Smith v. Smith, COA15–331.

• Decision Date: 19 April 2016
• Docket Number: No. COA15–331.,COA15–331.
• Court: North Carolina Court of Appeals
• Parties: Craig Steven SMITH, Plaintiff, v. Vera Cranford SMITH, Defendant.

247 N.C.App. 166

785 S.E.2d 434

Craig Steven SMITH, Plaintiff,

v.Vera Cranford SMITH, Defendant.

No. COA15–331.

Court of Appeals of North Carolina.

April 19, 2016.

James, McElroy & Diehl, P.A., Charlotte, by Preston O. Odom, III, G. Russell Kornegay, III, and John Paul Tsahakis, for plaintiff-appellant.

William L. Sitton, Jr., Attorney at Law, Charlotte, by William L. Sitton, Jr. ; and Brendle Law Firm, PLLC, by Andrew S. Brendle, for defendant-appellee.

GEER, Judge.

This is the second appeal before this Court arising out of the parties' claims for equitable distribution, child custody, and child support. In the first action, both parties appealed the permanent child custody and support order and the equitable distribution order. In the instant case, plaintiff Craig Steven Smith appeals (1) the order denying his motion to stay the execution and enforcement of the permanent child support order and (2) the order holding him in contempt for failing to pay his children's private school tuition pursuant to the permanent child support order. He primarily argues that statutory law requires the automatic stay of the permanent child support order upon the parties' appeals of that order and that, as a result, the trial court did not have jurisdiction to hold him in contempt for violating the order. He also asserts that defendant Vera Cranford Smith is precluded from enforcing the child support order from which she had also appealed. We hold that N.C. Gen.Stat. § 50–13.4(f)(9) (2015) allowed the trial court to enforce the child support order that was pending appeal.

Plaintiff also contends that because his income has declined since the entry of the permanent child support order, he did not willfully violate the permanent child support order and should not be held in contempt. We hold that the trial court's conclusion that plaintiff was willfully in contempt of the child support order was supported by factual findings, which in turn were supported by competent evidence. Accordingly, we affirm the orders of the trial court below.

Facts

In the first appeal before this Court, plaintiff challenged the rulings in the 9 July 2014 permanent child support and custody order that required him to pay his children's private school tuition at Providence Day School ("PDS"). Defendant cross-appealed from the same child support order because it required her to reimburse plaintiff for 25% of the tuition payments. On 19 August 2014, a few days after defendant filed her notice of cross-appeal, she also filed and served on plaintiff a motion for emergency relief and motion for contempt in the trial court below. The basis for those post-appeal motions was plaintiff's refusal to pay the required tuition with the result that their children were in danger of forfeiting their enrollment at PDS as a result of the outstanding amount due to the school.

As allowed under the child support order, plaintiff chose to pay for the 2014–2015 PDS tuition on a 10–month installment plan, which required payment of $6,141.00 on the 20th day of each month beginning 20 July 2014. On 8 August 2014, plaintiff's counsel informed defendant's counsel that he was unable to make the July and August 2014 payments as a result of his increasing debt and decreased income. On 11 August 2014, defendant's counsel responded by requesting certain documentation concerning plaintiff's financial circumstances. The deadline for securing continued enrollment of the minor children at PDS was, however, 18 August 2014, forcing defendant to file a motion seeking emergency relief.

On the same day that defendant filed her motions for emergency relief and contempt, Judge Donnie Hoover entered an Order to Appear and Show Cause and Notice of Hearing, requiring plaintiff to appear at a contempt hearing two days later on 21 August 2014. On 20 August 2014, plaintiff filed and served a Motion to Stay Execution and Enforcement of Judgment During Appeal to stay enforcement of the PDS tuition payment directive while the first appeal before this Court was pending. At the hearing on 21 August 2014, plaintiff introduced an updated financial affidavit showing his average net monthly income had reduced to $16,533.01, and that he was now running a monthly deficit of $1,266.72.

After hearing all motions on 21 August 2014, Judge Hoover first denied plaintiff's motion to stay and found that the trial court "has the authority to enforce the Child Support Order ... notwithstanding the appeal[.]" Judge Hoover also found plaintiff in civil contempt, ordering him imprisoned in the Mecklenburg County jail for 30 days or until he pays the tuition owed according to the support order. The trial court subsequently issued a written order on 15 October 2014, specifically requiring plaintiff to pay "the entire balance currently owed to PDS for the 2014–2015 school year." Plaintiff timely appealed to this Court.

I

In challenging the trial court's denial of his motion to stay, plaintiff makes several different arguments. First, he argues that his original appeal from the 9 July 2014 child support order automatically stayed enforcement of the directive to pay his children's private school tuition at PDS pursuant to N.C. Gen.Stat. § 1–294 (2015), effectively taking defendant's motion for contempt out of the jurisdiction of the trial court. Second, relying solely on federal precedent, he attempts to persuade this Court that defendant's cross-appeal of the child support order also requires an automatic stay of the tuition payment directive. Finally, plaintiff argues that the trial court erred by failing to set a bond under N.C. Gen.Stat. § 1–289 (2015) to stay enforcement of the PDS tuition directive.

Normally, we review the denial of a motion to stay under an abuse of discretion standard. Park E. Sales, LLC v. Clark–Langley, Inc., 186 N.C.App. 198, 202, 651 S.E.2d 235, 238 (2007). Here, however, our standard of review is de novo because where a party "presents a question of ‘statutory interpretation, full review is appropriate, and the conclusions of law are reviewable de novo.’ " Romulus v. Romulus, 216 N.C.App. 28, 32, 715 S.E.2d 889, 892 (2011) (quoting Mark IV Beverage, Inc. v. Molson Breweries USA, Inc., 129 N.C.App. 476, 480, 500 S.E.2d 439, 442 (1998) ). Also, where the trial court's subject matter jurisdiction to hear an issue is questioned, " ‘[t]he standard of review ... is de novo. ’ " Id. (quoting Keith v. Wallerich, 201 N.C.App. 550, 554, 687 S.E.2d 299, 302 (2009) ).

We first address plaintiff's argument that the trial court was without jurisdiction to hold him in contempt for violating the permanent support order because it was automatically stayed pending appeal. As a general rule, under N.C. Gen.Stat. § 1–294, "[w]hen an appeal is perfected ... it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein...." However, N.C. Gen.Stat. § 50–13.4(f) (9) establishes an express exception to that rule when the trial court has ordered child support payments. N.C. Gen.Stat. § 50–13.4(f)(9) provides in pertinent part: "Notwithstanding the provisions of G.S. 1–294, an order for the payment of child support which has been appealed to the appellate division is enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal." (Emphasis added.) This exception was applied in Guerrier v. Guerrier, 155 N.C.App. 154, 159, 574 S.E.2d 69, 72 (2002), which held that "orders for the payment of child support are enforceable pending appeal...."

Plaintiff attempts to deflect this exception by arguing that it is only applicable to child support orders requiring "periodic payments" equating to "a specific, unequivocal directive ... to pay child support on a certain schedule and/or by certain dates." Brown v. Brown, 171 N.C.App. 358, 361, 362, 615 S.E.2d 39, 40–41 (2005). Plaintiff claims that because the trial court's order that he pay tuition allowed him "to choose between the options available" at PDS, this is not a "specific, unequivocal directive," id., contemplated by the exception in N.C. Gen.Stat. § 50–13.4(f)(9) and Brown. However, Brown does not control here because it only applies in cases "[w]here an order reducing child support arrears to a money judgment does not include a provision for periodic payments or other deadline for payment[.]" 171 N.C.App. at 362, 615 S.E.2d at 41 (emphasis added). Because neither party has moved to reduce the tuition payment directive to a money judgment, plaintiff's reliance on Brown is misplaced. Furthermore, because we agree with the trial court that the PDS tuition payment directive "is still a periodic payment, whether [plaintiff] chooses to pay it once a year, once a semester or over ten months[,]" we find N.C. Gen.Stat. § 50–13.4(f)(9) controlling in this matter. Accordingly, the child support order was not automatically stayed and the trial court had proper jurisdiction to enforce it.

Plaintiff next argues that defendant's cross-appeal of the child support order should necessarily preclude her from enforcing the very rulings that she is challenging. In support of this proposition, plaintiff cites a number of federal cases. See generally Bronson v. La Crosse & Milwaukee R.R. Co., 68 U.S. 405, 410, 1 Wall. 405, 17 L.Ed. 616 (1863) ; Trustmark Ins. Co. v. Gallucci, 193 F.3d 558, 559 (1st Cir.1999) ; Enserch Corp. v. Shand Morahan & Co., 918 F.2d 462, 464 (5th Cir.1990) ; TN Valley Auth. v. Atlas Mach. & Iron Works, Inc., 803 F.2d 794, 797 (4th Cir.1986). We are, of course, not bound by these decisions, but we also do not find them persuasive authority since the cases do not address appeals from child support orders. Moreover, defendant cross-appealed the final child support order only with respect to the requirement that she reimburse plaintiff for 25% of the tuition after he paid it in full and on time to PDS. We can conceive of no justification for precluding defendant from enforcing plaintiff's cou...