Belcher v. Averette
| Decision Date | 07 March 2000 |
| Docket Number | No. COA99-405.,COA99-405. |
| Citation | 526 S.E.2d 663,136 NC App. 803 |
| Court | North Carolina Court of Appeals |
| Parties | Joyce B. BELCHER, Plaintiff-Appellee, v. H. Alan AVERETTE, Defendant-Appellant. |
Farris & Farris, P.A., by Robert A. Farris, Jr. and Caroline F. Quinn, Wilson, for the plaintiff-appellee.
Lederer & Associates, P.A., by William M. Lederer, Greenville, for the defendant-appellant.
Before divorcing in 1978, Joyce B. Belcher and H. Alan Averette entered into a separation agreement which was fully incorporated into their divorce judgment. The agreement required Mr. Averette to pay Ms. Belcher the sum of $400.00 per month for support of their two minor children. The agreement also required Mr. Averette "to carry hospitalization insurance on said minor children until they reached the age of eighteen (18) years, as well as all medical and dental bills not covered by the insurance on the minor children."
On 5 August 1998, Ms. Belcher moved the trial judge to hold Mr. Averette in willful contempt of court for allegedly failing to pay the entire amount of court ordered child support.
At the hearing on her motion, Ms. Belcher argued that because the consent order provided that Mr. Averette would "carry hospital and medical insurance on the two said minor children in such amounts as he presently carries upon them," she was entitled to recover the amount she paid for the children's medical insurance through 1994, in addition to the child support arrearages. District Court Judge John L. Whitley, however, found that the consent order did not provide for or allow the recovery of such sums.
At that same hearing, Mr. Averette argued that: (1) his child support payments made from 1988 through 1992 satisfied his support obligation for the ten years immediately preceding the filing of the motion to show cause and (2) any arrearages before that time period were barred by the ten year statute of limitations. Judge Whitley found, however, that any payments made by Mr. Averette from 1988 through 1992 first should be applied to the arrearages due at the time of the payment and thereafter applied to his child support obligation through June of 1994— arrearages of $21,900.00. Under that application, Judge Whitley concluded that the child support arrearages were within the ten year statute of limitations. Accordingly, Judge Whitley found Mr. Averette to be in willful contempt of the court and ordered him to be taken into the custody of "the Sheriff of Wilson County or the Sheriff of any County of this State, or any other jurisdiction charged with the duty of enforcing [the] Court's Orders".
From that order, both Ms. Belcher and Mr. Averette appeal.
In her appeal, Ms. Belcher contends that Judge Whitley erred in concluding that the consent order did not allow her to recover medical expenses and insurance which she incurred on behalf of the minor children. We disagree.
As Ms. Belcher correctly points out in her brief, the consent order provided that Mr. Averette would carry hospital and medical insurance on the minor children. Nonetheless, the agreement also provided that the separation agreement "shall remain in full force and effect, except as modified herein." One such modification was Mr. Averette's child support obligation which was increased from $400.00 per month to $500.00 per month. The consent order also provided that the child support obligation would cover, inter alia, "medical, dental and drug bills" for the children. However, under the terms of the consent order, the parties could negotiate the amount of Mr. Averette's obligation for substantial medical or dental bills incurred for the children which were not covered by the insurance.
Construing these provisions of the consent order, we agree with Judge Whitley's conclusion that the consent order did not provide for medical expenses other than that negotiated by the parties. Because the record does not contain evidence of any such negotiations between the parties, we must uphold the trial judge's conclusions on this issue.
In his appeal, Mr. Averette contends that Judge Whitley erred in concluding that he was in contempt of court because: (1) the child support arrearages at issue were barred by the ten year statute of limitations and (2) there was insufficient evidence to support the trial judge's conclusion that he was in willful contempt of court for his failure to abide by the court's prior orders. We disagree with both contentions.
First, Mr. Averette contends that the arrearages supporting Ms. Belcher's claim were barred by the ten year statute of limitations under N.C.Gen.Stat. § 1-47 since the arrearages became overdue more than ten years immediately preceding the filing of the motion to show cause.
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