An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1305
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014


DELORES BENTON EVANS,
     Plaintiff-Appellant,

      v.                                      Durham County
                                              No. 90 CVD 123
EARL MARSHALL EVANS, SR., BY AND
THROUGH HIS COURT-APPOINTED
GUARDIAN, CHARLES L. STEEL IV,
     Defendant-Appellee


      Appeal by Plaintiff from order entered 29 August 2013 by

Judge James T. Hill in District Court, Durham County.                     Heard in

the Court of Appeals 7 April 2014.


      Graebe Hanna & Sullivan, PLLC, by Christopher T. Graebe and
      Mark R. Sigmon, for Plaintiff-Appellant.

      Eric C. Michaux, by Eric C. Michaux; and Williams Mullen,
      by Robert W. Shaw, for Defendant-Appellee.


      McGEE, Judge.



      Delores Benton Evans (“Plaintiff”) and Earl Marshall Evans,

Sr. (“Defendant”) were married on 16 August 1969.                       Plaintiff

filed for divorce, child support, and equitable distribution on

10 January 1990.        The trial court entered a consent judgment as
                                 -2-
to the division of the marital property on 8 December 1992.

Paragraphs 2, 4, and 5 of the consent judgment are of particular

relevance to this appeal.

     Pursuant to paragraph 2, Defendant agreed to “execute and

to   deliver    to   []   Plaintiff    two    (2)    promissory   notes,

simultaneously upon the execution of this Consent Judgment by

the parties.”    One promissory note was to be in the amount of

$25,000.00 and would be due on or before 15 January 1993.            The

second promissory note was to be in the amount of $200,000.00

and would be due on or before 15 November 1993.           In paragraph 4

of the consent judgment, Defendant agreed “to pay all principal,

interest, taxes and insurances that are currently owed or that

may hereafter become due and payable on” the beach house on

Topsail Island that Plaintiff and Defendant owned as tenants in

common.

     The   consent   judgment   provided     that,   if   the   foregoing

conditions were “satisfied in their entirety,”

           Plaintiff shall execute and deliver to []
           Defendant quitclaim deeds conveying all her
           rights, title and interest in the following
           properties, subject to all mortgages of
           record:

           a. A shopping center located at 2500
           Fayetteville Street, Durham, North Carolina;

           b.   A  house   and  lot   located  at   1610
           Fayetteville Street, Durham, North Carolina;
                                   -3-
            c. A service station and lot located at 909
            Alston Avenue, Durham, North Carolina;

            d. An office building and lot located at
            2808 Fayetteville Street, Durham, North
            Carolina;

            e. A house and lot located at 808 Ridgeway
            Street, Durham, North Carolina;

            f. A 50 acre tract of         land   in   Granville
            County, North Carolina;

            g. A 45 acre tract of land on Hopkins Road
            in Durham County, North Carolina;

            h. A store and lot located at 370 Old Oxford
            Road, Durham, North Carolina; and

            i. A lot(s) located on Lee Street, Durham
            County, North Carolina.

       Defendant was found incompetent by order of the Clerk of

Superior Court, Durham County, on 3 January 2012, and Charles L.

Steel, IV (“Mr. Steel”), was appointed as Defendant’s guardian

of the estate.       Mr. Steel filed a document titled “Motion to

Show Cause”1 on 12 April 2013, alleging that Defendant performed

“all of his responsibilities and requirements” under the consent

judgment.    Mr. Steel alleged that Plaintiff failed to transfer

four   tracts   of   real   property,    as   provided   in   the   consent

judgment, and requested that the trial court find Plaintiff in

contempt and require Plaintiff to transfer the properties to

Defendant.
1
  Despite the title of the document, the body of the document
asks the trial court to hold Plaintiff in contempt.
                                    -4-
    The trial court held a hearing on Mr. Steel’s motion on 29

July 2013.       The trial court heard testimony from Mr. Steel,

Floyd McKissick, Jr., and John Perry.             The trial court also

admitted into evidence depositions of Mr. Steel and Plaintiff

and various affidavits.        The trial court entered an order on 29

August 2013, finding that:

              (1)   “Plaintiff,   by    her   conduct  and
              representations to Defendant, conveyed to
              Defendant her position that the Consent
              Judgment   remained   enforceable   by  both
              parties through 2003, notwithstanding the
              statute of limitations for enforcing the
              Consent Judgment.”

              (2)   “In   1996  Plaintiff   and   Defendant
              replaced 1992 Note #2 with a new promissory
              note for $250,000 (the “1996 Note”).      The
              1996 Note was an extension and modification
              of   1992   Note  #2   in   the   amount   of
              $200,000.00.”

              (3) “Defendant satisfied the obligations of
              paragraph 2 of the Consent Judgment by a
              payment of $203,758.82 on August 27, 2003,
              his last remaining obligation under the
              Consent Judgment.”

    The trial court ordered that Plaintiff execute and deliver

the quitclaim deeds Defendant requested.         Plaintiff appeals.

    Plaintiff first argues the trial court erred by placing the

burden   of    proof   on   Plaintiff.    N.C.   Gen.   Stat.   § 5A-23(a1)

(2013) provides as follows:

              Proceedings  for  civil contempt  may  be
              initiated by motion of an aggrieved party
              giving notice to the alleged contemnor to
                                            -5-
            appear before the court for a hearing on
            whether the alleged contemnor should be held
            in civil contempt. . . . The motion must
            include a sworn statement or affidavit by
            the   aggrieved  party   setting  forth  the
            reasons why the alleged contemnor should be
            held in civil contempt. The burden of proof
            in a hearing pursuant to this subsection
            shall be on the aggrieved party.

N.C.G.S. § 5A-23(a1) (emphasis added).

       In Trivette v. Trivette, 162 N.C. App. 55, 61, 590 S.E.2d

298, 303 (2004), this Court vacated the adjudication of contempt

where the trial court found that the alleged contemnor “did not

show   cause     as   to   why   his   failure    to     pay   his   child   support

obligations was not wilful, [the alleged contemnor] was per se

wilfully    in    contempt       of   the    mediated    consent     order.”    Id.

“Because the trial court erroneously placed the burden on [the

alleged contemnor] to prove a lack of wilful contempt, the trial

court’s finding of fact does not support its conclusion of law.”

Id.

       Likewise, in the present case, the contempt proceeding was

initiated by a motion filed by Defendant, the alleged aggrieved

party, rather than by an order or notice issued by a judicial

official.      Thus, there is no basis to place the burden of proof

on the alleged contemnor in this case.                  Id. at 60, 590 S.E.2d at

303.    The trial court found: “Plaintiff has failed to show cause

as to why she should not be held in contempt of this [c]ourt’s
                                -6-
Consent Judgment.”     The trial court also stated: “This [c]ourt

FINDS that Plaintiff has failed to show cause why she should not

be held in contempt, and is HEREBY ADJUDGED to be willfully IN

CONTEMPT of the Consent Judgment.”        The foregoing statements

indicate that the trial court erroneously placed the burden on

Plaintiff.     In accordance with     Trivette, we must vacate the

trial court’s order.

    Vacated.

    Chief Judge MARTIN and Judge CALABRIA concur.

    Report per Rule 30(e).
