              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA18-754

                                 Filed: 7 May 2019

Cumberland County, No. 1 CVD 6645

CUMBERLAND COUNTY EX REL: STATE OF ALABAMA O. B. O.: Alisha Lee,
Plaintiff,

             v.

CLIFFORD LEE, Defendant.


      Appeal by defendant from order entered 11 January 2018 by Judge Robert J.

Stiehl, III in Cumberland County District Court. Heard in the Court of Appeals

11 April 2019.


      Cumberland County Child Support Department, by Ben Logan Roberts and
      Roxanne C. Garner, for plaintiff-appellee.

      C. Leon Lee, II, pro se, for defendant-appellant.


      ARROWOOD, Judge.


      Clifford Lee (“defendant” or “C. Leon Lee, II”) appeals from an order holding

him in civil contempt. For the reasons stated herein, we vacate and remand.

                                 I.       Background

      On 3 July 2002, a Cumberland County District Court entered an order

whereby defendant was ordered to pay $350.00 per month, beginning 1 August 2002,

for the support of his minor child.        The Cumberland County Child Support

Enforcement Agency (“plaintiff” or “the agency”) filed a motion to intervene on behalf
                        CUMBERLAND CTY. EX REL. LEE V. LEE

                                  Opinion of the Court



of the custodial parent of the minor child, Alisha Blackmon Lee (“relator”), to provide

child support enforcement services.         The motion came on for hearing on

1 November 2007 before the Honorable A. Elizabeth Keever in Cumberland County

District Court. On 10 March 2008, the trial court entered an order allowing plaintiff

to intervene and ordering defendant to pay the ongoing child support obligation into

the North Carolina Child Support Centralized Collections.

      Plaintiff filed a motion to terminate ongoing child support and to establish

arrears with repayment on 18 January 2011. The motion and a notice of hearing for

17 February 2011 was served on defendant by first class mail on 21 January 2011.

Defendant moved for a continuance on 4 February 2011. The trial court denied

defendant’s motion for a continuance at the 17 February 2011 hearing, the Honorable

Kimbrell Kelly-Tucker presiding. That same day, the trial court entered an order

terminating ongoing child support, effective 30 June 2010, establishing defendant’s

arrears at $9,839.30 and setting repayment at $385.00 per month, beginning

1 March 2011.

      On 12 April 2017, the trial court entered an order to appear and show cause

for defendant’s failure to comply with the 17 February 2011 order. Defendant was

served personally with the order to show cause on 11 May 2017. Defendant moved to

continue the hearing on 15 May 2017.        The trial court granted the motion and




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continued the hearing to 29 June 2017. The matter was continued four additional

times.

         The order to appear and show cause came on for hearing on 22 November 2017

in Cumberland County District Court, the Honorable Robert J. Stiehl, III presiding.

However, during the hearing, defendant claimed an order existed that was not in the

file, so the trial court continued the matter. The hearing continued from the previous

setting on 20 December 2017. Defendant made various arguments, but did not testify

and offered no other evidence. On 11 January 2018, the trial court entered an order

for contempt, finding, inter alia:

               1.     That on July 19, 2002 an Order was entered in this
                      case whereby the Defendant was ordered to pay
                      $350.00 per month for the support and maintenance
                      of the minor child . . . beginning August 1, 2002.

               ....

               4.     It was established that the Defendant owed $9,839.30
                      in outstanding arrears as of February 16, 2011.

               5.     In addition, the Defendant was ordered to pay the sum
                      of $385.00 per month to be applied to the outstanding
                      arrears beginning March 1, 2011 until paid in full.
                      That said Order remains in full force and effect.

               6.     That since the entry of the February 17, 2011 Order,
                      the Defendant has made a total of $5,070.28 in
                      payments toward the outstanding arrears.

               ....

               14. That since the entry of the Order, the Defendant has


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                    failed to comply with the payment terms of the
                    aforesaid Order and as of November 30, 2017 the
                    Defendant owes a total outstanding arrears of
                    $4,769.12 and compliance arrears of $4,769.12 based
                    on the records of North Carolina.

             15. That since the entry of the Order, the Defendant has
                 not been under any physical or mental disability that
                 would prevent him/her from working.

             ....

             18. That the Defendant had the ability to comply with the
                 previous Order and has the ability to purge
                 himself/herself as ordered.

Based on the foregoing findings of fact, the trial court concluded “[t]hat the Defendant

is in willful contempt of this Court for his[/her] failure to comply with the terms and

conditions of the Order previously entered in this case.” The trial court ordered

defendant’s purge condition is to make regular payments.

      Defendant appeals.

                                   II.    Discussion

      Defendant argues the trial court committed reversible error by finding him in

willful contempt because: (1) the record contains no evidence of his ability to pay the

outstanding arrears as ordered, and (2) the agency made accounting errors. We agree

that there is no evidence of defendant’s ability to pay in the record. Therefore, we

vacate the order and remand. We do not reach the second issue on appeal.




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      “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.” Watson v. Watson, 187 N.C. App. 55, 64, 652

S.E.2d 310, 317 (2007) (citation omitted), disc. rev. denied, 362 N.C. 373, 662 S.E.2d

551 (2008). Findings of fact made by the trial court during 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.”

Cumberland Cty. ex rel. Mitchell v. Manning, __ N.C. App. __, __, 822 S.E.2d 305,

307-308 (2018) (quoting Watson, 187 N.C. App. at 64, 652 S.E.2d at 317).

                    A trial court may hold a party in civil contempt for
             failure to comply with a court order if:

             “(1) The order remains in force;

             (2)   The purpose of the order may still be served by
                   compliance with the order;

             (2a) The noncompliance by the person to whom the order
                  is directed is willful; and

             (3)   The person to whom the order is directed is able to
                   comply with the order or is able to take reasonable
                   measures that would enable the person to comply with
                   the order.”

Id. at __, 822 S.E.2d at 308 (quoting N.C. Gen. Stat. § 5A-21(a) (2017)).

      Proceedings for civil contempt may be initiated:

             (1) “by the order of a judicial official directing the alleged
             contemnor to appear at a specified reasonable time and


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             show cause why he should not be held in civil contempt;”
             (2) “by the notice of a judicial official that the alleged
             contemnor will be held in contempt unless he appears at a
             specified reasonable time and shows cause why he should
             not be held in contempt;” or (3) “by motion of an aggrieved
             party giving notice to the alleged contemnor to appear
             before the court for a hearing on whether the alleged
             contemnor should be held in civil contempt.”

Id. at __, 822 S.E.2d at 308-309 (quoting Moss v. Moss, 222 N.C. App. 75, 77, 730

S.E.2d 203, 204-205 (2012); N.C. Gen. Stat. § 5A-23 (2017)). An alleged contemnor

has the burden of proof under the first two methods used to initiate a show cause

proceeding. Id. (citation omitted). However, if an aggrieved party initiates a show

cause proceeding instead of a judicial official, the burden of proof is on the aggrieved

party instead, “because there has not been a judicial finding of probable cause.” Id.

(quoting Moss, 222 N.C. App. at 77, 730 S.E.2d at 205).

      In Cumberland Cty. ex rel. Mitchell v. Manning, our Court reviewed an order

for contempt that resulted from the agency filing a show cause for the defendant’s

failure to comply with a child support order. Id. at __, 822 S.E.2d at 306-307. The

defendant argued, inter alia, that the trial court’s findings on willfulness and present

ability to pay were not supported by competent evidence and did not support the trial

court’s conclusions. Id. at __, 822 S.E.2d at 306. Our Court held that although the

defendant had the burden of proof under N.C. Gen. Stat. § 5A-23 and failed to present

any evidence at the hearing,

             the burden shift under the first two ways of commencement


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               does not divest the trial court of its responsibility to make
               findings of fact supported by competent evidence: “despite
               the fact that the burden to show cause shifts to the
               defendant, our case law indicates that the trial court
               cannot hold a defendant in contempt unless the court first
               has sufficient evidence to support a factual finding that the
               defendant had the ability to pay, in addition to all other
               required findings to support contempt.”

Id. at __, 822 S.E.2d at 309 (quoting Cty. of Durham v. Hodges, __ N.C. App. __, __,

809 S.E.2d 317, 324 (2018)) (citations omitted). Accordingly, because “[t]he record

[was] devoid of evidence of [d]efendant’s ability to pay the child support amount or

purge amount at the time of the hearing[,]” “the trial court’s finding on [d]efendant’s

ability to pay the child support amount owed and the purge amount [was] not

supported by competent evidence.” Id. at __, 822 S.E.2d at 310. As the trial court’s

determination of willfulness was predicated upon defendant’s ability to pay, our

Court vacated the order and remanded for proceedings not inconsistent with the

opinion. Id.

      Similarly, in the case at bar, defendant had the burden of proof under N.C.

Gen. Stat. § 5A-23, and failed to present any evidence at the hearing. His argument

now raises the same issue decided in Cumberland Cty. ex rel. Mitchell: whether the

agency must put forth sufficient evidence to support a factual finding that the

defendant had the ability to pay when a defendant fails to meet his or her burden of

proof to show cause why he or she should not be held in civil contempt.




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                                    Opinion of the Court



      Although our Court answered this question in Cumberland Cty. ex rel.

Mitchell, the agency argues that our Court is not bound by Cumberland Cty. ex rel.

Mitchell because it misinterpreted North Carolina law. We disagree. “Where a panel

of the Court of Appeals has decided the same issue, albeit in a different case, a

subsequent panel of the same court is bound by that precedent, unless it has been

overturned by a higher court.” In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30,

37 (1989) (citations omitted). Accordingly, we are bound by the precedent set out in

Cumberland Cty. ex rel. Mitchell.

      Furthermore, we note that the plaintiff-appellee agency in the instant case was

also the plaintiff-appellee agency in Cumberland Cty. ex rel. Mitchell. However, the

agency never sought review of Cumberland Cty. ex rel. Mitchell in our Supreme Court,

which would have been the proper course to argue the case was decided inconsistently

with North Carolina law, instead of attempting to relitigate Cumberland Cty. ex rel.

Mitchell in the case now before us.

      Because we remain bound by the decision set out in Cumberland Cty. ex rel.

Mitchell, defendant’s failure to meet his burden of proof to show cause did not divest

the agency of its burden to put forth “sufficient evidence to support a factual finding

that the defendant had the ability to pay, in addition to all other required findings to

support contempt.” Cumberland Cty. ex rel. Mitchell, __ N.C. App. at __, 822 S.E.2d

at 309. The agency did not meet this burden, as it put forth no evidence to support



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                                  Opinion of the Court



the finding of fact “[t]hat the Defendant had the ability to comply with the previous

Order and has the ability to purge himself[/herself] as ordered[,]” which is required

to support contempt in civil contempt proceedings to enforce orders for child support.

See Plott v. Plott, 74 N.C. App. 82, 84-85, 327 S.E.2d 273, 275 (1985) (“It is well

established that in civil contempt proceedings to enforce orders for child support, the

court is required to find only that the allegedly delinquent obligor has the means to

comply with the order and that he or she wilfully refused to do so.”) (citations

omitted).

      Therefore, as in Cumberland Cty. ex rel. Mitchell, we vacate the contempt order

and remand for proceedings not inconsistent with this holding.

                                  III.   Conclusion

      For the forgoing reasons, we vacate the contempt order and remand for

proceedings not inconsistent with this holding.

      VACATED AND REMANDED.

      Judges DIETZ and ZACHARY concur.




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