LILA HASSELL,
Plaintiff
v
.
New Hanover County
No. 95 CVD 3275
WILEY HASSELL,
Defendant
Hosford & Hosford, P.L.L.C., by Sofie W. Hosford, for
plaintiff-appellee.
W.T. Batchelor II for defendant-appellant.
HUNTER, Judge.
Wiley Hassell (“defendant”) appeals orders requiring that he
continue in his obligation to pay alimony to Lila Hassell
(“plaintiff”), and holding him in contempt of court for failure to
do so. We affirm in part and vacate in part.
In pertinent part, the facts are that defendant was originally
ordered to pay permanent monthly alimony to plaintiff by order
entered 23 March 1997. In awarding permanent alimony, the trial
court considered the length of the parties' marriage, thedifferences in their respective incomes, and the fact that
defendant had engaged in sexual misconduct during the marriage.
Defendant was ordered to pay plaintiff monthly alimony in the
amount of $1,000.00 for a period of two years, until 1 March 1999,
and thereafter, $500.00 per month until plaintiff dies or
remarries.
Defendant failed to make the ordered payments, and on 2 June
1997, plaintiff filed a motion for contempt. On 28 July 1997, the
trial court found defendant to be in contempt, and ordered him to
be jailed until he paid plaintiff $9,075.00. Defendant was
released from prison upon paying plaintiff $8,075.00. Thereafter,
plaintiff was required to file additional motions to enforce her
right to alimony. On 11 September 1998, defendant filed a motion
in the cause seeking to lower or eliminate his alimony obligation,
asserting a substantial change in circumstances due to disability
and a resulting significant decrease in income. By consent order
entered 23 September 1998, the trial court determined that as a
result of defendant's disability, it would temporarily suspend his
obligation to pay permanent alimony until such time as defendant
resumed working.
Plaintiff thereafter filed two motions in the cause in
November 1998 and October 1999, asserting that despite defendant's
return to full-time work as of 8 September 1998, he had failed topay the total amount of alimony owed, as he was capable of doing.
On 27 October 1999, defendant filed a motion in the cause seeking
to lower his alimony obligation due to inability to pay. Both
plaintiff's and defendant's motions came to hearing on 7 August
2000. The trial court determined that defendant was, in fact,
capable of working during the time alimony was suspended, and
therefore reinstated his alimony obligation. The trial court also
determined that defendant had failed to show a substantial change
in circumstances sufficient to warrant a reduction in the amount of
alimony, and that he had failed to show he is unable to pay the
current $500.00 per month obligation. The trial court's 7 August
2000 determination was not reduced to a final written and filed
order until 5 January 2001.
However, in the meantime, plaintiff filed a motion to show
cause on 22 September 2000, asserting that defendant had failed to
pay alimony as ordered by the trial court on 7 August 2000. By
order entered 17 October 2000, the trial court found defendant in
contempt, and ordered him to be jailed until he paid plaintiff
$1,225.00. According to plaintiff, defendant paid the required
amount and was released from prison. Defendant filed notice of
appeal on 2 February 2001, appealing both the 17 October 2000 order
of contempt, and the 5 January 2001 order reactivating his alimony
obligation.
Defendant's first two arguments pertain to the 17 October 2000
order finding defendant to be in contempt of court. As plaintiff
argues, defendant did not file notice of appeal from this order
until 2 February 2001, which is outside the required thirty-day
time-frame set forth in N.C.R. App. P. 3(c). As a general rule,
failure to timely file notice of appeal subjects the appeal to
dismissal. See Berkman v. Berkman, 106 N.C. App. 701, 702, 417
S.E.2d 831, 832 (1992). However, in this instance, we elect to
grant certiorari to consider defendant's argument that the trial
court had no authority to enter the 17 October 2000 contempt order
where the 7 August 2000 order it purported to enforce had not yet
been reduced to a final written and filed order. See N.C.R. App.
P. 21(a)(1); Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d
661, 663 (1997) (“Rule 21(a)(1) gives an appellate court the
authority to review the merits of an appeal by certiorari even if
the party has failed to file notice of appeal in a timely manner”).
The law on this issue is clear. In Onslow County v. Moore,
129 N.C. App. 376, 499 S.E.2d 780, disc. review denied, 349 N.C.
361, 525 S.E.2d 453 (1998), this Court observed that a judgment or
order is not officially “'entered'” until it is reduced to writing,
signed by the judge, and filed with the clerk of court. Id. at
388, 499 S.E.2d at 788 (citing N.C. Gen. Stat. § 1A-1, Rule 58
(1999)). Thus, in that case, where the underlying order had notbeen reduced to a written order and filed, and thus was not
“entered” at the time of the subsequent contempt order, the
contempt order was without a proper basis. We held that “[b]ecause
a person cannot be held in contempt of an order that is not 'in
force,' see N.C. Gen. Stat. § 5A-21(a)(1), the trial court
improperly based its finding of contempt on conduct by [the
defendant] occurring prior to [actual entry of the underlying
order].” Id. at 388-89, 499 S.E.2d at 788-89.
In this case, because the trial court's 7 August 2000 decision
was not reduced to a final order until 5 January 2001, the trial
court was without authority to enter a contempt order based thereon
on 17 October 2000. The trial court's 17 October 2000 order is
hereby vacated.
Defendant's remaining two arguments pertain to the trial
court's 5 January 2001 order. First, defendant maintains the trial
court erred in placing the burden on him to establish that a
substantial change in circumstances had occurred where the last
order entered suspended alimony, and therefore had already
established that a substantial change in circumstances had
occurred. We disagree. Alimony orders may only be modified where
the moving party establishes a change in circumstances. Kowalick
v. Kowalick, 129 N.C. App. 781, 785, 501 S.E.2d 671, 674 (1998). Here, there was never any change with regard to defendant's
responsibility to pay permanent alimony, or as to the amount of
that alimony. The prior order simply temporarily suspended the
obligation until defendant was able to work again. The order
clearly provided that the suspension would “continue until
Defendant resumes a regular work schedule or upon this Court's or
Plaintiff's motion and review of Defendant's employment.” In its
5 January 2001 order, the trial court determined that defendant
had, in fact, been able to work during the time of suspension.
Thus, defendant's obligation to pay alimony was “re-activated.” It
was defendant's burden to then show a change in circumstances
warranting a modification of this obligation notwithstanding the
fact that he had been capable of earning wages.
Defendant next argues the trial court erred in failing to
conclude that a substantial change in circumstances had occurred
and that defendant was entitled to a reduction in alimony based
upon his income, expenses, and disability. Again, we disagree.
The trial court found that defendant had not carried his burden of
establishing any grounds to further reduce or eliminate his alimony
obligation, that he has not acted in good faith, and that he is
currently able to pay the required $500.00 per month.
As noted above, defendant, as the party seeking a
modification, has the burden of establishing a change incircumstances sufficient to warrant modification. See Kowalick,
129 N.C. App. at 785, 501 S.E.2d at 674. Even if the moving party
is able to show the necessary change in circumstances, “the trial
court is not required to modify an alimony award, but may do so in
its discretion.” Id. The trial court's findings of fact with
respect to any change in circumstances are conclusive on appeal
where supported by competent evidence, even though the evidence
would support a finding to the contrary. Spencer v. Spencer, 133
N.C. App. 38, 43, 514 S.E.2d 283, 287 (1999). “Therefore, '[w]hile
the sufficiency of the findings to support the award is reviewable
on appeal, the weight to be accorded the evidence is solely for the
trier of the facts.'” Id. at 43-44, 514 S.E.2d at 287 (citation
omitted).
In assessing a change in circumstances, “[o]nly those changed
circumstances which relate to the 'factors used in the original
determination of the amount of alimony awarded' are relevant.”
Kowalick, 129 N.C. App. at 785, 501 S.E.2d at 674 (citation
omitted). The purpose of examining these factors is not to re-
determine the status of the parties or to determine whether the
original award was proper; rather, “[t]he reference to the
circumstances or factors used in the original determination is for
the purpose of comparing the present circumstances with the
circumstances as they existed at the time of the originaldetermination in order to ascertain whether a material change of
circumstances has occurred.” Cunningham v. Cunningham, 345 N.C.
430, 435, 480 S.E.2d 403, 406 (1997).
In the present case, the original 23 March 1997 order awarding
plaintiff permanent alimony stated that in determining that
permanent alimony was warranted, the court considered “the length
of the parties' marriage, the differences in their respective
incomes and the sexual misconduct of the Defendant.” However,
defendant's evidence at the 7 August 2000 hearing focused solely on
the fact that he is no longer able to work, and that he has
increased expenses which surpass his income. The trial court found
that defendant receives $1,327.00 per month in Social Security
Disability, and $440.00 per month from GE in long-term disability,
which finding is supported by the testimony. Defendant testified
that he has monthly expenses of $1,928.00, although he failed to
produce documentation verifying his expenses, including bank
statements, cancelled checks, check registers, or credit card
statements. Moreover, evidence was presented tending to show that
defendant's unemployed girlfriend and her three children lived with
him for approximately one and a half years, during which time his
alimony obligation was suspended, and that defendant helped to
support these additional four people, including paying the mortgage
and all utilities. Plaintiff testified that her expenses and netincome of approximately $1,000.00 per month has essentially
remained unchanged since March 1997.
In Patton v. Patton, 88 N.C. App. 715, 364 S.E.2d 700 (1988),
we held that “[t]here cannot be a conclusion of substantial change
in circumstances based solely on change in income.” Id. at 719,
364 S.E.2d at 703. Rather, the “overall circumstances of the
parties must be compared with those at the time of the award.” Id.
Thus, where the defendant's arguments only pertained to his
finances, without considering the plaintiff's financial standing or
accustomed standard of living, he failed to carry his burden of
showing a substantial change in circumstances. Id. Likewise, in
Self v. Self, 93 N.C. App. 323, 377 S.E.2d 800 (1989), we noted
that “'[a] conclusion of law that there has been a substantial
change of circumstances based only on income is inadequate and in
error.'” Id. at 326, 377 S.E.2d at 801 (citation omitted).
Rather, the significant question is how any change “. . . 'affects
a supporting spouse's ability to pay or a dependent spouse's need
for support. . . .'” Id. (citation omitted).
In this case, defendant's evidence and arguments focused
solely on his finances without regard to plaintiff's finances, her
need for continued support and accustomed standard of living, or
any of the other factors originally considered by the trial court.
Indeed, the evidence showed that plaintiff's expenses andapproximate monthly income of $1,000.00 had not changed since 1997,
and thus her need for alimony had not changed since the original
hearing. As in 1997, the evidence in August 2000 showed that
defendant's monthly income still exceeds that of plaintiff.
Moreover, since the original trial court ordered that defendant pay
permanent alimony until plaintiff dies or remarries, the court had
to have considered the fact that defendant might be required to pay
alimony after he retires and is no longer working and earning the
same wages.
The trial court's findings of fact are supported by competent
evidence, which findings in turn support its conclusions of law.
We therefore decline to hold that the trial court abused its
discretion in failing to modify defendant's obligation of permanent
alimony.
Affirmed in part; vacated in part.
Judges WALKER and BRYANT concur.
Report per Rule 30(e).
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