Opinion
No. COA11–1199.
2012-08-7
Bryant K. WASHINGTON, Plaintiff, v. Tanzea S. MAHBUBA, Defendant.
Bryant K. Washington, pro se, plaintiff-appellant. Gordon A. Miller for defendant-appellee.
Bryant K. Washington, pro se, plaintiff-appellant. Gordon A. Miller for defendant-appellee.
GEER, Judge.
Appeal by plaintiff from orders entered 1 April 2011, 26 April 2011, 29 July 2011, 22 August 2011 by Judges Victoria L. Roemer, William B. Reingold, Lawrence J. Fine, and Denise S. Hartsfield in Forsyth County District Court. Heard in the Court of Appeals 8 February 2012.
Plaintiff Bryant K. Washington appeals from various interlocutory orders in this domestic relations action. With the exception of the orders holding plaintiff in contempt, plaintiff has failed to demonstrate that this Court has jurisdiction, and we, therefore, dismiss the appeal in part. With respect to plaintiff's appeal from the contempt orders, we affirm.
Facts
On 24 November 2008, plaintiff filed a complaint against defendant Tanzea S. Mahbuba, seeking divorce from bed and board as well as an unequal division of marital property. Ms. Mahbuba filed a motion to dismiss, an answer, and counterclaims for post-separation support and alimony, as well as a motion for an interim distribution of marital property. On 7 April 2009, the trial court made an interim distribution award.
A month later, Mr. Washington moved to amend his complaint and then filed an amended motion to amend his complaint on or about 4 June 2009. Mr. Washington also attempted to quash a subpoena served in discovery and appealed to this Court, contending that an attorney has no authority to sign a subpoena. This Court dismissed the appeal as interlocutory. Washington v. Mahbuba, 203 N.C.App. 573, 692 S.E.2d 890, 2010 WL 1542178, 2010 N.C.App. LEXIS 692 (unpublished), disc. review denied,364 N.C. 442, 703 S.E.2d 149 (2010).
On 24 March 2011, the trial court entered an order for post-separation support directing that Mr. Washington pay $267.00 per month to Ms. Mahbuba “until alimony [was] either allowed, denied, or dismissed.” Mr. Washington filed motions for reconsideration on 22 March 2011 and on 28 March 2011. On 1 April 2011, the trial court entered an order that found, among other things, that Mr. Washington had violated Rules 11 and 26 of the North Carolina Rules of Civil Procedure, sanctioned him by striking his previous pleadings, and ordered that he pay Ms. Mahbuba's attorney's fees with the amount of those fees to be decided in a subsequent order.
On 25 April 2011, Mr. Washington filed a notice of appeal from the orders entered by the trial court “Denying his Motions to Amend the Complaint, Motion for Summary Judgment, Motion [to] Strike, Motion to Stop Defendant's Discovery, Motion for a Protective Order, Motion for Sanctions, Motion to Prevent Defendant's Representative from Performing Judicial Acts, Supplemental Motion to Amend the Complaint, Motion to Set Aside the April 7, 2009 Order, Motion for Reconsideration of the Motion for Post Separation Support and Attorney's Fees for an Admitted Pro Bono Attorney entered on or about April 1, 2011....”
The trial court denied Mr. Washington's motions for reconsideration on 26 April 2011 and also ordered that Mr. Washington pay attorney's fees to Ms. Mahbuba's attorney for violations of Rules 11 and 26. In the same order, the trial court directed Mr. Washington to pay attorney's fees in the amount of $1,250.00 in connection with the motions for reconsideration.
On 25 July 2011, the trial court issued an Order of Commitment for a Contempt Proceeding for Mr. Washington's failure to comply with the 26 April 2011 order to pay $1,250.00 in attorney's fees. On 29 July 2011, the trial court entered an order finding Mr. Washington in violation of its 26 April 2011 order and ordering that he be held by the Forsyth County Sheriff until he had paid the $1,250.00 in attorney's fees awarded by the trial court. On 8 August 2011, the trial court entered an order of release providing that Mr. Washington could purge himself of contempt by making full payment of the $1,250.00 still owed in attorney's fees in two equal payments, one by the end of August and the other by the end of September. Mr. Washington filed notice of appeal from the order finding him in civil contempt.
On 22 August 2011, the trial court also entered an Order of Commitment for a Contempt Proceeding for failure to pay $1,335.00 in post-separation support due from April 2011 through the date of the order. Mr. Washington filed notice of appeal from that order on 6 September 2011.
Discussion
Mr. Washington argues on appeal six separate contentions: (1) the trial court abused its discretion when it denied his motion to amend his complaint; (2) the trial court abused its discretion when it denied his motion to strike his former wife's motion for post-separation support under Rule 12(f) of the North Carolina Rules of Civil Procedure; (3) the trial court “committed an abuse of discretion when it disregarded [his] request for admissions that were deemed to be admitted on June 22, 2009 based upon a Motion to Extend Time to Answer the Admissions that was filed on October 5, 2009 under Rule 6(b), not Rule 36(b) of the Rules of Civil Procedure”; (4) the trial court abused its discretion when it found him in civil contempt for failure to pay attorney's fees; (5) the trial court abused its discretion when it found him in civil contempt for not paying post-separation support; and (6) the trial court abused its discretion “when it knowingly used extrinsic fraud to hide evidence in the public record from the Clerk of Court.”
We first address this Court's jurisdiction to hear Mr. Washington's appeal. Each of the orders from which he appeals is interlocutory. “An interlocutory order is one which is ‘made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.’ “ Rauch v. Urgent Care Pharm., Inc., 178 N.C.App. 510, 514, 632 S.E.2d 211, 215 (2006) (quoting Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)). As our Supreme Court has held, “[i]n general, a party may not seek immediate appeal of an interlocutory order.” Dep't of Transp. v. Rowe, 351 N.C. 172, 174, 521 S.E.2d 707, 709 (1999).
More recently, the Supreme Court has explained: “Interlocutory orders may be appealed immediately under two circumstances. The first is when the trial court certifies [under Rule 54(b) ] no just reason exists to delay the appeal after a final judgment as to fewer than all the claims or parties in the action. The second is when the appeal involves a substantial right of the appellant and the appellant will be injured if the error is not corrected before final judgment.” N.C. Dep't of Transp. v. Stagecoach Vill., 360 N.C. 46, 47–48, 619 S.E.2d 495, 496 (2005) (internal citation omitted).
With the exception of the contempt orders, it is well established that the orders Mr. Washington has appealed ordinarily may not be the subject of an interlocutory appeal. See, e.g., First Atl. Mgmt. Corp. v. Dunlea Realty, Co., 131 N.C.App. 242, 247, 507 S.E.2d 56, 60 (1998) (holding that denial of motion to strike is interlocutory and not generally immediately appealable); Buchanan v. Rose, 59 N.C.App. 351, 352, 296 S.E.2d 508, 509 (1982) (“[A]n order denying a motion to amend pleadings is an interlocutory order, and is not immediately appealable.”).
Although Mr. Washington has argued that his appeal involves a substantial right, he has not explained in what way his rights will be substantially impaired if he is required to wait until entry of a final judgment to seek review of the orders denying his motion to amend, his motion to strike, and disregarding his request for admissions. We, therefore, dismiss his appeal as to those orders.
We also note that Mr. Washington filed a notice of appeal with respect to these orders on 26 April 2011. He did not perfect the appeal. Because the appeal appears to have been abandoned, dismissal is required on that basis as well.
In addition, Mr. Washington asserts that the trial court and other unidentified individuals “engaged in acts of extrinsic fraud to hide evidence in the public record” from him. The allegations set out in this section of Mr. Washington's brief appear to be essentially identical to the arguments made regarding the denial of his motion to amend, his motion to strike, and objection to the court's failure to deem his requests for admissions admitted. This Court is an error-correcting court and to the extent that Mr. Washington, in this argument, has identified errors by the trial court, those errors are interlocutory and not properly before this Court.
Mr. Washington's appeal of the orders holding him in civil contempt are, however, immediately appealable. See Guerrier v. Guerrier, 155 N.C.App. 154, 158, 574 S.E.2d 69, 71 (2002) (“The appeal of any contempt order ... affects a substantial right and is therefore immediately appealable.”).
Turning to the merits of that appeal, it is well established that “[t]he 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. ‘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.’ “ Watson v. Watson, 187 N.C.App. 55, 64, 652 S.E.2d 310, 317 (2007) (internal citation omitted) (quoting Hartsell v. Hartsell, 99 N.C.App. 380, 385, 393 S.E.2d 570, 573 (1990)).
Mr. Washington argues as to the 29 July 2011 contempt order that he lacked the ability to pay and, therefore, should not have been held in contempt.
Civil contempt is designed to coerce compliance with a court order, and a party's ability to satisfy that order is essential. Because civil contempt is based on a willful violation of a lawful court order, a person does not act willfully if compliance is out of his or her power. Willfulness constitutes: (1) an ability to comply with the court order; and (2) a deliberate and intentional failure to do so. Ability to comply has been interpreted as not only the present means to comply, but also the ability to take reasonable measures to comply. A general finding of present ability to comply is sufficient when there is evidence in the record regarding defendant's assets.
Id. at 66, 652 S.E.2d 310, 652 S.E.2d at 318 (internal citations and quotation marks omitted).
Here, the trial court in its 29 July 2011 contempt order, found the following relevant facts with respect to Mr. Washington's ability to pay the $1,250.00 attorney's fee award. The court found that Mr. Washington had taken no steps to pay the amount due or to make arrangements to pay, he had been continuously employed at Winston–Salem State University where he earned in excess of $30,000.00 per year, he had been contributing $200.00 per month to his retirement plan, and he had a retirement account with at least $19,000.00. Further, the court found that Mr. Washington had had no extraordinary expenditures that would have precluded his compliance with the court's previous order.
Mr. Washington does not, in his brief, specifically dispute any of the facts found by the trial court regarding his ability to pay. He states only generally that the court abused its discretion “by ignoring evidence that I did not have the ability to pay ....“ The pages in the record that he cites in support of this claim are documents that he filed after the trial court had already entered its 29 July 2011 contempt order. They cannot, therefore, provide a basis for reversal of the contempt order. We hold, therefore, that the trial court did not err in determining that defendant had an ability to comply with the court's order requiring payment of $1,250.00 in attorney's fees.
Mr. Washington next contends that the contempt order was void because the trial court was not allowed to order payment of attorney's fees to Ms. Mahbuba's attorney as he was not a real party in interest in the case under N.C. Gen.Stat. §§ 1–11 and 1–57 (2011) and Rule 17 of the Rules of Civil Procedure. Rule 11, however, specifically allows a trial court to order as sanctions the payment of a reasonable attorney's fee. N.C.R. Civ. P. 11(a) (“If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.” (emphasis added)).
Mr. Washington argues further, however, that Rule 11 does not provide for payment directly to the attorney rather than a party. Our courts have not, however, construed Rule 11 so narrowly. See Church v. Decker, –––N.C.App. ––––, 718 S.E.2d 736, 2011 WL 2462754, at *9–10, 2011 N.C.App. LEXIS 1219, at *31–32 (unpublished) (affirming order under Rule 11 requiring plaintiff to pay $2,000.00 in attorney's fees to defendant's counsel), appeal dismissed,365 N.C. 356, 719 S.E.2d 22 (2011). Mr. Washington's objection to the attorney's fee sanction is meritless, and we affirm the 29 July 2011 contempt order.
Turning to the order holding Mr. Washington in contempt for failure to pay post-separation support, that order does not appear to be properly before this Court. The record on appeal includes a notice of appeal “from the August 29, 2011 Contempt Order of District Court Judge Denise Hartsfield” apparently holding Mr. Washington in contempt for failing to comply with the 24 March 2011 post-separation support order. The record on appeal, however, includes only an Order of Commitment filed 22 August 2011 stating that Mr. Washington could purge himself of contempt by paying $1,335 .00 in past-due post-separation support. The 22 August 2011 order specified that Mr. Washington would be brought back to court on 29 August 2011 if not purged. The record contains no order from 29 August 2011, and no other order finding Mr. Washington in contempt for failure to pay post-separation support.
If, prior to the 22 August 2011 commitment order, the trial court entered an order addressing whether Mr. Washington was in contempt of the post-separation support order, then Mr. Washington has not filed a proper notice of appeal of that order. An appeal from an order pre-dating the 22 August 2011 order would not properly be before this Court. SeeN.C.R.App. P. 3(d) (providing that notice of appeal “shall designate the judgment or order from which appeal is taken”). It is not, in any event, contained in the record.
On the other hand, if there was an order dated 29 August 2011 as specified in the notice of appeal, that order is not in the record on appeal. Rule 9(a) of the Rules of Appellate Procedure mandates that review by this Court is “solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, and any other items filed pursuant to this Rule 9.” Without a copy of the order, we cannot review the merits of Mr. Washington's arguments that he did not willfully fail to comply with the order for payment of post-separation support.
Assuming, without deciding, that we may review the Order of Commitment filed 22 August 2011 (and that the reference to 29 August was a typographical error), Mr. Washington's sole argument is that the trial court lacked subject matter jurisdiction to order post-separation support due to Ms. Mahbuba's pending personal injury action against third parties arising out of an accident that left her paralyzed from the neck down.
The issue of post-separation support was, however, squarely within the jurisdiction of the district court. SeeN.C. Gen.Stat. § 7A–244 (2011) (“The district court division is the proper division without regard to the amount in controversy, for the trial of civil actions and proceedings for annulment, divorce, equitable distribution of property, alimony, child support, child custody and the enforcement of separation or property settlement agreements between spouses, or recovery for the breach thereof.”). The pendency of the personal injury action to recover compensation from third parties did not preclude the district court from exercising jurisdiction over the parties' domestic relations action. We, therefore, uphold the trial court's determination that it had subject matter jurisdiction over Ms. Mahbuba's claim for post-separation support.
Affirmed in part; dismissed in part. Judges STEELMAN and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).