...
...
20. Mr. Rodden devoted 46.25 hours to
representing the plaintiff on the contempt and
modification proceeding. This amount of time
is reasonable and the activities of Mr. Rodden
were reasonably required for representation of
the plaintiff in this matter.
21. The reasonable value of legal services
rendered by plaintiff's counsel to plaintiff
in this matter is $4,625.00. Associated costs
total $59.06.
Based on these findings, the trial court concluded that the
“defendant failed to show by the greater weight of the evidence
that there has been a change in circumstances related to the
factors that the court must consider in setting or modifying
alimony.” The trial court further concluded that defendant is
“sufficiently able to comply with the temporary alimony order, but
he has wilfully, deliberately, and without justification failed to
comply with the order, and is [in] contempt of this court.” Based on its findings and conclusions, the trial co
urt ordered
that defendant be held in contempt until he paid certain sums of
money, including plaintiff's attorney fees.
Defendant sets forth two assignments of error: (1) that the
trial court erred in determining that defendant was sufficiently
able to comply with the temporary alimony order but willfully,
deliberately, and without justification failed to comply with the
order; and (2) that the trial court erred in awarding plaintiff
attorney fees.
[1]“Civil contempt proceedings are initiated by a party
interested in enforcing the order by filing a motion in the cause.”
Plott v. Plott, 74 N.C. App. 82, 85, 327 S.E.2d 273, 275 (1985).
“The motion must be based on a sworn statement or affidavit from
which the court determines there is probable cause to believe there
is civil contempt.”
Id.;
see N.C. Gen. Stat. § 5A-23(a)(Cum. Supp.
1998). The burden then moves to the opposing party to show cause
why he should not be found in contempt of court.
Id. The party
alleged to be delinquent has the burden of proving either that he
lacked the means to pay or that his failure to pay was not willful.
Plott, 74 N.C. App. at 85-86, 327 S.E.2d at 275;
see Hartsell v.
Hartsell, 99 N.C. App. 380, 387, 393 S.E.2d 570, 575 (1990),
affirmed, 328 N.C. 729, 403 S.E.2d 307 (1991)(holding that “[i]n
civil contempt the defendant has the burden of presenting evidence
to show that he was not in contempt and the defendant refuses to
present such evidence at his own peril”) and
Belcher v. Averette,
136 N.C. App. ___, 526 S.E.2d 663 (2000)(holding that the defendantwas properly held in contempt since he failed to carry his burden
of proving that he was unable to pay or that he did not act
willfully in failing to pay the child support arrearages);
see also
McBride v. McBride, 334 N.C. 124, 431 S.E.2d 14 (1993)(holding that
“absent the appointment of counsel, indigent civil contemnors may
not be incarcerated for failure to pay child support arrearages”
since indigent defendants are often unaware they “could avoid
imprisonment if they showed that they were unable to pay” and “many
such defendants would not know how to prove their inability to
pay”).
Defendant cites this Court's decision in
Goodson v. Goodson,
32 N.C. App. 76, 231 S.E.2d 178 (1977), for the proposition that
courts are required to make “particular findings” of ability to pay
in order to find the failure to pay was willful. This Court,
however, in
Plott v. Plott, 74 N.C. App. 82, 327 S.E.2d 273 (1985),
held that although explicit findings are preferable, they are not
absolutely essential where the findings otherwise indicate that a
contempt order is warranted. An order is sufficient if it is
implicit in the court's findings that the delinquent obligor both
possessed the means to comply and willfully refused to do so.
Id.
When reviewing a trial court's contempt order, the appellate
court is limited to determining whether there is competent evidence
to support the trial court's findings and whether the findings
support the conclusions.
Adkins v. Adkins, 82 N.C. App. 289, 346
S.E.2d 220 (1986). Here, defendant is the sole stockholder of
Shumaker Body Repair, Inc., which is the same business defendantowned as a sole proprietor prior to the entry of the temporary
alimony order. Based on defendant's financial information for
years 1993-1998, the trial court found that defendant has the same
income or earning capacity as when the alimony
pendente lite order
was entered. The trial court also noted that during the hearing,
defendant was vague as to his efforts to supplement his income with
business from other than his regular customers and determined that
although defendant may not have intentionally depressed his income,
“he is indifferent to fluctuations in the income of his truck
painting business, if in fact, such fluctuations [exist].”
In
Frank v. Glanville, 45 N.C. App. 313, 262 S.E.2d 677
(1980), this Court held that a person may be guilty of civil
contempt, even if he does not have the money to make court ordered
payments, if he could take a job which would enable him to make
those payments and he fails to do so. In the case at bar, the
trial court found that although defendant is a certified mechanic,
he has made no effort to supplement his income with mechanic work.
The trial court emphasized that defendant had the “ability to
obtain large sums of cash, supposedly from his girlfriend” but was
unable to “accurately recall the details of these 'loans' or
provide any documentation of them.” Defendant also testified that
he “couldn't keep up with” the large sums of money he had paid to
the IRS, which included a $11,000.00 payment in February 1998.
Based on these findings, the trial court concluded that defendant's
assertions that his income and earning capacity have decreased were
not credible. Thus, it is implicit in the court's findings thatdefendant both possessed the means to comply and willfully refused
to do so.
The trial court further noted in its findings that defendant
did not provide any information as to his personal checking account
although the documents were subpoenaed and that he failed to
furnish an affidavit of financial standing. While defendant's
accountant furnished financial statements he had prepared for
defendant's business, defendant failed to provide any detailed
information for the time period prior to August 1997, and the
accountant admitted that some of defendant's financial statements
were erroneous. Therefore, defendant failed to meet his burden of
proof of establishing that he lacked the means to pay or that his
failure to pay was not willful.
The case of
Lamm v. Lamm, 229 N.C. 248, 49 S.E.2d 403 (1948),
cited by the dissent, did not address the issue of who has the
burden of proof in a civil contempt proceeding. In
Lamm, the
plaintiff offered evidence that the defendant had failed to comply
with the court's order.
Id. at 249, 49 S.E.2d at 404. The
defendant then came forward with evidence that he was out of the
county and the State when the original order was entered on 7
February 1948 and did not have notice of the order until he was
served with a show cause order on 30 April 1948.
Id. Defendant
also presented evidence that he was working for the State Highway
Commission at the present time but that he had only worked for them
for two weeks, having received only $25.00 from said employment.
Id. Additionally, defendant testified that he does not own anyproperty nor have any money with which to comply with the order.
Id. Based on the evidence presented by the defendant, our Supreme
Court found that the trial court erred in finding that the
defendant willfully disobeyed the court order.
Id. at 250, 49
S.E.2d at 404.
[2]Defendant next contends that the trial court erred in
awarding plaintiff attorney fees, since it was required to consider
defendant's estate and ability to defray legal costs under
Perkins
v. Perkins, 85 N.C. App. 660, 355 S.E.2d 848,
cert. denied, 320
N.C. 633, 360 S.E.2d 92 (1987), and failed to do so. In
Perkins,
this Court stated:
A trial court is authorized to award
attorney's fees to a party who has shown that
she is entitled to the relief demanded, is a
dependent spouse, and lacks sufficient means
upon which to live during the prosecution of
the suit and to defray her necessary legal
expenses. Once fees are authorized, a trial
court must consider several factors in
determining the amount of the award, including
but not limited to: each party's estate and
ability to defray legal costs; the nature and
scope of the legal services rendered the
dependent spouse; and the skill, time, and
labor expended during such representation.
Id. at 668, 355 S.E.2d at 853. However, the amount of an award of
attorney's fees rests within the sound discretion of the trial
court and is reviewable on appeal only for abuse of discretion.
Stickel v. Stickel, 58 N.C. App. 645, 294 S.E.2d 321 (1982).
Here, the trial court found that plaintiff had an interest in
enforcing the temporary alimony order, acted in good faith in
pursuing her motion for contempt and defending the defendant's
modification request, and had inadequate funds to defray theexpense of the suit. The trial court also found that plaintiff's
attorney devoted 46.25 hours to representing plaintiff in this
matter and that this amount of time was reasonable. Further, the
reasonable value of plaintiff's attorney's legal services in this
matter was $4,625.00, and the associated costs totaled $59.06.
Although the record before this Court does not contain explicit
findings as to the value of defendant's estate, in
Plott, 74 N.C.
App. 82, 327 S.E.2d 273 (1985), this Court found that such findings
were not required in an order awarding attorney's fees where there
was no conflicting evidence and the facts were obvious. Since the
trial court's findings here indicate that it considered defendant's
financial situation and the reasonableness of the attorney's fees,
we cannot find that the trial court abused its discretion in
awarding attorney's fees to plaintiff.
Affirmed.
Judge TIMMONS-GOODSON concurs.
Judge GREENE dissents in part with separate opinion.
========================
GREENE, Judge, dissenting in part.
I disagree with the majority that the party alleged to be
delinquent in an action for civil contempt has the
burden of
proving his failure to make payments in compliance with a court
order was not willful. I, therefore, respectfully dissent on this
issue.
Civil or Criminal Contempt
Because of differences in "'procedure, punishment, and right
of review'" in actions for civil and criminal contempt, this Courtmust first determine when reviewing a contempt order whether the
order evidences an adjudication of civil or criminal contempt.
Bishop v. Bishop, 90 N.C. App. 499, 503, 369 S.E.2d 106, 108 (1988)
(quoting
O'Briant v. O'Briant, 313 N.C. 432, 434, 329 S.E.2d 370,
372 (1985)). In this case, plaintiff's motion for contempt and the
trial court's contempt order do not state whether plaintiff's
contempt action is criminal or civil. I, however, agree with the
majority that the order is for civil contempt. This is because the
order allows the defendant to purge himself of contempt and be
released from custody by paying funds into the court, and any funds
paid into the court will be disbursed to plaintiff's attorney
rather than to the court.
(See footnote 1)
See Bishop, 90 N.C. App. at 505, 369
S.E.2d at 109 (order for contempt is civil if the contemnor may
"avoid or terminate his imprisonment by performing some act
required by the court" and any funds paid by contemnor are
disbursed to the movant rather than the court).
Burden of Proof in Civil Contempt
In
McBride v. McBride, the North Carolina Supreme Court stated
civil contempt proceedings are criminal in nature because a civil
contempt hearing may "result in the incarceration of a[] . . .
[contemnor] who is without the means to procure his release and
who, absent those means, may be incarcerated for an indeterminate
period of time."
McBride v. McBride, 334 N.C. 124, 130, 431 S.E.2d
14, 19 (1993). The
McBride court stated that when contemnor "is
jailed pursuant to a civil contempt order which calls upon him to
do that which he cannot do[,] . . . the deprivation of his physical
liberty is no less than that of a criminal defendant who is
incarcerated upon conviction of a criminal offense."
Id. at 131,
431 S.E.2d at 19. It follows a contemnor who is incarcerated based
on a civil contempt order is entitled to protections afforded
alleged contemnors in actions for criminal contempt. When a show
cause order has been issued in an action for criminal contempt, the
burden of proof is on the party initiating the contempt action to
prove the alleged contemnor is in contempt.
See N.C.G.S. § 5A-
15(e), (f) (1999). I, therefore, would hold the party initiating
an action for civil contempt has the
burden of proving the elements
of civil contempt, including that the alleged contemnor's
noncompliance with the court order was willful.
Even if a civil contempt proceeding is not to be treated like
a criminal contempt proceeding, I do not read the case law in this
State to place the
burden of proof on the alleged contemnor in a
civil contempt proceeding. The trial court is required, prior to
the entry of an order of civil contempt, to "find as a fact thatthe [alleged contemnor] presently possesses the means to comply
[with the underlying order]."
Henderson v. Henderson, 307 N.C.
401, 408, 298 S.E.2d 345, 350 (1983);
Lamm v. Lamm, 229 N.C. 248,
250, 49 S.E.2d 403, 404 (1948) (contempt order set aside because
"no testimony was presented . . . to establish as an affirmative
fact that [the alleged contemnor] possessed the means . . . to
comply with the order"). That finding must be supported by
evidence in the record.
Henderson, 307 N.C. at 409, 298 S.E.2d at
351. If the finding is not made or if made and there is no
evidence to support the finding, the order of contempt "must be set
aside."
Id. It, thus, follows there exists an affirmative duty on
some party to present evidence the alleged contemnor has the
present ability to comply with the underlying order and that duty
necessarily rests with the movant.
(See footnote 2)
I acknowledge there are several cases, relied on by the
majority, stating the alleged contemnor has the
burden of proof ina civil contempt proceeding. Those cases, however, are
inconsistent with the unequivocal teachings of
Henderson and thus
are not controlling.
(See footnote 3)
See State v. Adams, 132 N.C. App. 819, 821,
513 S.E.2d 588, 589 (court of appeals must follow decisions of
supreme court),
disc. review denied, 350 N.C. 836, --- S.E.2d ---,
cert. denied, --- U.S. ---, 145 L. Ed. 2d 414 (1999). In any
event, I believe those cases simply place the
burden of production
on the alleged contemnor in a civil contempt proceeding, not the
burden of proof.
See Hartsell v. Hartsell, 99 N.C. App. 380, 387,
393 S.E.2d 570, 575 ("In civil contempt the [alleged contemnor] has
the burden of presenting evidence to show that he was not in
contempt and [he] refuses to present such evidence at his own
peril."),
appeal dismissed and disc. review denied, 327 N.C. 482,
397 S.E.2d 218 (1990),
aff'd per curiam, 328 N.C. 729, 403 S.E.2d
307 (1991).
In this case, the trial court consolidated for hearing
defendant's motion to modify temporary alimony and plaintiff's
motion for contempt. The trial court's order combines its findings
of fact and conclusions of law for both motions, and it is
impossible to determine from the trial court's order on which party
it placed the burden of proof for plaintiff's motion for contempt.
I, therefore, would remand this case to the trial court for a newhearing on plaintiff's motion for contempt, with the burden of
proof on the movant plaintiff.
Footnote: 1