overturned a Mecklenburg judge's order more than tripling Erwin's child support payments from $300 to $922 a month.

The appellate court ruled that the trial judge, Mecklenburg District Judge Jane Harper, needs to provide more specific reasons for raising the amount to that level. The appellate court sent that case back to Harper. Its ruling suggests the judge might still be able to increase the child support, provided she gives more justification.

But Donnie Hoover, the Charlotte lawyer who represents Erwin, said he believes the ruling means the lottery winnings are off limits to Mason. "As I read it, they ruled out using the spouse's income to compute the child support," Hoover said. "In effect, you'd be making a person who had nothing to do with this child being in the world pay support."

Mason, whose daughter is 10 years old, disagreed, saying she feels she's been done a great disservice by the appellate court. "He's enjoying the money, too," she said. "I don't see where there should be any doubt, and I don't see where we're going to lose." Erwin declined to comment.

Courts have said if the custodial parent's living expenses go down because of help from a third party, the child support level can drop, too.

Issue less clear

But the issue is less clear when a third party helps a noncustodial parent like Erwin. Mason's lawyer, Paul Pawlowski, suggested the same principle would apply: If the new income frees more of the noncustodial parent's money, that parent has more available to pay as child support.

Erwin retired from his $40,000-a-year job with United Parcel Service in 1996, the same year his wife won the lottery. Erwin has resided with his wife since 1964.

In 1998, Mason asked the courts to increase support levels for her child. She submitted affidavits showing her daughter's expenses and needs at nearly $2,000 a month. Erwin said his only income was his $1,500-a-month pension.

Under the North Carolina Child Support Guidelines, a judge can compute child support payments for unemployed persons by determining their employment potential and probable earning levels based on their work history and other factors.

`Very comfortable lifestyle'

Judge Harper, noting Erwin had "virtually no living expenses and a very comfortable lifestyle," determined that he had about $5,000 in monthly income and ordered him to pay $922 a month in support. She also ordered him to pay 84 percent of the child's uninsured medical, dental and other extraordinary expenses.

The Court of Appeals agreed there had been changes substantial enough to warrant a modification of child support. But they said Harper didn't give them enough information about why she decided he had about $5,000 worth of monthly income. They also said a judge can't make such judgments about a person's income unless a parent is trying to depress his or her income or is acting in disregard of support obligations.

Hoover, the attorney for Erwin, said such scenarios usually involve parents who quit working to avoid child support or who cut back on work hours to lower their income.

Pawlowski said he believes Judge Harper can base the child support level on Erwin's $1,500-a-month pension, and if that doesn't prove enough to meet the reasonable needs of the child, award additional money. "That's his child," Pawlowski said. "It's the right thing to do."

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