An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-47
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 17 June 2014

LINDA H. MCVICKER,
     Plaintiff,

      v.                                      Wake County
                                              No. 07 CVD 14785
LAWRENCE A. MCVICKER and MVOC,
LLC,
     Defendants.


      Appeal by defendant from orders entered 1 October and 28

October 2013 by Judge Christine Walczyk in Wake County District

Court.     Heard in the Court of Appeals 20 May 2014.


      Smith Debnam Narron Drake Saintsing & Myers, L.L.P., by
      John W. Narron and Alicia Jurney, for plaintiff-appellee.

      Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson, K.
      Edward Greene, and Heidi C. Bloom, for defendant-appellant.


      HUNTER, Robert C., Judge.


      Defendant-appellant Lawrence McVicker (“defendant”)1 appeals

the orders issued 1 October and 28 October 2013 adjudicating him

in civil contempt and denying his motion to dismiss plaintiff’s

motion for order to show cause.                On appeal, defendant argues

1
  Although MVOC, LLC was named as a defendant, the consent
judgment in arbitration expressly notes that it is not a party
to the arbitration nor is it bound by the terms of the judgment.
                                       -2-
that the trial court erred by: (1) denying his motion to dismiss

the contempt proceeding; (2) holding him in civil contempt; and

(3) ordering defendant be held in contempt for amounts allegedly

unpaid    which   were    not     alleged   at   the     time   of    the   contempt

proceeding.

    After careful review, we affirm the trial court’s orders.

                                    Background

    Plaintiff-appellee             Linda     McVicker         (“plaintiff”)       and

defendant were married in 1979 and separated in April 2007.

After    separating,      they    entered    into      an    agreement      providing

initial transfers of certain assets to plaintiff and agreeing to

submit their claims for alimony and equitable distribution to

arbitration.      A consent judgment in the arbitration was entered

31 August 2009, which was confirmed by the trial court on 21

September 2009 (the “consent judgment”).                    The consent judgment

provided, among other things, that plaintiff was entitled to a

distributive      award   of     $6,242,000,     including      a   50%   membership

interest in the business defendant co-owned, MVOC, LLC (“MVOC”).

Moreover, the consent judgment required defendant pay plaintiff

$11,200 per month until the distributive award is paid in full.

Of the monthly payments, 50% would be treated as post-separation

support    and    50%     would    constitute       as      payment   towards    the
                                    -3-
distributive award until plaintiff received $1,500,000 toward

the distributive award; at that time, the full payment would

count towards the distributive award, and defendant’s obligation

to pay post-separation support would terminate.               The consent

judgment provided that the distributive award must be satisfied

in full by 30 June 2015.            As security for the distributive

award, the consent judgment gave plaintiff a valid, perfected

security interest in defendant’s residence, vehicles, and two

bank accounts.     Furthermore, the consent judgment also provided

that   the   distributive   award    “shall   also   be   secured   by   the

following provisions”:

             In   the  event   [p]laintiff   asserts   that
             [d]efendant has committed an Act of Default
             with respect to any provision of this
             Consent Judgment, [p]laintiff may file a
             Motion for a Charging Order with respect to
             any   distribution   that   becomes   due   to
             [d]efendant from MVOC, LLC. Plaintiff shall
             afford [d]efendant five days’ written notice
             of the hearing of her Motion for a Charging
             Order.

       On 21 May 2013, plaintiff filed a motion for order to show

cause, claiming that defendant had willfully failed to comply

with the consent judgment by not making monthly payments towards

the distributive award.      Specifically, plaintiff contended that

defendant had not made a payment since 15 February 2013.                 The

trial court issued an order to appear and show cause on 21 May
                                          -4-
2013 after finding probable cause to believe that defendant was

in   civil   or    criminal       contempt   based     on   his     failure   to      pay

plaintiff in accordance with the terms of the consent judgment.

       On 20 September 2013, defendant filed a motion to dismiss

plaintiff’s       show    cause    motion,   claiming       that:    (1)   the     trial

court had no authority to find him in contempt; (2) plaintiff’s

only available remedy to enforce the consent judgment was to

file   a   charging      order     against   defendant’s      distributions         from

MVOC pursuant to the terms of the consent judgment; and (3)

defendant does not have the present ability to comply with the

consent judgment.

       The matter came on for hearing on 26 September 2013.                           The

trial court entered an order adjudicating defendant in civil

contempt     after       finding    defendant    had    sufficient         means      and

ability to comply with the show cause order and ordered a purge

amount of $62,572.             The purge amount was based on defendant’s

partial payment in April of $4,298 (which left a balance of

$6,572 due to plaintiff) and his failure to make any monthly

payments in May, June, July, August, and September 2013.                         Should

defendant    fail     to    pay    the   purge   amount     to    plaintiff      by    30

September    2013,       the    trial    court   ordered      that    defendant        be

arrested and held until he paid the purge amount.                      Furthermore,
                                           -5-
the trial court denied defendant’s motion to dismiss.                       Defendant

appeals.

                                     Arguments

     First,       defendant   argues       that     the    trial    court   erred   in

denying     his   Rule   12(b)(6)     motion      to      dismiss   the   show   cause

order.      Specifically, the crux of defendant’s argument is that

the express terms of the consent judgment only allowed plaintiff

to   seek     a    charging        order     with      respect      to    defendant’s

distributions from MVOC to enforce the distributive award should

defendant default in his obligations under the consent judgment.

Consequently, defendant argues that civil contempt was not an

available remedy upon default; thus, the trial court should have

granted the motion to dismiss the contempt proceeding.                      In other

words,    defendant      alleges    that    plaintiff’s       sole    and   exclusive

remedy for his failure to comply with the distributive award is

a charging order, not contempt.              We disagree.

     The standard of review for a motion to dismiss pursuant to

Rule 12(b)(6) is “whether, as a matter of law, the allegations

of the complaint, treated as true, are sufficient to state a

claim upon which relief may be granted under some legal theory.”

Block v. County of Person, 141 N.C. App. 273, 277, 540 S.E.2d

415, 419 (2000) (citation omitted). “This Court must conduct a
                                             -6-
de    novo      review    of    the    pleadings     to    determine     their    legal

sufficiency and to determine whether the trial court’s ruling on

the   motion      to     dismiss      was   correct.”      Leary    v.   N.C.    Forest

Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff’d per

curiam, 357 N.C. 567, 597 S.E.2d 673 (2003).

       A   court-adopted        consent      judgment     is    enforceable      by   the

trial court’s contempt power because it is a decree of the court

and not simply a contract.                  White v. White, 296 N.C. 661, 665,

252 S.E.2d 698, 701 (1979).                  Generally, “[t]o hold a defendant

in civil contempt, the trial court must find the following: (1)

the 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.”

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

(2010) (citing N.C. Gen. Stat. § 5A–21 (2009)).                     Here, defendant

does not allege that the trial court failed to find the four

requirements under section 5A-21; instead, defendant contends

that the express language of the consent judgment provides that

plaintiff’s only and exclusive remedy if defendant defaults on

his monthly payments is a charging order.
                                         -7-
      Paragraph 18 of the consent judgment provided that: “In

order to buy out [p]laintiff's equitable distribution interest

in [d]efendant’s fifty percent (50%) membership interest in the

business MVOC, LLC, [d]efendant shall pay to [p]laintiff . . . a

cash distributive award in the amount of Six Million Two Hundred

Forty-two thousand dollars ($6,242,000.00).”                      In paragraph 20,

the judgment stated that the distributive award would be secured

by   defendant’s       residence,      vehicles,     and    two    bank     accounts.

Finally, in paragraph 21, the consent judgment stated:

              The Distributive Award            set forth herein
              shall also be secured             by the following
              provisions:

              . . .

              (b) In the event [p]laintiff asserts that
              [d]efendant has committed an Act of Default
              with respect to any provision of this
              Consent Judgment, [p]laintiff may file a
              Motion for a Charging Order with respect to
              any   distribution  that   becomes  due   to
              [d]efendant from MVOC, LLC. Plaintiff shall
              afford [d]efendant five days’ written notice
              of the hearing of her Motion for a Charging
              Order.

Thus,   the    issue    is   whether    the    consent     judgment    by    its   own

express   terms       limits   enforcement      of   the     distributive       award

solely to a charging order or whether a charging order is simply

one remedy in addition to all other ones available at law.
                                -8-
    “A consent judgment is a court-approved contract subject to

the rules of contract interpretation.      If the plain language of

a contract is clear, the intention of the parties is inferred

from the words of the contract.”      Walton v. City of Raleigh, 342

N.C. 879, 881, 467 S.E.2d 410, 411 (1996); see also State ex

rel. Envtl. Mgmt. Comm'n v. House of Raeford Farms, Inc., 101

N.C. App. 433, 444, 400 S.E.2d 107, 114 (1991) (holding that a

consent judgment is to be interpreted using its plain language).

This Court has noted that

          to interpret the nature and import of the
          consent judgment more precisely, courts are
          not bound by the “four corners” of the
          instrument itself. The agreement, usually
          reflecting the intricate course of events
          surrounding the particular litigation, also
          should be interpreted in the light of the
          controversy and the purposes intended to be
          accomplished by it.

Hemric v. Groce, 169 N.C. App. 69, 75, 609 S.E.2d 276, 282

(2005).   Moreover, our Supreme Court has held that:

          A contract must be construed as a whole, and
          the intention of the parties is to be
          collected from the entire instrument and not
          from detached portions, it being necessary
          to consider all of its parts in order to
          determine the meaning of any particular part
          as well as of the whole. Individual clauses
          in an agreement and particular words must be
          considered in connection with the rest of
          the agreement, and all parts of the writing,
          and every word in it, will, if possible, be
          given effect.
                                               -9-


Robbins v. C. W. Myers Trading Post, Inc., 253 N.C. 474, 477,

117 S.E.2d 438, 440-41 (1960).

       In      interpreting           the     consent       judgment,       the        parties

mistakenly focus exclusively on paragraph 21(b), which reads:

should defendant default with regard to any provision of the

consent judgment, “[p]laintiff may file a Motion for a Charging

Order    with       respect     to    any     distribution     that     becomes        due   to

[d]efendant from MVOC, LLC.”                  Specifically, the parties disagree

as to whether the term “may” means that plaintiff must obtain a

charging       order       to   enforce      the     distributive      award      or    if   it

indicates that a charging order is simply one remedy available

to plaintiff.          However, the parties’ arguments fail to take into

account the entire document and construe it as a whole.                                See id.

This particular provision, which secures the distributive award,

must be construed along with the other provisions that relate to

security       or    collateral        for     enforcement      of    the     distributive

award.      As our Supreme Court has noted, by focusing solely on

one    sentence       or    even      one    term    in    paragraph    21(b),         “[t]his

conclusion      disregards           the    cardinal      principle    that    a   contract

must be construed as a whole and not by placing undue emphasis

on isolated provisions.”                    Davis v. Dennis Lilly Co., 330 N.C.

314,    327,    411    S.E.2d        133,    140     (1991).    In     other      words,     to
                                             -10-
ascertain the meaning of paragraph 21(b), the Court needs to

look at the entire consent judgment and give meaning to all

provisions.

    In paragraph 20, the consent judgment provides that the

distributive award would be secured by a security interest in

defendant’s residence, vehicles, and two bank accounts.                                  The

consent judgment goes on to say that the distributive award

“shall also” be secured, in the case of default, by a charging

order   with        respect     to      defendant’s     distributions      from     MVOC.

Under defendant’s logic, the distributive award could not be

enforced by the collateral listed in paragraph 20—in which the

consent        judgment     plainly        and   unambiguously        provided     her     a

security interest; instead, the only remedy available would be a

charging order for distributions from MVOC.                     This interpretation

would render superfluous this entire provision of the consent

judgment        that     gave     plaintiff      security      interests      in    other

collateral.         Construing the consent judgment in its entirety and

giving effect to all provisions, it is clear that a charging

order     is     one     option      for    enforcing    the    distribution        award

provisions;         however,      the    consent    judgment    does    not   take       all

other legal remedies away from plaintiff.                      In fact, it does the

opposite       by      giving   plaintiff        the   option    of     enforcing        her
                                                -11-
security     interest         in    other       collateral.           In    addition,          it   is

important to note that the consent judgment specifically states

that   the     distributive             award    “shall        also”       be    secured       by    a

charging       order,        indicating         that    it     had     provided          plaintiff

additional enforcement remedies other than a charging order.

       Thus, in summary, construing paragraph 21(b) of the consent

judgment     as     a    whole      with     the       entire      document,           the    phrase

“[p]laintiff may file a Motion for a Charging Order” in the case

of default should not be read as limiting enforcement of the

distributive award solely to filing a charging order.                                       Instead,

that specific provision simply contemplates one type of remedy

available but does not mean that a charging order is her sole

remedy.        Therefore,          the   trial     court       did    not       err    in    denying

defendant’s motion to dismiss on this basis.

       Next,    defendant           argues      that     the       trial    court       erred       in

finding      that       he    acted      willfully.            Specifically,            defendant

contends       that      the       trial     court      could        not        find    that        his

noncompliance         was     willful      when    he    believed          that       the    consent

judgment     could       only      be    enforced       by     a     charging         order.        We

disagree.

                    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
                                         -12-
            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).     “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.”                         Miller v.

Miller,   153    N.C.    App.    40,     50,    568    S.E.2d    914,      920    (2002)

(internal citations and quotation marks omitted).

    As      discussed,       construing     the       consent   judgment         in   its

entirety, a charging order was not plaintiff’s sole remedy for

enforcing      the   distributive        award.        Accordingly,        defendant’s

contention that his acts were not willful because plaintiff did

not seek a charging order before filing a motion to show cause

is without merit.        Moreover, with regard to defendant’s failure

to comply with the consent judgment, he admitted that he had not

made the full April payment nor had he made any payment in May,

June, July, August, or September.                 Furthermore, the trial court

made numerous findings showing that defendant not only had the

means to comply with the consent judgment but that he also spent

substantial     sums    on    home     improvements        instead   of    making     his
                                      -13-
monthly payments to plaintiff.            Specifically, the trial court

found that he spent approximately $29,000 to improve his pool,

redesign his kitchen, and purchase draperies.               In addition, the

trial court noted that defendant made around $10,000 per month

and   that   he   had   numerous    liquid     assets   that    he   could     have

liquidated to make those payments, including two bank accounts—

one of which had a balance of approximately $89,000—and several

vehicles.     These     findings    are   binding     because    they    are   all

supported    by    competent       evidence,    and     defendant       does   not

challenge these findings on appeal.              See Tucker v. Tucker, 197

N.C. App. 592, 594, 679 S.E.2d 141, 143 (2009).                 Finally, these

findings support the conclusion that defendant’s noncompliance

was willful because they show that defendant not only had the

means to comply but that he also purposefully did not comply

with the consent judgment.           Therefore, defendant’s argument is

without merit.

      Finally, defendant argues that the trial court erred in

holding him in civil contempt based on amounts allegedly unpaid

which were not alleged at the time of the contempt proceeding.

Specifically, defendant contends that the amounts due in June,

July, August, and September were not subjects of the contempt
                                   -14-
motion or order to show cause, which was filed in May 2013.                   We

disagree.

    “Civil contempt or punishment [a]s for contempt is applied

to a continuing act, and the proceeding is had to preserve and

enforce the rights of private parties to suits and to compel

obedience to orders and decrees made for the benefit of such

parties.”    Rose's Stores, Inc. v. Tarrytown Ctr., Inc., 270 N.C.

206, 214, 154 S.E.2d 313, 319 (1967) (internal citations and

quotation marks omitted).      Here, in plaintiff’s motion for order

to show cause, she pled that defendant had stopped paying the

$11,200 monthly payment as required by the consent judgment.

This motion was filed 21 May 2013; however, the hearing on her

motion was held on 26 September 2013.                 At the time of the

hearing, defendant had still not made any payments.               Since civil

contempt is a way in which to require a party to get current on

periodic payments, see Brown v. Brown, 171 N.C. App. 358, 361,

615 S.E.2d 39, 41 (2005) (“An order for the periodic payments of

child support or a child support judgment that provides for

periodic    payments   is   enforceable     by    proceedings      for   civil

contempt.”), the trial court had authority to determine which

periodic    payments   defendant   had    yet    to   pay   at   the   time   of

hearing.    There is no reason why the trial court could not take
                                         -15-
into account the periodic payments defendant missed in the time

between the motion being filed and the hearing, a period of four

months, given that the express purpose of civil contempt is to

protect a party from a “continuing act.”                 See Rose's Stores, 270

N.C. at 214, 154 S.E.2d at 319.                   In this case, some of the

“continuing acts” occurred after plaintiff filed her motion in

the   months       before    the    hearing—specifically,           in     June,    July,

August, and September.             Furthermore, defendant himself testified

that he owed plaintiff $6,572 for April and had not made any

monthly payments on the distributive award in May, June, July,

August, and September (the month in which the hearing was held).

Thus,    defendant     clearly      established       that    he    owed    $62,572    to

plaintiff, and defendant’s argument is without merit.

                                      Conclusion

      Based     on     the    language       of   the    consent         judgment     and

construing all provisions in their entirety, we conclude that a

charging order was one, but not the sole, remedy available to

plaintiff to enforce the distributive award, and we affirm the

trial court’s denial of defendant’s motion to dismiss on this

basis.        Furthermore,         because    there     was    competent       evidence

presented     at     the    hearing   that    defendant’s          noncompliance      was

willful, we affirm the order adjudicating him in civil contempt.
                             -16-
Finally, the trial court did not err in holding defendant in

contempt for failing to make monthly payments in June, July,

August, and September.



    AFFIRMED.

    Judges McGEE and ELMORE concur.

    Report per Rule 30(e).
