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Domestic Relations — Child Support & Alimony – Husband’s Income – Contempt – Retirement Account

Bledsoe v. Bledsoe (Lawyers Weekly No. 15-16-0516, 15 pp.) (Linda McGee, C.J.) Appealed from Nash County District Court (John Covolo, J.) N.C. App. Unpub.

Holding: The trial court found that the plaintiff-husband was earning $4,310 per month, but the only support in the record for this finding is a statement by the husband’s attorney. In fact, the evidence included a printout from the North Carolina Division of Employment Security showing a gross monthly income of $2,884.44. The trial court erred by using $4,310 to calculate the husband’s modified child support obligation.

We vacate in part and remand the trial court’s order denying the husband’s request for a reduction in alimony, reducing the husband’s child support obligation, ordering that the husband pay child support and alimony arrearages within 15 days or be subject to arrest, and ordering the husband to pay the wife’s attorney’s fees.

We remand the issue of modification of the husband’s alimony obligation in light of his decreased income so that the trial court may make findings as to whether there had, or had not, been a material and substantial change in circumstances to support any modification of the parties’ 2012 alimony order.

Since the wife had filed only one motion for contempt, the evidence does not support the trial court’s finding that the wife had filed multiple contempt actions.

Moreover, the wife agrees that she did not file a motion for contempt prior to the hearing and that she was not asking the trial court to hold the husband in contempt. As such, the husband was not given notice prior to the hearing under G.S. § 5A-23 that he might be held in civil contempt as a consequence of the proceeding.

Additionally, the trial court did not find, and no evidence was presented, that the husband willfully refused to comply with his support payments. Therefore, we conclude the trial court erred by holding the husband in contempt, and we vacate that portion of the order.

Where the trial court failed to make sufficient findings to support an award of attorney’s fees to the wife, we vacate that part of the award and remand for additional findings.

Although, during the hearing, the wife asked the trial court to prohibit the husband from liquidating his retirement account, there was no motion for a restraining order or injunction filed prior to the hearing – which did not concern equitable distribution. No evidence was presented to indicate there was a risk of the husband liquidating this account prior to an equitable distribution proceeding. Given the lack of notice and the lack of evidence of a risk of liquidation, the trial court’s order to freeze the husband’s retirement account was improper.

Vacated in part and remanded.

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