N.C. woman says Kanawha family judge not following Supreme Court's order

By Lawrence Smith | May 13, 2013

CHARLESTON - A North Carolina woman says a Kanawha County family law judge has taken far too long to follow an order by the state Supreme Court requiring he correct a ruling he made regarding child support from her ex-husband.

Judge Robert M. Montgomery is named as a respondent in a writ of mandamus filed by Beverly J. Hemmings. In her petition filed April 9 in Kanawha Circuit Court, Hemmings, 44 and of Raleigh, N.C., alleges Montgomery has failed to take any action to compel her ex-husband, Richard R. Mullins, to cure his child support arrearage since the court remanded the case back to him more than 2 ½ years ago.

According to her writ, Hemmings says she and Mullins were divorced on June 2, 1999. In the final order and property settlement agreement, they agreed to 50/50 parenting time of their son, Noah, and Mullins agreed to not only pay Hemmings $400 a month child support, but also keep Noah on his insurance.

However, Hemmings says for nearly the next seven years, Mullins only made 12 monthly support payments, in which the majority were not the full amount. Also, she says he reneged on keeping Noah on his insurance.

On March 30, 2006, Hemmings says she filed a motion requesting Noah be allowed to relocate with her to Raleigh. Though hopeful Montgomery would make a favorable ruling before start of the 2006-07 school, Hemmings says he denied her motion a year later.

About two weeks after filing her relocation motion, Hemmings says with the aid of her then-attorney, James T. Cooper, she asked Montgomery to compel Mullins to pay all the back child support he owed her. According to the writ, two years and five months later, Montgomery ordered Mullins to pay Hemmings $12,212 of the $40,000 he owes her.

The order, Hemmings says, was submitted by Mullins’ attorney, Andrew S. Nason, and lacked any findings of fact.

According to the writ, Hemmings filed a pro se appeal to the court on April 6, 2009, challenging Montgomery’s Sept. 18, 2008 support order. After accepting it on Nov. 18, 2009, the court almost a year to the day later reversed and remanded Montgomery’s decision.

In its ruling, the court found Montgomery abused his discretion in not only giving Mullins a credit against the arrearage for $8,758.74, but also in granting him an offset of $9,157.98 in undocumented expenses. Also, the court found Montgomery failed to apply the correct law in calculating interest on child support.

According to her writ, 11 months after the court ruled in her favor, Hemmings says Montgomery signed an order prepared by Nason saying he has “taken the matter under advisement and will advise the parties when the Court has reviewed all the documents and is prepared to rule.”

After another 18 months of inaction, Hemmings says she was left with little choice but to file the writ to compel Montgomery to follow the court’s Nov. 18, 2010, opinion.

Along with granting her writ, Hemmings seeks recovery of the fees she paid Cooper when he was her attorney and an order removing Montgomery from the case. She filed her writ pro se.

The case is assigned to Judge Carrie Webster.

Kanawha Circuit Court, case number 13-P-203

More News

The Record Network