Appeal by plaintiff and defendant from an order entered 19
December 2000 by Judge J. David Abernethy in Catawba County
District Court. Heard in the Court of Appeals 20 May 2002.
Starnes and Killian, PLLC, by Wesley E. Starnes, for
plaintiff.
Crowe & Davis, P.A., by H. Kent Crowe, for defendant.
TYSON, Judge.
Robert E. Wolf (“plaintiff”) appeals from an order that (1)
denied his motion to modify post-separation and child support
orders and (2) held him in contempt. Lorene L. Wolf (“defendant”)
also appeals from that order that denied in part and allowed in
part her motion for contempt and attorney's fees. We affirm the
order of the trial court.
I. Facts
Plaintiff and defendant married on 14 December 1985. Three
children were born of the marriage. Plaintiff and defendant
separated on 30 March 1997. Plaintiff was employed by Shurtape
Technologies (“Shurtape”) earning approximately $6,127.00 per
month.
Plaintiff filed a complaint that requested permanent custodyof the minor children, child support, and equitable distribution of
the marital estate on 23 May 1997. Defendant answered and
counterclaimed for divorce from bed and board, sole custody of the
minor children, child support payments, alimony, post-separation
support, possession of the marital property, equitable
distribution, and attorney's fees in the alimony and child support
actions on 22 September 1997.
After a hearing on 4 March 1998, the trial court entered two
orders on 7 December 1998,
nunc pro tunc 3 April 1998, granting
defendant (1) primary care and custody of the minor children, (2)
post-separation support in the amount of $609.00 per month, (3)
fifteen percent (15%) of the gross amount of any bonus received by
plaintiff in the future as additional post-separation support, (4)
child support in the amount of $1,129.00 per month, (5) twenty
percent (20%) of the gross amount of any bonus received by
plaintiff in the future as additional child support, and (4)
attorney's fees in the child support action.
Plaintiff was laid off by Shurtape when his department was
eliminated in January 1999. On 4 March 1999, plaintiff was hired
with Tesa Tape, Inc. (“Tesa”). Plaintiff received a hiring bonus
in the amount of $5,069.24. Plaintiff contends that the additional
money received at hiring was not a “hiring bonus” but “relocation
expenses.” Plaintiff earned approximately the same salary with
Tesa as he had with Shurtape. Plaintiff's employment with Tesa was
terminated on 28 September 1999. Plaintiff had paid his child and
post separation support payments in the amount of $1,129.00 permonth and $609.00 per month respectively until he was terminated.
Plaintiff did not pay fifteen percent and twenty percent of his
hiring bonus in child or post-separation support.
Plaintiff filed a verified motion to “Modify/Reduce/Eliminate
Post-Separation Support” on 17 November 1999. The next day
Plaintiff filed a motion to “Modify/Reduce Child Support.” On 7
April 2000, defendant filed a “Motion For Contempt” for nonpayment
of child support, post-separation support, and reimbursement of
medical expenses and an “Order to Show Cause” setting the contempt
motion for hearing on 19 April 2002.
Plaintiff's and defendant's motions were heard on 31 May 2000
and 26 June 2000. The trial court issued an Order on 19 December
2000 that (1) denied plaintiff's motions to modify the child
support order and the post-separation order, and (2) granted in
part and denied in part defendant's motion for contempt. Both
plaintiff and defendant appeal.
II. Issues
Plaintiff assigns as error the trial court's (1) failure to
reduce, modify or eliminate plaintiff's child support and post-
separation support payments and (2) holding plaintiff in contempt
for his failure to pay defendant twenty percent and fifteen percent
of the gross amount of his “relocation expense” of $5,769.24.
Defendant assigns as error the trial court's denying, in part, her
motion for contempt.
III. Plaintiff's Assignments
A. Motion To Reduce Support Payments
Plaintiff contends that the trial court erred by failing to
modify his child and post-separation support obligations.
Plaintiff argues that no evidence supports a finding or conclusion
that plaintiff was voluntarily unemployed. We disagree.
Plaintiff sought to reduce his child support obligation
pursuant to G.S. § 50-13.7 and his post-separation support
obligation pursuant to G.S. § 50-16.9. Both statutes require
plaintiff to show that there has been “changed circumstances” since
the entry of the order. N.C. Gen. Stat. § 50-13.7 (2002); N.C.
Gen. Stat. § 50-16.9 (2002).
A change in circumstances must be shown by the party moving
for the modification in order to modify an order for support or
alimony.
Rock v. Rock, 260 N.C. 223, 132 S.E.2d 342 (1963). The
fact that a husband's salary or income has been reduced
substantially does not automatically entitle him to a reduction.
Medlin v. Medlin, 64 N.C. App. 600, 307 S.E.2d 591 (1983).
The trial court may refuse to modify support and/or alimony on
the basis of an individual's earning capacity instead of his actual
income when the evidence presented to the trial court shows that a
husband has disregarded his marital and parental obligations by:
(1) failing to exercise his reasonable capacity to earn, (2)
deliberately avoiding his family's financial responsibilities, (3)
acting in deliberate disregard for his support obligations, (4)
refusing to seek or to accept gainful employment, (5) wilfully
refusing to secure or take a job, (6) deliberately not applyinghimself to his business, (7) intentionally depressing his income to
an artificial low, or (8) intentionally leaving his employment to
go into another business.
Bowes v. Bowes, 287 N.C. 163, 171-72,
214 S.E.2d 40, 45 (1975) (citations omitted);
see also Wachacha v.
Wachacha, 38 N.C. App. 504, 507-08, 248 S.E.2d 375, 377-78 (1978).
When the evidence shows that a party has acted in “bad faith,”
the trial court may refuse to modify the support awards.
Chused v.
Chused, 131 N.C. App. 668, 671, 508 S.E.2d 559, 561-62 (1998).
If
a husband has acted in “good faith” that resulted in the reduction
of his income, application of the earnings capacity rule is
improper.
Wachacha, 38 N.C. App. at 508, 248 S.E.2d at 377-78.
See also Chused, 131 N.C. App. 668, 508 S.E.2d 559 (held no
evidence that husband acted in bad faith by deliberately depressing
his income, and the evidence was sufficient to prove husband
was
“involuntarily” terminated from his employment).
The dispositive issue is whether a party is motivated by a
desire to avoid his reasonable support obligations. To apply the
earnings capacity rule, the trial court must have sufficient
evidence of the proscribed intent.
Wachacha, 38 N.C. App. at 508,
248 S.E.2d at 378
(quoting
Sguros v. Sguros, 252 N.C. 408, 114
S.E.2d 79 (1960)).
Here there is substantial evidence in the record and the trial
court did not err by finding and concluding that the plaintiff
disregarded his marital and parental obligations. The trial court
found and concluded that:
the change in the Plaintiff's employment
circumstances in being terminated from [Tesa]and his continued unemployment were
voluntarily effected by the Plaintiff in
conscious and reckless disregard of his duty
to provide support to his former wife and
children as ordered by the Court in this
action. (Emphasis supplied).
The trial court supported this finding and conclusion with
extensive findings of fact. Notwithstanding plaintiff's arguments,
there is sufficient evidence in the record to show that his
unemployment was voluntary. The trial court made the following
findings of fact, which are supported by the evidence, concerning
plaintiff's termination at Tesa: (1) upon being hired by Tesa,
plaintiff insisted on renaming his “bonus” as a relocation expense
that irritated his new employer, (2) plaintiff overinflated his
expense reports, (3) plaintiff failed to disclose vital information
about his bankruptcy which embarrassed his supervisor, (4)
plaintiff made unreasonable demands about his business trips, and
(5) all of plaintiff's actions with respect to his new job lead to
an “entirely predictable termination.” This assignment of error is
overruled.
B. Trial Court's Order Holding Plaintiff In Contempt
Plaintiff contends that the trial court erred when it held him
in contempt for not paying defendant twenty percent and fifteen
percent, respectively, of his $5,769.24 “bonus” or “relocation
expense.” Plaintiff argues that the final order did not
contemplate bonuses received from sources other than Shurtape.
Alternatively, plaintiff argues that there is no evidence that his
“relocation expense” was a “bonus.” We disagree.
The trial court considered the percentages of the bonuses tobe paid to defendant and found that “Plaintiff acted in conscious
and reckless disregard of his duty to provide support to the
Defendant and the minor children as previously ordered by the Court
in this action.” We do not accept plaintiff's interpretation of
the final order, which obligated plaintiff to pay certain
percentages of his bonuses to defendant. The child support and
post-separation support orders provided that:
In addition to the foregoing monthly child
[and post-separation] support obligation[s] of
the Plaintiff, the Plaintiff shall, within ten
(10) days from the date he receives any bonus
from his employment in the future, pay . . .
to the Defendant, the sum of twenty percent
(20%)[and fifteen (15%)] of the gross amount
of any and
all future bonuses which he
receives from his employment. (Emphasis
supplied).
There is nothing contained in these portions of the final
order that restricts this provision to plaintiff's work at
Shurtape. The provision applies to
all future bonuses.
After thorough review of the record, there is sufficient
evidence to show that the money plaintiff received from Tesa upon
hire was a “bonus” covered by the final order, and that plaintiff
prevented defendant and his children from receiving it in
accordance with the final order by wilfully re-labeling the bonus
a relocation expense. This assignment of error is overruled.
IV. Defendant's Assignments
Defendant listed eight assignments of error in the record.
All assignments of error raised but not argued are deemed
abandoned. N.C.R. App. P. 28(b)(5)(2002).
Defendant contends that the trial court erred by not findingplaintiff in contempt for “willful” failure to comply with the
other provisions of the child support and post-separation support
orders. We disagree.
To find plaintiff in contempt, the trial court must find that
(1) plaintiff failed to comply with the order, and (2) that
plaintiff presently possesses the means to comply. Gorrell v.
Gorrell, 264 N.C. 403, 141 S.E.2d 794 (1965). “In proceedings in
contempt the facts found by the judge are not reviewable by this
court, except for the purpose of passing upon their sufficiency to
warrant the judgment.” Green v. Green, 130 N.C. 578, 578, 41 S.E.
784, 785 (1902).
The trial court concluded that plaintiff was not in contempt
by failing to pay his child support obligation in the amount of
$1,129.00 per month and his separation support obligation in the
amount of $609.00 per month. The trial court did not find that
plaintiff had the ability to pay or that his failure to pay was
willful concerning his fixed amount of child and post-separation
support. This assignment of error is overruled. The order of the
trial court is affirmed.
Affirmed.
Chief Judge EAGLES and Judge McGEE concur.
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