NO. COA13-1333

NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2014

TAMI L. GRAY,

Plaintiff,

v. Wake County

No. 08 CVD 003713

DARRELL KEITH PEELE,

Defendant.

Appeal by defendant from order entered 9 August 2013 by 

Judge Daniel J. Nagle in Wake County District Court. Heard in 

the Court of Appeals 22 May 2014.

No brief filed on behalf of plaintiff-appellee.

Elisabeth P. Clary for intervenor plaintiff-appellee Wake 

County Child Support Enforcement.

Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for 

defendant-appellant.

HUNTER, JR., Robert N., Judge.

Darrell Keith Peele (“Defendant”) appeals from an order 

denying his motion to modify child support. Defendant contends 

that the prior child support order entered in 2010 was temporary 

in nature and that the trial court erred in requiring him to 

demonstrate that a substantial change in circumstances had taken 

place since the entry of the existing order. Defendant also 
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challenges the trial court’s conclusions and findings of fact. 

For the following reasons, we dismiss the appeal as 

interlocutory.

I. Factual & Procedural History

Tami L. Gray (“Plaintiff”) and Defendant were married on 30 

April 1994. During the marriage, Plaintiff and Defendant had 

one child, L.K.P., who was born in March 1999. Plaintiff and 

Defendant subsequently divorced. 

On 24 October 2000, the Granville County District Court 

entered a temporary child support order that, pursuant to the 

North Carolina Child Support Guidelines, required Defendant to 

pay the presumptive sum of $685.57 per month for the minor 

child. On 17 April 2001, when the child was 2 years old, the 

court entered a permanent custody order giving Plaintiff primary 

physical custody of L.K.P. and Defendant Wednesday evening, 

alternating weekend, and holiday visitation rights. The custody 

order also provided that “[t]he parties may exercise such other 

and further residency periods with the minor child as may be 

mutually agreed upon by the parties.” 

On 21 February 2003, the court modified the temporary child 

support order, requiring Defendant to pay $685.57 per month in 

accordance with the previous child support order, plus an 
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additional $100 per month towards arrearages. Nearly five years 

later, in February 2008, the action was transferred to Wake 

County and an order was entered permitting the local Child 

Support Enforcement Agency to intervene on behalf of Plaintiff. 

Thereafter, on 4 May 2010, Defendant filed a motion to 

modify his child support obligation, citing loss of work and 

unemployment, as well as the fact that L.K.P. had been staying 

with him an additional night during the week. Following a 

hearing on the motion, the trial court entered an order on 6 

August 2010 based on a consent agreement between the parties 

reducing Defendant’s monthly child support obligation to $500 

per month. 

On 10 October 2010, the parties mutually agreed to 

implement a week-on/week-off custody arrangement, although the 

custody order was not formally modified. After the parties 

implemented this agreement, Defendant stopped paying child 

support without seeking a modification from the trial court and 

without Plaintiff’s consent. On 31 August 2011, Plaintiff 

withdrew from the agreement and demanded that Defendant revert 

to the custody schedule contained in the 17 April 2001 custody 

order. Despite Plaintiff’s objections, however, the record 

evidence shows that the parties continued the week-on/week-off 
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custody arrangement until the hearing in this matter in May of 

2013 -- a period of over 2 years and seven months. On 27 

September 2011, Defendant filed a motion to modify custody

alleging the existence of many changes in the parties’ 

circumstances and the child’s needs, requesting an award of 

primary custody or in the alternative, that the “Court modify 

the 2001 Custody Order such that the parties immediately resume 

and maintain the week-on week-off custodial schedule that they 

have been operating under for the past year.” This motion

remains pending in the trial court. 

Thereafter, Defendant filed a separate motion to modify 

child support on 10 April 2012 and again on 31 January 2013, 

alleging that circumstances had changed in that he had 

experienced a period of unemployment, his home had been

foreclosed upon, his car had been repossessed, and his financial 

condition had deteriorated. Defendant also cited the weekon/week-off custody schedule in the motion. Defendant’s motion 

to modify child support was heard at the 24 May 2013 “term of 

Wake County Civil IV-D District Court.” Following a hearing 

concerning the motion to modify child support only, the trial 

court entered an order dated 9 August 2013 concluding, inter 

alia, that:
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2. Defendant earns income on a monthly basis 

and is capable of contributing to the 

support of the minor child, [L.K.P.].

3. Defendant should be required to pay child

support for the minor child, [L.K.P.].

4. A change in the physical custody of a 

child constitutes a substantial change in 

circumstances warranting modification of an 

existing child support order.

5. While a change in the physical custody of 

the minor child existed from to [sic] 10 

October 2010 to 31 August 2011, the 

defendant failed to file a motion to modify 

child support and was not precluded from 

filing by physical disability, mental 

incapacity, indigency, misrepresentation of 

another party, or other compelling reason, 

and the change in physical custody no longer 

exists and payment has vested.

6. The existing ordered support amount is 

sufficient to meet the reasonable needs of 

the minor child.

(Internal citation omitted). Accordingly, the trial court 

denied Defendant’s motion to modify child support and ordered 

Defendant to continue to make child support payments of $500 per 

month as previously ordered. Defendant filed timely notice of 

appeal from the trial court’s order. 

II. Jurisdiction

Defendant argues that we have jurisdiction to consider this 

order because it is not interlocutory. We disagree.
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Generally, there is no right of immediate 

appeal from interlocutory orders and 

judgments. An interlocutory order is one 

made during the pendency of an action, which 

does not dispose of the case, but leaves it 

for further action by the trial court in 

order to settle and determine the entire 

controversy. On the other hand, a final 

judgment is one which disposes of the cause 

as to all the parties, leaving nothing to be 

judicially determined between them in the 

trial court.

Hausle v. Hausle, ___ N.C. App. ___, ___, 739 S.E.2d 203, 205-06 

(2013) (citations, quotation marks, and brackets omitted). “The 

reason for this rule is to prevent fragmentary, premature, and 

unnecessary appeals by permitting the trial court to bring the 

case to final judgment before it is presented to the appellate 

courts.” Peters v. Peters, ___ N.C. App. ___, ___, 754 S.E.2d 

437, 439 (2014) (citation, quotation marks, and brackets 

omitted). “In the child support context, an order setting child 

support is not a final order for purposes of appeal until no 

further action is necessary before the trial court upon the 

motion or pleading then being considered.” Banner v. Hatcher, 

124 N.C. App. 439, 441, 477 S.E.2d 249, 250 (1996).

In the literal sense of the word, no child support order 

entered in this state is “permanent” because it “may be modified 

or vacated at any time, upon motion in the cause and a showing 

of changed circumstances[.]” N.C. Gen. Stat. § 50-13.7(a) 
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(2013). Nevertheless, our case law provides that a child 

support order may be characterized as “permanent” when the order 

is based on the merits of the case and intended to be final. 

See Miller v. Miller, 153 N.C. App. 40, 47–48, 568 S.E.2d 914, 

919 (2002). 

With respect to child custody orders, we have said that 

“[a] temporary order is not designed to remain in effect for 

extensive periods of time or indefinitely.” Gary v. Bright, ___ 

N.C. App. ___, ___, 750 S.E.2d 912, 915 (2013) (internal 

quotation marks and citation omitted).

[A]n order is temporary if either (1) it is 

entered without prejudice to either party[;] 

(2) it states a clear and specific 

reconvening time in the order and the time 

interval between the two hearings was 

reasonably brief[;] or (3) the order does 

not determine all the issues. If the order 

does not meet any of these criteria, it is 

permanent.

Woodring v. Woodring, ___ N.C. App. ___, ___, 745 S.E.2d 13, 18

(2013) (alterations in original) (internal quotation marks and 

citation omitted).

With respect to child support orders, our case law is less 

developed, but not totally devoid of guiding precedent. See, 

e.g., Miller, 153 N.C. App. 40, 568 S.E.2d 914; Cole v. Cole, 

149 N.C. App. 427, 562 S.E.2d 11 (2002); Banner, 124 N.C. App. 
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439, 477 S.E.2d 249. In these cases, we have looked to the 

intent behind the trial court’s order to determine if a support

order is temporary. In doing so, we have considered whether the 

order explicitly identifies itself as a temporary order and 

whether the language of the order contemplates that another 

“permanent” order will be entered at a future point in time. 

Miller, 153 N.C. App. at 47–48, 568 S.E.2d at 919; Cole, 149 

N.C. App. at 433–44, 562 S.E.2d at 14–15.

A claim for either child support or custody can be brought 

and heard by the trial court independently, so in one sense, a 

final determination of one claim would be entirely separate of 

the other. But in many cases, and this is one of them, the 

amount of child support depends in large part upon the custodial 

schedule and the custodial schedule is in dispute. In fact, 

N.C. Gen. Stat. § 50-13.4 establishes child support guidelines 

which are based upon the applicable custodial schedule and a 

presumption that child support shall be set in accordance with 

the guidelines unless the parties’ incomes place their case 

outside of the guidelines or there is a request for deviation 

from the guidelines and the trial court makes findings that a 

deviation is justified in the particular case. See generally 

Pataky v. Pataky, 160 N.C. App. 289, 295-96, 585 S.E.2d 404, 
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408-09 (2003) (discussing in detail the origins of and 

procedures applicable to the child support guidelines), aff’d in 

part and disc. rev. dismissed in part, 359 N.C. 65, 602 S.E.2d 

360 (2004); N.C. Gen. Stat. § 50-13.4(c), (c1). 

This statutory scheme and the presumption of application of 

the guidelines makes the claims of child custody and child 

support legally interdependent. Here, there is a pending motion 

to modify custody which, if allowed, would fundamentally alter 

the facts upon which the trial court based its child support 

decision. After entry of the 6 August 2010 child support order, 

the parties agreed that the minor child would live with each 

party during alternate weeks, and the evidence indicated that 

this living arrangement continued up to the time of the hearing 

in May of 2013. Although plaintiff “withdrew her consent” from 

that arrangement on 31 August 2011, they continued to alternate 

custody weekly. On 27 September 2011, defendant moved to modify 

the parties’ custody order to reflect the new arrangement. On 

10 April 2012, defendant also moved to modify child support, 

alleging as part of the justification for this request the 

actual custodial arrangement the parties had been following. On 

18 April 2013, defendant also filed notice that he would 

request a deviation from the North Carolina 

Child Support Guidelines and requests the 
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Court to consider the Defendant’s deviation 

when applying the guidelines and to take 

into consideration the custodial schedule of 

the parties. The Defendant asserts that the 

Child Support Guidelines are unreasonable 

because the parties maintained a fifty/fifty 

(50/50) custodial schedule for the minor 

child since October 2010. Based upon 

information and belief, the Defendant 

believed the Order was in effect for a 50/50 

schedule and has since discovered that the 

Custody Order may not have been signed and 

the Plaintiff and Defendant have exercised a 

50/50 custody since October 2010.

The order on appeal only addressed the child support 

issues, while leaving the custody issues unresolved—nearly two 

years after defendant had moved to modify the custody order to 

reflect the actual custody schedule. We understand that the 

order failed to address child custody because this case was

heard in Wake County Civil IV-D District Court and prosecuted by 

the Wake County Child Support Enforcement Agency on behalf of 

Plaintiff. The “Civil IV-D” session of District Court is 

commonly referred to as “child support court.” Chapter 110 of 

the North Carolina General Statutes sets out a comprehensive 

statutory scheme for establishment of child support orders and 

enforcement of those orders in cases which fall under that 

Chapter, defined as “a case in which services have been applied 

for or are being provided by a child support enforcement agency 

established pursuant to Title IV–D of the Social Security Act as 
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amended and this Article.” N.C. Gen. Stat. § 110–129(7) (2011). 

N.C. Gen. Stat. § 110-129.1(a)(3) grants to the Department of 

Health and Human Services the “power and duty” to

Establish and implement procedures under 

which in IV-D cases either parent or, in the 

case of an assignment of support, the State 

may request that a child support order 

enforced under this Chapter be reviewed and, 

if appropriate, adjusted in accordance with 

the most recently adopted uniform statewide 

child support guidelines prescribed by the 

Conference of Chief District Court Judges.

Because of the specialized nature of the IV-D session of 

court, motions for modification of custody are not heard, nor do

Child Support Enforcement agencies represent parents in regard 

to any custody issues. While we appreciate this procedural 

situation and the reason that one motion was heard while the 

other remained pending, despite its apparent relevance to the 

issues raised in the motion to modify child support, we have to 

determine the interlocutory nature of the order based upon the 

law. The present order failed to resolve the pending custody 

issue or even to address the parties’ custodial arrangement 

during the entire relevant period, even though the custodial 

schedule was in dispute.

1 The trial court simply ordered the 

 

1 All the trial court could do in this situation, since the 

pending custody motion was not under consideration, was to make 

findings regarding the past practice of the parties and whether 
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parties to continue following the prior order, awarding

plaintiff $500 per month despite the fact that the actual 

custody arrangement had changed.

A change in the custodial arrangement is a substantial 

change in circumstances affecting child support, as the trial 

court itself noted, citing Kowalick v. Kowalick, 129 N.C. App. 

781, 787, 501 S.E.2d 671, 675 (1998). Without knowing the 

custody arrangement, the trial court cannot determine which 

child support worksheet to use, or whether to deviate from the 

guidelines. See N.C. Gen. Stat. § 50-13.4(c1) (2011) (“The 

guidelines shall include a procedure for setting child support, 

if any, in a joint or shared custody arrangement which shall 

reflect the other statutory requirements herein.”); N.C. Child 

Support Guidelines, AOC-A-162 (2011). So, in effect, this order 

simply temporarily continues the existing support order until 

the trial court can hear the custody issues. 

This would also explain why the trial court made findings 

of fact about the parties’ incomes and all information needed to 

set guideline child support, but failed to make any findings 

 

any retroactive modification of the child support obligation 

might be justified, and the trial court did make findings 

concerning this issue. Indeed, defendant did not dispute that 

the effective date of any retroactive child support modification 

would be the date of filing of his motion to modify child 

support. 
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addressing the justification for deviation from the guidelines

or any determination of the amount of child support which would 

be required by the guidelines, and then simply continued in 

effect the $500.00 child support amount which the parties had 

agreed upon in 2010. If the trial court had intended this to be 

a permanent child support order, the findings and conclusions of 

law would not support this child support amount, which ignores 

the findings of fact about the parties’ incomes and other 

relevant numbers and fails to make any findings as to a need to 

deviate from the guidelines. But as a temporary order entered 

by the child support enforcement court to provide for payment of 

child support until the pending motion to modify custody can be 

determined and child support set based upon the actual custodial 

schedule, the order makes sense both legally and practically. 

Where our record demonstrates that there was at the time of 

the hearing a motion to modify custody pending, with the actual 

custodial schedule uncertain and in dispute, and the child 

support obligation is presumptively directly dependent upon the 

custodial schedule, allowing the present child support order to 

be immediately appealed would lead to “fragmentary, premature[,]

and unnecessary appeals[.]” Peters, ___ N.C. App. at ___, 754 

S.E.2d at 439 (first alteration in original). Therefore, we 
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hold that the present order is interlocutory and dismiss the 

appeal.2

III. Conclusion

For the foregoing reasons, defendant’s appeal from the 

child support order is dismissed.

DISMISSED.

Judges ERVIN and DAVIS concur.

 

2 We note that the Legislature recently enacted Session Law 2013-

411, codified at N.C. Gen. Stat. § 50-19.1 (2013), which governs 

appeals from certain family law orders while other claims remain 

pending. However, this statute only became effective 23 August 

2013, after the order on appeal was entered. 2013 N.C. Sess. 

Laws ch. 411, § 2. Indeed, defendant has not argued that this 

statute applies here. Therefore, we do not address how this 

statute might affect our analysis.