Opinion
No. 05-399.
Filed January 3, 2006.
Guilford County No. 02 CVD 2258.
Appeal by defendant from judgment entered 5 November 2004 by Judge Thomas G. Foster, Jr. in Guilford County District Court. Heard in the Court of Appeals 29 November 2005.
No brief for plaintiff-appellee. C. Richard Tate, Jr., for defendant-appellant.
Defendant appeals the order of the trial court dated 5 November 2004 that found defendant in contempt of prior orders, established the amount of arrearages owed by defendant, directed defendant to transfer certain property to the plaintiff, and ruled that plaintiff was entitled to an award of attorney's fees. We reverse and remand this matter to the trial court for further proceedings.
The record in this matter reveals that this case has followed a tortuous and confusing path through the District Court of Guilford County. Plaintiff and defendant were at one time wife and husband, and had two minor children. The record commences with a memorandum of judgment/order entered by Judge Foster on 6 February 2003, in which the parties agreed that plaintiff would have the primary custody of the minor children and that defendant would pay to plaintiff the sum of $575.00 per week "as child support and post separation support until further orders of the court." Plaintiff was to have possession of the marital residence. On 28 March 2003, Judge Foster entered a consent order based upon the memorandum of judgment. This order contained specific findings of fact supporting an award of post-separation support under N.C. Gen. Stat. § 50-16 et seq, and directed the payment of $575.00 per week, as post-separation support.
On 6 May 2003, an order was entered by Judge Burch requiring defendant to appear and show cause why he should not be found in contempt of court for failing to make the payments required by Judge Foster's order. In response to this order, defendant moved to have his obligation to pay post-separation support terminated and to hold his child support in abeyance because he was unemployed. These matters were heard by Judge Foster on 11 August 2003. The order directed defendant to pay child support in the amount of $848.75 per month commencing on 31 August 2003. The order made no findings or disposition as to any arrearages owed by the defendant to plaintiff, nor did it make any disposition of defendant's motions.
On 5 December 2003, Judge Jarrell entered an order finding defendant in contempt of court for failing to pay support under the 6 February 2003 order of Judge Foster. The order recited an arrearage of $10,058.44, and ordered defendant incarcerated until he purged himself of contempt by paying $1600.00 to the plaintiff. The order made no mention of Judge Foster's order of 25 August 2003. Neither the motion nor the show cause order leading to Judge Jarrell's order is in the record.
On 16 January 2004, Judge Burch entered an order to show cause why defendant should not be held in contempt of court for failing to make payments for the months of May, June and July 2003 and why he was in arrears in the amount of $10,058.44. In response to this order, defendant moved to set aside Judge Foster's order of 6 February 2003, to modify Judge Foster's order of 25 August 2003, and to set aside all orders entered by Judge Jarrell. These motions were based upon a significant change in circumstances due to a severe decline in defendant's income, and errors in the computation in the amount of child support in the 25 August 2003 order. It was contended that Judge Jarrell's orders were entered without notice to defendant and his counsel.
On 5 November 2004, Judge Foster entered an order arising out of a hearing held on 30 March 2004. This order found defendant to be in contempt for his willful failure to comply with prior orders of the court. Defendant's child support obligation was set at $674.00 per month, retroactively effective to 1 April 2004. Defendant's arrearage was computed to be $3,392.00. Defendant was ordered to transfer three assets to the plaintiff: (1) defendant's interest in the marital residence; (2) his interest in a $2,000.00 tax refund check; (3) an IRA account. The order does not reveal the value of the interest in the residence or the IRA conveyed to plaintiff. The order does not state whether these conveyances extinguished defendant's arrearages. Defendant's motions to set aside prior orders were denied. Finally, the trial court ordered that plaintiff was entitled to recover attorney's fees, but no amount was set in the order. From this order, defendant appeals. Defendant's first assignment of error reads as follows: "The trial court committed reversible error in that the court's findings of fact are not supported by the evidence." We disagree.
Defendant's assignment of error fails to direct this court to any specific finding of fact which is not supported by the evidence. This constitutes a broadside exception and preserves no argument on appeal. Dealers Specialties, Inc. v. Neighborhood Housing Services, Inc., 305 N.C. 633, 635-36, 291 S.E.2d 137, 139 (1982); Hicks v. Russell, 256 N.C. 34, 39, 123 S.E.2d 214, 218 (1961); In re Dhermy, 161 N.C. App. 424, 430, 588 S.E.2d 555, 559 (2003); First Union Nat'l Bank v. Bob Dunn Ford, Inc., 118 N.C. App. 444, 446, 455 S.E.2d 453, 454 (1995); Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 684, 340 S.E.2d 755, 760 (1986); see also Viar v. N.C. DOT, 359 N.C. 400, 610 S.E.2d 360 (2005). Having preserved no objection to the findings of fact made by the trial court, they are deemed conclusive on appeal. Concrete Serv. Corp., 79 N.C. App. at 684, 340 S.E.2d at 760. This argument is without merit.
In defendant's second assignment of error, he contends that the trial court erred in concluding that defendant was in willful contempt of court. We disagree. "Our standard of review in contempt proceedings is limited to whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law." Blazer v. Blazer, 109 N.C. App. 390, 392, 427 S.E.2d 139, 140 (1993). As we have noted above, all of the findings of fact in the instant order are binding on appeal. The findings of fact of the trial court included the following:
10. That the Defendant has had the ability to comply with the terms of the Court order or could have taken reasonable measures to comply with the Court order dated March 28, 2003, if he would have applied himself to his business as an accountant.
12. That the total arrearage at the time of this hearing is $3,392.00 (November 2002 — April 2003 is vested; beginning May 2003 through March 2004, child support payments of $675.00 resulting in the above arrearage after giving Defendant credit for payments reflected above).
We hold that these findings of fact support the trial court's conclusion that defendant was in willful contempt of court. This argument is without merit.
In defendant's third assignment of error, he contends that the trial court erred in concluding that the plaintiff was entitled to an award of attorney's fees. We agree.
"If 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." N.C. Gen. Stat. § 5A-23(e) (2004). "This Court has held that the contempt power of the district court includes the authority to award attorney fees as a condition of purging contempt for failure to comply with an order." Middleton v. Middleton, 159 N.C. App. 224, 227, 583 S.E.2d 48, 49-50 (2003). The trial court's thirteenth finding of fact is as follows:
That the Plaintiff's attorney has rendered valuable legal services to the Plaintiff in this cause, in the preparation, filing and hearing of this motion on behalf of the Plaintiff and the minor children in which services said attorney has spent a number of hours on the attached affidavit for attorney's fees which will be signed upon submission to the Court.
Upon this finding of fact, the trial court awarded attorney's fees to plaintiff. The order does not state that the payment of attorney's fees was a condition of defendant purging himself of contempt, or whether they were awarded upon some other legal theory. We hold that the trial court's findings of fact are insufficient to support its award of attorney's fees. We therefore reverse this portion of the trial court's order and remand for additional findings of fact, or further action consistent with this holding.
In his fourth and final assignment of error, defendant asserts that the trial court's order was not supported by findings of fact or conclusions of law. We disagree.
In light of our holdings above concerning defendant's first and second assignments of error, we further hold that this assignment of error fails. This argument is without merit.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
Judges WYNN and SMITH concur.
Report per Rule 30(e).