County of Durham by and through Durham DSS v. Hodges

257 N.C.App. 288

809 S.E.2d 317

COUNTY OF DURHAM, BY AND THROUGH DURHAM DSS, ex rel: Selema Alston caretaker Sharon Y. Brewer mother, Plaintiffs,

v.Omega HODGES, Defendant.

No. COA17-71

Court of Appeals of North Carolina.

Filed: January 2, 2018

Office of the County Attorney, by Senior Assistant County Attorney Geri Ruzage, for plaintiffs-appellees.

Reece & Reece, Smithfield, by Mary McCullers Reece, for defendant-appellant.

STROUD, Judge.

Defendant Omega Hodges ("defendant") appeals from the trial court's civil contempt commitment order entered 14 June 2016 and petitions for certiorari as to the trial court's order entered 17 June 2016. On appeal, defendant argues that the trial court erred by finding that he had the ability to comply with the child support order and purge condition because the trial court's findings were not supported by competent evidence. Because defendant timely appealed from the trial court's 14 June 2016 order, the trial court was divested of jurisdiction to enter the 17 June 2016 order. Thus, for reasons explained in more detail below, we vacate the 17 June 2016 order and reverse the 14 June 2016 order.

I. Facts

Defendant entered into a voluntary child support order in 1987. On 23 November 2015, the Durham County Child Support Enforcement Office filed a motion for order to show cause on behalf of plaintiff Selema Alston¹ . The motion noted that defendant was in arrears of $7246.88 and that the last payment was received in July 2014. An order to appear and show cause was subsequently signed that same date, 23 November 2015.

On 25 February 2016, a hearing was held, and the trial court inquired into defendant's current employment and medical conditions that may interfere with his ability to obtain and maintain employment. Defendant testified that he was currently unemployed and that he had last held employment in June 2014 at Church's Chicken, but it ended because of his disability. Defendant presented a letter dated for the previous day, 24 February 2016, from his primary care physician, Dr. Kristin Ito, describing defendant's medical issues. Defendant's counsel asked for a continuance in order to obtain a subpoena for Dr. Ito in order to verify the contents of the letter. The trial court granted the request.

The hearing resumed on 14 June 2016. The transcript of that hearing has not been provided on appeal because the recordings were found to have no discernible audio, but a reconstruction of the testimony presented at that hearing is in the record. The reconstruction states the following:

Reconstruction of testimony presented 14 June 2016:

Dr. Eugenia Zimmerman practiced at Triangle [Orthopedic] Associates. She testified by telephone.

Dr. Zimmerman evaluated [defendant's] condition on 31 October 2014. [Defendant] presented with shoulder pain, degeneration of the cervical intervertebral disc, and cervical myelopathy. He had no feeling in his hands and was unable to hold things or stand up for prolonged periods of time. As of the time of the visit, [defendant's] condition prevented him from maintaining gainful employment. When asked to consider whether [defendant] could hold a position such as greeter at Walmart if Walmart were willing to accommodate his medical condition, Dr. Zimmerman testified that the requirement of standing for extended periods of time would likely pose a problem. Surgery might have slowed the worsening of the condition, but could not have alleviated the problem. [Defendant] did not have medical insurance at the time of his visit.

Dr. Kristin Ito had a general medical practice at Lincoln Community Health Center. She evaluated [defendant] on 24 February 2016. Dr. Ito also testified by telephone.

Dr. Ito testified that her 24 February 2016 letter and notes were based largely on Dr. Zimmerman's previous diagnosis. When she saw [defendant], his condition had worsened. [Defendant] was in constant pain and took numerous medications that interfered with his ability to function. He was not able to maintain gainful employment. [Defendant] testified that he did not have feeling in his hands, that he had trouble standing, and that his medications made it hard for him to function. His last job had been at Church's Chicken in 2014. He had been able to work there for only five hours per week because of his medical condition. He was terminated from Church's and had not been able to perform even basic janitorial services since that time. [Defendant] had little education and had never held any type of work other than janitorial. He had applied for jobs, but had not been offered employment anywhere.

[Defendant] lived with his parents. He had no income. He did not smoke or drink and relied on friends to drive him to appointments and court. He "could not remember" the last time he had any money. [Defendant] lived on food stamps and got his clothes from a local clothing closet. Only in 2016, he had gotten back on Medicaid and begun seeking medical treatment again.

Dr. Ito's letter, dated 24 February 2016, notes that she saw defendant on that date as a follow up for his chronic neck, back, and shoulder pain. She explained his prior diagnosis through Triangle Orthopedics and noted that their evaluation found his issues were likely to progress and concluded that defendant "is not able to maintain gainful employment as a result of this disability." Dr. Ito referred defendant back to the orthopedic doctor for further treatment.

DSS presented no evidence other than the records of defendant's missed support payments.

On 14 June 2016, the same day as the hearing, the trial court signed and filed a "Commitment Order for Civil Contempt Child Support," directing the sheriff to take defendant into custody immediately and "remain in custody until he/she purges himself/herself of contempt by paying into the office of the Clerk of Superior Court" the sum of $1,000.00. This order is a form order, AOC-CV-603, Rev. 3/03. None of the boxes on the form are checked. The court order upon which contempt was based is not identified. All additions to the form are handwritten. The only blanks filled in are the county, Durham; the court file number; the defendant's name; the date; the trial judge's signature; and "Purge $1000.00 or serve 90 days" which appears in the section of the form for "additional findings." There are no findings of fact. The portion of the form at the bottom sets a hearing date for review on 19 July 2016.

Defendant filed a motion to stay execution of judgment on 15 June 2016, alleging that a "written order" had not yet been filed regarding the 14 June 2016 hearing and arguing that defendant had no ability to comply with the judgment because he is "unemployed, on food stamps and other public assistance, without support from any friends or family (with the exception that his parents allow him to live with them rent free), and with a substantial disability that inhibits his ability to obtain and maintain employment." But defendant's counsel must have been aware that some sort of written order had been filed, since he also filed a notice of appeal on 15 June 2016 which specifically identified the 14 June 2016 order. Most likely he was aware the trial court intended to enter another order with detailed findings of fact and conclusions of law. Since we have no transcript of the hearing or rendition of the order, we have no way of knowing exactly what happened. In any event, defendant's motion to stay alleged that no "written order" had been entered, but in fact, a "written order" had been signed and filed on 14 June 2016. The trial court denied the motion to stay that same day.

As noted above, defendant subsequently filed a notice of appeal on 15 June 2016 "from the final judgment of the Honorable Fred Battaglia, District Court Judge, entered on June 14, 2016 in the District Court of Durham County, which held defendant in contempt for failure to pay child support." The trial court entered a more detailed written order on contempt two days later, on 17 June 2016. In the 17 June 2016 order, the trial court concluded that defendant "does not have just cause for failing to complying [sic] with the prior Court orders and should be held in contempt of court." Defendant was found to be in contempt of court and the trial court ordered that he be "committed to the Durham County Jail for a term not less than 90 days and may be released upon a payment of $1,000.00 purge to be released to child support if paid."² An appellate entry was file stamped on 17 June 2016, and the trial court noted that defendant gave notice of appeal to this Court. On 26 January 2017, defendant filed a conditional petition for writ of certiorari asking this Court to permit review of the 17 June 2016 order. As explained in more detail below, we grant defendant's petition only to vacate the 17 June 2016 order because the trial court was divested of jurisdiction before it was entered.

II. Discussion

Generally, on appeal defendant contends that the trial court erred by finding that defendant had the ability to work, despite the undisputed evidence from both of his physicians that his medical condition made him incapable of gainful employment. Defendant also challenges the trial court's findings that defendant had access to funds from undefined family or friends, despite the absence of any evidence to support this finding. Defendant contends the trial court erred by finding that since defendant resides with his parents rent-free, this creates "in-kind" income that is available for him to pay his child support and purge payment, despite his lack of income or assets.

DSS does not substantively refute defendant's arguments on appeal, other than to note that the trial court is the judge of the weight and credibility of the evidence—which is generally correct, if there is any evidence.

In its second order, entered 17 June 2016, the trial court made detailed findings of fact. But since we must vacate the order, we will not address it in depth....