Opinion
No. COA04-552
Filed 17 May 2005 This case not for publication
Appeal by plaintiff from order entered 12 November 2003 by Judge Beth S. Dixon in the District Court in Rowan County. Heard in the Court of Appeals 7 March 2005.
W.L. Stafford, Jr., for plaintiff-appellant. No brief filed for defendant-appellee.
Rowan County No. 99 CVD 177.
This case arises from a series of orders entered in connection with the divorce and equitable distribution of the property of plaintiff Jimmy S. Garner and defendant Tammy Page Garner. On 27 June 2002, plaintiff moved for a show cause order, alleging that defendant had failed to allow him to obtain his personal property, failed to make the required payments on her obligation, and failed to cooperate in resolving the marital debt and in liquidating the farm equipment kept at their home. On 12 November 2003, the district court found defendant in contempt and ordered that she be held thirty days in jail, but released her on condition that she allow plaintiff to inventory the farm equipment, make specified payments to defendant, and cooperate in retiring the marital debt. Plaintiff appeals.
Plaintiff originally sought custody of the parties' minor child, equitable distribution of marital property, and an order enjoining both parties from disposing of marital property. Defendant counter claimed for custody and support of the minor child, equitable distribution, and alimony. On 24 May 1999, the court entered a consent order nunc pro tunc for 18 March 1999 providing for custody and support of the minor child and equitable distribution. The findings included:
19. That Plaintiff shall have sole ownership of all of his personal items and effects, including clothing and jewelry, and the following items: two (2) rental properties, 6.7 acre tract in Denton, North Carolina, 1986 truck, 1978 truck, commercial planer and one horse saddle belonging to Plaintiff's father, checking and savings account in the Plaintiff's name, retirement plan, all property owned by the Plaintiff prior to marriage, any other items of personal property belonging to the Plaintiff and business accounts as of the parties' date of separation.
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22. That the parties shall work together to sell common farm equipment and apply the proceeds to marital debt (Prime Line and overdraft on business and regular accounts).
23. That as a further settlement of marital property, the Defendant shall pay the Plaintiff a sum of ten thousand and no one hundredths ($10,000.00) dollars to be taken for his monthly child support payment at the rate of three hundred and no one hundredths ($300.00) dollars per month. That the Defendant shall pay this amount directly by check to the Plaintiff each month beginning April 15, 1999.
On 8 October 1999, plaintiff brought a show cause motion alleging defendant had refused to allow plaintiff to obtain his personal property, failed to pay him the sums ordered, and refused to cooperate in the sale of equipment to satisfy the marital debt. On 4 February 2000, the court entered an order directing that defendant "shall bring all of the defendant's personal property to the plaintiff's residence," "shall sell all farm equipment" to satisfy the marital debt, and that defendant "shall" make two payments toward her obligation by a specified date. On 5 February 2001, the court entered an order nunc pro tunc for 26 October 2000 incorporating agreements of the parties and directing defendant to make all past due payments on her obligation by 1 December 2000, and noting that the parties agree to use all possible means to resolve liquidation of the farm equipment business. Plaintiff's second show cause motion and the appealed-from order followed.
On 27 June 2002, plaintiff brought a second show cause motion alleging that defendant had failed to allow him to obtain his personal property, failed to make the required payments on her obligation, and failed to cooperate in liquidating the farm equipment and resolving the marital debt. On 12 November 2003, the court found defendant in contempt of court, and ordered her held in jail for thirty days, but released her on condition that she allow plaintiff to inventory the farm equipment, make specified payments to defendant, and cooperate in retiring the marital debt.
Plaintiff appeals. He first argues that the court erred in dismissing count two of his show cause motion because it misapprehended its authority to modify a final judgment of equitable distribution. We disagree.
Plaintiff contends that no court ever assigned or apportioned the marital debt at issue here to either party. Rather, he argues the court merely mentioned the debt generally with a statement that the parties must cooperate to sell the equipment in order to repay the debt. Plaintiff moved for modification of the final judgment of equitable distribution pursuant to Rule 60 (b)(6), asking that the court apportion the marital debt between the parties. Plaintiff points out in his brief that defendant has "consistently interfered with or otherwise prevented liquidation of" the specified property in order to retire the marital debt. Rule 60 (b)(6) provides in part as follows:
(b) On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
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(6) Any other reason justifying relief from the operation of the judgment.
N.C. Gen. Stat. § 1A-1, Rule 60 (b)(6) (2001). A court ruling on a Rule 60(b) motion is reviewable only for an abuse of discretion. Harris v. Harris, ___ N.C. App. ___, 591 S.E.2d 560 (2004). An abuse of discretion occurs when the challenged actions are manifestly unsupported by reason. Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980).
"[A] court cannot set aside a judgment pursuant to this rule without a showing (1) that extraordinary circumstances exist and(2) that justice demands relief." Thacker v. Thacker, 107 N.C. App. 479, 481-82, 420 S.E.2d 479, 480, disc. review denied, 332 N.C. 672, 424 S.E.2d 407 (1992) (internal citations omitted). In Lee v. Lee, a "defendant alleged that the economic downturn in the stock market provided extraordinary circumstances sufficient to invoke an equitable remedy under Rule 60(b)." Lee v. Lee, ___ N.C. App. ___, ___, 605 S.E.2d 222, 227 (2004). However, in holding that there was no abuse of discretion by the trial court in its denial of defendant's Rule 60(b) motion, this Court noted that "change in the value of the stock market over the course of five years does not amount to an extraordinary or even unforseeable circumstance." Id. Likewise, the fact that one party here has failed to comply with part of an equitable distribution order does not amount to an extraordinary or unforseeable circumstance. Because the extraordinary circumstances needed to support setting aside a judgment pursuant to Rule 60 (b)(6) are not present here, we conclude that the court did not abuse its discretion in dismissing count two of plaintiff's show cause motion.
Plaintiff next argues that the court erred in failing to enter judgment against defendant for one-half the value of the farm equipment defendant refused to turn over pursuant to the prior order. We disagree.
Plaintiff's brief contends that "[b]ecause of Defendant's continuing obstruction and disregard of the prior orders of the court, Plaintiff was suffering a wrong without an effective remedy." Plaintiff further asserts that the only effective remedy for him is to reduce his claim to a distributive award for one-half the value of the farm equipment. However, as a condition of release from confinement for contempt, the court required defendant to allow plaintiff to inventory the farm equipment, and to comply with previous orders regarding retirement of the marital debt. Plaintiff cites no case holding that a court must enter judgment against defendant for one-half the value of the farm equipment in the circumstances presented here, and we have found none. The court's finding that defendant is in contempt for failing to comply with prior orders pursuant to N.C. Gen. Stat. § 5A-21 (1999) and setting the conditions of release therefrom provide an appropriate, if not instantaneous, remedy for plaintiff.
Plaintiff also argues that the court erred in failing to require payment of one-half the value of the farm equipment as a condition of her release from confinement. We disagree.
Here, the court made the required findings to support its conclusion that defendant was in contempt, and ordered her held for thirty days in the custody of the sheriff of Rowan County, but provided for her release upon various conditions. Plaintiff contends that the court erred in not requiring defendant to pay one-half the value of the farm equipment as a condition of release "on the ground that if defendant had the current ability to pay $250.00 monthly on the $3,700.00 arrearage, then Plaintiff also had the ability to make monthly payments on the value of the inventory." A party found in civil contempt for failing to comply with a court order "may be imprisoned as long as the civil contempt continues," subject to certain limitations. N.C. Gen. Stat. § 5A-21 (b) (1999). Plaintiff cites no case holding that a trial court, having found a party in contempt for non-compliance with an equitable distribution order, must require as a condition of release the specific payment sought by plaintiff, and we have found none. The court here properly exercised its discretion in setting the terms of defendant's release.
Plaintiff next assigns error to the court's failure to award attorney's fees to plaintiff where defendant was in contempt and the fees were due to plaintiff as a matter of law. We disagree.
Though the Equitable Distribution Act does not provide for recovery of attorney fees, the court may order a party in contempt of an equitable distribution order to pay attorney fees as a condition of purging herself of contempt. Conrad v. Conrad, 82 N.C. App. 758, 760, 348 S.E.2d 349, 349-50 (1986). There is no requirement that a court make such an award, however, and we see no abuse of discretion in the court's decision not to include such an order here.
Affirmed.
Judges MARTIN and JACKSON concur.
Report per Rule 30(e).