Yeun-Hee Juhnn v. Do-Bum Juhnn

• Decision Date: 07 July 2015
• Docket Number: No. COA14–1271.,COA14–1271.
• Citation: 775 S.E.2d 310,242 N.C.App. 58
• Court: North Carolina Court of Appeals
• Parties: YEUN–HEE JUHNN, Plaintiff, v. DO–BUM JUHNN, Defendant.

242 N.C.App. 58

775 S.E.2d 310

YEUN–HEE JUHNN, Plaintiff,

v.DO–BUM JUHNN, Defendant.

No. COA14–1271.

Court of Appeals of North Carolina.

July 7, 2015.

Wyrick Robbins Yates & Ponton LLP, Raleigh, by Michelle D. Connell and Tobias S. Hampson, for plaintiff-appellee.

The Law Office of Richard B. Johnson, PA, by Richard B. Johnson, Charlotte, for defendant-appellant.

BRYANT, Judge.

Where the trial court's findings of fact are based upon competent evidence and support the trial court's conclusions of law that defendant has acted in bad faith regarding the reporting of his income, we do not find an abuse of discretion by the trial court in its award of child support and alimony. An award of alimony will be upheld where the trial court makes sufficient findings as to the reasons for the amount, duration, and manner of payment of alimony. Where defendant was not prejudiced by the trial court's delay in entering an order for alimony, defendant cannot show that his constitutional rights were violated.

Plaintiff Yeun–Hee Juhnn and defendant Do–Bum Juhnn married on 29 June 1991. Three minor children were born of the marriage.

Plaintiff and defendant separated on 27 August 2007 after sixteen years of marriage.

On 4 September 2007, plaintiff filed a complaint for child custody, child support, post-separation support, alimony, equitable distribution, and attorneys' fees. Defendant filed an answer and counterclaims for child custody and equitable distribution on 26 September. A consent order for temporary child support and interim post-separation support was agreed to by the parties on 17 October. Plaintiff then filed an amended complaint for child custody, child support, post-separation support, alimony, equitable distribution, and attorneys' fees on 17 December.

On 24 March 2008, defendant agreed to pay $750.00 a month in temporary child support, and to pay for plaintiff's mortgage and car payment. Defendant filed an amended answer and counterclaims for child custody and equitable distribution on 2 September. On 18 December, both parties agreed to dismiss their respective claims for equitable distribution. The parties also agreed to a memorandum of judgment under which defendant would pay plaintiff $1,485.00 a month in post-separation support and $750.00 in temporary child support.

On 1 December 2009, a permanent child custody, child support, and modification of post-separation support order was entered by the trial court. Plaintiff filed a new motion for child support and attorneys' fees on 8 February 2011. After hearings on 9 May 2010, 13 July 2011, 5 February 2012, 21 March 2012, and 1 June 2012, an order for permanent alimony, child support, and attorneys' fees was entered by the trial court on 10 February 2014. Defendant appeals.

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At the outset, we note that plaintiff filed a motion to dismiss defendant's appeal pursuant to N.C. R.App. P. 3(c)(3). Plaintiff argues that under Rule 3, defendant had thirty days to file a notice of appeal from the date the trial court served its order upon both parties.

Pursuant to N.C. R.App. P. 3, a notice of appeal must be filed within thirty days if the party is served within three days of entry of judgment, or within thirty days after a party is served and service occurs outside a three-day period after entry of judgment. N.C. R.App. P. 3(c)(1), (2) (2014).

Here, the evidence provided by plaintiff shows that a Family Court Administrator sent an email to both parties notifying each that the trial court's order, entered 10 February 2014, had been placed in the mail on 17 February 2014. However, plaintiff has not provided a certificate of service nor any other evidence, such as a copy of the envelope showing the postmark date/stamp, to show that defendant was served within three days of entry of judgment; as such, Rule 3(c)(2) is applicable.¹ This Court has addressed a similar matter concerning the timely filing of a notice of appeal in Frank v. Savage, 205 N.C.App. 183, 695 S.E.2d 509 (2010). In Frank, the defendant filed a motion to dismiss the plaintiff's appeal as being untimely filed. This Court denied the defendant's motion, finding that the defendant failed to provide a certificate of service as required by Rule 58: "We believe that Defendant's failure to comply with the service requirements of Rule 58 of the Rules of Civil Procedure in the present case requires us to apply Rule 3(c)(2) and not Rule 3(c)(1). We therefore hold Plaintiff's appeal is timely." Id. at 187, 695 S.E.2d at 512.

In the instant case, defendant has provided evidence that he received a copy of the trial court's order on 28 February 2014, and that he filed his notice of appeal on 24 March 2014. Moreover, the email from the Family Court Administrator does not qualify as a certificate of service under Frank and, thus, defendant was not "served" on 17 February 2014 under Rule 3(c)(2). Accordingly, based on this Court's reasoning in Frank, and on the evidence presented here, defendant's notice of appeal in the instant case was timely filed within thirty days of defendant receiving the trial court's order. Plaintiff's motion to dismiss defendant's appeal as untimely is, therefore, denied.

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On appeal, defendant raises three issues as to whether the trial court erred: (I) by finding defendant acted in bad faith regarding his income; (II) in awarding plaintiff eighteen years of alimony; and (III) in not issuing its order until twenty months after the last hearing.

I.

Defendant argues that the trial court erred by finding defendant acted in bad faith regarding his income. We disagree.

Decisions regarding the amount of alimony are left to the sound discretion of the trial judge and will not be disturbed on appeal unless there has been a manifest abuse of that discretion. When the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts.

Williamson v. Williamson, 217 N.C.App. 388, 390, 719 S.E.2d 625, 626 (2011) (citations and quotation omitted). An abuse of discretion occurs when the trial court's decision is "manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision." Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998) (citations omitted).

Defendant contends the trial court erred in finding that defendant acted in bad faith and then imputing income to him based on his bad faith.

The trial court may ... modify support and/or alimony on the basis of an individual's earning capacity instead of his actual income when the evidence presented to the trial court shows that a husband has disregarded his marital and parental obligations by: (1) failing to exercise his reasonable capacity to earn, (2) deliberately avoiding his family's financial responsibilities, (3) acting in deliberate disregard for his support obligations, (4) refusing to seek or to accept gainful employment, (5) wilfully refusing to secure or take a job, (6) deliberately not applying himself to his business, (7) intentionally depressing his income to an artificial low, or (8) intentionally leaving his employment to go into another business. When the evidence shows that a party has acted in "bad faith," the trial court may refuse to modify the support awards. If a husband has acted in "good faith" that resulted in the reduction of his income, application of the earnings capacity rule is improper.

The dispositive issue is whether a party is motivated by a desire to avoid his reasonable support obligations. To apply the earnings capacity rule, the trial court must have sufficient evidence of the proscribed intent.

Wolf v. Wolf, 151 N.C.App. 523, 526–27, 566 S.E.2d 516, 518–19 (2002) (citations omitted).

In his brief, defendant lists the trial court's findings of fact 40, 42–43, 63, 66–69 as being erroneous. However, defendant fails to set forth any specific challenges to the findings of fact and instead presents a broad argument which merely contends that "the evidence at trial [did] not support a finding that [defendant] acted in bad faith, warranting the imputation of income to [defendant.]" It is well established by this Court that where a trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal. In re K.D.L., 207 N.C.App. 453, 456, 700 S.E.2d 766, 769 (2010). As defendant has failed to articulate challenges to these specific findings of fact, we find these findings to be not only binding on appeal, but also supported by competent evidence demonstrating that defendant did indeed act in bad faith regarding his income.

Moreover, even assuming arguendo that defendant's broad argument is sufficient enough to challenge these specific findings of fact on appeal, defendant's argument still must fail. Defendant challenges the trial court's findings of fact that defendant: had "the capacity and ability to earn [$134,500.00] in 2008"; "engaged in a pattern of concealing income and under reporting his income which was fraudulent, deceitful, and demonstrative of bad faith"; filed falsified and inaccurate tax returns in 2007 and 2008; "has engaged in a course of conduct subsequent to the date of separation designed to deliberately depress his income because of his blatant disregard of his marital obligation to provide support for his dependent spouse and his children"; has "the capacity to earn at least $120,000.00 per year or $10,000.00 per month"; and that defendant "is a supporting spouse and is financially able to pay alimony and child support." Defendant has not, however, challenged the trial court's remaining findings of fact, which include findings that: defendant committed marital misconduct by abandoning plaintiff and their three children; plaintiff was a homemaker during the entire course of her marriage to d...