An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 6 June 2006
JAY B. SABLE,
No. 01 CVD 5464
D. STELLA SABLE (now Knight),
Appeal by Plaintiff from orders entered 15 June 2001, 16 March
2004, and 19 July 2004 by Judge Anne B. Salisbury in Wake County,
District Court. Heard in the Court of Appeals 20 February 2006.
Jay B. Sable, pro se, for plaintiff-appellant.
Lynne M. Kay for defendant-appellee.
In this appeal, Jay B. Sable brings multiple issues arising
from his dispute with his former wife, Stella (now remarried with
the surname of Knight), regarding relocation of the couple's
minor child and other issues. Upon thoroughly reviewing the record
on appeal in light of the law of North Carolina, we reject Mr.
Sable's issues as being without merit.
The parties married in 1988; had one child in 1996; and
separated in 1997. Under their separation agreement, (1) the
parties agreed to joint custody with Mrs. Knight's residence as
the child's primary residence; (2) Mr. Sable would pay $1,000.00
per month in child support; and (3) Mr. Sable would make Mrs.
Knight the beneficiary trustee of his $200,000 life insurance (withthe minor child as irrevocable beneficiary) until the minor child
reached the age of twenty-five. A Sable Family Budget was also
included in the separation agreement. The parties divorced on 4
During 1997 through 2001, Mr. Sable had physical custody of
the minor child on alternate weekends, shared or alternate
holidays, and for approximately three hours every Tuesday and
Thursday. But upon Mrs. Knight informing Mr. Sable of her intent
to remarry and relocate with the minor child from Raleigh, North
Carolina to Hertford, North Carolina , Mr. Sable brought an action
on 7 May 2001 seeking joint physical and legal custody of the
minor child. Thereafter, he filed a Motion for Preliminary
Injunctive Relief, seeking to maintain the minor child's place of
residence in Wake County until permanent custody could be
determined. District Court Judge Anne B. Salisbury denied that
motion and entered a Memorandum of Judgment/Order on 15 June
2001, allowing the child's relocation and specifying a visitation
schedule with Mr. Sable.
Mr. Sable appeals from the 15 June 2001 relocation order; 30
October 2003 Temporary Custody and Support Order; 16 March 2004
order denying Mr. Sable's Motion to Compel; and 19 July 2004 Final
Order on Custody and Support . We, however, do not address the 30
October 2003 order because the trial court entered a final order on
19 July 2004. See Hunter v. Hunter, 126 N.C. App. 705, 708, 486
S.E.2d 244, 246 (1997) (If an interim order does not affect asubstantial right, the appealing party's rights will be adequately
protected by an appeal timely taken from a final order.).
Mr. Sable first contends that the trial court erred in using
the Memorandum of Judgment/Order form, which is used for consent
judgments, because he did not consent to the relocation of the
minor child. We disagree.
The power of the court to sign a consent judgment depends
upon the unqualified consent of the parties thereto, and the
judgment is void if such consent does not exist at the time the
court sanctions or approves the agreement . . . and promulgates it
as a judgment. Ledford v. Ledford, 229 N.C. 373, 376, 49 S.E.2d
794, 796 (1948); see also Buckingham v. Buckingham, 134 N.C. App.
82, 87, 516 S.E.2d 869, 873-74 (1999) (consent decree relating to
child custody valid where parties signed written agreement and
appeared in open court to acknowledge their consent). There is no
requirement with consent judgments, including consent judgments
relating to property, support and custody rights of married
persons, that the parties, at the time of the entry of the
judgment, actually appear in court and acknowledge to the court
their continuing consent to the entry of the consent judgment.
Wachovia Bank & Trust Co. v. Bounous, 53 N.C. App. 700, 706, 281
S.E.2d 712, 715 (1981) (where parties do not appear in court, trial
court may sign and enter judgment if it contains the signatures of
all the parties); N.C. Gen. Stat. § 52-10(c) (2005) (consent
judgments do not have to be acknowledged). In this case, upon learning of Mrs. Knight's intent to
relocate, Mr. Sable sought a preliminary injunction to prohibit
moving the minor child pending the permanent custody hearing.
Counsel for both parties met in chambers without either party
present, and after the trial court denied the motion for injunctive
relief, Mr. Sable's counsel requested that the trial court enter an
order specifying visitation for Mr. Sable. The trial court used
the Memorandum of Judgment/Order form allowing Mrs. Knight to
relocate to Hertford with the child and providing a detailed
visitation schedule for Mr. Sable. Counsel for both parties signed
It is apparent that the trial judge used the Memorandum of
Judgment/Order form to specify visitation for Mr. Sable - not as a
consent judgment regarding relocating the child as Mr. Sable
argues. Mr. Sable's own testimony establishes that his attorney
told him that the trial judge denied his motion for preliminary
injunction and entered an order specifying his visitation rights:
Q: Okay. And you are aware, aren't you, that
Judge Salisbury at that time issued a verbal
ruling that your motion for injunction was
denied, aren't you?
A. No. This is the very first time I'm
Q: You are aware, aren't you, that _
A: (interposing). Well, no. . . .I can't give
you a simple yes or no on that one, because my
former attorney called me up and her exact
words were Jay _- quote, Jay, I'm sorry, we
didn't get it, unquote.
Q: You are aware, aren't you, that it is your
own attorney at that time in Judge Salisbury's
chambers who wanted that memorandum to be
entered to secure your visitation by court
order, aren't you?
A: I believe I was aware of that.
The record reveals that the trial judge entered the memorandum
after denying Mr. Sable's motion for a preliminary injunction and
in an effort to comply with Mr. Sable's request for an order
regarding visitation. While the better practice would have been
for the parties' counsel to omit all references in the memorandum
indicating that the trial court's judgment on visitation was a
consent order, we are satisfied that under the circumstances of
this case, the parties understood the order was directed towards
the issue of visitation. Accordingly, Mr. Sable's assignment of
error is rejected.
Mr. Sable next contends the trial court erred in awarding
primary custody to Mrs. Knight. We disagree.
Section 50-13.2 of the North Carolina General Statutes
requires a trial court's order to include terms for visitation and
contain findings sufficient to support the ruling. N.C. Gen. Stat.
§ 50-13.2 (2005). [T]he trial court's findings of fact are
conclusive on appeal if there is evidence to support them, even
though the evidence might sustain a finding to the contrary.
Surles v. Surles
, 113 N.C. App. 32, 42, 437 S.E.2d 661, 666 (1993)
(citation omitted). Here, the trial court made the following
pertinent findings of fact regarding custody:
15. The evidence presented by all witness
[sic] show that both Plaintiff and Defendant
are good parents. Plaintiff is a good father
and has been actively involved in the child's
upbringing since the separation. While he has
never been the primary custodian, he continued
to see the child and bond with her after the
separation of the parties. On two occasions,
early in the separation, Plaintiff left the
child unattended in two potentially harmful
situations. On one occasion, he left the
minor child aged approximately 18 months,
alone and asleep in his apartment while he
walked the dog around the block. On another
occasion, he left the child alone, aged
approximately 2 years, on the apartment
playground to go to his apartment to retrieve
something. Plaintiff acknowledged the
potential for harm and his lack of good
judgment on these occasions; there is no
evidence that anything like the above
incidents has occurred since and the Plaintiff
has been quite attentive since then.
16. Both parties love the minor child and by
all accounts she is healthy, happy and loves
both her parents. . . .
17. The minor child enjoys a good relationship
with both her stepparents. Both engage in
age-appropriate activities with her such as
reading, being outside, and playing with the
dog. Plaintiff's wife, Paula, especially
spends quality time with the child engaging in
whatever activities the child elects to do.
Defendant's husband works long hours and tends
to spend less time with her but engages in
quiet time activities such as watching
television together or walking the dog or
hiking on acreage that he owns. He respects
Plaintiff's status as the child's father. An
example of this is that on approximately two
occasions he has overheard the minor child be
rude to her father on the telephone and hang
up on him. He made the child call Plaintiff
back and speak politely to her father.
19. The custody evaluation was performed by
the Forensic Psychiatry Service at the
University of North Carolina at Chapel HillSchool of Medicine. By stipulation of the
parties, the written report of the custody
evaluation was admitted into evidence. In
addition, Dr. David Bartholomew was admitted
as an expert witness in the field of child
psychology and in the area of custody
evaluations and testified. The evaluation
team and UNC did psychological testing,
analysis, interviews with the parties, the
minor child and various references provided by
the parties. . . .
21. Various witnesses confirmed and the Court
finds that the minor child . . . is an
intelligent child who, as an only child, is
often in the company of other adults with her
parents. Although she gets long well with her
peers at school, she needs more age
appropriate relationships with her peers.
When she is with her parents, she tends to be
bossy and overly demanding of their time.
This was evidenced by the fact that when she
is visiting with the Plaintiff and his wife,
they play with her and do whatever she wants
to do to the point of exhaustion. She also
tries to overly demand attention while with
Defendant, though not with as much success as
at her father's. Defendant and her husband
are better at setting boundaries and not
giving in to the child's every whim than are
Plaintiff and his wife.
23. Both parties have adequate and appropriate
physical facilities in which to house the
minor child. Both parents love her and can
provide her with a family environment, good
education and can provide for her physical and
24. However, because of the continuing
conflict and constant court hearings and the
inability of the parties to communicate
effectively with each other, joint custody is
not practical or workable.
25. Defendant has been the primary caregiver
to the minor child since the child's birth. She has provided continuously for the child's
physical and emotional needs. She has been a
source of stability for the child. Plaintiff
has provided for the child's physical and
emotional needs when the child has been with
him and has provided for her financial support
except as noted herein.
Mr. Sable contends the trial court's custody order does not
contain sufficient findings comparing each aspect of the parties
and their relative abilities to advance the minor child's best
interest. However, the trial court need not make a finding as to
every fact which arises from the evidence; rather, the court need
only find those facts which are material to the resolution of the
dispute. Witherow v. Witherow, 99 N.C. App. 61, 63, 392 S.E.2d
627, 629 (1990), aff'd per curiam, 328 N.C. 324, 401 S.E.2d 362
(1991). After careful review of the record, we conclude there is
competent evidence to support the trial court's findings, and we
conclude the trial court made sufficient findings of fact to
support its decision to award sole legal custody and primary
physical custody to Mrs. Knight. Thus, Mr. Sable's assignment of
error is rejected.
Mr. Sable next contends the trial court erred in setting his
visitation schedule with the minor child. We disagree.
Visitation rights orders, along with other matters related to
child custody are governed by the standard of promot[ing] the
interest and welfare of the child. Pass v. Beck, 156 N.C. App.
597, 600, 577 S.E.2d 180, 182 (2003) (internal quotation and
citation omitted). A trial court is given broad discretion indetermining the custodial setting that will advance the welfare and
best interest of minor children. Cox v. Cox, 133 N.C. App. 221,
228, 515 S.E.2d 61, 67 (1999) (citation omitted).
In this case, the trial court ordered, in part, for Mr. Sable
to have four weeks summer visitation with the minor child. Mr.
Sable argues that he should have physical custody of the minor
child during all three-day weekends associated with the school
calendar and for six weeks during her summer vacation based on the
trial court's Finding of Fact No. 20 which stated:
20. The evaluation team prepared an extensive
report on its findings regarding the needs of
the minor child, the relative strengths and
weaknesses of the Plaintiff and Defendant and
the roles of the stepparents in the family
dynamics. This report was admitted into
evidence and is incorporated into these
Findings of Fact as if set out fully herein.
This finding references the evaluation team's report recommending
that Mr. Sable have six weeks summer visitation. The trial court's
order as to the amount of summer visitation ultimately granted to
Mr. Sable was based on its many findings, and was not a recitation
of the evaluation team's recommendation. Therefore, it was not
inconsistent for the trial court to incorporate the evaluation
team's report into its findings and yet not order all of the
report's recommendations. As we can discern no abuse of discretion
by the trial court in setting visitation with the child, we reject
this assignment of error.
Mr. Sable next contends the trial court erred by not
identifying a verifiable source of funds from which Mrs. Knightwill provide her share of the minor child's financial support.
This argument is without merit.
The trial court made the following findings of fact regarding
Mrs. Knight's share of child support:
28. When Defendant remarried and moved to
Perquimans County, she closed her part-time
law practice. She currently does not work
regularly and is supported by her husband who
contributes to her living expenses and to
those of the minor child. Defendant devotes
her time to child-rearing (including driving
the child to and from Elizabeth City, NC for
school and to her extra curricular
activities), helping in her husband's business
and volunteer work. She does keep her law
license current by attending Continuing Legal
Education seminars and performing some
indigent work pro bono. She is healthy and
capable of working full-time. She made the
decision not to work regularly when she
remarried and moved to Perquimans County. She
has chosen not to work and is voluntarily
unemployed with full knowledge of her duty to
support her minor child because her husband
has voluntarily chosen to assume this
responsibility and support she has provided
from her separate estate. In addition, she
has continuously provided support to the minor
child from her separate estate. Previously,
and upon her move to Hertford, the Defendant
sold her residence and received approximately
$145,000.00 representing the equity therein.
She has used this amount to provide support
for the minor child and a large portion of it
to employ counsel to defend the numerous
motions filed by Plaintiff in this case. This
sum is now almost depleted.
29. The evidence before the Court as to past
or potential income of the Defendant was the
submission of the parties' 1997 joint tax
returns wherein the Defendant had earnings
from her part-time practice of Elder law after
adding back depreciation of $29,053.00. In
1998, Defendant had gross income from her law
practice after adding back depreciation of
$29,074.00. In 1999, Defendant had grossincome from her law practice, after adding
back depreciation, of $31,118.00. In 2000,
Defendant's gross income from her law
practice, after adding back depreciation was
$25,464.00. In 2001, Defendant's gross income
from her law practice was $19,920.00. . . .
36. The present Guideline amount of $1,189.00
does not meet or exceed the reasonable needs
of the child, which are as set forth above.
The Plaintiff has the ability to pay the
amount of child support ordered herein.
Plaintiff's $1,000.00 child support payment
provided by the Separation Agreement plus
Defendant's share of the support obligation
does not exceed the reasonable needs of the
child as set forth above. The amount of child
support payable by the Plaintiff pursuant to
the Separation Agreement, coupled with the
support provided by Defendant for the balance
(either by herself or through her husband)
adequately meets the needs of the child as set
forth . . . above.
After careful review of the record, we conclude there is ample
evidence to show that the child's needs in excess of the $1,000
ordered child support are being met. Moreover, Mr. Sable testified
at trial that the minor child is not lacking for anything and, in
fact, she has too many toys and too much stuff. He further
admitted that he does not know what is being spent on the child in
excess of the amount of child support he pays. Because there is no
evidence in the record to show that Mrs. Knight is not meeting her
portion of child support, we reject this assignment of error.
Mr. Sable next argues that Mrs. Knight is acting in bad faith
in remaining voluntarily unemployed. However, a party is not
deemed to be acting in bad faith only because he or she isunemployed by choice. Pataky v. Pataky, 160 N.C. App. 289, 307,
585 S.E.2d 404, 416 (2003). In Pataky, this Court held that the
non-custodial parent was not acting in bad faith even though he
decided to return to school only after the child support agreement
was executed and before he was aware that the custodial parent
would seek a child support order from the court. Id. at 307-08,
585 S.E.2d at 416.
Similarly, in this case, there is no evidence in the record to
show that Mrs. Knight is acting in bad faith in remaining
voluntarily unemployed. Mrs. Knight became voluntarily unemployed
in June 2001 to become a full-time housewife and mother. Mr. Sable
did not file a Motion for Child Support until 27 September 2002.
Thus, it is highly unlikely that Mrs. Knight became unemployed in
anticipation that Mr. Sable would be filing a motion for the court
to set child support and in an effort to shirk her child support
obligations. Accordingly, we reject this assignment of error.
Mr. Sable next contends the trial court erred in setting his
child support obligation because the reasonable monthly expenses
for the minor child are excessive.
The trial court has considerable discretion in determining the
appropriate amount of prospective child support. 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, 868 (1985) (citation
omitted). A judge is subject to reversal for abuse of discretiononly upon a showing by a litigant that the challenged actions are
manifestly unsupported by reason. Id.
Contrary to Mr. Sable's assertion, he is not solely
responsible for the minor child simply because the permanent
support guideline does not impute income to Mrs. Knight. In fact,
the guideline worksheet reveals that Mr. Sable should be paying
$1,189.00, and the Court only ordered him to pay $1,000. Thus, any
deviation in the Guidelines was to Mr. Sable's benefit. As we can
discern no abuse of the trial court's discretion in determining the
amount of child support, we reject this assignment of error.
In his next assignment of error, Mr. Sable argues the trial
court erred by refusing to compel the production of Mrs. Knight's
2002 tax returns. We disagree.
General provisions governing discovery are set forth in Rule
26 of the North Carolina Rules of Civil Procedure. See N.C. Gen.
Stat. § 1A-1, Rule 26 (2005). Discovery methods include, inter
alia, depositions, interrogatories, and production of or permission
to inspect documents. N.C. Gen. Stat. § 1A-1, Rule 26(a).
Regarding the scope and limits of discovery, our Legislature has
provided, in pertinent part, as follows:
Parties may obtain discovery regarding any
matter, not privileged, which is relevant to
the subject matter involved in the pending
action . . .
The frequency or extent of use of the
discovery methods set forth in section (a)
shall be limited by the court if it determines
that: (i) the discovery sought is unreasonably
cumulative or duplicative, or . . . (iii) thediscovery is unduly burdensome or expensive .
N.C. Gen. Stat. § 1A-1, Rule 26(b)(1). Whether or not the party's
motion to compel discovery should be granted or denied is within
the trial court's sound discretion and will not be reversed absent
an abuse of discretion. Wagoner v. Elkin City Schools' Bd. of
Educ., 113 N.C. App. 579, 585, 440 S.E.2d 119, 123, disc. review
denied, 336 N.C. 615, 447 S.E.2d 414 (1994). We find the trial
court did not abuse its discretion in denying Mr. Sable's motion to
compel the production of Mrs. Knight's 2002 tax returns.
Accordingly, we reject this assignment of error.
We next address Mr. Sable's argument that Mrs. Knight should
not have been awarded attorney's fees. Section 50-13.6 of the
North Carolina General Statutes provides:
In an action or proceeding for the custody or
support, or both, of a minor child, including
a motion in the cause for the modification or
revocation of an existing order for custody or
support, or both, the court may in its
discretion order payment of reasonable
attorney's fees to an interested party acting
in good faith who has insufficient means to
defray the expense of the suit. Before
ordering payment of a fee in a support action,
the court must find as a 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;
provided however, should the court find as a
fact that the supporting party has initiated a
frivolous action or proceeding the court may
order payment of reasonable attorney's fees to
an interested party as deemed appropriate
under the circumstances.
N.C. Gen. Stat. . 50-13.6 (2005). Whether the statutory
requirements of section 50-13.6 have been met is a question of law
and is reviewable on appeal. Hudson v. Hudson, 299 N.C. 465, 472,
263 S.E.2d 719, 724 (1980).
The trial court made the following findings of fact as it
relates to awarding Mrs. Knight attorney's fees under section 50-
43. The Defendant has retained the services
of Lynne M. Garnett, attorney at law, to
represent her in defense of Plaintiff's
Complaint for custody and child support and
Plaintiff's request that the Court deviate
downward from the North Carolina Child Support
Guidelines and the Plaintiff's subpoenas and
Discovery filed herein.
44. Defendant's attorney's practice is almost
totally devoted to domestic litigation,
including, but not limited to the various
issues which comprise this action. She has
practiced family law since 1993. Her hourly
rate is $175.00 per hour which is comparable
to other family law attorneys practicing in
Wake County. She charged $150.00 per hour for
her services through December 2, 2003. She
was assisted by her paralegal at a rate of
$60.00 per hour.
45. Defendant's attorney expended a minimum
of 18 hours through December 4, 2003 defending
against Plaintiff's motions to establish and
deviate downward from the North Carolina Child
Support Guidelines and attempting to collect
child support arrearages not paid by
Plaintiff. For purposes of the permanent
hearing, Defendant's attorney expended no less
than 14 hours.
46. Defendant defended Plaintiff's child
support action in good faith and is without
the independent means to defend this action
without depleting her separate estate.
Defendant is entitled to recover her
reasonable attorney's fees under statutoryauthority set forth in N.C.G.S. 50-13.4 et
Based on these findings of fact, the trial court made the
following conclusion of law:
13. Defendant is not entitled to recover her
attorney's fees for breach of the Separation
Agreement but is entitled to recover her
reasonable attorney's fees for Plaintiff's
failure to pay adequate child support pursuant
to N.C.G.S. 50-13.4 [sic] and for her defense
of this action where it is clear that
Plaintiff failed to pay adequate support.
Mr. Sable contends Mrs. Knight is not acting in good faith
with regard to child support and is thus ineligible for an award of
attorney fees under section 50-13.6. As we have already rejected
Mr. Sable's argument that Mrs. Knight was not acting in good faith
with regard to child support, we likewise reject this argument.
Mr. Sable further argues the trial court erred in finding that
Mrs. Knight lacked independent means to pay her attorney because
the test for an award of attorney fees under section 50-13.6 is
insufficient means. This argument is without merit.
Our Supreme Court has held that the insufficient means test
has been satisfied if the party is unable to employ adequate
counsel in order to proceed as litigant to meet the other spouse as
litigant in the suit. Hudson, 299 N.C. at 474, 263 S.E.2d at 725.
Our review of the record reveals that Mrs. Knight does not work
regularly and is supported by her husband who contributes to her
living expenses and to those of the minor child. Further, the
record reveals that Mrs. Knight sold her residence and receivedapproximately $145,000 from the sale. Mrs. Knight testified that
she used this money to provide for the minor child and to employ
counsel and that the sum is almost depleted. However, she is not
required to deplete her separate estate to pay her attorney's fees.
Cobb v. Cobb, 79 N.C. App. 592, 596-97, 339 S.E.2d 825, 828 (1986)
(holding it would be contrary to the intent of the legislature to
require one seeking an award of attorneys' fees to meet the
expenses of litigation through the unreasonable depletion of her
separate estate, where her separate estate is smaller than that of
the other party).
We hold there is sufficient evidence in the record to support
the trial court's findings of fact to show that Mrs. Knight was
unable to employ counsel to defend the lawsuits brought by Mr.
Sable without depleting her separate estate. See id. We,
therefore, reject this assignment of error.
Mr. Sable next contends the trial court erred by holding him
in contempt of its temporary child support order. We disagree.
To find a party in contempt, the trial court must find that
(1) the party failed to comply with the order, and (2) that the
party presently possesses the means to comply. Wolf v. Wolf, 151
N.C. App. 523, 529, 566 S.E.2d 516, 520 (2002) (citing Gorrell v.
Gorrell, 264 N.C. 403, 141 S.E.2d 794 (1965)). To find that a
party acted willfully, the court must find not only failure to
comply but that the defendant presently possesses the means to
comply. Teachey v. Teachey, 46 N.C. App. 332, 334, 264 S.E.2d786, 787 (1980) (quoting Mauney v. Mauney, 268 N.C. 254, 257-58,
150 S.E.2d 391, 393-94 (1966)) (emphasis in original).
This Court affords great deference to a trial court's findings
of fact. McAulliffe v. Wilson, 41 N.C. App. 117, 120-21, 254
S.E.2d 547, 550 (1979). The standard of review in a contempt
proceeding 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); 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. (emphasis in original)). 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).
Mr. Sable challenges the following findings of fact:
39. During the pendency of the litigation,
the North Carolina Child Support Guidelines
were changed (effective October 1, 2002) and
Plaintiff's income changed, as well as the
Pataky decision by the North Carolina Court of
Appeals rendered in September, 2003 just after
the temporary hearing. At the temporary
hearing stage, Plaintiff was ordered to pay
the sum of $1,000.00 (representing $864.36
under the Guidelines and $135.64 under theSeparation Agreement as child support for the
months of August and September, 2002. He did,
in fact, pay $1,000.00 for each of those
months and is not in arrears for those months.
Fort the period October 1, 2002 until May 1,
2003, Plaintiff was ordered to pay the sum of
$1,000.00 per month (representing $832.17
under the new Guidelines and $167.83 under the
Separation Agreement. Plaintiff paid
$1,000.00 per month to Defendant from October
1, 2002 until February 1, 2003 and is not in
arrears for those months. From February 1,
2003 until May 1, 2003, Plaintiff only paid
$500.00 per month. He has total arrears for
that period of $996.51 under the Guidelines
and the balance of $503.49 under the
Separation Agreement for a total arrears for
those months of $1,500.00.
40. In May, 2003, the Guideline amount
changed again because of Plaintiff's increase
in salary. At the temporary hearing,
Plaintiff was ordered to pay the sum of
$1,000.00 per month child support effective
May 1, 2003 (representing $845.77 under the
Guidelines and $154.23 under the Separation
Agreement). Plaintiff paid the Guideline
amount but continues to refuse to pay the
Separation Agreement amount. Amounts due to
Defendant under the Separation Agreement for
the period from May 1, 2003 through July, 2003
are $462.69. From August 1, 2003 through the
date of the permanent hearing, the Plaintiff
owes $1,388.07 representing the difference
between what Plaintiff has paid and the
$1,000.00 per month. Plaintiff has paid the
Guideline amount but has consistently refused
to pay the balance due under the Separation
Agreement because he disagrees with the
Court's Order. He also claimed that he cannot
afford the $154.23 per month because he has
what he termed discretionary expenses.
41. The Plaintiff paid inadequate support to
the Defendant for May and June of 2002 and
from February 2003 to the present according to
the reasonable needs of the child, the North
Carolina Child Support guidelines and in
breach of the parties Separation Agreement.
This was at a time when th Plaintiff had gross
income of at least $90,000.00 per year and had
the ability to pay said support.
A review of the record reveals the evidence supports the trial
court's determination that Mr. Sable's non-compliance with the
separation agreement was willful. Mr. Sable admitted that he did
not pay the $154.23 per month because the trial court erred in
entering an order of specific performance, and that his non-
performance was based on principled opposition[.] Although at
times Mr. Sable has argued that he could not afford to pay the
$154.23 per month, he admitted at trial that he could pay the
$154.23, but that he should not have to pay the money because it
was improper for the trial court to order him to pay. Based on the
evidence in the record on appeal, we conclude the evidence fully
supports the trial court's findings of fact and the trial court's
conclusion of law that Mr. Sable was in willful contempt of the
separation agreement and that he had the ability pay the $154.23
We also reject Mr. Sable's argument that the trial court's
underlying order of specific performance is improper and invalid.
In North Carolina, the law is clear that 'if a [spouse] does not
perform his[/her] part of a valid separation agreement, which has
not been incorporated into a court order, the [opposing spouse] may
obtain from the court a decree of specific performance of the
separation agreement which is enforceable through contempt
proceedings.' General Motors Acceptance Corp. v. Wright, 154 N.C.
App. 672, 676, 573 S.E.2d 226, 228 (2002) (alteration in original)
(citation omitted). As this was a valid unincorporated separation
agreement, and Mr. Sable admittedly did not perform his part of theseparation agreement, the trial court properly entered an order of
contempt against Mr. Sable. We therefore reject Mr. Sable's
assignment of error.
Likewise, we reject Mr. Sable's argument the trial court
abused its discretion in ordering him to specifically perform the
portion of the separation agreement requiring him to make Mrs.
Knight the beneficiary trustee of the minor child's $200,000 life
insurance benefit because she was not able to provide an accounting
of the expenditure of funds from her $145,000 estate. Under the
terms of the separation agreement, Mr. Sable is required to
maintain a life insurance policy with a value of $200,000, and name
the minor child the irrevocable beneficiary with Mrs. Knight as
trustee until the minor child is twenty-five years old. There is
no requirement in the separation agreement that she must show an
accounting of the expenditure of funds from her estate prior to
being named beneficiary trustee of the life insurance benefit. Mr.
Sable's failure to maintain this life insurance policy is a breach
of the separation agreement and the trial court did not abuse its
discretion in its order of specific performance of the life
insurance provision of the separation agreement. This assignment
of error is rejected.
Mr. Sable next contends that Mrs. Knight's relocation with the
minor child to Hertford constitutes a material breach of the
separation agreement's provision as to both the physical and legal
custody components of joint custody and that he is entitled torecission of the agreement. A review of the separation agreement
reveals that the agreement specifically provides that either party
is free to live wherever he or she chooses. Thus, Mrs. Knight's
decision to remarry and relocate with her husband is not grounds
for recission of the separation agreement. We, therefore, reject
this assignment of error.
In his final argument on appeal, Mr. Sable contends the trial
court erred by awarding Mrs. Knight a child-support related
monetary judgment. Specifically, he contends Mrs. Knight should be
estopped from collecting the disputed amount on grounds that her
ratification of his partial performance of the separation agreement
constituted a bar to the action. We disagree.
A non-breaching party to a separation agreement may waive
enforcement of a provision of that agreement by ratification of the
breaching party's partial performance of the contract. Altman v.
, 82 N.C. App. 102, 106, 345 S.E.2d 419, 422 (1986). However,
there is no evidence in record to show that Mrs. Knight waived
performance of the additional child support owed. Thus, we uphold
the trial court judgment.
Chief Judge MARTIN and Judge STEPHENS concur.
Report per Rule 30(e).
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