An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-673
                         NORTH CAROLINA COURT OF APPEALS
                               Filed:    16 December 2014
DONNA TAYLOR,
     Plaintiff

                                               Buncombe County
      v.
                                               No. 12 CVD 4993

CHRISTOPHER D. TAYLOR,
     Defendant


      Appeal by plaintiff from order entered 6 November 2013 by

Judge Ward D. Scott in Buncombe County District Court.                    Heard in

the Court of Appeals 22 October 2014.


      The Moore Law Firm, by Jennifer W. Moore, for Plaintiff.

      Steven Kropelnicki for Defendant


      ERVIN, Judge.


      Plaintiff Donna Taylor (now Sampson) appeals from an order

holding her in civil contempt and establishing conditions by

means of which she was entitled to purge herself of contempt.

On appeal, Plaintiff contends that the trial court erred                          by

holding    her    in    contempt,       establishing   a   set   of   unreasonable

conditions       by    means    of   which    she   could    purge    herself     of

contempt, ordering her to purge herself of contempt by paying
                                                -2-
compensatory      damages      to       Defendant,         and    requiring       her    to    pay

attorney’s      fees     to   Defendant          as    a    purge       condition.        After

careful    consideration           of    Plaintiff’s         challenges      to    the     trial

court’s order in light of the record and the applicable law, we

conclude       that     the    trial          court    erred       by    determining          that

Plaintiff       could    purge      herself       of       civil       contempt    by    paying

compensatory damages to Defendant, that those portions of the

trial court’s order requiring that Plaintiff pay compensatory

damages to Defendant as a purge condition should be vacated, and

that    the     remainder      of       the     trial       court’s      order     should       be

affirmed.

                               I. Factual Background

       Plaintiff and Defendant were married on 10 November 1992

and separated 3 September 2012.                       On 17 October 2012, Plaintiff

filed an action seeking equitable distribution, post-separation

support, and alimony.              On 28 November 2012, the parties settled

the     outstanding       equitable           distribution         claim     and    Plaintiff

dismissed her claims for post-separation support, alimony, and

attorney fees.          On 15 January 2013, Judge Julie Kepple entered a

judgment       that    embodied         the    terms       of    the    28   November         2012

agreement and that awarded Plaintiff, among other things, the

marital    residence,         an    automobile,            household      goods    and    other

items     of     property          exclusive          of        “[D]efendant’s          personal
                                         -3-
belongings that may still be situated in the home” and “the

contents of the garage as of the date of separation which shall

be the sole property of the Defendant.”                     In addition to his

personal belongings and the contents of the garage, Defendant

was also awarded, among other things, “[h]is jewelry including

his wedding ring”; “[a]ll property owned by him prior to the

marriage and any property acquired by gift or inheritance”; a

“1952 Chevy truck and all parts associated with the vehicle”

which was “currently titled in the name of Plaintiff’s father,”

with     Plaintiff      being    ordered    to    “request       that    her    father

transfer that title to Defendant.”

       On   22   December       2012,   Defendant      brought    his    father    and

cousin      to   the   former    marital    residence     for     the    purpose       of

retrieving the items listed in the 15 January 2013 judgment.

Defendant was not, however, able to recover any of these items

because deputies from the Buncombe County Sheriff’s Department

arrived and informed him that he was not supposed to be on the

property.        On    26   February    2013,    the   parties    entered       into    a

consent      order     which     provided   that,      “[o]n     02     March    2013,

Plaintiff shall allow Defendant to remove all items of personal

property awarded to him in the Equitable Distribution Judgment,”

with “[a]ll items that have been awarded to Defendant in the

Judgment [to] be placed in the garage for Defendant to take.”
                                          -4-
The    trial    court   entered       a   civil       restraining     order        against

Defendant by consent on the same day.

       Defendant    arrived      at       the    marital      residence           to   take

possession of the property allocated to him in the 15 January

2013 judgment on 2 March 2013.                  However, Defendant was refused

access to the Chevrolet truck by an off-duty deputy hired by

Plaintiff.      In addition, Defendant found that a number of items

to which he was entitled and that had been left in the garage on

the date of separation were missing.

       On 6 March 2013, Defendant filed a motion seeking the entry

of an order finding Plaintiff in contempt for refusing to allow

him to retrieve all of the items that he had been awarded in the

15    January   2013    judgment.         On    11    April   2013,     a    hearing     on

Defendant’s      motion    was    held.          At    that    hearing,           Defendant

described the items that he was and was not able to retrieve

from the marital property, including, but not limited to, the

1952 Chevrolet truck and associated parts.

       On 26 April 2013, the trial court entered an order finding

Plaintiff in civil contempt; authorizing her to purge herself of

the contempt by complying with prior orders of the court; and

ordering her to allow Defendant to enter the home, the shed, and

the    garage    that   were     located        on    the   site   of       the    marital

residence for the purpose of finding and removing the items of
                                           -5-
property that had been awarded to him in the 15 January 2013

judgment.      On 24 June 2013, the parties were ordered to file

affidavits setting forth their opinions with respect to the fair

market value of the items that Defendant had not been able to

retrieve.     Plaintiff and Defendant filed the required affidavits

on 3 July 2013 and 9 July 2013, respectively.

       On 27 April 2013, Defendant went to the marital residence

to retrieve the remaining property to which he was entitled

under the 15 January 2013 judgment.                    At that time, Defendant

discovered that several items that he was entitled to remove

from    the   premises     were     missing      or   had     been   tampered    with.

Although Defendant was able to take the Chevrolet truck into his

possession,        he   noticed,    upon    further     inspection,      that    metal

filings, debris and motor oil had been poured into the engine at

some point during the time that the truck was in Plaintiff’s

possession.

       On 25 June 2013, Defendant filed another motion seeking to

have Plaintiff held in contempt for failing to comply with the

court’s prior orders.           In his motion, Defendant requested that

Plaintiff be held in contempt and incarcerated until she paid

the    cost   of    repairing      the   damaged      truck    engine,   or     in   the

alternative, that Plaintiff be held in criminal contempt and

punished for her contemptuous conduct.                  After holding a hearing
                                            -6-
for the purpose of considering Defendant’s motion on 27 August

2013,    the   trial       court    entered      an    order     on    6    November    2013

finding that Plaintiff had intentionally and deliberately failed

to deliver the truck engine to Defendant in good repair despite

having had the ability to do so.                      In addition, the trial court

found that Plaintiff had willfully failed to deliver a number of

other items with an aggregate value of $5,431.25 to Defendant

and that Defendant had incurred $11,240.97 in attorney’s fees in

connection     with     his    efforts      to    enforce       the    15     January    2013

judgment.      The      trial court found Plaintiff in civil contempt

for violating prior orders of the court and authorized Plaintiff

to purge herself of contempt by paying the sum of $5,431.25 to

Defendant within 90 days; paying attorney’s fees in the amount

of   $11,240.97        to      Defendant      within       90     days;          and   paying

“Defendant’s     invoice        for   the    truck      engine        for   up    to   $7,000

within 90 days after receipt of the invoice.”                                 Finally, the

trial court ordered that, in the event that Plaintiff failed to

comply    with       these     judicially        established          purge      conditions,

Defendant      was     entitled       to    seek       further        relief,      including

incarceration,        by     making   a    proper      application          to   the   court.

Plaintiff noted an appeal to this Court from the trial court’s

order.

                                   I. Legal Analysis
                                    -7-
             A. Findings in Support of Legal Conclusions

    In   her    first   challenge    to   the     trial   court’s   order,

Plaintiff contends that the trial court erred by determining

that Plaintiff could purge herself of contempt by paying various

amounts of money on the grounds that the trial court’s findings

of fact failed to support the trial court’s decision to hold her

in contempt.    Plaintiff’s contention lacks merit.

    A litigant’s failure to comply with a prior order of the

court constitutes a continuing civil contempt as long as the

order remains in force, the purpose of the order may still be

served by compliance with the order, the noncompliance by the

person to whom the order is directed is willful, and the person

to whom the order is directed is able to comply with the order

or to take reasonable measures that would permit compliance with

the order.     N.C. Gen. Stat. § 5A-21.         “In a domestic relations

action, a consent judgment which has been adopted by the court

may be enforced by civil contempt.”         Hartsell v. Hartsell, 99

N.C. App. 380, 384, 393 S.E.2d 570, 573, appeal dismissed and

disc. review denied, 327 N.C. 482, 397 S.E.2d 218 (1990), aff’d

per curiam, 328 N.C. 729, 403 S.E.2d 307 (1991).            “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.”
                                     -8-
Trivette v. Trivette, 162 N.C. App. 55, 60, 590 S.E.2d 298, 302-

303 (2004) (quoting Sharpe v. Nobles, 127 N.C. App. 705, 709,

493 S.E.2d 288, 291 (1997)).          Findings of fact made during a

contempt proceeding 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.”

Hartsell, 99 N.C. App. at 385, 393 S.E.2d at 573.

      In her brief, Plaintiff challenges Finding of Fact No. 15,

which states that “Plaintiff failed to comply with the terms of

the Equitable Distribution Judgment in that she intentionally

and deliberately did not distribute the truck engine in good

condition,     in     direct   disobedience    of    the      court’s   order.”

According to Plaintiff, since neither she nor Defendant owned

the truck, the trial court lacked the authority to order the

truck’s distribution in the 15 January 2013 judgment, a fact

that, in Plaintiff’s opinion, prohibited the trial court from

holding her in contempt for failing to deliver the truck to

Defendant in good condition.         A decision to accept the validity

of Plaintiff’s argument would, however, put us in the position

of overturning a portion of the original equitable distribution

order.    Aside from the fact that Plaintiff consented to the

entry of the trial court’s order, Nickels v. Nickels, 51 N.C.

App. 690, 693, 277 S.E.2d 577, 579 (stating that “[a] consent
                                       -9-
judgment cannot be set aside except upon proper allegation and

proof that consent was not in fact given or that it was obtained

by fraud or mutual mistake”), disc. review denied, 303 N.C. 545,

281 S.E.2d 392 (1981), Plaintiff failed to either note an appeal

from the 15 January 2013 judgment in a timely manner, N.C.R.

App. P. 3(c)(1) (providing that a party must file and serve a

notice of appeal in a civil action within 30 days from the entry

of judgment), or seek relief from the equitable distribution

judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b).                   As a

result, since Plaintiff consented to the entry of the equitable

distribution judgment and has failed to challenge its validity

in a legally recognized manner, Plaintiff has no choice except

to comply with the trial court’s order.               As a result, the trial

court did not err          by utilizing the information contained in

Finding of Fact No. 15 to support its decision to find Plaintiff

in contempt.

      In addition, Plaintiff contends that Finding of Fact No. 6,

in   which   the   trial    court   found     that   Plaintiff    should    have

delivered the specific items listed in Finding of Fact No. 5 to

Defendant    in    accordance   with    the    15    January    2013   judgment,

lacked   adequate    evidentiary    support     given    that    the   items   of

property listed in Finding of Fact No. 5 were not specifically

identified in the 15 January 2013 judgment.                    In other words,
                                         -10-
Plaintiff’s argument rests on the contention that she cannot

lawfully be held in contempt for failing to allow Defendant to

obtain items that she was never ordered to distribute in the

first place.        Plaintiff has not, however, cited any authority

requiring that items of property be identified in an equitable

distribution        order      more      distinctly        than    the      property

identification provisions of the equitable distribution order in

order for the distribution to become mandatory, and we know of

none.    As a result of the fact that the equitable distribution

judgment awarded Defendant, in pertinent part, “the contents of

the garage” as of date of separation, “[t]ools,” “[h]is jewelry

including his wedding ring,” and “[a]ll property owned by him

prior    to   the   marriage    and   any      property    acquired    by   gift   or

inheritance” and the fact that the record contains evidentiary

support for the trial court’s determination that the specific

items    that   Defendant      claimed    to     be   entitled    to   obtain   were

included in the items of property to be distributed to him in

accordance      with   the   provisions     of    the     equitable    distribution

judgment,1 the record contained competent evidence to support the

     1
      At the hearing, Defendant described specific items of
jewelry that he was unable to recover, including a gold rope
chain, a gold band, a gold nugget band, and a three diamond gold
band. In addition, Defendant described the specific tools that
he was unable to retrieve from the garage, including a Snap-on
torque wrench, a Snap-on double slayer set, a blue point piston
ring compressor set, a compound square, a framing square, a
                                          -11-
trial court’s finding that Plaintiff failed to distribute these

items to Defendant as required by the equitable distribution

order.    As a result, the record contained sufficient evidence to

support    the      trial   court’s      conclusion     that    certain      items   of

property should have been distributed to Defendant in accordance

with the equitable distribution order and that Plaintiff should

be held in contempt for failing to turn these items over to

Defendant.

     The contempt order also determined that Plaintiff should be

held in contempt for failing to distribute additional items of

property to Defendant.2             However, the record is devoid of any

evidence tending to show that these additional items were in the

garage    as   of     the   date    of   separation      or    that   Defendant      was

otherwise      entitled       to    receive      them     under       the    equitable

distribution judgment.3             As a result, given that there was no

evidence tending to show that Defendant was entitled to obtain

possession       of   these   additional       items    of    property      under    the

equitable      distribution        judgment,     the    trial   court       lacked   any

framing hammer, and a wet dry shop vacuum.        The trial court
found Defendant’s description of these missing items to be
credible   and   specifically  rejected    Plaintiff’s   testimony
concerning the whereabouts of these items.
     2
       The items in question included a Buick Grand National
Model, a ’69 Camaro Model, and a Von Dutch ’53 Chevy Truck
Matchbox toy.
     3
      In fact, Defendant testified that these model cars had been
acquired during the marriage.
                                          -12-
authority       to     hold    Plaintiff       in     contempt      for   failing      to

distribute these additional items to Defendant.

      The fact that the trial court erred in this limited respect

is not, however, sufficient to support an award of relief from

the trial court’s contempt order.                   An “appellant must not only

show error, but also that the error is material and prejudicial,

amounting       to    a   denial     of   a   substantial        right    and   that    a

different result would likely have ensued.”                         Cook v. Southern

Bonded, Inc., 82 N.C. App. 277, 281, 346 S.E.2d 168, 171 (1986),

disc. review denied, 318 N.C. 692, 351 S.E.2d 741 (1987).                         As we

have already noted, the record contains numerous instances of

contumacious conduct on the part of Plaintiff, who deliberately

delayed   distributing         property       to    which    Defendant    was    clearly

entitled under the equitable distribution judgment, such as the

tools     and        jewelry    discussed          earlier     in    this       opinion.

Plaintiff’s failure to distribute these items of property formed

a more than sufficient basis for the trial court’s finding that

Plaintiff should be held in contempt without regard to the fact

that Defendant did not receive the additional items of property

discussed in the preceding paragraph.                   In view of this fact and

our subsequent holding that the trial court lacked the authority

to   require     Plaintiff      to   reimburse       Defendant      for   the    missing

items as a purge condition, Plaintiff has not been prejudiced by
                                       -13-
the trial court’s decision to hold Plaintiff in contempt because

she failed to distribute these additional items of property to

Defendant.     As     a    result,     the    trial    court    did     not    commit

prejudicial   error       by   holding   Plaintiff      in     contempt       for   her

failure to comply with prior orders of the court.

              B. Failure to Establish Purge Conditions

     Secondly, Plaintiff contends that the trial court erred by

finding her in contempt without affording her an opportunity to

purge   herself     of     contempt.         More     specifically,       Plaintiff

contends that the trial court lacked the authority to find her

in contempt for violating the 26 April 2013 contempt order given

that the purge conditions contained in the 26 April 2013 order

were so vague that Plaintiff could not possibly comply with

them.    Plaintiff        is   not   entitled   to    relief     from    the    trial

court’s order on the basis of this contention.

     An order holding a person in civil contempt must specify

the manner in which the person being held in contempt can purge

himself or herself of the contempt.                 N.C. Gen. Stat. § 5A-22.

The purge conditions adopted in response to this requirement

cannot be so vague as to render it impossible for an individual

to purge himself or herself of the contempt.                   Watson v. Watson,

187 N.C. App. 55, 65, 652 S.E.2d 310, 317 (2007), disc. review

denied, 362 N.C. 373, 662 S.E.2d 551 (2008).                 Although Plaintiff
                              -14-
now complains that the purge provisions of the 26 April 2013

order were impermissibly vague, she did not, however, note a

timely appeal to this Court from the 26 April 2013 order and has

not sought to have that order set aside.   N.C. R. App. P. Rule

3(c)(1) (providing that a party wishing to challenge a trial

court order on appeal must file and serve a notice of appeal

within thirty days after the entry of judgment).    Thus, since

the 26 April 2013 order remains in full force and effect and

since Plaintiff is not contending that the allegedly vague purge

conditions precluded her from understanding her obligation to

turn over various items of property to Defendant, Plaintiff is

not entitled to collaterally attack the validity of the 26 April

2013 order in the course of an appeal taken from a later order.

As a result, since this aspect of Plaintiff’s challenge to the

trial court’s order is not properly before us,4 Plaintiff is not

entitled to relief from the trial court’s order on the basis of

this argument.

    4
      Plaintiff has not argued that that order that is before us
in this case did not delineate a series of steps that Plaintiff
could take in order to purge herself of contempt.       Any such
contention would have been patently devoid of merit given that
the order at issue here specifically provided that Plaintiff
could purge herself of contempt by paying Defendant the value of
the items that Defendant should have received pursuant to the
equitable distribution order, reimbursing Defendant for the
attorney’s fees that he incurred in attempting to enforce the
trial court’s order, and paying the cost of having the truck
engine repaired.
                                        -15-
               C. Validity of Specific Purge Conditions

                            1. Compensatory Damages

    Thirdly, Plaintiff contends that the trial court erred in

ordering that Plaintiff could purge herself of civil contempt by

paying   Defendant        compensatory    damages      since    the    trial     court

lacked   the   authority      to   require     the   payment    of     compensatory

damages as a purge condition.            Defendant’s contention has merit.

    According to the prior decisions of this Court, a trial

judge has no authority to award indemnifying fines or other

compensation to a private party in a civil contempt proceeding,

see Hartsell, 99 N.C. App. at 390-92, 393 S.E.2d at 577; United

Artists Records, Inc. v. Eastern Tape Corp., 18 N.C. App. 183,

187, 196 S.E.2d 598, 601-02, cert. denied, 283 N.C. 666, 197

S.E.2d 880 (1973), even if the party being held in contempt

deliberately    and    negatively     affected       the   value      of   the   other

party’s property while it was in his or her possession.                            See

Hartsell, 99 N.C. App. at 384, 393 S.E.2d at 573 (holding that

an award of compensatory damages in a contempt proceeding was

inappropriate       despite    the   fact      that,    “when      plaintiff      took

possession     of   the    [residence     from   the    defendant,]        it    was   a

‘wreck’ in that the house was full of garbage, the water pipes

had burst, flooding the inside, the yard was overgrown and full

of weeds, and part of a bedroom floor was rotted out where rain
                                     -16-
had come in through an open window”).         As we have already noted,

the trial court       found in its contempt order          that “Defendant

should be reimbursed by Plaintiff for the replacement cost of

the   engine”   and    authorized    Plaintiff    to    purge   herself     of

contempt by paying “Defendant’s invoice for the truck engine for

up to $7,000 within 90 days after receipt of the invoice.”                  In

addition, the trial court        found that      the missing items        that

Defendant should have received under the 15 January 2013 order

had a value of $5,431.25 and imposed a purge condition requiring

Plaintiff to pay that sum to Defendant.                The clear effect of

these purge conditions was to require Plaintiff to compensate

Defendant for the value of his missing property and for the

damage that Plaintiff had inflicted upon the truck engine.                As a

result of the fact that the trial court lacked the authority to

require Plaintiff to pay compensatory damages in order to purge

herself from contempt, we must vacate the compensatory damage

portions of the trial court’s civil contempt order.

                            2. Attorney’s Fees

      Finally, Plaintiff contends that the trial court erred by

requiring Plaintiff to pay Defendant’s attorney’s fees in the

amount   of   $11,240.97.     More    specifically,     Plaintiff   contends

that the trial court did not properly hold Plaintiff in contempt
                                       -17-
and that the attorney’s fee award should be overturned for that

reason.    We are not persuaded by Plaintiff’s argument.

      As this Court has previously determined, a trial judge may

impose a purge condition requiring the payment of the other

litigant’s attorney’s fees in a case in which a party has been

found to be in contempt for violating an equitable distribution

order, Watson, 187 N.C. App. at 69, 652 S.E.2d at 320, even if

the   trial    court    also    unlawfully     required     the   payment     of

compensatory damages as a purge condition in the same case.                   See

Hartsell, 99 N.C. App. at 389-90, 393 S.E.2d at 576 (sustaining

an award of attorney’s fees despite having invalidated the trial

court’s award of compensatory damages in a case in which the

defendant had failed to comply with a provision contained in an

equitable distribution order requiring him to clean a house and

deliver it to the plaintiff in a tidy condition).                 In apparent

recognition of the trial court’s right to require her to pay

attorney’s     fees    to    Defendant    in   contempt     cases,     Plaintiff

asserts that the trial court lacked the authority to require the

payment of Defendant’s attorney’s fees as a purge condition on

the   theory   that    the     trial   court   erred   by    holding    her   in

contempt, a contention that we have rejected earlier in this

opinion.     As a result, given that the trial court properly found

Plaintiff to be in contempt for her failure to comply with the
                                      -18-
trial court’s earlier orders, the trial court did not err by

ordering Plaintiff to pay Defendant’s attorney’s fees as a purge

condition.

                                 III. Conclusion

    Thus, for the reasons set forth above, we conclude that

Plaintiff has not established that the trial court’s decision to

hold her in contempt should be overturned on appeal or that the

trial court erred by requiring her to pay Defendant’s attorney’s

fees as a purge condition.          However, the trial court did err by

ordering Plaintiff to pay Defendant compensatory damages as a

purge   condition.    As     a    result,    those   portions   of    the   trial

court’s   contempt   order       requiring    Plaintiff   to    pay   Defendant

compensatory damages should be, and hereby are, vacated, while

the remainder of the trial court’s order should be, and hereby

is, affirmed.

    AFFIRMED IN PART AND VACATED IN PART.

    Judges BRYANT and ELMORE concur.

    Report per Rule 30(e).
