An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1446
                                          &nb sp; 
                                          &nb sp; 
Filed: 16 August 2005


         v.                        Forsyth County
                                No. 98 CVD 3181

    Appeal by plaintiff from order entered 22 July 2004 by Judge Laurie L. Hutchins in Forsyth County District Court. Heard in the Court of Appeals 15 August 2005.

    Elliot, Pishko, Morgan, P.A., by David C. Pishko, for plaintiff-appellant.

    David B. Hough for defendant-appellee.

    LEVINSON, Judge.

    Judith K. Dixon (plaintiff) and Chester Dixon (defendant) were married in November of 1970 and separated in August of 1994. The parties executed a written Separation Agreement and Property Settlement (Separation Agreement) in December of 1994 regarding child support for the parties' two minor children, visitation and alimony. The Separation Agreement specifically provided that defendant would pay plaintiff $400.00 in alimony per month until plaintiff dies or remarries. In July of 1998, the trial court entered a Divorce Judgment, which incorporated the terms of the Separation Agreement.    On or about 2 December 2003, plaintiff filed a verified motion in the cause for contempt seeking to enforce the alimony payments required by the 1998 Judgment. In her amended motion plaintiff alleged that defendant had “never paid any of the alimony payments” and defendant had accumulated an alimony arrearage in excess of $40,000.00 since the execution of the separation agreement. It is unclear from the record whether the trial court itself issued a show cause order.
    The trial court held a hearing on plaintiff's contempt motion in May of 2004. Defendant presented evidence regarding his finances. On 22 July 2004, the trial court entered an order which included the following finding of fact:
        7. The Defendant does not have the present means to comply with the alimony provisions in the incorporated in the [sic] Judgment of this Court for the following reasons, among others:

        a. Defendant is in possession of a checking account at Community Bank whose balance on November 1, 2003 was $463.00, and at the time of the hearing the balance in the account was lower. Defendant owns no stock, annuities, certificates of deposit, savings certificates or saving accounts.

        b. Defendant purchased a primary residence in 2003 for $99,500.00. The current balance of said mortgage is $93,500.00.

        c. Defendant owns a vehicle which has a principal loan balance greater than the market value of the vehicle. The Defendant recently traded the vehicle to one of lesser value in an effort to decrease the amount of monthly car payments paid.

        d. Defendant owes the Internal Revenue Service $34,700.00 for back taxes incurred due to his work as an independent contractor from 1995.
        e. Defendant owes over $10,000.00 in balances on a Visa and Master Card Account.

        f. Defendant has remarried since the entry of this Court's Judgment incorporating the said Separation Agreement and Property Settlement. Defendant and his spouse have been awarded by this Court the care and custody of two minor children. These obligations have caused the Defendant to have reasonable expenses that are not incurred as an attempt to avoid his alimony obligations to Plaintiff.

The trial court concluded that “[d]efendant does not have the present means to comply with the alimony provisions in the incorporated in the [sic] Judgment of this Court and that the Defendant did not wilfully and deliberately refuse to comply with the Judgment of this Court.” Based on its findings and conclusions, the trial court denied plaintiff's motion.
    Plaintiff contends the trial court erred in not finding defendant in civil contempt. Plaintiff argues that the evidence shows that defendant was sufficiently able to comply with the alimony provision, but willfully and deliberately failed to comply.
    Once a party initiates contempt proceedings by filing a motion in the cause, the burden moves to the opposing party to show cause why he should not be found in contempt of court. Plott v. Plott, 74 N.C. App. 82, 85-86, 327 S.E.2d 273, 275 (1985); N.C.G.S. § 5A-23(a)(2003). To show such cause, the party alleged to be delinquent has the burden of proving either that he lacked the means to pay or that his failure to pay was not willful. See Hartsell v. Hartsell, 99 N.C. App. 380, 387, 393 S.E.2d 570, 575 (1990), aff'd, 328 N.C. 729, 403 S.E.2d 307 (1991). When reviewing a trial court's civil contempt order, the appellate court is"limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law." Sharpe v. Nobles, 127 N.C. App. 705, 709, 493 S.E.2d 288, 291 (1997).
    Here, defendant testified that his checking account balance was $463.00; that he did not own any stock, annuities, savings or certificates of deposits; that the balance on his mortgage was $93,500.00; that his vehicle has a principal loan balance greater than its value and that he recently traded it for one of lesser value to decrease the amount of his car payments; that he owes the Internal Revenue Service $34,700.00 for back taxes incurred while he worked as an independent contractor; and that he has credit card debt of $10,000.00. Defendant further testified that he and his current wife had been awarded the custody of his wife's granddaughters, who had been living at the High Point Shelter without a mother or a father, and that he is the sole bread winner in his present family because his wife is unable to work. This evidence, which was uncontroverted, is sufficient to support the court's finding of fact that defendant did not have the present means to comply with the alimony provisions of the Judgment. We further conclude that the trial court's findings support its conclusion that defendant was not in willful contempt of the Judgment. Accordingly, the trial court's order is
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***