JIMMY S. GARNER,
Plaintiff,
v
.
Rowan County
No. 99 CVD 177
TAMMY PAGE GARNER,
Defendant.
W. L. Stafford, Jr., for plaintiff-appellant.
No brief filed for defendant-appellee.
HUDSON, Judge.
This case arises from a series of orders entered in connection
with the divorce and equitable distribution of the property of
plaintiff Jimmy S. Garner and defendant Tammy Page Garner. On 27
June 2002, plaintiff moved for a show cause order, alleging that
defendant had failed to allow him to obtain his personal property,
failed to make the required payments on her obligation, and failed
to cooperate in resolving the marital debt and in liquidating the
farm equipment kept at their home. On 12 November 2003, the
district court found defendant in contempt and ordered that she be
held thirty days in jail, but released her on condition that she
allow plaintiff to inventory the farm equipment, make specifiedpayments to defendant, and cooperate in retiring the marital debt.
Plaintiff appeals.
Plaintiff originally sought custody of the parties' minor
child, equitable distribution of marital property, and an order
enjoining both parties from disposing of marital property.
Defendant counterclaimed for custody and support of the minor
child, equitable distribution, and alimony. On 24 May 1999, the
court entered a consent order nunc pro tunc for 18 March 1999
providing for custody and support of the minor child and equitable
distribution. The findings included:
19. That Plaintiff shall have sole ownership
of all of his personal items and effects,
including clothing and jewelry, and the
following items: two (2) rental properties,
6.7 acre tract in Denton, North Carolina, 1986
truck, 1978 truck, commercial planer and one
horse saddle belonging to Plaintiff's father,
checking and savings account in the
Plaintiff's name, retirement plan, all
property owned by the Plaintiff prior to
marriage, any other items of personal property
belonging to the Plaintiff and business
accounts as of the parties' date of
separation.
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22. That the parties shall work together to
sell common farm equipment and apply the
proceeds to marital debt (Prime Line and
overdraft on business and regular accounts).
23. That as a further settlement of marital
property, the Defendant shall pay the
Plaintiff a sum of ten thousand and no one
hundredths ($10,000.00) dollars to be taken
for his monthly child support payment at the
rate of three hundred and no one hundredths
($300.00) dollars per month. That the
Defendant shall pay this amount directly by
check to the Plaintiff each month beginning
April 15, 1999.
On 8 October 1999, plaintiff brought a show cause motion
alleging defendant had refused to allow plaintiff to obtain his
personal property, failed to pay him the sums ordered, and refused
to cooperate in the sale of equipment to satisfy the marital debt.
On 4 February 2000, the court entered an order directing that
defendant “shall bring all of the defendant's personal property to
the plaintiff's residence,” “shall sell all farm equipment” to
satisfy the marital debt, and that defendant “shall” make two
payments toward her obligation by a specified date. On 5 February
2001, the court entered an order nunc pro tunc for 26 October 2000
incorporating agreements of the parties and directing defendant to
make all past due payments on her obligation by 1 December 2000,
and noting that the parties agree to use all possible means to
resolve liquidation of the farm equipment business. Plaintiff's
second show cause motion and the appealed-from order followed.
On 27 June 2002, plaintiff brought a second show cause motion
alleging that defendant had failed to allow him to obtain his
personal property, failed to make the required payments on her
obligation, and failed to cooperate in liquidating the farm
equipment and resolving the marital debt. On 12 November 2003, the
court found defendant in contempt of court, and ordered her held in
jail for thirty days, but released her on condition that she allow
plaintiff to inventory the farm equipment, make specified payments
to defendant, and cooperate in retiring the marital debt.
Plaintiff appeals. He first argues that the court erred in
dismissing count two of his show cause motion because itmisapprehended its authority to modify a final judgment of
equitable distribution. We disagree.
Plaintiff contends that no court ever assigned or apportioned
the marital debt at issue here to either party. Rather, he argues
the court merely mentioned the debt generally with a statement that
the parties must cooperate to sell the equipment in order to repay
the debt. Plaintiff moved for modification of the final judgment
of equitable distribution pursuant to Rule 60 (b)(6), asking that
the court apportion the marital debt between the parties.
Plaintiff points out in his brief that defendant has “consistently
interfered with or otherwise prevented liquidation of” the
specified property in order to retire the marital debt. Rule 60
(b)(6) provides in part as follows:
(b) On motion and upon such terms as are just,
the court may relieve a party or his legal
representative from a final judgment, order,
or proceeding for the following reasons:
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(6) Any other reason justifying relief from
the operation of the judgment.
N.C. Gen. Stat. § 1A-1, Rule 60 (b)(6) (2001). A court ruling on
a Rule 60(b) motion is reviewable only for an abuse of discretion.
Harris v. Harris, __ N.C. App. __, 591 S.E.2d 560 (2004). An abuse
of discretion occurs when the challenged actions are manifestly
unsupported by reason. Clark v. Clark, 301 N.C. 123, 129, 271
S.E.2d 58, 63 (1980).
“[A] court cannot set aside a judgment pursuant to this rule
without a showing (1) that extraordinary circumstances exist and(2) that justice demands relief.” Thacker v. Thacker, 107 N.C.
App. 479, 481-82, 420 S.E.2d 479, 480, disc. review denied, 332
N.C. 672, 424 S.E.2d 407 (1992) (internal citations omitted). In
Lee v. Lee, a “defendant alleged that the economic downturn in the
stock market provided extraordinary circumstances sufficient to
invoke an equitable remedy under Rule 60(b).” Lee v. Lee, __ N.C.
App. __, __, 605 S.E.2d 222, 227 (2004). However, in holding that
there was no abuse of discretion by the trial court in its denial
of defendant's Rule 60(b) motion, this Court noted that “change in
the value of the stock market over the course of five years does
not amount to an extraordinary or even unforseeable circumstance.”
Id. Likewise, the fact that one party here has failed to comply
with part of an equitable distribution order does not amount to an
extraordinary or unforseeable circumstance. Because the
extraordinary circumstances needed to support setting aside a
judgment pursuant to Rule 60 (b)(6) are not present here, we
conclude that the court did not abuse its discretion in dismissing
count two of plaintiff's show cause motion.
Plaintiff next argues that the court erred in failing to enter
judgment against defendant for one-half the value of the farm
equipment defendant refused to turn over pursuant to the prior
order. We disagree.
Plaintiff's brief contends that “[b]ecause of Defendant's
continuing obstruction and disregard of the prior orders of the
court, Plaintiff was suffering a wrong without an effective
remedy.” Plaintiff further asserts that the only effective remedyfor him is to reduce his claim to a distributive award for one-half
the value of the farm equipment. However, as a condition of
release from confinement for contempt, the court required defendant
to allow plaintiff to inventory the farm equipment, and to comply
with previous orders regarding retirement of the marital debt.
Plaintiff cites no case holding that a court must enter judgment
against defendant for one-half the value of the farm equipment in
the circumstances presented here, and we have found none. The
court's finding that defendant is in contempt for failing to comply
with prior orders pursuant to N.C. Gen. Stat. § 5A-21 (1999) and
setting the conditions of release therefrom provide an appropriate,
if not instantaneous, remedy for plaintiff.
Plaintiff also argues that the court erred in failing to
require payment of one-half the value of the farm equipment as a
condition of her release from confinement. We disagree.
Here, the court made the required findings to support its
conclusion that defendant was in contempt, and ordered her held for
thirty days in the custody of the sheriff of Rowan County, but
provided for her release upon various conditions. Plaintiff
contends that the court erred in not requiring defendant to pay
one-half the value of the farm equipment as a condition of release
“on the ground that if defendant had the current ability to pay
$250.00 monthly on the $3,700.00 arrearage, then Plaintiff also had
the ability to make monthly payments on the value of the
inventory.” A party found in civil contempt for failing to comply
with a court order “may be imprisoned as long as the civil contemptcontinues,” subject to certain limitations. N.C. Gen. Stat. §
5A-21 (b) (1999). Plaintiff cites no case holding that a trial
court, having found a party in contempt for non-compliance with an
equitable distribution order, must require as a condition of
release the specific payment sought by plaintiff, and we have found
none. The court here properly exercised its discretion in setting
the terms of defendant's release.
Plaintiff next assigns error to the court's failure to award
attorney's fees to plaintiff where defendant was in contempt and
the fees were due to plaintiff as a matter of law. We disagree.
Though the Equitable Distribution Act does not provide for
recovery of attorney fees, the court may order a party in contempt
of an equitable distribution order to pay attorney fees as a
condition of purging herself of contempt. Conrad v. Conrad, 82
N.C. App. 758, 760, 348 S.E.2d 349, 349-50 (1986). There is no
requirement that a court make such an award, however, and we see no
abuse of discretion in the court's decision not to include such an
order here.
Affirmed.
Judges MARTIN and JACKSON concur.
Report per Rule 30(e).
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