Opinion
No. COA10-369
Filed 3 May 2011 This case not for publication
Appeal by defendant from order entered 18 September 2009 by Judge Donnie Hoover in Mecklenburg County District Court. Heard in the Court of Appeals 29 September 2010.
Knox, Brotherton, Knox Godfrey, by Peter E. McArdle, for plaintiff-appellee. Kathleen B. McEvoy and Francina L. Muse for defendant-appellant.
Mecklenburg County No. 06 CVD 2925.
Defendant William H. Campbell appeals from the order holding him in contempt and requiring him to pay plaintiff's attorney's fees associated with the prosecution of two motions to hold him in contempt. We hold that the trial court erred in holding defendant in contempt for failure to produce documents — the basis for one of the contempt motions — because defendant produced the documents at issue in response to plaintiff's contempt motion. The trial court was, however, still permitted to order defendant to pay plaintiff's attorney's fees incurred in prosecuting the motion for contempt. Nonetheless, we must vacate the award of attorney's fees as to both contempt motions and remand for findings of fact regarding plaintiff's ability to defray the costs of the suit and the reasonableness of the fees awarded.
Facts
Plaintiff and defendant were married on 23 June 1990 and had two children together. The parties separated on 28 September 2005, and plaintiff subsequently filed this action seeking custody of their children, child support, attorney's fees, and equitable distribution. The parties' divorce was finalized on 3 December 2007.
On 2 January 2007, the trial court entered an order providing for temporary child support and payment of the children's uninsured health care expenses, including medical, dental, orthodontic, pharmaceutical, optical, and therapeutic expenses. On 16 March 2009, plaintiff filed a motion to have defendant held in contempt for failing to reimburse plaintiff for his share of the children's uninsured expenses.
On 30 March 2009, defendant's counsel was allowed to withdraw, and, on the same day, defendant filed a motion pro se, seeking a continuance of the trial and motions hearing calendared for 13 April 2009. On 31 March 2009, the trial court conducted a hearing on defendant's motion and plaintiff's request that defendant be required to appear for a deposition (originally scheduled for 1 April 2009) in Mecklenburg County. Although notified of the hearing, defendant did not appear, but rather simply telephoned the courtroom clerk.
On 16 April 2009, the trial court entered an order granting defendant's motion for a continuance and continuing the trial until the next available trial setting, at which time, the order provided, the trial court would also hear plaintiff's motion for contempt. The trial court "postponed" defendant's deposition until 24 April 2009 and denied plaintiff's request to require defendant to appear for a deposition in Mecklenburg County, ordering instead that the deposition take place in defendant's county of residence or within 50 miles of the place where defendant was served with this action. In addition, the trial court ordered that "Defendant shall produce to Plaintiff's counsel all documents requested in the Rule 34 Request for Production of Documents no later than 5:00 pm on Wednesday, April 22, 2009."
On 12 May 2009, plaintiff filed a second motion for contempt based on defendant's failure to produce the documents as required by the 16 April 2009 order. On the same day, the trial court conducted a hearing on plaintiff's first motion for contempt. In an order entered 22 May 2009, the court found that defendant had willfully violated the 2 January 2007 order by failing to pay his portion of the uninsured medical bills, totaling $4,837.34. The court concluded that defendant's conduct constituted civil contempt, that he possessed the means and ability to comply with the prior order, that his failure to comply was willful, and that he remained in violation at the time of the hearing. The court, therefore, held defendant in civil contempt, sentenced him to a term of 30 days in the Mecklenburg County Jail, and provided that defendant could purge the contempt by paying the past-due uninsured medical bills at the rate of $500.00 per month. The court reserved the issue of attorney's fees to be "decided at the Court's upcoming contempt hearing in this matter."
Following the 11 August 2009 hearing on plaintiff's second motion for contempt, the trial court entered an order on 23 September 2009 finding that defendant failed to comply with the 16 April 2009 order requiring that the documents be produced by 22 April 2009. The trial court found that defendant had produced the documents that were the subject of the contempt motion on 22 July 2009 and on 11 August 2009. The court then determined that plaintiff was entitled to an award of the attorney's fees related to her contempt motion. The court further noted that, although defendant had been "previously held in Civil Contempt" based on his failure to pay his portion of the children's uninsured medical bills, the issue of attorney's fees was reserved in the 22 May 2009 order. The court then found that "[p]laintiff is entitled to the reimbursement of attorney's fees for the prosecution of both of her contempt motions."
Based on these findings of fact, the trial court concluded that "[d]efendant's conduct constitutes civil contempt," that defendant "possessed the means and ability to comply with the Court's prior order, and his failure to comply was willful," that "[d]efendant's actions violate the Court's order," and that "[p]laintiff is entitled to the reimbursement of her attorney's fees." In the decretal portion of the order, the trial court held defendant in civil contempt, sentencing him to 30 days in the Mecklenburg County Jail. The order allowed defendant to purge that contempt by "pay[ing] the sum of $6,405.20 to Plaintiff's attorney. This amount shall be paid at the rate of $1,000 per month beginning September 1, 2009 and continuing on the first (1st) day of each month thereafter until the entire sum is paid in full." Defendant timely appealed that order to this Court.
Discussion
Defendant contends that the trial court erred in holding him in willful contempt of court for violation of the 16 April 2009 order. When reviewing an order of civil contempt, this Court "`is limited to whether the findings of fact by the trial judge are supported by competent evidence and whether those factual findings are sufficient to support the judgment.'" Ugochukwu v. Ugochukwu, 176 N.C. App. 741, 745, 627 S.E.2d 625, 627 (2006) (quoting McMiller v. McMiller, 77 N.C. App. 808, 810, 336 S.E.2d 134, 136 (1985)).
Defendant first argues that he could not be held in civil contempt because he had already complied with the order by producing the documents on 22 July 2009 and 11 August 2009. In Ruth v. Ruth, 158 N.C. App. 123, 126, 579 S.E.2d 909, 912 (2003) (quoting Brower v. Brower, 70 N.C. App. 131, 133, 318 S.E.2d 542, 544 (1984)), this Court pointed out that while criminal contempt is used to punish acts already committed, civil contempt "`is employed to coerce disobedient defendants into complying with orders of court.'" As a result, a trial court "`does not have the authority to impose civil contempt after an individual has complied with a court order, even if the compliance occurs after the party is served with a motion to show cause why he should not be held in contempt of court.'" Id. (quoting Reynolds v. Reynolds, 147 N.C. App. 566, 573, 557 S.E.2d 126, 131 (2001), disc. review denied in part sub nom. Flynn v. Reynolds, 355 N.C. 493, 563 S.E.2d 567, rev'd in part on other grounds per curiam, 356 N.C. 287, 569 S.E.2d 645 (2002)). Applying this principle, the Court in Ruth concluded that because the plaintiff had returned the parties' children — the basis for the contempt motion — before the contempt hearing, the court's determination that the plaintiff was in willful contempt was "not supported by the findings or evidence." Id.
Likewise, here, by the time of the civil contempt hearing on 11 August 2009, defendant had already produced the documents that were the subject of the 16 April 2009 order, as the trial court found. Under Ruth, therefore, the trial court no longer had authority to hold defendant in civil contempt for failing to produce the required documents.
Plaintiff does not dispute this lack of authority, but instead argues that the 23 September 2009 order did not in fact hold defendant in contempt for the failure to produce documents. Plaintiff contends that in the 23 September 2009 order, the trial court reiterated the prior finding of contempt originally made in the 22 May 2009 order, but the import of the September order was simply to award attorney's fees for both contempt motions. In support of her argument, plaintiff points to the title of the order: "Contempt Order (Attorney's Fees)." The language of the order, however, unambiguously holds defendant in contempt a second time.
The findings of fact state that defendant failed to comply with the terms of the 16 April 2009 order regarding production of documents and that defendant "has been previously held in Civil Contempt by this Court on May 12, 2009 based upon his willful failure to pay his portion of the children's uninsured medical bills." (Emphasis added.) If the purpose of the order was solely to determine whether to award attorney's fees, then the conclusions of law would not need to address whether or not defendant's conduct amounted to civil contempt, but rather would address only the legal conclusions necessary for an award of attorney's fees. The trial court, however, specifically concluded that "[d]efendant's conduct constitutes civil contempt," "[d]efendant possessed the means and ability to comply with the Court's prior order, and his failure to comply was willful," and "[d]efendant's actions violated the Court's Order." Since the court had already noted that defendant had "been previously held" in contempt, this new conclusion that defendant's behavior constituted civil contempt could only refer to the failure to produce documents.
The decretal portion of the order further confirms the intent of the trial court. The 22 May 2009 order had already imposed a 30-day sentence for the uninsured medical bills contempt, which could be purged by payment of the amounts due for those medical bills. In the 23 September 2009 order, the trial court ordered another 30-day sentence that could be purged only by payment of $6,405.20 in attorney's fees. This separate sentence with new conditions for purging the contempt requires us to conclude that the trial court was, in the 23 September 2009 order, finding defendant in contempt for violating the 16 April 2009 order.
We must, therefore, under Ruth, reverse the trial court's order to the extent it holds defendant in contempt for failing to produce documents in violation of the 16 April 2009 order. Because of our resolution of this issue, we need not address defendant's alternative arguments that any contempt was not willful. See Ruth, 158 N.C. App. at 126-27, 579 S.E.2d at 912 ("Because we vacate the judgment of contempt, we need not address plaintiff's alternative argument that the evidence did not support the district court's finding that her non-compliance with the custody order was willful.").
With respect to the award of attorney's fees, this Court observed in Ruth: "`As a general rule, attorney's fees in a civil contempt action are not available unless the moving party prevails. Nonetheless, in the limited situation where contempt fails because the alleged contemnor complies with the previous orders after the motion to show cause is issued and prior to the contempt hearing, an award of attorney's fees is proper.'" Id. at 127, 579 S.E.2d at 912 (quoting Reynolds, 147 N.C. App. at 575, 557 S.E.2d at 132) (awarding attorney's fees to defendant for prosecution of contempt motion when plaintiff complied with prior order to return children before contempt hearing).
With respect to the attorney's fee award, defendant limits his argument to the contention that the trial court's findings of fact were insufficient to support the award. In Reynolds, this Court held that an award of attorney's fees to the moving party in connection with a contempt motion "is only proper upon a finding by the trial court that: (1) the interested party was acting in good faith; (2) the interested party had insufficient means to defray the expense of that suit; and (3) the attorney's fees were reasonable." 147 N.C. App. at 575, 557 S.E.2d at 132 (internal citations omitted).
Defendant also argues that the trial court was required to find that defendant had the ability and means to pay the attorney's fees award. Defendant has not, however, cited any authority in support of this contention, and Reynolds does not mandate such a finding as a prerequisite to an attorney's fee award. We, therefore, do not address this issue.
Thus, in Reynolds, this Court held that in order to award attorney's fees, the trial court must make findings not only that the moving party was acting in good faith, but also that the interested party has insufficient means to bring the suit and that the attorney's fees charged are reasonable. Id. (upholding award of attorney's fees for prosecution of motion for contempt when trial court made findings that plaintiff acted in good faith, had insufficient means to defray costs of action, and fees were reasonable). In determining the reasonableness of the attorney's fees, the trial court "must make `findings regarding the nature and scope of the legal services rendered, the skill and time required, the attorney's hourly rate, and its reasonableness in comparison with that of other lawyers.'" Cunningham v. Cunningham, 171 N.C. App. 550, 565-66, 615 S.E.2d 675, 686 (2005) (quoting Cobb v. Cobb, 79 N.C. App. 592, 595, 339 S.E.2d 825, 828 (1986)).
In this case, the trial court made none of the required findings to support its award of attorney's fees. We must, therefore, vacate the award of attorney's fees and remand for the trial court to make the findings of fact required by Reynolds and Cunningham. We leave to the discretion of the trial court whether to take additional evidence on remand.
Reversed in part; vacated and remanded in part.
Judges ROBERT C. HUNTER and CALABRIA concur.
Report per Rule 30(e).