Spears v. Spears, COA14–1133.

• Decision Date: 02 February 2016
• Docket Number: No. COA14–1133.,COA14–1133.
• Citation: 784 S.E.2d 485
• Court: North Carolina Court of Appeals
• Parties: Julie SPEARS, Plaintiff, v. James Gregory SPEARS, Defendant.

784 S.E.2d 485

Julie SPEARS, Plaintiff,
v.
James Gregory SPEARS, Defendant.

No. COA14–1133.

Court of Appeals of North Carolina.

Feb. 2, 2016.

James, McElroy & Diehl, P.A., Charlotte, by Preston O. Odom, III and Jonathan D. Feit, for plaintiff-appellee.

Collins Family Law Group, by Rebecca K. Watts, Charlotte, for defendant-appellant.

STROUD, Judge.

Although this case began on or about 31 July 2008 and several interlocutory orders have been entered since its inception, the first orders for which James Gregory Spears ("defendant") had a right of immediate appeal were entered on 27 May 2014. These orders held defendant in civil contempt for his continuing failure to pay more than his entire disposable income each month towards his obligations of payment of credit card debt, child support, alimony, and attorneys'

784 S.E.2d 488

fees, ordered his imprisonment, and required him to pay an additional $900.00 per month over and above the established obligations for an indefinite time in order to purge himself of contempt. Defendant appeals from these orders, and we vacate.

I. Background

Julie Spears ("plaintiff") and defendant married in 1991 and three children were born to the marriage. They separated on or about 1 January 2008, and plaintiff filed a complaint seeking child custody, child support, post-separation support, alimony, attorneys' fees, and equitable distribution on or about 31 July 2008. The parties were divorced on 15 October 2008.¹ On or about 12 December 2008, defendant filed his answer and counterclaims for child custody and equitable distribution. On 19 December 2008, defendant remarried to his second wife.

The procedural history of this case is extremely complex due to the repeated pattern of entry of orders many months after the hearings upon which they were based and changes in circumstances during the long lapses in time between hearings and entry of orders, which has resulted in the situation presented, in which there still is not a final order addressing all of the parties' obligations as to equitable distribution, alimony, and child support. Nor has defendant ever been able to have a court hear his claims for modification of his support obligations based upon his allegations of substantial changes of circumstances, since no final order has been entered which he could move to modify or which the court could modify. In this appeal, we are trying to hit a moving target.

On 16 December 2008, the trial court held a hearing upon plaintiff's claims for post-separation support, temporary child support, and attorneys' fees. On or about 10 February 2009, the trial court entered a temporary support order based upon the December 2008 hearing. The trial court found that defendant was employed by the United States Army and had an average gross monthly income of $7,339.00. Plaintiff was not employed outside of the home although she was seeking employment. The trial court found that defendant's reasonable needs and expenses were $2,500.00 per month. Based on the North Carolina Child Support Guidelines, the trial court ordered defendant to pay child support of $1,561.00 per month beginning 15 December 2008 and to continue to provide medical insurance for the children. The trial court also ordered defendant to pay post-separation support of $1,800.00 per month beginning 1 December 2008 as well as $2,500.00 in attorneys' fees to plaintiff's counsel. In addition, defendant was ordered to make timely payments on several credit cards, for which he would be given "appropriate credit" upon resolution of the equitable distribution claims.

On or about 22 May 2009, plaintiff filed a motion to hold defendant in contempt for failure to pay the full amounts of child support and post-separation support required under the temporary support order. The trial court entered an order on 16 September 2009 holding defendant in civil contempt for his failure to comply with the temporary support order. In addition to the ongoing temporary child support and post-separation support, the trial court ordered defendant to pay $9,000.00 for post-separation support arrears, at the rate of $500.00 per month starting 15 September 2009 and continuing until paid in full. He was also ordered to pay plaintiff's attorneys' fees in the amount of $6,650.00 with the terms of payment to be "deferred until equitable distribution."

On or about 20 December 2009, defendant filed a motion to stay proceedings because he had been stationed in Afghanistan on or about 11 August 2009 for a period of one year. Although our record does not reveal the trial court's ruling, if any, upon the motion to stay, no additional court proceedings occurred until December 2011.

A. Defendant's Obligations under the February 2013 Order

On 12 and 13 December 2011, the trial court heard the matters of equitable distribution, alimony, child custody, child support, and attorneys' fees. Ultimately, the

784 S.E.2d 489

trial court signed an order as a result of this hearing on or about 31 January 2013, nunc pro tunc to 18 May 2012,² which was filed and entered on 4 February 2013 ("the February 2013 Order").

In the February 2013 Order, the trial court found that defendant's gross monthly income from the United States Army was $10,561.02. He had financial responsibility for three other children born to his second wife of $1,046.88 per month. Based on the North Carolina Child Support Guidelines, the trial court ordered defendant to pay $1,880.48 per month in child support, effective as of 1 March 2009, the first day of the first month after entry of the temporary support order. Because the prior temporary support order established a monthly child support obligation of $1,561.00 and the February 2013 Order made the increase in defendant's monthly child support obligation retroactive, the February 2013 Order also established defendant's arrears of child support from 1 March 2009 through January 2013 as $15,015.56, or ($1,880.48–$1,561.00) x 47 months, and the trial court ordered defendant to pay this in full on or before 15 April 2014. The trial court also ordered defendant to continue to provide medical and dental insurance for the children.

As to the alimony obligation, the trial court found that defendant had shared expenses of $900.00 per month and individual expenses of $1,149.47 per month. After payment of all of his expenses, child support obligation, and debt assigned to him in equitable distribution, the trial court found that defendant had "in excess of $2,500 net per month in surplus income." The trial court also found that plaintiff had a monthly deficit of over $4,000.00, based upon her expenses, income, and payment of debt assigned to her in equitable distribution. The trial court ordered defendant to pay alimony in the amount of $2,500.00 per month from 1 January 2012 through December 2013, $1,750 per month from January 2014 through December 2015, and $1,250.00 per month from January 2016 until terminated by a "statutorily-terminating event." The order established defendant's alimony arrears from 1 January 2012 through January 2013 as $9,100.00 and ordered that defendant pay this sum within sixty days of entry of the order.³

The February 2013 Order also included equitable distribution and allocated certain marital credit card debts to defendant to be paid in the amount of $1,250.00 per month. The parties did not have any significant liquid marital assets, so the trial court did not distribute any accounts or other sources of cash that were large enough to serve as a source of payment for the various obligations owed by defendant. The trial court also ordered that defendant pay a distributive award of $21,000.00 to plaintiff at the rate of $875.00 per month beginning 1 January 2014. In addition, the trial court ordered that defendant pay $23,150.00 in attorneys' fees at the rate of $250.00 per month beginning 15 February 2013 and an additional $1,000.00 in attorneys' fees to be paid within sixty days of entry of the order.⁴

Both parties filed post-trial motions after entry of the February 2013 Order. On or about 22 February 2013, plaintiff filed a motion requesting a new trial "solely to address the military Reserve Component Survivor Benefit Plan[.]" On or about 22 February 2013, defendant filed motions under North Carolina Rules of Civil Procedure 52 and 59

784 S.E.2d 490

to amend the findings of fact and for a new trial. See N.C. Gen.Stat. § 1A–1, Rules 52, 59 (2013). Defendant's motion included allegations that during the fourteen-month delay between the trial and entry of the order, his income and financial situation had changed significantly, but that he was unable to file a motion to modify because the change in his financial circumstances occurred before entry of the February 2013 Order.

On 18 April 2013, plaintiff filed a motion for contempt alleging that defendant had failed to pay various sums he was ordered to pay, including the $9,100.00 alimony arrears due by 5 April 2013 and $5,831.15 in additional arrears based upon his partial payments of the obligations for child support, credit card debt, alimony, and attorneys' fees, with total arrears of $14,931.15 alleged. Plaintiff also sought attorneys' fees arising from her motion for contempt.

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