1. Contempt_compliance with consent provisions_violation of spirit
The trial court did not err by finding defendant in contempt of an equitable distribution
consent order requiring the sale of the home. Although defendant contended that he complied
with all of the provisions of the order, he violated its spirit and intent by taking willful and
deliberate action to make the house unattractive and undesirable to prospective purchasers.
2. Contempt_attorney fees_pursuit of contempt order
The trial court did not err by awarding attorney fees to plaintiff in an action seeking to
enforce a consent judgment through contempt. The contempt power of the district court includes
the authority to award attorney fees as a condition of purging contempt for failure to comply with
an order; plaintiff's counsel submitted an affidavit to support the request for attorney's fees;
defendant did not take exception to the finding that attorney fees were incurred; and the trial
court's award was $500 less than requested.
Kay S. Murray for plaintiff-appellee.
Brown Queen Patten & Jenkins, PA, by Frank G. Queen, for
defendant-appellant.
STEELMAN, Judge.
Defendant, Harold Eugene Middleton, appeals a trial court
order finding him in contempt of a consent judgment. For the
reasons discussed herein, we affirm the trial court's
determination.
Plaintiff, Dana Waldroup Middleton, and defendant were married
on 24 July 1961 and were divorced on 31 December 2001. On 10
October 2001, plaintiff and defendant entered into a mediated
settlement agreement, entered as a consent judgment on 12 November2001, settling issues of equitable distribution between the
parties. Paragraph 5 of the consent judgment provided that:
[t]he former marital residence and all
adjoining property . . . shall be listed in
priority order with Doug Sinquefield, Bobby
Potts, and Wanda Jones, and put on the market
no later than November 1, 2001 . . . The
Husband shall remain in the home and pay all
taxes and maintenance thereon until the sale
of the house. The Parties agree to list the
property at a price determined by the above
realtor(s).
On 8 February 2002, plaintiff filed a motion for an order to
show cause asking that defendant be found in contempt of the
consent order. Plaintiff alleged that defendant had taken actions
to thwart the sale of the home, including: (1) refusing to allow
the house to be shown until 24 January 2002, almost three months
after the house was to be put on the market; (2) draping a pair of
plaintiff's underwear on a sign outside of the house; (3) posting
a no trespassing sign outside the house with a list of plaintiff's
putative lovers; (4) leaving notes on a bed, calling attention to
stains on the bed; (5) leaving other inappropriate notes and poems
around the house; and (6) leaving the house cluttered and in
disarray.
On 8 April 2002, the trial court entered an order finding
defendant in contempt. The trial court found that several of the
conditions alleged by plaintiff existed on 24 January 2002, when
the house was shown to prospective buyers, and continued to exist
on the date of the hearing. Additionally, the court cited
plaintiff's testimony and found that the “Husband has said he will
not sell the house but will give it away.” Thus, the court
concluded that defendant was in civil contempt for violation ofparagraph 5 of the consent agreement. The court stated that the
condition of the marital residence “thwarted the sale of the former
marital residence and was designed to embarrass the [plaintiff].”
The court further concluded that the condition of the house when
shown to prospective buyers violated the “spirit” of the consent
agreement. Accordingly, the court ordered that defendant: (1) be
confined to jail, but stayed the confinement; (2) clean up the
marital residence, take down offending signs, and make the house
presentable when shown to prospective buyers; (3) allow inspection
of the home by plaintiff; (4) vacate the premises for a reasonable
period of time in advance of a showing to allow plaintiff to enter
the home to make certain it was presentable; and (5) pay attorney
fees in the amount of $1000. Defendant appeals.
[1] In his first assignment of error, defendant argues that
the trial court erred in finding him in contempt. We disagree.
Defendant contends that he complied with every provision of
the consent agreement, and that the finding of contempt was based
on conduct not addressed in the consent agreement. He further
contends that because he did not violate any of the terms of the
consent agreement, the trial court's findings of fact do not
support a conclusion that he should be held in civil contempt. We
disagree.
“The standard of review we follow in a contempt proceeding is
'limited to determining whether there is competent evidence to
support the findings of fact and whether the findings support the
conclusions of law.'” Miller v. Miller, 153 N.C. App. 40, 50, 568
S.E.2d 914, 920 (2002)(quoting Sharpe v. Nobles, 127 N.C. App. 705,709, 493 S.E.2d 288, 291 (1997)).
Our Supreme Court, in determining whether a party was in
contempt for violating a temporary restraining order, stated that
“'[t]he order of the court must be obeyed implicitly, according to
its spirit and in good faith.'” Rose's Stores, Inc. v. Tarrytown
Center, Inc., 270 N.C. 206, 212, 154 S.E.2d 313, 317 (1967)(quoting
Weston v. John L. Roper Lumber Co., 158 N.C. 270, 73 S.E. 799
(1912)). A party “'must do nothing, directly or indirectly, that
will render the order ineffectual, either wholly or partially so.'”
Id. See also American Tel. & Tel. Co. v. Griffin, 39 N.C. App.
721, 726, 251 S.E.2d 885, 888, cert. denied, 297 N.C. 304, 254
S.E.2d 921 (1979) (telephone and electric companies found in
contempt for violating the “spirit” of the discovery order). Here,
defendant took willful and deliberate action with the intent to
make the house unattractive and undesirable to prospective
purchasers and thus thwart the sale of the home. Defendant
violated the spirit and intent of the order, which was to
effectuate the sale of the marital home in accordance with the
agreement of equitable distribution. Accordingly, the trial court
properly concluded, based on its findings of fact, that defendant
was in contempt of the consent judgment. This assignment of error
is without merit.
[2] In his second assignment of error, defendant argues that
the trial court erred by awarding attorney fees to plaintiff.
Defendant argues that the court lacked statutory authority to award
attorney fees, and there was inadequate evidence to support a
conclusion that the amount of fees was reasonable. We disagree. Plaintiff's counsel submitted an affidavit to support the
request for attorney's fees, and defendant did not take exception
to the court's finding that attorney fees were incurred. After
reviewing the affidavit, the trial court's award of “reasonable”
attorney fees was $500 less than requested. Plaintiff sought to
recover attorney fees incurred while enforcing the consent judgment
which settled the issue of equitable distribution between the
parties. This Court has held that the contempt power of the
district court includes the authority to award attorney fees as a
condition of purging contempt for failure to comply with an order.
See Hartsell v. Hartsell, 99 N.C. App. 380, 390, 393 S.E.2d 570,
576, appeal dismissed, rev. denied, 327 N.C. 482, 397 S.E.2d 218
(1990) (citing Conrad v. Conrad, 82 N.C. App. 758, 759-60, 348
S.E.2d 349, 349-50 (1986)). Thus, this assignment of error is
without merit.
AFFIRMED.
Judges WYNN and TYSON concur.
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