Opinion
No. COA11–1349.
2012-04-17
Kathryn Alston BLACKBURN, Plaintiff, v. Albert Sears BUGG, Defendant.
No brief filed for Plaintiff-appellee. Williams and Bagshawe LLP, by E.N. Bagshawe, for Defendant-appellant.
Appeal by Defendant from order entered 1 April 2011 by Judge S. Quon Bridges in Warren County District Court. Heard in the Court of Appeals 7 March 2012. No brief filed for Plaintiff-appellee. Williams and Bagshawe LLP, by E.N. Bagshawe, for Defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
Albert Sears Bugg (“Defendant”) appeals from the trial court's order holding him in contempt for failing to pay alimony and requiring him to pay Plaintiff's attorney's fees. We affirm in part, and vacate in part.
I. Factual & Procedural Background
The evidence of record tends to show the following. On or about 27 November 1998, Kathryn Alston Blackburn (“Plaintiff”) and Defendant entered into a premarital agreement (“the Agreement”). The Agreement sets forth terms and conditions relating to post-marital support and property distribution in the event of separation. Per the Agreement, Defendant agreed to pay Plaintiff, upon separation, a lump sum in the amount of $250,000.00, plus monthly alimony payments of $1,000.00 “until [Plaintiff] remarried or came into her inheritance.” The alimony payments were to be adjusted annually based on the consumer price index (“CPI”). The Agreement further provided for the division of jointly titled property, stating that “[i]n the event of separation, divorce, or annulment, such [marital] property shall be divided equally between the parties such that the net fair market value of jointly owned property and joint debts received between the two parties shall be equal.”
“[T]he consumer price index is an inflation calculator as published and promulgated by the United States Government, Department of Labor, the purpose of which is to adjust and give value to funds as they existed in terms of real value as of the date of the establishment of the base of said funds.”
Plaintiff and Defendant married on 10 September 1999 and lived together as husband and wife until 3 August 2003, the date of separation. On 12 April 2004, Plaintiff filed a complaint in Warren County District Court alleging, inter alia, breach of contract, as Defendant had failed to pay alimony in accordance with the terms of the Agreement. Defendant filed an answer on 9 June 2004, denying liability and asserting counterclaims including, inter alia, a claim that “Plaintiff left the home with a 2000 Toyota minivan that Defendant ha [d] paid for[,]” valued in excess of $8,760.00, and that Defendant was “entitled to a return of his equity in the minivan.” By order entered 13 September 2004, Judge Garey M. Balance granted Plaintiff's motion for summary judgment on the issue of compelling specific performance of the alimony payments as required under the Agreement. Judge Balance did not issue a ruling on Defendant's counterclaims.
It is unclear from the record why Judge Balance did not rule on Defendant's counterclaims in his 13 September 2004 order. We note, without conceding, Defendant's contention that Judge Balance “never ruled on the counterclaims because he was indicted and was no longer available to hear the case.”
On 5 August 2004, while Plaintiff's suit for specific enforcement of the Agreement was pending before Judge Balance, Defendant filed a separate complaint, also in Warren County District Court, seeking an absolute divorce from Plaintiff. By judgment entered 8 September 2004, the court, Chief District Court Judge C.W. Wilkinson, Jr. presiding, granted Defendant's motion, thereby dissolving the marriage between Plaintiff and Defendant.
Following the parties' divorce, Defendant failed to perform his alimony obligations, and Plaintiff again filed suit seeking enforcement of the Agreement. The matter came on before the Honorable S. Quon Bridges on 6 October 2008. By order entered 31 August 2009, Judge Bridges determined that Defendant had fulfilled his obligation to pay Plaintiff a lump sum of $250,000.00 upon the parties' separation, but had failed to comply fully with his monthly alimony payment obligations. Defendant was making his monthly alimony payments of $1,000.00 to Plaintiff without adding the required annual CPI adjustments. Judge Bridges determined that Defendant's oversight resulted in a past due balance of $12,727.24, for the August 2003 through August 2008 time period. Calculating “alimony accrued through October, 2008,” Judge Bridges ordered Defendant to pay Plaintiff a total of $13,327.24. In addition, Judge Bridges denied Defendant's counterclaim for an equitable distribution of marital property, finding that neither party had applied for an equitable distribution and concluding that the court's prior judgment granting absolute divorce barred Defendant's claim with respect thereto as a matter of law.
On 23 September 2009, Plaintiff filed a motion with the trial court seeking a determination that Defendant was in contempt of the court's 31 August 2009 order. The record reveals that Plaintiff filed two subsequent motions for contempt before a hearing was held on the issue on 22 February 2011. At the hearing, Plaintiff presented tabulated, handwritten calculations of the past due CPI payments, which she had computed herself based upon CPI information retrieved from a website purportedly operated by the United States Department of Labor. Defense counsel objected to Plaintiff's introduction into evidence of computer printouts purportedly taken from the website, but the trial court overruled the objections. Plaintiff also testified that she still possessed a minivan jointly titled in her name and Defendant's but that she believed all issues regarding jointly owned property had “already been ruled on.”
The trial transcript (recorded at the 22 February 2011 hearing) shows that Plaintiff filed two motions for contempt subsequent to her 23 September 2009 motion. Plaintiff filed a second motion for contempt on 29 March 2010 and a third motion for contempt on 17 September 2010. These motions are not included in the record on appeal, nor are the orders disposing of the 23 September 2009 and 29 March 2010 motions. It is evident from our review of the record, however, that the trial court did not rule on the contempt issue prior to the 22 February 2011 hearing.
Defendant testified at the 22 February 2011 hearing and explained that his failure to pay the correct amount of alimony was the result of what he perceived to be an ambiguity in the trial court's 31 August 2009 order. Defendant stated he was aware of Plaintiff's calculations regarding the CPI payments owed, but he did not know how Plaintiff had arrived at those figures. Defendant stated on cross-examination that he knew he was required to adjust his alimony payments annually based upon the CPI, and that he was under a court order to do so, but conceded that he had “not run the figures” himself and that he had made no CPI payments from 2003 to 2010. Defendant further testified that he did not “recall paying any interest” on the outstanding balance owed under the 31 August 2009 order.
By order entered 1 April 2011, the trial court found, inter alia, that Defendant understood his obligations to pay the CPI amounts due each month and to pay the interest accrued on past due CPI payments, but, notwithstanding his $17,409.24 payment to Plaintiff “in March or April 2010,” Defendant had “failed to fully comply with payments as required.” The trial court also found that the issue of the jointly titled minivan had been ruled on by a prior court order “denying Equitable Distribution or credit since issue was not reserved at time of absolute divorce.” The trial court concluded that Defendant had willfully violated prior court orders and was therefore in contempt of court as a matter of law. Defendant was ordered to pay Plaintiff $7,040.68 plus interest in past due alimony, plus Plaintiff's attorney's fees in the amount of $1,000.00. The court subsequently entered an order on 4 May 2011, modifying its previous order to reflect the amounts paid by Defendant from October 2010 through March 2011, and permitting Defendant to transfer the amount ordered to be paid—$8,041.00—into escrow pending the outcome of this appeal. Defendant filed his notice of appeal from the trial court's 1 April 2011 order with this Court on 2 May 2011.
This amount was adjusted to $7,041.00 in an amendment to the trial court's order, subsequently filed on 4 May 2011.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen.Stat. § 7A–27(c) (2011), as Defendant appeals from a final order of the District Court as a matter of right.
III. Analysis
On appeal, Defendant contends the trial court erred by (1) allowing Plaintiff to introduce computer printouts purportedly obtained from a government website as evidence of her CPI calculations, (2) finding Defendant in contempt of court for failing to comply with a prior court order, (3) ordering Defendant to pay interest on the CPI amounts purportedly owed, (4) requiring Defendant to pay Plaintiff's attorney's fees, and (4) failing to rule on Defendant's pending counterclaim against Plaintiff. For the reasons that follow, we agree with Defendant that the trial court's award of attorney's fees was improper and vacate that portion of the trial court's order. We disagree with Defendant's remaining contentions, however, and we therefore affirm the trial court's order in all other respects.
A. Plaintiff's CPI Evidence
Defendant contends the trial court erred in “allowing the use of hearsay in determining the consumer price index and allowing the introduction of exhibits without authentication or proper foundation and based upon hearsay.” “A trial court's evidentiary rulings are subject to appellate review for an abuse of discretion, and will be reversed only upon a finding that the ruling was so arbitrary that it could not be the result of a reasoned decision.” Lord v. Customized Consulting Specialty, Inc., 182 N.C.App. 635, 644–45, 643 S.E.2d 28, 33–34 (2007). We do not reach the merits of whether the trial court abused its discretion in admitting Plaintiff's CPI evidence, however, as Defendant's arguments on this issue are not properly before this Court.
At the 22 February 2011 hearing, Plaintiff introduced as exhibits computer printouts purportedly from the United States Department of Labor website as proof of the applicable CPI, and further introduced her own handwritten calculations regarding the CPI payments and interest Defendant owed based on information obtained from that website. Defendant objected to Plaintiff's introduction of the computer printouts, arguing that Plaintiff had not established an adequate foundation for the printouts and, further, that their introduction violated the best evidence rule. Defendant did not contend, however, that Plaintiff's exhibits were inadmissible based upon the theory that the exhibits constituted inadmissible hearsay. Accordingly, as it is well-established that “issues and theories of a case not raised below will not be considered on appeal,” Westminster Homes, Inc. v. City of Cary Zoning Bd. of Adjustment, 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001); see also Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934) (“[T]he law does not permit parties to swap horses between courts in order to get a better mount[.]”), we do not reach the merits of Defendant's hearsay argument.
Furthermore, although Defendant did object to Plaintiff's CPI evidence at trial on grounds that the evidence was not properly authenticated, Defendant has failed to adequately present this issue for appellate review. Defendant asserts in his brief that “[t]o allow a bare printout of a computer screen to be entered into evidence violates not only the hearsay rules but also authentication,” and “[t]he document could easily have been authenticated by a covering affidavit from the U.S. Department of Commerce or subpoenaed pursuant to Rule 45. It was not and its admission is therefore erroneous.” Defendant offers no arguments or authority in his appellant brief to support these conclusory assertions. Defendant has therefore failed to preserve this issue for appellate review. N.C. R.App. P. 28(b)(6) (“Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.”). Moreover, we note that even if Defendant had preserved this issue for appeal, we discern no abuse of discretion in the trial court's admission of Plaintiff's CPI evidence. Plaintiff offered testimony, including the exhibits at issue, to prove the amount of CPI payments owed by Defendant at the time of trial. Defendant offered no evidence of his own CPI calculations, nor evidence to dispute Plaintiff's calculations. Plaintiff's exhibits consisted of computer printouts—which Plaintiff testified she obtained from a website operated by the United States Department of Labor—and her own handwritten calculations, which she computed using the CPI figures obtained from the government website. Plaintiff's testimony, in addition to the “UNITED STATES DEPARTMENT OF LABOR BUREAU OF LABOR STATISTICS” heading displayed on the printouts, was sufficient to prove that the computer printouts were what Plaintiff purported them to be. SeeN.C. Gen.Stat. § 8C–1, Rule 901 (2011). Moreover, we note that the CPI information set forth in the computer printouts is public information readily available and subject to judicial notice. SeeN.C. Gen.Stat. § 8C–1, Rule 201 (2011). Thus, even if Defendant had preserved this issue for appellate review, these charts would be capable of judicial notice nevertheless. Accordingly, Defendant's assignment of error is overruled.
We also note that Defendant provides an incorrect standard of review on this issue. SeeN.C. R.App. P. 28(b)(6) (“The argument shall contain a concise statement of the applicable standard(s) of review for each issue[.]”).
B. Civil Contempt
Defendant contends the trial court erred by finding him in contempt of court for failing to pay alimony as required by the court's 31 August 2009 order. We disagree.
“The standard of review for contempt proceedings is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law.” Watson v. Watson, 187 N.C.App. 55, 64, 652 S.E.2d 310, 317 (2007). “ ‘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.’ “ Id. (citation omitted).
To hold a defendant in civil contempt, the trial court must find the following: (1) the order remains in force, (2) the purpose of the order may still be served by compliance, (3) the non-compliance was willful, and (4) the non-complying party is able to comply with the order or is able to take reasonable measures to comply.
Shippen v. Shippen, 204 N.C.App. 188, 190, 693 S.E.2d 240, 243 (2010); N.C. Gen.Stat. § 5A–21(a) (2011).
Defendant contends the trial court erred by finding him in contempt of court because (1) his noncompliance with the court's prior order was not willful, and (2) because the trial court made no finding regarding his ability to pay the alimony due.
“Failure to comply with an order of a court is a continuing civil contempt as long as ... [t]he noncompliance by the person to whom the order is directed is willful.” N.C. Gen.Stat. § 5A–21 (a)(2a) (2011). This Court has held that “ ‘[a] failure to obey an order of a court cannot be punished by contempt proceedings unless the disobedience is wilful, which imports knowledge and a stubborn resistance.’ “ Cox v. Cox, 10 N.C.App. 476, 477, 179 S.E.2d 194, 195 (1971) (quoting Lamm v. Lamm, 229 N.C. 248, 49 S.E.2d 403 (1948)). “To support a finding of willfulness, there must be evidence to establish as an affirmative fact that defendant possessed the means to comply with the order ....“ Teachey v. Teachey, 46 N.C.App. 332, 334, 264 S.E.2d 786, 787 (1980) (quoting Lamm, 229 N.C. at 250, 49 S.E.2d at 404).
Here, the trial court found as fact “that Defendant understood the terms of the premarital agreement and his obligation to pay the CPI amounts due each month,” but that “Defendant failed to fully comply with payments as required.” The court further found as fact “[t]hat the Defendant understood he was to pay interest on the CPI amounts due from 2003 to 2008 per the Court order of August [31], 2009[, ]” and “[t]hat the Defendant acknowledged he knew he owed the monthly CPI amounts and interest, but did not pay the amounts on the advice of his attorney.” Our review of Defendant's testimony at the 22 February 2011 hearing reveals competent evidence to support these findings of fact. Moreover, these findings of fact support the trial court's conclusion that Defendant was in willful violation of the 31 August 2009 order and therefore in contempt of court.
Defendant insists he could not have “willfully” violated the trial court's 31 August 2009 order because a “patent ambiguity” in the order precluded him from understanding his rights and obligations flowing therefrom. Defendant points to the different figures set forth in the trial court's findings of fact ($12,727.24), and the trial court's decretal passage ($13,327.24) regarding his past due alimony as evidence of the ambiguity. Defendant fails to recognize, however, that the $12,727.24 figure set forth in the court's findings of fact pertains to Defendant's past due alimony through August 2008, while the court's decree, ordering Defendant to pay $13,327.24, accounts for “alimony accrued through October, 2008[.] ” (Emphasis added.) Thus, the discrepancy in these figures is not an ambiguity at all, but rather accounts for the difference in the amount Defendant owed through August 2008 versus the amount he owed through October 2008.
Defendant further argues the trial court erred by finding him in contempt without entering a finding of fact or conclusion of law regarding his ability to pay the past due alimony. SeeN.C. Gen.Stat. § 5A–21(a)(3) (2011). While it is true that the trial court made no express findings regarding Defendant's ability to pay alimony as required under the 31 August 2009 order, it is evident from the trial court's findings—and from the competent evidence supporting said findings—that Defendant possessed the financial means to comply with the prior order. The trial court found “[t]hat the Defendant acknowledged he knew he owed the monthly CPI amounts and interest, but did not pay the amounts on the advice of his attorney.” (Emphasis added.) This indicates that Defendant's ability to pay had no bearing on his noncompliance. Rather, as Defendant's testimony at the 22 February 2011 hearing reveals, Defendant's noncompliance was due to his confusion regarding the amount of alimony owed and his failure to take reasonable steps to resolve the matter. Moreover, it was Defendant's burden to prove his inability to pay, see Schumaker v. Schumaker, 137 N.C.App. 72, 76, 527 S.E.2d 55, 57 (2000), and Defendant offered no such evidence before the trial court. Finally, as a practical matter, we note that the funds at issue are in fact available: Defendant filed a motion to escrow these funds on 12 April 2011 and subsequently paid these funds into an escrow account with the trial court on 4 May 2011. Accordingly, we hold the trial court did not err in finding Defendant in contempt of court for failing to comply with the court's 31 August 2009 order.
C. Attorney's Fees
Defendant further contends the trial court erred in awarding Plaintiff attorney's fees. We agree.
Our Supreme Court has held that “in the absence of express statutory authority, attorneys' fees are not allowable as part of the court costs in civil actions.” City of Charlotte v. McNeely, 281 N.C. 684, 695, 190 S.E.2d 179, 187 (1972); Records v. Tape Corp. and Broad. Sys. v. Tape Corp., 18 N.C.App. 183, 187, 196 S.E.2d 598, 602 (1973) (“It is settled law in North Carolina that ordinarily attorneys fees are not recoverable either as an item of damages or of costs, absent express statutory authority for fixing and awarding them.”). Attorney's fees are not generally available in civil contempt proceedings, and exceptions to this general rule arise only in the context of contempt proceedings to enforce child support or equitable distribution orders. Baxley v. Jackson, 179 N.C.App. 635, 641, 634 S.E.2d 905, 909 (2006); Powers v. Powers, 103 N.C.App. 697, 707, 407 S.E.2d 269, 276 (1991) (vacating the trial court's award of attorney's fees because “the case at hand ... involves neither a child support order ... nor an equitable distribution award”).
In the case sub judice, the trial court awarded Plaintiff attorney's fees in the amount of $1,000.00, taxable to Defendant. However, there was no express statutory authority to support the trial court's award, nor did this case arise in the context of enforcing a child support or equitable distribution order. Accordingly, we vacate the portion of the trial court's 1 April 2011 order requiring Defendant to pay Plaintiff's attorney's fees.
IV. Conclusion
We have carefully reviewed Defendant's remaining arguments, and we conclude they are without merit. With respect to Defendant's 2004 counterclaim regarding the jointly titled minivan, our examination of the record indicates that this issue has been addressed and ruled upon by prior court orders, and we decline to address the matter further.
For the foregoing reasons, we vacate the trial court's award of attorney's fees, but affirm the trial court's 1 April 2011 order in all other respects.
Affirmed in part; vacated in part. Judges BRYANT and BEASLEY concur.
Report per Rule 30(e).