Spears v. Spears , 245 N.C. App. 260 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1133
Filed: 2 February 2016
Mecklenburg County, No. 08-CVD-16936 (RLC)
JULIE SPEARS, Plaintiff,
v.
JAMES GREGORY SPEARS, Defendant.
Appeal by defendant from orders entered on 27 May 2014 by Judge Ronald L.
Chapman in District Court, Mecklenburg County. Heard in the Court of Appeals on
21 May 2015.
James, McElroy & Diehl, P.A., by Preston O. Odom, III and Jonathan D. Feit,
for plaintiff-appellee.
Collins Family Law Group, by Rebecca K. Watts, for defendant-appellant.
STROUD, Judge.
Although this case began on or about 31 July 2008 and several interlocutory
orders have been entered since its inception, the first orders for which James Gregory
Spears (“defendant”) had a right of immediate appeal were entered on 27 May 2014.
These orders held defendant in civil contempt for his continuing failure to pay more
than his entire disposable income each month towards his obligations of payment of
credit card debt, child support, alimony, and attorneys’ fees, ordered his
imprisonment, and required him to pay an additional $900.00 per month over and
SPEARS V. SPEARS
Opinion of the Court
above the established obligations for an indefinite time in order to purge himself of
contempt. Defendant appeals from these orders, and we vacate.
I. Background
Julie Spears (“plaintiff’) and defendant married in 1991 and three children
were born to the marriage. They separated on or about 1 January 2008, and plaintiff
filed a complaint seeking child custody, child support, post-separation support,
alimony, attorneys’ fees, and equitable distribution on or about 31 July 2008. The
parties were divorced on 15 October 2008.1 On or about 12 December 2008, defendant
filed his answer and counterclaims for child custody and equitable distribution. On
19 December 2008, defendant remarried to his second wife.
The procedural history of this case is extremely complex due to the repeated
pattern of entry of orders many months after the hearings upon which they were
based and changes in circumstances during the long lapses in time between hearings
and entry of orders, which has resulted in the situation presented, in which there still
is not a final order addressing all of the parties’ obligations as to equitable
distribution, alimony, and child support. Nor has defendant ever been able to have a
court hear his claims for modification of his support obligations based upon his
allegations of substantial changes of circumstances, since no final order has been
1 The absolute divorce was entered in Indiana, where a full year of separation prior to filing
for the divorce is not required. See Ind. Code Ann. § 31-15-2-5 (LexisNexis 2007).
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Opinion of the Court
entered which he could move to modify or which the court could modify. In this
appeal, we are trying to hit a moving target.
On 16 December 2008, the trial court held a hearing upon plaintiff’s claims for
post-separation support, temporary child support, and attorneys’ fees. On or about
10 February 2009, the trial court entered a temporary support order based upon the
December 2008 hearing. The trial court found that defendant was employed by the
United States Army and had an average gross monthly income of $7,339.00. Plaintiff
was not employed outside of the home although she was seeking employment. The
trial court found that defendant’s reasonable needs and expenses were $2,500.00 per
month. Based on the North Carolina Child Support Guidelines, the trial court
ordered defendant to pay child support of $1,561.00 per month beginning 15
December 2008 and to continue to provide medical insurance for the children. The
trial court also ordered defendant to pay post-separation support of $1,800.00 per
month beginning 1 December 2008 as well as $2,500.00 in attorneys’ fees to plaintiff’s
counsel. In addition, defendant was ordered to make timely payments on several
credit cards, for which he would be given “appropriate credit” upon resolution of the
equitable distribution claims.
On or about 22 May 2009, plaintiff filed a motion to hold defendant in contempt
for failure to pay the full amounts of child support and post-separation support
required under the temporary support order. The trial court entered an order on 16
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September 2009 holding defendant in civil contempt for his failure to comply with the
temporary support order. In addition to the ongoing temporary child support and
post-separation support, the trial court ordered defendant to pay $9,000.00 for post-
separation support arrears, at the rate of $500.00 per month starting 15 September
2009 and continuing until paid in full. He was also ordered to pay plaintiff’s
attorneys’ fees in the amount of $6,650.00 with the terms of payment to be “deferred
until equitable distribution.”
On or about 20 December 2009, defendant filed a motion to stay proceedings
because he had been stationed in Afghanistan on or about 11 August 2009 for a period
of one year. Although our record does not reveal the trial court’s ruling, if any, upon
the motion to stay, no additional court proceedings occurred until December 2011.
A. Defendant’s Obligations under the February 2013 Order
On 12 and 13 December 2011, the trial court heard the matters of equitable
distribution, alimony, child custody, child support, and attorneys’ fees. Ultimately,
the trial court signed an order as a result of this hearing on or about 31 January 2013,
nunc pro tunc to 18 May 2012,2 which was filed and entered on 4 February 2013 (“the
February 2013 Order”).
2 18 May 2012 is the date of a letter from the trial court to counsel for the parties setting forth
the trial court’s rulings and directing plaintiff’s counsel to prepare the order. Although we cannot
address the propriety of the “nunc pro tunc” signing of the February 2013 Order because it is not a
subject of this appeal, we note that “[n]unc pro tunc orders are allowed only when a judgment has been
actually rendered . . . provided that the fact of its rendition is satisfactorily established and no
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Opinion of the Court
In the February 2013 Order, the trial court found that defendant’s gross
monthly income from the United States Army was $10,561.02. He had financial
responsibility for three other children born to his second wife of $1,046.88 per month.
Based on the North Carolina Child Support Guidelines, the trial court ordered
defendant to pay $1,880.48 per month in child support, effective as of 1 March 2009,
the first day of the first month after entry of the temporary support order. Because
the prior temporary support order established a monthly child support obligation of
$1,561.00 and the February 2013 Order made the increase in defendant’s monthly
child support obligation retroactive, the February 2013 Order also established
defendant’s arrears of child support from 1 March 2009 through January 2013 as
$15,015.56, or ($1,880.48 - $1,561.00) x 47 months, and the trial court ordered
defendant to pay this in full on or before 15 April 2014. The trial court also ordered
defendant to continue to provide medical and dental insurance for the children.
As to the alimony obligation, the trial court found that defendant had shared
expenses of $900.00 per month and individual expenses of $1,149.47 per month.
After payment of all of his expenses, child support obligation, and debt assigned to
him in equitable distribution, the trial court found that defendant had “in excess of
intervening rights are prejudiced.” Whitworth v. Whitworth, 222 N.C. App. 771, 777-78, 731 S.E.2d
707, 712 (2012) (emphasis added and quotation marks and brackets omitted). “[E]ntry of the order
nunc pro tunc does not correct the defect because what the court did not do then cannot be done now
simply by use of these words[.]” Id. at 778, 731 S.E.2d at 712 (quotation marks, brackets, and ellipses
omitted).
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$2,500 net per month in surplus income.” The trial court also found that plaintiff had
a monthly deficit of over $4,000.00, based upon her expenses, income, and payment
of debt assigned to her in equitable distribution. The trial court ordered defendant
to pay alimony in the amount of $2,500.00 per month from 1 January 2012 through
December 2013, $1,750 per month from January 2014 through December 2015, and
$1,250.00 per month from January 2016 until terminated by a “statutorily-
terminating event.” The order established defendant’s alimony arrears from 1
January 2012 through January 2013 as $9,100.00 and ordered that defendant pay
this sum within sixty days of entry of the order.3
The February 2013 Order also included equitable distribution and allocated
certain marital credit card debts to defendant to be paid in the amount of $1,250.00
per month. The parties did not have any significant liquid marital assets, so the trial
court did not distribute any accounts or other sources of cash that were large enough
to serve as a source of payment for the various obligations owed by defendant. The
trial court also ordered that defendant pay a distributive award of $21,000.00 to
plaintiff at the rate of $875.00 per month beginning 1 January 2014. In addition, the
trial court ordered that defendant pay $23,150.00 in attorneys’ fees at the rate of
3 Based upon a date of entry of 4 February 2013, the alimony arrears would have been due by
5 April 2013.
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$250.00 per month beginning 15 February 2013 and an additional $1,000.00 in
attorneys’ fees to be paid within sixty days of entry of the order.4
Both parties filed post-trial motions after entry of the February 2013 Order.
On or about 22 February 2013, plaintiff filed a motion requesting a new trial “solely
to address the military Reserve Component Survivor Benefit Plan[.]” On or about 22
February 2013, defendant filed motions under North Carolina Rules of Civil
Procedure 52 and 59 to amend the findings of fact and for a new trial. See N.C. Gen.
Stat. § 1A-1, Rules 52, 59 (2013). Defendant’s motion included allegations that during
the fourteen-month delay between the trial and entry of the order, his income and
financial situation had changed significantly, but that he was unable to file a motion
to modify because the change in his financial circumstances occurred before entry of
the February 2013 Order.
On 18 April 2013, plaintiff filed a motion for contempt alleging that defendant
had failed to pay various sums he was ordered to pay, including the $9,100.00 alimony
arrears due by 5 April 2013 and $5,831.15 in additional arrears based upon his partial
payments of the obligations for child support, credit card debt, alimony, and
attorneys’ fees, with total arrears of $14,931.15 alleged. Plaintiff also sought
attorneys’ fees arising from her motion for contempt.
4 Based upon a date of entry of 4 February 2013, the $1,000.00 amount would have been due
by 5 April 2013.
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Although the court did not enter orders addressing plaintiff’s and defendant’s
post-trial motions until about 7 August 2013, according to those orders, the trial court
apparently announced its decision to deny defendant’s post-trial motions and to grant
plaintiff’s post-trial motion at a hearing on 26 April 2013. On or about 26 July 2013,
based upon this announcement, defendant filed a motion to modify alimony and child
support alleging a reduction in his income due to a change in his military
assignment.5 Specifically, at the time of the trial in December 2011, defendant was
stationed in South Korea and received various allowances based on that assignment
so that his gross income was about $10,700.00 per month. In August 2012, defendant
was reassigned to South Carolina and his income was reduced to about $9,200.00 per
month, which increased to about $9,490.00 per month as of January 2013. He also
alleged that from this amount, he had mandatory deductions for housing and taxes,
leaving him with a net monthly income of $5,420.00, although the order required him
to pay a total of $6,755.00 per month, or $1,335.00 more than his monthly net income.
On or about 26 July 2013 and 27 November 2013, plaintiff filed “supplemental”
motions for contempt updating the amounts of arrears which she claimed defendant
had failed to pay. On or about 7 August 2013, the trial court entered an order
granting plaintiff’s post-trial motion.6 The trial court ordered a new trial to address
5 In his motion to modify, defendant alleged: “Since Defendant’s Rule 52 and 59 motions were
denied, and since the presiding Judge indicated he believed Defendant could file a motion to modify,
Defendant is now filing this motion to modify.”
6 As noted above, the trial court had announced this ruling on 26 April 2013.
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issues concerning “any survivor benefit plan(s) relating to [defendant’s] military
retirement benefits” and ordered that the February 2013 Order “should be amended
after such new trial” to address these issues. According to our record, a final amended
order has not yet been entered.
Also on or about 7 August 2013, the trial court entered its order denying
defendant’s post-trial motions finding that he was not “without a remedy” because
this Court believes that North Carolina law would permit
him to move to modify his alimony and child support
obligations based on alleged changes in circumstances that
occurred between the time this Court issued its letter
ruling on May 18, 2012, and the time this Court entered
the Judgment on February 4, 2013. This Court does not
now address whether such alleged changes in
circumstances would warrant modifying any of
Defendant/Husband’s obligations, however, as such issue
would have to be resolved in connection with a motion to
modify.
But defendant alleged that the reduction in his income occurred after the December
2011 trial and before the entry of the February 2013 Order; thus, a motion to modify
is not a proper “remedy[.]” See Head v. Mosier, 197 N.C. App. 328, 333, 677 S.E.2d
191, 195 (2009) (holding that for a court to modify a child support order, it must first
“determine whether there has been a substantial change in circumstances since the
date the existing child support order was entered”) (emphasis added). As noted above,
defendant filed such a motion to modify on or about 26 July 2013, based upon the
trial court’s belief that this would be a proper remedy. According to our record, the
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trial court has not yet heard the motion.7
B. Contempt Order and Order on Purge Condition Noncompliance
On 2 December 2013, the trial court held a hearing on plaintiff’s contempt
motions and a show cause order issued as a result of those motions.8 The order from
this hearing (“the Contempt Order”) was not entered until nearly six months later,
on 27 May 2014, and since there were additional proceedings between 2 December
2013 and 27 May 2014 which influenced that order, we will address those proceedings
before noting the provisions of the ultimate 27 May 2014 Contempt Order.
The trial court held another hearing on 22 January 2014, which was referred
to as a “review hearing” to assess defendant’s compliance with certain “purge
conditions, including any and all efforts he has made to free-up the $900.00 [per
month] in additional funds.” On 22 January 2014, the trial court ordered defendant
to be incarcerated for civil contempt until such time as he paid $5,369.70.
Defendant’s parents paid this sum, defendant was released from the custody of the
7 We further note that the fourteen-month delay between the December 2011 trial and the
entry of the February 2013 Order, which is still not final, will be compounded by the additional delay
until a final order is entered after a hearing of plaintiff’s post-trial motion. See Plomaritis v.
Plomaritis, 222 N.C. App. 94, 110-11, 730 S.E.2d 784, 795 (2012) (“As the 18 month delay was more
than a de minimis delay and was prejudicial under the facts of this case, it would require a new hearing
for the parties to provide additional evidence[.]”) (quotation marks omitted).
8 The Contempt Order states that all three contempt motions were heard, but the transcript
indicates that only the first two were considered, since the “Second Supplemental Motion for
Contempt” (which is the motion filed 27 November 2013) had been served upon defendant less than
five business days before the hearing. See N.C. Gen. Stat. § 5A-23(a1) (2013). The trial court stated
that it would consider contempt as of 26 July 2013, which would cover the time periods of the first two
contempt motions filed, and based upon the transcript and the dates found in the order, this is what
happened, despite the order’s recitation that the trial court heard the motion filed 27 November 2013.
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Opinion of the Court
Mecklenburg County Sheriff’s Office, and this amount was remitted to plaintiff. In
addition to the incarceration and payment of $5,369.70, the trial court entered
another order (“the Order on Purge Condition Noncompliance”) based upon the 22
January 2014 hearing, filed on 27 May 2014, which states that on 2 December 2013,
the trial court had rendered its decision
holding Defendant/Husband in civil contempt of the
February 2013 Order, sentencing him to imprisonment for
so long as such contempt continued, and suspending the
sentence of imprisonment conditioned upon his compliance
with the following purge conditions:
a. Defendant/Husband shall immediately begin
paying at least $900.00 more per month to
Plaintiff/Wife over and above his total monthly
obligations due under the February 2013 Order, and
b. Defendant/Husband’s efforts in this regard
must include, at the very least, downwardly
adjusting the federal income taxes being withheld
from his gross monthly income.
In the Order on Purge Condition Noncompliance, the trial court further found:
4. Defendant/Husband’s counsel objected to this Court
conducting the compliance hearing on January 22, 2014,
given that an Order had not yet been entered as a result of
the December 2, 2013 contempt hearing. The Court
overruled such objection.
....
9. With respect to the second purge condition,
Defendant/Husband downwardly adjusted the federal
income taxes being withheld from his gross monthly
income.
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10. However, Defendant/Husband did not consult any
tax professional to ascertain whether he downwardly
adjusted such income tax withholdings to the greatest
extent possible.
11. Nor does Defendant/Husband know whether he can
further reduce such withholdings.
12. By not bringing to the hearing documentation
regarding his research and attempts to reduce his income
tax withholdings, Defendant/Husband has left this Court
without the ability to make a satisfactory determination as
to what additional amount he could receive in net monthly
income.
13. Defendant/Husband’s attempts to reduce expenses
regarding the beach house he co-owns with his current wife
likewise are unsatisfactory, and they display an
unacceptable disrespect for his children with
Plaintiff/Wife, Plaintiff/Wife, the law, and this Court.
14. In sum, Defendant/Husband has failed to comply
with the purge conditions set by this Court.
On 27 May 2014, the trial court entered the Contempt Order as a result of the
2 December 2013 hearing. In this order, the trial court made the following pertinent
findings of fact:
16. The total amount Defendant/Husband paid to
Plaintiff/Wife from February 2013 through July 2013 was
(a) $3,670.80 less than his total monthly court-ordered
obligations for during such time period; and (b) $12,770.80
less than all of his court-ordered obligations during such
time period given the $9,100.00 alimony arrearage
payment due and owing on or before April 5, 2013.
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17. Defendant/Husband knew at all material times
about his payment obligations set forth in the February
2013 Order.
18. Defendant/Husband willfully failed to comply with
the February 2013 Order from February 2013 through July
2013, in that he had the ability to either (a) pay more
towards his court-ordered obligations during such time
period; or (b) take reasonable measures to enable him to
pay more towards his court-ordered obligations during
such time period, yet deliberately did not do so.
19. This is so based on the following circumstances that
existed or occurred during such time period;
a. Defendant/Husband received $9,491.30 in
gross monthly income from the U.S. Army, $1,965.00
of which comprised a housing allotment.
b. The U.S. Army automatically withheld such
allotment from Defendant/Husband’s gross monthly
income to cover housing for himself, his current wife,
and their four (4) minor children.
c. Defendant/Husband’s net monthly income
totaled $5,352.76 after deducting the following from
his gross monthly income: (i) non-discretionary
withholdings for federal income taxes ($1,110.88),
social security taxes ($451.59), Medicare taxes
($105.61), state taxes ($440.00), and the
aforementioned housing allotment ($1,965.00); and
(ii) discretionary withholdings for life insurance
($27.00) and dental insurance ($6.50).
d. Defendant/Husband paid less than $5,352.76
per month to Plaintiff/Wife in February ($1,748.20
less), March ($853.12 less), April ($267.00 less),
June ($793.34 less), and July ($793.32 less).
e. Defendant/Husband and his current wife paid
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Opinion of the Court
roughly $600.00 per month to service debt owed to
his parents for a beach house in North Carolina,
which his current wife and their children visit no
more than three times per year.
f. Defendant/Husband and his current wife did
not discuss the possibility of selling the beach house
to generate income and reduce expenses in an effort
to meet his court-ordered obligations.
g. Defendant/Husband received a federal
income tax refund of $8,903.00 for tax year 2012, all
of which was attributable to his income.
h. Defendant/Husband remitted less than one-
half of such refund to Plaintiff/Wife because,
according to him, his current wife was entitled to
one-half of such refund notwithstanding that the
entire refund was attributable to his income.
i. Defendant/Husband could have reduced his
federal income tax withholdings by approximately
$740.00 per month given the size of the refund for
tax year 2012 ($8,903.00 ÷ 12 months = $741.91), but
he did not do so.
20. As of December 2, 2013, Defendant/Husband’s gross
monthly income from the U.S. Army was the same as that
recited above.
21. As of December 2, 2013, Defendant/Husband and his
current wife were still paying approximately $600.00 per
month to service debt owed to his parents for the North
Carolina beach house.
22. Defendant/Husband reduced his current family’s net
monthly income by approximately $600.00 per month by
participating in the decision to purchase the beach house
and service the debt related thereto.
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23. Paying $600.00 per month to service the debt on the
beach house from February 2013 through July 2013
amounts to $3,600.00 ($600.00 x 6 months = $3,600.00). If
such payments had instead been applied to
Defendant/Husband’s total monthly obligations under the
February 2013 Order for such time period, his arrearage
concerning such obligations would be $70.80, rather than
$3,670.80.
24. Defendant/Husband’s failure to (a) consider the
possibility of having a discussion with his current wife
regarding selling the beach house; (b) engage in such a
discussion; and (c) state anything other than he could not
get his current wife to agree to sell the beach house, evinces
his stubborn resistance towards his court-ordered payment
obligations.
25. For present purposes only, Defendant/Husband has
the ability to free-up at least $300.00 more per month by
selling the beach house.
26. Defendant/Husband can free-up as much as $740.00
more per month by downwardly adjusting the amount of
federal income taxes being withheld from his gross
monthly income.
27. For present purposes only, Defendant/Husband has
the ability to free-up at least $600.00 more per month by
downwardly adjusting the amount of federal income taxes
being withheld from his gross monthly income.
28. In addition to the above, Defendant/Husband has
demonstrated his disregard for his familial and legal
obligations relating to his prior marriage to Plaintiff/Wife
by (a) remarrying as quickly as he did; and (b) growing his
family with his current wife.
The Contempt Order decrees in pertinent part:
4. Defendant/Husband is sentenced to imprisonment
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Opinion of the Court
for as long as the civil contempt continues, with such
sentence being suspended upon his compliance with the
following purge conditions:
a. Defendant/Husband shall immediately begin
paying at least $900.00 more per month to
Plaintiff/Wife over and above his total monthly
obligations due under the February 2013 Order, and
b. Defendant/Husband’s efforts in this regard
must include, at the very least, downwardly
adjusting the federal income taxes being withheld
from his gross monthly income.
5. This Court shall conduct a review hearing at 8:30
a.m. on Wednesday, January 22, 2014, to assess
Defendant/Husband’s compliance with these purge
conditions, including any and all efforts he has made to
free-up the $900.00 in additional funds.
The trial court also awarded plaintiff attorneys’ fees arising from her contempt
motions but did not determine the amount.
In the Order on Purge Condition Noncompliance, which was also entered on 27
May 2014, the trial court further decreed:
1. This Court hereby activates the sentence of
imprisonment for Defendant/Husband’s continuing civil
contempt of the February 2013 Order for the time period
February 2013 through July 2013.
2. Defendant/Husband shall be released from such
imprisonment when he remits $5,639.70 for the benefit of
Plaintiff/Wife, and such remittance shall include the
$1,405.90 check if Plaintiff/Wife receives it.
3. From the point of remittance forward,
Defendant/Husband’s civil contempt shall continue unless
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he makes payments consistent with the February 2013
Order and the purge conditions set by this Court.
4. The amount of attorneys’ fees to be awarded
Plaintiff/Wife is deferred for future determination.
5. This Court retains jurisdiction over this cause for
such other orders as may become appropriate.
Defendant timely filed notice of appeal from the Contempt Order and the Order on
Purge Condition Noncompliance, both entered on 27 May 2014.9
II. Appellate Jurisdiction
Although the trial court’s orders are interlocutory, defendant contends that the
orders are immediately appealable because they affect a substantial right. “The
appeal of any contempt order . . . affects a substantial right and is therefore
immediately appealable.” Guerrier v. Guerrier, 155 N.C. App. 154, 158, 574 S.E.2d
69, 71 (2002). Accordingly, we hold that this appeal is properly before us.
III. Discussion
Defendant argues that the trial court erred in (1) concluding that he has the
ability to either comply, or take reasonable measures that enable him to comply, with
the February 2013 Order; (2) concluding that he has the ability to comply with the
purge conditions established in the Contempt Order; (3) establishing impermissibly
9 Perhaps due to the delay in entry of the two orders and the fact that they were entered on
the same day, the two orders have interrelated provisions which require us to consider both of them
to understand each one individually, although we will address the issues raised as to each order
independently to the extent possible.
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Opinion of the Court
vague purge conditions; (4) reviewing his compliance with the purge conditions before
entering the Contempt Order that set forth those purge conditions; and (5) awarding
plaintiff attorneys’ fees arising from her contempt motions.
A. Standard of Review
We review orders for contempt to determine if the findings of fact support the
conclusions of law: “The standard of review we follow in a contempt proceeding is
limited to determining whether there is competent evidence to support the findings
of fact and whether the findings support the conclusions of law.” Middleton v.
Middleton, 159 N.C. App. 224, 226, 583 S.E.2d 48, 49 (2003) (quotation marks
omitted).
B. Contempt Order
“This will be a slightly unusual contempt order[.]”10
Defendant first argues that the trial court erred by concluding that he has the
ability to either comply with the February 2013 Order or take reasonable measures
to enable him to comply, even based upon the trial court’s actual findings as to his
income, expenses, and assets. This is not so much a legal argument as a
mathematical one. The findings of fact make defendant’s inability to fully comply
quite clear.
N.C. Gen. Stat. § 5A-21(a) provides:
10 This was the trial court’s description of the Contempt Order when it was announced.
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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.
N.C. Gen. Stat. § 5A-21(a) (2013) (emphasis added). “For civil contempt to be
applicable, the defendant . . . must have the present ability to comply, or the present
ability to take reasonable measures that would enable him to comply, with the order.”
Teachey v. Teachey, 46 N.C. App. 332, 334, 264 S.E.2d 786, 787 (1980). “The purpose
of civil contempt is not to punish but to coerce the defendant to comply with a court
order.” Cox v. Cox, 133 N.C. App. 221, 226, 515 S.E.2d 61, 65 (1999).
Defendant challenges the following conclusions of law in its Contempt Order:
7. Defendant/Husband willfully failed to comply with
the February 2013 Order from February 2013 through July
2013, in that he had the ability to either (a) pay more
towards his court-ordered obligations during such time
period; or (b) take reasonable measures to enable him to
pay more towards his court-ordered obligations during
such time period, yet deliberately did not do so.
8. Defendant/Husband is in continuing civil contempt
of the February 2013 Order.
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Opinion of the Court
9. Defendant/Husband has the present ability to
comply, or otherwise take reasonable measures to enable
him to comply, with the purge conditions decreed herein.
(Emphasis added.)
Thus, the trial court did not conclude that defendant had the ability to pay all
of his obligations under the February 2013 Order, only that he could have paid “more”
or that he could have taken reasonable measures to enable him to pay “more[.]”
i. Ability to Comply with February 2013 Order
According to the trial court’s findings of fact in the Contempt Order and the
February 2013 Order establishing the obligations, defendant’s income and expenses
were as follows:
Defendant’s gross income $9,491.30 Contempt Order,
Finding of Fact 19(a)
Housing allotment deduction ($1,965.00) Contempt Order,
Finding of Fact 19(a)
Non-discretionary withholding for federal ($1,110.88) Contempt Order,
income taxes Finding of Fact 19(c)
Social security taxes ($451.59) Contempt Order,
Finding of Fact 19(c)
Medicare taxes ($105.61) Contempt Order,
Finding of Fact 19(c)
State taxes ($440.00) Contempt Order,
Finding of Fact 19(c)
Discretionary withholding for life insurance ($27.00) Contempt Order,
Finding of Fact 19(c)
Discretionary withholding for dental ($6.50) Contempt Order,
insurance Finding of Fact 19(c)
Defendant’s shared expenses ($900.00) February 2013 Order,
Finding of Fact 138
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Defendant’s individual expenses ($1,149.47) February 2013 Order,
Finding of Fact 138
Defendant’s financial responsibility for ($1,046.88) February 2013 Order,
children with second wife Finding of Fact 129
Defendant’s disposable income $2,288.37
Thus, defendant was left with a disposable income of $2,288.37. He was under
order to pay the following amounts each month during the time period of February
2013 until July 2013:
Credit card payments (per equitable $1,250.00 February 2013 Order,
distribution) Decretal Provision 4
Child support $1,880.48 February 2013 Order,
Decretal Provision 11
Alimony $2,500.00 February 2013 Order,
Decretal Provision 17
Attorneys’ fees $250.00 February 2013 Order,
Decretal Provision 23
Total monthly obligation $5,880.48
Based upon the amounts as determined by the trial court, defendant would
have a shortfall of $3,592.11 each month. On top of that shortfall, defendant was also
required to pay a lump sum of $9,100.00 in alimony arrears by 5 April 2013. We note
that in the February 2013 Order, the trial court had also ordered defendant to pay a
lump sum of $1,000.00 in attorneys’ fees by 5 April 2013, but the trial court did not
mention this amount in its Contempt Order. Accordingly, the trial court’s findings of
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Opinion of the Court
fact demonstrated that defendant lacked the ability to comply with the February 2013
Order.
We also note that this is not a case in which a defendant simply failed to pay
anything at all. The trial court found that during the time period addressed by the
order’s findings, February 2013 to July 2013, defendant should have paid ongoing
obligations totaling $35,282.88, but he paid $31,612.08, or only $3,670.80 less than
owed for the ongoing obligations. His total arrears increased to $12,770.80 because
of the preexisting $9,100.00 alimony arrearage.
ii. Taking Reasonable Measures
Defendant next argues that the trial court erred in concluding that he could
have taken reasonable measures to comply with the February 2013 Order by “freeing
up” $900.00 more per month to pay to plaintiff. The trial court found that defendant
could “free up” $300.00 per month by selling his and his second wife’s beach house
and $600.00 per month by “downwardly adjusting the amount of federal income taxes
being withheld from his gross monthly income.” But even assuming arguendo that
defendant could “free up” $900.00 per month, he still could not have complied with
the February 2013 Order because, as discussed above, his obligations exceeded his
disposable income by $3,592.11 per month, not including the $9,100.00 alimony
arrearage.
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Defendant’s counsel pointed out the mathematical impossibility for defendant
to “free up” enough funds to pay his obligations during argument before the trial
court:
[Defendant’s counsel]: And what—where I’m going with
this is there is no way to free up enough cash flow to pay
everything. That even if he had zero taxes taken out, his
gross income is not enough to meet—meet the obligations.
So there is nothing he can do to increase cash flow to satisfy
this.
THE COURT: I’ve already found there is, haven’t I?
[Plaintiff’s counsel]: Yes.
[Defendant’s counsel]: Well, Your Honor, he is—he is
under obligation to pay eighty-two thousand dollars to her
in 2013. His gross income in 2013 was eighty-two thousand
dollars. His gross income. So no matter how he adjusts his
taxes, the—he can’t free up the cash flow. And—
THE COURT: Then you’re going to have to appeal my prior
decision.
Of course, defendant has not yet had the opportunity to appeal the “prior
decision”; that order is still not final and appealable thanks to the trial court’s order
granting plaintiff’s motion for a new trial regarding defendant’s military retirement
benefits. The merits of the February 2013 Order are not before us. But even if that
“prior decision” is ultimately modified by the trial court or reversed or vacated on a
future appeal, defendant has already been held in contempt and ordered incarcerated
for his failure to comply with it, so we must address his ability to pay.
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In the Contempt Order, as to defendant’s ability to pay “more” than he had
been paying, the trial court faulted defendant for failing to force his second wife to
sell their beach house despite the fact that defendant testified that they owned the
house as tenants by the entirety. Under N.C. Gen. Stat. § 39-13.6(a), “[n]either
spouse may bargain, sell, lease, mortgage, transfer, convey or in any manner
encumber any property so held without the written joinder of the other spouse.” N.C.
Gen. Stat. § 39-13.6(a) (2013). The trial court seemed to recognize this rule:
THE COURT: . . . Is there a way—do you believe, folks,
there is a way for me to order him to take some unilateral
action related to the beachfront property; whether his wife
cooperates or not?
[Defendant’s counsel]: You’re saying whether you could
order him to sell it whether she wants to or not?
THE COURT: Well, no, I’m not saying—I don’t believe I
can order that.
Additionally, the Contempt Order also notes that there is a mortgage on the property,
so even if it were sold, there is no evidence or finding of the amount of equity in the
house or that defendant would receive net proceeds from the sale. It appears that a
sale would only eliminate the monthly mortgage payment and would not provide a
source of additional funds to pay off arrears.
Also in regard to defendant’s failure to be able to pay “more” than he had been
paying, even if he could not pay all of his obligations, the trial court found that he
showed “disregard for his familial and legal obligations” by “remarrying as quickly as
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Opinion of the Court
he did” and “growing his family with his current wife[,]” or having additional children.
But he had remarried and already had three additional children at the time of entry
of the February 2013 Order. His support obligation for three additional children was
specifically found in that order; he and his second wife had only their fourth child
after entry of the February 2013 Order. Plaintiff and the trial court may believe that
defendant would have been wise not to remarry and that he and his second wife
should not have had any children, and certainly not four, but North Carolina’s law
does not impose limitations on an individual’s right to marry or have children. We
cannot discern how defendant’s exercise of these fundamental rights to marry and
procreate, in this particular situation, demonstrates a “disregard for his familial and
legal obligations[.]”
We further note that there is no question in this case of intentional suppression
of earnings or hiding income. Defendant is employed by the United States Army, and
his income information is clear and undisputed. Accordingly, we hold that the trial
court erred in its conclusion that defendant could have taken “reasonable measures”
to comply with the February 2013 Order, based upon the trial court’s own findings as
to defendant’s income and expenses and the manner in which the trial court found
that he could “free up” additional funds.
iii. Partial Compliance
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Opinion of the Court
Plaintiff responds that the trial court need not find that defendant has the
ability to pay the entire amount of the obligations to hold him in contempt, but it is
sufficient that the trial court find that he had the ability to pay at least a portion of
the sums owed and that he willfully failed to pay as much as he could have. We agree
with plaintiff that an interpretation of the cases which would always require a finding
of full ability to pay would “encourage parties to completely shirk their court-ordered
obligations if they lack the ability to fully comply with them.” Yet the cases do not go
quite so far as plaintiff suggests. An obligor may be held in contempt for failure to
pay less than he could have paid, even if not the entire obligation, but the trial court
must find that he has the ability to fully comply with any purge conditions imposed
upon him.
The seminal case on this issue from our Supreme Court is Green v. Green, a
civil contempt proceeding for nonpayment of alimony, in which the Court held that
the trial court’s findings of fact were insufficient to support its order that the
defendant be imprisoned until he paid the amounts owed in full:
The judge who heard the proceedings in contempt recited
the findings of fact made by the judge who granted the
order allowing alimony, and added two others, in words as
follows: “I further find that said defendant could have paid
at least a portion of said money, as provided in said order,
and that he has willfully and contemptuously failed to do
so. I further find that he is a healthy and able-bodied man
for his age, being now about fifty-nine years old.” So,
notwithstanding the finding of the fact that the defendant
was able to pay only a part of the amount ordered to be
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Opinion of the Court
paid, he was to be committed to the common jail until he
should comply with the order making the allowance in the
nature of alimony, that is, until he should pay the whole
amount. Clearly, the judgment can not be supported on
that finding of fact.
Green v. Green, 130 N.C. 578, 578-79, 41 S.E. 784, 785 (1902).
Although the Court in Green did not state this explicitly, it seems that the
defendant paid nothing toward his alimony obligation and that the trial court found
that he could have paid “at least a portion” of the amounts owed. Id., 41 S.E. at 785.
Indeed, this sort of vague finding that an obligor could have paid “more” could be
made in almost any case where the obligor has paid nothing at all, since most obligors
probably have the ability to pay $1.00 per month, for example. Presumably, the
defendant in Green had the ability to pay some significant amount but less than the
full amount. The problem with the trial court’s order in Green was that it went too
far with the remedy—despite a finding that the defendant had the ability to pay only
a portion of the sums owed, he was imprisoned “until he should pay the whole
amount.” Id. at 579, 41 S.E. at 785. In addition, we can also infer from this opinion
that the only source of the defendant’s funds was his labor and that he was “healthy
and able-bodied[,]” thus able to work to earn funds to pay the plaintiff, although he
could not work while in jail. Id. at 578-79, 41 S.E. at 785. He apparently did not have
investments or other sources of funds upon which to draw. See id., 41 S.E. at 785.
Based upon the trial court’s findings, the order showed that the defendant had the
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Opinion of the Court
ability to earn enough income to pay only part of his alimony before he went to jail;
while in jail, he would have no ability to pay anything although he was ordered to
pay in full. Id., 41 S.E. at 785. For these reasons, the Court found error. Id., 41 S.E.
at 785.
Green has been followed for over 100 years in both alimony cases and child
support cases. See, e.g., Brower v. Brower, 70 N.C. App. 131, 134, 318 S.E.2d 542, 544
(1984) (“Though the order appealed from requires defendant’s imprisonment for
continuing civil contempt until he pays $10,590, it is supported only by a finding that
he had the present ability to pay a portion of that sum. A similar order was struck
down by our Supreme Court in Green v. Green, 130 N.C. 578, 41 S.E. 784 (1902).
Since the same law still abides, the order in this case must also be vacated.”); Mauney
v. Mauney, 268 N.C. 254, 257-58, 150 S.E.2d 391, 394 (1966); Clark v. Gragg, 171
N.C. App. 120, 125-26, 614 S.E.2d 356, 360 (2005); Bishop v. Bishop, 90 N.C. App.
499, 502, 506, 369 S.E.2d 106, 108, 110 (1988). These cases are all very fact-specific.
Considering the facts before us, this case is very much like Green. The trial
court did not find that defendant had the ability to pay his obligations in full, but only
in part, yet still ordered him to (1) pay those obligations in full; and (2) pay an
additional $900.00 per month “over and above” those obligations.11 We are not
11 The trial court established the first purge condition: “[Defendant] shall immediately begin
paying at least $900.00 more per month to [plaintiff] over and above his total monthly obligations due
under the February 2013 Order[.]”
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Opinion of the Court
addressing a case in which a trial court has held an obligor in contempt despite a
finding that he does not have the ability to pay in full although he does have the
ability to pay more than he paid, and where the trial court has set purge conditions
which the obligor has the ability to pay but is less than payment in full. Here, the
trial court held defendant in contempt for failure to do something he did not have the
ability to do, based upon the trial court’s own findings, and then ordered him to pay
even more as part of his purge conditions. In addition, as discussed above, defendant
had paid a substantial portion of his obligations under the February 2013 Order.
Accordingly, we hold that the trial court erred in holding defendant in civil contempt
and thus vacate its Contempt Order.
C. Order on Purge Condition Noncompliance
Defendant next challenges the Order on Purge Condition Noncompliance,
because he did not have the ability to comply with the purge conditions set forth in
the Contempt Order and the purge conditions were impermissibly vague. Since the
Order on Purge Condition Noncompliance and the Contempt Order were entered on
the same date and are interrelated orders, we believe it is necessary to address the
issues raised by the Order on Purge Condition Noncompliance as well, despite the
fact that we are vacating the Contempt Order.
In the Contempt Order, the trial court established two purge conditions:
a. Defendant/Husband shall immediately begin paying
at least $900.00 more per month to Plaintiff/Wife over and
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Opinion of the Court
above his total monthly obligations due under the February
2013 Order, and
b. Defendant/Husband’s efforts in this regard must
include, at the very least, downwardly adjusting the
federal income taxes being withheld from his gross
monthly income.
(Emphasis added.) In the Order on Purge Condition Noncompliance, the trial court
concluded that defendant had failed to comply with both purge conditions.
In establishing purge conditions, the trial court must satisfy two requirements.
First, the trial court must make findings of fact as to defendant’s present ability to
comply with the purge conditions. In McMiller v. McMiller, this Court explained this
requirement:
In the instant case, the trial judge found as fact only
that defendant “has had the ability to pay as ordered.” This
finding justifies a conclusion of law that defendant’s
violation of the support order was willful[;] however,
standing alone, this finding of fact does not support the
conclusion of law that defendant has the present ability to
purge himself of the contempt by paying the arrearages.
To justify conditioning defendant’s release from jail
for civil contempt upon payment of a large lump sum of
arrearages, the district court must find as fact that
defendant has the present ability to pay those arrearages.
The majority of cases have held that to satisfy the “present
ability” test defendant must possess some amount of cash,
or asset readily converted to cash. For example, in
[Teachey, 46 N.C. App. 332, 264 S.E.2d 786], defendant
could pay $4825 in arrearages either by selling or
mortgaging mountain property in Virginia. Accord Jones
v. Jones, 62 N.C. App. 748, 303 S.E.2d 583 (1983)
(defendant could not pay $6540 in arrearages because land
he owned was already heavily mortgaged).
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Opinion of the Court
In the case at bar, there was no finding relating to
defendant’s ability to come up with $4320.50 in readily
available cash. The only finding by the trial court related
to defendant’s past ability to pay the child support
payments. No finding was made as to [the defendant’s]
present ability to pay the arrearages necessary to purge
himself from contempt.
McMiller v. McMiller, 77 N.C. App. 808, 809-10, 336 S.E.2d 134, 135-36 (1985)
(citations omitted).
Second, the trial court must clearly specify what defendant must do to purge
himself of contempt and exactly when he must do it. See N.C. Gen. Stat. § 5A-22(a)
(2013) (“The order of the court holding a person in civil contempt must specify how
the person may purge himself of the contempt.”). In Wellons v. White, this Court
explained this requirement:
Furthermore, a contempt order “must specify how the
person may purge himself of the contempt.” N.C. Gen.
Stat. § 5A-22(a) (2011); see also Cox, 133 N.C. App. at 226,
515 S.E.2d at 65 (holding that a contempt order must
“clearly specify what the defendant can and cannot do”);
[Scott v. Scott, 157 N.C. App. 382, 394, 579 S.E.2d 431, 439
(2003)] (holding that requirements to purge civil contempt
may not be “impermissibly vague”).
Wellons v. White, ___ N.C. App. ___, ___, 748 S.E.2d 709, 722 (2013). A trial court
may not hold a person in civil contempt indefinitely. Id. at ___, 748 S.E.2d at 722-23.
i. Ability to Comply with Purge Conditions
Regarding the first purge condition, the trial court found that defendant had
the ability to “free up” some funds to pay “more” and that he should thus pay $900.00
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Opinion of the Court
per month “over and above his total monthly obligations due under the February 2013
Order” for some indefinite period of time. There was some confusion in the record
regarding whether defendant was to pay $900.00 more than he had been paying (but
still less than the entire obligation) or whether he was to pay $900.00 more than the
obligations as set by the February 2013 Order. When rendering the Contempt Order
in December 2013, the trial court stated that he would order defendant to pay $900.00
more than he had been paying (which was less than the full obligation):
Now, I am ordering that [defendant] begin to pay at least—
I am not making a finding that this is the maximum
amount he can pay; I’m finding that I can determine from
this evidence that he has the ability to pay at least this much
more than he has been paying. [Plaintiff’s counsel], stop me
if you—if you think there’s another way to word this. I
guess the question is what he’s been paying if I’m going to
do it this way. But there is at least six hundred dollars plus
six hundred—plus three hundred; at least nine hundred
dollars more available for him to pay per month. And I
expect him to start paying that immediately, and I expect
that when he reports back either by his own presence or
through counsel to demonstrate what steps he has made to
free up that nine hundred dollars per month. At the very
least that would be an adjustment in his withholding.
(Emphasis added.)
But the Contempt Order entered on 27 May 2014 does not require defendant
to pay $900.00 more than he had been paying, as the trial court stated above, and we
are bound by the order as it was entered. See Oltmanns v. Oltmanns, ___ N.C. App.
___, ___, 773 S.E.2d 347, 351 (2015) (“[T]he written entry of judgment is the
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Opinion of the Court
controlling event for purposes of appellate review[.]”); In re Estate of Walker, 113 N.C.
App. 419, 420, 438 S.E.2d 426, 427 (1994) (“[The] announcement of judgment in open
court merely constitutes the rendition of judgment, not its entry. . . . Entry of
judgment by the trial court is the event which vests jurisdiction in this Court, and
the judgment is not complete for the purpose of appeal until its entry. Since entry of
judgment is jurisdictional, this Court has no authority to hear an appeal where there
has been no entry of judgment.”) (citation omitted). The Contempt Order instead
decrees that defendant “shall immediately begin paying at least $900.00 more per
month to [plaintiff] over and above his total monthly obligations due under the
February 2013 Order[.]” (Emphasis added.) This would be a total of $6,780.48 per
month—despite the trial court’s findings, as tabulated above, that show that
defendant did not have the ability to pay the full amounts owed under the February
2013 Order.
In addition, to enter an order that defendant pay $900.00 more than he had
been paying, the order would have to make a finding as to a particular set amount
that he had been paying.12 The findings of fact show that he paid different amounts
in different months, ranging from $3,604.56 to $9,303.26 during the relevant time
period. The order would be too indefinite to be enforceable if it required him to pay
$900.00 more than an unspecified number. See Morrow v. Morrow, 94 N.C. App. 187,
12 The trial court noted the need to determine this number during rendition of the ruling: “I
guess the question is what he’s been paying if I’m going to do it this way.”
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Opinion of the Court
189, 379 S.E.2d 705, 706 (1989) (“A judgment must be complete and certain,
indicating with reasonable clearness the decision of the court, so that such judgment
may be enforced. If the parties are unable to ascertain the extent of their rights and
obligations, a judgment may be rendered void for uncertainty.”) (citation omitted),
cert. denied, 326 N.C. 365, 389 S.E.2d 816 (1990). But the Contempt Order as entered
does specify a number, which is the total obligation due under the February 2013
Order, plus $900.00 per month “over and above” that amount. Based upon the trial
court’s findings of fact and conclusions of law, defendant did not have the ability to
pay the entire monthly obligation owed under the February 2013 Order, much less
$900.00 in addition to that amount.
ii. Impermissibly Vague Purge Conditions
The Contempt Order also fails to set a date upon which the monthly payment
of $900.00 “over and above” the February 2013 Order’s obligations would end.
Plaintiff argues that the absence of an ending date for the monthly payment of
$900.00 “over and above” the February 2013 Order’s obligations indicates that this
additional payment is simply a monthly payment towards the arrears of $12,770.80,
which would end on a definite date when the arrears were paid in full. Plaintiff
contends that the $900.00 monthly payments would satisfy the first purge condition
in “just over 14 months” since “$12,770.80 delinquency ÷ $900.00 additional payment
= 14.189 months).” This is a reasonable argument, but it might be more convincing
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Opinion of the Court
if the amount paid each month would divide evenly by a number of months. By
plaintiff’s logic, the order implies that defendant must pay $900.00 for fourteen
months and 18.98 percent of that amount in the fifteenth month, or $170.80. Even if
this was the trial court’s intent, the order is impermissibly vague as written. See id.,
379 S.E.2d at 706. Accordingly, we hold that the trial court erred in failing to
establish a definite date by which defendant could have purged himself of the
contempt. See Wellons, ___ N.C. App. at ___, 748 S.E.2d at 722 (“We will not allow
the district court to hold [the defendant] indefinitely in contempt.”). We also note
that in the Order on Purge Condition Noncompliance, the trial court repeated this
error when it ordered that defendant’s “civil contempt shall continue unless he makes
payments consistent with the February 2013 Order and the purge conditions set by
this Court.”
Regarding the second purge condition, the trial court found that defendant
could “free up” $600.00 per month by “downwardly adjusting the amount of federal
income taxes being withheld from his gross monthly income.” The trial court’s second
purge condition was: “[Defendant’s] efforts in this regard must include, at the very
least, downwardly adjusting the federal income taxes being withheld from his gross
monthly income.” In the Order on Purge Condition Noncompliance, the trial court
found that defendant had in fact “downwardly adjusted the federal income taxes
being withheld from his gross monthly income.” Nevertheless, the trial court found
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Opinion of the Court
that defendant had failed to satisfy the second purge condition because he “did not
consult any tax professional to ascertain whether he downwardly adjusted such
income tax withholdings to the greatest extent possible.” (Emphasis added.)
The second purge condition to “at the very least, downwardly adjust[] the
federal income taxes being withheld from his gross monthly income” would seem to
be sufficiently definite as written, but the Order on Purge Condition Noncompliance
goes beyond the condition as stated and adds additional requirements. The Contempt
Order, both as rendered in open court and as written and entered, did not direct
defendant to consult a tax professional or to lower his withholdings “to the greatest
extent possible.” Theoretically, “to the greatest extent possible” could mean that
defendant would claim exemptions to eliminate all federal tax withholdings, but then
he would likely owe taxes and penalties for underpayment upon filing his income tax
returns. Because defendant “downwardly adjust[ed] the federal income taxes being
withheld from his gross monthly income[,]” in accordance with the Contempt Order’s
second purge condition, the trial court’s finding of fact on this issue does not support
its conclusion of law that defendant had failed to satisfy the second purge condition.
Accordingly, we vacate the Order on Purge Condition Noncompliance.
D. Premature Compliance Hearing
Although we are vacating the Contempt Order and the Order on Purge
Condition Noncompliance as discussed above, we also address defendant’s argument
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Opinion of the Court
that the trial court erred in conducting a compliance hearing on 22 January 2014,
four months before the entry of the Contempt Order for which compliance was being
determined. Both the Contempt Order and the Order on Purge Condition
Noncompliance were entered on 27 May 2014, despite the fact that the hearing
regarding contempt occurred on 2 December 2013 and the hearing regarding
noncompliance with purge conditions occurred on 22 January 2014. In other words,
the order setting forth defendant’s purge conditions and obligations was not in
writing and entered until nearly six months after he was to begin complying with it.
Defendant’s counsel specifically objected to the hearing on compliance for this reason,
as noted by the trial court’s Finding of Fact 4: “Defendant/Husband’s counsel objected
to this Court conducting the compliance hearing on January 22, 2014, given that an
Order had not yet been entered as a result of the December 2, 2013 contempt hearing.
This Court overruled such objection.” We conclude that defendant’s objection to
holding the compliance hearing prior to entry of the Contempt Order was correct.
Our courts have stated this rule many times, but perhaps it bears repeating:
An order is entered “when it is reduced to writing, signed by the judge, and filed with
the clerk of court.” N.C. Gen. Stat. § 1A-1, Rule 58 (2013); see also Watson v. Price,
211 N.C. App. 369, 370, 712 S.E.2d 154, 155, disc. review denied, 365 N.C. 356, 718
S.E.2d 398 (2011). N.C. Gen. Stat. § 5A-23(e) specifically requires entry of a written
order for civil contempt. N.C. Gen. Stat. § 5A-23(e) (2013) (“At the conclusion of the
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Opinion of the Court
hearing, the judicial official must enter a finding for or against the alleged contemnor
on each of the elements set out in G.S. 5A-21(a). 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.”)
An order cannot be modified or enforced or appealed before it is entered. See Carland
v. Branch, 164 N.C. App. 403, 405, 595 S.E.2d 742, 744 (2004) (“Since there was no
order ‘entered’ when defendant filed her motion to modify, there was nothing to
modify.”); Watson, 211 N.C. App. at 371, 712 S.E.2d at 155 (“[A] judgment that has
merely been rendered, but which has not been entered, is not enforceable until
entry.”); Estate of Walker, 113 N.C. App. at 420, 438 S.E.2d at 427 (“Since entry of
judgment is jurisdictional, this Court has no authority to hear an appeal where there
has been no entry of judgment.”). The announcement of an order in court merely
constitutes rendition of the order, not its entry. Estate of Walker, 113 N.C. App. at
420, 438 S.E.2d at 427. The final order as written, signed, and filed—the order as
entered—is the controlling order, not the rendition. See Oltmanns, ___ N.C. App. at
___, 773 S.E.2d at 351 (“[T]he written entry of judgment is the controlling event for
purposes of appellate review[.]”).
We fully understand the challenges faced by trial courts and counsel in getting
written orders prepared, signed, and entered quickly, but particularly in the context
of civil contempt, where the statute requires a written order and a person may be
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Opinion of the Court
imprisoned for failure to comply, it is imperative that an order be entered before an
obligor is held in contempt of that order. See N.C. Gen. Stat. § 5A-23(e). This is
especially important in a case like this, since defendant’s purge conditions as
announced at the 2 December 2013 hearing were not at all clear or definite, as
highlighted by the quote from the trial court at the beginning of our discussion of the
Contempt Order. In fact, the trial court directed counsel:
So you all figure that out, and if they put some idea
to you about what steps he can take to free up money from
that beachfront property, he’d best come in with his
explanation about why he couldn’t do it or shouldn’t do it.
Make sense? This will be a slightly unusual contempt
order, but in honor of a non-family law attorney joining us
today, I guess we’ll see what happens.
Accordingly, should the trial court enter a contempt order on remand, it should sign
and file a written order establishing clear, specific purge conditions and addressing
defendant’s ability to comply with those purge conditions.13
IV. Conclusion
For the foregoing reasons, we vacate the Contempt Order and the Order on
Purge Condition Noncompliance and remand the case to the trial court for further
proceedings consistent with this opinion.
VACATED AND REMANDED.
13 Because we are vacating the Contempt Order and the Order on Purge Condition
Noncompliance and remanding this case, we do not address the issue of whether the trial court erred
in awarding plaintiff attorneys’ fees arising from her contempt motions, but any ruling upon attorneys’
fees contained in those orders is also vacated since it is contained in the vacated orders.
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SPEARS V. SPEARS
Opinion of the Court
Judges McCULLOUGH and INMAN concur.
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