Opinion
No. COA12–245.
2012-08-7
COUNTY OF DURHAM, by and through, DURHAM DSS, ex rel. Amber WILKERSON, Plaintiff, v. Nicholas DANISI, Defendant.
Durham County Attorney's Office, by Assistant County Attorneys Danielle Briggs and Robin Martinek, for Plaintiff–Appellee. Joyce L. Terres, for Defendant–Appellant.
Appeal by Defendant from orders entered 31 October 2011 by Judge William A. Marsh, III, in Durham County District Court. Heard in the Court of Appeals 6 June 2012. Durham County Attorney's Office, by Assistant County Attorneys Danielle Briggs and Robin Martinek, for Plaintiff–Appellee. Joyce L. Terres, for Defendant–Appellant.
BEASLEY, Judge.
Nicholas Danisi (Defendant) appeals from orders entered 31 October 2011 modifying his child support obligation and holding him in civil contempt. For the following reasons, we remand both orders to the trial court for further findings of fact.
On 16 August 2006, Defendant and Amber Wilkerson entered into a voluntary support agreement which stated that Defendant would pay $393 in monthly child support, along with $20 per month towards retroactive support. On 17 February 2011, Defendant filed a motion for modification of the child support order, on the basis that circumstances had changed because he was unemployed and had not seen the minor child for over three years. On 31 May 2011, a temporary order modifying Defendant's child support obligation was entered, reducing the payments from $393 to $50 per month for ninety days and mandating that Defendant provide proof that he is actively seeking employment. Also on 31 May 2011, Durham County, on behalf of Amber Wilkerson (Plaintiff), filed a motion for order to show cause, alleging that Defendant's last child support payment was made on 25 March 2011 and that Defendant never provided any information of his inability to pay.
After a hearing, an order modifying Defendant's child support obligation was entered on 31 October 2011, finding that Defendant failed to provide sufficient evidence of his job search and ordering his child support payments to revert back to the original amount of $393 per month. A second order was also entered, which found Defendant in civil contempt because he had no just cause for not complying with the prior court order. From these orders, Defendant filed notice of appeal.
I.
Defendant argues that the trial court erred by denying his motion to modify his child support obligation and by reverting his payments to the original amount of $393 per month.
“The trial court is given broad discretion in child custody and support matters.” Meehan v. Lawrance, 166 N.C.App. 369, 375, 602 S.E.2d 21, 25 (2004). Accordingly, “[c]hild support orders entered by a trial court are accorded substantial deference by appellate courts and our review is limited to a determination of whether this was a clear abuse of discretion.” Leary v. Leary, 152 N.C.App. 438, 441, 567 S.E.2d 834, 837 (2002).
Pursuant to N.C. Gen.Stat. § 50–13.7(a) (2011), a child support order may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances[.]” In support of the temporary order modifying Defendant's child support obligation entered on 31 May 2011, the trial court found that Defendant's unemployment constituted a substantial change of circumstances warranting a decrease in his child support obligation. The trial court ordered that the case would be reviewed on 12 September 2011 at which time Defendant must provide proof that he was searching for a job, and if Defendant failed to provide sufficient proof, his obligation would revert to the original amount. On 12 September 2011, Defendant was granted a continuance until 31 October 2011 to provide proof of his search for work.
At the 31 October 2011 hearing, Defendant admitted that he did not bring any proof of a work search. Based on Defendant's failure to provide sufficient evidence of his job search, the trial court reverted his child support obligation to the original amount of $393 per month. In this 31 October 2011 order, the trial court made only four findings of fact: (i) that both parties appeared and were represented, (ii) that Defendant was previously ordered to pay $50 per month plus $20 per month on arrears, (iii) that Plaintiff's gross monthly income is $899 per month, and (iv) that Defendant failed to provide proof of his job search. Despite Defendant's testimony before the trial court regarding his current earnings and his decision to leave his prior job without obtaining another one, the order is void of any findings regarding either Defendant's ability to pay $393 each month in child support or whether his obligation should instead be computed based on his potential income due to bad faith on his part.
“In a case for child support, the trial court must make specific findings and conclusions. The purpose of this requirement is to allow a reviewing court to determine from the record whether a judgment, and the legal conclusions which underlie it, represent a correct application of the law.” Leary, 152 N.C.App. at 441–42, 567 S.E.2d at 837. Because the findings in this case do not allow us to conduct a meaningful appellate review of the trial court's decision to revert Defendant's child support obligation to $393 despite his changed circumstances, we remand for further findings of fact.
II.
Defendant next argues that the trial court erred in concluding that he was in civil contempt of court.
N.C. Gen.Stat. § 5A–21 (a) (2011) states the elements of civil contempt:
Failure to comply with an order of a court is a continuing civil contempt as long as:
(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.
Pursuant to N.C. Gen.Stat. § 5A–23(e) (2011), “[i]f civil contempt is found, the judicial official must enter an order finding the facts constituting contempt and specifying the action which the contemnor must take to purge himself or herself of the contempt.”
Although the order in the instant case does specify the action which Defendant must take to purge himself of contempt, it lacks any findings regarding whether Defendant has the means and ability to comply with the prior order, but willfully failed to do so-two essential elements of civil contempt according to the statute. SeeN.C. Gen.Stat. § 5A–21(a). Accordingly, we also remand this issue to the trial court for specific findings of fact supporting its conclusion that Defendant should be held in civil contempt.
Remanded. Judges HUNTER, ROBERT C. and GEER concur.
Report per Rule 30(e).