N.C. Court of Appeals Family Law Update – Contempt of Court
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What’s in this Blog Post?
In this blog post, we will discuss civil contempt in family law cases in North Carolina.
Civil contempt can serve as a powerful tool to enforce Court Orders.
In the family law context, it is often used to compel parents to comply with child custody and support orders.
What’s new in Divorce in North Carolina?
N.C. Court of Appeals, on July 5, published a new batch of cases, two of which provided insight and clarity into some nuances within NC family law.
In Bossian v. Bossian, the Court—authored by Judge April Wood—touched on an array of issues including private modification of a custody order, effectuating a prior contempt order, and Rule 59 & Rule 60 Motions.
Background Fact Pattern
In Bossian, the parties were married in August 1998 and had two minor children before they eventually separated and divorced after February 2013.
A child custody and support order was entered in February 2015 granting primary custody of the parties’ two minor children to the Plaintiff-mother and secondary physical custody in the form of visitation during the minor children’s school breaks to the Defendant-father, who was living in Rhode Island.
The Order also required Defendant to pay $1,225.87 in monthly child support until the order was modified or terminated.
In March 2015, the court resolved the pending equitable distribution claim requiring Defendant to pay a $1,800 distributive award to Plaintiff from the proceeds following the sale of the marital home. These two orders remained in effect and were never modified by the court.
Shortly after, in January 2016, the parties privately agreed—absent the court’s involvement or permission—to modify the custody order allowing the parties’ younger minor son to move and live with Defendant-father, who ostensibly would assume primary custody.
The minor child remained with Defendant from January 2016 until July 2018 when he returned to North Carolina to live with Plaintiff. Defendant did not pay child support pursuant to the child support order during this period.
Later, in March 2020, Plaintiff filed a show cause motion to hold Defendant in contempt for Defendant’s failure to pay child support, unreimbursed medical expenses, and the distributive award pursuant to the March 2015 Order.
After a contempt hearing, the trial court entered an order in September 2020 holding Defendant in contempt for his failure to pay his aforementioned legal obligations, as well as awarding Plaintiff attorney’s fees.
A few days following the Contempt Order, Plaintiff filed a Rule 60 Motion for Relief to correct a clerical error resulting in a lower miscalculation of Defendant’s child support arrearages.
Defendant filed a Rule 59 Motion for Relief from Civil Contempt and Attorney’s Fees arguing that no evidence was presented at the hearing of Defendant’s current ability to pay—a statutory requirement to be held in civil contempt—contesting his civil contempt adjudication.
Both the party’s respective motions were heard at a hearing in April 2021. The presiding judge granted Plaintiff’s Rule 60 Motion and denied Defendant’s Rule 59 Motion.
The judge concluded the hearing by inquiring whether Defendant had purged his contempt pursuant to the September 2020 Contempt Order. The judge found that Defendant had the present ability to purge his contempt and ordered Defendant to pay $9,300—a reduction from the previously ordered $31,398.52—and be taken into custody until he had satisfied this purge amount.
Defendant appealed the trial court’s granting of Plaintiff’s Rule 60 Motion, denial of Defendant’s Rule 59 Motion, and Defendant’s order to be taken into custody.
Court of Appeals’ Holding & Key Takeaways
The Court of Appeals in its reasoning provided several takeaways in its Bossian holding:
1. A Judge May Effectuate a Previously Adjudicated Contempt Order Without Providing New Notice to the Contemnor
Defendant’s first argument was that the trial court’s holding him in contempt and his arrest after the April 2021 hearing on the party’s respective Rule 59 and 60 motions was a violation of his due process rights because he was not provided notice of the potential contempt hearing and of his arrest.
The Court disagreed holding that so long as the original contempt order was properly initiated—via a judicial order to show cause—and the contemnor had notice of the order and has presently not purged his contempt, then it is within a trial court judge’s discretion whether to stay or effectuate the enforcement of a civil contempt order.
Neither the trial court’s use of a second contempt order to enforce the original contempt order, nor the modification of the original purge amount in a second contempt order, constitutes a “new” contempt order that would require new notice.
2. A Clerical Error in a Contempt Order Does Not Give a Contemnor Legal Justification to Not Comply with the Order
The next argument that Defendant makes is that because both parties were contending that there were errors in the original contempt order, his failure to make the ordered payments could not be willful because he did not have the ability to comply, thereby preventing him from being held in contempt.
The Court noted that two statutory elements of civil contempt are that the contemnor’s violation is willful (i.e., an ability to comply and an intentional failure to do so) and he must have the actual ability to take reasonable measures to comply. However, it disagreed with Defendant’s argument citing Rule 62(b), and held that absent a Rule 62 motion to stay a contempt order, a contemnor’s compliance is mandatory.
3. Private Agreement, Absent a Court Order, Does Not Justify Noncompliance with a Court Order
The final key takeaway from the Court of Appeals’ ruling in Bossian is a contemnor’s noncompliance is still willful regardless of if the parties privately agree to not comply with a court order.
Defendant argued that it was error for the trial court to deny his Rule 59 motion because the evidence showed that his non-payment of his child support obligation was not willful due to the parties’ private modification of the child custody agreement.
The Court was unpersuaded by this argument.
The Court emphasized that pursuant to N.C. law, a child support order can only be modified by the court via a pending child support action and a showing of changed circumstances.
The Court iterated, and then later reiterated, that parties may not modify a court order through extrajudicial written or oral agreement, and a party has an obligation to follow a court order until it has been lawfully changed via judicial decree.