An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-851

NORTH CAROLINA COURT OF APPEALS

Filed: 19 July 2005

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 The relevant facts were set out in a previous, unpublished decision from this Court on 4 January 2005, Adams v. Adams (COA04-279):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).

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