Opinion
No. COA11–1492.
2012-06-5
Anthony TURNER, Plaintiff v. Sabrina S. TURNER, Defendant.
Foyles Law Firm, PLLC, by Jody Stuart Foyles, for Plaintiff-appellant. Van Camp, Meacham & Newman, PLLC, by Evelyn M. Savage and Laura S. Creed, for Defendant-appellee.
Appeal by plaintiff from order entered 6 September 2011 by Judge Scott Etheridge in Moore County District Court. Heard in the Court of Appeals 4 April 2012. Foyles Law Firm, PLLC, by Jody Stuart Foyles, for Plaintiff-appellant. Van Camp, Meacham & Newman, PLLC, by Evelyn M. Savage and Laura S. Creed, for Defendant-appellee.
ERVIN, Judge.
Plaintiff Anthony Turner appeals from an order denying his motion seeking to have Defendant Sabrina Turner found in contempt of court for allegedly violating the parties' consent order. On appeal, Plaintiff argues that the trial court's findings of fact lack adequate evidentiary support; that the trial court should have found the relevant provisions of the consent order to be ambiguous and interpreted the agreement in a manner consistent with the parties' intent; and that the trial court erred by granting a “dismissal of [his] case.” After careful consideration of Plaintiff's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.
I. Factual Background
The parties were married on 3 March 1977 and separated on 10 February 2007. On 18 February 2009, Plaintiff filed an action for divorce and equitable distribution in which he requested the trial court to make an unequal distribution of the parties' marital property in his favor. On 26 April 2010, Defendant filed an amended answer and counterclaims in which she sought a divorce, an unequal distribution of the parties' marital property in her favor, alimony, and attorney's fees. On 10 May 2010, the parties were granted a divorce.
On 15 June 2010, a consent order was entered addressing the outstanding equitable distribution, alimony, and attorney's fees issues. The consent order provided, among other things, that:
The parties own the real property located at 1486 Aiken Road, Vass, North Carolina. The parties shall have a 1O acre tract set out for the Plaintiff as his sole and separate property. The balance of said real property shall be the sole and separate property of the Defendant. The Defendant shall gran[t] a perpetual easement of ingress and egress to the Plaintiff and the Plaintiff shall grant a perpetual access easement to the Defendant across his 1O acre tract.... The debts secured by the aforesaid real property shall be the sole and separate responsibility of the Defendant and she shall hold the Plaintiff harmless from any and all liability in connection with those debts. The approximate location of the Plaintiff's 1O acre tract is shown on the map attached hereto.... The Defendant shall obtain a release from the lender(s) of the Plaintiff's 1O acre tract. In the event this cannot be accomplished despite the Defendant's best efforts, this agreement shall become null and void ab initio. The Defendant will use her best efforts to refinance all debts secured by the real property into her own name within 6 years....
On 25 March 2011, Plaintiff filed a motion seeking to have Defendant held in contempt for violating the consent order. In support of this request, Plaintiff alleged, in pertinent part:
8. That the Defendant has failed to conduct herself in accordance with the terms of this agreement, in that she is refusing to grant the Plaintiff a perpetual access easement to his 10 acre tract of land across the land that was awarded to her.
9. That the Defendant has refused to abide [by] the terms of the consent order in that she is refusing to allow the Plaintiff to have a 10 acre tract of land approximately at the same location as agreed to in the mediation settlement agreement and as shown on the map attached to the Order.
The trial court conducted a hearing concerning Plaintiff's motion on 8 August 2011 and entered an order denying Plaintiff's motion on 6 September 2011. Plaintiff noted an appeal to this Court from the trial court's order.
Although he also alleged in his contempt motion that Defendant had failed to comply with the portion of the consent order requiring her to obtain a release from the applicable lenders relating to the tract eventually transferred to Plaintiff, Plaintiff has not challenged the trial court's finding that, at the hearing held in connection with his motion, “[n]o evidence was presented in reference to the allegations in the Plaintiff's Motion concerning the refinance of the debts related to the property or the release of the Plaintiff's land by the lender” or otherwise argued that the trial court erroneously resolved this particular issue. As a result, the lawfulness of the trial court's rejection of this aspect of Plaintiff's claim will not be addressed further in this opinion.
II. Legal Analysis
A. Standard of Review
N.C. Gen.Stat. § 5A–21(a) provides that
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.
Thus, “[t]o hold a defendant in civil contempt, the trial court must find the following: (1) the order remains in force, (2) the purpose of the order may still be served by compliance, (3) the non-compliance was willful, and (4) the non-complying party is able to comply with the order or is able to take reasonable measures to comply.” Shippen v. Shippen, 204 N.C.App. 188, 190, 693 S.E.2d 240, 243 (2010).
“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. ‘Findings of fact made by the judge in contempt proceedings are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing upon their sufficiency to warrant the judgment.’ ‘North Carolina's appellate courts are deferential to trial courts in reviewing their findings of fact.’ “ Watson v. Watson, 187 N.C.App. 55, 64, 652 S.E.2d 310, 317 (2007) (citing Sharpe v. Nobles, 127 N.C.App. 705, 709, 493 S.E.2d 288, 291 (1997), and quoting Hartsell v. Hartsell, 99 N.C.App. 380, 385, 393 S.E.2d 570, 573,appeal dismissed and disc. review denied, 327 N.C. 482, 397 S.E.2d 218 (1990), aff'd, 328 N.C. 729, 403 S.E.2d 307 (1991), and Harrison v. Harrison, 180 N.C.App. 452, 454, 637 S.E.2d 284, 286 (2006)), disc. review denied,362 N.C. 373, 662 S.E.2d 551 (2008). We will now apply the applicable standard of review for the purpose of considering the merits of Plaintiff's challenges to the trial court's order.
B. Specific Challenges to Trial Court's Order
1. Evidentiary Support for Court's Findings of Fact
In his first challenge to the trial court's order, Plaintiff argues that the “findings of fact in the Order denying the Plaintiff–Appellant's motion for contempt were not supported by competent evidence.” Plaintiff's argument lacks merit.
In its order, the trial court found, in pertinent part, that:
3. The parties entered a Consent Order which memorialized the terms of their mediated settlement agreement on June 15, 2010.
4. As part of that Order the parties agreed that the property located at 1486 Aiken Road, Vass, NC shall be the Defendant's property except for a 10 acre tract of land which shall be the separate property of the Plaintiff.
5. The Defendant was ordered to grant to the Plaintiff a perpetual easement of ingress and egress across the land awarded to her and the Defendant was to have a perpetual easement across the Plaintiff's 10 acres.
6. Attached to the Consent Order and incorporated therein was the hand written mediated settlement agreement and a map which gave an approximate location of the Plaintiff's 10 acres.
7. The parties agreed in the Consent Order that a surveyor would conduct a survey and draw a map which would establish the 10 acres that was to be the Plaintiff's property and that they would equally divide the cost of the survey.
....
10. The survey was performed and the Plaintiff's tract of land was drawn by the surveyor and totaled 10.62 acres.
11. The location of the Plaintiff's land as described in the survey depicting 10.62 acres conforms with the location drawn on the map attached to the Consent Order entered on June 15, 2010.
12. The Defendant grants the Plaintiff a perpetual easement of ingress and egress over the Defendant's land in the survey.
13. According to the mediator that worked with the parties on April 15, 2010 to settle this case, the survey that was performed depicting the 10.62 acres meets the minimum requirements contained in the June 15, 2010 Consent Order.
....
15. The Defendant has complied with the terms of the June 15, 2010 Consent Order.
Although Plaintiff argues that the trial court's findings of fact lack evidentiary support, he has failed to identify any specific finding that is not adequately supported by record evidence. For example, Plaintiff does not dispute that the tract of land that he received is in the approximate location shown on the map attached to the consent agreement or that he has access for the purpose of providing ingress to and egress from his property. As a result, we conclude that Plaintiff's challenge to the sufficiency of the record support for the trial court's findings of fact has no merit.
Instead of challenging the extent to which the trial court's findings of fact are supported by the evidence developed at the hearing, Plaintiff appears to actually argue that Defendant violated the consent order because the tract that Defendant transferred to him, although situated in the appropriate location described in the consent order, was slightly more than half an acre larger than the tract described in that agreement. More particularly, Plaintiff asserts that “the Trial Court made findings of fact which repeatedly indicate Ms. Turner's desire to convey 10.62 acres of land to Mr. Turner;” that “[t]he Trial Court justifies the denial of the contempt proceeding by indicating in paragraph thirteen (13) of the findings of fact ‘that according to the mediator 10.62 acres meets the minimum requirements contained in the June 15, 2010 Consent Order[;]’ “ and that:
In the consent order, Ms. Turner was ordered to set out a ten (10) acre tract of land from the Horse Farm to be conveyed to Mr. Turner. In the Order Denying Appellant's Motion for Contempt the Trial Court did not make a finding of fact indicating Ms. Turner's willingness to convey a ten (10) acre tract of land to Mr. Turner, only that Ms. Turner was willing to convey a 10.62 acre tract of land to Mr. Turner.
Plaintiff has not, however, cited any authority or advanced any legal argument tending to support his assertion that the transfer of about a half-acre more than the ten acres originally contemplated by the parties' agreement places Defendant in contempt of the original order, and we know of none.
The record before us in this case includes both the map attached to the consent agreement and the map showing the tract of land that Defendant granted to Plaintiff. A careful examination of these documents demonstrates that the tract of land that Defendant deeded to Plaintiff is of the approximate size and is situated in the approximate location as the tract depicted on the map attached to the consent order. The only difference between the two maps is that the original map depicts an easement running all the way across Defendant's property, while the map showing the tract that Defendant ultimately gave to Plaintiff depicts an easement that runs part of the way across Defendant's property to a strip of land deeded to Plaintiff for use as his own driveway. Although Plaintiff complains that “the proposed .62 acre driveway would result in additional expense for him,” he concedes that “[n]either counsel for Appellee, counsel for Appellant or the mediator put into the mediated agreement where the two (2) easements would be located,” so that “nothing in the mediated agreement or the consent order specif[ies] anything with regard to those easements, other than that they would be granted.” The fact that Plaintiff would have to shoulder “additional” driveway construction expense as a result of the manner in which Defendant chose to comply with her obligations under the consent order does not establish that Defendant's actions contravened any specific provision of that document. As a result, we conclude that the trial court did not err by determining that Defendant adequately complied with the relevant provisions of the consent order.
2. Ambiguity of Consent Order
Secondly, Plaintiff contends that, “[s]hould the Court determine the terms of the Consent Order are ambiguous the Court can use contract principles to determine the intent of the parties.” According to Plaintiff, while “the terms of the consent order as they relate to the amount of real property awarded to Appellant are not ambiguous,” “the terms of the consent order in reference to the placement of the easements are ambiguous.” As a result, Plaintiff argues that, “[s]hould the Court determine that the language of the consent order with regard to the ten (10) acre tract awarded to Appellant [is] ambiguous,” we are entitled to examine the evidence presented at the contempt hearing for the purpose of discerning the parties' intent and to act on the basis of our review of that evidence. Plaintiff is not entitled to relief based on this argument.
As we have already noted, Plaintiff admits that the consent order did not specify any particular location for the easement which was to provide Plaintiff with access to his tract of land across Defendant's property. In addition, the record clearly shows that Defendant did, in fact, grant Plaintiff an easement across her property that joins Plaintiff's tract to a strip of land that was deeded to Plaintiff for use as a driveway. Although Plaintiff contends that he presented evidence of the “intent of the parties” regarding the location of an easement and that the trial court should have “interpreted” the consent agreement by reference to this evidence, the consent agreement simply did not specify the location at which the easement was created. As a result, given that the consent order does not designate a location for the required easement, there is no ambiguity in the parties' agreement concerning the location of the required easement. As the trial court correctly stated, “since nobody talked about it, and nobody even brought it up, I can't say that it's a vague term because it never got discussed.” Thus, we conclude that the trial court did not commit any error of law by failing to find the terms of the consent order to be ambiguous and to interpret those terms based on the extrinsic evidence contained in the record.
In addition, as Defendant notes, “[i]f the relevant terms of the consent order are determined to be ambiguous, a finding of contempt will generally not be proper, as it is difficult for one to willfully refuse to comply with a term one does not understand.” Holden v. Holden, ––– N.C. App ––––, ––––, 715 S.E.2d 201, 208 (2011).
3. Involuntary Dismissal
Finally, Plaintiff argues that “[t]he Trial Court erred by granting the Defendant an involuntary dismissal pursuant to [N.C. Gen.Stat. § 1A–1, Rule] 41(b).” We disagree.
In attempting to persuade us of the merits of this argument, Plaintiff accurately recites “[t]he standard of review for a dismissal of a case pursuant to [N.C. Gen.Stat. § 1A–1, Rule] 41(b)” and argues that the trial court violated the applicable standard by “involuntary[il]y dismiss[ing]” Plaintiff's claim. The fundamental problem with Plaintiff's argument is that the trial court did not involuntarily dismiss any claim filed by Plaintiff; instead, the trial court merely denied Plaintiff's motion. Moreover, as is set forth in more detail in the remainder of this opinion, Plaintiff has not established that the trial court's order denying his contempt motion rested on any error of law. As a result, we conclude that Plaintiff's final challenge to the trial court's order lacks merit.
III. Conclusion
Thus, for the reasons set forth above, we conclude that the trial court did not err by denying Plaintiff's motion to have Defendant held in contempt. As a result, the trial court's order should be, and hereby is, affirmed.
AFFIRMED. Judges ROBERT C. HUNTER and STROUD concur.
Report per Rule 30(e).