COUNTY OF DURHAM, by and
through DURHAM DSS, ex rel:
SHERALYN PATTERSON,
Plaintiff,
v. Durham Count
y
No. 96 CVD 3076
MACK BROWN,
Defendant.
Durham County Attorney S. Chuck Kitchen, by Assistant County
Attorney Elizabeth Froehling, for plaintiff appellee.
Anthony R. Williams for defendant appellant.
McCULLOUGH, Judge.
On 31 July 1996, Mack Arthur Brown (defendant) acknowledged
paternity of the minor child Quiana Monique Brown, who was born to
defendant and Sheralyn LaDawn Patterson (Ms. Patterson) on 13 March
1996. Defendant also entered into a “Voluntary Support Agreement
and Order” which the trial court approved and entered on 31 July
1996. The order directed defendant to make monthly child support
payments of $100.00 and to reimburse past maintenance of $491.00.
On 5 October 2000, the trial court issued a show cause order
stating “there is probable cause to believe that [defendant is] incontempt for failure to comply with the order(s)” in that he was
$5,491.00 in arrears as of 1 October 2000 on his child support
obligation.
At the show cause hearing on 5 March 2001, defendant testified
he had not paid his child support because he had asthma and was
diabetic. He testified he had been working twenty-five to thirty
hours a week detailing cars for about a month. Defendant said he
also did stereo and mechanic work on the side, along with car
detailing for his wife's friends. Although defendant claimed to
have been bringing home “about $300, $350" per week for “maybe
about two, three months now[,]” he admitted he had not paid any of
that money toward his child support obligation. While asserting he
had given money for “birthdays and lay-aways like Christmas,”
defendant acknowledged he was aware he would not receive credit for
such direct payments.
Defendant had also been employed for about a month in April of
2000, but did not report his employment to Social Services. While
admitting he was aware of his responsibility to report employment,
defendant stated, “I got to do what I have to do to do my part at
home and take care of the two older ones that I have. I have three
kids.” His wife's two children, ages nine and eleven, lived with
defendant and his wife.
When DSS referenced a print-out which indicated defendant had
not made any support payments from February of 1997 to date,
defendant conceded he had never made a payment for the children.
Instead, he asserted that he “always gave the money -- when sheasked me for money, I give it to her. And, you know, same with my
other two.” Defendant stated he had $150.00 with him at the
hearing to pay toward the child support, and he indicated he would
now be able to pay “$100, $150 a week.”
In its order finding defendant to be in contempt, the trial
court made the following findings of fact:
2. The Defendant is currently employed
. . . .
3. The Defendant was previously ordered
to pay $100.00 per mth [sic] current support
. . . .
4. The Defendant is out of compliance
. . . and has total arrears of $5891.00 as of
[1 March] 2001.
5. The Defendant is at least ninety (90)
days in arrears.
. . . .
8. The Defendant has had and/or presently
has the means and ability to comply or take
reasonable measures that would enable the
Defendant to comply with the Court's prior
Orders, but has willfully failed and refused
to do so.
The trial court determined that “[t]he Defendant has no just cause
for not complying with the prior Court order and should be held in
contempt of court[,]” and sentenced defendant to thirty days in
jail and set a “$500 purge payment.” The trial court further
ordered defendant to pay “$100.00 per month current support plus
$50.00 per month towards arrears . . . for a total payment of
$150.00 per month, beginning [1 April] 2001.” From the trial
court's order, defendant appeals. Defendant contends the trial court erred by concluding that he
had no just cause for not making child support payments when he
presented testimony that his diabetes and asthma prohibited him
from securing and maintaining steady, gainful employment. He
argues the trial court failed to make findings of fact as to his
health conditions, and he claims its findings as to his ability to
comply and the willfulness of his noncompliance are not supported
by competent evidence in the record. We disagree.
“Review in contempt proceedings is limited to whether there is
competent evidence to support the findings of fact and whether the
findings support the conclusions of law.” Adkins v. Adkins, 82
N.C. App. 289, 292, 346 S.E.2d 220, 222 (1986). “It is well
established that in civil contempt proceedings to enforce orders
for child support, the court is required to find only that the
allegedly delinquent obligor has the means to comply with the order
and that he or she wilfully refused to do so.” Plott v. Plott, 74
N.C. App. 82, 84-85, 327 S.E.2d 273, 275 (1985). If the trial
court's findings of fact are supported by any competent evidence,
they are conclusive on appeal. Hartsell v. Hartsell, 99 N.C. App.
380, 385, 393 S.E.2d 570, 573 (1990), aff'd, 328 N.C. 729, 403
S.E.2d 307 (1991).
“[S]tatutes governing proceedings for civil contempt in child
support cases clearly assign the burden of proof to the party
alleged to be delinquent.” Plott, 74 N.C. App. at 85, 327 S.E.2d
at 275. Defendant, the alleged delinquent, had the burden of
showing he either lacked the means to pay or his failure to pay wasnot willful. See id. Defendant offered no evidence of medical
disability other than his unsupported assertions of the severity of
his asthma and diabetes. He alleged having made direct payments
upon request, but admitted his awareness that he would not receive
credit for such payments. Despite an admitted weekly take-home
income of $300.00 to $350.00 for the preceding two to three months,
defendant made no support payments. However, he asserted that he
had to “take care of the two older ones that I have.” Defendant
brought $150.00 with him to the hearing to apply toward support and
told the trial court that he could now pay $100.00 to $150.00 per
week toward support.
Defendant's own testimony provided ample competent evidence to
support the trial court's findings of fact as to his present
ability to comply and his willful refusal to do so. Because
defendant failed to carry his burden, the trial court was warranted
in finding him in contempt. Accordingly, the trial court's order
is affirmed.
Affirmed.
Chief Judge EAGLES and Judge TIMMONS-GOODSON concur.
Report per Rule 30(e).
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