Appeal by defendant Joyce Lemonds Wright from an order entered
13 February 1998 by Judge Lillian O'Briant (nor Jordan) in
Montgomery County District Court. Heard in the Court of Appeals 30
October 2002.
Bell and Browne, P.A., by Charles T. Browne, for defendant-
appellee.
Central Carolina Legal Services, by Stanley B. Sprague and
Jerry L. Eagle, for defendant-appellant.
HUNTER, Judge.
Defendant Joyce Lemonds Wright (“Appellant”) appeals from an
order holding her in civil contempt for failing to honor her
payment obligations on a debt she and her former husband, defendant
William Guy Wright (“Appellee”), owed to plaintiff General Motors
Acceptance Corporation (“GMAC”). We affirm.
On or about 17 May 1989, Appellant and Appellee financed a
vehicle with a lender that assigned its rights to GMAC. The
following year, the parties separated and subsequently entered into
a separation agreement that granted possession of the vehicle to
Appellant. In the agreement, Appellant agreed to pay the
outstanding indebtedness owed to GMAC on the vehicle. However,when Appellant defaulted on the payments, GMAC repossessed and sold
the vehicle. The sale resulted in a deficiency to GMAC.
GMAC filed a complaint on 10 December 1992 seeking a
deficiency judgment jointly and severally against Appellant and
Appellee. On 18 February 1993, entry of default was entered
against Appellant for failure to timely plead, but a default
judgment was never entered against her. Appellee filed an answer
to GMAC's complaint on 29 June 1993 that included a cross-claim
against Appellant. In his cross-claim, Appellee asked the court to
enter an “order commanding [Appellant] to specifically perform her
obligation under the separation agreement dated May 29, 1990 by
paying the debt to the plaintiff as she obligated herself to do[.]”
Before the matter went to trial, all three parties entered
into a consent judgment on 23 March 1994. Referencing the
separation agreement, the consent judgment ordered Appellant to
satisfy her and Appellee's joint indebtedness to GMAC by paying the
sum of $50.00 per month until the debt was satisfied. The consent
judgment further provided that should Appellant not timely pay,
“GMAC would be entitled to execute upon its monetary judgment
against [Appellee and Appellant], and [Appellee] would be entitled
to execute upon his monetary judgment against [Appellant].”
On 16 December 1996, Appellee filed a motion for contempt
against Appellant in Montgomery County District Court. In the
motion, Appellee alleged that Appellant had willfully failed and
refused to pay the judgment to GMAC pursuant to the consent
judgment. Appellee asked that Appellant be (1) held in willfulcontempt for failure to abide by the terms of the consent judgment
and (2) ordered to pay for his attorney's fees incurred as a result
of the action.
Following a show cause hearing on 26 November 1997, an order
was entered on 13 February 1998 in which the court found that
Appellant had willfully failed to pay her obligation to GMAC
despite having the ability to do so. Thus, Appellant was held in
civil contempt, as well as ordered to pay the sum of $300.00 for
Appellee's attorney's fees. On 26 February 1998, Appellant filed
a motion asking the court to alter the 13 February 1998 order
pursuant to Rule 59 of the North Carolina Rules of Civil Procedure.
That motion was denied by an order entered on 3 October 2001.
Appellant appeals the 13 February 1998 order holding her in
contempt. She does not appeal the 3 October 2001 order denying her
motion to alter the 13 February 1998 order.
I.
By her first assignment of error, Appellant argues the trial
court erred in holding her in civil contempt based on her failure
to comply with the terms of a separation agreement that were not
adopted or approved by the court. Appellant contends that since
the separation agreement was neither a part of the court file nor
presented to the court prior to or at the time of the consent
judgment, it is enforceable only as an ordinary contract and not
through the court's contempt powers.
See Bunn v. Bunn, 262 N.C.
67, 69, 136 S.E.2d 240, 242 (1964). Although we agree withAppellant's statement of the law, we disagree with its application
to the present case.
Here, Appellant was held in contempt for failure to comply
with the consent judgment, not the separation agreement. The
consent judgment required Appellant to “
specifically perform her
obligation, created under a Separation Agreement executed by her
and [Appellee], to satisfy their joint indebtedness” to GMAC.
(Emphasis added.) In North Carolina, the law is clear that “if a
[spouse] does not perform his[/her] part of a valid separation
agreement, which has not been incorporated into a court order, the
[opposing spouse] may obtain from the court a decree of specific
performance of the separation agreement which is enforceable
through contempt proceedings.”
McDowell v. McDowell, 55 N.C. App.
261, 262, 284 S.E.2d 695, 696-97 (1981) (citations omitted). The
parties' consent judgment was, in essence, a decree of specific
performance and legally enforceable through contempt proceedings if
it was adopted by the court. Thus, Appellant's first assignment of
error is overruled.
II.
By her second assignment of error, Appellant argues the court
erred in holding her in contempt because the consent judgment was
not adopted by the court. We disagree.
“[O]nce it is determined that a court has adopted [a]
judgment, and the presumption favors adoption, the court may
enforce its provisions upon a showing of willful failure to
comply.”
Henderson v. Henderson, 55 N.C. App. 506, 512, 286 S.E.2d657, 662 (1982). In the case
sub judice, Appellant contends the
consent judgment was not adopted as the court's determination of
the respective rights and obligations of the parties because it
contained no findings of fact. However, the consent judgment
stated as follows: The parties “have each waived any recitation of
such Findings of Fact and Conclusions of Law as might otherwise
have been required to support the judgment herein[.]” Since
Appellant expressly waived her right to allow the court to make
such findings of fact, this Court will not now rule that adoption
of the consent judgment did not occur because of that waiver.
Therefore, in light of Appellant's waiver and the absence of any
evidence rebutting the presumption of adoption, we conclude the
consent judgment was adopted by the court and enforceable through
contempt proceedings.
III.
By Appellant's third assignment of error she argues the court
erred in finding her in civil contempt without first finding that
she was presently capable of complying with its purging conditions.
We disagree.
In North Carolina, a proceeding for civil contempt is one
instituted to preserve and enforce the rights of a private party to
an action, and to compel obedience to a judgment or decree intended
to benefit such parties.
Blue Jeans Corp. v. Clothing Workers, 275
N.C. 503, 508, 169 S.E.2d 867, 869-70 (1969). Failure to comply
with a court order 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) (2001) (emphasis added). This Court's
review of a trial court's finding of contempt is limited to a
consideration of “whether the findings of fact by the trial judge
are supported by competent evidence and whether those factual
findings are sufficient to support the judgment.”
McMiller v.
McMiller, 77 N.C. App. 808, 810, 336 S.E.2d 134, 136 (1985).
In the instant case
, the trial court made the following
finding of fact pertinent to Appellant's ability to comply with the
contempt order:
5. [Appellant] has at all times since
the entry of the consent judgment been
gainfully employed, and by her own testimony
earned in excess of $9.00 per hour on one of
her jobs. Moreover, [Appellant] has no
dependents and at one time after the consent
judgment was entered was earning approximately
$1,240.00 per month gross income. During this
period of time [Appellant's] living expenses
and other obligations would not have prevented
her from making the payments she was ordered
to make in the March 23, 1994 judgment. The
Court notes that in 1990 [Appellant] received
a $10,000.00 insurance settlement (paid as a
result of a fire she experienced in her home),
and not withstanding that she did not use the
money to replace damaged or destroyed items in
her home, she applied none of the proceeds to
the GMAC obligation. In addition, since the
consent judgment was entered, [Appellant]
borrowed $1,500.00 from a commercial lendinginstitution and used the money to repair
another vehicle.
This finding was based on evidence establishing as an affirmative
fact that Appellant possesses the current ability to comply with
the order.
See Hartsell v. Hartsell, 99 N.C. App. 380, 385, 393
S.E.2d 570, 574 (1990). Plaintiff does not contend the evidence
was not competent. Thus, we conclude the court's finding was
sufficient to support the conclusion that Appellant could comply
with the contempt order.
IV.
By her final assignment of error, Appellant argues the court
erred in awarding attorney's fees to Appellee.
Our state law generally does not allow for the recovery of
attorney's fees as an item of damages or of costs absent express
statutory authority.
Records v. Tape Corp. and Broadcasting System
v. Tape Corp., 18 N.C. App. 183, 188, 196 S.E.2d 598, 602 (1973).
In civil contempt actions, this Court has upheld an award of
attorney's fees “where such fees were expressly authorized by
statute as in the case of child support.”
Smith v. Smith, 121 N.C.
App. 334, 339, 465 S.E.2d 52, 55 (1996). “[T]his Court has [also]
upheld the awarding of attorney's fees under the court's broad
contempt powers to enforce equitable distribution awards where
attorney's fees were not expressly authorized by statute.”
Id.
(citing
Hartsell).
Here, Appellant contends the debt she owed on the vehicle was
a
consumer debt. As such, she argues there is no statutory
authority expressly allowing for the award of attorney's fees incivil contempt actions for failure to pay this type of debt.
Appellee essentially contends that the debt was actually a
marital
debt that Appellant promised to pay. He argues the debt is
therefore analogous to an equitable distribution award, which
permits an award of attorney's fees through the court's contempt
powers. We conclude Appellee's analogy is meritorious.
The parties in the present case agreed in their separation
agreement that Appellant would take possession of the vehicle and
be responsible for the indebtedness owed to GMAC on that vehicle.
In doing so, the parties assigned this marital asset, and the
accompanying marital debt, to Appellant in the same manner as any
other marital asset or marital debt would be assigned to a spouse
for purposes of equitable distribution. Thereafter, the parties
and the court adopted the relevant provision of the separation
agreement in a consent judgment that ordered Appellant to
specifically perform her payment obligation to GMAC. When
Appellant failed to perform, the court only awarded such fees as
were incurred by Appellee in enforcing the original consent
judgment by bringing the Appellant before the court for contempt.
See Hartsell, 99 N.C. App. at 390, 393 S.E.2d at 576. Under these
facts, we hold there is no recognizable distinction between a court
awarding attorney's fees through contempt proceedings when a spouse
fails to honor a marital debt arising out of an equitable
distribution award and when a spouse fails to specifically perform
payment of a marital debt arising out of a consent judgment. Thus,
having concluded the award was otherwise supported by properfindings of fact, the trial court did have the authority to award
attorney's fees as a condition of purging contempt due to
Appellant's failure to comply with the consent judgment.
For the aforementioned reasons, we affirm the trial court's
order of civil contempt.
Affirmed.
Judges WYNN and TIMMONS-GOODSON concur.
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