MARY STEPHENS ADAMS,
Plaintiff-Appellee,
v
.
Forsyth County
No. 00CVD7602
TRENT CARHART ADAMS,
Defendant-Appellant.
Appeal by defendant from order entered 17 February 2004 by
Judge Chester C. Davis in District Court, Forsyth County. Heard in
the Court of Appeals 2 March 2005.
Wyatt Early Harris Wheeler, LLP, by A. Doyle Early Jr., for
plaintiff-appellee.
Michelle D. Reingold; and Gatto Law Offices, PA, by Joseph J.
Gatto, for defendant-appellant.
McGEE, Judge.
This appeal by Trent Carhart Adams (defendant) to an order of
civil contempt is the latest in a series of causes of action
brought between defendant and his former spouse, Mary Stephens
Adams (plaintiff). The relevant facts were set out in a previous,
unpublished decision from this Court on 4 January 2005, Adams v.
Adams (COA04-279):
Plaintiff and defendant were married on
29 October 1994. The parties adopted one
child in 1993 and another child was born to
the parties in 1996. . . . Plaintiff and
defendant were divorced on 4 March 2002.
The trial court entered an equitable
distribution judgment and order in which all
the marital debt, totaling $637,641.80, wasdistributed to defendant. Plaintiff was
awarded a distributive award in the amount of
$358,719.08. Plaintiff was ordered to execute
a quitclaim deed to the former marital home to
defendant. Defendant was ordered to then
immediately place the home on the market and
to pay plaintiff the net proceeds from the
sale. The balance of the distributive award
was to be paid in monthly installments
beginning on 1 May 2006 and in an amount of no
less than $2,000, excluding interest.
Interest on the distributive award was set at
eight percent, and interest payments were due
monthly, beginning 1 June 2003.
Instead of selling the former marital
home to a third party, defendant purchased the
marital home for himself and his new wife.
The marital home was appraised at $990,000.
Defendant took out a first mortgage of
$643,500, and a second mortgage of $215,000,
which was to pay down the distributive award
at a lower interest rate. Prior to purchasing
the former marital home, defendant was living
in a home he owned, and for which his employer
paid the mortgage and utility expenses. In
addition, defendant and his new wife owned two
other houses.
. . . . In an order entered 4 November 2003,
defendant was ordered to pay $1,483 per month
in child support; $3,578 per month in alimony,
for thirty-six months; $3,881.46 to purge
himself of civil contempt for failure to
comply with a previous interim support order;
$4,000 in reimbursement to plaintiff for the
attorney's fees of C.R. "Skip" Long, Jr. (Mr.
Long); $7,500 in reimbursement to plaintiff
for the attorney's fees of A. Doyle Early, Jr.
(Mr. Early); and $7,520 in child support
arrearage.
From July 2003 through January 2004, defendant paid only
portions of the payments owed each month. As of January 2004,
defendant was in arrearage in the amount of $30,809.57, which
included the prior contempt fine ($3,881.46), seven months of child
support and alimony underpayments ($22,928.11), and attorney's fees($4,000). The trial court held defendant in civil contempt for
failure to pay these amounts in an order dated 13 February 2004 and
amended 17 February 2004. Defendant appeals from the order of
civil contempt.
Civil contempt in North Carolina is governed by N.C. Gen.
Stat. § 5A-21 (2003):
(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.
Defendant argues the trial court erred by finding that defendant
had the ability to comply with the alimony order and defendant's
nonpayment was therefore a willful refusal to comply. We disagree.
Defendant's arguments are based on nine findings of fact made
by the trial court. This Court affords great deference to a trial
court's findings of fact. McAulliffe v. Wilson, 41 N.C. App. 117,
121, 254 S.E.2d 547, 550 (1979). Our review of these findings of
fact is limited to
"whether there is competent evidence to
support the findings of fact and whether the
findings support the conclusions of law."Findings of fact made by the judge in contempt
proceedings are conclusive on appeal when
supported by any competent evidence and are
reviewable only for the purpose of passing
upon their sufficiency to warrant the
judgment.
Hartsell v. Hartsell, 99 N.C. App. 380, 385, 393 S.E.2d 570, 573,
aff'd per curiam, 328 N.C. 729, 397 S.E.2d 218 (1990) (citations
omitted) (quoting Adkins v. Adkins, 82 N.C. App. 289, 292, 346
S.E.2d 220, 222 (1986)); see also
Sloan v. Sloan, 151 N.C. App.
399, 408,
566 S.E.2d 97, 103 (
2002) (
"
In reviewing a trial court's
contempt order, the appellate court is limited to determining
whether there is competent evidence to support the trial court's
findings of fact and whether the findings of fact support the
conclusions of law.
"
);
Nix v. Nix, 80 N.C. App. 110, 112, 341
S.E.2d 116, 118 (1986) ("[W]hen an appellant contends that the
findings of fact are not supported by the evidence, we look to see
whether the findings are supported by any competent evidence in the
record."). Furthermore, findings of fact to which a party does not
except are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97,
408 S.E.2d 729, 731 (1991).
Defendant challenges the following findings of fact:
38. In July, 2003 . . . defendant had
sufficient funds to comply with the court
order.
. . . .
42. In August, 2003, . . . defendant had
access to sufficient funds to comply with
the court order.
. . . .
48. In September, 2003 defendant had
sufficient funds to comply with the court
order.
. . . .
53. Defendant and his new wife allocate
living expenses 50% to each of them,
although three (3) people live in the
house, the third being her minor child by
a prior marriage.
. . . .
56. In October, 2003 . . . defendant had or
could have had $3,437.52 ($3,065.58 plus
$371.94 over payment on Chase bill) for
his monthly alimony payment. This means
. . . defendant was or could have been
short in his alimony only $123.93
($3,578.00 minus $3,437.52 minus $16.55
paid equal $123.93).
57. . . . [D]efendant's habit was to pay each
of three credit card accounts in full
each month. In October, 2003 defendant
paid $1,025.50. (Defendant's Exhibit #3).
On these three credit card accounts he
could have made adjustments and paid the
alimony in full.
. . . .
60. In November, 2003 defendant paid
$6,288.41 (Defendant's Exhibit #4) living
expenses and $11.59 alimony, leaving
$3,700.00 available for a further alimony
payment. As defendant over paid the Chase
bill by $349.71 (Defendant's Exhibit #4),
defendant could have paid $4,049.71
towards the unpaid amount of $4,065.41,
leaving only $15.70 unpaid for November,
2003.
. . . .
64. Defendant had available to pay December,
2003 support $3,520.00 ($10,000.00 minus
$6,480.00) plus $180.00, a loan from his
wife (Defendant's Exhibit #5), . . . fora total of $4,074.37, or he could have
been short $2.63.
. . . .
67. In January, 2004 defendant paid child
support of $1,483.00 (Defendant's Exhibit
#6), leaving $4,078.00 unpaid. With the
Chase over payment of $352.08 ($1,078.00
minus $725.92 equals $352.08 -
Defendant's Exhibit 6) . . . defendant
could have paid all but $25.92 of his
January, 2004 support payments.
We first note that defendant has failed to present an argument
in support of his assignments of error to findings of fact numbers
42 and 53. Therefore, we deem these assignments of error to be
abandoned. N.C.R. App. P. 28(b)(6). We find that competent
evidence supports the remaining findings of fact. We first outline
the findings of fact at issue and then review the trial court's
analysis of those findings.
Finding of Fact Number 38. We find that finding of fact
number 38 is supported by the evidence reported in findings of fact
numbers 35, 36, and 37, to which defendant does not except. These
findings of fact show that in July 2003: (1) defendant and his new
wife spent $75,224.00 on renovations and furniture for their home;
(2) defendant was ordered to pay $5,061.00 in child support and
alimony but paid only $1,300.00; (3) defendant drew $8,000.00 in
salary from his employer (AEA); (4) defendant received $2,000.00 in
free rent; (5) defendant paid his attorneys $4,108.42; and (6)
defendant had a balance in his joint checking account of $2,974.33.
These dollar figures also appear in Plaintiff's Exhibit 5 (AEA
ledger), Plaintiff's Exhibit 14 (bills for various renovations) andDefendant's Exhibit 1 (banking records and monthly bills for
defendant), and are accurately reported by the trial court.
Finding of Fact Number 42. Finding of fact number 39, to
which defendant does not except, establishes that defendant was
ordered to pay a total of $8,061.00 in alimony, child support, and
arrearage for August 2003, and that defendant paid $1,664.00,
leaving a shortfall of $6,397.00. Finding of fact number 41, to
which defendant does not except, states that near the end of August
2003, defendant's joint checking account, which held a balance of
$1,408.65, was closed. In addition, Defendant's Exhibit 1 (banking
records and monthly bills for defendant) indicates that, during
August 2003, defendant and his wife deposited over $17,000.00 in
their joint checking account.
Finding of Fact Number 48. Findings of fact numbers 43
through 47, to which defendant does not except, establish the
following: (1) defendant was ordered to pay a total of $5,561.00 in
alimony, child support, and arrearage; (2) defendant paid a total
of $1,549.75, leaving a shortfall of $4,011.25; (3) defendant drew
$10,000.00 from AEA in September 2003; (4) defendant sold stock
during September for a net of $16,239.36; (5) defendant paid
various attorney and expert witness fees totaling $14,317.39 under
the Equitable Distribution Order; and (6) defendant put $3,700.00
of his AEA draw into a tax escrow account, and left it there.
These dollar figures are further supported by Plaintiff's Exhibit
2 (payment detail for alimony, post separation support, child
support and attorney's fees) and Defendant's Exhibit 2 (bankingrecords and monthly bills for defendant), and are accurately
reported by the trial court.
Findings of Fact Numbers 56 and 57. Finding of fact number 49
states that defendant was ordered to pay $5,561.00 in alimony,
child support, and arrearage. Finding of fact number 50 states
that defendant paid $1,500.55, leaving a shortfall of $4,060.45.
Defendant does not assign error to findings of fact numbers 49 and
50. These dollar figures come from Plaintiff's Exhibit 5 (AEA
ledger) and Defendant's Exhibit 3 (bank records and monthly bills
for defendant), and are accurately reported by the trial court.
Finding of Fact Number 60. Findings of fact numbers 58 and
59, to which defendant does not except, state: (1) defendant owed
$5,561.00 in child support and alimony; (2) defendant's AEA draw
for November 2003 was $10,000.00; and (3) defendant paid child
support and alimony totaling $1,495.59, leaving a $4,065.41
shortfall. These dollar figures come from Plaintiff's Exhibit 2
(payment detail for alimony, post separation support, child support
and attorney's fees), Plaintiff's Exhibit 5 (AEA ledger) and
Defendant's Exhibit 4 (bank records and monthly bills for
defendant), and are accurately reported by the trial court.
Finding of Fact Number 64. Findings of fact numbers 62 and
63, which defendant does not assign as error, state that: (1)
defendant owed $5,561.00 in child support and alimony for December
2003; (2) defendant drew $10,000.00 from AEA; and (3) defendant
spent a total of $6,480.00 during December, including $1,484.00 in
child support, leaving a shortfall of $4,077.00. These dollarfigures come from Plaintiff's Exhibit 2 (payment detail for
alimony, post separation support, child support and attorney's
fees), Plaintiff's Exhibit 5 (AEA ledger) and Defendant's Exhibit
5 (bank records and monthly bills for defendant), and are
accurately reported by the trial court.
Finding of Fact Number 67. Findings of fact numbers 65 and
66, to which defendant does not except, state that: (1) defendant
owed $5,561.00 in child support and alimony for January 2004; (2)
defendant drew $10,000.00 from AEA; and (3) defendant spent
$6,343.75, leaving $3,656.25 of the January monthly draw unspent.
These dollar figures come from Plaintiff's Exhibit 2 (payment
detail for alimony, post separation support, child support and
attorney's fees), Plaintiff's Exhibit 5 (AEA ledger) and
Defendant's Exhibit 6 (bank records and monthly bills for
defendant), and are accurately reported by the trial court.
We find that the trial court's findings of fact are supported
by competent evidence in the record and overrule these assignments
of error.
Defendant next argues that the trial court's calculations in
these findings of fact are either incorrect or show that defendant
was financially unable to comply with the trial court's 4 November
2003 order, and thus his nonpayment cannot be considered "willful"
per N.C.G.S. § 5A-21. We disagree.
Defendant's arguments are based on the premise that, in making
its findings of fact in calculating defendant's ability to pay, the
trial court could only take into account the salary defendant drewfrom AEA each month. Defendant argues therefore that if his
monthly salary is less than the exact monthly amount defendant
owes, then defendant is incapable of paying these debts. We find
this premise faulty.
This Court has held repeatedly that for a trial court to find
that a defendant's noncompliance is willful, the trial court need
not exactly specify and compute to the dollar how a defendant will
be able to comply with its order:
In order to support a finding of wilfulness in
a civil contempt proceeding there must be
evidence to establish as an affirmative fact
that defendant possesses the current ability
to comply with the order. Although specific
findings as to the contemnor's present means
are preferable, this Court has held that a
general finding of present ability to comply
is sufficient basis for the conclusion of
wilfulness necessary to support a judgment of
civil contempt.
Hartsell, 99 N.C. App. at 385, 393 S.E.2d at 574 (citations
omitted); see also Shumaker v. Shumaker, 137 N.C. App. 72, 76, 527
S.E.2d 55, 58 (2000) ("[A]lthough explicit findings are preferable,
they are not absolutely essential where the findings otherwise
indicate that a contempt order is warranted. An order is
sufficient if it is implicit in the trial court's findings that the
delinquent obligor both possessed the means to comply and willfully
refused to do so.");
Plott v. Plott, 74 N.C. App. 82, 85, 327
S.E.2d 273, 275 (1985) ("While explicit findings are always
preferable, they are not absolutely essential where the findings
otherwise clearly indicate that a contempt order is warranted.")
.
The evidence not only shows specific sources of income fordefendant but also shows that defendant has a number of avenues by
which to obtain funds. The evidence reveals that defendant's
regular monthly expenditures are far higher than necessary due to
defendant's decision to live at an expense level that leaves no
funds for alimony payments. In addition, finding of fact number
12, to which defendant does not except, states that defendant's
benefits from AEA total $2,430.26 per month, in addition to his
monthly draw of $8,000.00 to $10,000.00. Finding of fact number 80
states that defendant had $14,000.00 in a bank account and
$28,000.00 available in cash advances from a credit card. Even if
the trial court's findings of fact do not explain where defendant
could find each dollar of the payments owed, its findings of fact
that defendant had the general means to comply with the order
satisfy the statutory requirements.
Defendant further makes specific claims about particular
months covered by the contempt order. For the month of July 2003,
defendant makes an argument based on the trial court's having
previously found in its 4 November 2003 order that defendant's
expenses were reasonable. However, in our Court's previous opinion
on this issue, we held that in the 4 November 2003 order, the trial
court in fact found defendant's expenses to be unreasonable. Adams
v. Adams, (COA04-279) (4 January 2005). For the month of September
2003, defendant argues that his payment of attorney's and expert
witness fees made him unable to make the payments required by the
4 November 2003 order. However, it is clear from the financial
records that the trial court has accurately calculated thatdefendant's income for this month alone ($26,239.36) exceeded the
total of his court-ordered obligations, including the payment for
attorney's and expert witness fees ($19,878.39). Finally, for the
months of October and November 2003, defendant argues that he had
to pay his credit card bill in full because the debt covered part
of the earlier equitable distribution order. However, as discussed
above, defendant had numerous other avenues by which to obtain
funds to cover this debt. These arguments are without merit.
As in defendant's previous appeal, "defendant's argument is
merely an 'attempt to reargue the evidence in the hope that [this
Court] will substitute itself for the trial court and accept
defendant's version of the . . . story.'" Adams v. Adams, (COA04-
279) (Jan. 4, 2005) (quoting Beall v. Beall, 290 N.C. 669, 672,
228 S.E.2d 407, 409 (1976)). We find that the trial court's
findings of fact that defendant had the financial resources to
comply with the trial court order in each of the months between
July 2003 and January 2004 are based on competent evidence. From
those findings of fact, we therefore affirm the trial court's
conclusions that defendant had the ability to comply with the 4
November 2003 order and his nonpayment is willful, in violation of
N.C.G.S. § 5A-21.
We finally note that defendant, in his brief, originally
argued he could not have been in willful noncompliance with the
trial court order because the underlying alimony and child support
order has always been beyond his ability to pay from the time it
was entered. Defendant subsequently withdrew that argument due toour decision in his previous appeal. See Adams v. Adams, (COA04-
279 (4 January 2005). Thus, we do not consider it herein.
Affirmed.
Judges TYSON and GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***