Opinion
No. COA11–1211.
2012-06-5
In the Matter of Sue Dunn WILLIS, Plaintiff, v. David Bruce WILLIS, Defendant, The Estate of David Bruce Willis, Movant–Appellant, v. Sue Dunn Harvey, Respondent–Appellee.
Harvell and Collins, P.A., by Wesley A. Collins and Russell C. Alexander, for movant-appellant. Timothy W. Hewlett for plaintiff-appellee.
Appeal by movant from order entered 6 May 2011 by Judge Peter Mack, Jr. in Carteret County District Court. Heard in the Court of Appeals 22 February 2012. Harvell and Collins, P.A., by Wesley A. Collins and Russell C. Alexander, for movant-appellant. Timothy W. Hewlett for plaintiff-appellee.
BRYANT, Judge.
Where the burden of proof properly fell on the non-movant in a motion for civil contempt, where the trial court's findings of fact are supported by competent evidence, and where the trial court's conclusions of law are supported by its findings of fact, we affirm the order of the trial court denying movant's motion for contempt.
Facts and Procedural History
David Bruce Willis (“David”) and Sue Dunn Willis (“plaintiff”) were married in 1981 and separated in 2004. On 1 November 2005 David and plaintiff entered into a separation agreement (“the Agreement”) regarding their marital assets. Among other provisions, the Agreement provided that David would retain the home, have sole ownership, and be responsible for all payments regarding the home and land. The Agreement also provided that plaintiff waived her right to receive alimony, any part of David's retirement, and “any sum of money from life insurance policies that [David] has.” On 17 January 2006 the trial court entered an absolute divorce judgment incorporating the Agreement into the absolute divorce decree (“the Order”).
Thereafter, David remarried Robin Willis. After David's death in 2009, Robin Willis became the administratrix of the Estate of David Bruce Willis (“movant”). At the time of David's separation from plaintiff, he owned two life insurance policies. The policy at issue in this appeal was maintained through Southern Farm Bureau Life Insurance Company (“Farm Bureau policy”). In 1995, David purchased the Farm Bureau policy and named plaintiff as beneficiary. David did not change the beneficiary on the Farm Bureau policy, and at David's death, a death benefit of approximately $34,474.04 was paid out to plaintiff.
On 19 May 2010, movant made a demand upon plaintiff to honor the terms of the Agreement by paying over the proceeds of the Farm Bureau policy. On 11 June 2010, movant filed a Motion for Show Cause Order and Motion for Contempt against plaintiff alleging that plaintiff refused to comply with the Agreement and refused to abide by movant's request to remit the proceeds of the Farm Bureau policy.
The trial court entered an Order to Appear and Show Cause on 16 September 2010. Following a hearing held on 1 February 2011, the trial court entered an order on 6 May 2011 denying the motion for civil contempt by concluding the following:
2. That the Order entered by this Court on January 17, 2006 remains in effect and the purpose of the Order may still be served by compliance with same;
3. That Plaintiff is able to comply with the Order or is able to take reasonable measures that would enable her to comply with the Order; however,
4. This Court also concludes that Plaintiff is not in willful noncompliance of the Order.
From this 6 May 2011 order, movant appeals.
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Movant's sole issue on appeal is whether the trial court erred by entering an order denying movant's motion for civil contempt as to plaintiff.
“A civil contempt proceeding is not a criminal prosecution; its purpose is not to punish, but to compel a defendant to comply with an order of the court.” Hodges v. Hodges, 64 N.C.App. 550, 552, 307 S.E.2d 575, 577 (1983) (citation omitted).
Failure to comply with an order of a court is 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.
N.C. Gen.Stat. § 5A–21(a) (2011).
Our review in civil 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. 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.
Tucker v. Tucker, 197 N.C.App. 592, 594, 679 S.E.2d 141, 142 (2009) (citation omitted) (emphasis added).
First, movant argues that the trial court erred by incorrectly placing the burden of proof at the show cause hearing on movant rather than plaintiff. Because movant contends that the show cause hearing was conducted under a misapprehension of the law, movant urges us to reverse the trial court's decision.
“Proceedings for civil contempt are by motion ... by the order of a judicial official directing the alleged contemnor to appear at a specified reasonable time and show cause why he should not be held in civil contempt[.]” N.C. Gen.Stat. § 5A–23(a) (2011). “The statutes governing proceedings for civil contempt ... clearly assign the burden of proof to the party alleged to be delinquent.” Hartsell v. Hartsell, 99 N.C.App. 380, 387, 393 S.E.2d 570, 575 (1990). The non-movant “must then show cause why he should not be found in contempt.” Plott v. Plott, 74 N.C.App. 82, 85, 327 S.E.2d 273, 275 (1985).
Movant's argument is based upon a single statement made by plaintiff's counsel at the start of the show cause hearing which went as follows:
THE COURT: We're on the record, 05–CVD–1329. It's Sue Dunn Willis versus David Bruce Willis. Mrs. Willis is present in the court—Sue Dunn Willis—she is present in the courtroom ... and David Willis is deceased[.]
...
[Movant's counsel]: Going to show cause for your client?
[Plaintiff's counsel]: The burden is upon you[.]
[Movant's counsel]: Okay, we'll call [plaintiff].
In the present case, plaintiff counsel's statement at the show cause hearing was, undoubtedly, an incorrect statement of the law. However, plaintiff presented evidence as to why she should not be held in civil contempt and the trial court moved forward under the appropriate burden of proof. Plaintiff testified in part as follows: plaintiff and David took out the Farm Bureau policy together when they were first married; after approximately 20 years of marriage when their marriage started “to become a little troublesome [,]” plaintiff and David discussed the Farm Bureau policy; David did not “have” the Farm Bureau policy as of 1 November 2005, the date the parties entered into the Agreement; plaintiff had possession of the Farm Bureau policy from 2005 because David had “turned it over to [plaintiff”]; the Farm Bureau policy was in David's name and plaintiff was listed as the beneficiary; plaintiff was paid the proceeds of the Farm Bureau policy because it was David's choice to not change the beneficiary designation; when David and plaintiff separated, David “gave [plaintiff] that [Farm Bureau] policy. It was in [plaintiff's] possession, and it was part of an agreement between [David and plaintiff]”; David had ample time and opportunity to change the beneficiary had he so desired; and David had wanted plaintiff to have the Farm Bureau policy because she had not asked for anything else from the marital assets.
A thorough review of the record reveals that despite plaintiff counsel's comment, plaintiff offered testimony for the purpose of demonstrating why she should not be held in civil contempt. Based on the foregoing, we hold there was sufficient competent evidence to support the trial court's determination that plaintiff was not in willful noncompliance and that the burden of proof was properly placed on plaintiff. Movant's argument is overruled.
Next, movant argues that the trial court erred by making findings of fact which were not supported by evidence in the record and by entering a conclusion of law not supported by the findings of fact. Specifically, movant challenges portions of findings of fact number 12 and 10. Movant challenges a portion of finding of fact number 12 which states that “[David] intended to differentiate between the two life insurance policies he owned as the Cherry Point policy remained in his possession and underwent a change of beneficiary designation while the [Farm Bureau policy] remained in Plaintiff's possession and never underwent a change of beneficiary designation.” The record demonstrates that although David owned two life insurance policies, he only changed the beneficiary designation on the Cherry Point policy prior to his death, leaving the beneficiary designation on the Farm Bureau policy unchanged. Plaintiff's testimony also supports the finding that upon separation, David had turned over the Farm Bureau policy to plaintiff and that although he had ample time and opportunity to change the beneficiary designation on the Farm Bureau policy, it remained under plaintiff's name. Because the standard of review is whether there is any competent evidence to support the trial court's findings of fact, movant's argument must fail.
Movant also challenges finding of fact number 10 which states that “All monthly premiums for the [Farm Bureau policy] were paid out of an account bearing [David's] name, and all mail and notices regarding the policy were sent to his address.” Movant challenges the portion of the finding that states that mail from Southern Farm Bureau Life Insurance Company, the insurance company through which the Farm Bureau policy was maintained, were sent to David's address. Although finding of fact number 10 is not supported by the record, it is of no avail to movant because the remaining, unchallenged findings of fact, which are supported by competent evidence, provide ample support for the trial court's conclusions of law. See Dawson Industries, Inc. v. Godley Constr. Co., 29 N.C.App. 270, 275, 224 S.E.2d 266, 269 (1976) (“When findings that are unchallenged, or are supported by competent evidence, are sufficient to support the judgment, the judgment will not be disturbed because another finding, which does not affect the conclusion, is not supported by evidence.”)
Movant challenges the trial court's conclusion of law 4 which states “that Plaintiff is not in willful noncompliance of the Order .” “Although the statute governing civil contempt ... does not expressly require that a contemnor's conduct be willful, case law has interpreted the statute to require an element of willfulness.” Hancock v. Hancock, 122 N.C.App. 518, 523, 471 S.E.2d 415, 418 (1996) (citation omitted). “[T]he evidence must show that the person was guilty of ‘knowledge and stubborn resistance’ in order to support a finding of willful disobedience.” Sharpe v. Nobles, 127 N.C.App. 705, 709, 493 S.E.2d 288, 290–91 (1997) (citation omitted). Here, the unchallenged findings of fact show that David purchased the Farm Bureau policy in 1995 during his marriage to plaintiff. All monthly premiums for the Farm Bureau policy were paid from David's account. From at least the date of the execution of the Agreement through the date of David's death in 2009, David kept the Cherry Point policy in his possession while plaintiff had the Farm Bureau policy in her possession. Subsequent to the execution of the Agreement, David changed the beneficiary designation on the Cherry Point policy but never took any steps to change plaintiff's status as the beneficiary on the Farm Bureau policy. Based on the foregoing, there is no evidence that would support a finding and conclusion that plaintiff acted with knowledge and stubborn resistance to or deliberately acted in defiance by retaining the proceeds of the Farm Bureau policy. Therefore, movant's motion for contempt was properly denied and the order of the trial court is affirmed.
Affirmed. Judges HUNTER, JR., ROBERT N. and BEASLEY concur.
Report per Rule 30(e).