Gordon v. Gordon

• Decision Date: 18 June 2013
• Docket Number: No. COA12–1126.,COA12–1126.
• Citation: 746 S.E.2d 21
• Parties: Steven G. GORDON, Plaintiff, v. Deborah J. GORDON (now James), Defendant.
• Court: North Carolina Court of Appeals

746 S.E.2d 21

Steven G. GORDON, Plaintiff,

v.Deborah J. GORDON (now James), Defendant.

No. COA12–1126.

Court of Appeals of North Carolina.

June 18, 2013.

Appeal by plaintiff from orders entered 12 April 2012 and 29 June 2012 by Judge Teresa H. Vincent in Guilford County District Court. Heard in the Court of Appeals 27 February 2013.

Randolph M. James, PC, by Randolph M. James, for plaintiff.

Woodruff Law Firm, P.A., by Carolyn J. Woodruff and Jessica Snowberger Bullock, for defendant.

ERVIN, Judge.

Plaintiff Steven G. Gordon appeals from orders (1) granting a motion filed by Defendant Deborah J. Gordon (now James) seeking the entry of a preliminary injunction barring Plaintiff from spending or otherwise dissipating funds held in certain bank accounts; (2) clarifying that a previously-entered consent order constituted a judgment requiring the payment of money and establishing the amount currently due and owing under that consent judgment; (3) holding Plaintiff in contempt for violating the consent order; and (4) awarding Defendant $36,579.75 in attorney's fees. On appeal, Plaintiff argues that the trial court “lacked [the] statutory authority to reduce past-due distributive award payments to a judgment;” that the consent judgment was unenforceably ambiguous; that the trial court erred in calculating the award of attorney's fees to Defendant; and that Plaintiff had not breached his obligation to pay money owed under the consent judgment. After careful consideration of Plaintiff's challenges to the trial court's orders in light of the record and the applicable law, we conclude that the orders in question should remain undisturbed.

I. Factual Background

The parties were married in 1983 and separated in 2007. On 21 August 2009, the parties executed a mediated settlement agreement, pursuant to which Plaintiff was required to pay Defendant a distributive award in the amount of $1,200,000.00 and to pay $5,600.00 per month in post-separation support until $1,000,000.00 of the distributive award had been paid. In return, Defendant agreed to waive the right to receive additional post-separation support or alimony.

On 24 August 2009, Plaintiff filed a complaint for divorce.¹ On 28 October 2009, Defendant filed an answer in which she admitted the material facts alleged in Plaintiff's complaint and asserted counterclaims for, among other things, divorce, distribution of the parties' IRA accounts, breach of contract, specific performance of the mediated settlement agreement, and attorney's fees. In a reply filed on 13 November 2009, Plaintiff admitted that he had not made all the payments required by the mediated settlement agreement and asserted various defenses stemming from his alleged inability to obtain a bank loan or otherwise procure the funds needed to make the required payments. On 16 November 2009, Judge Susan R. Burch entered partial summary judgment with respect to the parties' divorce claims.

On 5 May 2010, the trial court entered a consent order which provided, in pertinent part, that:

1. The parties waive findings of fact and conclusions of law.

2. Plaintiff owes [Defendant] an equitable distribution distributive award as follows:

....

b. [Plaintiff] shall pay to [Defendant] on the first day of each month beginning June 1, 2010 the sum of $9000, by direct deposit ... to her ... checking account ... until the earlier to occur of the following:

(i) July 31, 2011 or

(ii) The sale of 8640 Adkins Road, Colfax, NC

c. Upon the earlier to occur of (i) July 31, 2011 or (ii) the sale of 8640 Adkins Road, Colfax, NC, [Plaintiff] shall pay to [Defendant] the entire balance due on the $1,025,000 distributive award. Any part of the $1,025,000 not paid by July 31, 2011 shall bear interest at 8 percent per annum until paid in full.

3. ... [Plaintiff] shall pay to [Defendant] $5000 per month nontaxable alimony beginning May 7, 2010 and on the first day of each month thereafter until the $1,025,000 distributive award is paid in full.... This alimony does not reduce the $1,025,000 distributive award or the $82,000 additional payment.

4. [Plaintiff's] current listing contract is over in August, 2010. [Plaintiff] shall list 8640 Adkins Road, Colfax, NC with Nancy Laney at a realistic price reasonably designed to sell said property. Issues regarding the listing and sale and acceptance of offers of 8640 Adkins Road, Colfax, NC can come on for arbitration on 2 business days' notice[.] ... [Plaintiff] shall inform [Defendant] within 24 hours of all listing agreements and all offers [.] ... Upon the sale of 8640 Adkins Road, Colfax, all net sales proceeds shall be paid to [Defendant, and, the] proceeds from the sale of 8640 Adkins Road shall reduce the $1,025,000 distributive award.

....

7. Plaintiff shall pay to Defendant an additional $82,000 as an additional distributive award over and above the $1,025,000 at the sale of the home at 8640 Adkins Road, Colfax....

The proceedings underlying the present appeal began when Defendant filed a motion on 18 October 2011 seeking to have Plaintiff held in contempt on the grounds that Plaintiff had failed to comply with the consent order. The contempt motion asserted that Plaintiff had willfully failed to (1) pay the distributive award as ordered, (2) pay the monthly alimony award as ordered, (3) set up automatic deposit drafts as ordered, or (4) list the Adkins Road property for sale with Ms. Laney. In addition, Defendant alleged that Plaintiff was “gainfully employed as he owns his own business and is capable of making all payments” required under the consent order. On 8 November 2011, Plaintiff filed a response to Defendant's contempt motion in which he admitted that he had not listed the Adkins Road property for sale with Ms. Laney, argued that listing the home for sale would be an exercise in futility, and alleged that he lacked “the present ability” to comply with the payment provisions of the consent order.

Hearings were held concerning the issues raised by Defendant's contempt motion on four different dates between 26 January 2012 and 12 April 2012. During the course of these hearings, Plaintiff admitted that he had failed to list the Adkins Road property for sale with Ms. Laney in accordance with the provisions of the consent judgment. Plaintiff argued, however, that the language requiring him to list the Adkins Road property for sale at a “realistic price reasonably designed to sell the property” was unenforceably vague and that this deficiency in the consent order obviated the necessity for him to list the property for sale with Ms. Laney at all. Finally, Plaintiff argued that he lacked the ability to make the lump sum payment owed under the consent order and asserted that Defendant had “elected the remedy” of contempt, as opposed to “her contract remedy, suing under [the] contract remedy.” ²

On 12 April 2012, the trial court orally determined that Plaintiff was in contempt of the consent judgment by willfully failing to list the Adkins Road property for sale with Ms. Laney; stated that Defendant had chosen, instead, to list the property with an “inexperienced” agent who “doesn't even come close to having the qualities, the skills necessary, the connections necessary to sell this price of a house;” and noted that, in the court's “opinion ... [, Plaintiff] really [wasn't] trying to satisfy this obligation” because he did not “believe that [he] should have to pay [Defendant any more] money.” As a result, the trial court told Plaintiff that he was being held in contempt of court for willfully failing to list the property with Ms. Laney and that, in the event that he failed to execute a listing contract with her within fourteen days, he would be jailed pending compliance with the relevant provision of the consent judgment. However, the trial court announced that Plaintiff would not be held in contempt for failing to make the lump sum payment required under the consent judgment given that the only way that Plaintiff could have made that payment would have been to liquidate his business, a step that the trial court was unwilling to require.

After the trial court announced its decision with respect to the contempt motion, Defendant's counsel reminded the trial court that the Clerk of Superior Court had previously declined to record the consent order as a judgment requiring the payment of money “without additional language.” In response, the trial court noted that Plaintiff had agreed that the consent order could be recorded as a judgment requiring the payment of money, an observation that Plaintiff did not dispute. As a result, the trial court entered an order on 12 April 2012 “clarifying the judgment index in this County;” stating that “a money judgment has been in effect and on record from and since May 5, 2010, against [Plaintiff] in favor of [Defendant] in the amount and sum certain of $1,025,000.00, as a tax free distributive award”; specifying the amount currently owed as of the date of the trial court's order; and directing the Clerk of Superior Court “to confirm that the money judgment is docketed in favor of Defendant” On the same date, the trial court entered a preliminary injunction barring Plaintiff from spending or otherwise disposing of certain funds and conducted a hearing concerning the merits of Defendant's motion for attorney's fees.

At the attorney's fees hearing, Plaintiff argued that, given that he had not been found in contempt of the provisions contained in the consent order relating to payment of the distributive award, the trial court should refrain from awarding attorney's fees stemming from any aspect of the contempt hearing that dealt with Plaintiff's income, expenditures, or ability to pay the money that he owed Defendant. The trial court rejected this argument, noting that if Plaintiff had listed the Adkins Road property the entire contempt proceeding might well have been avoided, and indicated the intention of awarding the requested...