Brownstead v. Brownstead ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute
    controlling legal authority. Citation is disfavored, but may be permitted in accordance
    with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
    NO. COA13-815
    NORTH CAROLINA COURT OF APPEALS
    Filed: 4 February 2014
    LISA C. BROWNSTEAD,
    Plaintiff,
    v.                                      Mecklenburg County
    No. 07 CVD 6452
    CHRISTOPHER K. BROWNSTEAD
    Defendant.
    Appeal by defendant from order entered 25 March 2013 by
    Judge Paige B. McThenia in Mecklenburg County District Court.
    Heard in the Court of Appeals 20 November 2013.
    The Law Office of Donald J. Vicini, P.C., by Donald J.
    Vicini, for plaintiff-appellee.
    Seth B. Weinshenker,           P.A.,   by   Seth    B.    Weinshenker,      for
    defendant-appellant.
    HUNTER, JR., Robert N., Judge.
    Christopher       Brownstead     (“Defendant”)      appeals      from   a    25
    March 2013 order finding Defendant in willful civil contempt for
    failure     to    pay    child    support      payments        and   court-ordered
    attorney’s fees for Lisa Brownstead (“Plaintiff”).                      Defendant
    contends the trial court’s award of attorney’s fees was an abuse
    of discretion because N.C. Gen. Stat. § 50-13.6 (2013) requires
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    that Plaintiff show she has insufficient means to defray the
    expense   of    the    suit      and    that    the       trial   court     make    specific
    findings to that effect.                Defendant also argues that the trial
    court erred in modifying a prior order’s “math error” of the
    amount of child support in arrears.                        After careful review, we
    vacate paragraph 2c of the trial court’s order that requires
    Defendant      to    pay    Plaintiff’s        attorney’s         fees   and     remand    for
    further   findings         of    fact       concerning       Plaintiff’s         ability    to
    defray the costs of litigation.                     We affirm the remainder of the
    trial court’s order.
    I. Facts & Procedural History
    Plaintiff and Defendant were married to each other from 6
    October 2001 and were separated on 10 September 2006.                                     Three
    children were born during Plaintiff and Defendant’s marriage.
    On 12 January 2010, Judge Donnie Hoover entered an Amended Order
    Regarding      Modification            of    Child      Support       and      Contempt     in
    Mecklenburg County District Court.                    The order altered the prior
    temporary child support and custody order of the court due to a
    change in Defendant’s employment.                    Defendant was ordered to pay
    $1,430.00      per     month      in        permanent       ongoing      child      support.
    Defendant      remained         responsible         for     $8,518.06       in     past    due
    payments payable before 14 June 2009 and the total amount of all
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    past    due   payments,     $26,259.00.       Defendant     was    required    to
    continue to provide health insurance for the children.                 Lastly,
    Defendant was required to pay $2,500 of Plaintiff’s attorney’s
    fees.     In its findings of fact, the trial court found that
    “Plaintiff instituted her Motions for Contempt in good faith and
    has insufficient means with which to defray the expenses of this
    suit.”
    Defendant did not comply with the 12 January 2010 order and
    Plaintiff filed motions for contempt requesting attorney’s fees
    and    judgments    for   past    due   amounts   on   10   October    2011,   9
    February 2012, and 15 June 2012.              Orders were issued finding
    Defendant in contempt on 9 March 2010, 27 July 2010, 19 July
    2011, and 25 March 2013, and each subsequent order altered the
    amounts owed by Defendant.          Defendant appeals the 25 March 2013
    order.
    The 25 March 2013 contempt order found Defendant was in
    “willful civil contempt” and required Defendant to pay his past
    due child support obligations in two payments to Plaintiff of
    $6,636.50     and   to    pay    continuing   obligations     of    $1,430    and
    “[a]rrears payments of $500 until the total amount of $21,009.00
    has been paid.”          The trial court explained the $21,009 figure
    was a correction of the 19 July 2010 order, which the trial
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    court said contained a “math error” on a prior arrearage figure.
    The   trial    court   also   ordered   Defendant   to   pay   “plaintiff’s
    reasonable attorney fees and expenses in the total amount of
    $15,000 at the monthly rate of $400 per month” to Plaintiff’s
    counsel.      In Paragraph 24 of the order, the trial court found:
    24. In Plaintiff’s pleadings, specifically
    the October 10, 2011 verified Motion for
    Contempt, and the June 15, 2012 verified
    Amended    Motion     for    Contempt    and
    Determination of Attorney Fees, plaintiff
    affirmed that she was an interested party,
    acting in good faith, with insufficient
    means to defray the cost of litigation or
    pay her attorney for his services.    During
    the September 12, 2012 hearing, Defendant
    did not cross-examine the Plaintiff on any
    of these issues, nor otherwise present any
    evidence to refute Plaintiff’s verified
    claims.   The   court   accepts  Plaintiff’s
    verified pleadings as Plaintiff’s affidavit
    in support of Plaintiff’s motion and as
    Plaintiff’s affidavit upon which this order
    is, inter alia, based. The court finds that
    Plaintiff is an interested party, acting in
    good faith, who has insufficient means to
    defray the cost of litigation or to pay her
    attorney for his services, which would not
    have been necessary but for Defendant’s
    wrongful and willful failure to comply with
    the valid orders of the court.
    Defendant timely filed a written notice of appeal on 23 April
    2013.
    II. Jurisdiction & Standard of Review
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    This Court has jurisdiction of this matter pursuant to N.C.
    Gen. Stat. § 5A-24 (2013) (“A person found in civil contempt may
    appeal in the manner provided for appeals in civil actions.”);
    Hancock v. Hancock, 
    122 N.C. App. 518
    , 522, 
    471 S.E.2d 415
    , 418
    (1996)    (“[I]n    civil      contempt      matters,   appeal     is    from    the
    district court to this Court.”).
    Defendant argues that the trial court abused its discretion
    in    awarding    attorney’s    fees    to    Plaintiff   without       making   any
    findings of fact showing Plaintiff had insufficient means to
    defray her legal expenses.            We agree.    Defendant next argues the
    trial court erred in altering the total amount in arrears after
    discovering an error carried forward from a prior order.                          We
    disagree.
    “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.”           Watson v. Watson, 
    187 N.C. App. 55
    , 64,
    
    652 S.E.2d 310
    , 317 (2007), disc. review denied, 
    362 N.C. 373
    ,
    
    662 S.E.2d 551
    (2008).          “‘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.’”
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    Id. (quoting Hartsell
    v. Hartsell, 
    99 N.C. App. 380
    , 385, 
    393 S.E.2d 570
    , 573 (1990)).                Where there is no finding of fact on
    an   issue,      there     can    be    no    competent       evidence    to    support     a
    conclusion of law on that issue.                    See Winders v. Edgecombe Cnty.
    Home Health Care, 
    187 N.C. App. 668
    , 674, 
    653 S.E.2d 575
    , 579
    (2007).
    III. Analysis
    Defendant          first     argues       that      the     trial        court      made
    insufficient findings of fact that Plaintiff had insufficient
    means to defray the costs of litigation.                      We agree.
    In   an     action    for    child      custody,     “the       court    may   in   its
    discretion order payment of reasonable attorney’s fees to an
    interested party acting in good faith who has insufficient means
    to defray the expense of the suit.”                    N.C. Gen. Stat. § 50–13.6.
    “A party has insufficient means to defray the expense of the
    suit when he or she is unable to employ adequate counsel in
    order    to      proceed    as    litigant      to     meet     the    other    spouse     as
    litigant in the suit.”                 Taylor v. Taylor, 
    343 N.C. 50
    , 54, 
    468 S.E.2d 33
    ,    35   (citation        and   quotation       marks     omitted),      reh’g
    denied, 
    343 N.C. 517
    , 
    472 S.E.2d 25
    (1996).                           The trial court’s
    findings concerning a party’s ability to defray the costs of
    litigation must consist of more than a “bald statement that a
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    party    has   insufficient    means      to   defray    the    expenses    of    the
    suit.”    Cameron v. Cameron, 
    94 N.C. App. 168
    , 172, 
    380 S.E.2d 121
    , 124 (1989) (vacating attorneys’ fees order and remanding
    for sufficient findings of fact); Atwell v. Atwell, 
    74 N.C. App. 231
    , 238, 
    328 S.E.2d 47
    , 51 (1985) (vacating attorneys’ fees
    award    where   findings     of   fact    were    insufficient        to   support
    determination     that     wife    had     insufficient        means   to   defray
    litigation costs).        Merely restating the statutory language in
    this respect is insufficient because this “finding” concerning a
    party’s    ability   to    defray    the       costs    of   litigation     is,   in
    substance, a conclusion of law; as such, it must be supported by
    findings of fact.        
    Atwell, 74 N.C. App. at 238
    , 328 S.E.2d at 51
    (citing Quick v. Quick, 
    305 N.C. 446
    , 
    290 S.E.2d 653
    (1982)).
    This Court more recently held in Dixon v. Gordon, ___ N.C.
    App. ___, 
    734 S.E.2d 299
    (2012), review denied, ___ N.C. ___,
    
    743 S.E.2d 191
    (2013), that an order’s recitation of “the bare
    statutory language” that the father in a child custody action
    did “not have sufficient funds with which to employ and pay
    legal counsel” to “meet [the mother] on an equal basis” was
    insufficient to support the award of attorneys’ fees. Id. at
    ___, 734 S.E.2d at 305.             Further, in Dixon, evidence of the
    father’s income was found in the record, but we held there were
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    still “no findings in the trial court’s order which detail this
    information.”   
    Id. This Court
    also noted that “more specific
    findings of fact are normally present in cases where attorney’s
    fees are awarded for actions involving child custody.”            Id. at
    ___ 
    n.1, 734 S.E.2d at 305
    n.1; see also Church v. Decker,
    COA13-456, 
    2013 WL 6669119
    at *2–3 (Dec. 17, 2013) (unpublished)
    (citing Dixon to note a lack of specific findings under similar
    facts).
    Here, the trial court ruled that Plaintiff was entitled to
    attorney’s fees by stating only the “bare statutory language”
    that Plaintiff had “insufficient means with which to defray the
    costs of this action” and not including any findings in its
    order to support this determination.       Without such findings, the
    trial court’s order for attorney’s fees cannot be sustained.
    Dixon, ___ N.C. App. at ___, 734 S.E.2d at 305; Cameron, 94 N.C.
    App. at 172, 
    380 S.E.2d 124
    ; 
    Atwell, 74 N.C. App. at 238
    , 328
    S.E.2d at 51–52.       Accordingly, we remand this matter to the
    trial court for entry of adequate findings of fact, based on the
    evidentiary record, concerning Plaintiff’s ability to defray the
    costs of litigation.
    Defendant   also    argues   that   “there   was   no   testimony   or
    evidence offered by the Appellee to support those findings” that
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    Defendant was $21,009 in arrears instead of the $18,519 which
    was listed in the 26 July 2010 order.            Defendant does not cite
    to any relevant authority for his argument except to state that
    contempt motions are not the usual method used to correct or
    amend a prior motion.        Defendant only notes, without citation,
    that Rule 59(e) and Rule 60 of the North Carolina Rules of Civil
    Procedure are the usual motions used to correct prior orders.
    Rule 28 of our Appellate Rules of Procedure provides:
    The body of the argument and the statement
    of applicable standard(s) of review shall
    contain citations of the authorities upon
    which the appellant relies. Evidence or
    other proceedings material to the issue may
    be narrated or quoted in the body of the
    argument, with appropriate reference to the
    record   on   appeal,   the  transcript  of
    proceedings, or exhibits.
    N.C. R. App. P. 28; see also State v. Green, 
    101 N.C. App. 317
    ,
    320, 
    399 S.E.2d 376
    , 378, writ denied, 
    328 N.C. 335
    , 
    400 S.E.2d 449
    (1991) (“Under Rule 28(b)(5) of the N.C. Rules of Appellate
    Procedure, when a party fails to cite authority in support of an
    assignment   of    error,   the    party    abandons   that   assignment   of
    error.”).
    Further, “[i]t is not the duty of this Court to supplement
    an   appellant’s    brief   with    legal    authority   or   arguments    not
    contained therein.”     Eaton v. Campbell, ___ N.C. App. ___, ___,
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    725 S.E.2d 893
    ,   894    (2012)     (citation         and   quotation    marks
    omitted); see also Viar v. N.C. Dep’t of Transp., 
    359 N.C. 400
    ,
    402, 
    610 S.E.2d 360
    , 361 (2005); Goodson v. P.H. Glatfelter Co.,
    
    171 N.C. App. 596
    , 606, 
    615 S.E.2d 350
    , 358 (“It is not the duty
    of this Court to       supplement an appellant’s brief with legal
    authority or arguments not contained therein.”), disc. review
    denied, 
    360 N.C. 63
    , 
    623 S.E.2d 582
    (2005).
    Because     Defendant    does     not     cite       any   relevant     legal
    authority   noting     that   the     trial   court        was   prohibited   from
    modifying   the    prior   contempt     order    in    a    subsequent   contempt
    order, we hold Defendant has abandoned his argument on appeal by
    failing to cite authority for his position.
    IV. Conclusion
    As the trial court did not make specific findings of fact
    concerning Plaintiff’s ability to defray the costs of litigation
    in this child custody case, we must remand this case to the
    trial court for further findings of fact on that issue.                          We
    affirm the trial court’s modification of the trial court order.
    Vacated and remanded in part, affirmed in part.
    Judges ROBERT C. HUNTER and CALABRIA concur.
    Report per Rule 30(e).