Reynolds v. Reynolds

• Decision Date: 18 December 2001
• Docket Number: No. COA00-383.,COA00-383.
• Citation: 147 NC App. 566,557 S.E.2d 126
• Court: North Carolina Court of Appeals
• Parties: David P. REYNOLDS, Plaintiff, v. Cynthia W. REYNOLDS, (now Flynn), Defendant. Cynthia Flynn (formerly Reynolds), Plaintiff, v. David P. Reynolds, Defendant.

557 S.E.2d 126

147 NC App. 566

David P. REYNOLDS, Plaintiff, v. Cynthia W. REYNOLDS, (now Flynn), Defendant.

Cynthia Flynn (formerly Reynolds), Plaintiff, v. David P. Reynolds, Defendant.

No. COA00-383.

Court of Appeals of North Carolina.

December 18, 2001.

James, McElroy & Diehl, P.A., by William K. Diehl, Jr., Charlotte, for plaintiff-appellee Cynthia Flynn.

Helms, Cannon, Henderson & Porter, P.A., by Thomas R. Cannon and Christian R. Troy, Charlotte, for defendant-appellant David P. Reynolds.

GREENE, Judge.

David P. Reynolds (Defendant) appeals an order filed 30 August 1999 (the 30 August 1999 Order) in favor of Cynthia Flynn (Plaintiff) adjudicating Defendant in criminal contempt and ordering him to pay Plaintiff's attorney's fees in the sum of $65,000.00.

Plaintiff and Defendant were married on 2 July 1983. One child, Audrey Louise Reynolds (Audrey), was born of Plaintiff's and Defendant's marriage on 20 January 1984. The parties subsequently separated on 6 May 1991 and divorced on 2 November 1992. On 1 October 1992, the parties entered into a binding Separation Agreement and Property Settlement (the Agreement). The Agreement provided that Defendant was to pay Plaintiff $2,000.00 per month "for the partial maintenance of [Audrey] to be paid on the first day of each month." In addition, pursuant to the Agreement, the parties were to "have joint custody of [Audrey]." Audrey, however, would "reside primarily with [Plaintiff], subject to reasonable visitation by [Defendant]" as provided in the Agreement.

Plaintiff filed an action on 25 October 1993 against Defendant seeking specific performance of the Agreement and damages for Defendant's breach of the Agreement due to his failure to: abide by a visitation schedule; give Plaintiff reasonable notice of his visitation; and pay the $2,000.00 per month in child support. An order was entered on 28 April 1994 ordering Defendant to immediately deliver to Plaintiff the sum of $6,000.00 to bring current his child support arrears and "in the future, to make his child support payments on time, directly to [Plaintiff]." The trial court filed a second order on 3 May 1994, with the consent of the parties, directing Defendant to pay Plaintiff the cash sum of $2,000.00 per month for the support of Audrey. On 5 May 1999, the trial court filed a consent order from a 17 February 1998 hearing resolving pending claims for specific performance, custody, visitation, child support, and Plaintiff's contempt motion of 7 October 1997. This order awarded legal custody of Audrey to Plaintiff, as well as provided a visitation schedule for Defendant, and directed Defendant to: bring current all obligations for child support through the month of April 1999; maintain medical insurance for the benefit of Audrey and pay uninsured medical, dental, and drug bills incurred on behalf of Audrey; and "if a contempt citation [was] successfully brought by either party against the other, the losing party [would] be required to pay the reasonable counsel fees of the prevailing party."

After the entry of the trial court's orders, Defendant remained consistently delinquent in his payments of child support to Plaintiff. On 5 April 1999, Plaintiff filed a motion for contempt alleging Defendant: was four months delinquent in his child support payments; had failed to provide medical insurance coverage for Audrey; had failed to pay uninsured medical, dental, and drug expenses incurred by Audrey; had the ability to comply with all orders entered; had full knowledge and understanding of the requirements of the orders; and had refused and continued to refuse to comply with the terms of the order. After Plaintiff filed the motion for contempt for non-payment of child support, Defendant paid the cash child support arrearages due through April 1999.

On 30 August 1999, the trial court found, in pertinent part, that:

16. [Defendant] offered no legitimate excuse for his non-payment of cash child support on repeated occasions from 1993 through 1999.

17. [Defendant] has stipulated that he has the financial capability of making an attorney['s] fee and court cost payment as may be ordered by this [c]ourt without the necessity of the [c]ourt examining economic data related to [Defendant].

18. [Defendant] has liquid assets approaching $1 million as of the date of this hearing, in addition to his real estate holdings, automobiles, and tangible property.

19. [Defendant's] failure to comply with the terms of the [o]rders is willful and deliberate.

20. At all times since entry of the [o]rders, [Defendant] has had the ability to comply with the [o]rders.

21. [Defendant] has at all times been fully aware of the [o]rders entered by this [c]ourt and has had full knowledge and understanding of the requirements of the [o]rders.

22. Beginning in October of 1993 and continuing into April of 1999, [Defendant] has refused, repeatedly, to comply with the terms of the [c]ourt [o]rders related to cash child support....

....

25. There has never been a question about [Defendant's] ability to pay; he has simply not paid from time to time as a means of punishing and/or harassing [Plaintiff].

....

32. William K. Diehl, Jr. [ (Diehl) ] ... has represented [Plaintiff] throughout these proceedings.

....

34. Beginning in 1993, when [Defendant] stopped complying with [the Agreement] to pay child support through June 17, 1999, [Diehl's] firm has submitted billings to [Plaintiff] in the total amount of $71,782.50 representing time expenditures by [Diehl] of 126.4 hours; 132 hours by his associate Katherine Line Kelly; and 96 hours by paralegals. Furthermore, the firm advanced costs totaling $2,601.25.

....

36. [Diehl] is an experienced lawyer, having practiced for thirty years. He is an expensive lawyer, charging $500.00 per hour for his time. His associate ... billed between $90.00 and $150.00 per hour. Paralegal time was billed at $75.00 to $85.00 per hour. The [c]ourt finds the hourly rates charged by [Diehl], his associate and the paralegals are reasonable, and consistent with charges made by lawyers of comparable skill and ability in this community.

37. [Defendant's attorney], like [Diehl], is an experienced practitioner and has appeared before this [c]ourt on many occasions. [Plaintiff] is entitled to have counsel of the caliber of [Diehl], to meet [Defendant] and his attorney on an equal footing.

38. The value of [Diehl's] service [is] no less than $65,000.00....

39. The [c]ourt obtained from counsel for [Plaintiff and Defendant] a stipulation that of the $65,000.00 award, $10,000.00 represents time related to the contempt portion of this case and the remaining $55,000.00 to other issues (custody and visitation).

The trial court then concluded:

2. Past willful disobedience of a court [o]rder for child support is punishable as criminal contempt.

3. Beginning in 1993, and continuing through the first four months of 1999, [Defendant] has repeatedly violated court [o]rders entered in this case requiring him to timely pay cash child support.

4. At the times [Defendant] has not paid cash child support, he has had the ability to make the payments, but has chosen, intentionally, not to do so as a form of harassment and punishment directed to [Plaintiff].

5. [Defendant] did not make child support payments due on the 1st of January, February and March of 1999 and the 1st of July 1998.

6. [Defendant] offered no legal excuse for his non-payment and there is none.

7. After [Plaintiff] filed her most recent Motion for Contempt, [Defendant] made the cash child support arrearage payments. These payments eliminate the option of finding [Defendant] in civil contempt of court, but do not excuse his criminal contempt.

8. [Defendant] is guilty beyond a reasonable doubt of criminal contempt of the [o]rders of this [c]ourt requiring him to timely make cash child support payments.

9. Interest is due ... from the due date of each $2,000.00 per month child support payment and interest arrearages with regard to payments due July 1, 1998, January 1, 1999, February 1, 1999, March 1, 1999, until the date of payment total $212.50 and [Plaintiff] is entitled to a judgment against [Defendant] in that amount.

10. [Plaintiff] does not have sufficient funds with which to employ and pay counsel with regard to the handling of this case commencing in 1993 and continuing through the contempt hearing in July of 1999.

....

13. [Plaintiff] is an interested party who has acted in good faith in bringing this action and in prosecuting the Motion for Contempt.

14. Counsel for [Plaintiff] has acted skillfully and considering the work performed, the nature of the task imposed, the result obtained, a total charge of $65,000.00 to be paid by [Defendant] to [Diehl] and his firm is, in all respects, reasonable and appropriate.

15. [Defendant] has the ability to immediately make the attorney[`s] fee award as required by this [o]rder.

16. By stipulation, the parties agree that $55,000.00 of the award relates to the handling of the custody, child support aspects of the case and $10,000.00 to the Motion to hold [Defendant] in contempt of [c]ourt.

17. [Defendant's] conduct requires the [c]ourt to impose security to ensure that in the future cash child support payments are paid in a timely fashion.

The trial court then adjudged Defendant guilty of criminal contempt and ordered an active sentence of thirty days in the Mecklenburg County Jail suspended on the following conditions: Defendant's posting of a cash bond or security of at least $75,000.00 to secure and assure the timely payment of future cash child support; Defendant immediately paying Plaintiff's attorney the sum of $212.52, "representing interest on the four delinquent child support payments"; Defendant timely paying each cash child support amount due; and Defendant immediately paying $10,000.00 in attorney's fees. The 30 August 1999 Order also ordered Defendant to pay to Diehl and his firm "the sum of $55,000.00[,]...