County of Durham by and through Durham DSS v. Burnette

262 N.C.App. 17

821 S.E.2d 840

COUNTY OF DURHAM, BY AND THROUGH DURHAM DSS, ex rel: Sharon L. Wilson and Tiffany A. King, Plaintiff,

v.Robert BURNETTE, Defendant.

No. COA17-557

Court of Appeals of North Carolina.

Filed: October 16, 2018

Office of the County Attorney, by Senior Assistant County Attorney Geri Ruzage, for plaintiff-appellee.

Mary McCullers Reece, Smithfield, for defendant-appellant.

STROUD, Judge.

Trial courts have a responsibility to enforce the law and to order relief or punishment for willful disobedience of its orders. But courts are not just collection agencies. Trial courts also have a responsibility to consider the basic subsistence needs of an alleged contemnor before determining he has the ability to pay child support as ordered and the ability to pay purge payments. Although the exact details of basic subsistence needs will vary in different cases and the trial court has wide discretion in determining these needs, basic subsistence needs normally will include food, water, shelter, and clothing at the very least. The trial court must make sufficient findings of fact to show that an alleged contemnor has the ability to pay his child support obligation and purge payment for civil contempt after considering his income, assets, and basic subsistence needs.

Defendant appeals two orders¹ entitled as "Order on Civil Contempt" based upon his failure to pay child support and past public assistance arrears from voluntary support agreements entered in 1993. Plaintiff presented no evidence other than the amount of child support arrears or past public assistance owed. Defendant presented substantial evidence of his inability to pay. Because the findings of fact in the orders do not support the trial court's determination that defendant willfully refused to pay or that he had the ability to pay the purge payments for civil contempt, and neither the evidence nor the findings of fact support the trial court's finding that defendant had the ability to satisfy the purge conditions, the trial court erred in holding him in civil contempt. We therefore vacate both orders and remand for entry of new orders.

I. Background

Defendant entered into a Voluntary Support Agreement and Order in File No. 93 CVD 4477 on 9 November 1993 for a child or children born to Tiffany King which required him to pay child support of $97.00 per month and to repay past public assistance of $5,600.00 at the rate of $13.00 per month.² We will refer to this case as the King matter. Defendant also entered into a Voluntary Support Agreement and Order in File No. 93 CVD 2822 on 19 November 1993 for his two children born to Sharon Wilson, which required him to pay child support of $203.00 per month starting 1 December 1993 and to repay past public assistance of $2,436.00, to be paid at the rate of $20.00 per month, for a total of $223.00 per month. We will refer to this case as the Wilson matter. Over the years, it appears that defendant's child support obligations in both the Wilson and King matters may have been modified and the amounts of past public assistance to be repaid increased, although he did pay some of his obligations.³

On 11 July 2016, plaintiff initiated contempt proceedings against defendant in both cases under N.C. Gen. Stat. § 50-13.9(d). In the Wilson matter, an order to show cause was issued based upon the most recent order of 26 May 2015, with total past due child support of $23,186.69 and $2,136.07 due based on the terms of the last order. In the King matter, an order to show cause was issued based upon the most recent order of 26 May 2015, with total past due child support of $9,138.73 due based on the terms of the last order. Both orders to show cause required defendant to appear on 2 September 2016 to show cause why he should not be held in contempt and to bring to the hearing "all records and information relating to your employment and the amount and source of your disposable income."

On 2 September 2016, defendant appeared in court and applied for a court-appointed attorney; the trial court entered an order continuing the hearing in the Wilson case to 29 September 2016 for "PRETRIAL" and to 18 October 2016 for "Hearing" and appointed counsel for defendant.⁴ The case was then continued and the hearing began on 18 October 2016. After hearing a portion of defendant's testimony, the trial court sua sponte subpoenaed defendant's sister to testify and set the completion of the hearing for 15 November 2016. On 15 November 2016, the trial court initially questioned defendant's sister, and then defendant continued presenting his evidence.

The trial court held defendant in willful civil contempt for his failure to pay his child support. On or about 23 November 2016, the trial court entered a two-page "Order on Civil Contempt" in each case. The two orders are identical except for the case captions, file numbers and amounts of arrears stated in Finding No. 4 of each order; we quote Finding No. 4 below from both orders instead of repeating the rest of the order. The orders first find that defendant was in court and represented by counsel and the custodial parent was not in court. All of the remaining findings of fact are:

3. The Defendant has willfully failed and refused to comply with the Order of this Court entered on 2/1/2009.

4. The Defendant as of the date of his hearing is in arrears in the amount of $22,965.89. (Wilson case) 4. The Defendant as of the date of his hearing is in arrears in the amount of $8959.53. (King case)

5. The Defendant is presently able to comply with the Order or to take reasonable measures that would enable the Defendant to comply with the order and pay a purge of $2500.00 for the following reasons:

a. The Defendant owns a boat.

b. The Defendant owns a car.

c. The Defendant spends money on gas.

d. The Defendant spends money on food.

e. The Defendant has medical issues, but they do not prevent him from working.

f. The Defendant prepares and delivers food.

g. The Defendant repairs cars for money.

h. The Defendant pays car insurance in the amount of $147.00 per month.

i. The Defendant receives in kind income from his sister and friends.

j. The Defendant has a cell phone.

The trial court concluded defendant "should be found in direct Civil Contempt per NCGS § 5A, Article 2."⁵ The trial court ordered that defendant be immediately taken into custody by the Durham County Sheriff and that he "shall remain in custody for 90 days or until a purge of $2,500.00 is paid into the office of the Clerk of Superior Court of this County." In addition , the trial court ordered: "The Defendant shall serve a 90 [day] sentence consecutive with any other child support contempt orders in this Court."⁶ Defendant timely filed notice of appeal from both orders. We will address both orders together since they are identical except for the case captions, file numbers, custodial parent, and findings of amount of arrearages.

II. Analysis

A. Standard of Review

We review orders for contempt to determine if the findings of fact support the conclusions of law: The standard of review we follow in a contempt proceeding is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law. Spears v. Spears , , 784 S.E.2d 485, 494 (2016) (citation and quotation marks omitted); see also Watson v. Watson , 187 N.C. App. 55, 64, 652 S.E.2d 310, 317 (2007) ("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. 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. North Carolina's appellate courts are deferential to the trial courts in reviewing their findings of fact." (Citations and quotation marks omitted) ).

County of Durham v. Hodges , ––– N.C. App. ––––, ––––, 809 S.E.2d 317, 323 (2018).

B. The absence of evidence is not evidence.

Defendant argues that the trial court failed to make sufficient findings of fact to support a conclusion of law that defendant was in willful contempt and challenges some findings as not supported by the evidence. Defendant contends neither the facts as found by the trial court nor the evidence show he could pay a $5,000.00 purge payment as ordered or that he could pay his monthly obligations.

Plaintiff begins its argument by stating that defendant "was working at the time of trial and therefore his medical issues may have ... been restrictive but did not prevent him from working." Plaintiff does not direct us to any evidence which would indicate that defendant was "working" at the time of trial, and the trial court's order did not make a finding he was "working." Plaintiff does not directly respond to defendant's arguments but simply emphasizes that the trial court is the sole judge of the credibility of the evidence and the trial court apparently did not find defendant's evidence of his medical disability to be credible.

This case is remarkably similar, both factually and legally, to Hodges , which discussed the burden of proof for civil contempt and the required findings of fact:

Proceedings for civil contempt can be initiated in three different ways: (1) by the order of a judicial official directing the alleged contemnor to appear at a specified reasonable time and show cause why he should not be held in civil contempt; (2) by the notice of a judicial official that the alleged contemnor will be held in contempt unless he appears at a specified reasonable time and shows cause why he should not be held in contempt; or (3) by motion of an aggrieved party giving notice to the alleged contemnor to appear before the court for a hearing on whether the alleged contemnor should be held in civil contempt. Under the first two methods for

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