Opinion
No. COA10-944
Filed 15 February 2011 This case not for publication
Appeal by defendant from order entered 29 January 2010 by Judge Lori Christian in Wake County District Court. Heard in the Court of Appeals 24 January 2011.
Gary S. Lawrence and Andrea L. Hinshaw for plaintiff-appellee. Cheshire, Parker, Schneider, Bryan Vitale, by Jennifer M. Bradley and Thomas R. Cannon, for defendant-appellant.
Wake County No. 08 CVD 4587.
Michael Ray Engelhard ("defendant") appeals from the trial court's order denying defendant's motion to modify alimony and order finding him in contempt. After careful review, we affirm.
Background
Defendant and Judith Elaine Engelhard ("plaintiff") were married on 28 January 1984, separated on 5 February 2008, and are now divorced. On 7 July 2008, the parties entered into a consent order in which defendant agreed to provide plaintiff with $2,000.00 per month in alimony. On 24 April 2009, defendant filed a motion to modify alimony alleging a substantial change in circumstances since entry of the consent order.
Defendant paid plaintiff $2,000.00 per month from entry of the consent order until October 2009 when he began making reduced payments. On 11 November 2009, plaintiff filed a motion for order to show cause alleging that defendant willfully failed to comply with the consent order. On 29 January 2010, after a hearing, the trial court denied defendant's motion to modify alimony and entered an order holding defendant in civil contempt. Defendant was ordered to pay arrears in the amount of $4,400.00. The trial court gave defendant until 31 March 2010 to pay the arrears or serve 10 days in the Wake County jail. Defendant timely appealed to this Court.
The trial court mistakenly referred to the contempt as criminal contempt in its order; however, it is clear that defendant was held in civil contempt.
Discussion I. Motion to Modify Alimony
Defendant argues that the trial court erred in denying his motion to modify his alimony obligation. Specifically, defendant claims that a substantial change in circumstances had occurred — a reduction in his income — and there was no evidence to support the trial court's finding that defendant acted in bad faith in an attempt to depress his income.
"An order of a court of this State for alimony or postseparation support, whether contested or entered by consent, may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested." N.C. Gen. Stat. § 50-16.9(a). Upon review of the trial court's order denying a motion to modify,
[t]he lower court's conclusions must be supported by specific findings of fact. "If the findings are supported by competent evidence, they are conclusive on appeal even though the evidence would support contrary findings." Therefore, "[w]hile the sufficiency of the findings to support the award is reviewable on appeal, the weight to be accorded the evidence is solely for the trier of the facts."
Spencer v. Spencer, 133 N.C. App. 38, 43-44, 514 S.E.2d 283, 287 (1999) (quoting Cornelison v. Cornelison, 47 N.C. App. 91, 93, 266 S.E.2d 707, 709 (1980)).
"A change in circumstances must be shown by the party moving for the modification in order to modify an order for support or alimony." Wolf v. Wolf, 151 N.C. App. 523, 526, 566 S.E.2d 516, 518 (2002). "As a general rule, the changed circumstances necessary for modification of an alimony order must relate to the financial needs of the dependent spouse or the supporting spouse's ability to pay." Rowe v. Rowe, 305 N.C. 177, 187, 287 S.E.2d 840, 846 (1982).
Unless the supporting spouse is deliberately depressing his or her income . . . the ability of the supporting spouse to pay is ordinarily determined by his or her income at the time the award is made. If the supporting spouse is deliberately depressing income or engaged in excessive spending, then capacity to earn, instead of actual income, may be the basis of the award.
Quick v. Quick, 305 N.C. 446, 453, 290 S.E.2d 653, 658 (1982).
"The fact that a husband's salary or income has been reduced substantially does not automatically entitle him to a reduction." Wolf, 151 N.C. App. at 526, 566 S.E.2d at 518.
The trial court may refuse to modify support and/or alimony on the basis of an individual's earning capacity instead of his actual income when the evidence presented to the trial court shows that a husband has disregarded his marital and parental obligations by: (1) failing to exercise his reasonable capacity to earn, (2) deliberately avoiding his family's financial responsibilities, (3) acting in deliberate disregard for his support obligations, (4) refusing to seek or to accept gainful employment, (5) wilfully refusing to secure or take a job, (6) deliberately not applying himself to his business, (7) intentionally depressing his income to an artificial low, or (8) intentionally leaving his employment to go into another business.
Id. at 526-27, 566 S.E.2d at 518-19. "When the evidence shows that a party has acted in `bad faith,' the trial court may refuse to modify the support awards." Id. at 527, 566 S.E.2d at 519. "To apply the earnings capacity rule, the trial court must have sufficient evidence of the proscribed intent." Id.
Here, the trial court found as fact, inter alia:
8. At the time the Consent Order was entered, the Defendant was employed by Atlantic Pools and Spas and earned $80,000 in 2007.
9. Defendant chose to leave his employment with Atlantic Pools and Spas and began work with Pack Rat in November 2008.
10. Defendant's [sic] left Pack Rat on June 30, 2009 and moved to Wilmington, North Carolina.
. . . .
12. Defendant found employment with Ocean Blue Pools and Spas on July 20, 2009.
13. The Defendant was discharged from Ocean Blue Pools and Spas on August 1, 2009 due to an inability to mesh well with other employees and fit in at the store. The Defendant currently receives unemployment benefits in the amount of $505.00 per week.
. . . .
15. There is some evidence as to why the Defendant left his employment with Atlantic Pools and Spas, but the Defendant's testimony is not credible regarding his changes in employment and reduction in income since the entry of the Consent Order.
16. The Defendant made a choice to change jobs and the court finds that the change in jobs was in bad faith considering that he chose to go back to the same industry (selling pools and spas) as he left in November 2008.
17. The Defendant's changing of jobs was a bad faith attempt to suppress his income for the purpose of avoiding his alimony obligation to the Plaintiff. The Defendant is voluntarily underemployed.
18. The Defendant has the ability to earn $80,000.00 per year. The Defendant has the ability to comply with the July 2008 Alimony Order.
Defendant does not contest the trial court's findings that he earned $80,000.00 in 2007, that he has the ability to earn $80,000.00, or that he is voluntarily underemployed. With regard to these findings of fact, defendant only argues that he did not change jobs in bad faith; rather, he left Atlantic Pools and Spas because his salary was reduced from $80,000.00 per year to $400.00 per week, plus what he earned on commission. Defendant claims that since he was no longer able to earn $80,000.00 per year, he left Atlantic Pools and Spas and went to work for Pack Rat. Defendant testified that he left Pack Rat because the compensation structure was not what he was led to believe. Defendant then went back to the pool and spa industry, but was terminated by Ocean Blue Pool and Spa because he did not "fit in" or "mesh well."
Defendant asserts multiple reasons for his reduced income and claims he was acting in good faith; however, as the trial court clearly stated, it did not find defendant's testimony regarding his changes in employment to be credible. Instead, it found that defendant was acting in bad faith to suppress his income and that he is now voluntarily underemployed. Whether this Court finds defendant's claims to be persuasive is irrelevant. "It is the function of the trial judge, in trials without a jury, to weigh and determine the credibility of a witness." Ingle v. Ingle, 42 N.C. App. 365, 368, 256 S.E.2d 532, 534 (1979).
The evidence shows, and the trial court's findings reflect, that defendant "intentionally le[ft] his employment to go into another business." Wolf, 151 N.C. App. at 527, 566 S.E.2d at 519. He then voluntarily left Pack Rat and went back to the pool and spa industry. He was then let go from that position and is now voluntarily underemployed. Upon review of the record, we hold that there was "sufficient evidence of the proscribed intent[,]" id., that the trial court made sufficient findings of fact regarding the proscribed intent, and that the trial court did not err in finding that "Defendant's changing of jobs was a bad faith attempt to suppress his income for the purpose of avoiding his alimony obligation. . . ."
Defendant briefly argues that "[t]he trial court failed to make any findings regarding [defendant's] ability to pay alimony based on his ability to pay at the time of the modification hearing, and, as such, the trial court's order should be reversed." First, having found that defendant was deliberately depressing his income, the amount of alimony defendant was required to pay was based on his earning capacity, not his actual income at the time of the hearing. The trial court found that defendant has the ability to earn $80,000.00 per year, and, therefore, he is able to comply with the terms of the consent order. Furthermore, "the failure of the court to make a specific finding of fact as to [the supporting spouse's] ability to pay is not deemed a sufficient ground for disturbing the court's order." Mills v. Mills, 257 N.C. 663, 666, 127 S.E.2d 232, 234 (1962). In sum, we affirm the trial court's order denying defendant's motion to modify his alimony obligation.
II. Civil Contempt Order
Defendant was held to be in civil contempt pursuant to N.C. Gen. Stat. § 5A-21 (2009) due to his willful violation of the 7 July 2008 consent order.
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. 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, 290-91 (1997) (quoting Hancock v. Hancock, 122 N.C. App. 518, 525, 471 S.E.2d 415, 419 (1996)). "Manifestly, one does not act willfully in failing to comply with a judgment if it has not been within his power to do so since the judgment was rendered." Lamm v. Lamm, 229 N.C. 248, 250, 49 S.E.2d 403, 404 (1948). "Wilfulness in matters of this kind involves more than deliberation or conscious choice; it also imports a bad faith disregard for authority and the law." Forte v. Forte, 65 N.C. App. 615, 616, 309 S.E.2d 729, 730 (1983).
Defendant argues that: (1) the trial court "summarily found" that defendant's failure to make alimony payments was willfully contemptuous and that this finding was not supported by the evidence, and (2) as "the trial court made no findings as to [defendant's] ability in December 2009 to pay the entire $4,400.00 arrearage or to take reasonable measures to pay the arrearage, there were inadequate findings to support the adjudication of civil contempt."
First, the trial court concluded as a matter of law that defendant's failure to pay alimony was willful. This conclusion of law is supported by its findings of fact regarding defendant's failure to maintain employment, which are in turn supported by the evidence of record. Although defendant claimed that he was acting in a good faith attempt to earn more money, the trial court did not find defendant to be credible. The trial court found that defendant left his occupation to pursue work in a new industry, then went back to his previous occupation where he was then terminated from employment, and is now voluntarily underemployed. We hold that the trial court's findings of fact support its conclusion of law that defendant was in willful violation of the consent order and was, therefore, in civil contempt.
Second, with regard to defendant's argument that the trial court failed to find that he had the present means to purge himself, this Court has held:
General Statute 5A-21 provides that a person may not be imprisoned for civil contempt unless "[t]he person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable him to comply with the order." General Statute 5A-22 provides that the order of a court holding a person in contempt must specify how the person may purge himself of the contempt. Because these statutes relate to the same subject matter, they must be construed in pari materia. When so construed, these statutes require that a person have the present ability to comply with the conditions for purging the contempt before that person may be imprisoned for civil contempt.
McMiller v. McMiller, 77 N.C. App. 808, 809, 336 S.E.2d 134, 135 (1985) (internal citations omitted).
Here, the trial court found as fact that defendant is earning $505.00 per week in unemployment, but "has the ability to earn $80,000.00 per year," and "has the ability to comply with the July 2008 Alimony Order." We have held that, "[t]hough not specific, [a] finding regarding `present means to comply' is minimally sufficient to satisfy the statutory requirement for civil contempt." Adkins v. Adkins, 82 N.C. App. 289, 292, 346 S.E.2d 220, 222 (1986). In Shippen v. Shippen, ___ N.C. App. ___, 693 S.E.2d 240, 244 (2010), this Court found the following finding of fact to be sufficient to meet statutory requirements: "`That the Defendants [sic] failure to comply with the prior Court Order entered in October 2008 is willful and Defendant has the ability to comply or take reasonable efforts to do so.'" Similarly, in the present case the trial court found that defendant has the means to comply with the consent order. As in Adkins and Shippen, this finding, while not as detailed as might be preferred, is minimally sufficient.
Affirmed.
Chief Judge MARTIN and Judge THIGPEN concur.
Report per Rule 30(e).