Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 21 August 2007
ROGER BADROCK, IN HIS CAPACITY
AS ADMINISTRATOR, C.T.A. FOR
THE ESTATE OF JANE B. PICKARD,
No. 02 CVD 898
CARL GLENN PICKARD, JR.,
Appeal by Defendant from order entered 26 September 2006 by
Judge James K. Roberson in Alamance County District Court. Heard
in the Court of Appeals 21 May 2007.
Walker & Bullard, P.A., by Daniel S. Bullard, for Plaintiff-
Vernon, Vernon, Wooten, Brown, Andrews & Garrett, P.A., by
Benjamin D. Overby and Wiley P. Wooten, for Defendant-
Jane B. Pickard (Jane) and Defendant were married on 7 June
1991 and separated on 9 April 2002. Jane filed a complaint on 25
April 2002, setting forth claims for relief including
postseparation support and alimony. The postseparation support
hearing was postponed while the Caswell County District Court
addressed a complaint filed by Defendant on 23 April 2002 seeking
an annulment of the marriage. Following hearings on 3 December
2002 and 7 May 2004, on 27 September 2004, Caswell County DistrictCourt Judge Mark E. Galloway denied Defendant's request for an
(See footnote 1)
On 20 September 2004, the postseparation support hearing was
held before the Honorable James K. Roberson in Alamance County
District Court. Following the hearing, the trial court entered an
order on 14 April 2005 requiring Defendant to pay prospective
postseparation support to Jane in the amount of $2,000.00 a month,
and retroactive postseparation support totaling $58,500.00 due
and payable at $1,000.00 a month for fifty-eight months, with a
fifty-ninth payment in the amount of $500.00.
(See footnote 2)
represented past due postseparation support due Jane from the date
she filed her action to the date the court announced its decision
in Jane's favor.
(See footnote 3)
On 21 January 2006, Jane died from cancer. That same month,
Defendant stopped all prospective and retroactive postseparation
support payments, and on 9 March 2006, Defendant filed a motion
seeking to terminate his postseparation support obligations. In
June 2006, Roger Badrock (Badrock) was appointed as theadministrator C.T.A. of Jane's estate (Plaintiff). On 14 June
2006, Badrock moved the trial court to be substituted as Plaintiff
in this action for the purpose of prosecuting Jane's estate's claim
for the collection of unpaid postseparation support and attorneys'
fees. On 20 June 2006, an order was entered substituting Badrock
as Plaintiff herein. Thereafter, Badrock filed a response to
Defendant's motion to terminate postseparation support and asked
the court to (1) deny Defendant's motion to terminate the
postseparation support arrearage payments, (2) have Defendant
adjudged in contempt, and (3) order Defendant to resume payments
toward the arrearage.
Following a hearing on 25 July 2006, Judge Roberson filed an
order on 26 September 2006 requiring Defendant to pay the
retroactive postseparation support arrearage. Judge Roberson
determined that the retroactive amount of $58,500.00 was
actually prospective postseparation support due Jane for the
period between the filing of her complaint on 25 April 2002 and the
date the decision awarding postseparation support was announced on
14 November 2004. Judge Roberson further determined that the
retroactive postseparation arrearage vested when the order for
postseparation support was filed on 14 April 2005. The trial court
adjudged Defendant in civil contempt for violating the support
order and ordered Defendant to pay attorneys' fees to Plaintiff's
counsel. Defendant appeals from the trial court's 26 September
2006 order. For the reasons set forth below, we affirm in part and
remand in part the order of the trial court.
Motion to Terminate Postseparation Support Payments
By his first argument, Defendant contends the trial court
erred in denying his motion to terminate his payments toward the
postseparation support arrearage. Defendant asserts that his
motion to terminate should have been granted because the arrearage
had not vested prior to Jane's death. We disagree.
Postseparation support is spousal support that is paid until
either the date specified in the order of postseparation support,
or the date of an order awarding or denying alimony, whichever
comes first. N.C. Gen. Stat. § 50-16.1A(4) (2001). [T]he
purpose of postseparation support  [is] to function almost as
a stop-gap measure to provide some support to a dependent spouse
prior to the discovery of the data necessary for an
alimony . . . hearing. Wells v. Wells, 132 N.C. App. 401, 411,
512 S.E.2d 468, 474 (quotation marks and citation omitted), disc.
review denied, 350 N.C. 599, 537 S.E.2d 495 (1999). Section
50-16.9(b) provides, inter alia, that a supporting spouse is
relieved of the obligation to pay postseparation support at the
death or remarriage of the dependent spouse. N.C. Gen. Stat. §
50-16.9(b) (2001). In the context of alimony, [d]eath ends the
obligation only for future payments . . . . For alimony that is
past due, the dependent spouse or the dependent spouse's estate has
a claim against the supporting spouse or that supporting spouse's
estate. 2 Robert E. Lee, North Carolina Family Law § 9.86, at
502 (5th edition 1999) (citing Briggs v. Briggs, 215 N.C. 78, 1
S.E.2d 118 (1939) (finding that the wife's administrator couldrecover payments of alimony that had matured and were due at the
time of her death)).
The dispositive issue in this case is whether Jane's right to
postseparation support had vested and thus was past due at the time
of her death. Vested support is support that has become a
completed, consummated right for present or future enjoyment[.]
Black's Law Dictionary 1595 (8th ed. 2004). By definition, an
arrearage is [a]n unpaid or overdue debt[.] Id. at 116. Here,
the order for postseparation support arrearage was an order to pay
overdue and unpaid support that Jane was entitled to receive. In
the order for postseparation support filed on 14 April 2005, the
trial court specifically distinguished between the prospective
postseparation support set at $2,000.00 per month, and the
established arrearage of $58,500.00. Since postseparation support
payments were due Jane from the date she filed her complaint on 25
April 2002 to the date the postseparation support award was
announced by the court on 14 November 2004, the arrearage vested
and therefore became due and payable when the trial court entered
its order on 14 April 2005. See McCall v. Harris, 55 N.C. App.
390, 392, 285 S.E.2d 335, 336 (1982) (stating that a lump sum
award of alimony accrues when it is granted). The fact that the
trial court afforded Defendant the accommodation of making
installment payments toward his arrearage did not alter the already
vested nature of the arrearage, but rather simply provided
Defendant a more reasonable means to comply with the order. The arrearage constitutes funds Jane would have received if
the trial court could have promptly heard the claim seeking
postseparation support. Defendant's complaint seeking to annul the
marriage, however, postponed the determination of postseparation
support. The trial court's order acknowledged that postseparation
support was due Jane for the time while the postseparation support
claim was pending, given that Defendant was not entitled to an
annulment of the marriage. Therefore, the court entered an order
to compensate Jane for past due support. Since Jane did not
receive the postseparation support due her throughout the
litigation, once the postseparation award was entered on 14 April
2005, the award vested and became due and payable to Jane. The
trial court did not err in denying Defendant's motion to terminate
payments toward the established arrearage. These assignments of
error are overruled.
Contempt of Court
By his next argument, Defendant asserts the trial court erred
in finding him in contempt for his failure to make payments toward
his established postseparation support arrearage. Again, we
Civil contempt is the
[f]ailure to comply with an order of a court
. . . as long as:
(1) The order remains in force;
(2) The purpose of the order may still
be served by compliance with the
(2a) The noncompliance by the person to
whom the order is directed is
willful; and (3) The person to whom the order is
directed is able to comply with the
N.C. Gen. Stat. § 5A-21(a) (2005). Any order for the payment of
alimony or postseparation support is enforceable by proceedings for
civil contempt, and its disobedience may be punished by proceedings
for criminal contempt . . . . N.C. Gen. Stat. § 50-16.7(j)
(2005). This Court's review of a trial court's finding of
contempt is limited to a consideration of 'whether the findings of
fact by the trial judge are supported by competent evidence and
whether those factual findings are sufficient to support the
judgment.' Gen. Motors Acceptance Corp. v. Wright, 154 N.C. App.
672, 677, 573 S.E.2d 226, 229 (2002) (quoting McMiller v. McMiller,
77 N.C. App. 808, 810, 336 S.E.2d 134, 136 (1985)).
Defendant does not contend that the trial court's findings of
fact are not supported by competent evidence or that the findings
of fact do not support the court's conclusions of law. Where a
defendant fails to take an exception to any findings of fact or
conclusions of law, such findings are presumed to be supported by
competent evidence and are therefore binding on appeal. Taney v.
Brown, 262 N.C. 438, 137 S.E.2d 827 (1964). Here, Defendant's sole
contention is that since the trial court erred in ordering him to
pay the postseparation support arrearage, the arrearage order is
invalid and may not serve as the basis for a proceeding in
contempt. Defendant's argument is without merit.
We have held that the trial court did not err in denying
Defendant's motion to terminate his postseparation supportarrearage payments. The order to pay postseparation support
arrearage was valid and remained in force when Defendant
unilaterally decided to stop making payments toward the arrearage.
Furthermore, the purpose of the order was to compensate Jane for
support due her from the time she filed her complaint for
postseparation support to the time the trial court ordered
Defendant to pay support. As stated in the trial court's order
denying Defendant's motion to terminate the postseparation support
arrearage, [t]he delay in Defendant paying what he lawfully owed
to [Jane] . . . resulted in [Jane] having to take action such as
finding other funding sources for her support, adjusting her
lifestyle, or depleting her estate to account for the absence of
the postseparation support amounts due. Accordingly, Defendant
could still serve the purpose of the order by replenishing Jane's
estate with the arrearage owed.
Additionally, as evident from his motion to terminate
postseparation support payments, Defendant no longer believed he
was obligated to pay toward the postseparation support arrearage,
and so, his failure to continue to pay was willful. Lastly,
Defendant is able to comply with the order. Defendant advances no
argument that he does not have the financial means to comply with
the postseparation arrearage order, and given that his monthly
income exceeded $11,000.00, we perceive no reason that he cannot
afford arrearage payments of $1,000.00 per month for support that
he already should have paid. For these reasons, the trial court
did not err in its order finding Defendant in contempt for failingto make payments toward his postseparation support arrearage. This
argument is overruled.
Award of Attorneys' Fees
By his third argument, Defendant contends that the trial court
erred in its order granting Plaintiff attorneys' fees for the
prosecution of Plaintiff's action to collect unpaid postseparation
support. We agree.
The recovery of attorney's fees is a right created by
statute. A party can recover attorney's fees only if 'such a
recovery is expressly authorized by statute.' Burr v. Burr
N.C. App. 504, 506, 570 S.E.2d 222, 224 (2002) (quoting McGinnis
Point Owners Ass'n, Inc. v. Joyner
, 135 N.C. App. 752, 756, 522
S.E.2d 317, 320 (1999)). Under N.C. Gen. Stat. § 50-16.4, [a]t
any time a dependent spouse would be entitled to alimony . . . or
postseparation support[,] . . . the court may, upon application of
such spouse, enter an order for reasonable counsel fees for the
benefit of such spouse, to be paid and secured by the supporting
spouse[.] N.C. Gen. Stat. § 50-16.4 (2005). In Upchurch v.
, 34 N.C. App. 658, 664-65, 239 S.E.2d 701, 705 (1977)
(citation omitted), disc. review denied
, 294 N.C. 363, 242 S.E.2d
634 (1978), this Court determined that 'at any time' includes
times subsequent to the determination of the issues in [the
dependent spouse's] favor at the trial of her cause on its merits.
However, [i]n order to award attorney fees[,] . . . the trial
court must make findings of fact showing that fees are allowable
and that the amount awarded is reasonable. Id.
at 665, 239 S.E.2dat 705. When an award of counsel fees is made, whether the
statutory requirements have been met is a question of law that is
reviewable on appeal[.] Lamb v. Lamb
, 103 N.C. App. 541, 549, 406
S.E.2d 622, 627 (1991) (quotation marks and citation omitted).
Defendant first contends that the award of attorneys' fees
should be reversed because an award based on an underlying contempt
proceeding has no basis in the law. This argument is without
merit. This Court has held that the contempt power of the
district court includes the authority to award attorney fees as a
condition of purging contempt for failure to comply with an order.
Middleton v. Middleton
, 159 N.C. App. 224, 227, 583 S.E.2d 48, 49-
50 (2003) (citing Hartsell v. Hartsell
, 99 N.C. App. 380, 393
S.E.2d 570 (1990), aff'd per curiam
, 328 N.C. 729, 403 S.E.2d 307
(1991)); see also
N.C. Gen. Stat. § 50-16.7(j) (stating that the
payment of postseparation support is enforceable by proceedings
for civil contempt, and its disobedience may be punished by
proceedings for criminal contempt). Furthermore, as discussed
, the contempt ruling was proper because the postseparation
support arrearage was due and payable when the contempt order was
filed. Defendant willfully violated the court's order to pay the
postseparation support arrearage when he failed to make payments to
Plaintiff, even though he had the means to comply. Since the
contempt order was valid, Defendant's argument is without merit.
Next, Defendant contends that the trial court erred in its
order awarding attorneys' fees because it lacked express statutory
authority to do so. This argument is likewise without merit.Section 50-16.4 gives the trial court express statutory authority
to exercise its discretion in awarding attorneys' fees if a
dependent spouse shows entitlement to postseparation support and
makes a request for attorneys' fees. N.C. Gen. Stat. § 50-16.4
(2005). This Court has recognized that attorneys' fees were
appropriate in alimony pendente lite [now postseparation support]
proceedings and actions of the court pursuant thereto. Upchurch
34 N.C. App. at 664, 239 S.E.2d at 705. Therefore, the court did
have express statutory authority pursuant to N.C. Gen. Stat. §
50-16.4 to award Plaintiff attorneys' fees, and Defendant's
argument contra is without merit.
Although Defendant failed to specifically argue in his brief
the sufficiency of the findings of fact to support the award of
attorneys' fees, all of his assignments of error address the
findings of fact. Additionally, Defendant addresses the
sufficiency of the findings of fact by asserting that the trial
court made no findings relative to the attorney fee award[.]
Accordingly, we address this issue on appeal. As noted supra
[i]n order to award attorney fees[,] . . . the trial court must
make findings of fact showing that fees are allowable and that the
amount awarded is reasonable. Id.
at 665, 239 S.E.2d at 705.
These findings should address the nature and scope of the legal
services, the skill and time required, and the relationship between
the fees customary in such a case and those requested. Peak v.
, 82 N.C. App. 700, 706, 348 S.E.2d 353, 357 (1986) (citation
omitted). Here, although there is evidence in the record as to thereasonableness of the award, the trial court made no findings of
fact addressing this issue in its 26 September 2006 order.
Consequently, we remand this case for findings of fact showing
that fees are allowable and that the amount awarded is reasonable.
34 N.C. App. at 665, 239 S.E.2d at 705.
For the reasons stated, the order of the trial court is
affirmed in part and remanded in part.
AFFIRMED IN PART AND REMANDED IN PART.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).
Upon Defendant's appeal, this Court affirmed Judge Galloway's
decision in an opinion filed 21 February 2006. Pickard v. Pickard
176 N.C. App. 193, 625 S.E.2d 869 (2006).
Postseparation support payments to Jane were based on the
trial court's determination that Jane was a dependent spouse, was
actually and substantially dependent on Defendant for support and
maintenance, and was in need of support and maintenance from
Defendant. This determination has not been challenged by
On 14 November 2004, the trial court issued a memo
announcing its decision to award postseparation support to Jane.
However, the trial court's order was not filed until 14 April 2005.
*** Converted from WordPerfect ***