Foy v. Foy, 8326DC974

• Decision Date: 19 June 1984
• Docket Number: No. 8326DC974,8326DC974
• Citation: 316 S.E.2d 315,69 N.C.App. 213
• Parties: Ellavene M. FOY v. Howard J. FOY.
• Court: North Carolina Court of Appeals

Page 315

316 S.E.2d 315

69 N.C.App. 213

Ellavene M. FOY v. Howard J. FOY.

No. 8326DC974.

Court of Appeals of North Carolina.

June 19, 1984.

Curtis, Millsaps & Chesson by Joe T. Millsaps, Charlotte, for plaintiff, appellee.

Ellis M. Bragg, Jr., Charlotte, for defendant, appellant.

HEDRICK, Judge.

We note at the outset defendant's failure to comply with Rule 28, North Carolina Rules of Appellate Procedure, in regard to the preparation of his brief. Counsel's failure to identify in the brief the assignments of error and exceptions forming the basis for questions presented renders the task of an appellate court more difficult, and the appeal subject to dismissal. Nevertheless, we turn to a consideration of the merits of the three questions argued by defendant on appeal.

Defendant first contends that "the evidence before the trial Court was insufficient to support a finding that Mr. Foy's failure to comply with the Judgment of October 5, 1970 was 'willful.' " Examination of the judgment reveals the following finding of fact made by the trial court and excepted to by defendant:

34. That whether from the defendant's Social Security benefits alone, or from funds derived from his business over which he has control, the defendant has had the ability during each and every month after April of 1977 to have paid some amounts of the $40.00 per week alimony obligations to the plaintiff and his failure to do so has been willful.

It is well-settled that findings of fact made by the court in contempt proceedings are conclusive on appeal if supported by any competent evidence in the record. Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978). See also Lee v. Lee, 37 N.C.App. 371, 246 S.E.2d 49 (1978). Our examination of the record reveals ample support for Judge Brown's above-quoted finding of fact:

Defendant has been continuously licensed as an electrical contractor since 1946, and he is a "qualified person" as that term is defined by the State Board of Examiners of Electrical Contractors. Defendant's present wife, Diane Foy, is the legal owner of "Foy and Son Electric Company," for which defendant serves as the "qualified person" required by the rules and regulations issued by the State Board of Examiners. These regulations require that a "qualified person" supervise and direct all electrical work performed under his license, and that he be "regularly on active duty in the licensee's place of business." It is uncontroverted that defendant performs managerial services for Foy and Son, and that he "looks at" various jobs performed by company employees. While Mr. Foy receives no salary directly from the company for his services, his wife, as legal owner and employee, receives both salary and profits, which she in turn gives to defendant in the form of "support." Furthermore, advertisements appearing in the telephone directory have listed defendant as the owner of Foy and Son, as did the Charlotte city directory for the years 1978 and 1980. In licensing renewal applications since 1977 defendant has at various times referred to himself as "owner" and "manager" of the company.

We think this and other evidence presented to the trial court provides ample support for the court's findings that defendant is the "actual owner" of Foy and Son, and that defendant has attempted to avoid his alimony obligations by "claiming legal ownership of his assets in his present wife." Even if we held this evidence insufficient to support such a finding, however, the result would be no different. The evidence establishes beyond peradventure that defendant has at all times since April, 1977, rendered services to the company which were essential to its operation, and for which defendant could have demanded direct and substantial compensation. Defendant's own testimony, taken as true, supports the court's finding that Mr. Foy has at all times had the ability to pay plaintiff the sum of $40.00 per week, and that his failure to do so has been willful.

Apart from Mr. Foy's interest in Foy and Son, the record contains substantial evidence of other...