Cumberland Cnty. ex rel. Mitchell v. Manning, COA17-662
| Decision Date | 20 November 2018 |
| Docket Number | No. COA17-662,COA17-662 |
| Citation | 262 N.C.App. 383,822 S.E.2d 305 |
| Parties | CUMBERLAND COUNTY, EX REL. Lloyd E. MITCHELL, Sr., Plaintiff, v. Danita L. MANNING, Defendant. |
| Court | North Carolina Court of Appeals |
Cumberland County Child Support Department, by Ben Logan Roberts and Roxanne C. Garner, for plaintiff-appellee Cumberland County.
Lewis, Deese, Nance & Briggs, LLP, Fayetteville, by Renny W. Deese, for plaintiff-appellee relator.
Michael E. Casterline, Asheville, for defendant-appellant.
Danita L. Manning ("Defendant") appeals from an order holding her in civil contempt. On appeal, Defendant argues: (1) the contempt order attempts to enforce a child support order no longer in force; and (2) the findings on willfulness and present ability to pay are not supported by competent evidence and do not support the trial court's conclusions.. We affirm in part and vacate and remand in part.
On 31 March 2014, the Cumberland County Child Support Enforcement Agency ("the Agency") filed a complaint on behalf of Lloyd E. Mitchell, Sr. ("Relator"). In the complaint, the Agency alleged the following. Relator and Defendant married on 8 November 1997. The two had one child during the marriage and separated on 1 August 1998. Defendant "has failed or refused to adequately contribute to the support and maintenance of [ ]her minor child(ren)[.]" Defendant "is and has been an able bodied person, capable of providing child support through all times relevant to this action."
The court held a hearing on 24 July 2014. In an temporary child support order entered 19 August 2014, the court ordered Defendant to do the following: (1) pay $187 per month to the North Carolina Centralized Collections; (2) provide her child with medical coverage; and (3) reimburse Relator fifty percent of all unreimbursed medical expenses, after the first $250 per year.
On 2 October 2014, the court held another hearing. On 28 October 2014, the court entered a permanent child support order. The court found Defendant had the ability to pay $187 child support per month and ordered Defendant to do so. The court found Defendant owed $374 of past child support and ordered Defendant to pay $18 per month in arrears.
On 5 April 2016, Defendant filed a motion to set aside/terminate arrears. On 6 April 2016, the court entered an "Order to Appear and Show Cause for Failure to Comply Support Order and Order to Produce Records." (All capitalized in original). In the order, the court found "probable cause to believe [Defendant was] in contempt for failure to comply with" the child support order. The order averred Defendant owed $3,927 in past due support payments. The court ordered Defendant to appear in Cumberland County District Court "to show cause why [she] should not be ... held in contempt of court for failing to comply with the lawful orders of this Court." The order informed Defendant if the court found her to be in civil contempt, she "may be committed to jail for as long as the civil contempt continues." Although child support payments were suspended because Defendant's son reached his eighteenth birthday and was no longer in school, the Agency sought payment for the amount still in arrears.
On 20 July 2016, court held a show cause hearing, which Defendant attended. Defendant requested a continuance, to set aside prior orders, and to dismiss the show cause order. The court dismissed or denied all of Defendant's requests. The court then heard the Agency's motion for contempt. The parties did not call anyone to testify. Defendant did not present any evidence. The court found Defendant in willful contempt.
On 18 August 2016, the court entered an order for contempt. The court found, inter alia :
The court concluded "Defendant is in willful contempt of this Court for her failure to comply with the terms and conditions of the order previously entered in this case." The court decreed Defendant owed arrears of $3,740. The court ordered Defendant to pay $205 per month in arrears and set the purge amount at $2,500. The court ordered Defendant to the custody of the Sheriff of Cumberland County.
On or about 12 September 2016, the court reduced the purge amount to $1,000, with an additional $1,500 to be paid by 26 October 2016. On 14 September 2016, Defendant filed notice of appeal from the order for contempt. On 5 October 2016, the court further reduced the purge amount to $500, with additional amounts to be paid on a schedule set by the trial court. On 15 November 2016, the trial court issued a stay of the judgment from the order for contempt pending appeal and ordered Defendant be released from custody.
The standard of review for contempt is:
limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law. Findings of fact made by the judge in contempt proceedings are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing upon their sufficiency to warrant the judgment.
Watson v. Watson , 187 N.C. App. 55, 64, 652 S.E.2d 310, 317 (2007) (citations and quotation marks omitted).
A trial court may hold a party in civil contempt for failure to comply with a court order if:
N.C. Gen. Stat. § 5A-21(a) (2017).
Defendant contends the trial court erred in holding her in civil contempt because the underlying child support order was no longer in force at the time of her show cause hearing, and, thus, its purpose could not be served by her compliance with the order. We disagree.
This argument was not made at the show cause hearing, and, on appeal, Defendant cites no law supporting this argument. Although Defendant's child support obligation terminated because her son turned eighteen and was no longer in school, the arrears owed to the county remained.
If an arrearage for child support or fees due exists at the time that a child support obligation terminates, payments shall continue in the same total amount that was due under the terms of the previous court order or income withholding in effect at the time of the support obligation. The total amount of these payments is to be applied to the arrearage until all arrearages and fees are satisfied or until further order of the court.
N.C. Gen. Stat. § 50-13.4(c) (2017).
On 28 October 2014, the court entered the permanent child support order and directed Defendant to pay $187 per month. The order "remain[ed] in full force and effect." Defendant made no child support payments before her son turned eighteen and finished school. The court found the purpose of the order, "payment of child support[,]" would be served by Defendant's compliance with the order. We conclude competent evidence supports this finding, and the findings and applicable law support the conclusion the child support order remained in force. Accordingly, Defendant's argument is without merit.
Civil contempt proceedings may be initiated:
(1) by the order of a judicial official directing the alleged contemnor to appear at a specified reasonable time and show cause why he should not be held in civil contempt; (2) by the notice of a judicial official that the alleged contemnor will be held in contempt unless he appears at a specified reasonable time and shows cause why he should not be held in contempt; or (3) by motion of an aggrieved party giving notice to the alleged contemnor to appear before the court for a hearing on whether the alleged contemnor should be held in civil contempt. Under the first two methods for initiating a show cause proceeding, the burden of proof is on the alleged contemnor. However, when an aggrieved party rather than a judicial official initiates a proceeding for civil contempt, the burden of proof is on the aggrieved party, because there has not been a judicial finding of probable cause.
Moss v. Moss , 222 N.C. App. 75, 77, 730 S.E.2d 203, 204-05 (2012) (brackets, quotation marks, and citations omitted); N.C. Gen. Stat. § 5A-23 (2017).
Nonetheless, our Court recognized the burden shift under the first two ways of commencement does not divest the trial court of its responsibility to make findings of fact supported by competent evidence:
despite the fact that the burden to show cause shifts to the defendant, our case law indicates that the trial court...
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