Thompson v. Gerlach (Lawyers Weekly No. 012-126-17, 15 pp.) (Ann Marie Calabria, J.) Appealed from Durham County District Court (Doretta Walker, J.) N.C. App. Unpub.
Holding: Even though the purge conditions imposed by the contempt order require defendant to make arrearage payments for more than 21 years and do not include an explicit end date, the end date is calculable, given that defendant is no longer accruing arrears in child support or alimony. The purge conditions set out in the contempt order are neither indefinite in duration nor impermissibly vague.
We affirm the contempt order.
A July 30, 2008, order required defendant to pay a total of $8,000 in child support and alimony for the months of January 2008 through October 2011 and $7,000 per month from November 2011 through September 2014, unless he lost his job or suffered an income decrease through no fault of his own. In January 2010, defendant lost his job and surrendered his medical license after being charged with felony possession of cocaine.
In September 2015, plaintiff filed a contempt motion alleging that defendant had made no payments since 2013 and that he had failed to inform her – as required by the consent order – that his medical license had been reinstated in 2014.
The trial court held defendant in contempt, finding that (1) he was practicing medicine; (2) he had an arrearage of $307,289.89; (3) he had made no payments since 2013; (4) he had net monthly income of $6,108.57; and (5) even based on his “not credible” statement of monthly fixed expenses, he had an ability to pay $445.14 per month towards the arrearage. The court ordered defendant into the sheriff’s custody for 60 days but provided that contempt could be purged by paying $1,200 to plaintiff by Dec. 12, 2015, and $1,200 per month until the $307,289.89 arrearage was paid in full.
Ability to Pay
Defendant’s financial affidavits showed, beginning July 2015, a gross monthly income of $8,666.67 and a net monthly income of $6,108.57. The affidavits itemized fixed household expenses of $2,966, $1,957.43 for individual expenses for himself, and $740 for his two children with his girlfriend. This left $445.14 to pay toward the arrearage, even if the affidavits were believable.
However, the trial court did not find the affidavits to be credible. The trial court noted excessive monthly expenses including work lunches, household goods, and $100 for grooming. Moreover, defendant’s bank statements showed expenses for, inter alia, weekly dining out, i-Tunes, perfume, and various clothing stores, none of which benefitted plaintiff or her children for whom defendant was under a court order to pay support.
Accordingly, the trial court’s general finding that defendant had the ability to make payments towards his arrearage was supported by evidence in the record.
The contempt order said defendant “shall remain in custody until such time as he purges himself of contempt … by complying with the following conditions; or a period of sixty days.” The conditions were that defendant pay plaintiff $1,200 on Dec. 12, 2015, and $1,200 on the 12th of each month thereafter until the $307,289.89 arrearage is paid in full.
The contempt order does not include an explicit end date. However, defendant protests that the order would require him to make payments for more than 21 years; thus, defendant’s own contention demonstrates that the end date is clear and determinate.
The purge conditions are neither indefinite in duration nor impermissibly vague.