Gordon v. Gordon

Annotate this Case

Download PDF

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-1126 NORTH CAROLINA COURT OF APPEALS FILED: 18 June 2013 STEVEN G. GORDON, Plaintiff, v. Guilford County No. 09 CVD 10832 DEBORAH J. GORDON (now James), Defendant Appeal by plaintiff from orders entered 12 April 2012 and 29 June 2012 by District Court. Judge Teresa H. Vincent in Guilford County Heard in the Court of Appeals 27 February 2013. Randolph M. James, PC, by Randolph M. James, for plaintiff. Woodruff Law Firm, P.A., by Carolyn J. Woodruff and Jessica Snowberger Bullock, for defendant. ERVIN, Judge. Plaintiff Steven G. Gordon appeals from orders (1) granting a motion filed by Defendant Deborah J. Gordon (now James) seeking the entry of a preliminary injunction barring Plaintiff from spending or otherwise dissipating funds held in certain bank accounts; (2) clarifying that a previously-entered consent order constituted a judgment requiring the payment of money and establishing the amount currently due and owing under that -2consent judgment; violating the (3) holding consent order; $36,579.75 in attorney s fees. the trial court Plaintiff lacked and (4) in contempt awarding for Defendant On appeal, Plaintiff argues that [the] statutory authority to reduce past-due distributive award payments to a judgment; that the consent court judgment erred in was unenforceably calculating the ambiguous; award of that the attorney s trial fees to Defendant; and that Plaintiff had not breached his obligation to pay money owed consideration orders in under of light the consent Plaintiff s of the judgment. challenges record and to the After careful trial court s the applicable law, we conclude that the orders in question should remain undisturbed. I. Factual Background The parties were married in 1983 and separated in 2007. 21 August agreement, 2009, the pursuant parties to which executed a Plaintiff mediated was On settlement required to pay Defendant a distributive award in the amount of $1,200,000.00 and to pay $5,600.00 per month in post-separation support until $1,000,000.00 return, of Defendant the distributive agreed to award waive had the additional post-separation support or alimony. been right paid. to In receive -3On 24 August 2009, Plaintiff filed a complaint for divorce.1 On 28 October 2009, Defendant filed an answer in which she admitted the material facts alleged in Plaintiff s complaint and asserted counterclaims for, among other things, divorce, distribution of the parties IRA accounts, breach of contract, specific performance of the mediated settlement agreement, and attorney s fees. Plaintiff admitted required by the In a that reply mediated he had filed on not made settlement 13 November 2009, all the payments agreement and asserted various defenses stemming from his alleged inability to obtain a bank loan or otherwise procure the funds needed to make the required payments. On 16 November 2009, Judge Susan R. Burch entered partial summary judgment with respect to the parties divorce claims. On 5 May 2010, the trial court entered a consent order which provided, in pertinent part, that: 1. The parties waive findings of fact and conclusions of law. 2. Plaintiff owes [Defendant] an equitable distribution distributive award as follows: . . . . 1 As a result of the fact that the two children born during the marriage had reached the age of majority by the time that the parties separated and divorced, the present case never involved child custody or child support issues. -4b. [Plaintiff] shall pay to [Defendant] on the first day of each month beginning June 1, 2010 the sum of $9000, by direct deposit. . . to her . . . checking account . . . until the earlier to occur of the following: (i) July 31, 2011 or (ii) The sale of 8640 Road, Colfax, NC c. Adkins Upon the earlier to occur of (i) July 31, 2011 or (ii) the sale of 8640 Adkins Road, Colfax, NC, [Plaintiff] shall pay to [Defendant] the entire balance due on the $1,025,000 distributive award. Any part of the $1,025,000 not paid by July 31, 2011 shall bear interest at 8 percent per annum until paid in full. 3. . . . [Plaintiff] shall pay to [Defendant] $5000 per month nontaxable alimony beginning May 7, 2010 and on the first day of each month thereafter until the $1,025,000 distributive award is paid in full. . . . This alimony does not reduce the $1,025,000 distributive award or the $82,000 additional payment. 4. [Plaintiff s] current listing contract is over in August, 2010. [Plaintiff] shall list 8640 Adkins Road, Colfax, NC with Nancy Laney at a realistic price reasonably designed to sell said property. Issues regarding the listing and sale and acceptance of offers of 8640 Adkins Road, Colfax, NC can come on for arbitration on 2 business days notice[.] . . . [Plaintiff] shall inform [Defendant] within 24 hours of all listing agreements and all offers[.] . . . Upon the sale of 8640 -5Adkins Road, Colfax, all net sales proceeds shall be paid to [Defendant, and, the] proceeds from the sale of 8640 Adkins Road shall reduce the $1,025,000 distributive award. . . . . 7. The Plaintiff shall pay to Defendant an additional $82,000 as an additional distributive award over and above the $1,025,000 at the sale of the home at 8640 Adkins Road, Colfax. . . . proceedings underlying the present appeal began when Defendant filed a motion on 18 October 2011 seeking to have Plaintiff held in contempt on the grounds that Plaintiff had failed to comply with the consent order. asserted that Plaintiff had The contempt motion willfully failed to (1) pay the distributive award as ordered, (2) pay the monthly alimony award as ordered, (3) set up automatic deposit drafts as ordered, or (4) list the Adkins Road property for sale with Ms. Laney. addition, Defendant alleged that Plaintiff was In gainfully employed as he owns his own business and is capable of making all payments required under the consent order. On 8 November 2011, Plaintiff filed a response to Defendant s contempt motion in which he admitted that he had not listed the Adkins Road property for sale with Ms. Laney, argued that listing the home for sale would be an exercise in futility, and alleged that he lacked the present ability provisions of the consent order. to comply with the payment -6Hearings were held concerning the issues raised by Defendant s contempt motion on four different dates between 26 January 2012 and 12 April 2012. During the course of these hearings, Plaintiff admitted that he had failed to list the Adkins Road property for sale with Ms. Laney in accordance with the provisions of the consent judgment. Plaintiff argued, however, that the language requiring him to list the Adkins Road property for sale at a realistic price reasonably designed to sell the property was unenforceably vague and that this deficiency in the consent order obviated the necessity for him to list the property for sale with Ms. Laney at all. Finally, Plaintiff argued that he lacked the ability to make the lump sum payment owed under the consent order and asserted that Defendant had elected the remedy of contempt, as opposed to her contract remedy, suing under [the] contract remedy. 2 2 During the hearings held for the purpose of considering the contempt motion, Plaintiff repeatedly argued that Defendant had elected the remedy of pursuing a contempt motion in lieu of suing on the contract. However, a party to a consent judgment may not bring a breach of contract action to enforce the terms of a consent order. See, e.g., Fucito v. Francis, 175 N.C. App. 144, 148-49, 622 S.E.2d 660, 663 (2005) (noting that, when parties present their separation agreement to the court for approval, the agreement will no longer be considered a contract between the parties, but rather a court-ordered judgment and stating that the parties to a consent judgment . . . do not have an election to enforce such judgment by contempt or to proceed in an independent action in contract because the Supreme Court in Doub specifically prohibited independent actions in contract ) (citing Walters v. Walters, 307 N.C. 381, 386-87, 298 S.E.2d 338, 342 (1983), and quoting Doub v. Doub, -7On 12 April 2012, the trial court orally determined that Plaintiff was in contempt of the consent judgment by willfully failing to list the Adkins Road property for sale with Ms. Laney; stated that Defendant had chosen, instead, to list the property with an inexperienced agent who doesn t even come close to having the qualities, the skills necessary, the connections necessary to sell this price of a house; and noted that, in the court s opinion . . . [, Plaintiff] really [wasn t] trying to satisfy this obligation because he did not believe money. that [he] should have to pay [Defendant any more] As a result, the trial court told Plaintiff that he was being held in contempt of court for willfully failing to list the property with Ms. Laney and that, in the event that he failed to execute a listing contract with her within fourteen days, he would be jailed pending compliance with the relevant provision of the consent judgment. However, the trial court announced be that Plaintiff would not held in contempt for failing to make the lump sum payment required under the consent judgment given that the only way that Plaintiff could have made that payment would have been to liquidate his business, a step that the trial court was unwilling to require. 313 N.C. 169, 171, 326 S.E.2d 259, 260-61 (1985) (emphasis in original)). -8After the trial court announced its decision with respect to the contempt motion, Defendant s counsel reminded the trial court that the Clerk of Superior Court had previously declined to record the consent order as a judgment requiring the payment of money without additional language. In response, the trial court noted that Plaintiff had agreed that the consent order could be recorded as a judgment requiring the payment of money, an observation that Plaintiff did not dispute. As a result, the trial court entered an order on 12 April 2012 clarifying the judgment index in this County; stating that a money judgment has been in effect and on record from and since May 5, 2010, against [Plaintiff] in favor of [Defendant] in the amount and sum certain of $1,025,000.00, as a tax free distributive award ; specifying the amount currently owed as of the date of the trial court s order; and directing the Clerk of Superior Court to confirm that Defendant the On preliminary money the judgment same injunction date, barring is the docketed trial Plaintiff in court from favor of entered a spending or otherwise disposing of certain funds and conducted a hearing concerning the merits of Defendant s motion for attorney s fees. At the attorney s fees hearing, Plaintiff argued that, given that he had not been found in contempt of the provisions contained in the consent order relating to payment of the distributive award, the trial court should refrain from awarding -9attorney s fees stemming from any aspect of the contempt hearing that dealt with Plaintiff s income, expenditures, or ability to pay the money that he owed Defendant. The trial court rejected this argument, noting that if Plaintiff had listed the Adkins Road property the entire contempt proceeding might well have been avoided, and indicated the intention of awarding the requested attorney s fees to Defendant. After served a the conclusion Notice Plaintiff. In Exempt Property. of Right response, of to the contempt have Plaintiff hearing, Exemptions filed a Defendant Designated Motion to on Claim Subsequently, Defendant objected to certain of Plaintiff s claimed exemptions. On 11 May 2012, Plaintiff noted an appeal from the trial court s oral announcement holding him in contempt of the consent order and awarding Defendant attorney s fees, from the 12 April 2012 order clarifying that the consent judgment was a judgment for the payment of money, from the preliminary injunction precluding him from disposing of certain items of property, and from the trial court s decision to quash a subpoena that Plaintiff had issued for the purpose of seeking discovery of Defendant s tax returns.3 3 As a result of the fact that Plaintiff has not advanced any argument challenging the trial court s decision to enjoin him from disposing of certain items of property or to quash the subpoena directed toward Defendant s tax returns, we need not address any issues arising from these decisions in this opinion. -10On 24 May 2012, Plaintiff filed a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)(1), (4), and (6) in which he sought relief from the 12 April 2012 order. In support of this motion, Plaintiff asserted that the consent judgment did not amount to an equitable distribution award pursuant to N.C. Gen. Stat. § 50-20 and that, even though he had had argued throughout the contempt hearings that his liabilities pursuant to the consent judgment could be reduced to a money judgment if defendant decided to pursue a breach of contract claim in the future, Defendant had elected to pursue only the remedy of contempt, entered so under that the the 12 April erroneous consented to [its] entry[.] the 12 April 2012 order was 2012 belief order that was mistakenly [P]laintiff had In addition, Plaintiff argued that an irregular judgment on the grounds that it provided [D]efendant with the opportunity to execute on plaintiff s business. On 26 June 2012, the trial court conducted a hearing for the purpose of addressing the validity of Plaintiff s exemption claims and the language that should be included in the written order finding Plaintiff in contempt and awarding attorney s fees in favor of Defendant. Plaintiff s motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 60 was not addressed at this hearing.4 4 On 29 As a general rule, an appellate court s jurisdiction trumps that of the trial court when one party files a notice of -11June 2012, the trial court entered an order finding Plaintiff in civil contempt for failing to list the Adkins Road property for sale with Ms. Laney. More specifically, the trial court found that Plaintiff had hired an inexperienced realtor to sell the home and that there was no evidence of any attempts by [Plaintiff] to get the listing agreement executed with Nancy Laney[.] For that Plaintiff had disobeyed, resisted, reason, willfully and the and trial without interfered with court legal the concluded that justification Court s lawful Order of May 5, 2010 by failing to list the property . . . with realtor Nancy Laney. In addition, the trial court noted that Plaintiff has been wasting money in many instances and that he appeal[.] . . . [However, the] trial court retains limited jurisdiction to indicate how it is inclined to rule on a Rule 60(b) motion. Hall v. Cohen, 177 N.C. App. 456, 458, 628 S.E.2d 469, 471 (2006) (citing Bell v. Martin, 43 N.C. App. 134, 140-42, 258 S.E.2d 403, 407-09 (1979) (citations omitted), rev d on other grounds, 299 N.C. 715, 264 S.E.2d 101 (1980). As a result, [u]pon the appellate court s notification of a . . . motion filed with the trial court pursuant to N.C. Gen. Stat. § 1A-1, Rule 60, this Court often will remand the matter to the trial court so the trial court may hold an evidentiary hearing and indicate how it [is] inclined to rule on the motion were the appeal not pending. Id. (quoting Bell, 43 N.C. App at 142, 258 S.E.2d at 409). In this case, however, Plaintiff s motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 60 raises legal questions that are essentially identical to those presented on appeal. As a result, we conclude that there is no need to remand this case to the trial court for an evidentiary hearing concerning the merits of Plaintiff s motion for relief from judgment given that Plaintiff s motion does not raise any issues of disputed fact and given that our decision with respect to the issues raised by Plaintiff s appeal will obviate the necessity for a ruling on Plaintiff s motion by the trial court. -12 ha[d] not been serious and diligent about the success of his business because he believed that he should not have to pay [Defendant] the distributive award. However, the trial court refused to find Plaintiff in contempt for failing to make the distributive since the award only payments way that required in [Plaintiff] the may consent have judgment the present ability to comply with the [consent order] would be to liquidate his business, . . . which the Court will not order[.] As a result, the trial court ordered that Plaintiff list the home with realtor Nancy Laney at a realistic price, reasonably designed to sell said property OR report to the Guilford County Sheriff s Department for Plaintiff cures himself of indefinite his incarceration contempt. until In addition, the trial court ordered that, as a condition of purging himself of contempt, [P]laintiff shall by July 30, 2012 pay . . . the sum of $36,579.75 for Defendant s attorney s fees. Plaintiff noted an appeal to this Court from the 12 April 2012 and 29 June 2012 orders. II. Legal Analysis A. 12 April 2012 Order As we have already noted, the consent order required Plaintiff to make certain payments to Defendant and specified both a timetable for the making of the required payments and the consequences that would result from any failure on Plaintiff s -13part to pay the entire amount owed by 31 July 2011. Subsequently, the Clerk of Superior Court declined to index and record the consent order as presently worded in the judgment docket. order, As a result, the trial court entered the 12 April 2012 which purposes of provided, in pertinent part, that, [f]or the clarifying the judgment index in this County, a money judgment has been in effect and on record from and since May 5, 2010, against [Plaintiff] in favor of [Defendant] in the amount and sum certain of $1,025,000.00, as a tax free distributive award. In his brief, Plaintiff argues that the trial statutory court jurisdiction distributive lacked to award enter an payments authority order to a that and subject reduced judgment[.] We matter past-due conclude, however, that Plaintiff s challenges to the 12 April 2012 order do not implicate subject matter jurisdiction considerations and that Plaintiff failed to properly preserve his challenges to the 12 April 2012 order for appellate review. As a preliminary matter, we cannot agree with Plaintiff s assertion that the 12 April 2012 order served to reduce a distributive award to judgment. In Walters, 307 N.C. at 386, 298 S.E.2d at 342, the Supreme Court establish[ed] a rule that whenever the parties bring their separation agreements before the court for the court s approval, it will no longer be treated as a contract between the parties. All separation -14agreements approved by the court as judgments of the court will be treated similarly, to-wit, as court ordered judgments. . . . The parties can avoid the burdens of a court judgment by not submitting their agreement to the court. By not coming to court, the parties preserve their agreement as a contract, to be enforced and modified under traditional contract principles. Under our new rule every court approved separation agreement is considered to be part of a court ordered consent judgment. The undisputed information contained in the record establishes that the parties executed a settlement agreement on 21 August 2009 and that a consent judgment incorporating some of the terms contained in the settlement agreement was entered on 5 May 2010. As a result, to the extent that the distributive award specified in the settlement agreement was reduced to judgment, that step took place when the consent judgment was entered on 5 May 2010. Instead, the 12 April 2012 order was entered [f]or the purpose[] of clarifying the judgment index in this County and provided that a money judgment has been in effect and on record from and since May 5, 2010[.] Thus, contrary to the premise underlying Plaintiff s argument, we conclude that the 12 April 2012 order did not reduce a distributive award to judgment. Regardless of the manner in which the 12 April 2012 order should be characterized, we conclude that Plaintiff has failed to properly preserve his challenge to the entry of that order for appellate review. Although a court s lack of subject -15matter jurisdiction is not waivable and can be raised at any time, In re K.J.L., 363 N.C. 343, 346, 677 S.E.2d 835, 837 (2009), an argument that does not implicate subject matter jurisdiction considerations is waived in the absence of a timely objection. See In re Hutchinson, __ N.C. __, __, 723 S.E.2d 131, 133 (stating that, where the party s argument . . . does not raise a question of subject matter jurisdiction, it was waived when the [party] failed to advance that argument before the trial court ), disc. review denied, __ N.C. __, 724 S.E.2d 910 (2012), and N.C. R. App. P. 10(a)(1) (stating that, to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling and must have obtain[ed] a ruling upon the party s request, objection, or motion ). Although Plaintiff claims that his challenge to the 12 April 2012 order implicates subject matter jurisdiction considerations, this logic is flawed, since not every deviation from required statutory procedures is jurisdictional in nature. State v. Petty, __ N.C. App __, __, 711 S.E.2d 509, 513 (2011). On the contrary, a court s authority to act pursuant to a statute, although related, is different from its subject matter jurisdiction. Simply put, [s]ubject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it; the power of -16a court to hear and determine (subject matter jurisdiction) is not to be confused with the way in which that power may be exercised in order to (authority to act). comply with the terms of a statute Petty, __ N.C. App at __, 711 S.E.2d at 513 (quoting Haker-Volkening v. Haker, 143 N.C. App. 688, 693, 547 S.E.2d 127, 130, disc. rev. denied, 354 N.C. 217, 554 S.E.2d 338 (2001) (internal citations omitted). A careful examination of Plaintiff s brief establishes that, rather than challenging the trial court s authority to adjudicate the issues that have been raised by the parties in this case, Plaintiff is simply arguing that the erroneous manner. trial court resolved those issues in an As a result, Plaintiff s challenge to the 12 April 2012 order does not implicate subject matter jurisdiction considerations, so that Plaintiff was required to assert his challenge to the trial court s authority to enter that order in the court below as a precondition for advancing his challenge to the entry of that order on appeal. Although Plaintiff contends in his brief that, when Defendant s trial counsel reminded the trial court of the need to enter an order directing the Clerk of Superior Court to record and docket the consent order as a judgment, his trial counsel immediately objected and argues that the challenged order was entered [d]espite [his] objection, we do not believe that the record supports this contention. Instead, the record -17reflects that, decision to after find the trial Plaintiff in court orally contempt, announced Defendant s its trial counsel addressed the issue of whether the order at issue here should be entered: [DEFENSE]: And, Your Honor, there are two other issues. We had been talking throughout this, because the clerk s office would not record this as a money judgment without additional language. I have that Order THE COURT: And he already agreed that we ll reduce it to a money judgment. That s not a problem. The record does not reflect that Plaintiff s trial counsel ever disputed the accuracy of the trial court s observation. On the contrary, the record reflects that the parties immediately moved on to the consideration of other issues: [DEFENSE]: . . . The other issue is . . . I d ask that [Plaintiff] not do anything with the money that s over at the Hill Gordon Rentals, and that we have - I m going to ask for a TRO on that money, to freeze it pending us getting money judgment. Instead of arguing that the trial court lacked the power to enter an order directing that the consent judgment be docketed as a judgment for the payment of money and establishing the unpaid accrued amount due and owing under the consent judgment, Plaintiff s trial counsel argued that there was no need for the issuance of the requested injunction and that, following entry of the judgment, Defendant would, instead, be required to follow -18certain procedures associated with the enforcement of a judgment requiring the payment of money: [PLAINTIFF]: I d, I d like to follow the appropriate process. What I heard her say is, and I was standing up in response to: I want a temporary restraining order to do something. And my point was, simply, Mr. Gordon is not going to touch that money. THE COURT: She just wants [an] order to make sure he doesn t touch it. . . . . [PLAINTIFF]: Right. So, I mean, if I can make the representation to the Court he won t touch it, if she wants to execute on it, which is apparently what she s going to do with her money judgment [DEFENSE]: Right. [PLAINTIFF]: - but, but the steps to follow are she s got to send me, one s the exemption notices [DEFENSE]: Right. [PLAINTIFF]: pursuant to money judgment. You have to fill them out. It s a process. . . . . . . . [DEFENSE]: How about the not doing away with inventory except in the ordinary course of business? [PLAINTIFF]: No. Can t Sorry. Business is not a party. [DEFENSE]: do that. Well, [Plaintiff] is. [PLAINTIFF]: I mean, that s - don t mistake my willingness on one issue to -19ignore legal requirements on the other area. . . . I understand we talked about this judgment. She s giving me a copy. If the file she wants to present to you is in a form that she s provided me, I can t consent to it[.] The underlined statements are the basis for Plaintiff s contention that he immediately objected to the entry of an order reducing the distributive award to a payment of money. shows that judgment for the A fair reading of these statements, however, Plaintiff was not questioning the trial court s authority to enter the 12 April 2012 order; instead, Plaintiff was concerned about the impact that an injunction precluding him from disposing of business-related property would have on the operation of his business and contending that the proper way to reach business-related property was to follow the procedures required for the enforcement of a judgment requiring the payment of money. The interpretation of the comments made by Plaintiff s trial counsel which we believe to be appropriate is strongly supported by the fact that Plaintiff never argued that the trial court lacked authority to enter an order like the one at issue here at any point during the contempt hearings. In fact, at various points during that proceeding, Plaintiff s trial counsel made statements expressly acknowledging Defendant s right to enforce the distributive award through the execution process. -20As a result, we read the record to indicate that Plaintiff s objections to Defendant s attempts to obtain the money that Plaintiff owed her were all addressed to issues other than the one that he now seeks to raise on appeal. For example, at one point, Defendant asked the trial court to enter an order clarifying that the consent order was a money judgment, stating that we are asking the Court, because we tried to record this as a money judgment, and we need language clarifying that it is a money judgment[.] In response, instead of asserting that the trial court lacked the authority to enter such an order, Plaintiff argued that Defendant had elected the remedy of obtaining the entry of a consent order and was, for that reason, through the precluded institution from and enforcing the prosecution of consent judgment civil contempt proceedings: [PLAINTIFF]: . . . I respectfully submit, . . . by signing this Consent Order . . . [Defendant] was waiving her contempt powers of this Court. . . . Judge, I respectfully submit that . . . the parties Consent order . . . provided a remedy. . . . It was an election of remedies at the time she signed this Consent Order. THE COURT: So you re saying . . . she should not be able to come to court to get assistance of the Court to ask the Court to hold your client in contempt of court[.] . . . . -21[PLAINTIFF]: . . . . What I m saying is . . . every Consent Judgment, Consent Order, is based on one contract. They could sue THE COURT: contract? Enforcement of the [PLAINTIFF]: - One of the remedies they ve asked for, they ve asked for the remedy of a Judgment. And I m not - they may be well entitled to a Judgment. I m not arguing that issue. . . . Is it a Judgment? Yes. I mean, it could be reduced to a written judgment. And has she properly pled that? Certainly the ED statute would permit the recordation of a Judgment. . . . So is she entitled to Judgment? Yes. Is that a remedy? Yes. Is she entitled to civil contempt? Respectfully, no. . . . (emphasis added) Subsequently, after all of the evidence had been presented and the trial court had indicated that it would not order Plaintiff to dissolve his business until a determination had been made as to whether he could obtain the necessary funds to pay the distributive award by selling the Adkins Road property, Plaintiff did not argue that the trial court lacked authority to enter an order like the one at issue here. Instead, Plaintiff simply asked that certain language be included and expressed concern about the implications Defendant s ability to attach his business assets: [DEFENSE]: Your Honor, I have that Judgment and Order to hand up, if you would like to get that entered so we can go ahead and get it docketed. for -22THE COURT: Okay. And you ve the opportunity to look at it, counsel? had [PLAINTIFF]: . . . I am looking at it now, if Your Honor would give me a moment. . . . Your Honor, in paragraph 8 it says: Any monies collected for (indiscernible word) enforcement would be credited against the distributive award. To the extent that we're talking about the, the Hill and Gordon money, . . . I wonder if we could say that that money could go to attorney s fees first, since . . . I think it will be the first money that will come forward. [DEFENSE]: I don t think we have an objection to that. . . . . . . . THE COURT: Okay. So that s that. Now, for attorney s fees, I ll hear from you. [DEFENSE]: clocked in THE COURT: Can we get those Sure. [DEFENSE]: - because we were hoping to get those docketed today. THE COURT: Sure. Madam Clerk, would you clock these in. [PLAINTIFF]: If I may, if the judgment, I know it would be agreed that it would be a money judgment. But if this is docketed today they could begin the process of executing on all of the properties and the stock and everything immediately[.] THE COURT: Which would do. So . . . . [PLAINTIFF]: I assume they We re anticipating that. -23- THE COURT: I anticipate that, that they would do that. And, well, I mean, that s another reason not to really get into dealing with those other properties. Because you re going to have a judgment and you can execute on all of those, if you like. I mean, there are other ways to get what you like. But I don t think that this is the avenue in terms of contempt of court. You have ways to get to it. [DEFENSE]: Right. THE COURT: And so - and you know, I don t blame you for using what you can. But I m not going to do it through this [contempt] process. Thus, Plaintiff repeatedly conceded that the ordinary execution process was available to Defendant as a means for ensuring payment of the distributive award. After the contempt hearing had been concluded and the relevant orders entered, Defendant served a Notice of Right to have Exemptions Designated on Plaintiff, who responded by filing a Motion to Claim Exempt Property. Subsequently, after Defendant objected to certain of Plaintiff s exemption claims, a hearing was held on 26 June 2012 for the purpose of addressing the Defendant s objections to Plaintiff s claims. In the course of that hearing, Plaintiff objected to the timing of Defendant s notice of his right to have exemptions designated, requested a stay of the execution process, and questioned whether Defendant could go after [Plaintiff s] business and whether Defendant -24could execute on the judgment in addition to having Plaintiff held in contempt. [PLAINTIFF]: . . . If you remember, there was a subtheme throughout the hearing, that Ms. Woodruff elected a remedy, she elected to go to the contempt route, and not to sue us on the Judgment . . . to enforce this order. . . . [T]he day that she handed up the Judgment I objected on the record. . . . I said: I can t consent[.] . . . My concern was exactly what happened here. And what s happened is Your Honor s Order . . . recited that your concern was preserving [Plaintiff s] business[, but] . . . what they re doing . . . with this Judgment is to go after the business through the exemption execution process. And I m saying: Wait a minute. . . . they served the Judgment and then turned around and served the 1C exemption notice. We say Rule 62 says you ve got to wait 30 days, and then you can issue 1C exemption notice. So we say all that procedure is premature. But they re going after the very entity that I thought your Order protected[.] Defendant strongly disagreed, arguing that . . . I submit that they consented to that. They did not object at the time it was entered. He even edited it. . . I am dumbfounded by this. And it is an attempt to delay. . . . After the parties argued their positions regarding the timing of Defendant s notice of the right to have exemptions designated and the likelihood that Defendant would attempt to execute upon Plaintiff s business assets, Plaintiff again argued that Defendant had elected a remedy and was required to focus on their efforts to have him held in contempt: -25. . . They chose contempt. They chose that remedy. Your Honor ruled largely in their favor on the contempt issue. . . . So as a result they ve now come forward with their Judgment seeking execution on everything that s available, including the corporate stock. In an apparent attempt to clarify the specific basis for Plaintiff s objections to the 12 April 2012 order, the trial court asked Plaintiff: THE COURT: I mean, you acknowledge under the ED Order that your client was ordered to pay X amount of money, and that the Clerk s office wouldn t recognize that, and that a Judgment would reflect what was ordered such that the Clerk s office would recognize it. I mean, I think you acknowledge that on the record. [PLAINTIFF]: No, ma am[.] . . . [W]hat you just said is not completely accurate. These parties never had an ED Order. What they had was a Mediated Settlement Agreement. THE COURT: Agreement, whatever. [PLAINTIFF]: Well, whatever is a big difference. What they had is a Mediated Settlement Agreement that never got reduced to an ED Order. They then had the first Consent Order, the second Consent Order, and then we were before Your Honor. And that s the history procedurally. There was never an ED Order, Judgment from the Court. There were consent orders. . . . In other words, in response to the trial court s direct question about the order challenged on appeal, Plaintiff did not assert that the trial court lacked the authority to enter the 12 April -262012 order and argued, instead, that there had never been an equitable distribution award in the first place. Thus, although Plaintiff addressed a number of issues relating to the proper interpretation of the Consent Judgment, the sufficiency of the evidence with respect to certain issues, the availability of execution in addition to a judgment of contempt as a means for enforcing the consent judgment, and the existence of certain alleged procedural irregularities (which effort to avoid an inevitability ) he conceded was an during the 26 June 2012 hearing, the record clearly reflects that Plaintiff never argued that the trial court lacked the authority to reduce the distributive award amount to a money judgment or to establish the accrued unpaid amount owed under that judgment. As a result, Plaintiff took a number of different positions during the course of the proceedings held before the trial court in this case. however, that A close Plaintiff examination never of argued the record during any reveals, of those proceedings that the trial court lacked the authority to enter the 12 April 2012 order. On the contrary, the record, when read in its entirety, demonstrates that Plaintiff never objected to the entry of the challenged order before the trial court and, in fact, repeatedly acknowledged that the trial court had authority to enter an order like the one at issue here. the As a result, given that Plaintiff has failed to properly preserve his -27challenge to the 12 April 2012 order for purposes of appellate review, his challenges to the validity of that order are not properly before us and will not be addressed on the merits in this opinion. B. Enforceability of Consent Judgment Secondly, Plaintiff contends that the trial court erred by holding him in contempt on the grounds that the 5 May 2010 consent judgment was ambiguous and contained an agreement to agree, rendering these unenforceable. consent order provisions of the consent order More specifically, Plaintiff asserts that the is unenforceably ambiguous because it directs Plaintiff to list the Adkins Road property at a realistic price reasonably designed to sell said property. Plaintiff s argument lacks merit. To establish contempt of a court order, the evidence must show that the person was resistance in order to disobedience. guilty of support knowledge a and stubborn finding of willful Campen v. Featherstone, 150 N.C. App. 692, 695, 564 S.E.2d 616, 618, disc. review denied, 356 N.C. 297, 570 S.E.2d 504 (2002) (quotations and citations omitted). result, the if defendant obligations underlying could under not order understand that order, is ambiguous his respective he cannot be such As a that rights said to a and have knowledge of that order for purposes of contempt proceedings. -28Blevins v. Welch, 137 N.C. App. 98, 103, 527 S.E.2d 667, 671 (2000) (quotations and citation omitted). a consent ambiguity language judgment exists is is ambiguous in the fairly and constructions. event is a that The extent to which question the reasonably of relevant susceptible law. An contractual to multiple DeRossett v. Duke Energy Carolinas, LLC, 206 N.C. App. 647, 656, 698 S.E.2d 455, 462 (2010) (citing Duke Energy Corp. v. Malcolm, 178 N.C. App. 62, 65, 630 S.E.2d 693, 695, aff d per curiam, 361 N.C. 111, 637 S.E.2d 538 (2006)) (internal citations omitted). The trial court held Plaintiff in contempt for failing to list the property located at 8640 Adkins Road with realtor Nancy Laney. The consent order clearly specified that [Plaintiff] shall list 8640 Adkins Road, Colfax, NC with Nancy Laney[.] The literal language in which the consent order was couched provided Plaintiff with explicit notice to the effect that he was required to list the Adkins Road property for sale with Ms. Laney. In view of the clarity with which the requirement that Plaintiff violated was stated, we conclude that the fact that the consent order failed to specify a price [P]laintiff must list Adkins Road is immaterial. for which Simply put, Plaintiff was not held in contempt for listing Adkins Road for an unreasonable price; instead, he was held in contempt for failing . to make any attempt[] . . to get the listing -29agreement executed with Nancy Laney for 8640 Adkins Road. As the trial court stated in rejecting this same argument: Now, if you had at least attempted to, and you couldn t come up with a price that was realistic that met the other requirements in that provision, . . that would change my view somewhat of this case. But you didn t do that at all. I have no evidence that there was an attempt by you to set that contract up. . . . [The court] would assume, based upon Ms. Laney s experience in this field of work, that she could suggest what a realistic price is[.] As a result, Plaintiff is not entitled to relief from the trial court s contempt order on the basis of this argument. C. Attorney s Fees Thirdly, Plaintiff argues that the trial court erred by ordering him specifically, to pay $36,579.75 Plaintiff argues in that, attorney s given the fees. trial More court s decision to hold him in contempt for failing to list the Adkins Road property for sale holding him in contempt with Ms. Laney for failing and to refrain from to pay the distributive award in a timely manner, the trial court had no authority to order him to pay attorney s fees associated with litigating the latter issue and that its decision to do so constituted the imposition of an impermissible penalty. We disagree. Generally, attorney s fees and expert witness fees may not be taxed as costs against a party in a contempt action. Watson v. Watson, 187 N.C. App. 55, 69, 652 S.E.2d 310, 320 (2007) -30(citation omitted), S.E.2d 551 (2008). disc. review denied, 362 N.C. 373, 662 On the other hand, a trial court has the authority to require one to pay attorney fees in order to purge oneself from a previous order of contempt for failing refusing to comply with an equitable distribution order. (quotation relate to and citation the omitted). enforcement distribution consent order. of The the amount parties . awarded . and Id. must .equitable Id. at 70, 652 at 320. As Plaintiff correctly notes, the attorney s fees that the trial court required him to pay were accumulated during the five days of hearings regarding whether Plaintiff s spending habits amounted to willful failure by [P]laintiff to satisfy the distributive award and whether plaintiff failed to list the property with Nancy Laney[.] The parties litigated these issues as a result of Defendant s attempt to enforce the consent order. As a result, the fact that it only took three of the 779 transcript pages associated with that hearing to establish that Plaintiff had violated the provision of the consent judgment requiring him to list the Adkins Road property for sale with Ms. Laney and the fact that the trial court did not hold Plaintiff in contempt for failing to pay the distributive award are irrelevant to the issue of whether the trial court had the authority to assess the entire amount of Defendant s attorney s fees against Plaintiff. Instead, the only pertinent fact is -31that Plaintiff was held in contempt for violating the underlying consent order. Since a party may be required to pay another party s attorney s fees as a condition of purging himself or herself from contempt stemming from willful noncompliance with an equitable distribution order and since the attorney s fees in question were incurred in connection with the enforcement of the consent order, we conclude that the trial court did have the authority to require Plaintiff to pay the entire amount of Defendant s attorney s fees. In addition, we are not persuaded by Plaintiff s argument that the trial court should not have required him to pay attorney s fees associated with Defendant s effort to have him held in contempt for willfully failing to pay the distributive award in a timely manner. Despite the fact that the trial court did not hold Plaintiff in contempt on this basis, the evidence relating to Plaintiff s financial situation and the manner in which he handled his assets, income, and expenses was pertinent to the issue of whether his failure to list the Adkins Road property with Ms. Laney was willful. For example, based upon this evidence, the trial court expressly declined to condone the way that Plaintiff had been wasting money and concluded that Plaintiff success of [Defendant his any had not business more] been serious because money. or [he The diligent didn t] trial about want court to the pay admonished -32Plaintiff for showing up to work at 10:30 [or] 11:00 and for showing up to work under the influence of impairing substances and pointed out that Plaintiff had even [come] to court at least on one occasion under the influence of some impairing substance, thereby show[ing] a blatant disregard for what you agreed to pay [Defendant]. In addition, the trial court specifically stated in open court that Defendant s trial counsel should [m]ake sure that [the order] includes the finding that, of course, if [Plaintiff] had listed the home it may have sold, and that, when the sale occurred, Plaintiff could have perhaps recouped his investment, and [D]efendant could have been paid what she s owed, such that this contempt hearing would not have even been necessary. As a irrelevant result, to the the issues attorney s that fee Plaintiff calculation contends were, integral to the trial court s contempt decision. trial court did not err by requiring in are fact, Thus, Plaintiff to the pay Defendant s attorney s fees. D. Alternative Penalty Provisions of Consent Judgment Finally, Plaintiff argues that the trial court erred by reducing the distributive award to judgment that the requiring actually terms set him to gave him out pay a in the choice the consent agreed-upon of either on the grounds order, instead, distributive paying the of award, award or -33allowing the accumulation of interest on the unpaid balance, continuing health to pay insurance month in alimony. the premiums coverage, and associated paying with Defendant Defendant s $5,000.00 a Plaintiff has not, however, identified any language in the consent order that supports this assertion, and we have not found any such language in the course of our own review of that document. As a result, Plaintiff s final argument is without merit. III. Conclusion Thus, for the reasons set forth above, we conclude that Plaintiff is not entitled to relief from the trial court s orders on the basis of any of the arguments asserted in his brief. As a result, the trial court s orders should be, and hereby are, affirmed. AFFIRMED. Judges BRYANT and ELMORE concur. Report per Rule 30(e).

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.