A Goldsboro attorney says even though Dwayne Allen Dail was wrongfully imprisoned, he is still obligated to pay for his child.
But the attorney representing Dail says state law holds that jailed mothers and fathers aren't subject to back child support payments.
Goldsboro attorney Sarah L. Heekin is representing Goldsboro resident Lorraine Michaels, the mother of Dail's biological son.
Dail was exonerated in August by a Wayne County Superior Court judge after spending 18 years in prison for a rape DNA evidence showed he did not commit.
Now that Gov. Mike Easley has pardoned him, Dail might be entitled to $20,000 per year for every year he spent behind bars, adding up to $360,000.
Ms. Heekin said she was limiting all comment on the case to one written statement:
"Prior to his incarceration Mr. Dail and Ms. Michaels were in a long-term relationship. After Mr. Dail's conviction and incarceration, Ms. Michaels gave birth to their biological son. For the whole 18-plus years of Mr. Dail's imprisonment, Ms. Michaels was a single parent and the sole means of financial support for their minor son. As most people are now aware, Mr. Dail's sentence was life imprisonment and thus no action for child support was ever filed.
"Since his release, Mr. Dail has not indicated any intention to provide support to Ms. Michaels thus, in order to fully protect my client's statutory rights, it was necessary to file an action ... prior to the minor's 18th birthday," Ms. Heekin said in the statement.
But Goldsboro attorney Shelby Benton -- who represented Dail as a public defender at his late 1980s trial -- says state law doesn't encumber Dail with child support payments.
Mrs. Benton, who attended Dail's exoneration proceedings, is representing Dail again after telling the wrongfully convicted man and his son "if they needed anything, call me."
"We will be vehemently defending the action," Mrs. Benton said. "The state says if a person is incarcerated, child support abates."
A look at N.C. Statute 50-13.10 seems to support Mrs. Benton's statement.
No "arrearage" -- fancy lingo for the state of being behind in payments -- can build up when a person is in prison, the law states.
"A child support payment or the relevant portion thereof is not past due and no arrearage accrues ... during any period when the supporting party is incarcerated, is not on work release, and has no resources with which to make the payment," the law states.
Other exceptions to child support arrearage are after the supported child's death, death of the supporting parent, or when the child lives with the supporter because of a court order.
Another exception is "an express or implied written or oral agreement transferring primary custody to the supporting party."
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