An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1506

NORTH CAROLINA COURT OF APPEALS

Filed: 21 October 2003

SHANNON NICOLE MOON,
            Plaintiff,

v .                             Richmond County
                                No. 98 CVD 389
DAVID WAYNE MOON,
            Defendant.

    Appeal by defendant from orders entered 12 March 2001 and 10 January 2002 by Judge Christopher Bragg in Richmond County District Court. Heard in the Court of Appeals 8 September 2003.

    Sharpe & Buckner, PLLC, by Richard G. Buckner, for plaintiff- appellee.

    Henry T. Drake for defendant-appellant.

    EAGLES, Chief Judge.

    Defendant David Moon appeals from the trial court's order setting child support for his minor child, Ashleigh Blair Moon. Defendant brings forth four arguments on appeal: that the trial court erred (1) by holding that defendant was in civil contempt of court; (2) by ordering defendant to pay past due child support and insurance premiums; (3) by ordering defendant to pay future child support; and (4) by awarding plaintiff attorney fees. After careful consideration of the record and briefs, we affirm.
    Defendant and plaintiff Shannon Moon were married on 12 September 1992, separated on 9 March 1997 and divorced on 11 May 1998. Plaintiff and defendant had one child while they weremarried, Ashleigh Blair Moon, who was born on 12 February 1995. The parties entered into a separation agreement on 14 March 1997 but the agreement was not incorporated into a court order. According to the terms of the separation agreement, plaintiff had primary custody of the child and defendant had visitation privileges on certain days.
    Defendant filed a motion in the cause on 15 September 1999 requesting primary custody of the child. On 22 November 1999, the trial court entered a temporary custody order maintaining primary physical custody of the child with plaintiff, but altering defendant's visitation schedule.
    On 24 February 2000, defendant filed another motion in the cause requesting primary custody of the child. Plaintiff filed a response to the motion on 2 March 2000. Plaintiff filed an amended response and a motion in the cause on 27 March 2000 requesting attorney fees, sole custody of the child, child support and an order requiring specific performance of the terms of the separation agreement. The trial court entered a temporary order, filed on 24 March 2000, granting plaintiff's motion. In its 24 March order, the trial court found that the amount of child support set by the terms of the separation agreement was “not just and reasonable” and required defendant to pay the Child Support Guideline amount of $572.67 per month. The 24 March 2000 temporary order reserved the issues of arrearage payment and attorney fees for another hearing.
    The trial court entered a consent order on 15 September 2000 which included an agreement on custody between the parties. Thisorder established that plaintiff would retain primary physical custody of the child and set specific dates and times for visitation privileges for defendant.
    After another hearing, the trial court entered an order on 12 March 2001. The trial court found that defendant had failed to pay insurance costs of $38 per month for the child as he was required by the separation agreement, leaving an arrearage of $1,624. Defendant was ordered to pay $750 in past due child support that he was obligated to pay by the separation agreement. In addition, defendant was ordered to pay $1,958.69 in child support arrearage which accrued under the temporary order filed on 24 March 2000. The court ordered defendant to pay $97.93 each month towards his insurance and child support arrearages. The trial court found that defendant willfully disregarded the court's child support payment order and found defendant in civil contempt of court. Defendant was ordered to pay $133.52 per week in prospective child support, along with 67.76% of the child's medical and dental expenses that were not compensated by insurance. The trial court calculated defendant's support obligation by using North Carolina Child Support Guideline Worksheet A and awarded plaintiff attorney fees for the actions for contempt, child support and child custody. Defendant was ordered to pay these attorney fees in the amount of $7,500 in $200 payments each month.
    Defendant filed a motion to amend the order on 20 March 2001 because defendant alleged that the trial court calculated child support incorrectly. The trial court denied this motion on 27February 2002. Defendant filed a separate motion seeking additional findings of fact and a new trial on 20 March 2001. The trial court also denied this motion on 10 January 2002. Defendant appeals from the 12 March 2001 order setting prospective child support, assigning payment of arrearages, awarding attorney fees and finding defendant in contempt of court.
    Defendant contends that the trial court erred by finding him in contempt of court. Defendant argues that the trial court's findings regarding defendant's monthly income and expenses do not support its finding that defendant is able to pay his child support arrearage. We disagree.
    G.S. § 5A-21 outlines civil contempt of court as follows:
                (a)     Failure to comply with an order of a court 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.

G.S. § 5A-21 (2001). The trial court found that defendant “earned an average of $3,541.50 per month of gross income” and that the expenses listed on defendant's financial affidavit, with the exception of $882.33 per month, were reasonable. Defendant calculated his monthly expenses to be $3,820.68. The amount designated as unreasonable expenses included a boat payment of$271.73, day care costs of $300 for defendant's stepchild, and $311 for defendant's new spouse's car. Deduction of the unreasonable expenses would reduce defendant's expenses to approximately $2,938. In addition, we note that defendant included a $400 monthly expense for child support on his financial affidavit that the trial court neglected to note in its findings. Removing this item so as to prevent it being counted twice would reduce defendant's monthly expenses to $2,538, before the payment of child support. Since defendant's income exceeds his expenses by approximately $1,000 monthly, the trial court had sufficient evidence to show that defendant had the ability to pay child support. Defendant had the ability to pay child support, but did not make child support payments as ordered by the trial court. Therefore, the trial court did not err when it found that defendant was in contempt of court according to G.S. § 5A-21.
    Defendant argues that the boat payment cannot be an unreasonable expense because defendant was required to retire the indebtedness on the boat by the separation agreement. Defendant's argument is not persuasive. The separation agreement does not require defendant to retain possession of the boat, but instead requires defendant to protect plaintiff's credit rating by paying the boat indebtedness. The same purpose (protecting plaintiff's credit rating) could be served by selling the boat to provide child support. Accordingly, this assignment of error is overruled.
    Defendant further contends that the trial court erred by ordering the payment of past due child support and insurancepremiums according to the separation agreement. The trial court ordered defendant to pay $97.93 per month towards past due child support and insurance premiums required by the terms of the separation agreement. Defendant argues that specific performance of the contract is not available because an adequate remedy at law exists. We disagree.
    The separation agreement at issue here contains a paragraph entitled “Enforcement” that reads as follows, in pertinent part:
        It is agreed and understood that either party shall have the right to compel the performance of this agreement or to sue for the breach thereof in the courts having appropriate jurisdiction.

The contract contained this provision allowing plaintiff to seek specific performance of the separation agreement if defendant violated the terms of the agreement. This clause, standing alone, would be sufficient to allow plaintiff to seek an order of specific performance requiring defendant to pay past due child support and insurance premiums according to the separation agreement. The trial court also made a finding of fact that further supported plaintiff's ability to seek specific performance:
        10.     That, as is found in more detail elsewhere herein, while Defendant is, and has been, gainfully employed, and does have the ability to carry out the aforesaid terms of the Separation Agreement of the parties, relating to both medical insurance and child support, he does not have property upon which the lien of a judgment would attach, and therefore, Plaintiff does not have an adequate remedy at law, and she is therefore entitled to an Order directing specific performance of the provisions of the agreement requiring Defendant topromptly pay his share of the costs of health insurance and child support.

In addition, the trial court ordered that defendant's future child support payments and payments of arrearages be withheld by garnishment of defendant's wages. The trial court found that defendant did not have property upon which a lien could attach. The trial court concluded that plaintiff did not have an adequate remedy at law. The separation agreement was never incorporated into a court order, so it retained its contractual nature. See Cavenaugh v. Cavenaugh, 317 N.C. 652, 659, 347 S.E.2d 19, 24 (1986) (holding that a separation agreement can only be enforced by specific performance before it is incorporated into a divorce judgment because once incorporated it loses its contractual nature). The trial court made the appropriate findings to enforce the separation agreement by specific performance and to order defendant to pay past due child support and insurance payments according to the parties' agreement. This assignment of error is overruled.
    Defendant also contends that the trial court erred by ordering him to pay prospective child support. The trial court used North Carolina Child Support Guideline Worksheet A to calculate the amount defendant would have to pay. The trial court calculated that defendant would have visitation with the child for 120 overnight visits. Defendant argues that the trial court miscounted the overnight visits, causing the trial court to use an incorrect child support worksheet. We disagree.     The North Carolina Child Support Guidelines state that Worksheet A should be used
        when one parent (or a third party) has primary physical custody of all of the children for whom support is being determined. A parent (or third party) has primary physical custody of a child if the child lives with that parent (or custodian) for at least 242 nights during the year.

N.C. Child Support Guidelines, 2003 Ann. R. (N.C.) 33, 37. Alternatively, the Guidelines state that Worksheet B should be used
        when (a) the parents share custody of all of the children for whom support is being determined, or (b) when one parent has primary physical custody of one or more of the children and the parents share custody of another child. Parents share custody of a child if the child lives with each parent for at least 123 nights during the year and each parent assumes financial responsibility for the child's expenses during the time the child lives with that parent. A parent does not have shared custody of a child when that parent has visitation rights that allow the child to spend less than 124 nights per year with the parent and the other parent has primary physical custody of the child.

N.C. Child Support Guidelines, 2003 Ann. R. (N.C.) 33, 37. Defendant calculates that he has 153 nights of visitation with the child. According to defendant's calculation, the trial court should have used Worksheet B. The trial court interpreted the child visitation schedule as giving defendant 120 nights of visitation and attached a visitation calendar to the order denying defendant's motion for a new trial. The trial court's conclusion that defendant only had 120 nights of visitation is flawed. On the trial court's calendar, it did not indicate that defendant would have custody of the child for Father's Day weekend, asrequired by section 2.h. of the consent order. This error would require three additional nights to be added to the trial court's calculation. Even if the trial court added three additional nights of visitation for Father's Day weekend, defendant would only have 123 nights of visitation. This means that plaintiff has 242 nights of primary physical custody. The use of Worksheet A to calculate the amount of child support to be paid was appropriate because plaintiff has primary physical custody of the child for 242 nights or more. Therefore, this assignment of error is overruled.
    Defendant also contends that the trial court did not make proper findings to support its award of plaintiff's attorney fees for the child support, child custody and contempt claims. Defendant further argues that the trial court cannot order the payment of plaintiff's attorney fees attributable to the enforcement of the separation agreement. We disagree.
    G.S. § 50-13.6 governs the award of attorney fees in child support and custody actions, as follows:
        In an action or proceeding for the custody or support, or both, of a minor child . . . the court may in its discretion order payment of reasonable attorney's fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit. Before ordering payment of a fee in a support action, the court must find as a fact that the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time of the institution of the action . . . .

G.S. § 50-13.6 (2001). Here the trial court was considering a combined child support and custody proceeding, so it was onlyrequired to find (1) an interested party acting in good faith; (2) with insufficient means to defray the expenses of the suit; and (3) that the attorney fees were reasonable. See Burr v. Burr, 153 N.C. App. 504, 506-07, 570 S.E.2d 222, 224 (2002). Although the trial court was not required to make a finding upon the inadequacy of defendant's child support payments, the trial court concluded:
        14.     That the sum being paid by the Defendant in child support at the time he filed this action seeking custody and a review of child support was unfair and not in the best interests of the minor child herein involved, and not a reasonable sum for child support under the circumstances then existing, and Plaintiff acted in good faith in pursuing her motion for child support, and had inadequate funds to defray the expense of the action, and Plaintiff is therefore in need of and entitled to have and recover of the Defendant her counsel fees associated with the child custody determination and the costs of this action.

The trial court also found that defendant's failure to pay the required child support was willful. In addition, the trial court found that plaintiff's counsel was experienced in the matters of family law, that the reasonable value of his legal services was $150 per hour, and that 65.08 hours was a reasonable amount of time to expend on the entire case. The trial court's findings led to a total attorney fee of $9,762.50, which the court, in its discretion, lowered to $7,500. The findings support the award of attorney fees for the child support, child custody and civil contempt portions of plaintiff's action.    Defendant's argument regarding the award of attorney fees for enforcement of the separation agreement is without merit. The separation agreement contained the “Enforcement” clause quoted above that allowed either party to recover attorney fees if he or she sued to enforce the agreement. The North Carolina Supreme Court has held that provisions within separation agreements requiring the payment of attorney fees upon a breach by one of the parties is not inconsistent with the public policy of our State. See Bromhal v. Stott, 341 N.C. 702, 462 S.E.2d 219, rh'g denied, 342 N.C. 418, 465 S.E.2d 536 (1995). Therefore the trial court's award of attorney fees for the portion of plaintiff's claim attributable to specific performance was appropriate. This assignment of error is overruled.
    For the reasons stated, we affirm the trial court's order requiring defendant to pay past due child support and insurance premiums, pay prospective child support, finding defendant in contempt of court, and awarding plaintiff attorney fees.
    Affirmed.
    Judges McCULLOUGH and STEELMAN concur.            
    Report per Rule 30(e).

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