Hartsell v. Hartsell

• Decision Date: 17 July 1990
• Docket Number: No. 8926DC551,8926DC551
• Citation: 99 N.C.App. 380,393 S.E.2d 570
• Parties: Billie M. HARTSELL, Plaintiff/Appellee, v. Gene W. HARTSELL, Defendant/Appellant.
• Court: North Carolina Court of Appeals

Page 570

393 S.E.2d 570

99 N.C.App. 380

Billie M. HARTSELL, Plaintiff/Appellee, v. Gene W. HARTSELL, Defendant/Appellant.

No. 8926DC551.

Court of Appeals of North Carolina.

July 17, 1990.

James, McElroy & Diehl, P.A. by William K. Diehl, Jr. and Barbara J. Hellenschmidt, Charlotte, for plaintiff/appellee.

Business Legal Services, P.A. by Douglas E. Brafford and Stephen D. Kaylor, Matthews, for defendant/appellant.

SARAH ELIZABETH PARKER, Judge.

The parties were married 24 July 1954. On 6 February 1985 plaintiff filed a complaint seeking a divorce from bed and board, temporary and permanent alimony, and equitable distribution of the marital property. Following other proceedings in the matter, on 15 February 1988, the court entered judgment settling the distribution of the parties' property as consented to by the parties and their counsel. This judgment provided that the parties exchange certain real and personal property and transfer titles to said property, that defendant should pay to plaintiff the sum of $30,000.00 as a distributive award on or before 1 July 1988, and that each party was to retain all other property then possessed by each. As to the exchange of real property, plaintiff and defendant were to exchange residences, with plaintiff getting the home at 101 Pine Point, Lake Wylie, South Carolina, and defendant getting the home at 6425 Springfield Drive, Charlotte, North Carolina. This exchange was to occur within 30 days of the payment of the distributive award. Additionally, each party was to clean the residence in their possession prior to transfer and was to leave the residence in a "tidy condition." Personal property to be exchanged was to be left at the residences at the time of transfer or other arrangements were to be made for the exchange at the time of the transfer.

On 27 October 1988 plaintiff filed a motion alleging that defendant had at all times had the ability to comply with the consent judgment and had wilfully refused to comply with the terms of said judgment. Plaintiff requested that the court order defendant to show cause why he should not be held in contempt of the prior judgment. The court issued an order to show cause informing defendant that the court had probable cause to believe that defendant was in civil and/or criminal contempt of the prior consent judgment and directing defendant to appear before the court.

The show cause hearing was held 12 and 13 December 1988 and plaintiff presented evidence which tended to show that as of the date of the hearing defendant had not paid plaintiff the $30,000.00 distributive award, defendant had abandoned the Lake Wylie residence, and when plaintiff took possession of the Lake Wylie residence it was a "wreck" in that the house was full of garbage, the water pipes had burst, flooding the inside, the yard was overgrown and full of weeds, and part of a bedroom floor was rotted out where rain had come in through an open window. Counsel for plaintiff then called defendant to the stand. After answering some preliminary questions, defendant refused to answer further questions and asserted his rights under the fifth amendment to the United States Constitution. Plaintiff also called as a witness defendant's former attorney, who had participated in the property settlement and had helped draft the judgment which defendant allegedly had disregarded.

Based on the evidence presented at the hearing, the court found defendant in civil contempt of the prior consent judgment and ordered defendant to be incarcerated until he purged his contempt by transferring title to the 1984 Datsun automobile to plaintiff, by transferring possession of certain named items of personal property to plaintiff, and by paying $35,961.00 representing $30,000.00 due 1 July 1988 under the consent decree, $1,376.00 ad valorem taxes, $338.00 moving costs, $1,247.00 in repairs and cleanup and $3,000.00 attorney's fees. From this order holding him in contempt defendant appeals.

Defendant brings forward numerous assignments of error on appeal. These assignments of error are grouped into five basic arguments. First, defendant contends that the court's order is erroneous in that various findings of fact are not supported by competent evidence. Second, defendant asserts that the court erroneously placed the burden of proof on defendant and followed a procedure which violated defendant's rights under the United States Constitution. Defendant next assigns error to the trial court's awarding attorney's fees to plaintiff. Fourth, defendant contends that the trial court erred in awarding compensatory damages to plaintiff. Finally, defendant asserts that the admission of testimony of defendant's former attorney at the contempt hearing violated defendant's attorney-client privilege.

I.

In a domestic relations action, a consent judgment which has been adopted by the court may be enforced by civil contempt. Henderson v. Henderson, 55 N.C.App. 506, 286 S.E.2d 657 (1982), aff'd, 307 N.C. 401, 298 S.E.2d 345 (1983). "Review in contempt proceedings is limited to whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law." Adkins v. Adkins, 82 N.C.App. 289, 292, 346 S.E.2d 220, 222 (1986) (citing Cox v. Cox, 10 N.C.App. 476, 179 S.E.2d 194 (1971)). 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. Mauney v. Mauney, 268 N.C. 254, 257, 150 S.E.2d 391, 394 (1966).

In his first argument, defendant contends that there was no competent evidence to support the trial judge's findings of fact. Our careful review of the transcript and record on appeal reveals competent evidence to support each finding of fact. Therefore we find no merit in defendant's contention.

In the present case the trial court found as fact that "[d]efendant ha[d] at all times been fully capable and able of complying with all provisions of the Court's decree" and that "[d]efendant ha[d] the present ability and continuing capability to comply with all remaining provisions of the Court's decree with which he ha[d] not heretofore complied." Based on these findings the court concluded that defendant's conduct was wilful and in direct disobedience of the judgment.

In order to support a finding of wilfulness in a civil contempt proceeding there must be evidence to establish as an affirmative fact that defendant possesses the current ability to comply with the order. Adkins v. Adkins, 82 N.C.App. at 292, 346 S.E.2d at 222; Plott v. Plott, 74 N.C.App. 82, 85, 327 S.E.2d 273, 275 (1985); Teachey v. Teachey, 46 N.C.App. 332, 264 S.E.2d 786 (1980). Although specific findings as to the contemnor's present means are preferable, this Court has held that a general finding of present ability to comply is sufficient basis for the conclusion of wilfulness necessary to support a judgment of civil contempt. Adkins v. Adkins, 82 N.C.App. at 292-93, 346 S.E.2d at 222; Plott v. Plott, 74 N.C.App. at 84-85, 327 S.E.2d at 275.

In the present case these findings are supported by competent evidence. At trial plaintiff produced evidence that she had conveyed the house in Charlotte to defendant and that the equity in this house was at least $60,000.00. Additionally, defendant had several items of personal property of value. Although defendant contends that plaintiff failed to affirmatively prove that he could have obtained at least $60,000.00 for the equity in the Charlotte house, in a similar case this Court has held that evidence that the contemnor owned three automobiles and at least three tractor-trailers in conjunction with his business was competent evidence of the contemnor's present ability to comply with court-ordered child support payments. Adkins v. Adkins, 82 N.C.App. at 292, 346 S.E.2d at 222. The present ability to comply includes the present ability to take reasonable measures that would enable him to comply. Teachey v. Teachey, 46 N.C.App. at 334-35, 264 S.E.2d at 787-88. Accordingly, we hold that the court's finding of present ability to comply was based on competent evidence.

Defendant further contends that he did not have the present ability to transfer various items of personal property to plaintiff. We have examined defendant's reasons in support of these contentions and find them without merit.

Defendant also asserts that there was no competent evidence to support the court's finding that "[d]efendant at all times was fully aware of the contents of the Order and had full understanding of same." Both defendant and defendant's counsel signed the consent judgment and, thus, absent evidence to the contrary, defendant is held to have understood and consented to the contents of that judgment. See Wachovia Bank v. Bounous, 53 N.C.App. 700, 705-06, 281 S.E.2d 712, 715 (1981); Nickels v. Nickels, 51 N.C.App. 690, 693-94, 277 S.E.2d 577, 579, disc. rev. denied, 303 N.C. 545, 281 S.E.2d 392 (1981).

II.

In his second argument defendant asserts that, because he was potentially subject to criminal penalties in this proceeding, by placing the burden of persuasion on defendant with respect to changed circumstances or justification for noncompliance with the consent judgment, the trial court denied him his right against self-incrimination as guaranteed by the fifth and fourteenth amendments to the United States Constitution, by the North Carolina Constitution, and by the North Carolina General Statutes. According to defendant, by virtue of the show cause order, which stated that the court had probable cause to believe that "civil and/or criminal contempt ha[d] occurred," defendant was subject to a proceeding whereby he was exposed not only to civil penalties but to criminal penalties as well.

Defendant asserts that although, under G.S. 5A-23, criminal contempt can be found in a civil contempt...