An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA04-840


Filed: 21 June 2005


v .                         Wake County
                            No. 02 CVD 4089

    Appeal by defendant from order entered 9 February 2004 by Judge Paul G. Gessner in Wake County District Court. Heard in the Court of Appeals 8 March 2005.

    No brief filed for plaintiff-appellee.

    Marshall and DuBree, by William Marshall and Brady, Nordgren, Klym & Morton, PLLC, by Travis K. Morton, for defendant- appellant.

    TYSON, Judge.

    Scott M. Worley (“defendant”) appeals from an order establishing the amount of his child support obligation, holding him in contempt for non-payment, and awarding attorney's fees to Ann N. Worley (“plaintiff”). We affirm.

I. Background
    Plaintiff and defendant were married on 1 July 1989 and divorced on 29 August 2000. Two children were born of the marriage, a son in 1994 and a daughter in 1995. The parties were California residents at the time of their divorce. A marital settlement agreement was entered on 27 November 2000 by the California Superior Court, which established the parties' custodyrights and support obligations. The 27 November 2000 California order, among other things: (1) awarded joint legal and physical custody to plaintiff and defendant and ordered the children's primary residence to be with plaintiff; (2) found defendant to have an approximate gross monthly income of $20,833.00, a net monthly income of $13,766.00; and (3) ordered defendant to pay $2,650.00 per month in child support.
    Plaintiff received the California Superior Court's permission to move with the children to Wake County, North Carolina in November 2000. Defendant also moved to North Carolina to remain close to his children and to exercise his joint custody rights. Pursuant to N.C. Gen. Stat. § 52C, defendant registered the 27 November 2000 California order in Wake County.
    On 4 April 2002, defendant moved the Wake County District Court to modify his child support obligation. Defendant's motion was based upon changed circumstances resulting from termination of his employment with Toshiba on 1 November 2001, which occurred after his move to North Carolina, and the expiration of Toshiba's severance package on 31 May 2002.
    Following a hearing on 10 October 2002, the trial court entered an order which: (1) determined pursuant to UIFSA that North Carolina had obtained continuing, exclusive jurisdiction of the child support obligation; (2) calculated defendant was earning $100,000.00 annually; (3) found a substantial change of circumstances; and (4) modified and reduced defendant's child support obligation from its original amount of $2,650.00 in the 27November 2000 California order to $1,633.00 per month, effective 1 May 2002 and each month thereafter.
    Less than one week later, on 16 October 2002, defendant filed several motions, including a motion to reconsider and amend the trial court's order issued six days earlier and moved to further modify the 10 October 2002 order on the basis of changed circumstances. Plaintiff responded on 19 November 2002 by asserting defendant's arrearage in child support was $4,631.07 and he should be held in contempt for his “willful failure to comply” with the trial court's 10 October 2002 order. Plaintiff also sought an award of attorney's fees for the action. The trial court issued a show cause order the same day and set a hearing for 17 January 2003.
    On 20 December 2002, the trial court heard defendant's 16 October 2002 motions to reconsider and amend the 10 October 2002 order. Defendant argued the trial court miscalculated his child support payments. According to the child support worksheet attached to the 10 October 2002 order, the appropriate amount of child support defendant owed was $1,076.00 per month but the trial court had ordered $1,633.00 per month. No additional findings supported departure from the guidelines. The trial court amended its 10 October 2002 order and reduced defendant's child support obligation from $1,633.00 to $1,076.00 per month, effective 1 May 2002.
    On 14 January 2003, the remainder of defendant's motions and plaintiff's show cause motion regarding contempt and for attorney'sfees were continued due to a scheduled alimony hearing in California Superior Court the next day.
    On 18 August 2003, the parties' motions were heard. In support of his motion to modify the child support obligation, defendant testified he was unemployed. Defendant stated he tried to start his own business, but the effort failed. He also asserted he was working with various executive employment search firms and actively seeking employment. Defendant concluded his income solely consisted of unemployment benefits. In support of her motions, plaintiff showed the total arrearage of defendant and asserted his failure to pay was willful.
    On 9 February 2004, the trial court entered an order reducing defendant's child support payments from $1,076.00 per month to $644.89 per month. The order also found defendant in contempt for willful failure to pay in accordance with previous child support orders. Defendant was ordered to pay the arrearage of $8,082.21 in equal monthly installments of $55.11 and that any noncompliance would result in thirty days in jail. The trial court also ordered defendant to pay reasonable attorney's fees to plaintiff in the amount of $1,500.00. From this order, defendant appeals.
II. Issues
    Defendant asserts the trial court erred by: (1) improperly calculating his child support obligation in its 9 February 2004 order; (2) taking judicial notice of and applying res judicata and collateral estoppel to the findings contained in the 22 May 2003 California order; and (3) finding defendant in contempt for willfulfailure to pay child support and awarding attorney's fees to plaintiff.
    Defendant also argues the trial court erred by imputing income in orders entered 10 October 2002, 19 November 2002, and 31 January 2003. Defendant appeals from the 9 February 2004 order only. We will not consider any arguments regarding orders of the trial court not referenced in the notice of appeal. See N.C.R. App. P. 3 (2004); N.C.R. App. P. 10 (2004).
III. Calculating Child Support
    Defendant argues the trial court erred in its calculation of defendant's support obligation. Defendant failed to except to any of the trial court's findings of fact in the 9 February 2004 order. Where an appellant does not except to the trial court's findings of fact, they are presumed to be supported by competent evidence and are binding on appeal. In re Wilkerson, 57 N.C. App. 63, 65, 291 S.E.2d 182, 183 (1982).
    “Computing the amount of child support is normally an exercise of sound judicial discretion, requiring the judge to review all of the evidence before him. Absent a clear abuse of discretion, a judge's determination of what is a proper amount of support will not be disturbed on appeal.” Plott v. Plott, 313 N.C. 63, 69, 326 S.E.2d 863, 867-68 (1985) (quoting Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976)). Defendant has failed to show a “clear abuse of discretion” in the trial court's determination of his child support obligation. Id. The trial court did not abuse itsdiscretion in its unchallenged findings of fact in calculating his child support obligation. This assignment of error is overruled.
    IV. Incorporating Fact from California Order
    We find no merit in defendant's argument that the trial court erred in incorporating findings of fact from a California order. The 9 February 2004 order incorporates several findings regarding defendant's income that were adjudicated in California between the two parties on a motion to modify the parties' spousal support obligations. Defendant presumes the use of “impute” in the California order is of legal consequence and not a synonym for “calculate.” Presuming, without deciding, it was error for the trial court to refer to or incorporate the California superior court's findings through the principals of res judicata and collateral estoppel as applicable to issues before the Court here, we discern no abuse of discretion. Defendant failed to except to any findings, including an independent finding by the trial court that his income was $10,500.00 per month. This finding of defendant's income was substantially lower than the previously calculated income that warranted a downward modification in child support payments. Defendant has not argued the trial court inappropriately abrogated its role as independent fact finder to the California superior court.
    The gravamen of defendant's appeal on this issue is the $644.89 monthly child support remains above the guidelines for defendant's actual income. Defendant argues previous orders, which are no longer controlling, errantly imputed income to him and thetrial court's 9 February 2004 order relies on monies that have dissipated since the hearing. Only the 9 February 2004 order is before us on appeal. To the extent defendant's condition changed substantially since the entry of the previous orders, the proper course of action is not to appeal, but to file another motion to modify. See N.C. Gen. Stat. § 50-13.7(a) (2003) (“support of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party . . . .”). Defendant is obviously aware of this procedure by his previous motions to modify or reconsider. This assignment of error is dismissed.
V. Contempt for Failure to Pay Support
    N.C. Gen. Stat. § 5A-21(a)(2a) (2003) states, “[f]ailure to comply with an order of a court is a continuing civil contempt as long as . . . [t]he noncompliance by the person to whom the order is directed is willful . . . .”
    This Court has held “'[a] failure to obey an order of a court cannot be punished by contempt proceedings unless the disobedience is willful, which imports knowledge and a stubborn resistance.'” Cox v. Cox, 10 N.C. App. 476, 477, 179 S.E.2d 194, 195 (1971) (quoting Lamm v. Lamm, 229 N.C. 248, 49 S.E.2d 403 (1948)). “To support a finding of willfulness [in failing to comply with a support order], there must be evidence to establish as an affirmative fact that defendant possessed the means to comply with the order . . . .” Teachey v. Teachey, 46 N.C. App. 332, 334, 264S.E.2d 786, 787 (1980) (quoting Lamm, 229 N.C. at 250, 49 S.E.2d at 404).
    Defendant was ordered to pay $644.89 per month in child support effective 1 January 2004. In the months of December 2002, January, March, April, September, October, November, and December 2003, defendant paid nothing. In the months defendant did partially pay, his payments ranged from $100.00 to $459.50. The trial court made affirmative findings of defendant's ability to pay the support and that he willfully failed to pay any support for seven months in 2003. As defendant failed to take exception to this finding, it is binding and conclusive on appeal. Hemric v. Groce, ___ N.C. App. ___, ___, 609 S.E.2d 276, 281 (2005). A trial court can hold a party in contempt for non-payment of child support when it finds that the party has the ability to pay the support and willfully refuses to pay it. Teachey, 46 N.C. App. at 334, 264 S.E.2d at 787. We hold that the trial court did not err in finding defendant in contempt for his failure to pay his child support obligation or in ordering him to pay arrearage of $55.11 per month in addition to his current monthly obligation of $644.89, for a total monthly obligation of $700.00 per month.
VI. Attorney's Fees
    After finding defendant in contempt, the trial court awarded attorney's fees to plaintiff. Our Supreme Court addressed this issue in Hudson v. Hudson:
        In a custody suit or a custody and support suit, the trial judge, pursuant to the first sentence in G.S. 50-13.6, has the discretion to award attorney's fees to an interestedparty when that party is (1) acting in good faith and (2) has insufficient means to defray the expense of the suit. The facts required by the statute must be alleged and proved to support an order for attorney's fees. Whether these statutory requirements have been met is a question of law, reviewable on appeal. When the statutory requirements have been met, the amount of attorney's fees to be awarded rests within the sound discretion of the trial judge and is reviewable on appeal only for abuse of discretion.

299 N.C. 465, 472, 263 S.E.2d 719, 723-24 (1980) (internal citations omitted). Our Supreme Court also set forth additional requirements when the action is for child support.

        When the action is solely one for support, all of the requirements set forth in part III A above apply plus the second sentence in G.S. 50-13.6 requires that there be an additional finding of 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 or proceeding.” A finding of fact supported by competent evidence must be made on this issue in addition to meeting the requirements of “good faith” and “insufficient means” before attorney's fees may be awarded in a support suit. This issue is a question of law, reviewable on appeal.

Id. at 472-73, 263 S.E.2d at 724 (internal citations omitted). Defendant did not challenge the trial court's finding that plaintiff had “insufficient funds to defray the costs of this litigation and that the defendant's non-payment of child support and finding of contempt regarding the same[,] entitles the plaintiff to receive attorney's fees from the defendant.” The trial court did not abuse its discretion in awarding attorney's fees to plaintiff.

VII. Conclusion
    The trial court properly determined defendant's obligation for child support and significantly reduced his support obligation upon his showing of changed circumstances. For several months, defendant paid nothing toward his children's support even following the court ordered reductions. The trial court properly found defendant's refusal willful and in contempt. The trial court did not abuse its discretion by awarding attorney's fees to plaintiff. The order appealed from is affirmed.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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