Opinion
No. COA12–685.
2013-02-5
Ann W. BECK, Plaintiff–Appellant, v. Leonard James BECK, Sr. and Maritime Yacht Brokerage, Inc., Defendants–Appellees.
Jonathan McGirt; and Sandlin & Davidian, PA, by Deborah Sandlin, for Plaintiff–Appellant. Ward and Smith, P.A., by John M. Martin, for Defendants–Appellees.
Appeal by Plaintiff from order entered 14 November 2011 by Judge J.H. Corpening, II, in District Court, New Hanover County. Heard in the Court of Appeals 8 January 2013. Jonathan McGirt; and Sandlin & Davidian, PA, by Deborah Sandlin, for Plaintiff–Appellant. Ward and Smith, P.A., by John M. Martin, for Defendants–Appellees.
McGEE, Judge.
Ann Wadsworth Beck (Plaintiff) and Leonard James Beck, Sr. (Defendant) married on 12 October 1961. Plaintiff filed an action on 25 June 2004 for absolute divorce, post-separation support, alimony, equitable distribution, sequestration of marital home, temporary restraining order, and attorney's fees. Plaintiff and Defendant entered into an agreement that was entered as a consent order on 8 March 2005 (the consent order). Their divorce was finalized on 10 June 2005.
The consent order settled all outstanding issues, except for the claim for absolute divorce, and included the following relevant provision:
[PLAINTIFF'S] PROPERTY: [PLAINTIFF] shall have as her sole and separate property, ... the following:
....
Life insurance policies, both whole life and term policies; [Defendant] shall continue to pay the premiums on both life insurance policies. The beneficiaries of said policies shall be maintained with [Plaintiff] as the primary beneficiary and then the PARTIES' children as secondary beneficiaries[.]
One of these life insurance policies was issued by Valley Forge Life Insurance Company (the policy).
Plaintiff filed a motion to show cause on 30 June 2010, requesting a show cause order against Defendant for contempt. Plaintiff alleged in her motion that Defendant had “willfully violated” the consent order by refusing to “renew/replace” the policy after Defendant had let it expire on 20 July 2008. An order to show cause was filed on 20 July 2010 and ordered Defendant to appear and show cause why he should not be held in contempt for failure to comply with the consent order.
Defendant filed a motion in the cause on 3 September 2010. In his motion, Defendant requested that the amount of alimony he was required to pay Plaintiff be reduced, and that he be released from the provisions of the consent order that required him to maintain the two life insurance policies. Defendant alleged that his circumstances had materially changed because he was no longer earning as much as when the consent order was entered, and that “[d]ue to the actions of ... Plaintiff ... the premiums on the life insurance policies have substantially increased to such a level that Defendant ... can no longer afford to pay said premiums[.]” These motions were heard on 3 and 17 May 2011. The trial court entered an order on 22 July 2011, denying Defendant's motion to reduce alimony and ordering Defendant to pay $3,500.00 in attorney's fees and costs. In an order entered 14 November 2011, the trial court concluded that Defendant's failure to maintain the policy was not willful, and ruled that Defendant should not be held in contempt of court for this failure. Plaintiff appeals from the 14 November 2011 order.
I.
The issues on appeal are whether (1) the trial court erred in failing to find Defendant in contempt for violation of a provision of the consent order, and (2) the trial court erred by modifying the consent order without jurisdiction. We affirm the order of the trial court.
II.
In Plaintiff's first argument, she contends that the trial court erred by failing to find Defendant in contempt of court for Defendant's failure to maintain the policy. We disagree.
“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.” Sharpe v. Nobles, 127 N.C.App. 705, 709, 493 S.E.2d 288, 291 (1997) (citation omitted). “Because [P]laintiff has not challenged any of the trial court's findings of fact, they are binding on appeal, and we must consider only whether the findings of fact supported the conclusions of law.” Pass v. Beck, 210 N.C.App. 192, ––––, 708 S.E.2d 87, 91 (2011) (citations omitted).
Although the statutes governing civil contempt do not expressly require willful conduct, seeN.C. Gen.Stat. §§ 5A–21 to 5A25 (1986), case law has interpreted the statutes to require an element of willfulness. In the context of a failure to comply with a court order, the evidence must show that the person was guilty of “knowledge and stubborn resistance” in order to support a finding of willful disobedience.
Sharpe, 127 N.C.App. at 709, 493 S.E.2d at 290–91 (citations omitted).
The trial court made the following relevant uncontested findings of fact:
The [Consent] Order ... provided that Defendant could continue to maintain and pay the premiums on two Life Insurance Policies, one whole life policy and one term policy, with Plaintiff as primary beneficiary and the parties' children as secondary beneficiaries. There was no time limit on how long Defendant would maintain the policies.
At the time of the entry of the Consent Order, Defendant's annual premiums were $782.00 per year.
One of the life insurance policies that Defendant was maintaining was through Valley Forge Life Insurance Company.
According to the documents presented, the Plaintiff received correspondence from Valley Forge Life Insurance Company dated May 9, 2005 offering Defendant options to negotiate the premium. This letter was not received by ... Defendant from ... Plaintiff until February 3, 2006 and ... Defendant was unable to negotiate a reasonable premium payment for subsequent years.
For the years 2005, 2006 and 2007, ... Defendant received yearly premiums of $782.00 which were paid. Because of his advancing age and the inability to negotiate the premiums with Valley Forge Life Insurance Company, the premium due and owing for the year 2008 and each year thereafter was $4,594.00, nearly six times the previous premium required to be paid by him.
... Defendant is maintaining one of the insurance policies as required by the [Consent] Order and the [c]ourt has denied his request to reduce his alimony.
Based upon these findings of fact, the trial court concluded: “The failure of ... Defendant to ... make the premium payments [on the policy] was not willful and was not due to his neglect or fault.” The trial court denied Plaintiff's motion to hold Defendant in contempt.
We hold that the trial court's findings of fact support a conclusion that Defendant was not “guilty of ‘knowledge and stubborn resistance’ “ and, therefore, support its conclusion that Defendant did not commit “willful disobedience” of the consent order. Sharpe, 127 N.C.App. at 709, 493 S.E.2d at 290–91 (citations omitted). Because the findings support the conclusion that Defendant's actions were not willful, the trial court did not err in ruling that Defendant not be held in contempt. Id.
III.
In Plaintiff's second argument, she contends that the trial court erred “by effectively modifying the equitable distribution provisions of the consent order by finding that Defendant was not in contempt[.]” We disagree.
Plaintiff argues that, by refusing to hold Defendant in contempt for his failure to maintain the policy, “the court effectively and impermissibly modified the Consent Order” because if Defendant is not forced to comply with the consent order, it has been rendered meaningless—at least concerning that provision. The trial court did not modify the consent order, as Plaintiff seems to recognize through the use of the adverb “effectively.” Plaintiff, in violation of Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure, cites no authority for her proposition that a trial court must always find a party in contempt if to do otherwise would “effectively” modify an order that the trial court was without jurisdiction to modify. N.C.R.App. P. 28(b)(6). This likely is because there is no such authority.
Further, the decision to find, or not find, a party in contempt is made on the basis of the appropriate standards for contempt. See Sharpe, 127 N.C.App. at 709, 493 S.E.2d at 290–91. If the trial court finds no willfulness, the trial court may not find contempt. Id. The consent order has not been modified; Defendant has only been found not to have been in contempt for failing to fully comply with it. This argument is without merit.
Affirmed. Judges HUNTER, ROBERT C. and ELMORE concur.
Report per Rule 30(e).