Domestic Relations – Child Support – Contempt Purge

The trial court erred both in holding Plaintiff in civil contempt and by impermissibly modifying its prior orders.

We reversed the Contempt Order.

Plaintiff appealed from an Order finding her in contempt and granting Defendant’s Motion to Increase Attorneys’ Fees, Motion to Increase Arrears, and Motion to Order Plaintiff Incarcerated. The parties are parents of one minor child. The trial court entered a permanent Custody Order in 2022, which maintained the parties’ joint legal custody but awarded Defendant primary physical custody of the child and granted Plaintiff visitation. Defendant subsequently requested $48,866.92 in attorneys’ fees. The trial court entered an Attorney Fees Order on determining the appropriate amount of attorneys’ fees was $30,000. The trial court ordered Plaintiff to pay $2,500 per month toward the total award amount.

In its Child Support Order, the trial court found Plaintiff’s monthly gross income was $5,739.07. The trial court calculated Plaintiff’s child support obligation using our Child Support Guidelines, which set a monthly child support payment of $795. The trial court also determined Plaintiff owed Defendant $6,447.34 in past-prospective child support based on a monthly payment of $882.34 for November 2022 through May 2023. However, the trial court ordered Plaintiff pay only $3,500 in past-prospective child support.

Defendant filed his first Contempt Motion in July 2023, alleging Plaintiff had paid a total of $1,800 in child support in June and July 2023 but owed $790 for that time period. Defendant filed a second Contempt Motion in August 2023, alleging Plaintiff had failed to pay the first attorneys’ fee payment of $2,500. The trial court held a hearing on Defendant’s Contempt Motions in August 2023. At the time of the hearing, Plaintiff had paid her outstanding child support and was current on her child support obligations; however, she had not paid any of the attorneys’ fee payment. Plaintiff testified she earned approximately $1,800 every two weeks and had less than $100per month remaining for her own expenses after fulfilling her court-ordered child support payments. Plaintiff stated she lived with her grandmother and did not have a mortgage nor any kind of rental agreement. Defendant requested the trial court increase the attorneys’ fee award from $30,000 to $50,163.06 and to increase the past-prospective child support award from $3,500 to $6,447.34. The trial court found Plaintiff in contempt of the Attorney Fees Order for her failure to satisfy the $2,500 payment.

On appeal, Plaintiff contended the trial court erred in concluding she was in willful violation and contempt of the Attorney Fee Order. The Contempt Order in this case does not contain any Finding that the Attorney Fee Order remains in force, nor does it contain a Finding stating the purpose of the Attorney Fee Order may still be served by compliance with that Order. Thus, as to the Attorney Fee Order, the trial court’s Findings of Fact do not support its Conclusion that Plaintiff was in contempt of the Order. Further, there was no basis upon which to conclude Plaintiff had the ability to pay $2,500 in attorneys’ fees to comply with the Attorney Fee Order. Without the ability to comply with an order, a party cannot be held in contempt of that order. Therefore, the trial court erred in holding Plaintiff in contempt.

Plaintiff next argued the court erred in ordering her to pay additional attorneys’ fees for which the court previously found her not responsible and ordering her to pay increased past-prospective child support. We agreed. The Attorney Fee Order mandated Plaintiff pay $30,000 in attorneys’ fees. However, the trial court later increased this amount to $51,600in the Contempt Order. In doing so, the trial court impermissibly modified its prior Order.

Plaintiff contended the purge conditions set out in the Contempt Order were improper. We agreed. The evidence before the trial court showed Plaintiff lacked sufficient income to cover her expenses and court-ordered payments. Again, Plaintiff testified her net income was approximately $3,600 per month, while she owed $3,545 total in prospective and past-prospective child support and attorneys’ fees. Additionally, Plaintiff testified her recurring monthly personal expenses totaled $1,705. Thus, Plaintiff could not pay both her expenses and court-ordered payments. Further, the only evidence as to Plaintiff’s assets was her testimony that she lives in her grandmother’s house and thus does not own a home. It would be illogical to conclude, based on this evidence, Plaintiff had the present ability to pay even greater attorneys’ fees and past-prospective child support than already ordered or that Plaintiff could have taken reasonable measures to comply. Thus, the evidence is insufficient to support the trial court’s Finding that Plaintiff had the ability to comply with the purge conditions. Therefore, the trial court erred in finding Plaintiff had the ability to comply with the purge conditions.

Reversed.

Collins v. Holley (Lawyers’ Weekly No. 011-158-25, 21 pp.) (Tobias Hampson, J.) Appealed from Carteret County District Court (W. David McFadyen, III, J.) Miller & Audino, LLP, by Jay Anthony Audino, for Plaintiff-Appellant. Schulz Stephenson Law, by Sundee G. Stephenson and Bradley N. Schulz, for Defendant-Appellee. North Carolina Court of Appeals