An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-673 NORTH CAROLINA COURT OF APPEALS Filed: 16 December 2014 DONNA TAYLOR, Plaintiff
Buncombe County v. No. 12 CVD 4993
CHRISTOPHER D. TAYLOR, Defendant
Appeal by plaintiff from order entered 6 November 2013 by
Judge Ward D. Scott in Buncombe County District Court. Heard in
the Court of Appeals 22 October 2014.
The Moore Law Firm, by Jennifer W. Moore, for Plaintiff.
Steven Kropelnicki for Defendant
ERVIN, Judge.
Plaintiff Donna Taylor (now Sampson) appeals from an order
holding her in civil contempt and establishing conditions by
means of which she was entitled to purge herself of contempt.
On appeal, Plaintiff contends that the trial court erred by
holding her in contempt, establishing a set of unreasonable
conditions by means of which she could purge herself of
contempt, ordering her to purge herself of contempt by paying -2- compensatory damages to Defendant, and requiring her to pay
attorney’s fees to Defendant as a purge condition. After
careful consideration of Plaintiff’s challenges to the trial
court’s order in light of the record and the applicable law, we
conclude that the trial court erred by determining that
Plaintiff could purge herself of civil contempt by paying
compensatory damages to Defendant, that those portions of the
trial court’s order requiring that Plaintiff pay compensatory
damages to Defendant as a purge condition should be vacated, and
that the remainder of the trial court’s order should be
affirmed.
I. Factual Background
Plaintiff and Defendant were married on 10 November 1992
and separated 3 September 2012. On 17 October 2012, Plaintiff
filed an action seeking equitable distribution, post-separation
support, and alimony. On 28 November 2012, the parties settled
the outstanding equitable distribution claim and Plaintiff
dismissed her claims for post-separation support, alimony, and
attorney fees. On 15 January 2013, Judge Julie Kepple entered a
judgment that embodied the terms of the 28 November 2012
agreement and that awarded Plaintiff, among other things, the
marital residence, an automobile, household goods and other
items of property exclusive of “[D]efendant’s personal -3- belongings that may still be situated in the home” and “the
contents of the garage as of the date of separation which shall
be the sole property of the Defendant.” In addition to his
personal belongings and the contents of the garage, Defendant
was also awarded, among other things, “[h]is jewelry including
his wedding ring”; “[a]ll property owned by him prior to the
marriage and any property acquired by gift or inheritance”; a
“1952 Chevy truck and all parts associated with the vehicle”
which was “currently titled in the name of Plaintiff’s father,”
with Plaintiff being ordered to “request that her father
transfer that title to Defendant.”
On 22 December 2012, Defendant brought his father and
cousin to the former marital residence for the purpose of
retrieving the items listed in the 15 January 2013 judgment.
Defendant was not, however, able to recover any of these items
because deputies from the Buncombe County Sheriff’s Department
arrived and informed him that he was not supposed to be on the
property. On 26 February 2013, the parties entered into a
consent order which provided that, “[o]n 02 March 2013,
Plaintiff shall allow Defendant to remove all items of personal
property awarded to him in the Equitable Distribution Judgment,”
with “[a]ll items that have been awarded to Defendant in the
Judgment [to] be placed in the garage for Defendant to take.” -4- The trial court entered a civil restraining order against
Defendant by consent on the same day.
Defendant arrived at the marital residence to take
possession of the property allocated to him in the 15 January
2013 judgment on 2 March 2013. However, Defendant was refused
access to the Chevrolet truck by an off-duty deputy hired by
Plaintiff. In addition, Defendant found that a number of items
to which he was entitled and that had been left in the garage on
the date of separation were missing.
On 6 March 2013, Defendant filed a motion seeking the entry
of an order finding Plaintiff in contempt for refusing to allow
him to retrieve all of the items that he had been awarded in the
15 January 2013 judgment. On 11 April 2013, a hearing on
Defendant’s motion was held. At that hearing, Defendant
described the items that he was and was not able to retrieve
from the marital property, including, but not limited to, the
1952 Chevrolet truck and associated parts.
On 26 April 2013, the trial court entered an order finding
Plaintiff in civil contempt; authorizing her to purge herself of
the contempt by complying with prior orders of the court; and
ordering her to allow Defendant to enter the home, the shed, and
the garage that were located on the site of the marital
residence for the purpose of finding and removing the items of -5- property that had been awarded to him in the 15 January 2013
judgment. On 24 June 2013, the parties were ordered to file
affidavits setting forth their opinions with respect to the fair
market value of the items that Defendant had not been able to
retrieve. Plaintiff and Defendant filed the required affidavits
on 3 July 2013 and 9 July 2013, respectively.
On 27 April 2013, Defendant went to the marital residence
to retrieve the remaining property to which he was entitled
under the 15 January 2013 judgment. At that time, Defendant
discovered that several items that he was entitled to remove
from the premises were missing or had been tampered with.
Although Defendant was able to take the Chevrolet truck into his
possession, he noticed, upon further inspection, that metal
filings, debris and motor oil had been poured into the engine at
some point during the time that the truck was in Plaintiff’s
possession.
On 25 June 2013, Defendant filed another motion seeking to
have Plaintiff held in contempt for failing to comply with the
court’s prior orders. In his motion, Defendant requested that
Plaintiff be held in contempt and incarcerated until she paid
the cost of repairing the damaged truck engine, or in the
alternative, that Plaintiff be held in criminal contempt and
punished for her contemptuous conduct. After holding a hearing -6- for the purpose of considering Defendant’s motion on 27 August
2013, the trial court entered an order on 6 November 2013
finding that Plaintiff had intentionally and deliberately failed
to deliver the truck engine to Defendant in good repair despite
having had the ability to do so. In addition, the trial court
found that Plaintiff had willfully failed to deliver a number of
other items with an aggregate value of $5,431.25 to Defendant
and that Defendant had incurred $11,240.97 in attorney’s fees in
connection with his efforts to enforce the 15 January 2013
judgment. The trial court found Plaintiff in civil contempt
for violating prior orders of the court and authorized Plaintiff
to purge herself of contempt by paying the sum of $5,431.25 to
Defendant within 90 days; paying attorney’s fees in the amount
of $11,240.97 to Defendant within 90 days; and paying
“Defendant’s invoice for the truck engine for up to $7,000
within 90 days after receipt of the invoice.” Finally, the
trial court ordered that, in the event that Plaintiff failed to
comply with these judicially established purge conditions,
Defendant was entitled to seek further relief, including
incarceration, by making a proper application to the court.
Plaintiff noted an appeal to this Court from the trial court’s
order.
I. Legal Analysis -7- A. Findings in Support of Legal Conclusions
In her first challenge to the trial court’s order,
Plaintiff contends that the trial court erred by determining
that Plaintiff could purge herself of contempt by paying various
amounts of money on the grounds that the trial court’s findings
of fact failed to support the trial court’s decision to hold her
in contempt. Plaintiff’s contention lacks merit.
A litigant’s failure to comply with a prior order of the
court constitutes a continuing civil contempt as long as the
order remains in force, the purpose of the order may still be
served by compliance with the order, the noncompliance by the
person to whom the order is directed is willful, and the person
to whom the order is directed is able to comply with the order
or to take reasonable measures that would permit compliance with
the order. N.C. Gen. Stat. § 5A-21. “In a domestic relations
action, a consent judgment which has been adopted by the court
may be enforced by civil contempt.” Hartsell v. Hartsell, 99
N.C. App. 380, 384, 393 S.E.2d 570, 573, appeal dismissed and
disc. review denied, 327 N.C. 482, 397 S.E.2d 218 (1990), aff’d
per curiam, 328 N.C. 729, 403 S.E.2d 307 (1991). “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.” -8- Trivette v. Trivette, 162 N.C. App. 55, 60, 590 S.E.2d 298, 302-
303 (2004) (quoting Sharpe v. Nobles, 127 N.C. App. 705, 709,
493 S.E.2d 288, 291 (1997)). Findings of fact made during a
contempt proceeding 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.”
Hartsell, 99 N.C. App. at 385, 393 S.E.2d at 573.
In her brief, Plaintiff challenges Finding of Fact No. 15,
which states that “Plaintiff failed to comply with the terms of
the Equitable Distribution Judgment in that she intentionally
and deliberately did not distribute the truck engine in good
condition, in direct disobedience of the court’s order.”
According to Plaintiff, since neither she nor Defendant owned
the truck, the trial court lacked the authority to order the
truck’s distribution in the 15 January 2013 judgment, a fact
that, in Plaintiff’s opinion, prohibited the trial court from
holding her in contempt for failing to deliver the truck to
Defendant in good condition. A decision to accept the validity
of Plaintiff’s argument would, however, put us in the position
of overturning a portion of the original equitable distribution
order. Aside from the fact that Plaintiff consented to the
entry of the trial court’s order, Nickels v. Nickels, 51 N.C.
App. 690, 693, 277 S.E.2d 577, 579 (stating that “[a] consent -9- judgment cannot be set aside except upon proper allegation and
proof that consent was not in fact given or that it was obtained
by fraud or mutual mistake”), disc. review denied, 303 N.C. 545,
281 S.E.2d 392 (1981), Plaintiff failed to either note an appeal
from the 15 January 2013 judgment in a timely manner, N.C.R.
App. P. 3(c)(1) (providing that a party must file and serve a
notice of appeal in a civil action within 30 days from the entry
of judgment), or seek relief from the equitable distribution
judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b). As a
result, since Plaintiff consented to the entry of the equitable
distribution judgment and has failed to challenge its validity
in a legally recognized manner, Plaintiff has no choice except
to comply with the trial court’s order. As a result, the trial
court did not err by utilizing the information contained in
Finding of Fact No. 15 to support its decision to find Plaintiff
in contempt.
In addition, Plaintiff contends that Finding of Fact No. 6,
in which the trial court found that Plaintiff should have
delivered the specific items listed in Finding of Fact No. 5 to
Defendant in accordance with the 15 January 2013 judgment,
lacked adequate evidentiary support given that the items of
property listed in Finding of Fact No. 5 were not specifically
identified in the 15 January 2013 judgment. In other words, -10- Plaintiff’s argument rests on the contention that she cannot
lawfully be held in contempt for failing to allow Defendant to
obtain items that she was never ordered to distribute in the
first place. Plaintiff has not, however, cited any authority
requiring that items of property be identified in an equitable
distribution order more distinctly than the property
identification provisions of the equitable distribution order in
order for the distribution to become mandatory, and we know of
none. As a result of the fact that the equitable distribution
judgment awarded Defendant, in pertinent part, “the contents of
the garage” as of date of separation, “[t]ools,” “[h]is jewelry
including his wedding ring,” and “[a]ll property owned by him
prior to the marriage and any property acquired by gift or
inheritance” and the fact that the record contains evidentiary
support for the trial court’s determination that the specific
items that Defendant claimed to be entitled to obtain were
included in the items of property to be distributed to him in
accordance with the provisions of the equitable distribution
judgment,1 the record contained competent evidence to support the
1 At the hearing, Defendant described specific items of jewelry that he was unable to recover, including a gold rope chain, a gold band, a gold nugget band, and a three diamond gold band. In addition, Defendant described the specific tools that he was unable to retrieve from the garage, including a Snap-on torque wrench, a Snap-on double slayer set, a blue point piston ring compressor set, a compound square, a framing square, a -11- trial court’s finding that Plaintiff failed to distribute these
items to Defendant as required by the equitable distribution
order. As a result, the record contained sufficient evidence to
support the trial court’s conclusion that certain items of
property should have been distributed to Defendant in accordance
with the equitable distribution order and that Plaintiff should
be held in contempt for failing to turn these items over to
Defendant.
The contempt order also determined that Plaintiff should be
held in contempt for failing to distribute additional items of
property to Defendant.2 However, the record is devoid of any
evidence tending to show that these additional items were in the
garage as of the date of separation or that Defendant was
otherwise entitled to receive them under the equitable
distribution judgment.3 As a result, given that there was no
evidence tending to show that Defendant was entitled to obtain
possession of these additional items of property under the
equitable distribution judgment, the trial court lacked any
framing hammer, and a wet dry shop vacuum. The trial court found Defendant’s description of these missing items to be credible and specifically rejected Plaintiff’s testimony concerning the whereabouts of these items. 2 The items in question included a Buick Grand National Model, a ’69 Camaro Model, and a Von Dutch ’53 Chevy Truck Matchbox toy. 3 In fact, Defendant testified that these model cars had been acquired during the marriage. -12- authority to hold Plaintiff in contempt for failing to
distribute these additional items to Defendant.
The fact that the trial court erred in this limited respect
is not, however, sufficient to support an award of relief from
the trial court’s contempt order. An “appellant must not only
show error, but also that the error is material and prejudicial,
amounting to a denial of a substantial right and that a
different result would likely have ensued.” Cook v. Southern
Bonded, Inc., 82 N.C. App. 277, 281, 346 S.E.2d 168, 171 (1986),
disc. review denied, 318 N.C. 692, 351 S.E.2d 741 (1987). As we
have already noted, the record contains numerous instances of
contumacious conduct on the part of Plaintiff, who deliberately
delayed distributing property to which Defendant was clearly
entitled under the equitable distribution judgment, such as the
tools and jewelry discussed earlier in this opinion.
Plaintiff’s failure to distribute these items of property formed
a more than sufficient basis for the trial court’s finding that
Plaintiff should be held in contempt without regard to the fact
that Defendant did not receive the additional items of property
discussed in the preceding paragraph. In view of this fact and
our subsequent holding that the trial court lacked the authority
to require Plaintiff to reimburse Defendant for the missing
items as a purge condition, Plaintiff has not been prejudiced by -13- the trial court’s decision to hold Plaintiff in contempt because
she failed to distribute these additional items of property to
Defendant. As a result, the trial court did not commit
prejudicial error by holding Plaintiff in contempt for her
failure to comply with prior orders of the court.
B. Failure to Establish Purge Conditions
Secondly, Plaintiff contends that the trial court erred by
finding her in contempt without affording her an opportunity to
purge herself of contempt. More specifically, Plaintiff
contends that the trial court lacked the authority to find her
in contempt for violating the 26 April 2013 contempt order given
that the purge conditions contained in the 26 April 2013 order
were so vague that Plaintiff could not possibly comply with
them. Plaintiff is not entitled to relief from the trial
court’s order on the basis of this contention.
An order holding a person in civil contempt must specify
the manner in which the person being held in contempt can purge
himself or herself of the contempt. N.C. Gen. Stat. § 5A-22.
The purge conditions adopted in response to this requirement
cannot be so vague as to render it impossible for an individual
to purge himself or herself of the contempt. Watson v. Watson,
187 N.C. App. 55, 65, 652 S.E.2d 310, 317 (2007), disc. review
denied, 362 N.C. 373, 662 S.E.2d 551 (2008). Although Plaintiff -14- now complains that the purge provisions of the 26 April 2013
order were impermissibly vague, she did not, however, note a
timely appeal to this Court from the 26 April 2013 order and has
not sought to have that order set aside. N.C. R. App. P. Rule
3(c)(1) (providing that a party wishing to challenge a trial
court order on appeal must file and serve a notice of appeal
within thirty days after the entry of judgment). Thus, since
the 26 April 2013 order remains in full force and effect and
since Plaintiff is not contending that the allegedly vague purge
conditions precluded her from understanding her obligation to
turn over various items of property to Defendant, Plaintiff is
not entitled to collaterally attack the validity of the 26 April
2013 order in the course of an appeal taken from a later order.
As a result, since this aspect of Plaintiff’s challenge to the
trial court’s order is not properly before us,4 Plaintiff is not
entitled to relief from the trial court’s order on the basis of
this argument.
4 Plaintiff has not argued that that order that is before us in this case did not delineate a series of steps that Plaintiff could take in order to purge herself of contempt. Any such contention would have been patently devoid of merit given that the order at issue here specifically provided that Plaintiff could purge herself of contempt by paying Defendant the value of the items that Defendant should have received pursuant to the equitable distribution order, reimbursing Defendant for the attorney’s fees that he incurred in attempting to enforce the trial court’s order, and paying the cost of having the truck engine repaired. -15- C. Validity of Specific Purge Conditions
1. Compensatory Damages
Thirdly, Plaintiff contends that the trial court erred in
ordering that Plaintiff could purge herself of civil contempt by
paying Defendant compensatory damages since the trial court
lacked the authority to require the payment of compensatory
damages as a purge condition. Defendant’s contention has merit.
According to the prior decisions of this Court, a trial
judge has no authority to award indemnifying fines or other
compensation to a private party in a civil contempt proceeding,
see Hartsell, 99 N.C. App. at 390-92, 393 S.E.2d at 577; United
Artists Records, Inc. v. Eastern Tape Corp., 18 N.C. App. 183,
187, 196 S.E.2d 598, 601-02, cert. denied, 283 N.C. 666, 197
S.E.2d 880 (1973), even if the party being held in contempt
deliberately and negatively affected the value of the other
party’s property while it was in his or her possession. See
Hartsell, 99 N.C. App. at 384, 393 S.E.2d at 573 (holding that
an award of compensatory damages in a contempt proceeding was
inappropriate despite the fact that, “when plaintiff took
possession of the [residence from the defendant,] it was a
‘wreck’ in that the house was full of garbage, the water pipes
had burst, flooding the inside, the yard was overgrown and full
of weeds, and part of a bedroom floor was rotted out where rain -16- had come in through an open window”). As we have already noted,
the trial court found in its contempt order that “Defendant
should be reimbursed by Plaintiff for the replacement cost of
the engine” and authorized Plaintiff to purge herself of
contempt by paying “Defendant’s invoice for the truck engine for
up to $7,000 within 90 days after receipt of the invoice.” In
addition, the trial court found that the missing items that
Defendant should have received under the 15 January 2013 order
had a value of $5,431.25 and imposed a purge condition requiring
Plaintiff to pay that sum to Defendant. The clear effect of
these purge conditions was to require Plaintiff to compensate
Defendant for the value of his missing property and for the
damage that Plaintiff had inflicted upon the truck engine. As a
result of the fact that the trial court lacked the authority to
require Plaintiff to pay compensatory damages in order to purge
herself from contempt, we must vacate the compensatory damage
portions of the trial court’s civil contempt order.
2. Attorney’s Fees
Finally, Plaintiff contends that the trial court erred by
requiring Plaintiff to pay Defendant’s attorney’s fees in the
amount of $11,240.97. More specifically, Plaintiff contends
that the trial court did not properly hold Plaintiff in contempt -17- and that the attorney’s fee award should be overturned for that
reason. We are not persuaded by Plaintiff’s argument.
As this Court has previously determined, a trial judge may
impose a purge condition requiring the payment of the other
litigant’s attorney’s fees in a case in which a party has been
found to be in contempt for violating an equitable distribution
order, Watson, 187 N.C. App. at 69, 652 S.E.2d at 320, even if
the trial court also unlawfully required the payment of
compensatory damages as a purge condition in the same case. See
Hartsell, 99 N.C. App. at 389-90, 393 S.E.2d at 576 (sustaining
an award of attorney’s fees despite having invalidated the trial
court’s award of compensatory damages in a case in which the
defendant had failed to comply with a provision contained in an
equitable distribution order requiring him to clean a house and
deliver it to the plaintiff in a tidy condition). In apparent
recognition of the trial court’s right to require her to pay
attorney’s fees to Defendant in contempt cases, Plaintiff
asserts that the trial court lacked the authority to require the
payment of Defendant’s attorney’s fees as a purge condition on
the theory that the trial court erred by holding her in
contempt, a contention that we have rejected earlier in this
opinion. As a result, given that the trial court properly found
Plaintiff to be in contempt for her failure to comply with the -18- trial court’s earlier orders, the trial court did not err by
ordering Plaintiff to pay Defendant’s attorney’s fees as a purge
condition.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
Plaintiff has not established that the trial court’s decision to
hold her in contempt should be overturned on appeal or that the
trial court erred by requiring her to pay Defendant’s attorney’s
fees as a purge condition. However, the trial court did err by
ordering Plaintiff to pay Defendant compensatory damages as a
purge condition. As a result, those portions of the trial
court’s contempt order requiring Plaintiff to pay Defendant
compensatory damages should be, and hereby are, vacated, while
the remainder of the trial court’s order should be, and hereby
is, affirmed.
AFFIRMED IN PART AND VACATED IN PART.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).