Cnty. of Forsyth v. Canterbury ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-45
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
COUNTY OF FORSYTH by and through the
FORSYTH COUNTY DEPARTMENT OF SOCIAL
SERVICES on behalf of CHILD SUPPORT
RECIPIENT,
Plaintiff
Forsyth County
v.
Nos. 11 CVD 3167-68
RICKY CANTERBURY,
Defendant
Appeal by defendant from order entered 22 October 2013 by
Judge David Sipprell in Forsyth County District Court. Heard in
the Court of Appeals 22 May 2014.
Forsyth County District Attorney James R. O’Neill, by
Assistant District Attorney Theodore Kazakos, for
Plaintiff-Appellee (no brief).
Mary McCullers Reece for Defendant-Appellant.
ERVIN, Judge.
Defendant Ricky Canterbury appeals from an order finding
him in civil contempt on the basis of his failure to comply with
previous child support orders and ordering that Defendant be
imprisoned in the Forsyth County Jail pending the making of a
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$467.00 purge payment. On appeal, Defendant contends that the
orders requiring him to appear and show cause why he should not
be held in contempt did not provide him with sufficient notice
of the manner in which he was alleged to have violated the
existing child support orders and that the trial court failed to
make sufficient findings supported by competent evidence
relating to the issue of whether Defendant had the ability to
pay the required child support. After careful consideration of
Defendant’s challenge to the trial court’s order in light of the
record and the applicable law, we conclude that the trial
court’s order should be reversed.
I. Factual Background
A. West Virginia Order
On 13 August 1982, the Circuit Court of Logan County, West
Virginia, issued a decree granting Donna Williams a divorce from
Defendant, awarding custody of the couple’s five year old
daughter to Ms. Williams, and requiring Defendant to pay $300.00
per month in child support. On 14 July 2010, the West Virginia
child support order was registered in Davidson County. On 7
September 2010, Judge Wayne L. Michael entered an order
confirming the registration of the West Virginia order and
requiring Defendant to pay a current support amount of $300.00
per month and an arrearage of $68,394.13.
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On 17 September 2010, the Davidson County Child Support
Enforcement Office filed a motion seeking the issuance of an
order requiring Defendant to show cause why he should not be
held in contempt for failing to pay required child support. On
the same date, the Clerk of Superior Court of Davidson County
entered an order requiring Defendant to appear and show cause
why he should not be held in contempt for failing to make
required child support payments. On 3 November 2010, the
Davidson County Child Support Enforcement Office filed a motion
seeking the entry of an order requiring Defendant to appear and
show cause why he should not be held in contempt for failing to
pay required child support. On the same date, the Clerk of
Superior Court of Davidson County entered an order requiring
Defendant to appear and show cause why he should not be held in
contempt for failing to make required child support payments.
On 7 January 2011, Judge Mary Covington entered an order finding
Defendant in civil contempt for failing to make required child
support payments and ordering Defendant to comply with the
previous child support orders and be subject to wage
withholding. On 22 April 2011, Judge Rodwell Penry entered an
order changing the venue for the case relating to Defendant’s
obligations under the West Virginia order from Davidson County
to Forsyth County.
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B. Ohio Order
On 9 April 2008, Deborah Trickel obtained a judgment in the
Cuyahoga County Court of Common Pleas in Ohio in which Defendant
was ordered to pay $164.37 per month in support for the parties’
minor child. On 14 July 2010, the Ohio order was registered in
Davidson County. On 7 September 2010, Judge Michael entered an
order confirming the registration of the Ohio order and ordering
Defendant to pay a current support amount of $167.66 and an
arrearage of $10,421.08.
On 17 September 2010, the Davidson County Child Support
Enforcement Office filed a motion seeking the issuance of an
order requiring Defendant to show cause why he should not be
held in contempt for failing to make required child support
payments. On the same date, the Clerk of Superior Court of
Davidson County entered an order requiring Defendant to appear
and show cause why he should not be held in contempt for failing
to make required child support payments. On 3 November 2010,
the Davidson County Office of Child Support Enforcement filed a
motion seeking the entry of an order requiring Defendant to show
cause why he should not be held in contempt for failing to pay
required child support. On the same date, the Clerk of Superior
Court of Davidson County entered an order requiring Defendant to
appear and show cause why he should not be held in contempt for
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failing to make required child support payments. On 7 January
2011, Judge Covington entered an order finding Defendant in
civil contempt for failing to make required child support
payments and ordering that Defendant comply with previous child
support orders and be subject to wage withholding. On 22 April
2011, Judge Penry entered an order changing the venue for the
case relating to the enforcement of the Ohio support order from
Davidson County to Forsyth County.
C. Consolidated Enforcement Proceeding
On 5 March 2013, the office of the District Attorney filed
motions on behalf of the Forsyth County Child Support
Enforcement Office seeking the entry of an order in the cases
relating to the West Virginia and Ohio orders requiring
Defendant to show cause why he should not be held in contempt
for failing to make required child support payments. On 16 July
2013, the Clerk of Superior Court of Forsyth County entered
orders requiring Defendant to appear and show cause why he
should not be held in contempt for failing to pay required child
support. The show cause order relating to the support that
Defendant owed under the West Virginia order asserted that
Defendant owed an arrearage of $65,747.42 and that $900.00 was
owed under the “last order,” while the show cause order relating
to the support that Defendant owed under the Ohio order asserted
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that Defendant owed an arrearage of $8,947.77 and that $2,171.00
was owed under the “last order,” with both of these amounts
calculated as of 1 July 2013. In addition, both motions
asserted that:
The undersigned finds that there is probable
cause to believe that you are in contempt
for failure to comply with the order(s) of
this Court and/or you have failed to comply
with other provisions of the order indicated
below. Your account is now in arrears in
the amount indicated below. Additional
payments may be due prior to the hearing
date.
On 1 October 2013, the cases in which Defendant had been
required to show cause why he should not be held in contempt for
failing to make child support payments required under the West
Virginia and Ohio orders came on for hearing before the trial
court. At the beginning of the hearing, Defendant made an
unsuccessful motion to dismiss the show cause orders on the
ground that they failed to “state a time period for which the
Defendant was non-compliant.” On 22 October 2013, the trial
court entered a consolidated order finding Defendant in wilful
contempt for failing to make the child support payments required
under the West Virginia and Ohio orders and committing Defendant
to the custody of the Sheriff of Forsyth County pending the
making of a $467.00 purge payment. Defendant noted an appeal to
this Court from the trial court’s order.
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II. Legal Analysis
In his second challenge to the trial court’s order,
Defendant contends that the trial court erred by finding him in
contempt on the grounds that the trial court failed to make
required findings of fact and that, had the trial court made the
required findings, those findings would have lacked adequate
evidentiary support. More specifically, Defendant argues that
the trial court failed to find that Defendant had the present
ability to comply with the West Virginia and Ohio support orders
and that the record is devoid of any evidence tending to show
that he had either the present ability to comply with the
provisions of the prior support orders or to take meaningful
steps to come into compliance with those orders. Defendant’s
contention has merit.
“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.” Sharpe v. Nobles, 127 N.C. App. 705, 709,
493 S.E.2d 288, 291 (1997) (citing Koufman v. Koufman, 97 N.C.
App. 227, 230, 388 S.E.2d 207, 209 (1990), rev’d on other
grounds, 330 N.C. 93, 408 S.E.2d 729 (1991)).
Failure to comply with an order of a court
is a continuing civil contempt as long as:
(1) The order remains in force;
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(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). In other words, a necessary
prerequisite for the entry of an order finding a litigant in
civil contempt is the making of findings and the existence of
evidence that the defendant has “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). In light of
this principle, “a trial court’s findings that a defendant was
healthy and able-bodied, had been and was presently employed,
had not been in ill-health or incapacitated, and had the ability
to earn good wages, without finding that defendant presently had
the means to comply, do not support confinement in jail for
contempt.” Hodges v. Hodges, 64 N.C. App. 550, 553, 307 S.E.2d
575, 577 (1983) (citing Mauney v. Mauney, 268 N.C. 554, 257-58,
150 S.E.2d 391, 394 (1968)).
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A careful examination of the trial court’s order provides
no indication that the trial court ever found that Defendant had
the present means to comply with the relevant child support
orders. In its order, the trial court found that “Defendant has
the means and ability to comply with the prior orders in that
during the period of non-compliance the Defendant was
sporadically employed and even though employed the Defendant
made no payments toward his child support arrears obligation.”
In focusing upon some not clearly specified period in the past,
the trial court failed to address the extent to which Defendant
currently had the ability to comply with his obligations under
the applicable support orders. Moreover, although the record
does contain some evidence tending to show that Defendant had
been sporadically employed in the relatively recent past, the
record is totally devoid of any information concerning the
amount that Defendant had earned or the extent of his other
financial obligations. As a result, the trial court did not
find, and the record does not contain any evidence tending to
show, that Defendant “has the present ability to comply” with
the relevant support orders.
Although the trial court did find that Defendant had “the
ability to take reasonable measures in order to comply with the
previous orders of the Court,” this finding lacks adequate
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evidentiary support. According to an unsworn statement by
Defendant’s attorney, Defendant was “currently not working.” In
addition, Defendant’s caseworker stated Defendant “was working
some last quarter and no payments were made when he was
working.” Simply put, the record before us in this case
provides no basis for a determination that Defendant had the
ability to either comply with the existing support orders or to
take reasonable steps to come into compliance with those orders.
As a result, given the absence of any evidentiary support for a
determination that “[t]he 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)(3), the trial court lacked the
authority to hold Defendant in civil contempt.1
III. Conclusion
Thus, for the reasons set forth above, we conclude that the
record did not support a determination that Defendant had the
present ability to comply with or to take meaningful steps to
come into compliance with the West Virginia and Ohio support
orders. As a result, the trial court’s order should be, and
hereby is, reversed.
1
In light of our determination that the record did not
support the trial court’s contempt decision, we need not address
Defendant’s challenge to the sufficiency of the notice that he
received in advance of the contempt hearing.
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REVERSED.
Judges ROBERT N. HUNTER, Jr., and DAVIS concur.
Report per Rule 30(e).