An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-243
                       NORTH CAROLINA COURT OF APPEALS

                            Filed: 16 September 2014


APRIL ROBBINS (formerly HUNT),

      Plaintiff,

      v.                                      New Hanover County
                                              No. 10 CVD 5691
JEFFERY H. HUNT,

      Defendant.


      Appeal by defendant from order entered 6 November 2013 by

Judge J. H. Corpening, II in New Hanover County District Court.

Heard in the Court of Appeals 28 August 2014.


      No brief filed by plaintiff-appellee.

      Chris Kremer for defendant-appellant.


      STEELMAN, Judge.


      Where there was competent evidence to support the trial

court’s     findings     that     defendant      willfully      failed    to    pay

prospective alimony,         the trial court did not err in                holding

defendant in contempt.          Where there was insufficient evidence in

the record to support the trial court’s findings that defendant

willfully failed to pay back alimony and attorney’s fees, the
                                     -2-
trial    court’s    contempt   order       is   reversed,   and   the   matter

remanded for further findings of fact.              Where defendant failed

to preserve the issue of attorney’s fees, and where the appeal

of that issue was previously resolved by this Court, we dismiss

defendant’s argument.

                   I. Factual and Procedural Background

    April Robbins (plaintiff) and Jeffery Hunt (defendant) were

married on 28 November 1992.           Two children were born of the

marriage, in 1997 and 1999.            Plaintiff and defendant resided

together until their separation on 20 March 2010.

    On 10 December 2010, plaintiff filed a complaint seeking

post-separation        support,      permanent        alimony,      equitable

distribution of marital assets, temporary and permanent custody

of the children,      retroactive and prospective child support, and

attorney’s fees.

    On    6   May    2013,   the   trial    court   entered   its   order   on

permanent alimony, equitable distribution, and attorney’s fees.

In the alimony portion of the case, the trial court held that

plaintiff was a dependent spouse, and ordered defendant to pay

alimony of $800 per month, back alimony of $8,000 within 90

days, and $2,000 in attorney’s fees within 90 days.               The marital
                                         -3-
property    was   divided       in   accordance     with     a   separate    schedule

which is not found in the record on appeal.

      The order of 6 May 2013 was appealed to this Court.                         On 6

May   2014,     this    Court    filed   an     opinion      affirming     the   trial

court’s award of alimony, but remanding the issues of equitable

distribution      and    attorney’s      fees    for    additional      findings    of

fact.      Hunt v. Hunt, ___ N.C. App. ___, 759 S.E.2d 712 (2014)

(unpublished), disc. review denied, ___ N.C. ___, ___ S.E.2d

___, 197P14 (19 August 2014).

      On    5   July    2013,   plaintiff       filed    a   verified    motion    for

contempt, alleging that defendant had failed to pay the back

alimony, attorney’s fees, and prospective alimony ordered by the

trial court.

      On    6   November    2013,     the   trial       court    entered    an   order

holding defendant in contempt of court, finding that defendant

failed to make alimony payments for June, July, August, and

September of 2013, failed to pay the back alimony and attorney’s

fees, had the ability to comply with the 6 May 2013 order, and

willfully refused to do so without justification.                           The trial

court concluded that defendant was in willful civil contempt of

its 6 May 2013 order, and ordered defendant to pay $11,200 in

accrued alimony, and $2,000 in attorney’s fees, within 30 days
                                       -4-
of   30   September     2013.     If    defendant   failed    to   make   these

payments,    then   a   warrant   for    his   arrest   was   to   issue,   and

defendant would be confined in the common jail of New Hanover

County.     Defendant was also ordered to pay $750 for the costs

and fees associated with the contempt hearing.

      From the 6 November 2013 contempt order, defendant appeals.

                            II. Contempt Order

      In his first argument, defendant contends that the trial

court’s findings of fact were not supported by the evidence, and

therefore do not support the entry of an order of contempt.                  We

disagree in part and agree in part.

                           A. Standard of Review

            The   standard    of    review   for    contempt
            proceedings    is    limited   to    determining
            whether there is competent evidence to
            support the findings of fact and whether the
            findings support the conclusions of law.
            Findings of fact made by the judge in
            contempt   proceedings     are  conclusive    on
            appeal when supported by any competent
            evidence and are reviewable only for the
            purpose of passing upon their sufficiency to
            warrant the judgment.

Watson v. Watson, 187 N.C. App. 55, 64, 652 S.E.2d 310, 317

(2007) (citations and quotations omitted), disc. review denied,

362 N.C. 373, 662 S.E.2d 551 (2008).

            To hold a defendant in civil contempt, the
            trial court must find the following: (1) the
                                         -5-
            order remains in force, (2) the purpose of
            the order may still be served by compliance,
            (3) the non-compliance was willful, and (4)
            the non-complying party is able to comply
            with the order or is able to take reasonable
            measures to comply. In order to find that a
            defendant acted willfully, the court must
            find not only failure to comply but that the
            defendant presently possesses the means to
            comply. Wilfulness [sic] in matters of this
            kind involves more than deliberation or
            conscious choice; it also imports a bad
            faith disregard for authority and the law.

Shippen v. Shippen, 204 N.C. App. 188, 190, 693 S.E.2d 240, 243

(2010) (citations and quotations omitted).

                                    B. Analysis

      Defendant acknowledges that he failed to make any of the

alimony payments ordered by the trial court, but argues that

this was not sufficient to support the trial court’s findings in

support of its contempt order.               Defendant argues that plaintiff

was   required   to     show      that   defendant’s    failure    to     pay   was

willful,   and   that       the    evidence    presented   at    trial    did   not

support a finding of willfulness.

      We first note that there is no transcript of the contempt

hearing    before     us,    but    rather     a   narrative    summary    of   the

contempt hearing prepared by defendant.               The narration is in the

form of questions and answers, but is not a transcript certified

by a court reporter.
                                         -6-
      At    the     30    September     2013   contempt    hearing,    plaintiff

testified that defendant had failed to pay the $8,000 in back

alimony and the $2,000 in attorney’s fees previously ordered by

the court.         She also testified that defendant had failed to pay

any prospective alimony of $800 per month commencing in June of

2013.      Plaintiff’s testimony concerning defendant’s ability to

pay   these    sums      was   very   vague.    The   testimony   pertinent   to

defendant’s ability to pay was as follows:

              1.     Defendant had recently remarried.

              2.   In April, defendant went on a 7-day
              cruise with the children of his marriage to
              plaintiff, along with his new wife, his new
              mother-in-law, and his new stepson, to
              Jamaica.

              3.   Defendant recently took             a   trip   to
              Germany with his new wife.

              4.   Plaintiff heard from her children that
              defendant recently took a trip to Chicago.

              5.   Defendant purchased smart phones for
              the children of his marriage to plaintiff,
              which plaintiff returned to defendant.

              6.   Plaintiff “guessed” that the April
              cruise to Jamaica cost $15,000. She did not
              venture a guess as to the costs of either
              the trip to Germany or the trip to Chicago.

              7.   Plaintiff never testified as to whether
              defendant paid for any of these trips.

              8.   Defendant was current on his monthly
              child support obligation, and was also
                                        -7-
              current in paying for the children’s tuition
              at a private school.

      Over the objection of the plaintiff, defendant’s counsel

introduced      an     affidavit   of     the   defendant    concerning        his

financial condition.        Defendant did not appear or testify at the

contempt      hearing.      The    affidavit     contained    the       following

information pertinent to his ability to pay:

              1.   Defendant’s   net  monthly   income  in
              September of 2013 was $6,942.22.      In the
              trial court’s order of 6 May 2013, the court
              found defendant’s net monthly income to have
              been $9,567.45.   There is no explanation in
              defendant’s affidavit for the $2,600 per
              month difference.

              2.   Defendant has paid the monthly child
              support and private school tuition for his
              daughters.

              3.   Under the 6 May 2013 court order,
              defendant was ordered to pay all marital
              debts, and particularly a debt to the United
              States    Internal   Revenue    Service   of
              $16,801.44.

      Based upon the evidence presented at the contempt hearing,

the   trial    court    found   that    defendant   had   failed   to    pay   the

$8,000 in back alimony, the $2,000 in attorney’s fees, and the

monthly alimony payments from June 2013 through September 2013,

as ordered in the 6 May 2013 order.             The only finding pertaining

to defendant’s ability to comply and the willfulness of his

conduct was finding of fact 6:
                                    -8-
             6.   The Defendant has the present ability
             to comply with the prior Order of this Court
             and his refusal and failure to do so is
             wilful [sic] and without just cause, excuse
             or justification.

       We note that much of what was contained in defendant’s

affidavit, his counsel’s argument to the trial court, and his

brief to this Court are arguments that defendant should not be

required to pay alimony, and cannot afford to pay alimony.               The

question of the appropriateness of the award of alimony and the

amount of alimony was previously decided by this Court in Hunt

v. Hunt, ___ N.C. App. ___, 759 S.E.2d 712.               Judge Corpening

previously heard the case, and it was appropriate for him to

consider defendant’s monthly income and expenses as found in the

original order filed less than five months prior to the contempt

hearing.     It was also appropriate for him to consider the amount

of defendant’s monthly income as found in the 6 May 2013 order

to determine whether defendant’s failure to pay the alimony of

$800   per   month   for   the   months    of   June,   July,   August   and

September of 2013 was willful.            Defendant’s affidavit did not

state that he had suffered any reduction in income since the

entry of the 6 May 2013 order.              Apparently, Judge Corpening

found defendant’s assertions in his affidavit as to his income

and expenses were simply not credible.
                                        -9-
    We hold that with respect to the June, July, August and

September     alimony      payments     of     $800   per    month,       there   was

competent evidence to support findings that defendant failed to

make those payments, that he had the ability to do so, and that

his failure to make the payments was willful.                      We affirm this

portion of the trial court’s order.

    However, with respect to the trial court’s holding that

defendant was in contempt for failing to pay back alimony and

attorney’s fees totaling $10,000, we are compelled to reverse

and remand this ruling for further findings of fact.                       While the

order   of   6   May   2013   is   in   the    record,      the   distribution     of

marital property was made in an attachment to the order, which

is not in the record.         We thus have no evidence before us as to

defendant’s      assets.       The      only    other    evidence         potentially

relevant to this issue was plaintiff’s testimony concerning the

trips   to    Jamaica,     Germany,      and    Chicago.          Based    upon   the

narrative evidence before us, plaintiff did not testify that

defendant paid for any of these trips, and was uncertain as to

whether the Chicago trip was for business purposes.

    With respect to defendant’s assertion concerning the debt

owed to the Internal Revenue Service, defendant documented this

with a notice of intent to levy in the amount of $16,801.44
                                             -10-
dated   22    April      2013.         We    hold    that   this    was      insufficient

evidence upon which to base a finding of fact that defendant had

the ability to pay the $10,000 and that his failure to pay was

willful.     We reverse this portion of the trial court’s order and

remand for additional findings of fact.                     In its discretion, the

trial court may allow additional evidence.

                                III. Attorney’s Fees

      In his second argument, defendant contends that the trial

court erred in awarding attorney’s fees to plaintiff in its 6

May 2013 order.          In his notice of appeal in this case, defendant

appeals only from the contempt order, not the original order

containing the award of attorney’s fees.                      We hold therefore that

defendant has failed to preserve this issue.                           N.C. R. App. P.

28(b)(6).

      Even assuming arguendo that defendant preserved this issue,

we   note    that   we        have    previously      ruled     upon    the    matter    of

attorney’s    fees       in    this    case.        Defendant      appealed     from    the

original order awarding attorney’s fees in Hunt v. Hunt, ___

N.C. App. ___, 759 S.E.2d 712.                     In that case, we held that the

trial   court      did    not    abuse       its    discretion     in     including     the

services of a paralegal in the cost of attorney’s fees, but

remanded     the    matter       to    the    trial     court    due    to    inadequate
                                      -11-
findings   of   fact.     Id.    As    this   issue   has    been   previously

remanded to the trial court, we hold that it is moot, and not

properly   before   us.     We   therefore     dismiss      this    portion   of

defendant’s appeal.

    AFFIRMED IN PART, REVERSED AND REMANDED IN PART, DISMISSED

    IN PART.

    Judge GEER concurs.

    Judge HUNTER, Robert N., Jr. concurred prior to 6 September

    2014.

    Report per Rule 30(e).
