JOY HARPER COX
No. 02 CVD 1748
JEFFREY RUSSELL COX,
Cecilia C. Johnson, for plaintiff-appellee.
Siemens Law Office, P.A., by Jim Siemens, for defendant- appellant.
Jeffrey Cox (defendant) appeals from an order entered on 27 January 2006 finding him in violation of a consent judgment. For the reasons stated herein, we affirm.
On 30 January 2003, Joy Cox, now Joy Goodwin (plaintiff), and defendant entered into a consent judgment, which provided that plaintiff would be entitled to possession of their former marital residence and that defendant would pay the mortgage payment in lieu of paying child support to plaintiff. On 12 January 2005, the trial court entered a consent order finding that plaintiff hadvacated the marital residence as of August 2004 and that the house required certain repairs to bring it up to marketable condition. The parties agreed that plaintiff would convey to defendant all of her interest in the property, and that defendant, in turn,
hereby waives and releases any right to reimbursement by Plaintiff for any cost of repair, maintenance, or upkeep on the marital residence, either before she signs the quitclaim deed or after she signs the quitclaim deed; he also waives and releases any right to reimbursement for any mortgage payments he has made since the Plaintiff vacated the residence or any mortgage payments that he will make until the house sells[;] he also waives and releases any right to reimbursement for any costs associated with the sale of the home. In sum, once the Plaintiff signs a quitclaim deed to the home for the befit [sic] of Defendant, Defendant cannot and shall not be able to ask Plaintiff for any reimbursements connected in any way to the residence.
Prior to the 12 January 2005 consent order, defendant incurred expenses associated with repairs to and maintenance of the former marital residence in the amount of approximately $23,110.36. On 13 January 2005, plaintiff signed a quitclaim deed over to defendant. Pursuant to the consent order, the sum of $23,110.36 was solely defendant's responsibility.
On 8 April 2005, defendant recorded a deed of trust against the property in the amount of $65,000.00 on behalf of Saramin Properties LLC (Saramin), the creditor for the $23,110.36 in maintenance and repair expenses. Defendant did not disclose this lien to plaintiff or her attorney. On 14 April 2005, plaintiff and defendant entered into a second consent judgment, which provided plaintiff with three options concerning custodial arrangements, child support, and place of residence. Plaintiff ultimately selected the option that permitted her to resume residing in the former marital residence now owned by defendant. Pursuant to this provision, plaintiff and defendant agreed that (1) defendant would not transfer or sell the residence before their minor daughter reached age eighteen; (2) if plaintiff resided in the home at issue until the minor daughter reached age eighteen, plaintiff would have the right to purchase the residence for the amount of the mortgage balance then remaining; (3) until the minor daughter reached age eighteen, defendant would continue making timely payments on the mortgage on the residence and that the mortgage payment was in lieu of child support ; and (4) [f]or as long as [plaintiff] resides in said residence . . ., [defendant] shall not increase the mortgage on said residence, nor shall he allow any judgments or liens to be attached. At the time the consent judgment was entered, defendant had a GMAC mortgage secured by the property in question in the amount of $241,949.58.
On 30 June 2005, defendant refinanced the GMAC mortgage and the deed of trust benefitting Saramin. The resulting principal of the new mortgage was $269,500.00. At the closing, defendant received $1,000.00 cash, paid $3,804.64 in closing costs, and paid off the GMAC mortgage as well as the $23,110.36 originally owed toSaramin; defendant later satisfied the balance of the $65,000.00 Saramin deed of trust with his own funds.
By motion for contempt dated 24 August 2005, plaintiff contended that defendant willfully violated the consent judgment by creating the $269,500.00 lien on the property. Specifically, plaintiff argued that defendant's refinancing effectively increased the mortgage from $241,949.58 _ the balance on the original GMAC mortgage as of the date of the consent judgment _ to $269,500.00 _ the balance following defendant's refinancing. Accordingly, plaintiff requested that the trial court order defendant to remove all liens and debts against the home in excess of the balance of the GMAC mortgage at the date of the consent judgment.
On 27 January 2006, the trial court entered an order finding defendant in willful contempt of the 14 April 2005 consent judgment. The court ordered defendant to pay down the mortgage in the amount of $27,915.00 by 1 February 2006 and to pay plaintiff's attorney's fees in the amount of $1,896.76. On 31 January 2006, defendant filed timely notice of appeal.
Preliminarily, we note that defendant has assigned error only to findings of fact numbers 9 and 11 of the trial court's 27 January 2006 order. This Court has held that failure to assign error to specific findings of fact of the trial court renders those findings binding on this Court. Hedingham Cmty. Ass'n v. GLH Builders, Inc., __ N.C. App. __, __, 634 S.E.2d 224, 228, disc. rev. denied, 360 N.C. 646, 636 S.E.2d 805 (2006). Accordingly, we are bound by findings of fact numbers 1 through 8 and 10. As this Court recently explained,
[t]he general rule is that a consent judgment is the contract of the parties entered upon the record with the sanction of the court. The consent judgment is a contractual agreement and its meaning is to be gathered from the terms used therein, and the judgment should not be extended beyond the clear import of such terms. However, to interpret the nature and import of the consent judgment more precisely, courts are not bound by the four corners of the instrument itself. The agreement, usually reflecting the intricate course of events surrounding the particular litigation, also should be interpreted in the light of the controversy and the purposes intended to be accomplished by it.
Hemric v. Groce, 169 N.C. App. 69, 75, 609 S.E.2d 276, 281.82 (internal quotation marks and citations omitted), disc. rev. dismissed and cert. denied, 359 N.C. 631, 616 S.E.2d 234 (2005). The standard of review of a finding of contempt for violation of the terms of a consent judgment is well-established:
[w]here the plain language of a consent judgment is clear, the original intention of the parties is inferred from its words. The trial court's determination of original intent is a question of fact. On appeal, a trial court's findings of fact have the force of a jury verdict and are conclusive if supported by competent evidence. The trial court's determination of whether the language in a consent judgment is ambiguous, however, is a question of law and therefore our review of that determination is de novo.
Id. at 75, 609 S.E.2d at 282 (quoting Potter v. Hilemn Labs., Inc., 150 N.C. App. 326, 331, 564 S.E.2d 259, 263 (2002)).
Defendant first contends that the trial court's findings of fact and conclusions of law regarding contempt are not supported bycompetent evidence by lumping together the following assignments of error:
2. The Court's finding the Defendant in contempt of a term, pertaining to liens on real property, contained within a consent judgment that is ambiguous and not susceptible to a clear interpretation of the parties' respective rights and obligations.
3. The Court's interpretation and construction of a provision contained in a consent judgment in finding the Defendant in contempt.
6. The Court's Finding of Fact no. 9 and no. 11 to the effect that the Defendant willfully violated a consent judgment term, by reducing a lien, where the provision, pursuant to which the Defendant was cited in contempt, prohibited the Defendant from increasing or adding liens attached to real property.
7. The Court's Finding of Fact no. 9 and no. 11 to the effect that the Defendant was under some affirmative duty of disclosure of lien amounts, in that no provision of any order or judgment in the cause compelled the Defendant to make any such disclosure, and there was evidence before the Court that such a disclosure had in fact been made.
Defendant's second and third assignments of error, however, violate the Rules of Appellate Procedure, as they are overbroad and fail to state a specific legal basis upon which error is assigned. See Hedingham Cmty. Ass'n, __ N.C. App. at __, 634 S.E.2d at 228 (Assignments of error which are 'broad, vague, and unspecific . . . do not comply with the North Carolina Rules of Appellate Procedure.' (quoting In re Lane Company-Hickory Chair Div., 153 N.C. App. 119, 123, 571 S.E.2d 224, 226.27 (2002))). Accordingly, assignments of error numbers 2 and 3 are dismissed. In assignments of error numbers 6 and 7, defendant assigns error to the trial court's findings of fact numbers 9 and 11. Specifically, defendant contends that the trial court erred in finding that he (1) willfully violated the consent judgment; and (2) failed to fulfill an affirmative duty of disclosure of lien amounts. We disagree.
To determine whether the trial court correctly found that defendant willfully violated the consent judgment, we first must determine whether the trial court properly found that defendant violated the consent judgment. The consent judgment expressly provided that defendant was not to increase the mortgage on said residence, nor shall he allow any judgments or liens to be attached to said property. As noted supra, defendant did not assign error to finding of fact number 7, in which the Court found [t]hat subsequent to the April 14 consent judgment being entered, Defendant caused a closing to occur . . . . This closing resulted in an increase on the lien on the home in the amount of $27,915. (Emphasis added). This finding, in turn, supports the trial court's conclusion that defendant violated the consent judgment.
As this Court has held, '[a] failure to obey an order of a court cannot be punished by contempt proceedings unless the disobedience is wilful, which imports knowledge and a stubborn resistance.' Cox v. Cox, 10 N.C. App. 476, 477, 179 S.E.2d 194, 195 (1971) (emphasis added) (quoting Lamm v. Lamm, 229 N.C. 248, 49 S.E.2d 403 (1948)). To support such a finding, there must exist evidence to establish as an affirmative fact that defendantpossessed the means to comply with the order . . . but failed to do so. Teachey v. Teachey, 46 N.C. App. 332, 334, 264 S.E.2d 786, 787 (1980).
In the instant case, defendant possessed the means to comply with the consent judgment yet nevertheless acted in derogation of the consent judgment's terms. Defendant incurred expenses of $23,110.36 related to the repair and maintenance of the former marital residence. However, pursuant to the consent order entered 12 January 2005, defendant waived any right to reimbursement by Plaintiff for any cost of repair, maintenance, or upkeep on the marital residence, either before she signs the quitclaim deed or after she signs the quitclaim deed. Although defendant subsequently executed and recorded a deed of trust for the benefit of the creditor for the $23,110.36, defendant already had waived and released his right to reimbursement from plaintiff of the $23,110.36. Thus, the new lien on the property _ specifically, the deed of trust benefitting Saramin _ was solely defendant's responsibility. The 14 April 2005 consent judgment expressly provided that [p]rior judgments, orders and agreements specifically changed herein shall remain in full force and effect. Therefore, the 12 January 2005 consent order remained binding on the parties. When defendant caused a closing to occur on 30 April 2005 and included in that closing a satisfaction of the $23,110.36 debt, defendant improperly attempted to shift the costs of those repairs and maintenance to plaintiff in violation of both the 12 January 2005 consent order and the 14 April 2005 consent judgment. The evidence, therefore, supports the trial court's finding that defendant's violation of the consent judgment was willful. Accordingly, defendant's assignment of error is overruled.
Additionally, in his seventh assignment of error, defendant contends that there was evidence before the Court that he disclosed to plaintiff that he had obtained a new lien on the house. As noted supra, however, defendant assigned error only to findings of fact numbers 9 and 11. In Finding of Fact number 8, the trial court found [t]hat at no time did Defendant inform Plaintiff or her attorney that there was a closing on or about [30 June 2006], which increased the mortgage on the residence. Because defendant failed to assign error to this finding, the trial court's finding that no disclosure had been made is binding on this Court. As such, this portion of assignment of error number 7 is overruled.
In the balance of assignment of error number 7, defendant contends that the trial court erroneously found that defendant had an affirmative duty to disclose lien amounts. The trial court, however, made no such finding. Rather, the court noted in finding of fact number 9 that defendant had not disclosed to plaintiff either the new $269,500.00 lien or the prior $65,000.00 deed of trust. Contrary to defendant's contention, the absence of such disclosure did not relate to a breach of an affirmative duty to disclose but rather to whether defendant's violation of the consent judgment was willful. This is clarified by finding of fact number 11, where the trial court found [t]hat [defendant's] actions and inactions as outlined in paragraph 9 are without just cause and arein willful violation of the provisions of said consent judgment. (Emphasis added). Accordingly, defendant's assignment of error is overruled.
Defendant next contends that the trial court's findings of fact and conclusions of law are not adequate to support its order of contempt by grouping together the following assignments of error:
8. The Court's Conclusion of Law No. 2, to the effect that the Defendant acted without just cause, and in willful violation of the judgment at issue, in that there is insufficient evidence in the record to support that conclusion, and insufficient Findings of Fact to support that conclusion.
9. Decretal paragraph No. 2, pursuant to which the Defendant is ordered to make a $27,915 mortgage payment, in that the Court's own comments at the close of evidence indicate that there is no factual or lawful basis, upon which this order can be entered.
10. Decretal paragraph No. 2, in that the Order imposes a remedy not supported by any factual basis in the record, the Findings of Fact, or any legal theory of contempt, either civil or criminal.
11. Decretal paragraph No. 4, pursuant to which the Defendant is ordered to pay attorneys fees, in that this award is not supported by any factual basis in the record, adequate findings of fact, or any legal theory of contempt, either civil or criminal.
12. The inadequacy of findings and conclusions supporting a contempt order of either a civil, or criminal nature.
Assignment of error number 12, however, fails to provide a legal basis for the alleged error and thus violates Rule 10(c) of theRules of Appellate Procedure. See N.C. R. App. P. 10(c)(1) (2006). Accordingly, this assignment of error is dismissed.
In assignment of error number 8, defendant contends that the trial court's conclusion that he willfully violated the consent judgment was not supported by the evidence. Conclusion of law number 2 provides [t]hat the Defendant-husband's actions and inactions as outlined in findings of fact paragraph 9 are without just cause, and are in willful violation of the provisions of said consent judgment. This conclusion of law, however, is nearly identical to finding of fact number 11, in which the trial court found [t]hat the Defendant-husband's actions and inactions as outlined in paragraph 9 are without just cause, and are in willful violation of the provisions of said consent judgment. As discussed supra, finding of fact number 11 is supported by competent evidence. This assignment of error, therefore, is overruled.
With respect to assignments of error numbers 9 and 10, defendant challenges the trial court's basis for ordering defendant to pay down the mortgage in the amount of $27,915.00. At the time of defendant's 30 June 2005 closing, the GMAC mortgage on the former marital residence was $241,585.00. Pursuant to the 14 April 2005 consent judgment, defendant was prohibited from increasing that mortgage or causing any judgments or additional liens to attach to the property. As a result of the 30 June 2005 closing, defendant replaced the $241,585.00 mortgage with a $269,500.00 mortgage. The trial court, therefore, correctly determined thatdefendant's willful violation of the consent judgment resulted in an increase in the mortgage by $27,915.00.
Defendant nevertheless contends in his brief that the trial court erred by not making findings or conclusions to the effect that [defendant] has the ability to make this [$27,915.00] payment. Defendant, however, failed to assign error on this ground. Accordingly, defendant has failed to preserve this issue for appellate review. See N.C. R. App. P. 10(a) (2006) ([T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal . . . .); see, e.g., Brown v. King, 166 N.C. App. 267, 271, 601 S.E.2d 296, 298 (2004) (Because defendant failed to assign error to the issue actually argued in her brief, it is not properly before this Court.).
Finally, in assignment of error number 11, defendant challenges the trial court's award of attorney's fees on the grounds that the award is neither supported by the facts nor any legal basis. We disagree.
As a preliminary matter, we note that while defendant assigned error to the award of attorney's fees on the basis that the award is not supported by any factual basis in the record, defendant has failed to present any argument to this effect in his brief. Instead, defendant has limited his argument to whether the trial court possessed the authority to award plaintiff attorney's fees. Accordingly, we limit our discussion to this portion of defendant's assignment of error. See N.C. R. App. P. 28(b)(6) (2006). With respect to the portion of assignment of error number 11 in which defendant contends that the award of attorney's fees was without any legal basis, we note that
[g]enerally speaking, a North Carolina court has no authority to award damages to a private party in a contempt proceeding. Contempt is a wrong against the state, and moneys collected for contempt go to the state alone. Courts can award attorney fees in contempt matters only when specifically authorized by statute.
Sea Ranch II Owners Ass'n v. Sea Ranch II, Inc., __ N.C. App. __, __, 636 S.E.2d 307, 309 (2006) (internal quotations marks, alteration, and citations omitted), disc. rev. denied, 361 N.C. 357, 644 S.E.2d 233 (2007). This Court, however, has allowed attorney fees in limited types of civil contempt actions such as those involving child support and equitable distribution. Nohejl v. First Homes of Craven County, Inc., 120 N.C. App. 188, 191, 461 S.E.2d 10, 12 (1995); see, e.g., Conrad v. Conrad, 82 N.C. App. 758, 760, 348 S.E.2d 349, 350 (1986) (equitable distribution); Blair v. Blair, 8 N.C. App. 61, 62, 173 S.E.2d 513, 514 (1970) (child support).
In his brief, defendant correctly notes that child support is not an issue but concedes that the issue is akin to one of equitable distribution. Contrary to defendant's contention, this Court has permitted attorney fees in contempt actions to enforce equitable distribution awards, even though attorney's fees in equitable distribution actions were not authorized by statute. Powers v. Powers, 103 N.C. App. 697, 707, 407 S.E.2d 269, 275.76 (1991) (citing Hartsell v. Hartsell, 99 N.C. App. 380, 393 S.E.2d570 (1990); Conrad, 82 N.C. App. 758, 348 S.E.2d 349). Accordingly, this assignment of error is overruled.
Defendant expressly abandons assignments of error numbers 4 and 5 by addendum to the record on appeal, and defendant's brief contains no argument in support of assignments of error numbers 1 and 13. Thus, we deem those assignments of error abandoned. See N.C. R. App. P. 28(b)(6) (2006).
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).
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