              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-71

                                Filed: 2 January 2018

Durham County, No. 87 CVD 3689

COUNTY OF DURHAM, by and through DURHAM DSS, EX REL: SELEMA
ALSTON caretaker SHARON Y. BREWER mother, Plaintiffs,

             v.

OMEGA HODGES, Defendant.


      Appeal by defendant from orders entered 14 June 2016 and 17 June 2016 by

Judge Fred Battaglia in District Court, Durham County. Heard in the Court of

Appeals 16 May 2017.


      Office of the County Attorney, by Senior Assistant County Attorney Geri Ruzage,
      for plaintiffs-appellees.

      Reece & Reece, by Mary McCullers Reece, for defendant-appellant.


      STROUD, Judge.


      Defendant Omega Hodges (“defendant”) appeals from the trial court’s civil

contempt commitment order entered 14 June 2016 and petitions for certiorari as to

the trial court’s order entered 17 June 2016. On appeal, defendant argues that the

trial court erred by finding that he had the ability to comply with the child support

order and purge condition because the trial court’s findings were not supported by

competent evidence. Because defendant timely appealed from the trial court’s 14

June 2016 order, the trial court was divested of jurisdiction to enter the 17 June 2016
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order. Thus, for reasons explained in more detail below, we vacate the 17 June 2016

order and reverse the 14 June 2016 order.

                                            I.      Facts

       Defendant entered into a voluntary child support order in 1987.                         On 23

November 2015, the Durham County Child Support Enforcement Office filed a motion

for order to show cause on behalf of plaintiff Selema Alston1. The motion noted that

defendant was in arrears of $7246.88 and that the last payment was received in July

2014. An order to appear and show cause was subsequently signed that same date,

23 November 2015.

       On 25 February 2016, a hearing was held, and the trial court inquired into

defendant’s current employment and medical conditions that may interfere with his

ability to obtain and maintain employment.                  Defendant testified that he was

currently unemployed and that he had last held employment in June 2014 at

Church’s Chicken, but it ended because of his disability. Defendant presented a letter

dated for the previous day, 24 February 2016, from his primary care physician, Dr.

Kristin Ito, describing defendant’s medical issues. Defendant’s counsel asked for a

continuance in order to obtain a subpoena for Dr. Ito in order to verify the contents

of the letter. The trial court granted the request.


       1  Plaintiff Sharon Brewer is the child’s biological mother, and plaintiff Selema Alston was the
child’s caretaker. The child resided with both plaintiff Brewer and plaintiff Alston during her
minority. Durham County filed motions on behalf of both women throughout this case, and we
collectively refer to all of these parties as “plaintiffs” throughout this opinion for ease of reading.

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      The hearing resumed on 14 June 2016. The transcript of that hearing has not

been provided on appeal because the recordings were found to have no discernible

audio, but a reconstruction of the testimony presented at that hearing is in the record.

The reconstruction states the following:

             Reconstruction of testimony presented 14 June 2016:

                   Dr. Eugenia Zimmerman practiced at Triangle
             [Orthopedic] Associates. She testified by telephone.

                    Dr. Zimmerman evaluated [defendant’s] condition
             on 31 October 2014. [Defendant] presented with shoulder
             pain, degeneration of the cervical intervertebral disc, and
             cervical myelopathy. He had no feeling in his hands and
             was unable to hold things or stand up for prolonged periods
             of time. As of the time of the visit, [defendant’s] condition
             prevented him from maintaining gainful employment.
             When asked to consider whether [defendant] could hold a
             position such as greeter at Walmart if Walmart were
             willing to accommodate his medical condition, Dr.
             Zimmerman testified that the requirement of standing for
             extended periods of time would likely pose a problem.
             Surgery might have slowed the worsening of the condition,
             but could not have alleviated the problem. [Defendant] did
             not have medical insurance at the time of his visit.

                   Dr. Kristin Ito had a general medical practice at
             Lincoln Community Health Center.         She evaluated
             [defendant] on 24 February 2016. Dr. Ito also testified by
             telephone.

                    Dr. Ito testified that her 24 February 2016 letter and
             notes were based largely on Dr. Zimmerman’s previous
             diagnosis. When she saw [defendant], his condition had
             worsened. [Defendant] was in constant pain and took
             numerous medications that interfered with his ability to
             function. He was not able to maintain gainful employment.


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            [Defendant] testified that he did not have feeling in his
            hands, that he had trouble standing, and that his
            medications made it hard for him to function. His last job
            had been at Church’s Chicken in 2014. He had been able
            to work there for only five hours per week because of his
            medical condition. He was terminated from Church’s and
            had not been able to perform even basic janitorial services
            since that time. [Defendant] had little education and had
            never held any type of work other than janitorial. He had
            applied for jobs, but had not been offered employment
            anywhere.

                   [Defendant] lived with his parents. He had no
            income. He did not smoke or drink and relied on friends to
            drive him to appointments and court. He “could not
            remember” the last time he had any money. [Defendant]
            lived on food stamps and got his clothes from a local
            clothing closet. Only in 2016, he had gotten back on
            Medicaid and begun seeking medical treatment again.

      Dr. Ito’s letter, dated 24 February 2016, notes that she saw defendant on that

date as a follow up for his chronic neck, back, and shoulder pain. She explained his

prior diagnosis through Triangle Orthopedics and noted that their evaluation found

his issues were likely to progress and concluded that defendant “is not able to

maintain gainful employment as a result of this disability.”       Dr. Ito referred

defendant back to the orthopedic doctor for further treatment.

      DSS presented no evidence other than the records of defendant’s missed

support payments.

      On 14 June 2016, the same day as the hearing, the trial court signed and filed

a “Commitment Order for Civil Contempt Child Support,” directing the sheriff to take



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defendant into custody immediately and “remain in custody until he/she purges

himself/herself of contempt by paying into the office of the Clerk of Superior Court”

the sum of $1,000.00. This order is a form order, AOC-CV-603, Rev. 3/03. None of

the boxes on the form are checked. The court order upon which contempt was based

is not identified. All additions to the form are handwritten. The only blanks filled in

are the county, Durham; the court file number; the defendant’s name; the date; the

trial judge’s signature; and “Purge $1000.00 or serve 90 days” which appears in the

section of the form for “additional findings.” There are no findings of fact.       The

portion of the form at the bottom sets a hearing date for review on 19 July 2016.

      Defendant filed a motion to stay execution of judgment on 15 June 2016,

alleging that a “written order” had not yet been filed regarding the 14 June 2016

hearing and arguing that defendant had no ability to comply with the judgment

because he is “unemployed, on food stamps and other public assistance, without

support from any friends or family (with the exception that his parents allow him to

live with them rent free), and with a substantial disability that inhibits his ability to

obtain and maintain employment.” But defendant’s counsel must have been aware

that some sort of written order had been filed, since he also filed a notice of appeal on

15 June 2016 which specifically identified the 14 June 2016 order. Most likely he was

aware the trial court intended to enter another order with detailed findings of fact

and conclusions of law.    Since we have no transcript of the hearing or rendition of



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the order, we have no way of knowing exactly what happened.                          In any event,

defendant’s motion to stay alleged that no “written order” had been entered, but in

fact, a “written order” had been signed and filed on 14 June 2016. The trial court

denied the motion to stay that same day.

       As noted above, defendant subsequently filed a notice of appeal on 15 June

2016 “from the final judgment of the Honorable Fred Battaglia, District Court Judge,

entered on June 14, 2016 in the District Court of Durham County, which held

defendant in contempt for failure to pay child support.” The trial court entered a

more detailed written order on contempt two days later, on 17 June 2016. In the 17

June 2016 order, the trial court concluded that defendant “does not have just cause

for failing to complying [sic] with the prior Court orders and should be held in

contempt of court.” Defendant was found to be in contempt of court and the trial

court ordered that he be “committed to the Durham County Jail for a term not less

than 90 days and may be released upon a payment of $1,000.00 purge to be released

to child support if paid.”2 An appellate entry was file stamped on 17 June 2016, and




       2  We also note that the 17 June order is not consistent with the 14 June order which directed
that defendant remain in custody until he purged contempt by paying $1,000.00. This would be the
typical purge condition allowed by N.C. Gen. Stat. § 5A-21 (2015) and N.C. Gen. Stat. § 5A-22 (2015).
The 17 June 2016 order directs that defendant both serve a minimum sentence of 90 days and pay
$1,000.00 to purge his contempt. In other words, even if defendant paid $1,000.00 immediately, the
order as written directs that he “be committed to the Durham County Jail for a term not less than 90
days and may be released upon a payment of $1,000.00 purge[.]” (Emphasis added). A fixed term of
imprisonment is an appropriate sanction for criminal contempt, but not civil contempt. Even if he paid
immediately, he would still remain in jail for 90 days. But since we reverse the first order and vacate
the second, we will not address this further but simply note the inconsistency.

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the trial court noted that defendant gave notice of appeal to this Court. On 26

January 2017, defendant filed a conditional petition for writ of certiorari asking this

Court to permit review of the 17 June 2016 order. As explained in more detail below,

we grant defendant’s petition only to vacate the 17 June 2016 order because the trial

court was divested of jurisdiction before it was entered.

                                   II.    Discussion

      Generally, on appeal defendant contends that the trial court erred by finding

that defendant had the ability to work, despite the undisputed evidence from both of

his physicians that his medical condition made him incapable of gainful employment.

Defendant also challenges the trial court’s findings that defendant had access to

funds from undefined family or friends, despite the absence of any evidence to support

this finding. Defendant contends the trial court erred by finding that since defendant

resides with his parents rent-free, this creates “in-kind” income that is available for

him to pay his child support and purge payment, despite his lack of income or assets.

      DSS does not substantively refute defendant’s arguments on appeal, other

than to note that the trial court is the judge of the weight and credibility of the

evidence -- which is generally correct, if there is any evidence.

      In its second order, entered 17 June 2016, the trial court made detailed

findings of fact. But since we must vacate the order, we will not address it in depth.

Furthermore, before addressing any substantive arguments further, we must clarify



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the underlying procedural issues related to defendant’s notice of appeal and the two

written orders ultimately entered in this case: the 14 June 2016 form order and the

later, more detailed 17 June 2016 order.

      a.     Appeal of the 17 June 2016 Order

      As noted above, defendant filed a notice of appeal on 15 June 2016 from the

trial court’s Civil Commitment order entered on 14 June 1016, but the trial court also

filed another order, based upon the same motion and hearing, with detailed findings

and conclusions of law, on 17 June 2016.         Although both parties’ briefs treat the

initial 14 June 2016 order as an oral rendition of the ruling and the 17 June 2016

order as the written order, we cannot ignore the fact that the 14 June 2016 order was

written and entered. Rule 58 of the North Carolina Rules of Civil Procedure states:

“[A] judgment is entered when it is reduced to writing, signed by the judge, and filed

with the clerk of court.” N.C. R. Civ. P. 58. The 14 June 2016 order has no language

to indicate the trial court anticipated entry of another more detailed order, despite

the absence of any findings of fact; on its face, it is a final order which addresses the

only issue presented, which was whether defendant was in civil contempt of the prior

child support order. “ ‘A final judgment is one which disposes of the cause as to all

the parties, leaving nothing to be judicially determined between them in the trial

court.’ ” Bradley v. Bradley, __ N.C. App. __, __, 806 S.E.2d 58, 61 (2017) (quoting

Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 392, 651 S.E.2d 261, 263 (2007)).



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      Since the 14 June 2016 order was “entered,” defendant’s notice of appeal filed

on 15 June 2016 divested the trial court of jurisdiction.

                    Whether a trial court had jurisdiction to enter an
             order is a question of law that we review de novo. An
             appellate court has the power to inquire into jurisdiction in
             a case before it at any time, even sua sponte.
                    ....

                    The power of a trial court to enter an order or take
             further action in a case following the filing of a notice of
             appeal by a party is enumerated in N.C. Gen. Stat. § 1-294,
             which states in relevant part: When an appeal is perfected
             as provided by this Article it stays all further proceedings
             in the court below upon the judgment appealed from, or
             upon the matter embraced therein, unless otherwise
             provided by the Rules of Appellate Procedure; but the court
             below may proceed upon any other matter included in the
             action and not affected by the judgment appealed from.

                    According to well-established North Carolina law,
             once an appeal is perfected, the lower court is divested of
             jurisdiction. An appeal is not perfected until it is docketed
             in the appellate court, but when it is docketed, the
             perfection relates back to the time of notice of appeal, so
             any proceedings in the trial court after the notice of appeal
             are void for lack of jurisdiction.

Ponder v. Ponder, __ N.C. App. __, __, 786 S.E.2d 44, 47 (2016), appeal dismissed and

disc. review denied, __ N.C. __, 797 S.E.2d 290 (2017) (citations and quotation marks

omitted).

      The 17 June 2016 order is void because the trial court lacked jurisdiction to

enter it once defendant appealed the 14 June 2016 order. Defendant perfected his

appeal by docketing it with this Court, and this perfection relates back to 15 June


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2016. See France v. France, 209 N.C. App. 406, 410-11, 705 S.E.2d 399, 404 (2011)

(“Plaintiff appealed Judge Culler’s first order on 13 November 2009. . . . Judge

Culler’s second order was entered on 18 December 2009, following a hearing that was

held 11 December 2009.       Plaintiff’s appeal of Judge Culler’s first order on 13

November 2009 divested the trial court of jurisdiction in the matter and jurisdiction

transferred to this Court. Thus, Judge Culler’s second order is a nullity because the

trial court was without jurisdiction to hear the matter on 11 December 2009. . . . We

therefore must vacate Judge Culler’s second order.” (Citations omitted)). Similarly,

here, the trial court entered a written order on 14 June 2016. Although the order is

clearly lacking substantive content, it is a written order that was signed and entered,

as the file stamp indicates. And despite its lack of content, the order authorized the

Durham County Sheriff to take immediate custody of defendant. We cannot overlook

the 14 June 2016 order, as the parties’ briefs do, and treat it as an oral rendition.

Accordingly, we must vacate the 17 June 2016 order as void.

      b.     14 June 2016 Order

      Although the briefs primarily address the 17 June 2016 order, since it was the

only order with any substantive content, defendant timely appealed from the 14 June

2016 order. On appeal, defendant argues that the trial court erred in entering a

contempt order and by finding that he had the ability to comply with the child support




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order and the purge condition. Defendant argues that this ultimate finding was not

supported by competent evidence.

                   We review orders for contempt to determine if the
             findings of fact support the conclusions of law: The
             standard of review we follow in a contempt proceeding is
             limited to determining whether there is competent
             evidence to support the findings of fact and whether the
             findings support the conclusions of law.

Spears v. Spears, __ N.C. App. __, __, 784 S.E.2d 485, 494 (2016) (citation and

quotation marks omitted); see also Watson v. Watson, 187 N.C. App. 55, 64, 652 S.E.2d

310, 317 (2007) (“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.         North Carolina’s appellate courts are

deferential to the trial courts in reviewing their findings of fact.” (Citations and

quotation marks omitted)).

      Under N.C. Gen. Stat. § 5A-21(a) (2015):

             Failure to comply with an order of a court is a continuing
             civil contempt as long as:

                   (1) The order remains in force;

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


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                    (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.

      In this case, defendant argues that the trial court erred in finding that he had

the present ability to comply with the child support order and that his noncompliance

with the order was willful. The 14 June 2016 order has no findings of fact other than

the ultimate finding of fact, which is part of the form language as follows: “[T]he

party has sufficient means and ability to comply or take reasonable measures to

comply.”

      The trial court need not find detailed evidentiary facts but an order must have

sufficient findings to support its conclusions of law and decretal.     “There are two

kinds of facts: Ultimate facts, and evidentiary facts. Ultimate facts are the final facts

required to establish the plaintiff’s cause of action or the defendant’s defense; and

evidentiary facts are those subsidiary facts required to prove the ultimate facts.”

Woodard v. Mordecai, 234 N.C. 463, 470, 67 S.E.2d 639, 644 (1951). While a trial

court need not make findings as to all of the evidence, it must make the required

ultimate findings, and there must be evidence to support such findings. See, e.g., In

re H.J.A., 223 N.C. App. 413, 416, 735 S.E.2d 359, 362 (2012) (“Moreover, when a trial

court is required to make findings of fact, it must make the findings of fact specially.


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The trial court must, through processes of logical reasoning, based on the evidentiary

facts before it, find the ultimate facts essential to support the conclusions of law. The

findings must be the specific ultimate facts sufficient for the appellate court to

determine that the judgment is adequately supported by competent evidence.”

(Citations, quotation marks, and brackets omitted)); Townson v. Townson, 26 N.C.

App. 75, 76, 214 S.E.2d 444, 445 (1975) (“[T]he trial court is required only to find the

ultimate facts and need not include evidentiary or subsidiary facts required to

procure the ultimate facts.”).

       As noted above, there was no evidence to support the pre-printed ultimate

finding of fact on the form order. If there were any dispute in the evidence, it would

be appropriate for us to remand to the trial court for entry of an order with additional

findings of fact to clarify its rationale for the ultimate finding and conclusions of law.3

But we have carefully reviewed the record and the substantive issues raised on

appeal, and we have determined that there is simply no evidence to support the

required ultimate finding.

                       Proceedings for civil contempt can be initiated in
               three different ways: (1) by the order of a judicial official
               directing the alleged contemnor to appear at a specified
               reasonable time and 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

       3   Although the trial court had no jurisdiction to enter the 17 June 2016 order, that order is
helpful in our review since it shows what findings of fact the trial court intended to make in support
of its order of contempt.

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             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. Under
             the first two methods for initiating a show cause
             proceeding, the burden of proof is on the alleged contemnor.
             However, when an aggrieved party rather than a judicial
             official initiates a proceeding for civil contempt, the burden
             of proof is on the aggrieved party, because there has not
             been a judicial finding of probable cause.

Moss v. Moss, 222 N.C. App. 75, 77, 730 S.E.2d 203, 204-05 (2012) (citations,

quotation marks, and brackets omitted).

      In the present case, the trial court entered an order to show cause, which

shifted the burden of proof to defendant to show cause as to why he should not be

held in contempt of court. See, e.g., Gordon v. Gordon, 233 N.C. App. 477, 480, 757

S.E.2d 351, 353 (2014) (“A show cause order in a civil contempt proceeding which is

based on a sworn affidavit and a finding of probable cause by a judicial official shifts

the burden of proof to the defendant to show why he should not be held in contempt.

Here, there was a show cause order with a judicial finding of probable cause.

Therefore, the burden was on plaintiff to show why he should not be held in

contempt.”   (Citations and quotation marks omitted)).       “The party alleged to be

delinquent has the burden of proving either that he lacked the means to pay or that

his failure to pay was not willful.” Shumaker v. Shumaker, 137 N.C. App. 72, 76, 527

S.E.2d 55, 57 (2000).




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      And 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. See,

e.g. Carter v. Hill, 186 N.C. App. 464, 466, 650 S.E.2d 843, 844 (2007) (“[T]he court

also erred by failing to make appropriate findings of fact to support the entry of a civil

contempt order. . . . Failure to comply with an order of the court is civil contempt

only when the noncompliance is willful and 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. Findings of fact on these particular

elements are conspicuously absent from the trial court’s contempt order in this case.”

(Citations, quotation marks, and brackets omitted)); Frank v. Glanville, 45 N.C. App.

313, 316, 262 S.E.2d 677, 679 (1980) (“It is not clear from the record in this case that

defendant has the ability to comply with the contempt order, ever had the ability, or

will ever be able to take reasonable measures that would enable him to comply. For

that reason and because no finding of fact detailing defendant’s ability to comply with

the contempt order was made, this case is reversed and remanded[.]”).

      Here, although the trial court issued an order to show cause on 25 November

2015, defendant met his burden to show cause as to why he should not be held in

contempt, presenting evidence from two treating physicians that he is physically



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incapable of gainful employment. DSS presented no evidence and did not refute

defendant’s evidence at all. The trial court, in its 17 June 2016 order, found that

there was no evidence that defendant is temporary or permanently disabled, but that

is not the standard for ability to pay in this context.       The question is whether

defendant currently, at the time of the hearing, had ability “to comply with the order

or is able to take reasonable measures that would enable the person to comply with

the order.” N.C. Gen. Stat. § 5A-21(a)(3). All of the evidence showed that defendant

was at all relevant times physically incapable of employment. Aside from the medical

evidence, the reconstructed evidence from the hearing showed that

             [Defendant] had little education and had never held any
             type of work other than janitorial. He had applied for jobs,
             but had not been offered employment anywhere.

                    [Defendant] lived with his parents. He had no
             income. He did not smoke or drink and relied on friends to
             drive him to appointments and court. He “could not
             remember” the last time he had any money. [Defendant]
             lived on food stamps and got his clothes from a local
             clothing closet. Only in 2016, he had gotten back on
             Medicaid and begun seeking medical treatment again.

Since there is no evidence to support the required findings of fact, we need not remand

for additional findings of fact. Instead, we reverse the 14 June 2016 order, which

contained no findings of fact or other substantive content.

      In conclusion, we note that it appears the trial court simply wanted to ensure

that defendant could be immediately placed into custody at the conclusion of the 14



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June 2016 hearing and used the form order to accomplish this result. The 17 June

2016 order is a detailed order with many findings of fact which took more time to

prepare. We understand the trial court’s dilemma. Since District Court judges in

North Carolina have no staff to assist them in preparation of orders despite the

urgent need for many orders each day, our judges have to find ways to get the work

done. But we caution judges and counsel that a written, signed, and filed document

which claims to be an order is an order, so it must include the elements required of

an order. If that order resolves all disputed issues as to all parties, it is a final and

appealable order. In some instances, a trial court may be able to enter a temporary

order or to make it clear that the trial court’s initial order is not a final order, and if

that is the trial court’s intent, it should be stated clearly in the temporary order. But

here, we are bound by the record before us. Accordingly, we hold that the trial court’s

ultimate finding in the 14 June 2016 order that defendant “has sufficient means and

ability to comply or take reasonable measures to comply” with the order is not

supported by its other findings of fact, since there are none, nor is there any evidence

to support the ultimate finding. The order’s conclusion of law -- that defendant was,

therefore, in civil contempt -- is likewise unsupported by the findings of fact.

                                   III.    Conclusion

      For the reasons stated above, we vacate the 17 June 2016 order and reverse

the 14 June 2016 order.



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VACATED AND REVERSED.

Judges BRYANT and CALABRIA concur.




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