KAREN WELLS TEER,
Plaintiff,
v
.
Guilford County
No. 02 CVD 2258
MARK EDGAR TEER,
Defendant.
No brief for plaintiff-appellee.
C. Richard Tate, Jr., for defendant-appellant.
STEELMAN, Judge.
Defendant appeals the order of the trial court dated 5
November 2004 that found defendant in contempt of prior orders,
established the amount of arrearages owed by defendant, directed
defendant to transfer certain property to the plaintiff, and ruled
that plaintiff was entitled to an award of attorney's fees. We
reverse and remand this matter to the trial court for further
proceedings.
The record in this matter reveals that this case has followed
a tortuous and confusing path through the District Court of
Guilford County. Plaintiff and defendant were at one time wife and
husband, and had two minor children. The record commences with a
memorandum of judgment/order entered by Judge Foster on 6 February2003, in which the parties agreed that plaintiff would have the
primary custody of the minor children and that defendant would pay
to plaintiff the sum of $575.00 per week “as child support and post
separation support until further orders of the court.” Plaintiff
was to have possession of the marital residence. On 28 March 2003,
Judge Foster entered a consent order based upon the memorandum of
judgment. This order contained specific findings of fact
supporting an award of post-separation support under N.C. Gen.
Stat. § 50-16 et seq, and directed the payment of $575.00 per week,
as post-separation support.
On 6 May 2003, an order was entered by Judge Burch requiring
defendant to appear and show cause why he should not be found in
contempt of court for failing to make the payments required by
Judge Foster's order. In response to this order, defendant moved
to have his obligation to pay post-separation support terminated
and to hold his child support in abeyance because he was
unemployed. These matters were heard by Judge Foster on 11 August
2003. The order directed defendant to pay child support in the
amount of $848.75 per month commencing on 31 August 2003. The
order made no findings or disposition as to any arrearages owed by
the defendant to plaintiff, nor did it make any disposition of
defendant's motions.
On 5 December 2003, Judge Jarrell entered an order finding
defendant in contempt of court for failing to pay support under the
6 February 2003 order of Judge Foster. The order recited an
arrearage of $10,058.44, and ordered defendant incarcerated untilhe purged himself of contempt by paying $1600.00 to the plaintiff.
The order made no mention of Judge Foster's order of 25 August
2003. Neither the motion nor the show cause order leading to Judge
Jarrell's order is in the record.
On 16 January 2004, Judge Burch entered an order to show cause
why defendant should not be held in contempt of court for failing
to make payments for the months of May, June and July 2003 and why
he was in arrears in the amount of $10,058.44. In response to this
order, defendant moved to set aside Judge Foster's order of 6
February 2003, to modify Judge Foster's order of 25 August 2003,
and to set aside all orders entered by Judge Jarrell. These
motions were based upon a significant change in circumstances due
to a severe decline in defendant's income, and errors in the
computation in the amount of child support in the 25 August 2003
order. It was contended that Judge Jarrell's orders were entered
without notice to defendant and his counsel.
On 5 November 2004, Judge Foster entered an order arising out
of a hearing held on 30 March 2004. This order found defendant to
be in contempt for his willful failure to comply with prior orders
of the court. Defendant's child support obligation was set at
$674.00 per month, retroactively effective to 1 April 2004.
Defendant's arrearage was computed to be $3,392.00. Defendant was
ordered to transfer three assets to the plaintiff: (1) defendant's
interest in the marital residence; (2) his interest in a $2,000.00
tax refund check; (3) an IRA account. The order does not reveal
the value of the interest in the residence or the IRA conveyed toplaintiff. The order does not state whether these conveyances
extinguished defendant's arrearages. Defendant's motions to set
aside prior orders were denied. Finally, the trial court ordered
that plaintiff was entitled to recover attorney's fees, but no
amount was set in the order. From this order, defendant appeals.
Defendant's first assignment of error reads as follows: “The
trial court committed reversible error in that the court's findings
of fact are not supported by the evidence.” We disagree.
Defendant's assignment of error fails to direct this court to
any specific finding of fact which is not supported by the
evidence. This constitutes a broadside exception and preserves no
argument on appeal. Dealers Specialties, Inc. v. Neighborhood
Housing Services, Inc., 305 N.C. 633, 635-36, 291 S.E.2d 137, 139
(1982);
Hicks v. Russell, 256 N.C. 34, 39, 123 S.E.2d 214, 218
(1961);
In re Dhermy, 161 N.C. App. 424, 430, 588 S.E.2d 555, 559
(2003)
;
First Union Nat'l Bank v. Bob Dunn Ford, Inc., 118 N.C.
App. 444, 446, 455 S.E.2d 453, 454 (1995); Concrete Serv. Corp. v.
Investors Group, Inc., 79 N.C. App. 678, 684, 340 S.E.2d 755, 760
(1986)
;
see also Viar v. N.C. DOT, 359 N.C. 400, 610 S.E.2d 360
(2005). Having preserved no objection to the findings of fact made
by the trial court, they are deemed conclusive on appeal. Concrete
Serv. Corp., 79 N.C. App. at 684, 340 S.E.2d at 760
. This argument
is without merit.
In defendant's second assignment of error, he contends that
the trial court erred in concluding that defendant was in willful
contempt of court. We disagree. “Our standard of review in contempt proceedings is limited to
whether there is competent evidence to support the findings of fact
and whether the findings support the conclusions of law.” Blazer v.
Blazer, 109 N.C. App. 390, 392, 427 S.E.2d 139, 140 (1993). As we
have noted above, all of the findings of fact in the instant order
are binding on appeal. The findings of fact of the trial court
included the following:
10. That the Defendant has had the ability to
comply with the terms of the Court order or
could have taken reasonable measures to comply
with the Court order dated March 28, 2003, if
he would have applied himself to his business
as an accountant.
12. That the total arrearage at the time of
this hearing is $3,392.00 (November 2002 -
April 2003 is vested; beginning May 2003
through March 2004, child support payments of
$675.00 resulting in the above arrearage after
giving Defendant credit for payments reflected
above).
We hold that these findings of fact support the trial court's
conclusion that defendant was in willful contempt of court. This
argument is without merit.
In defendant's third assignment of error, he contends that the
trial court erred in concluding that the plaintiff was entitled to
an award of attorney's fees. We agree.
“If civil contempt is found, the judicial official must enter
an order finding the facts constituting contempt and specifying the
action which the contemnor must take to purge himself or herself of
the contempt.” N.C. Gen. Stat. § 5A-23(e) (2004). “This Court has
held that the contempt power of the district court includes the
authority to award attorney fees as a condition of purging contemptfor failure to comply with an order.” Middleton v. Middleton, 159
N.C. App. 224, 227, 583 S.E.2d 48, 49-50 (2003). The trial court's
thirteenth finding of fact is as follows:
That the Plaintiff's attorney has rendered
valuable legal services to the Plaintiff in
this cause, in the preparation, filing and
hearing of this motion on behalf of the
Plaintiff and the minor children in which
services said attorney has spent a number of
hours on the attached affidavit for attorney's
fees which will be signed upon submission to
the Court.
Upon this finding of fact, the trial court awarded attorney's fees
to plaintiff. The order does not state that the payment of
attorney's fees was a condition of defendant purging himself of
contempt, or whether they were awarded upon some other legal
theory. We hold that the trial court's findings of fact are
insufficient to support its award of attorney's fees. We therefore
reverse this portion of the trial court's order and remand for
additional findings of fact, or further action consistent with this
holding.
In his fourth and final assignment of error, defendant asserts
that the trial court's order was not supported by findings of fact
or conclusions of law. We disagree.
In light of our holdings above concerning defendant's first
and second assignments of error, we further hold that this
assignment of error fails. This argument is without merit.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
Judges WYNN and SMITH concur.
Report per Rule 30(e).
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