A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-864


Filed: 2 April 2002

through DURHAM DSS, ex rel:

         v.                                Durham Count y
                                        No. 96 CVD 3076

    Appeal by defendant from order entered 5 March 2001 by Judge Craig B. Brown in Durham County District Court. Heard in the Court of Appeals 18 March 2002.

    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.
    Chief Judge EAGLES and Judge TIMMONS-GOODSON concur.
    Report per Rule 30(e).

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