Opinion
No. COA09-984.
Filed February 2, 2010.
Buncombe County No. 82CVD871.
Appeal by defendant from an order entered 30 March 2009 by Judge Marvin P. Pope, Jr. in Buncombe County District Court. Heard in the Court of Appeals 2 December 2009.
Gum, Hillier McCroskey, P.A., by Howard L. Gum; and Carter Kropelnicki, P.A., by Steven Kropelnicki, Jr., for plaintiff-appellee. The McDonald Law Office, P.A., by Diane K. McDonald, for defendant-appellant.
Russell M. Martin ("defendant") appeals the 30 March 2009 order holding him in civil contempt for failing to comply with a previous order requiring him to pay alimony to his ex-wife, Doris-Marie Martin ("plaintiff"). For the following reasons, we affirm.
On 30 April 1984, plaintiff and defendant entered into a consent judgment that required defendant to make an alimony payment to plaintiff on the first day of each month. That provision of the consent judgment had not been modified and therefore, remained in force. On 21 November 2008, plaintiff and defendant entered into an order that modified the amount of the alimony payment ("the underlying order"). That order increased defendant's monthly payment from $2,600.00 to $4,400.00, retroactively enforceable from 1 August 2008. On 5 December 2008, defendant appealed the 21 November 2008 order to this Court.
Plaintiff's counsel notified defendant's counsel on 10 December 2008 that plaintiff expected defendant to comply with the 21 November 2008 order until this Court decided the appeal, pursuant to North Carolina General Statutes, section 50-16.7(j). On or about 15 December 2008, defendant mailed plaintiff a $2,600.00 check
together with a letter stating that his attorney had advised him to continue to give [p]laintiff a check of $2,600 while the matter is on appeal, and that because of the appeal the order for an increase would be stayed until the decision is rendered; that on Friday evening he received a copy of the letter [sent by plaintiff's counsel]; that [d]efendant's attorney has been tied up and he has not been able to get any guidance so he is delivering the check for $2,600, and if it is determined that he must comply with the current ruling, he will send it promptly.
Defendant continued to make monthly payments of $2,600.00 to plaintiff through March 2009.
On 29 January 2009, plaintiff filed a motion to show cause based upon defendant's having continued to pay her $2,600.00 a month as opposed to the $4,400.00 required by the 21 November 2008 order. The trial court issued an order to show cause. On 18 February 2009, defendant filed his response to plaintiff's motion to show cause, alleging, inter alia, that
4. It is understood that the [p]laintiff's attorney sent a letter to the [d]efendant's attorney advising that pursuant to NCGS 50-16.7(j) the [p]laintiff expected to be paid during the time of the appeal; the [p]laintiff must understand that NCGS 50-16.7(j) also provides "Upon motion of an aggrieved party (in this case, the [d]efendant), the court of the appellate division in which the appeal is pending may stay any order for civil contempt entered for alimony until the appeal is decided if justice requires." That a Petition has been prepared, and shall be filed with the Court of Appeals prior to the hearing on the Motion to Show Cause.
. . . .
6. The [d]efendant is unable with his present income to pay the sum of $4,400 a month; that this inability is not willful.
7. . . . [T]he only way that the [d]efendant could pay the alimony that has been ordered in the Order that is now on appeal, is to deplete his estate which is not allowed under the law of North Carolina. Dodson v. Dodson, [ 190 N.C. App. 412,] 660 [S.E.2d] 93 (2008) where the Court of Appeals found that after deduction of the Husband's alimony obligation from his net monthly income, the remaining balance was insufficient to meet his reasonable monthly needs. The Court then held "[a]limony payments cannot reduce a supporting party to poverty." Id. at [417, 660 S.E.2d at] 96 [sic].
. . . .
9. The [d]efendant's non-payment of the $4,400 alimony has not been willful; for him to make the $4,400 a month payment would mean that he would deplete his estate in a two year period of time[.] . . .
The trial court heard the matter on 24 March 2009 and issued an order of contempt on 30 March 2009, which calculated the amount of arrearage as $14,400.00 and included an award of attorneys' fees. In an order entered 9 April 2009, the trial court set the award of attorneys' fees at $2,969.50. Subsequently, but prior to 29 May 2009, defendant paid plaintiff $14,400.00 in arrears, the April alimony payment of $4,400.00, and $2,969.50 in attorneys' fees. Defendant appeals.
Defendant's first two arguments challenge the contempt order's findings of fact and conclusions of law that concern the amount of defendant's alimony payment, the retroactive nature of the payment, and the due date of each monthly payment. In essence, defendant attacks the underlying order for modification of his alimony payment — an order which is the subject of a separate appeal. Without venturing into the merits of the underlying order, we confine our analysis to the time period between the hearing for the underlying order and the contempt proceeding. We disagree with defendant's contention that the contempt order's findings of fact and conclusions of law are not supported.
We review a contempt proceeding by determining "`whether the findings of fact by the trial judge are supported by competent evidence and whether those factual findings are sufficient to support the judgment.'" Ugochukwu v. Ugochukwu, 176 N.C. App. 741, 745, 627 S.E.2d 625, 627 (2006) (quoting McMiller v. McMiller, 77 N.C. App. 808, 810, 336 S.E.2d 134, 136 (1985)). "`Findings of fact are binding on appeal if there is competent evidence to support them, even if there is evidence to the contrary.'" File v. File, ___ N.C. App. ___, ___, 673 S.E.2d 405, 409 (2009) (quoting State v. Simon, 185 N.C. App. 247, 250, 648 S.E.2d 853, 855 (citations and quotation marks omitted), disc. rev. denied, 361 N.C. 702, 653 S.E.2d 158 (2007)).
Initially, we note that "[a]ny order for the payment of alimony or postseparation support is enforceable by proceedings for civil contempt, and its disobedience may be punished by proceedings for criminal contempt, as provided in Chapter 5A of the General Statutes." N.C. Gen. Stat. § 50-16.7(j) (2007). In order for a court to determine that a party is in civil contempt of an order, four elements must be met:
(1) The order remains in force;
(2) The purpose of the order may still be served by compliance with the order;
(2a) The noncompliance by the person to whom the order is directed is willful; and
(3) The person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable the person to comply with the order.
N.C. Gen. Stat. § 5A-21(a) (2007).
Here, the trial court had the authority, pursuant to North Carolina General Statutes, section 50-16.7(j), to hold defendant in contempt for his failure to comply with the underlying order. Defendant does not challenge on appeal whether the underlying order remains in force or whether the purpose of that order still may be served. Therefore, the sole question before us is whether competent evidence existed to support the findings of fact related to defendant's willful noncompliance and his ability to comply, North Carolina General Statutes, sections 5A-21(a)(2a) and (a)(3), respectively.
At the contempt proceeding, defendant offered evidence of his financial situation. However, in response to questions by plaintiff's counsel, defendant admitted that his income has increased and his expenses have decreased since the hearing on the underlying case. In addition, plaintiff offered evidence of a 15 December 2008 letter, in which defendant wrote, ". . . I'm delivering this check for $2600 today. And if it is determined that I must comply with the current ruling, I will send it promptly." Defendant further admitted that, from his various accounts — checking, IRA, and "house money" — he would have sufficient funds to pay plaintiff $4,400.00 on the first day of each month. This evidence constitutes competent evidence upon which the trial court could base its findings of fact that
14. Defendant presently has the ability to comply with the November 21, 2008 Order and provisions of the prior Orders of this Court that are now in effect.
15. The [d]efendant's noncompliance with the Orders of this Court has been willful.
These findings of fact, in addition to the unchallenged findings of fact, support the trial court's conclusions of law that
19. At the time of the entry of the November 21, 2008 Order, and prior Orders entered in this cause, [d]efendant had the means and ability to comply with same.
20. Defendant presently has the ability to comply with the November 21, 2008 Order and provisions of the prior Orders of this Court that are now in effect.
21. The failure of the [d]efendant to comply with the Orders of this Court as hereinabove described is willful, deliberate, and without just cause.
22. Defendant is in civil contempt of this Court's Order directing him to pay alimony to [p]laintiff on the first day of each month.
23. Defendant is in civil contempt of this Court's Order directing him to pay alimony to [p]laintiff in the amount of $4,400 retroactive to August 1, 2008.
The order's findings of fact and conclusions of law fulfill the requirements of North Carolina General Statutes, section 5A-21(a), which govern civil contempt. Even though defendant presented evidence of the financial difficulty he has obtaining funds in order to meet his alimony obligations, "[t]he weight, credibility, and convincing force of such evidence is for the trial court, who is in the best position to observe the witnesses and make such determinations." Freeman v. Freeman, 155 N.C. App. 603, 608, 573 S.E.2d 708, 712 (2002) (citing Upchurch v. Upchurch, 128 N.C. App. 461, 495 S.E.2d 738, disc. rev. denied, 348 N.C. 291, 501 S.E.2d 925 (1998)). Accordingly, we affirm the trial court's order holding defendant in civil contempt for his failure to comply with the underlying order.
Defendant also argues that the trial court erred by placing defendant in custody until he paid the arrearage. Defendant premises his third argument upon the impropriety of the trial court's findings of fact and upon caselaw that holds imprisonment improper when noncompliance is not willful or when the party was unable to comply. See, e.g., Henderson v. Henderson, 307 N.C. 401, 409, 298 S.E.2d 345, 351 (1983) ("If, as here, the finding that the failure to pay was willful is not supported by the record, the decree committing defendant to imprisonment for contempt must be set aside."); Mauney v. Mauney, 268 N.C. 254, 257-58, 150 S.E.2d 391, 394 (1966) (holding that the lack of a finding of fact as to defendant's ability to comply with the underlying order rendered the judgment of civil contempt improper). Because we hold that the trial court's findings of fact were supported by competent evidence, we reject defendant's third argument.
Defendant's final argument is that the trial court erred when it ordered defendant to pay plaintiff's attorneys' fees incident to the contempt proceeding. We disagree.
We previously have noted that "[a]n award of attorneys' fees will be stricken only if the award constitutes an abuse of discretion." Cox v. Cox, 133 N.C. App. 221, 227, 515 S.E.2d 61, 66 (1999) (citing Clark v. Clark, 301 N.C. 123, 136, 271 S.E.2d 58, 67 (1980)). "Attorneys' fees can be properly awarded in custody, child support and alimony cases upon adequate findings of fact that the moving party acted in good faith and had insufficient means to defray the expense of the suit." Id. at 227-28, 515 S.E.2d at 66 (citing N.C. Gen. Stat. § 50-13.6). "The trial court must also make specific findings of fact concerning the lawyer's skill, the lawyer's hourly rate and the nature and scope of the legal services rendered." Id. at 231, 515 S.E.2d at 68 (citing In re Baby Boy Scearce, 81 N.C. App. 662, 663-64, 345 S.E.2d 411, 413, disc. rev. denied, 318 N.C. 415, 349 S.E.2d 589 (1986)). "Whether these statutory requirements are met is a question of law, reviewable on appeal." Id. (citing Taylor v. Taylor, 343 N.C. 50, 54, 468 S.E.2d 33, 35, reh'g denied, 343 N.C. 517, 472 S.E.2d 25 (1996)).
In the instant case, the trial court made the requisite finding of fact that
[p]laintiff is an interested party acting in good faith who does not have the means to defray the expense of this action, and her attorney has rendered further legal services to [plaintiff] in this cause in the preparation, filing and hearing of this motion on behalf of [plaintiff]. Plaintiff is in need of an award of counsel fees in order to meet [d]efendant as a litigant.
However, the competent evidence necessary to support this finding was not available until plaintiff's attorney submitted an affidavit detailing his skill level, hourly rate, and the nature and scope of the services he rendered with respect to the show cause motion and contempt hearing. When the trial court actually ordered attorneys' fees awarded to plaintiff, it enumerated the facts given in plaintiff's attorney's affidavit and calculated an award of $2,969.50 as a reasonable amount. This 8 April 2009 order complied with the statutory and caselaw requirements for an award of attorneys' fees. Therefore, we hold that the trial court did not abuse its discretion in awarding attorneys' fees to plaintiff.
For the reasons stated above, we hold that the trial court's findings of fact were supported by competent evidence and that its conclusions of law were supported by the findings of fact. We also hold that the trial court erred neither by ordering that defendant be imprisoned nor by requiring defendant to pay plaintiff's attorneys' fees incident to the contempt proceeding.
Affirmed.
Judges HUNTER, Robert C. and BRYANT concur.
Report per Rule 30(e).