Bossian v. Bossian

• Decision Date: 05 July 2022
• Docket Number: COA21-483
• Citation: 875 S.E.2d 570
• Parties: Kimberly BOSSIAN, Plaintiff, v. Dennis BOSSIAN, Defendant.
• Court: North Carolina Court of Appeals

875 S.E.2d 570

Kimberly BOSSIAN, Plaintiff,

v.Dennis BOSSIAN, Defendant.

No. COA21-483

Court of Appeals of North Carolina.

Filed July 5, 2022

Tharrington Smith, LLP, Raleigh, by Jeffrey R. Russell, Alice C. Stubbs, and Casey C. Fidler, for Plaintiff-Appellee.

John M. Kirby, Raleigh, for Defendant-Appellant.

WOOD, Judge.

¶ 1 Defendant Dennis Bossian ("Defendant") appeals from Orders finding him in civil contempt, ordering his arrest, denying his Rule 59 motion, and granting Kimberly Bossian's ("Plaintiff") Rule 60 motion. After careful review of the record and applicable law, we affirm the Orders of the trial court.

I. Factual and Procedural Background

¶ 2 Plaintiff and Defendant married on August 22, 1998, separated on February 3, 2013, and are now divorced. The parties have two children born April 9, 2000, and August 28, 2002. On February 12, 2015, Wake County District Court Judge Christian entered an Order for Permanent Child Custody and Child Support ("Custody and Support Order"). The Custody and Support Order granted primary custody of the two minor children to Plaintiff and secondary physical custody with visitation during the children's spring break and two weeks during the summer to Defendant, who resided in Rhode Island. The Custody and Support Order required Defendant to pay $1,225.87 in child support each month until the order was modified or terminated pursuant to the North Carolina Child Support Guidelines. On March 5, 2015, the trial court entered an Order for Equitable Distribution ("Equitable Distribution Order"), requiring Defendant to pay $1,800.00 to Plaintiff as a distributive award following the sale of the marital home.

¶ 3 Both the Custody and Support Order and the Equitable Distribution Order have remained in effect without modification since February 12, 2015, and March 5, 2015, respectively. In January 2016, Plaintiff and Defendant mutually agreed their younger son would move to Rhode Island with his father and Defendant would assume primary custody of him. The younger son resided in Rhode Island with Defendant from January 2016 until July 2018, at which time he returned to North Carolina to live with Plaintiff. Neither parent sought permission from the trial court to modify the Custody and Support Order.

¶ 4 On March 11, 2020, Plaintiff filed a Motion for Order to Show Cause and, in the alternative, a Motion for Contempt for Defendant's failure to pay child support in the amount of $62,519.37; unreimbursed medical expenses in the amount of $5,871.50; and a distributive award payment owed to Plaintiff from the sale of the former marital home in the amount of $1,800.00. On May 1, 2020, the trial court entered an Order to Appear and Show Cause against Defendant; calendared Defendant's advisement hearing for July 23, 2020; and set the show cause hearing for August 25, 2020. At the July 23, 2020 hearing, Defendant signed a Waiver of Counsel, waiving his right to a court-appointed attorney. On August 11, 2020, Defendant, through counsel on a limited appearance, filed a Motion to Continue the show cause hearing, as well as a "Motion to Dismiss or Discontinue Plaintiff's Complaint."

¶ 5 On August 25, 2020, at calendar call held via WebEx, the Honorable Anna Worley denied Defendant's Motion to Continue and set the case for in-person hearing that afternoon in front of the Honorable Ashleigh Dunston "with the understanding that Defendant would be physically present for the live hearing." When the matter was called for hearing, Plaintiff and her attorney were present in the courtroom and Defendant appeared remotely via WebEx. At the afternoon hearing before Judge Dunston, Defendant objected to the WebEx hearing and requested a continuance to have his younger son serve as his witness. Defendant admitted that while he had booked a flight to North Carolina for the contempt hearing on August 24, 2020, to return to Rhode Island on August 26, 2020, he "would have been not only prejudiced by not having [his son] testify, but also, upon his return to Rhode Island, ... would have been subject to a 14-day quarantine." The trial court found that Defendant "intentionally chose not to appear in-person for the hearing; although he continuously stated that he wanted an in-person hearing" and that Defendant's request for an in-person hearing "was waived when he elected not to appear in court on August 25, 2020."

¶ 6 At the contempt hearing, Plaintiff testified Defendant possessed the ability to pay child supports as he is a licensed civil trial lawyer and is the head of civil litigation in Orabona Law Offices in Providence, Rhode Island. Plaintiff also testified Defendant is advertised on Orabona Law Offices’ website as having tried more than a hundred jury trials and possessing an 85% success rate. Plaintiff testified Defendant told her he makes more than $100,000.00 per year and that "he took the new job with Orabona for a substantial pay increase." Additionally, Plaintiff testified Defendant previously worked for Rob Levine Law Offices; was a former equity partner in the law firm of Anderson, Zangari & Bossian; and was previously employed at CVS's corporate office. Plaintiff testified Defendant possesses income and assets in an amount sufficient to purge all amounts currently owed to her. Plaintiff's counsel presented evidence to show that Defendant last paid child support in the amount of $141.00 to Plaintiff in January 2016; offered evidence of the debt she had incurred to meet her reasonable expenses and pay legal fees; and requested Defendant be ordered to pay her attorney's fees.

¶ 7 Defendant, appearing pro se, cross-examined Plaintiff regarding a "Consent modification of custody agreement," which he purported to be a part of the court file. However, Judge Dunston found that this "Consent modification of custody agreement" was not in the court file and would not permit it to be read into evidence. Defendant did not 1) dispute his income amount; 2) offer witnesses on his behalf; 3) testify that he paid Plaintiff any amount of money since the Custody and Support Order was entered; or 4) provide evidence of any payment made to Plaintiff since entry of the Custody and Support Order.

¶ 8 On September 18, 2020, Judge Dunston entered an Order for Civil Contempt and Attorney's Fees ("Contempt Order") finding Defendant in contempt for willfully violating prior orders of the Court. The trial court held Defendant's failure to comply with its Orders had been willful and without just cause or excuse. While the order did not make detailed findings regarding Defendant's income or expenses, it stated Defendant is a civil trial lawyer who earns more than $100,000.00 per year, which gives him the ability to pay child support owed pursuant to the entry of the Custody and Support Order and the ability to comply with this Contempt Order. Further, the trial court found that at the time of the Equitable Distribution Order, and at all relevant times thereafter, Defendant had the requisite means and ability to comply with the terms of that Order. The court also found that Plaintiff acted in good faith in bringing this contempt proceeding, possessed insufficient means to defray the expenses of this action, and was entitled to an award of attorney's fees from Defendant.

¶ 9 In the Contempt Order, Judge Dunston took into consideration the terms of the parties’ mutual agreement concerning the period their younger son resided with Defendant in Rhode Island and its impact upon Defendant's child support obligation. Recognizing that the child support terms of the Custody and Support Order could not be retroactively modified, the trial court set a lower purge amount for Defendant than what was otherwise owed to Plaintiff.

¶ 10 The trial court determined a modified child support arrearage based on its equitable calculation of (1) the number of months the younger son resided with his father in Rhode Island, and (2) the amount of child support Defendant owed to Plaintiff once the elder son reached the age of majority. The court set Defendant's child support purge amount at $25,527.02. Defendant was ordered to pay $5,871.50 for his portion of unreimbursed medical expenses, and $1,800.00 owed from the sale of their marital residence. The trial court ordered Defendant to pay a total purge amount of $31,398.52 by October 30, 2020. The court awarded Plaintiff $11,590.42 in attorney's fees, payable in installments beginning October 2020. The Contempt Order concluded "[t]he purposes of the Court's Orders can still be served by finding Defendant in civil contempt and ordering the purge conditions set forth herein" and "Defendant has the ability to meet the purge conditions set forth herein and the ability to comply with this Order" and ordered:

[i]f Defendant fails to meet the purge conditions by compliance ..., he shall be taken into custody at 12:00 p.m. on November 2, 2020 and shall remain there until he purges himself of contempt by paying $33,198.52 ..., and if he has not met his purge conditions by that date, an order for arrest shall be issued. No further notice will be provided as Defendant was advised in open court that he is in contempt."

¶ 11 On September 25, 2020, Plaintiff filed a Rule 60 Motion for Relief to correct alleged clerical errors in the Contempt Order. Plaintiff argued the Court miscalculated the equitable credits attributed to Defendant's purge amount. Specifically, the Contempt Order found that Defendant "owes [m]onthly child support ... for one child for the period of January 2019 through August of 2020, of $971.29 for eight (8) months, in the total amount of $1,942.58"¹ in error when the order should have found Defendant owes monthly child support for one child for the period of January 2019 through August 2020, in the amount of $971.29 for twenty (20) months, in the amount of $19,425.80, because the number of months between January 2019 and August 2020 is twenty (20) months, not eight (8). As a result, Defendant's child support...