Opinion
No. COA10-289
Filed 4 January 2011 This case not for publication
Appeal by defendant from order entered 6 October 2009 by Judge Carolyn J. Yancey in Granville County District Court. Heard in the Court of Appeals 3 November 2010.
No brief filed on behalf of plaintiff-appellee. Smith Debnam Narron Drake Saintsing Myers, L.L.P., by Alicia Jurney Whitlock, for defendant-appellant.
Granville County No. 08 CVD 128.
Justin Raprager ("defendant") appeals from then entry of an order of contempt and an order for arrest, which were entered orally at the 30 September 2009 hearing on the matter and reduced to a written order and filed on 6 October 2009. After careful review, we affirm.
Background
Defendant and Kara Raprager ("plaintiff") were married on 5 February 1998 and separated on or about 7 December 2007. The parties have two children, Sidney Raprager ("Sidney") (born 7 February 2000), and Harrison Raprager ("Harrison") (born 13 August 2007). On 5 February 2008, plaintiff filed a complaint seeking child custody, child support, postseparation support, alimony, equitable distribution, attorney's fees, and injunctive relief.
On 3 June 2008, the parties entered into a consent order for child support, spousal support, and equitable distribution wherein defendant agreed to pay plaintiff: (1) $25,000 within 30 days of entry of the consent order; (2) an additional $10,000 within 60 days of entry of the consent order; (3) $1,000 per month until a $250,000 distributive award is paid in full; (4) $25,000 on 31 January each year until the $250,000 distributive award is paid in full; (5) $2,000 per month in spousal support; and (6) $2,000 per month in child support.
On 25 February 2009, defendant filed a motion for modification of child custody and child support as well as a motion for modification of spousal support. On 31 March 2009, plaintiff filed a motion and notice for civil contempt claiming that defendant was in willful violation of the consent order because he had ceased paying the required $4,000 per month in combined spousal and child support, and refused to pay the required $1,000 per month towards satisfaction of the $250,000 distributive award. On 30 July 2009, plaintiff filed a motion for an order to show cause and for civil contempt, again alleging that defendant was not fully complying with the consent order. On 31 July 2009, the trial court entered an order to show cause to defendant and set a hearing date of 18 August 2009.
After a continuation of the hearing, the parties appeared before Judge Carolyn Yancey on 25 August 2009 and 30 September 2009. The trial court made findings of fact and concluded as a matter of law that defendant was "in willful contempt" of the 3 June 2008 consent order. The trial court ordered defendant to pay $22,500 in arrears to plaintiff by 1 October 2009. The trial court further ordered that if defendant failed to make the required payment, he was to be immediately arrested and held in the Granville County jail until he "purge[d] himself by paying the total amount he owe[d][.]" Defendant entered a notice of appeal after the trial court orally entered its order on 30 September 2009 and entered an amended notice of appeal after the trial court reduced its order to writing on 6 October 2009. On 30 September 2009, defendant also entered a motion to stay the trial court's order pending appeal; however, the record does not reveal whether the motion was granted or denied.
Interlocutory Nature of Appeal
Generally, "there is no right of immediate appeal from interlocutory orders and judgments." Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). Interlocutory orders and judgments are those "made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court in order to settle and determine the entire controversy." Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999). A final order or judgment, in contrast, "is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court." Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950).
In its order of contempt, the trial court determined that "[t]he request of the plaintiff for attorney's fees and costs is reserved for future ruling by the court." The trial court also stated that "[t]he remaining matters of the defendant's motion to terminate alimony and the defendant's motion to reduce child support and for modification of custody shall be set for further hearing as agreed by the parties on November 17, 2009." Consequently, defendant's appeal in this case is interlocutory since the trial court's order did not fully dispose of all issues between the parties.
An interlocutory order is, however, "immediately appealable if (1) the order is final as to some claims or parties, and the trial court certifies pursuant to N.C.G.S. § 1A-1, Rule 54(b) that there is no just reason to delay the appeal, or (2) the order deprives the appellant of a substantial right that would be lost unless immediately reviewed." Myers v. Mutton, 155 N.C. App. 213, 215, 574 S.E.2d 73, 75 (2002), appeal dismissed and disc. review denied, 357 N.C. 63, 579 S.E.2d 390 (2003). In either case, "it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal[.]" Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). Defendant states in his brief that a contempt order affects a substantial right, and, therefore, he is entitled to immediate appeal pursuant to N.C. Gen. Stat. § 7A-27(d)(1) (2009). This Court has held that "[t]he appeal of any contempt order . . . affects a substantial right and is therefore immediately appealable." Guerrier v. Guerrier, 155 N.C. App. 154, 158, 574 S.E.2d 69, 71 (2002); accord Willis v. Power Co., 291 N.C. 19, 30, 229 S.E.2d 198 (1976). Accordingly, we will hear defendant's appeal.
Discussion
Defendant was held to be in civil contempt pursuant to N.C. Gen. Stat. § 5A-21 (2009) due to his willful violation of the 3 June 2008 consent order.
In the context of a failure to comply with a court order, the evidence must show that the person was guilty of "knowledge and stubborn resistance" in order to support a finding of willful disobedience. 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.
Sharpe v. Nobles, 127 N.C. App. 705, 709, 493 S.E.2d 288, 290-91 (1997) (quoting Hancock v. Hancock, 122 N.C. App. 518, 525, 471 S.E.2d 415, 419 (1996)).
I.
First, defendant argues that the trial court failed to make sufficient findings of fact to support entry of the contempt order. Defendant specifically claims that the trial court failed to make findings concerning: (1) defendant's reasonable personal expenses; (2) the reasonable and ordinary expenses of operating Black Box Intelligence, Inc. ("Black Box"), a company owned and operated by defendant; and (3) defendant's present ability to pay the support set out in the consent order.
Our Supreme Court has held that upon hearing evidence pertaining to willful contempt, the trial court "should take an inventory of the property of the [defendant]; find what are his assets and liabilities and his ability to pay and work — an inventory of his financial condition." Vaughan v. Vaughan, 213 N.C. 189, 193, 195 S.E. 351, 353 (1938). "Manifestly, one does not act willfully in failing to comply with a judgment if it has not been within his power to do so since the judgment was rendered." Lamm v. Lamm, 229 N.C. 248, 49 S.E.2d 403, 404 (1948). "Wilfulness in matters of this kind involves more than deliberation or conscious choice; it also imports a bad faith disregard for authority and the law." Forte v. Forte, 65 N.C. App. 615, 616, 309 S.E.2d 729, 730 (1983).
While the trial court is required to examine a defendant's overall financial condition when determining willfulness, defendant has not cited a case, and we have found none, requiring the trial court to make specific findings of fact pertaining to defendant's liabilities in a contempt proceeding. The applicable statute and case law indicate that the trial court's findings must be sufficient to establish that the failure to pay was willful and that defendant had the ability to comply with the order. N.C. Gen. Stat. § 5A-21. This Court has held that, "[t]hough not specific, [a] finding regarding `present means to comply' is minimally sufficient to satisfy the statutory requirement for civil contempt." Adkins v. Adkins, 82 N.C. App. 289, 292, 346 S.E.2d 220, 222 (1986). Although the trial court in this case did not explicitly set out defendant's liabilities in an itemized fashion, the trial court made a detailed inventory of defendant's financial condition and his present means to comply with the consent order. We hold that the trial court's numerous findings of fact were sufficient to support the order.
II.
Defendant argues that the following findings of fact were not supported by competent evidence in the record:
3. The noncompliance by the Defendant, Justin Raprager (hereinafter Defendant), to whom the order is directed is willful.
. . . .
4. The Defendant is able to comply with this order or is able to take reasonable measures that would enable him to comply with the consent order. Further, in support [of] said determination, the Court specifically sets forth the following additional Findings and incorporates by reference the aforementioned Findings of subparagraphs 1) and 2) as if fully set forth herein:
. . . .
5) The defendant testified that he could draw funds from the corporation "as he deemed necessary." The Court further finds based upon said testimony and evidence presented herein that the Defendant regularly maintained the corporation's funds for personal expenses "as needed" without regard to his obligations pursuant to the consent order.
6) That the Defendant often expensed personal debts and purchased personal assets with business-related funds to the degree of operating as a sole proprietor rather than an officer of a corporation; and that during his commingling of funds as evidenced herein, the Defendant purchased personal items; traveled extensively and paid his personal expenses without regard to his court ordered obligations.
7) That the Defendant had access to at least $45,000.00 outside of business related funds but failed to pay any of said sums toward his court ordered obligations herein.
8) That on or about July 16, 2009, the Defendant's fiancée Amanda Swearingen paid the Defendant $10,000.00 and the Defendant deposited the same into his personal bank account; that the Defendant failed to prove his assertion that said funds required repayment; and that the Court further finds that said funds was income to the Defendant as defined by the North Carolina Child Support Guidelines.
9) That on or about July 3, 2009, the Defendant's fiancée Amanda Swearingen paid the Defendant $35,000.00 and the Defendant deposited said funds into his personal bank account; and that the Defendant executed an unrecorded and un-notarized promissory note dated March 1, 2009 which required the Defendant to begin monthly payments of approximately $250.00 on or about May 2010. However, Defendant recently returned $28,000.00 of the $35,000.00 to Ms. Swearingen and was not able to produce evidence of the whereabouts for the remaining balance other possible than [sic] for possible personal expenses.
. . . .
11) That the Court finds amounts paid by the Defendant's fiancée to help him with personal expenses is income as defined by the North Carolina Child Support Guidelines; that the Defendant failed to produce sufficient evidence to establish that these deposits were loans; and that the Court does not find Defendant's assertion that said deposits were loans to be credible.
. . . .
13) Defendant owns a motorcycle which was purchased by the Plaintiff during the[ir] marriage for approximately $14,000; that the Defendant has the means and ability to liquidate this asset to secure a reasonable payment toward his support and distribution debts; and that he has attempted to s[ell] it for at least $6,000.00.
14) Five months prior to this hearing until July, 2009 and while the Defendant's delinquency remained, Defendant and his fiancée made multiple leisure trips, to wit:
a) From March 25-April 1, 2009, the couple traveled to Las Vegas where the[y] stayed at the Venetian Hotel where the Defendant is considered a "valued customer" because of his substantial gambling patronage in past years.
. . . .
d) In July, 2009, the Defendant and Ms. Swearingen traveled to Washington, D.C. to hire a potential employee for the financially distressed Black Box Intelligence, Inc.; and that according to Ms. Swearingen's uncontested testimony they "took advantage of the three-day trip with the Defendant's minor child, Sidney and one of her friends by visiting an amusement park.
. . . .
16) In January 2009, Defendant relocate[d] the operation of Black Box Intelligence to his newly rented residence wherein a room in said residence has been designated as the corporation's office; that the Defendant in February 2009 financed a $6,000.00 hot tub through Wells Fargo for the same residence where he and the executive director, Ms. Swearingen reside; and that in February 2009, Defendant purchased a $9,000.00 engagement ring for Ms. Swearingen.
. . . .
5. The Defendant enrolled the parties' minor child in a private school, Ravenscroft, without Plaintiff's consent and the Court previously granted Plaintiff's motion to restrain Defendant's conduct. However, the Defendant deposited as tuition in excess of $18,000.00 of which $12,378.60 was refunded directly to the Defendant (check #136325) on or about September 11, 2009; and that said enrollment tuition was paid in June 2009 when the Defendant was delinquent in Child support, alimony and equitable distribution payments.
. . . .
7. Defendant asserts that he and his business suffered a substantial and involuntary decrease in income and therefore should not be held in contempt. However, based upon the evidence presented herein, the Court makes the determination that any decrease in income was voluntary to the extent of Defendant's spendthrift behavior and Defendant's admitted failure to "better manage" his business subsequent to the consent order.
8. That within one year of the consent order, the Defendant's fiancée received a $15,000.00 annual salary increase; that by May, 2009, in an effort to reduce corporate expenses, Defendant's corporation (Black Box) laid off all of its eight employees except the Defendant and Ms. Swearingen who stayed on as executive director until on or about June 15, 2009.
. . . .
10. That during the periods of paying Ms. Swearingen's regular payroll, the Defendant received at least $35,000.00 from this same employee to assist in his personal expenses; and that Ms. Amanda Swearingen resides permanently with the Defendant and contributes to household expenses for Defendant but draws unemployment as his former employee who no longer assists him in the business.
. . . .
12. That since the entry of the consent order herein, the Defendant has made expenditures for personal travel, personal major purchases, and personal debts in excess of $4,800 per month; that he has used the business' credit lines and draws from the business' profits at his convenience. Yet, he failed to pay his monthly obligations pursuant to said consent order.
13. At all relevant times herein, as evidenced by the Defendant's exhibits, personal funds in Defendant's SunTrust account as well as business funds in the Black Box Intelligence, Inc. account were available in amounts sufficient to satisfy his obligation to the Plaintiff.
. . . .
16. Based upon the aforementioned, the Court finds that the Defendant's actions are willful and without justification or reasonable excuse; and that the Defendant had the present ability to comply with the order or to take reasonable measures to comply with the order, as the Defendant could have sold assets, used proceeds from traded assets, used funds he acquired from his business for personal expenditures, cash[ed] the $12,378.60 refund from Ravenscroft, or borrowed money in order to pay the $22,500.00 amount past due.
Defendant makes arguments concerning each finding of fact; however, many of his arguments pertain to immaterial portions of a particular finding. Without addressing each of defendant's arguments at length, we have reviewed the record and we hold that the material findings of fact are supported by competent evidence and that the findings of fact in turn support the conclusions of law. Any immaterial portions are not based on competent evidence have not prejudiced defendant as the ultimate findings concerning defendant's willful conduct are supported by competent evidence. See In re Clark, ___ N.C. App. ___, ___, 688 S.E.2d 484, 496 (2010) ("After careful review of the challenged findings, we conclude that they either have sufficient record support or that any deficiencies in the evidentiary support for these findings of fact did not prejudice the [defendant]."); In re Estate of Mullins, 182 N.C. App. 667, 670-71, 643 S.E.2d 599, 601 ("In a non-jury trial, where there are sufficient findings of fact based on competent evidence to support the trial court's conclusions of law, the judgment will not be disturbed because of other erroneous findings which do not affect the conclusions." (internal citation and quotation marks omitted)), disc. review denied, 361 N.C. 693, 652 S.E.2d 262 (2007).
Of particular importance are the trial courts findings that defendant was able to obtain cash for those personal expenditures he deemed important, such as a hot tub, an engagement ring, and leisure trips.
Defendant overlooks a well-established line of authority which holds that a failure to pay may be willful within the meaning of the contempt statutes where a supporting spouse is unable to pay because he or she voluntarily takes on additional financial obligations or divests him or herself of assets or income after entry of the support order. A contrary rule would permit a supporting spouse to avoid his or her obligations by the simple means of expending assets as he or she pleased, and then pleading inability to pay support, thereby insulating him or herself from punishment by an order of contempt.
Faught v. Faught, 67 N.C. App. 37, 46, 312 S.E.2d 504, 509 (internal citation omitted), disc. review denied, 311 N.C. 304, 317 S.E.2d 680 (1984); see Shippen v. Shippen, ___ N.C. App. ___, ___, 693 S.E.2d 240, 244 (2010) (holding defendant willfully violated consent order by voluntarily quitting his job and moving to religious community after consent order was entered); Bennett v. Bennett, 21 N.C. App. 390, 393, 204 S.E.2d 554, 556 (1974) ("A defendant may not deliberately divest himself of his property and in effect pauperize himself for appearance at a hearing for contempt and thereby escape punishment because he is at that time unable to comply with the court order"). While a modification of defendant's support obligations may be warranted based on the decline in his business revenue, we find no error in the trial court's determination that defendant exhibited a willful failure to comply with the 3 June 2008 consent order. Consequently, we affirm the trial court's order.
Affirmed.
Judges ELMORE and JACKSON concur.
Report per Rule 30(e).