An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 21 June 2005
ANN N. WORLEY,
No. 02 CVD 4089
SCOTT M. WORLEY,
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-
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.
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
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
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.
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
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
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
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.
these statutory requirements have been met is
a question of law, reviewable on appeal.
the statutory requirements have been met, the
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
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.
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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