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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
JULINE BROWN, Plaintiff, v. MONTEZ BROWN, Defendant.
Filed: 5 July 2005
Child Support, Custody, and Visitation--support arrears-_enforceability by civil contempt
The trial court erred by adjudicating defendant in civil contempt of a 21 August 1986
judgment for child support arrears and the judgment of 14 July 2004 is vacated, because: (1)
N.C.G.S. § 50-13.4(f)(8) and (9) when read together provide that if a child support arrearage is
reduced to a money judgment and the judgment provides for periodic payments, the judgment is
enforceable by contempt proceedings; and (2) the civil judgment in this case was not enforceable
by contempt proceedings when neither the 1996 judgment nor any subsequent orders of the
North Carolina court required a specific unequivocal directive for defendant to pay child support
on a certain schedule and/or by certain dates.
Appeal by defendant from order entered 14 July 2004 by Judge
John Smith in New Hanover County District Court. Heard in the
Court of Appeals 24 March 2005.
Frank Cherry, for plaintiff appellee.
Montez D. Brown, pro se defendant-appellant.
Montez Brown (defendant) appeals from the trial court's order
adjudicating him in civil contempt of a 21 August 1986 judgment for
child support arrears. In a 21 August 1996 judgment, a North
Carolina court made the following findings of fact:
1. That the plaintiff had obtained a judgment
for child support arrearages in the State of
Maryland against the defendant in the Circuit
Court of Prince George County in the amount of
$13,178.48 as of January 26th
2. That the aforementioned judgment is givenfull faith and credit of the laws of the State
of North Carolina and is hereby declared
legally enforceable in the State of North
Carolina as a judgment lien against Montez
Brown and any property owned by Montez Brown
in the State of North Carolina, County of New
Hanover including the one-half (1/2) undivided
interest in a house and lot situated at 4005
Princess Place Drive, Wilmington, North
Carolina and more fully described in a Deed
recorded in [a deed book];
3. That on the 21st
of November 1995, the
plaintiff filed a Notice of Claim against the
defendant's interest in the estate of Beatrice
Brown; that as of November 21, 1995, the
defendant had a ½ undivided interest in said
real property under the Last Will and
Testament of Beatrice Brown[;]
. . . .
7. That the plaintiff has employed the
services of [an attorney, and] . . . the
reasonable value of said services [is] $2,500.
Upon these findings, the trial court concluded:
1. That the plaintiff is entitled to a
judgment in the amount of the Judgment
rendered in the State of Maryland against . .
. Montez Brown in the amount of $13,178.48;
2. That the plaintiff is entitled to enforce
said judgment by execution against the
interest of any property owned by the
defendant in the State of North Carolina as of
November 21, 1995; and the plaintiff is
entitled to immediate execution on said
property to satisfy this Judgment for back
child support and for the . . . attorneys fees
. . . .;
. . . .
4. That [the attorney] is entitled to a
reasonable attorneys fee . . . in the amountof $2,500.
In the decretal portion, the trial court directed that:
[T]he judgment rendered against the Defendant
. . . in the State of Maryland for back child
support in the amount of $13,178.48 is hereby
given the full faith and credit of the laws of
the State of North Carolina and fully
enforceable in this State; that the plaintiff
is entitled to execute on any property which
the defendant . . . had an interest [in] as of
November 21st, 1995; that the plaintiff is
hereby allowed the sum of $2,500 as reasonable
attorneys fees . . . ; [and] that the
plaintiff is entitled to recover interest on
the above sums at the legal rate in the State
of North Carolina plus the costs of this
action from the defendant[.]
On 29 July 2004, plaintiff filed a motion for contempt. In
said motion, plaintiff alleged that, since the 21 August 1996
judgment, defendant had only paid $600 in back child support; that
defendant had assets and income from which to pay the judgment;
that he had taken steps to place his assets beyond the reach of
the judgment; that defendant's failure to pay had been wilful and
intentional; and that plaintiff should be awarded attorney fees
associated with her motion for contempt.
While the Maryland judgment provided for scheduled payments on
the arrearages, neither the 21 August 1996 judgment, nor any
subsequent order of the North Carolina trial court, did so. The
record reveals that, between the entry of the 1996 North Carolina
judgment and plaintiff's 29 July 2004 motion for contempt, there
was no North Carolina court activity in this matter. Defendantcontends that, during this period, he made some payments directly
to the State of Maryland pursuant to that state's ongoing
In its 14 July 2004 order on contempt which is the subject of
this appeal, the trial court found that, since the August 1996
judgment, defendant had paid $810.00 in child support arrearages;
was gainfully employed and had the financial capacity to satisfy
the judgment; that he had previously conveyed an interest in
property to another individual without consideration; that
defendant had willfully failed to pay the judgment; and that
plaintiff was entitled to an award of attorney fees. The trial
court concluded that defendant was in civil contempt of court and
that plaintiff was entitled an award of attorney fees, and decreed
that defendant be incarcerated until he purged himself of contempt
by paying the remaining balances due for child support arrearages,
interest and attorney fees.
On appeal, defendant contends the trial court was without
authority to hold him in contempt because neither the 1996 judgment
nor any subsequent orders of the North Carolina court required a
specific, unequivocal directive for him to pay child support on a
certain schedule and/or by certain dates. We agree.
Under N.C.G.S. § 1-302 (2003), if a judgment requires the
payment of money or the delivery of real or personal property itmay be enforced in those respects by execution[.] Thus, it has
long been the general rule that judgment fixes the amount due, and
execution _ not contempt proceedings _ issues if not paid.
Hildebrand v. Vanderbilt
, 147 N.C. 640, 642, 61 S.E. 620, 629
(1908). However, N.C.G.S. § 50-13.4(f) (2003) provides the
additional option of enforcing judgments for child support
arrearage by contempt proceedings, under specified conditions:
(8) . . .[P]ast due periodic payments may by
motion in the cause or by a separate action be
reduced to judgment which shall be a lien as
other judgments and may include provisions for
(9) An order for the periodic payments of
child support or a child support judgment that
provides for periodic payments is enforceable
by proceedings for civil contempt, and
disobedience may be punished by proceedings
for criminal contempt, as provided in
[N.C.G.S. §] Chapter 5A[.]
N.C.G.S. § 50-13.4(f)(8) and (9). Read together, these subsections
provide that, if
child support arrearages are reduced to a money
the judgment provides for periodic payments, the
judgment is enforceable by contempt proceedings.
The judgment entered in the instant case neither requires
defendant to make periodic payments in a specific amount, nor sets
any deadlines or ongoing monthly dates for certain payments on the
arrearages. Under the plain language of G.S. § 50-13.4(f)(8), the
order was, therefore, a judgment which shall be a lien as other
judgments, and not a judgment enforceable by contempt under G.S.§ 50-13.4(f)(9). Because subsections (f)(8) and (f)(9) of this
statute are more specific than the generalized contempt allowances
set forth in Chapter 5A of the North Carolina General Statutes, the
former must control.
Where an order reducing child support arrears to a money
judgment does not include a provision for periodic payments or
other deadline for payment, it is not enforceable by contempt.
Thus, in the instant case, the trial court did not have
jurisdiction to enter an order finding defendant in contempt:
Where jurisdiction is statutory and the
Legislature requires the Court to exercise its
jurisdiction in a certain manner . . . an act
of the Court beyond these limits is in excess
of its jurisdiction. . . . Where the court
acts in excess of its authority, [its
judgment] . . . is void . . . [and] may be
attacked whenever and wherever it is
Allred v. Tucci
, 85 N.C. App. 138, 143, 354 S.E.2d 291, 294-95
(1987) (internal quotation marks and citations omitted).
Because the civil judgment was not enforceable by contempt
proceedings, the 14 July 2004 contempt order on appeal must be
Judges HUNTER and McCULLOUGH concur.
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