Simms v. Bolger ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-716
Filed: 19 March 2019
Mecklenburg County, No. 09 CVD 28068
SHANEEKQUA SIMMS, Plaintiff
v.
LEROY BOLGER, Defendant
Appeal by Defendant from Order entered 15 March 2018 by Judge Kimberly
Best in Mecklenburg County District Court. Heard in the Court of Appeals 14
January 2019.
Arnold & Smith, PLLC, by Matthew R. Arnold, for plaintiff-appellee.
Plumides, Romano, Johnson & Cacheris, P.C., by Richard B. Johnson, for
defendant-appellant.
HAMPSON, Judge.
Factual and Procedural Background
Leroy Bolger (Defendant) appeals from an Order holding him in civil contempt
for willfully failing to pay an award of attorneys’ fees included in a child support
award during the pendency of his appeal of the child support award. Relevant to this
appeal, the Record tends to establish the following:
This case stems from its companion case, Simms v. Bolger, ___ N.C. App. ___,
___ S.E.2d ___ (2019) (COA18-551) (Simms I). Defendant and Shaneekqua Simms
SIMMS V. BOLGER
Opinion of the Court
(Plaintiff) are the parents of a minor child. On 26 May 2010, the Mecklenburg County
District Court entered an Order establishing Defendant’s paternity of the minor child
and establishing Defendant’s child support obligation.
On 2 June 2017, the trial court entered an Order (the June Order) modifying
permanent child support, requiring Defendant to pay a lump sum child support
payment to a trust for the minor child, establishing Defendant’s arrearages owed to
Plaintiff, and awarding attorneys’ fees to Plaintiff in the amount of $25,000. On 12
June 2017, Defendant filed a Motion to Reconsider and Revise the June Order
asserting grounds under N.C.R. Civ. P. 52, 59 and 60.
On 26 July 2017, Plaintiff filed a Verified Motion for Civil Contempt, alleging
Defendant’s failure to pay monthly child support payments, to pay child support
arrearages, to establish a trust for the benefit of the minor child, and to pay attorneys’
fees, as required by the June Order. On 27 July 2017, the trial court entered an order
requiring Defendant to appear and show cause as to why he should not be held in
contempt. The same day, the trial court entered an Order granting in part
Defendant’s Motion to Reconsider and Revise (the July Order).
Subsequently, on 20 November 2017, the trial court entered another Order
(the November Order), partially modifying the June Order by adjusting Defendant’s
monthly child support obligation, adjusting his arrearages owed, and directing the
lump sum child support payment to a custodial account. The trial court ordered
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Opinion of the Court
Defendant to pay additional attorneys’ fees in the amount of $16,240. On 11
December 2017, Defendant filed Notice of Appeal from the June, July and November
Orders. These Orders are the subject of Simms I.
On 26 January 2018, Defendant filed a Motion to Stay, requesting the trial
court set a bond to stay enforcement of the lump sum child support award and the
arrearages owed to Plaintiff pending the appeal in Simms I. Defendant did not seek
a stay of the attorneys’ fee awards pending appeal.
On 5 February 2018, Plaintiff filed an Amended Verified Motion for Civil
Contempt. The Amended Motion alleged Defendant had still failed to pay ongoing
child support, child support arrearages, and the lump sum payment ordered by the
trial court, as well as the two different attorneys’ fee awards. On 7 February 2018,
the trial court entered another show cause order.
On 12 March 2018, the trial court granted in part Defendant’s Motion to Stay
by permitting Defendant to post a cash bond of $100,000 to stay enforcement of the
lump sum child support award.
On 15 March 2018, the trial court entered its Order on Plaintiff’s Motion for
Civil Contempt. The trial court found Defendant in willful contempt of both the June
and November Orders. The trial court noted Defendant had purged himself of
contempt by paying ongoing child support and arrearages prior to the hearing. The
trial court also noted the lump sum payment was stayed during the appeal pending
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Opinion of the Court
the posting of the cash bond. However, the trial court found Defendant had made no
attempt to stay the awards of attorneys’ fees. Accordingly, the trial court concluded:
(A) Defendant was not in contempt with respect to ongoing child support or
arrearages; (B) Defendant’s obligation with respect to the lump sum payment was
stayed; and (C) Defendant was in civil contempt for failure to pay the two attorneys’
fee awards.
Appellate Jurisdiction
Defendant timely filed Notice of Appeal from the 15 March 2018 Order holding
him in civil contempt. This Order constitutes a final judgment of the District Court
resolving the then sole pending issue before the trial court. N.C. Gen. Stat. § 7A-
27(b)(2) (2017). Further, Defendant’s appeal of the trial court’s finding of civil
contempt is properly taken to this Court. N.C. Gen. Stat. § 5A-24 (2017).
Issue
In his sole argument on appeal, Defendant contends the trial court lacked
subject matter jurisdiction to hold him in civil contempt for failure to pay the
attorneys’ fee awards during the pendency of his appeal in Simms I.
A. Standard of Review
“Whether a trial court has subject-matter jurisdiction is a question of law,
reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d
590, 592 (2010). “The question of subject matter jurisdiction may be raised at any
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Opinion of the Court
time, even in the Supreme Court.” Lemmerman v. A.T. Williams Oil Co., 318 N.C.
577, 580, 350 S.E.2d 83, 85 (1986).
B. Analysis
Typically, “[w]hen an appeal is perfected . . . it stays all further proceedings in
the court below upon the judgment appealed from, or upon the matter embraced
therein[.]” N.C. Gen. Stat. § 1-294 (2017). In the context of child support, however,
there is a specific statutory exception:
Notwithstanding the provisions of G.S. 1-294, an order for
the payment of child support which has been appealed to
the appellate division is enforceable in the trial court by
proceedings for civil contempt during the pendency of the
appeal. Upon motion of an aggrieved party, the court of the
appellate division in which the appeal is pending may stay
any order for civil contempt entered for child support until
the appeal is decided, if justice requires.
N.C. Gen. Stat. § 50-13.4(f)(9) (2017).1 Thus, orders for the payment of child support
are enforceable by civil contempt pending appeal of the underlying order, including
any sanctions entered pursuant to an order of civil contempt. Guerrier v. Guerrier,
155 N.C. App. 154, 159, 574 S.E.2d 69, 72 (2002).
Defendant contends this exception does not extend to attorneys’ fees awarded
in a child support action under N.C. Gen. Stat. § 50-13.6. Our Courts, however, have
1 Similar statutory exceptions permitting civil contempt proceedings during an appeal exist
for child custody, N.C. Gen. Stat. § 50-13.3(a) (2017), and alimony, N.C. Gen. Stat. § 50-16.7(j) (2017).
Equitable distribution, however, does not have such an exception. Guerrier v. Guerrier, 155 N.C. App.
154, 159, n.4, 574 S.E.2d 69, 72, n.4 (2002).
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Opinion of the Court
regularly recognized attorneys’ fee awards to be an enforceable component of child
custody, child support, and alimony awards pending appeal. See Cox v. Cox, 133 N.C.
App. 221, 233, 515 S.E.2d 61, 69 (1999); Berger v. Berger, 67 N.C. App. 591, 600, 313
S.E.2d 825, 831 (1984); Faught v. Faught, 50 N.C. App. 635, 639, 274 S.E.2d 883, 886
(1981).
Historically, prior to the early to mid-1980’s, trial courts had no jurisdiction to
utilize contempt to enforce custody and support orders while the case was on appeal.
Joyner v. Joyner, 256 N.C. 588, 592, 124 S.E.2d 724, 727 (1962). Instead, our Supreme
Court ruled that orders requiring the payment of alimony, child support, and counsel
fees constituted money judgments. Quick v. Quick, 305 N.C. 446, 462, 290 S.E.2d 653,
663 (1982). The significance of this was that it meant these orders could be enforced
as money judgments pursuant to N.C. Gen. Stat. § 1-289, even pending appeal.
Under N.C. Gen. Stat. § 1-289: “If the appeal is from a judgment directing the
payment of money, it does not stay the execution of the judgment unless a written
undertaking is executed on the part of the appellant, by one or more sureties, as set
forth in this section.” N.C. Gen. Stat. § 1-289(a) (2017). Therefore, an appeal did not
stay civil execution proceedings against the obligor’s property unless a supersedeas
bond or stay was obtained. Quick, 305 N.C. at 462, 290 S.E.2d at 663. Indeed, this
Court recognized “appeal from [an] order requiring defendant to pay alimony and
counsel fees did not automatically stay execution on the judgment, and the trial court
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had the authority, in accordance with G.S. § 1-289, to require defendant to ‘execute a
written undertaking’ in order to stay execution.” Faught, 50 N.C. App. at 639, 274
S.E.2d at 886 (emphasis added).
Notwithstanding the remedy of execution, our Supreme Court, nevertheless,
decried the lack of contempt proceedings during an appeal, noting it created “a
lengthy period of virtual immunity from support obligations[,]” Quick, 305 N.C. at
461, 290 S.E.2d at 663, and urged “some more adequate provision should be made for
the child during the legal battle of its parents.” Joyner, 256 N.C. at 592, 124 S.E.2d
at 727.
In 1983, the General Assembly specifically amended N.C. Gen. Stat. § 50-
13.4(f)(9) and N.C. Gen. Stat. § 50-13.3(a) to permit civil contempt proceedings
pending an appeal in child support and custody actions. 1983 N.C. Sess. Law 530 (An
Act to Permit Enforcement of Child Support and Custody Judgments while on
Appeal). In 1985, the General Assembly amended N.C. Gen. Stat. § 50-16.7(j) to
provide the same in alimony cases. 1985 N.C. Sess. Law 482, Sec. 1 (An Act to Permit
Enforcement of Alimony Judgments while on Appeal).
In 1999, however, this Court in Cox, relying on Faught, held that where a party
did not post a valid undertaking under N.C. Gen. Stat. § 1-289, civil contempt
proceedings for failure to pay attorneys’ fees in a child support order were not stayed
pending an appeal. Cox, 133 N.C. App. at 233, 515 S.E.2d at 69. The suggestion in
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Cox is that a party could, notwithstanding the language of N.C. Gen. Stat. § 50-
13.4(f)(9), stay civil contempt proceedings for failure to pay attorneys’ fees ordered in
a child support proceeding by posting an appropriate undertaking under N.C. Gen.
Stat. § 1-289, which is normally applicable to civil execution proceedings.
In the instant case, Defendant filed his Motion to Stay seeking to stay
enforcement of the November Order as it related to his arrearages and lump sum
child support payment pending his appeal. Defendant sought relief, inter alia,
expressly citing N.C. Gen. Stat. § 1-289. Nowhere in his motion did Defendant seek
to stay enforcement of the payment of attorneys’ fees.
The trial court expressly found in its Contempt Order that Defendant did not
post a bond or seek a stay for the award of attorneys’ fees in either the June Order or
the November Order. It is undisputed Defendant did not post a bond or written
undertaking to stay enforcement of the trial court’s award of attorneys’ fees.
Consequently, we hold the trial court had subject matter jurisdiction to enforce
the attorneys’ fee awards in the June and November Orders through civil contempt
pending the appeal in Simms I. N.C. Gen. Stat. § 50-13.4(f)(9). Moreover, where
Defendant made no attempt to post an undertaking or supersedeas bond to stay civil
contempt proceedings on the attorneys’ fee awards pursuant to N.C. Gen. Stat. § 1-
289, Defendant was subject to civil contempt proceedings pending his appeal under
our prior holding in Cox.
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Opinion of the Court
Conclusion
Thus, for the foregoing reasons, we affirm the trial court’s 15 March 2018
Order holding Defendant in civil contempt.
AFFIRMED.
Chief Judge McGEE and Judge HUNTER concur.
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