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NO. COA11-113 NORTH CAROLINA COURT OF APPEALS Filed: 5 July 2011 ORANGE COUNTY ex rel. DOROTHY CLAYTON (PATTISON), Plaintiff, v. JONATHAN LEE HAMILTON, Defendant. Appeal by Defendant from order dated 27 July 2010 and filed 11 August 2010 by Judge Joseph M. Buckner in Orange County Orange County No. 04 CVD 683

District Court.

Heard in the Court of Appeals 6 June 2011. Orange County Child

Leigh A. Peek, Esq., Counsel for Support Enforcement, for Plaintiff. Jonathan Hamilton, pro se. STEPHENS, Judge. Procedural History

This matter arises out of a child support dispute between Defendant Jonathan Hamilton and Plaintiff Orange County ex rel. Dorothy Clayton Pattison ("Pattison"). Defendant and Pattison

are the parents of a minor child born 12 November 2003 but were never married. On 22 March 2004, Defendant entered into a

-2Voluntary Support Agreement to provide support for the child, agreeing insurance. to pay $245.00 per month and to provide health

In 2006, Defendant agreed to increase the payments

to $500.00 per month, plus $100.00 per month to pay down an arrearage totaling $4,400.00. Support Enforcement ("OCCSE") In 2009, the Orange County Child office, on behalf of Pattison,

sought another increase, based on the child's increased needs and Defendant's increased income. In November 2009, the court

increased Defendant's payments to $711.00 per month plus $25.00 per month toward an arrearage totaling $1,100.00. 2009, the OCCSE filed a In Notice April of Income In December with a

Withholding

Defendant's

employer.

2010,

Defendant

sought

downward modification of child support, a change of venue, and reinstatement of direct child support payments to avoid the

consequences of his employer's delayed payments to the State's Centralized Collections office. The trial court heard the

matter on 9 June 2010.1 The trial court took oral testimony, and then asked

Defendant and Plaintiff to submit written summaries and proposed
1

Plaintiff filed a Motion for Contempt, also heard at this hearing, alleging that Defendant had failed to make his child support payment for January, or pay medical expenses in arrears. The trial court found that Defendant had a delinquency in his payments, but the record did not show a pattern of nonpayment rising to the level of willful contempt.

-3orders on the child support modification request. 2010, order Defendant's to the On counsel court, 2010, submitted and his letter the On 11 June and proposed of

trial 16

copied

other

counsel

record.

June

the

OCCSE,

through

Plaintiff's

counsel, submitted a letter and proposed order court, also copying opposing counsel.

to the trial

The trial court signed

Plaintiff's proposed order on 27 July 2010 and filed the order on 11 August 2010. Defendant appealed to this Court.

After filing the agreed-upon Record on Appeal, Defendant sought to supplement the Record pursuant to Rule of Appellate Procedure 11(c), but the supplement was stricken by order of this Court after Plaintiff filed a Motion for Sanctions.

Plaintiff later submitted a Rule 9(b)(5)(a) supplement, which included copies of the letters and proposed orders submitted to the trial court. Record on Those letters and orders were absent from the as originally submitted by Defendant.

Appeal

Defendant moved for sanctions on 16 May 2011. review agree of with Plaintiff's Plaintiff supplement that the and

After careful motion, we

Defendant's in

materials

Plaintiff's

supplement are necessary for Plaintiff's response to arguments raised in Defendant's brief. motion. Therefore, we deny Defendant's

-4Discussion On appeal, Defendant argues that the trial court's order was the fruit of ex parte communication with Plaintiff's

counsel.

He also argues that the trial court erred by entering

the order out of session and by denying Defendant's request for change of venue. Finally, Defendant argues that the trial

court's denial of his motion for downward modification of child support was not supported by the evidence. For the reasons

discussed herein, we affirm the trial court's order. Ex Parte Communication Defendant first argues that the trial court improperly

considered ex parte communication with Plaintiff's counsel in using counsel's proposed order as the final order in the case and relying on counsel's argument to deny Defendant's request for change of venue. This submitted Court to the has We disagree. previously court held that proposed the orders to

trial

are

proper

for

court

request, and consider.

"Nothing in [N.C. Gen. Stat. ' 1A-1, Rule

58] or common practice precludes the trial court from directing the prevailing party to draft an order on its behalf. `[s]imilar procedures are routine in civil cases[.]'" Instead In re

-5J.B., 172 N.C. App. 1, 25, 616 S.E.2d 264, 279 (2005) (citations omitted). Defendant's efforts to paint Plaintiff's counsel's proposed order as improper ex parte communication also flies in the face of North Carolina State Bar Formal Ethics Opinion 13, which addresses "whether a lawyer [may] communicate in writing with a judge or other judicial official about a proceeding that is pending before the judge or judicial official[.]" Dunn v.

Canoy, 180 N.C. App. 30, 45, 636 S.E.2d 243, 253 (2006) (citing N.C. St. B. 98 Formal Ethics Op. 13 (July 23, 1999), disc. review denied, 361 N.C. 351, 645 S.E.2d 766 (2007). That

opinion "acknowledges that a broad reading of the applicable ethics rules would permit `unlimited written communications' so long as a copy is simultaneously provided to the other parties and the communication is not `prejudicial to the administration of justice.'" Id. The opinion goes on to note that "[t]o avoid

the appearance of improper influence upon a tribunal, informal written communications with a judge . . . should be limited" to four types, including, inter alia, written communications, such as a proposed order or and legal memo prepared pursuant sent Id. to to the the

court's

instructions,

written

communications

tribunal "with the consent of the opposing lawyer."

-6In the instant case, the allegedly improper ex parte

communication was requested at the hearing by the trial court. It was also now of requested claims proposed of that both the parties' trial was counsel. Although for

Defendant submission

court's "over

request

orders

made

Defendant's

objection," our review of the transcript indicates that although Defendant's trial counsel remarked, "my client really hates the written thing [submitting the letter and proposed order]," he did not formally object. Because our statutes and case law clearly allow for the common trial court practice of requesting parties to prepare orders, and because copies of the orders here were provided to Defendant argument. Entry of Order Out of Session Defendant next argues that the trial court's order was via his trial counsel, we overrule Defendant's

improperly entered out of session.

We disagree.

Rule 6(c) of the North Carolina Rules of Civil Procedure provides: The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a session of court. The continued existence or expiration of a session of court in no way

-7affects the power of the court to do any act or take any proceeding, but no issue of fact shall be submitted to a jury out of session. N.C. Gen. Stat.

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