Contempt of Court in the Family Law Setting
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.
The court set Defendant’s purge amount at $31,398.52 to be paid by the end of October 2020. The Contempt Order required Defendant to be taken into custody if the amount was not paid by the deadline.
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.
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Calculating Child Support – Self Employed – Little v. Little
Little v. Little is an unpublished family law decision by the NC Court of Appeals. In part, the opinion is helpful to attorneys in understanding the process/logic of calculating child support, especially for parents who are self employed.
As an unpublished decision, “Abigail B. Little v. Everett D. Little” (the formal caption of the lawsuit/opinion) does not carry precedential value. It is not binding legal authority in family court.
The matter stems from a family court dispute in Union County, North Carolina and the ruling of the Monroe District Court Judge. The defendant in the case, Mr. Little, appeals from a court order regarding a motion to modify child support.
The defendant argues the Court made an error in calculating income, as a self employed person, and therefore used the incorrect financial figures in calculating a child support obligation. One would be remiss in failing to note that child support in North Carolina is subject to the Child Support Guidelines.
The materials provided by Charlotte divorce lawyer Bill Powers are intended as a reference source for family law attorneys, paralegals, legal assistants. There is instructional value in reviewing the processes by which child support is calculated in determining whether a modification of child support is merited.
Legal professionals know to read and download the original opinion Little v. Little.
IN THE COURT OF APPEALS OF NORTH CAROLINA No.
COA19-212 Filed: 1 October 2019 Union County, No. 09-CVD-1926
ABIGAIL B. LITTLE (now ABIGAIL L. COBLE), Plaintiff, v. EVERETTE D. LITTLE, Defendant.
Appeal by defendant from order entered 6 December 2018 by Judge Joseph J. Williams in Union County District Court.
Heard in the Court of Appeals 4 September 2019. No brief filed on behalf of plaintiff-appellee. Christopher A. Gray for defendant-appellant. BERGER, Judge. Everette D. Little (“Defendant”) appeals from an order that modified his child support obligation. On appeal, Defendant contends that the trial court erroneously calculated his income for purposes of determining his child support obligation. We disagree. Factual and Procedural Background
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Defendant and Abigail L. Coble (“Plaintiff”) were married in August 1999 and separated in May 2008. There were two children born of the marriage. On February 27, 2009, Plaintiff and Defendant entered into a separation agreement that addressed claims for equitable distribution, spousal support, child custody, and child support. Pursuant to the terms of the separation agreement, Defendant was required to pay $900.00 per month in child support for the parties’ minor children. The separation agreement was incorporated into the parties’ divorce judgment on July 23, 2009. On October 16, 2015, Plaintiff filed a motion to modify child support. After a hearing was held, the trial court entered an Order Granting Plaintiff’s Motion to Modify Child Support on December 6, 2018, in which the trial court ordered Defendant to pay $1,681.00 per month in child support. It is from this Order that Defendant appeals. Analysis Defendant contends that the trial court erroneously calculated his income for purposes of determining his child support obligation. We disagree. “Child support orders entered by a trial court are accorded substantial deference by appellate courts and our review is limited to a determination of whether there was a clear abuse of discretion.” Head v. Mosier, 197 N.C. App. 328, 333, 677 S.E.2d 191, 195 (2009) (citation and quotation marks omitted). “To support a reversal, an appellant must show that the trial court’s actions were manifestly
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unsupported by reason.” Id. (internal citation and quotation marks omitted). “If different inferences may be drawn from the evidence, [the judge sitting without a jury] determines which inferences shall be drawn …, and the findings are binding on the appellate court.” Cauble v. Cauble, 133 N.C. App. 390, 395-96, 515 S.E.2d 708, 712 (1999) (alterations in original) (internal citation and quotation marks omitted). Modification of a child support order requires a two-step process. N.C. Gen. Stat. § 50-13.7 (2017). “First, a court must determine whether there has been a substantial change in circumstances since the date the existing child support order was entered.” Head, 197 N.C. App. at 333, 677 S.E.2d at 195. “Once a substantial change in circumstances has been shown by the party seeking modification, the trial court then proceeds to follow the Guidelines and to compute the appropriate amount of child support.” Id. at 334, 677 S.E.2d at 196 (internal citation and quotation marks omitted). Pursuant to the North Carolina Child Support Guidelines, child support calculations are “based on the parents’ current incomes at the time the order is entered.” Form AOC–A–162, Rev. 8/15. The Guidelines define “income” as: a parent’s actual gross income from any source, including but not limited to income from employment or selfemployment (salaries, wages, commissions, bonuses, dividends, severance pay, etc.), ownership or operation of a business, partnership, or corporation . . . . Except as otherwise provided, income does not include the income of a person who is not a parent of a child for whom
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support is being determined, regardless of whether that person is married to or lives with the child’s parent or has physical custody of the child. Form AOC–A–162, Rev. 8/15. With regard to a parent’s income from self-employment or operation of a business, the Guidelines provide, in pertinent part, Gross income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, is defined as gross receipts minus ordinary and necessary expenses required for self-employment or business operation. . . . Expense reimbursements or in-kind payments (for example, use of a company car, free housing, or reimbursed meals) received by a parent in the course of employment, or operation of a business are counted as income if they are significant and reduce personal living expenses. AOC–A–162, Rev. 8/15 (emphasis added). Specifically excluded from “ordinary and necessary expenses” are those “determined by the court to be inappropriate for determining gross income” for purposes of calculating child support. AOC–A–162, Rev. 8/15. Moreover, “income and expenses from self-employment or operation of a business should be carefully reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support obligation.” AOC–A–162, Rev. 8/15 (emphasis added).
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In the present case, Defendant’s sole argument on appeal1 is that the trial court should not have factored his current wife’s income of $34,656.00 when it calculated Defendant’s income in finding of fact 14, which states: Defendant is presently self-employed and earns a gross monthly income of approximately $13,345.00. In calculating Defendant’s income, the Court looked to Defendant’s 2017 Amended Individual Income Tax Return. The Court took the income amount listed as “Farm Income” on line 18, and added back the following deductions to Defendant’s income: $18,300.00 in charitable deductions; $6,600.00 for Defendant’s other child’s school expenses; $8,650.00 for insurance deductions; and $34,656.00 for Defendant’s current wife’s income, for a total of $175,249.00. The Court specifically finds that it is not appropriate to consider losses carried forward from prior years. As to Defendant’s current wife’s income, the Court specifically finds that her involvement in the business is not enough to justify her salary as she simply keeps up with accounting, but Defendant does the work. Further, the Court finds that Defendant’s contention that he pays employees more than he earns is disingenuous. The Court did apply a deduction of $15,125.00 for Defendant’s selfemployment expenses. At the hearing, Defendant’s current wife affirmed that she is “basically the office manager for L&L Farms” and that her employee status had remained the same 1 We note that Defendant’s brief is not in compliance with Rule 28 of our Rules of Appellate Procedure, which requires the “body of the argument” to “contain citations of the authorities upon which the appellant relies.” N.C.R. App. P. 28(b)(6). Defendant merely provides citations to the applicable standard of review, but does not offer any authority to support his sole argument on appeal. “Our Supreme Court has held Rule 28(b) to be a nonjurisdictional rule.” Lipscomb v. Mayflower Vehicle Sys., 213 N.C. App. 440, 447, 716 S.E.2d 345, 350 (2011). Thus, we will not dismiss Defendant’s appeal because “[n]oncompliance with rules of this nature, while perhaps indicative of inartful appellate advocacy, does not ordinarily give rise to the harms associated with review of unpreserved issues or lack of jurisdiction.” Id. (citation and quotation marks omitted).
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since at least November 2017. When asked how she is paid, she testified that neither Defendant nor she “really draw a paycheck. We just pay our bills.” When asked how she paid for the bills for the business and for the house, she testified she had a personal account that she uses for personal expenses and that the majority of bills are paid out of the business account. In addition, she stated her personal account consists only of child support checks she receives every month from her former spouse. She further testified that as the office manager she made $2,888.58 a month, about one thousand dollars more than what Defendant reported to make in his 2017 amended income tax return, which was amended a couple weeks before the hearing on Plaintiff’s motion to modify child support. Based on the evidence and testimony at the hearing, it is apparent that the trial court did not deem the $34,656.00 paid to Defendant’s current wife to be an “ordinary and necessary” business expense, and specifically found in finding 14 that “her involvement in the business [was] not enough to justify her salary as she simply keeps up with accounting, but Defendant does the work” and “that Defendant’s contention that he pays employees more than he earns is disingenuous.” See Cauble, 133 N.C. App. at 399, 515 S.E.2d at 714 (emphasizing that the determination of what is an ordinary and necessary expense is in the trial court’s discretion and will not be disturbed on appeal if its findings specifically show that its decision to disallow the deduction of the business expense in calculating income was not manifestly
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unsupported by reason). These findings demonstrate that the trial court’s decision to include $34,656.00 in Defendant’s income was not manifestly unsupported by reason. “Because the Guidelines vest the trial court with the discretion to disallow the deduction of any business expenses which are inappropriate for the purposes of calculating child support, . . . the trial court’s decision in the instant case to disallow the claimed expense[ ] must be upheld[.]” Kennedy v. Kennedy, 107 N.C. App. 695, 700, 421 S.E.2d 795, 798 (1992) (citation omitted). Accordingly, the trial court did not abuse its discretion.
Judge MURPHY concurs. Judge INMAN concurs in result only. Report per Rule 30(e).