Unger v. Unger

268 N.C.App. 142

834 S.E.2d 649

Guy UNGER, Plaintiff,

v.Heather UNGER, Defendant.

No. COA18-1234

Court of Appeals of North Carolina.

Filed: October 15, 2019

Renorda Pryor, Raleigh, for Plaintiff-Appellant.

No brief filed for Defendant-Appellee.

DILLON, Judge.

This matter is a domestic dispute concerning the child support obligations of Guy Unger ("Father") pursuant to orders entered in 2012. More recently, Father filed a series of motions, including motions pursuant to Rule 60, seeking relief from the 2012 orders. By order entered 5 July 2018, the trial court denied Father's motions. Father appealed. For the following reasons, we affirm.

I. Background

In August 2007, Father filed a complaint for divorce from bed and board, child custody, child support, equitable distribution, and Rule 65 injunctive relief against Heather Unger ("Mother").

In August 2008, the trial court entered an order (the "2008 Order") requiring Father to pay child support in the amount of $2,142.00 per month. However, Father fell behind on his child support obligations, and Mother moved the trial court to hold Father in contempt. The trial court issued an order for Father to appear and show cause why he should not be held in civil or criminal contempt.

In September 2012, prior to the show cause hearing, the parties signed a Memorandum of Judgment (the "2012 MOJ"). In the 2012 MOJ, Father agreed to be held in contempt, and Mother agreed that Father's child support obligation would be reduced to $700.00 per month going forward and that Father could catch up on the arrearages he had accumulated up to that point at a rate of $100.00 per month.

A month later, on 25 October 2012, the trial court entered a written order (the "2012 Order") formalizing the 2012 MOJ. There is evidence, though, that Father immediately fell behind on his modified child support obligations. As a result, on 7 November 2012, the trial court entered an order for Father's arrest (the "2012 Arrest Order"). This 2012 Arrest Order is problematic, as explained below, but Father is not making any argument concerning this Order in the present appeal, and it is unclear from the record the status of the 2012 Arrest Order.

Father did not immediately appeal any of the 2012 orders. But almost six years later, in March 2018, Father filed several motions, including motions for relief under Rule 60, challenging the 2012 orders.

On 5 July 2018, the trial court entered an order dismissing Father's motions, including Father's Rule 60 motions for relief from the 2012 orders. Father timely appealed from this order.

In his appellate brief, Father only argues against the denial of his Rule 60 motions. Accordingly, our review is limited to the trial court's denial of Father's Rule 60 motions.¹

II. Analysis

A. Father's Rule 60(b)(4) Claim

Father moved for relief pursuant to Rule 60(b)(4) of our Rules of Civil Procedure, which allows relief from a judgment where "[t]he judgment is void." N.C. Gen. Stat. § 1A-1, Rule 60(b)(4) (2018). Specifically, Father argues that the 2012 orders are void because they allowed the trial court the authority to order his arrest for an indefinite time going forward if Mother ever claimed he missed a payment, without giving him the opportunity to be heard on the matter.

Father's argument centers on the provision in the 2012 Order finding him in contempt for his accumulated arrearages, as follows:

That [Father] is hereby ordered into custody of the Sheriff of Cumberland County, North Carolina for a period of thirty (30) days which shall be suspended by [Father] abiding by the terms of this child support as herein set above or until such time as he purges himself of contempt.

For the following reasons, we conclude that the 2012 Order, though it might contain legal errors which could have been the bases of a direct appeal if timely brought, is not void.

In criminal contempt statutes, the General Assembly has authorized trial courts to impose sentences of up to 120 (one hundred and twenty) days for past failures to pay child support, "provided the sentence is suspended upon conditions reasonably related to the contemnor's payment of child support." N.C. Gen. Stat. § 5A-12(a)(3)(2012)² . Here, in its 2012 MOJ and 2012 Order, the trial court held Father in contempt for his past violations of the original 2008 Order, as Father was not yet in violation of the 2012 orders. That is, even though he was not current on his obligations created by the 2008 Order, the 2012 MOJ and the 2012 Order allowed Father to pay those arrearages on a new schedule, with the first payment due in the future, at $100 per month. The trial court, though, under Chapter 5A-12 could (and did) punish Father for accumulating those arrearages with a 30-day suspended sentence.

Father, though, takes issue with phrase in the 2012 Order that, if his 30-day suspended sentence was activated, he could shorten the 30-day activated sentence by "purg[ing] himself of contempt." Father contends that this phrase renders the 2012 Order void in its entirety because the Order does not state how he would purge himself of the contempt. Indeed, where a person is held in civil contempt, he may stay imprisoned indefinitely until he meets the purge condition contained in the order; and where a civil contempt order does not contain a clear purge condition, the order must be vacated. See Bethea v. McDonald , 70 N.C. App. 566, 570, 320 S.E.2d 690, 693 (1984).

We disagree that the purge condition renders the 2012 Order void, for two reasons. First, we conclude that the trial court was holding Father in criminal contempt for the arrearages he had accumulated up to 2012, ordering a 30-day criminal sentence. Our Supreme Court has noted that "the demarcation between the two [types of contempt] may be hazy at best." O'Briant v. O'Briant , 313 N.C. 432, 434, 329 S.E.2d 370, 372 (1985). Our Supreme Court further instructed as follows, in making the demarcation:

A major factor in determining whether contempt is criminal or civil is the purpose for which the power is exercised.

Where the punishment is to preserve the court's authority and to punish disobedience of its orders, it is criminal contempt. Where the purpose is to provide a remedy for an injured suitor and to coerce compliance with an order, the contempt is civil.

Id. (emphasis added) (internal citations omitted).

Father argues that the "purge" language transforms the orders to civil since the contempt provision could be construed to compel future obedience. But we have held that a provision that allows for the possibility of early release does not "transform probationary or suspended sentences into civil relief." Bishop v. Bishop , 90 N.C. App. 499, 506, 369 S.E.2d 106, 110 (1988) (citing N.C. Gen. Stat. § 15A-1343(b)(4) in which our General Assembly has included the compliance with child support orders as a "regular condition[ ] of probation" in a criminal context).

The purge condition in this case might have some effect to compel Father's future obedience, but that effect is limited since Father would have to be set free after 30 days anyway (unless he is separately found to be in civil contempt of the future violation). Rather, we construe the trial court's sentence as a 30-day criminal sentence that was being suspended. The purge provision merely allowed Father to shorten the 30-day sentence, if activated based on a future violation, if he cured the future violation while serving his activated criminal sentence. The purge provision, though, did not lengthen the 30-day sentence; that is, if the sentence was activated based on a future violation and Father did not cure the violation, he could still only be held for 30 days based on the 2012 Order . Of course, a future court, in activating the 30-day sentence, could also separately find Father to be in civil contempt of the 2012 Order for the future violation and order Father to be held indefinitely until he purged himself of that contempt.

Second, even if the purge provision transformed the 2012 Order to a civil contempt order, we conclude that the purge condition is not ambiguous. The trial court in 2012 was as clear as it could possibly be in stating that if the 30-day sentence was ever activated based on a future violation, it is then that the trial court, in its order activating the sentence, is to state with specificity how Father is in violation and what he must do to purge himself of that future violation.

Father does not make any specific argument concerning the 2012 Arrest Order. We point out, though, that this Arrest Order, based on Father's alleged violation of the 2012 Order, is problematic, for at least two reasons.

First, the 2012 Arrest Order indicates that Father was to be imprisoned until he paid his $700.00 in arrearages, without any indication that he could only be held for a maximum of 30 days. The trial court had no authority under the 2012 Order to order Father to be held for more than 30 days based on the 2012 Order. If the trial court wanted to impose an indefinite sentence of imprisonment to compel Father's obedience to the 2012 Order, it could only do so based on a new contempt finding based on a new show cause hearing.

And, second, there is nothing in the record which indicates that Father was ever given the opportunity to be heard before the 2012 Arrest Order was entered, which activated his 30-day sentence. Indeed, while the trial court is authorized to suspend a sentence based on a finding of contempt, it is a violation of due process to allow the sentence to be activated based on the alleged violation of a probationary condition without the opportunity first to be heard on the matter. See State v. Hunter , 315 N.C. 371, 377, 338 S.E.2d 99, 104 (1986) (noting that due process requires a hearing before a suspended sentence can be activated in the probation context).

Nevertheless, in this appeal, Father makes no argument that the 2012 Arrest Order was itself void, but rather only that the 2012 MOJ and 2012 Order...