               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA17-82

                                Filed: 17 October 2017

Union County, No. 11 CVD 2028

KIM TIGANI, Plaintiff,

              v.

GREGORY TIGANI, Defendant.


        Appeal by defendant from order entered 15 August 2016 by Judge Joseph

Williams in Union County District Court. Heard in the Court of Appeals 23 August

2017.


        Plumides, Romano, Johnson and Cacheris, PC, by Richard B. Johnson, for
        plaintiff-appellee.

        Collins Family Law Group, by Rebecca K. Watts, for defendant-appellant.


        ZACHARY, Judge.


        Gregory Tigani (defendant) appeals from an order finding him in civil contempt

of court for his failure to abide by the terms of an order of the trial court directing

defendant to pay $20,096.68 in attorney’s fees to the attorney hired by Kim Tigani

(plaintiff) in the course of domestic litigation between the parties.        On appeal,

defendant argues that the trial court erred by finding defendant in contempt of court

for his failure to abide by the order to pay attorney’s fees to plaintiff’s counsel and by

ordering that defendant be incarcerated until he purged himself of his contempt.
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Defendant contends that the court’s findings were not supported by competent

evidence. After careful review of defendant’s arguments, in light of the record on

appeal and the applicable law, we conclude that defendant’s arguments have merit

and that the contempt order should be reversed.

                            Factual and Procedural Background

      Plaintiff and defendant were married in 1986, separated in 2006, and executed

a separation agreement in 2007. In 2011, plaintiff filed a complaint alleging that

defendant had breached the terms of the separation agreement and seeking specific

performance and attorney’s fees. Defendant filed an answer and counterclaims. In

2015, the matter was tried before a jury, which found that both parties had breached

the separation agreement, that plaintiff was entitled to damages of $62,000, and that

defendant was entitled to nominal damages of $1.00. On 2 October 2015, the trial

court entered orders that awarded plaintiff $62,000 in damages and denied plaintiff’s

request for specific performance.

      The present appeal arises from the court’s order, also entered 2 October 2015,

awarding plaintiff’s attorney’s fees. The trial court ordered defendant to pay

plaintiff’s counsel, Mr. Richard Johnson, a total of $20,096.68 in attorney’s fees, with

$10,048.34 due no later than 1 November 2015, and the remainder payable no later

than 1 March 2016. On 25 November 2015, plaintiff’s counsel filed a verified motion

asking the court to hold defendant in contempt of court for failure to make the



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payment that was due by 1 November 2015. The first sentence of plaintiff’s motion,

entitled “Motion For Contempt,” stated that plaintiff was “moving the Court for an

Order to Show Cause directed to Defendant[.]” Plaintiff set out the relevant facts and

asked the trial court to issue “an Order directing Defendant to appear and show

cause” why he should not be held in contempt. Plaintiff also requested issuance of

“an Order finding Defendant in contempt of this Court and committing Defendant to

custody until such time as he fully complies” with the order to pay attorney’s fees.

Plaintiff served defendant’s counsel with her Notice of Hearing indicating that the

“matters for hearing” were a “SHOW CAUSE,” among other matters. Defendant

moved for a continuance, which was denied. The trial court conducted a hearing on

the motion on 25 July 2016. Neither defendant nor his counsel attended the hearing.

After hearing from plaintiff’s counsel, the trial court ruled that defendant was in civil

contempt of court for his failure to abide by the terms of the court’s order.

      On 15 August 2016, the court entered an order finding defendant “in contempt

of court for his failure to comply with” the order to pay attorney’s fees, and ordering

that defendant be incarcerated in the Union County jail until he paid the full amount

of attorney’s fees. On the same day that the order was entered, defendant filed a

motion under N.C. Gen. Stat. § 1A-1, Rule 60, asking the court to set aside the

contempt order. On 25 August 2016, defendant’s appellate counsel filed a petition for

writ of supersedeas and a motion for a temporary stay with this Court, which were



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both denied the same day. On 26 August 2016, before the court had ruled on

defendant’s Rule 60 motion, defendant entered notice of appeal to this Court. Also

on 26 August 2016, plaintiff’s counsel asked the trial court to issue an order for

defendant’s arrest. Because defendant had given notice of appeal, the court ruled

that it was divested of jurisdiction and denied the request that it order defendant’s

arrest.

                                    Standard of Review

      It is well-established that “[t]he 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.’ ” Miller

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

127 N.C. App. 705, 709, 493 S.E.2d 288, 291 (1997)). “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.” Tucker v. Tucker, 197 N.C. App. 592, 594, 679

S.E.2d 141, 142 (2009) (internal quotation marks omitted). However, “[i]f, as here,

the finding that the failure to pay was willful is not supported by the record, the

decree committing defendant to imprisonment for contempt must be set aside.”

Henderson v. Henderson, 307 N.C. 401, 409, 298 S.E.2d 345, 351 (1983).

                             Civil Contempt: Legal Principles



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      The purpose of a proceeding for civil contempt “is not to punish, but to coerce

the defendant to comply with the order.” Bethea v. McDonald, 70 N.C. App. 566, 570,

320 S.E.2d 690, 693 (1984) (citing Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980)).

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

             (a) 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;
             (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.

      “A person who is found in civil contempt may be imprisoned as long as the civil

contempt continues[.]” N.C. Gen. Stat. § 5A-21(b). However, “a defendant in a civil

contempt action should not be fined or incarcerated for failing to comply with a court

order without a determination by the trial court that the defendant is presently

capable of complying[.]” McBride v. McBride, 334 N.C. 124, 130, 431 S.E.2d 14, 18

(1993) (citation omitted). Thus:

             . . . [I]n order to find a party in civil contempt, the court
             must find that the party acted willfully in failing to comply
             with the order at issue. “Willfulness constitutes: (1) an
             ability to comply with the court order; and (2) a deliberate
             and intentional failure to do so.” Therefore, in order to
             address the requirement of willfulness, “the trial court
             must make findings as to the ability of the [contemnor] to
             comply with the court order during the period when in


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             default.” . . . Second, once the trial court has found that the
             party had the means to comply with the prior order and
             deliberately refused to do so, “the court may commit such
             [party] to jail[.] . . . At that point, however, . . . the court
             must find that the party has the present ability to pay the
             total outstanding amount.

Clark v. Gragg, 171 N.C. App. 120, 122-23, 614 S.E.2d 356, 358-59 (2005) (quoting

Sowers v. Toliver, 150 N.C. App. 114, 118, 562 S.E.2d 593, 596 (2002), and Bennett v.

Bennett, 21 N.C. App. 390, 393-94, 204 S.E.2d 554, 556 (1974)).

      N.C. Gen. Stat. § 5A-23(a) (2015) provides that a proceeding for civil contempt

may be initiated “by the order of a judicial official directing the alleged contemnor to

appear . . . and show cause why he should not be held in civil contempt,” or “by the

notice of a judicial official that the alleged contemnor will be held in contempt unless

he appears . . . and shows cause why he should not be held in contempt.” Under either

of these circumstances, the alleged contemnor has the burden of proof. In addition,

pursuant to N.C. Gen. Stat. § 5A-23(a1), “[p]roceedings for civil contempt may be

initiated 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. . . . The burden of proof in a hearing pursuant to this subsection

shall be on the aggrieved party.” “[W]hen an aggrieved party rather than a judicial

official initiates a proceeding for civil contempt, the burden of proof is on the

aggrieved party, N.C. Gen. Stat. § 5A-23(a1) [(2015)], because there has not been a

judicial finding of probable cause.” Moss v. Moss, 222 N.C. App. 75, 77, 730 S.E.2d


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203, 205 (2012) (citing Trivette v. Trivette, 162 N.C. App. 55, 60, 590 S.E.2d 298, 303

(2004)).

      In the present case, the nature of plaintiff’s motion is not entirely clear. The

motion is captioned “Motion for Contempt.” However, the first sentence of the motion

states that plaintiff is “moving the Court for an Order to Show Cause,” and in her

prayer for relief plaintiff asks the trial court to issue both a show cause order and an

order finding defendant in contempt of court. In addition, the Notice of Hearing

indicates that the matter for hearing was a “SHOW CAUSE.” Based on the language

of the motion and the notice of hearing, defendant might have believed that the

hearing conducted on 25 July 2016 could have resulted in nothing more than issuance

of a show cause order, to be heard at some future date. However, defendant has not

argued on appeal that he lacked notice that the court might enter an order finding

him in contempt. Accordingly, we do not address the issue of whether plaintiff’s

motion, which includes elements of both a motion seeking to have a party held in

contempt and a motion merely seeking issuance of a show cause order, properly

provided defendant with notice that he might be held in civil contempt of court.

                                          Discussion

      Defendant appeals from an order finding him in civil contempt of court for

failure to abide by the terms of the court’s order to pay attorney’s fees to plaintiff’s

counsel. The trial court’s order states, in relevant part, the following:



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      . . . [A]fter reviewing the Court file and the exhibits
      introduced into evidence and hearing the arguments of
      counsel; the Court enters the following findings of fact,
      conclusions of law, and decree: . . .

      1. By an order for Attorney’s Fees entered herein on
      October 4, 2015, by Judge Joseph Williams, Defendant was
      ordered to pay $20,096.68 in attorney’s fees with
      $10,048.34 due on or before November 1, 2015 and the
      remain[der] due on or before March 1, 2016.

      2. Defendant has willfully and deliberately violated said
      Order by:
      a. Failing and refusing to pay any of the attorney’s fees
      since the Order was entered.

      3. Defendant is in contempt of Court for his failure to
      comply with the above Order as he has not paid any
      attorney’s fees.

      4. Defendant’s failure to comply with the previous Order
      entered herein is willful and deliberate and he has the
      means and ability to comply with the Order as evidenced
      by his bank statements.

Based upon its findings of fact, the Court concluded in pertinent part that:

                                   ...

      2. Defendant is in contempt of Court for his failure to
      comply with the above Order as he has not paid the
      attorney’s fees as previously ordered.

      3. Defendant’s failure to comply with the previous Order
      entered herein is willful and deliberate and he has the
      means and ability to comply with the Order as evidenced
      by his bank statements.




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                                  Opinion of the Court



      Based upon its findings and conclusions, the trial court entered an order

stating in relevant part that:

                                          ...

             2. Defendant shall be placed in the custody of the Union
             County Sheriff’s Department until he pays the previously
             ordered attorney’s fees of $20,096.68.

             3. That sentence is suspended until August 15, 2016,
             provided Defendant purges his contempt by:

             a. Paying the full amount of attorney’s fees owed,
             $20,096.68, on or before August 15, 2016.

      As discussed above, a party may be held in civil contempt of a court order if (1)

the order remains in force; (2) the purpose of the order may be served by compliance

with the order; (3) the party’s noncompliance is willful; and (4) the party is able to

comply with the order. In this case, defendant does not dispute that he was ordered

to pay $20,096.68 in attorney’s fees or that he had not complied with the order at the

time of the hearing. Defendant contends, however, that the trial court’s finding that

his “failure to comply with the previous Order entered herein is willful and deliberate

and he has the means and ability to comply with the Order as evidenced by his bank

statements” was not supported by any record evidence. Upon review of the record,

we agree.

      At the hearing on plaintiff’s “Motion For Contempt,” no witnesses testified and

no exhibits were offered into evidence. The transcript of the proceeding indicates that



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plaintiff’s counsel proffered for the trial court’s review documents that he described

as defendant’s “bank statements” encompassing a mixture of business and personal

records from the period between November 2015 and March 2016. The bank records

were not introduced into evidence or authenticated by any witness, and are not part

of the record on appeal. In addition, assuming the accuracy of plaintiff’s counsel’s

description of the bank records, the records did not reflect defendant’s financial

circumstances on 25 July 2016, which is the relevant time for purposes of determining

defendant’s present ability to pay. Nor did plaintiff’s counsel offer testimony from any

witness.

      An order finding a party in contempt of court and ordering him incarcerated

until he complies must be supported by competent evidence:

             To justify conditioning defendant’s release from jail for civil
             contempt upon payment of a large lump sum of arrearages,
             the district court must find as fact that defendant has the
             present ability to pay those arrearages. The majority of
             cases have held that to satisfy the “present ability” test
             defendant must possess some amount of cash, or asset
             readily converted to cash. . . . . The record before this court
             is unclear as to what evidence if any was taken to show
             defendant’s present ability or lack of present ability to pay
             the arrearage. Therefore, the judgment is vacated and the
             action remanded to the district court for further
             proceedings not inconsistent with this opinion.

McMiller v. McMiller, 77 N.C. App. 808, 809-10, 336 S.E.2d 134, 135-136 (1985). In

the present case, the record contains no witness testimony or exhibits that were

introduced into evidence. As a result, there is no competent evidence on the issue of


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defendant’s financial circumstances in July 2016, or on his ability to pay the amount

of attorney’s fees that he owed. We conclude that the trial court’s conclusion that

defendant had the present ability to comply with the order directing him to pay

plaintiff’s attorney’s fees was unsupported by any record evidence.

      In urging us to reach a contrary conclusion, plaintiff notes that this Court has

previously held that a court’s finding that the contemnor had the “present means to

comply” was “minimally” sufficient to satisfy the requirements for a valid order

finding a party in contempt. In cases such as those cited by plaintiff, we held that

the court’s order, although lacking in specific detail, was sufficient to uphold a

contempt order when the order was supported by record evidence. For example, in

Maxwell v. Maxwell, 212 N.C. App. 614, 713 S.E.2d 489 (2011), this Court discussed

an earlier case, Adkins v. Adkins, 82 N.C. App. 289, 346 S.E.2d 220 (1986):

             In Adkins, the trial court found that the defendant had the
             present means to comply with a court order and purge
             himself of a finding of contempt. On appeal, this Court
             reviewed the record evidence and held that the unspecific
             finding of a present means to comply was sufficient in light
             of competent evidence presented in support of the findings.
             Similarly, in the present action, though the trial court’s
             finding as to Plaintiff’s ability [to comply] with the
             contempt order is unspecific, there was competent evidence
             in the record to support the trial court’s finding of fact.
             Accordingly, Plaintiff’s argument on appeal is without
             merit.




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Maxwell, 212 N.C. App. at 619-20, 713 S.E.2d at 493 (emphasis added). In the present

case, unlike those cited by plaintiff, the trial court’s finding was unsupported by any

record evidence.

      Plaintiff also argues that, by failing to appear at the hearing on plaintiff’s

counsel’s contempt motion, plaintiff waived the right to object to the presentation of

his bank statements to the trial court. However, defendant does not argue that it

was error for the trial court to review the documents proffered by plaintiff’s counsel,

but that the trial court’s findings and conclusions are not supported by record

evidence. Plaintiff has not cited any cases in which an order of the trial court was

upheld despite the absence of any documentary or testimonial evidence. Moreover,

the “appellate courts can judicially know only what appears of record.” Jackson v.

Housing Authority of High Point, 321 N.C. 584, 586, 364 S.E.2d 416, 417 (1988)

(citation omitted).

      For the reasons discussed above, we conclude that the trial court erred by

finding defendant in civil contempt of court for his failure to abide by the terms of the

order directing him to pay attorney’s fees, given that the order was not supported by

any evidence introduced at the hearing. Accordingly, the contempt order must be

reversed and remanded.

      REVERSED AND REMANDED.

      Judges CALABRIA and MURPHY concur.



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