JOY HARPER COX
(now GOODWIN),
Plaintiff,
v
.
Buncombe County
No. 02 CVD 1748
JEFFREY RUSSELL COX,
Defendant.
Cecilia C. Johnson, for plaintiff-appellee.
Siemens Law Office, P.A., by Jim Siemens, for defendant-
appellant.
JACKSON, Judge.
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.
(Emphasis added).
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).
Affirmed.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).
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