Robbins v. Hunt

• Court: Court of Appeals of North Carolina
• Decided: September 16, 2014
• Docket: 14-243
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-243 NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

APRIL ROBBINS (formerly HUNT),

Plaintiff,

v. New Hanover County No. 10 CVD 5691 JEFFERY H. HUNT,

Defendant.

Appeal by defendant from order entered 6 November 2013 by

Judge J. H. Corpening, II in New Hanover County District Court.

Heard in the Court of Appeals 28 August 2014.

No brief filed by plaintiff-appellee.

Chris Kremer for defendant-appellant.

STEELMAN, Judge.

Where there was competent evidence to support the trial

court’s findings that defendant willfully failed to pay

prospective alimony, the trial court did not err in holding

defendant in contempt. Where there was insufficient evidence in

the record to support the trial court’s findings that defendant

willfully failed to pay back alimony and attorney’s fees, the -2- trial court’s contempt order is reversed, and the matter

remanded for further findings of fact. Where defendant failed

to preserve the issue of attorney’s fees, and where the appeal

of that issue was previously resolved by this Court, we dismiss

defendant’s argument.

I. Factual and Procedural Background

April Robbins (plaintiff) and Jeffery Hunt (defendant) were

married on 28 November 1992. Two children were born of the

marriage, in 1997 and 1999. Plaintiff and defendant resided

together until their separation on 20 March 2010.

On 10 December 2010, plaintiff filed a complaint seeking

post-separation support, permanent alimony, equitable

distribution of marital assets, temporary and permanent custody

of the children, retroactive and prospective child support, and

attorney’s fees.

On 6 May 2013, the trial court entered its order on

permanent alimony, equitable distribution, and attorney’s fees.

In the alimony portion of the case, the trial court held that

plaintiff was a dependent spouse, and ordered defendant to pay

alimony of $800 per month, back alimony of $8,000 within 90

days, and $2,000 in attorney’s fees within 90 days. The marital -3- property was divided in accordance with a separate schedule

which is not found in the record on appeal.

The order of 6 May 2013 was appealed to this Court. On 6

May 2014, this Court filed an opinion affirming the trial

court’s award of alimony, but remanding the issues of equitable

distribution and attorney’s fees for additional findings of

fact. Hunt v. Hunt, ___ N.C. App. ___, 759 S.E.2d 712 (2014)

(unpublished), disc. review denied, ___ N.C. ___, ___ S.E.2d

___, 197P14 (19 August 2014).

On 5 July 2013, plaintiff filed a verified motion for

contempt, alleging that defendant had failed to pay the back

alimony, attorney’s fees, and prospective alimony ordered by the

trial court.

On 6 November 2013, the trial court entered an order

holding defendant in contempt of court, finding that defendant

failed to make alimony payments for June, July, August, and

September of 2013, failed to pay the back alimony and attorney’s

fees, had the ability to comply with the 6 May 2013 order, and

willfully refused to do so without justification. The trial

court concluded that defendant was in willful civil contempt of

its 6 May 2013 order, and ordered defendant to pay $11,200 in

accrued alimony, and $2,000 in attorney’s fees, within 30 days -4- of 30 September 2013. If defendant failed to make these

payments, then a warrant for his arrest was to issue, and

defendant would be confined in the common jail of New Hanover

County. Defendant was also ordered to pay $750 for the costs

and fees associated with the contempt hearing.

From the 6 November 2013 contempt order, defendant appeals.

II. Contempt Order

In his first argument, defendant contends that the trial

court’s findings of fact were not supported by the evidence, and

therefore do not support the entry of an order of contempt. We

disagree in part and agree in part.

A. Standard of Review

The standard of review for contempt proceedings is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law. Findings of fact made by the judge in contempt proceedings are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing upon their sufficiency to warrant the judgment.

Watson v. Watson, 187 N.C. App. 55, 64, 652 S.E.2d 310, 317

(2007) (citations and quotations omitted), disc. review denied,

362 N.C. 373, 662 S.E.2d 551 (2008).

To hold a defendant in civil contempt, the trial court must find the following: (1) the -5- order remains in force, (2) the purpose of the order may still be served by compliance, (3) the non-compliance was willful, and (4) the non-complying party is able to comply with the order or is able to take reasonable measures to comply. In order to find that a defendant acted willfully, the court must find not only failure to comply but that the defendant presently possesses the means to comply. Wilfulness [sic] in matters of this kind involves more than deliberation or conscious choice; it also imports a bad faith disregard for authority and the law.

Shippen v. Shippen, 204 N.C. App. 188, 190, 693 S.E.2d 240, 243

(2010) (citations and quotations omitted).

B. Analysis

Defendant acknowledges that he failed to make any of the

alimony payments ordered by the trial court, but argues that

this was not sufficient to support the trial court’s findings in

support of its contempt order. Defendant argues that plaintiff

was required to show that defendant’s failure to pay was

willful, and that the evidence presented at trial did not

support a finding of willfulness.

We first note that there is no transcript of the contempt

hearing before us, but rather a narrative summary of the

contempt hearing prepared by defendant. The narration is in the

form of questions and answers, but is not a transcript certified

by a court reporter. -6- At the 30 September 2013 contempt hearing, plaintiff

testified that defendant had failed to pay the $8,000 in back

alimony and the $2,000 in attorney’s fees previously ordered by

the court. She also testified that defendant had failed to pay

any prospective alimony of $800 per month commencing in June of

2013. Plaintiff’s testimony concerning defendant’s ability to

pay these sums was very vague. The testimony pertinent to

defendant’s ability to pay was as follows:

1. Defendant had recently remarried.

2. In April, defendant went on a 7-day cruise with the children of his marriage to plaintiff, along with his new wife, his new mother-in-law, and his new stepson, to Jamaica.

3. Defendant recently took a trip to Germany with his new wife.

4. Plaintiff heard from her children that defendant recently took a trip to Chicago.

5. Defendant purchased smart phones for the children of his marriage to plaintiff, which plaintiff returned to defendant.

6. Plaintiff “guessed” that the April cruise to Jamaica cost $15,000. She did not venture a guess as to the costs of either the trip to Germany or the trip to Chicago.

7. Plaintiff never testified as to whether defendant paid for any of these trips.

8. Defendant was current on his monthly child support obligation, and was also -7- current in paying for the children’s tuition at a private school.

Over the objection of the plaintiff, defendant’s counsel

introduced an affidavit of the defendant concerning his

financial condition. Defendant did not appear or testify at the

contempt hearing. The affidavit contained the following

information pertinent to his ability to pay:

1. Defendant’s net monthly income in September of 2013 was $6,942.22. In the trial court’s order of 6 May 2013, the court found defendant’s net monthly income to have been $9,567.45. There is no explanation in defendant’s affidavit for the $2,600 per month difference.

2. Defendant has paid the monthly child support and private school tuition for his daughters.

3. Under the 6 May 2013 court order, defendant was ordered to pay all marital debts, and particularly a debt to the United States Internal Revenue Service of $16,801.44.

Based upon the evidence presented at the contempt hearing,

the trial court found that defendant had failed to pay the

$8,000 in back alimony, the $2,000 in attorney’s fees, and the

monthly alimony payments from June 2013 through September 2013,

as ordered in the 6 May 2013 order. The only finding pertaining

to defendant’s ability to comply and the willfulness of his

conduct was finding of fact 6: -8- 6. The Defendant has the present ability to comply with the prior Order of this Court and his refusal and failure to do so is wilful [sic] and without just cause, excuse or justification.

We note that much of what was contained in defendant’s

affidavit, his counsel’s argument to the trial court, and his

brief to this Court are arguments that defendant should not be

required to pay alimony, and cannot afford to pay alimony. The

question of the appropriateness of the award of alimony and the

amount of alimony was previously decided by this Court in Hunt

v. Hunt, ___ N.C. App. ___, 759 S.E.2d 712. Judge Corpening

previously heard the case, and it was appropriate for him to

consider defendant’s monthly income and expenses as found in the

original order filed less than five months prior to the contempt

hearing. It was also appropriate for him to consider the amount

of defendant’s monthly income as found in the 6 May 2013 order

to determine whether defendant’s failure to pay the alimony of

$800 per month for the months of June, July, August and

September of 2013 was willful. Defendant’s affidavit did not

state that he had suffered any reduction in income since the

entry of the 6 May 2013 order. Apparently, Judge Corpening

found defendant’s assertions in his affidavit as to his income

and expenses were simply not credible. -9- We hold that with respect to the June, July, August and

September alimony payments of $800 per month, there was

competent evidence to support findings that defendant failed to

make those payments, that he had the ability to do so, and that

his failure to make the payments was willful. We affirm this

portion of the trial court’s order.

However, with respect to the trial court’s holding that

defendant was in contempt for failing to pay back alimony and

attorney’s fees totaling $10,000, we are compelled to reverse

and remand this ruling for further findings of fact. While the

order of 6 May 2013 is in the record, the distribution of

marital property was made in an attachment to the order, which

is not in the record. We thus have no evidence before us as to

defendant’s assets. The only other evidence potentially

relevant to this issue was plaintiff’s testimony concerning the

trips to Jamaica, Germany, and Chicago. Based upon the

narrative evidence before us, plaintiff did not testify that

defendant paid for any of these trips, and was uncertain as to

whether the Chicago trip was for business purposes.

With respect to defendant’s assertion concerning the debt

owed to the Internal Revenue Service, defendant documented this

with a notice of intent to levy in the amount of $16,801.44 -10- dated 22 April 2013. We hold that this was insufficient

evidence upon which to base a finding of fact that defendant had

the ability to pay the $10,000 and that his failure to pay was

willful. We reverse this portion of the trial court’s order and

remand for additional findings of fact. In its discretion, the

trial court may allow additional evidence.

III. Attorney’s Fees

In his second argument, defendant contends that the trial

court erred in awarding attorney’s fees to plaintiff in its 6

May 2013 order. In his notice of appeal in this case, defendant

appeals only from the contempt order, not the original order

containing the award of attorney’s fees. We hold therefore that

defendant has failed to preserve this issue. N.C. R. App. P.

28(b)(6).

Even assuming arguendo that defendant preserved this issue,

we note that we have previously ruled upon the matter of

attorney’s fees in this case. Defendant appealed from the

original order awarding attorney’s fees in Hunt v. Hunt, ___

N.C. App. ___, 759 S.E.2d 712. In that case, we held that the

trial court did not abuse its discretion in including the

services of a paralegal in the cost of attorney’s fees, but

remanded the matter to the trial court due to inadequate -11- findings of fact. Id. As this issue has been previously

remanded to the trial court, we hold that it is moot, and not

properly before us. We therefore dismiss this portion of

defendant’s appeal.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART, DISMISSED

IN PART.

Judge GEER concurs.

Judge HUNTER, Robert N., Jr. concurred prior to 6 September

2014.

Report per Rule 30(e).