Tucker v. Tucker

• Decision Date: 16 June 2009
• Docket Number: No. COA08-789.,COA08-789.
• Citation: 679 S.E.2d 141
• Parties: Rachel Darlene TUCKER, Plaintiff, v. Jewett Eugene TUCKER, Jr., Defendant.
• Court: North Carolina Court of Appeals

679 S.E.2d 141

Rachel Darlene TUCKER, Plaintiff, v. Jewett Eugene TUCKER, Jr., Defendant.

No. COA08-789.

Court of Appeals of North Carolina.

June 16, 2009.

Appeal by defendant from order entered on or about 7 November 2007 by Judge Scott C. Etheridge in District Court, Moore County. Heard in the Court of Appeals 28 January 2009.

Staton, Doster, Post Silverman & Foushee, P.A., by Jonathan Silverman, Sanford, for defendant-appellant.

Arthur M. Blue Law Office, P.A., by Arthur M. Blue, Carthage, for plaintiff-appellee.

STROUD, Judge.

The trial court found defendant to be in civil contempt of court due to a failure to make court ordered alimony payments and ordered defendant's incarceration until payment of a $10,000.00 purge payment. Defendant appeals, arguing the trial court erred in concluding that he had the present ability to pay a $10,000.00 purge payment towards his alimony arrearages. For the following reasons, we affirm.

I. Background

On or about 24 March 1998, plaintiff and defendant entered into a settlement agreement for divorce in Georgia. On or about 15 June 1998, plaintiff and defendant were divorced and defendant was ordered by the State of Georgia to pay $1,500 a month in alimony. On or about 22 August 2006, the Georgia alimony order was registered in North Carolina against defendant, with $14,750.00 of alimony in arrears. On or about 15 September 2006, defendant objected to the registration of the Georgia order in North Carolina. On or about 13 March 2007, defendant withdrew his objection based upon an agreement by plaintiff to wait 60 days before taking enforcement action.

On or about 5 June 2007, plaintiff filed a verified motion asking that the trial court find defendant to be in civil contempt and requesting that defendant be ordered to pay her costs and attorney fees for prosecution of the motion. On or about 8 June 2007, the trial court found probable cause that defendant was in contempt, ordered defendant to show cause why he should not be held in civil contempt, and set a hearing regarding the show cause order for 25 June 2007. The contempt hearing was held on 26 June 2007.

At the hearing, the parties stipulated that the alimony arrears owed by defendant as of 30 June 2007 were $42,650.00. After the hearing, the trial court orally found defendant to be in civil contempt and ordered that he be held in the Moore County jail until he paid $10,000.00 towards his alimony arrears. On 27 June 2007, defendant paid the $10,000.00 purge payment, and the trial court entered an order directing defendant's release from custody as he had purged himself of contempt by his payment. On or about 7 November 2007, the trial court entered its written civil contempt order from the 26 June 2007 hearing. From the contempt order, defendant appeals. Defendant contends that the trial court committed reversible error by concluding that he had the current ability to pay $10,000.00. Defendant "requests that the trial Court's civil contempt order be vacated and this matter be remanded for a new hearing." For the following reasons, we affirm.

II. Ability to Pay $10,000.00

Defendant contends that "there was insufficient evidence to support the trial court's findings of fact, conclusions of law and order that ... [defendant] had the present means and ability to pay an alimony arrearage and therefore was in civil contempt of court." (Original in all caps.) We disagree.

Review in [civil] 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. 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.

Hartsell v. Hartsell, 99 N.C.App. 380, 385, 393 S.E.2d 570, 573 (1990) (citations and quotation marks omitted), aff'd per curiam, 328 N.C. 729, 403 S.E.2d 307 (1991). However "[f]indings of fact to which no error is assigned are presumed to be supported by competent evidence and are binding on appeal.". Pascoe v. Pascoe, 183 N.C.App. 648, 650, 645 S.E.2d 156, 157 (2007) (citations and quotation marks omitted). "The trial court's conclusions of law drawn from the findings of fact are reviewable de novo." State v. Simon, 185 N.C.App. 247, 250, 648 S.E.2d 853, 855 (citation and quotation marks omitted), disc. review denied, 361 N.C. 702, 653 S.E.2d 158 (2007). "A show cause order in a civil contempt proceeding which is based on a sworn affidavit and a finding of probable cause by a judicial official shifts the burden of proof to the defendant to show why he should not be held in contempt." State v. Coleman, 188 N.C.App. 144, 149-50, 655 S.E.2d 450, 453 (2008) (citations omitted); see also Hartsell at 387, 393 S.E.2d at 575 ("In civil contempt the defendant has the burden of presenting evidence to show that he was not in contempt and the defendant refuses to present such evidence at his own peril.").

Defendant does not challenge the trial court's conclusion that he is in civil contempt for failure to pay his alimony, but only claims that the trial court did not properly determine that he had the ability to pay the $10,000.00 purge payment. There is no question as to defendant's liability to pay alimony generally or the amount of arrears owed because defendant stipulated to these facts. Defendant also does not argue in his brief that the Court erred in finding that he had the ability to pay alimony. Defendant's argument is limited to the trial court's finding that he had the ability to pay a $10,000.00 payment toward his arrearages to purge himself of contempt.

If a trial court orders imprisonment for civil contempt, the court must also state how the defendant may purge himself of contempt and find that the defendant has the ability to do so.

General Statute 5A-21 provides that a person may not be imprisoned for civil contempt unless the person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable him to comply with the order. General Statute 5A-22 provides that the order of a court holding a person in contempt must specify how the person may purge himself of the contempt. Because these statutes relate to the same subject matter, they must be construed in pari materia. When so construed, these statutes require that a person have the present ability to comply with the conditions for purging the contempt before that person may be imprisoned for civil contempt.

....

To justify conditioning defendant's release from jail for civil contempt upon payment of a large lump sum of arrearages, the district court must find as fact that defendant has the present ability to pay those arrearages. The majority of cases have held that to satisfy the present ability test defendant must possess some amount of cash, or asset readily converted to cash.

McMiller v. McMiller, 77 N.C.App. 808, 809, 336 S.E.2d 134, 135 (1985) (citations, quotation marks, and brackets omitted).

Here, the trial court found the following facts which were not challenged by defendant:

5. ... Defendant has a long history of employment dating back to 1980 when he received certification to perform ultrasounds. In 1980 the Defendant began employment with Tift General Hospital in Georgia. Thereafter he worked for approximately one and [a] half years with Shared Medical doing rotational work for various doctor's office[s]. Thereafter, the Defendant set up his own diagnostic practice where he worked...