Marshall v. Marshall ( 2014 )


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  •                                NO. COA13-689
    NO. COA13-692
    NORTH CAROLINA COURT OF APPEALS
    Filed: 1 April 2014
    JOHANNA MARIA MAGDALENA MARSHALL,
    LISA MULL MOORE, ROBERT CHRISTIAN
    MOORE,
    Plaintiffs,
    v.                                   Mecklenburg County
    No. 10 CVD 24330
    HUNTER DOUGLAS MARSHALL,
    Defendant.
    Appeal by Defendant from orders entered 20 August and 18
    October 2012 by Judge Paige B. McThenia in Mecklenburg County
    District Court.   Heard in the Court of Appeals 21 November 2013.
    Jonathan McGirt for Plaintiff Marshall.
    No brief for Plaintiffs Moore.
    Marshall &       Taylor,   P.C.,    by    Travis   R.   Taylor,     for
    Defendant.
    STEPHENS, Judge.
    Factual Background and Procedural History
    This    appeal    arises   from    the   self-described      “desperate
    measures”   undertaken    by   Defendant     Hunter    Douglas    Marshall
    (“Defendant”) in an attempt to prevent the end of his marriage
    to Plaintiff Johanna Maria Magdalena Marshall (“Johanna”), and,
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    once the marriage did end, his campaign of hatred and harassment
    against     Johanna         and      Johanna’s         family,    friends,          and
    acquaintances, as well as Plaintiffs Lisa Mull Moore and Robert
    Christian Moore (“the Moores”).               Defendant and Johanna married
    in 1985 and had two children together:                  a daughter born in 1990
    and a son born in 1995.           In 2008, Johanna expressed to Defendant
    her interest in pursuing a romantic and sexual relationship with
    another woman.        Hoping to preserve his marriage and family,
    Defendant initially agreed to his wife’s desire.                     Johanna began
    a relationship with Plaintiff Lisa Mull Moore (“Lisa”), a woman
    who was then, and remains, married to Plaintiff Robert Christian
    Moore, who was also aware of and acquiesced in the relationship
    between    Johanna    and    Lisa.      Defendant       not   only   knew      of   and
    permitted   this     relationship,      but    also     expressed    to   Lisa      his
    gratitude for making Johanna “happier than she had ever been.”
    However,    at   some       point    during      the    first    half     of    2009,
    Defendant’s view of the relationship between Johanna and Lisa
    changed, and he demanded that it end.                  When Johanna declined to
    sever ties with Lisa,             Defendant   began harassing        his wife        by
    phone, text, and email.
    By April 2010, the Marshalls had separated.                         On 26 July
    2010, they entered into a marital dissolution agreement (“MDA”)
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    in Tennessee.1        The MDA included, inter alia, provisions which
    barred either party from harassing or interfering with the other
    and specifically prohibited Defendant from harassing “Lisa and
    Bob Moore in any way, [sic] no communication with their friends
    or   known     associates.”           The     MDA     also    includes         Defendant’s
    relinquishment of “any rights he has regarding North Carolina
    laws of alienation of affection[] and/or criminal conversation
    which   may    have    resulted      from    the     past     actions     or    which    may
    result from the future actions” of the Moores.                       On 23 September
    2010,   the    MDA    was    filed    in    the     Chancery    Court     for        Anderson
    County, Tennessee and became an order of the court.
    After     signing      the    MDA,     however,     Defendant        continued       his
    daily   harassment          of    Johanna      by     phone,     text,         and    email.
    Defendant also repeatedly contacted Johanna’s elderly parents to
    disparage them and Johanna.                He began sending emails and letters
    about   the     relationship         between        Johanna    and   Lisa        to    their
    extended      families,      friends,        co-workers,       minister,         religious
    congregation,        and    various    media        entities.        In    October       and
    November 2010, Defendant sent a packet of information about the
    1
    At the time the MDA was signed, it appears that Johanna was
    living near Charlotte, North Carolina.     The record does not
    clearly indicate the parties’ connection to Tennessee.   In any
    event, the validity of the MDA has not been challenged prior to
    or in this appeal.
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    women’s      relationship         to   the   minister        of    the   Moores’     church,
    members of that congregation, and the Moores’ son.                              The 22-page
    packet included copies of numerous explicit and private emails
    between Johanna and Lisa.
    On 9 November 2010, Johanna’s attorney sent Defendant a
    letter pointing out that his behavior was in violation of the
    MDA and that Johanna would file a motion that Defendant be held
    in     contempt      if     Defendant        did       not    cease       his    harassment
    immediately.         Defendant replied “please sue me” and continued to
    send the packet to other parties, including Johanna’s friends
    and relatives.        On 16 November 2010, Defendant emailed a copy of
    the packet to a reporter at the Charlotte Observer and explained
    that    he    planned        to    begin     picketing            the    Moores’     church.
    Defendant told Johanna that he hoped to ruin the Moores’ lives
    and wished that Bob Moore would end up shooting Lisa over the
    situation.
    On 1 December 2010, Johanna filed a complaint and motion
    requesting the court to enter a domestic violence protection
    order    (“DVPO”)      and    Lisa     filed      a    complaint        requesting    a   no-
    contact      order    for    stalking        or       nonconsensual       sexual     conduct
    (“NCO”).      Following a hearing on 8 December 2010, the district
    court entered a one-year DVPO and an NCO against Defendant.                               The
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    DVPO   prohibited      Defendant         from    committing       “further    acts    of
    abuse”     against     Johanna      or     contacting       her,    “direct[ly]      or
    indirect[ly],     by    means    such      as    telephone,       personal    contact,
    email, pager,” or fax machine.                   The NCO prohibited Defendant
    from, inter alia, abusing, stalking, harassing, or contacting
    Lisa and her family, and also specifically barred Defendant from
    contacting the congregation of the Moores’ church, occupants of
    their neighborhood, and members of another community group with
    which Lisa was affiliated.
    Following entry of the orders, Defendant moved for a new
    trial and to set aside the DVPO and also gave notice of intent
    to appeal from both orders.              In response, Johanna and Lisa moved
    to dismiss Defendant’s appeal and for sanctions.                           On 4 March
    2011, the court denied Defendant’s motions for new trial and to
    set aside the DVPO and also denied the plaintiffs’ motions for
    sanctions.        Defendant      voluntarily        dismissed       his    notices    of
    appeal on 9 March 2011.
    However,   Defendant        continued      his   campaign      of     harassment
    against    Johanna     and   the    Moores,       seeking     “more       creative   and
    indirect     methods     though          which    he    [could]       continue       his
    contemptuous behavior.”             For example, Defendant left numerous
    ranting    voicemails    for     Johanna’s        parents    in    which     he   called
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    Johanna’s family “disgusting” and “scummy” people, expressed a
    wish that her elderly parents would “get sick and die,” and
    threatened     to    cut    off    contact       with    his    own     son    if    the   son
    visited   Johanna      or    her    parents.            Defendant      emailed       his   and
    Johanna’s children and Johanna’s father, describing Johanna’s
    family    as     “disgusting”           and      “lazy”        people       who      “brought
    devastation to the people and children around you.”
    On 27 April 2011, pursuant to N.C. Gen. Stat. § 52C-6-601,
    Johanna filed a notice of registration of                          a    foreign support
    order for the MDA in the district court in Mecklenburg County.
    Defendant did not contest registration of the MDA, which was
    confirmed by operation of law as of 17 May 2011.                            See N.C. Gen.
    Stat. § 52C-6-606 (2013).                 On 2 September 2011, Johanna filed
    motions   for    contempt         and   for   costs      and    fees,       alleging       that
    Defendant      had   breached       the    MDA    by     failing       to     make   monthly
    structured payments, that he owed Johanna attorneys’ fees she
    had incurred due to his noncompliance with the MDA, and that he
    was in contempt of the DVPO due to his harassment and threats
    toward Johanna and her family.                   On the same day, Lisa filed a
    motion for costs and fees, and the Moores moved for joinder of
    their case with Johanna’s.
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    On 24 October 2011, Johanna and Lisa moved for renewal of
    the DVPO and NCO, respectively.                    Both orders were renewed in
    December     2011    and    again    in     May    2012.     Johanna’s     and   Lisa’s
    motions for contempt and for costs and fees came on for hearing
    on 30 January, 12 April, and 13 April 2012.                      On 13 April 2012,
    the trial court heard closing arguments from the parties and
    then, prior to announcing her ruling, the judge recessed court
    for one hour for lunch.              When court resumed, Defendant did not
    return.      Instead, Defendant told the judge by telephone from the
    airport in Charlotte that he was not returning to court because
    he did not want to be arrested.                   The judge issued an order for
    Defendant’s       arrest    and     sent    law    enforcement    officers       to   the
    airport      to   prevent    Defendant        from    leaving    for   his    home     in
    California.        Defendant’s wallet was recovered from the airport,
    but his whereabouts remained unknown.                      The judge announced her
    ruling    in      open   court    that      afternoon,      finding    Defendant       in
    contempt of the MDA and DVPO.                     She awarded costs and fees to
    Johanna and Lisa.          The judge, concerned that Defendant might not
    pay the costs and fees awarded to the plaintiffs, also suggested
    that   the     plaintiffs     seek     an    injunction       preventing     Defendant
    from, inter alia, accessing a Roth IRA account worth more than
    $3.5 million which had been awarded to Defendant pursuant to the
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    MDA.     See N.C. Gen. Stat. § 1A-1, Rule 65 (2013).                          Johanna did
    so,    and,      on    16     April   2012,    the    court       entered     a    temporary
    restraining order preventing Defendant from accessing the Roth
    IRA.     Johanna then moved for a preliminary injunction pursuant
    to Rule 65.            Defendant did not appear at the hearing on that
    motion, which the court granted on 1 June 2012.
    On 20 August 2012, the court entered                             its written       order
    memorializing           the    ruling      announced        in     open    court     at    the
    conclusion of the hearing on 13 April 2012, granting Johanna’s
    and Lisa’s motions for sanctions, attorneys’ fees, and costs and
    all    of     the      plaintiffs’      motions       for    contempt        (“the    August
    order”).         The August order gave Defendant ten days to purge his
    contempt by (1) ceasing all contact with and harassment of the
    plaintiffs,           their    families,      and    their       acquaintances       and   (2)
    paying      to     Johanna      $130,830.05.         From        that    order,    Defendant
    appealed on 18 September 2012.
    On     31      August    2012,    Johanna       filed       another     motion      for
    contempt, alleging that Defendant had failed to comply with the
    August order.            By order entered 18 October 2012 (“the October
    order”), the court held Defendant in contempt for his failure to
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    comply with the August order.               Defendant gave notice of appeal
    from the October order on 2 November 2012.2
    On     23    September    2013,    Johanna    filed     motions        to    dismiss
    Defendant’s       appeals     in   COA13-689     and   COA13-692.           By    orders
    entered 7 October 2013, those motions to dismiss were referred
    to   this    panel.         Johanna     seeks    dismissal        on    grounds        that
    Defendant’s       pursuit     of   these    appeals    “is   an    offense        to    the
    dignity of the Courts of the State of North Carolina” in light
    of Defendant’s contemptuous behavior in the trial court and his
    “outrageous        conduct”    toward      Johanna,    the   Moores,        and     their
    families,        friends,   and    acquaintances.        While         we   agree      that
    Defendant’s actions are among the most shocking and extreme that
    the members of this panel have witnessed in the many divorce-
    related cases they have reviewed, we must deny Johanna’s motions
    to dismiss.         Hateful, juvenile, and even contemptuous behavior
    by appellants toward other people and our State’s trial courts
    is, unfortunately, not grounds for dismissal.                      Accordingly, we
    reach the merits of Defendant’s appeals.
    Discussion
    2
    Defendant’s two appeals were designated with separate COA
    numbers (COA13-689 for the appeal from the October order and
    COA13-692 for the appeal from the August order).     Because the
    parties, facts, and issues raised in the two appeals are nearly
    identical, we address them together in this opinion.
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    Defendant argues that the trial court erred in entering the
    August order because it lacked (1) subject matter jurisdiction
    and (2) statutory authority pursuant to N.C. Gen. Stat. § 5A-21
    to hold him in contempt.     Defendant also argues that (3) the
    court erred in awarding attorneys’ fees to Johanna in the August
    order.   Finally,   Defendant argues that   (4)   the court   lacked
    jurisdiction to enter the October order.    We disagree as to the
    August order, but agree as to the October order.
    I. Subject Matter Jurisdiction for Entry of the August Order
    Defendant first argues that the trial court lacked subject
    matter jurisdiction to enter the August order finding him in
    contempt of both the MDA and DVPO.     Specifically, he contends
    the MDA (1) was not properly registered as a support order under
    Chapter 52C of the North Carolina General Statutes, the Uniform
    Interstate Family Support Act (“UIFSA”), (2) is not a “support
    order” at all,   and (3) grants exclusive jurisdiction        to the
    courts of Tennessee.
    The issue of subject matter jurisdiction may be raised at
    any time, including for the first time on appeal.     Lemmerman v.
    A.T. Williams Oil Co., 
    318 N.C. 577
    , 580, 
    350 S.E.2d 83
    , 85,
    reh’ing denied, 
    318 N.C. 704
    , 
    351 S.E.2d 736
     (1986).      “A court
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    has jurisdiction over the subject matter if it has the power to
    hear    and    determine     cases     of   the    general       class   to   which    the
    action in question belongs.”                 Balcon, Inc. v. Sadler, 
    36 N.C. App. 322
    , 324, 
    244 S.E.2d 164
    , 165 (1978).
    We first address Defendant’s arguments regarding the trial
    court’s subject matter jurisdiction to hold him in contempt for
    violating the MDA.           UIFSA provides that “[a] support order or an
    income-withholding order issued by a tribunal of another state
    may be registered in this State for enforcement.”                             N.C. Gen.
    Stat.    §    52C-6-601      (2013).        Once   a    foreign    support     order    is
    properly registered, it “is enforceable in the same manner and
    is   subject     to    the   same    procedures        as   an   order    issued   by    a
    tribunal of this State.”             N.C. Gen. Stat. § 52C-6-603(b) (2013).
    UIFSA defines a “[s]upport order” as “a judgment, decree, or
    order, whether temporary, final, or subject to modification, for
    the benefit of a child, a spouse, or a former spouse, which
    provides       for     monetary      support,      health        care,    arrears,      or
    reimbursement, and may include related costs and fees, interest,
    income withholding, attorneys’ fees, and other relief.”                               N.C.
    Gen. Stat. § 52C-1-101(21) (2013).                     Finally, UIFSA specifically
    grants       subject    matter      jurisdiction         over    registered     foreign
    support orders to our State’s district courts.                           See N.C. Gen.
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    Stat.     §   52C-1-102      (2013)     (“The     General     Court     of     Justice,
    District Court Division is the court authorized to hear matters
    under this Act.”).
    Here,     the   MDA     was   filed    on   23    September       2010     in   the
    Chancery Court for Anderson County, Tennessee.                          On 27      April
    2011, Johanna initiated proceedings to register the MDA as a
    support       order   under      UIFSA.      Defendant        failed     to      contest
    registration of the MDA within twenty days, and accordingly, by
    operation of law, registration of the MDA was confirmed as of 17
    May 2011.       See N.C. Gen. Stat. § 52C-6-606.
    Defendant asserts a series of inconsistent and meritless
    claims     regarding      the    MDA.       He    first      contends     that    while
    registration and confirmation of the MDA pursuant to UIFSA gave
    the     trial    court      jurisdiction     over      any    support        provisions
    therein, the court lacked subject matter jurisdiction regarding
    paragraphs 11 and 32 of the MDA because those provisions do not
    explicitly discuss “support,” but rather restrain Defendant from
    harassing       Johanna     or   the    Moores    and     require       Defendant     to
    relinquish any possible claims for alienation of affection or
    criminal conversation.              Defendant cites no authority for the
    startling proposition that a court might have subject matter
    jurisdiction over certain paragraphs and provisions of a foreign
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    support order which has been properly registered and confirmed
    under UIFSA, but lack jurisdiction over other paragraphs and
    provisions.       Nothing in UIFSA       even suggests that          a properly
    registered      and   confirmed   foreign     support   order      may   only   be
    enforced in part by our State’s district courts.                   The relevant
    portions of UIFSA are contained in Chapter 52C, Article 6, Part
    1,   entitled    “Registration     and   Enforcement    of    Support    Order.”
    (Emphasis added).         The statutes quoted above all concern the
    registration      and    enforcement     of   orders,   not       paragraphs    or
    provisions.      This argument is overruled.
    Defendant next       contends that the MDA is not a “support
    order” at all         because   it contains no provisions for spousal
    support   and     uses   the    word   “alimony”   only      in    paragraph    2,
    entitled “Waiver.”         This meritless argument ignores the UIFSA
    definition of a “[s]upport order” as an order which benefits a
    spouse or former spouse by “provid[ing] for monetary support,
    health care, arrears, or reimbursement, and may include related
    costs and fees, interest, income withholding, attorneys’ fees,
    and other relief.”         N.C. Gen. Stat. § 52C-1-101(21) (emphasis
    added).      Paragraph 18 of the MDA requires Defendant to make
    monthly payments of $2,000 to Johanna for twelve months or until
    one of the parties’ homes is sold.             Although the MDA refers to
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    these     payments        as      “[s]tructured       payment[s]”        rather       than
    “alimony,” they are plainly “monetary support.”                         Id.     Further,
    paragraph 26 of the MDA requires Defendant to keep Johanna on
    his    employer-provided          health     insurance       plan   until     Johanna    is
    eligible for health insurance through her own employment, with
    Johanna reimbursing Defendant for the difference in cost due to
    her coverage.        This provision concerns both “health care” and
    “reimbursement[.]”              Id.    Finally, UIFSA explicitly contemplates
    that “support orders . . . may include . . . other relief.”                             Id.
    Thus, the MDA falls squarely within the statutory definition of
    a     support    order,3        and    accordingly,      this       argument    is    also
    overruled.
    Defendant         also     asserts     that    the      trial    court        lacked
    jurisdiction        to     enter       the   August     order       because     the     MDA
    explicitly grants jurisdiction to the courts of Tennessee and
    contains a choice of law provision stating that the laws of that
    state “shall govern.”             Defendant proceeds to argue that contract
    law principles dictate that these provisions deprived the North
    Carolina    trial        court    of   subject      matter    jurisdiction      in    this
    matter.         Defendant       appears utterly unable to grasp the fact
    3
    Further, as noted above, Defendant had the opportunity to
    contest the registration of the MDA as a “support order” under
    UIFSA and elected not to do so.
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    that, once the MDA was              properly    registered and         confirmed in
    North Carolina, it was transformed from a mere contract between
    the two parties to an order of our State’s courts, explicitly
    enforceable as such.          N.C. Gen. Stat. § 52C-6-603(b) (providing
    that   a    registered       and    confirmed    foreign      support       order    “is
    enforceable     in   the     same    manner    and    is   subject     to    the    same
    procedures as an order issued by a tribunal of this State”)
    (emphasis added).           We overrule this argument.           The trial court
    had subject matter jurisdiction in this matter pursuant to the
    provisions of UIFSA.
    II. Authority to Find Contempt under Section 5A-21
    Defendant     next    argues    that     the   trial    court    lacked      the
    authority to hold him in civil contempt under N.C. Gen. Stat. §
    5A-21 for failing to comply with the MDA and the DVPO.                                We
    disagree.
    Section 5A-21 provides that “[f]ailure to comply with an
    order of a court is a continuing civil contempt . . . .”                            N.C.
    Gen. Stat. § 5A-21(a) (2013).            “The purpose of civil contempt is
    not to punish; rather, its purpose is to use the court’s power
    to impose fines or imprisonment as a method of coercing the
    defendant to comply with an order of the court.”                             Jolly v.
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    Wright, 
    300 N.C. 83
    , 92, 
    265 S.E.2d 135
    , 142 (1980) (citation
    omitted), overruled on other ground by McBride v. McBride, 
    334 N.C. 124
    , 
    431 S.E.2d 14
     (1993).                 To hold a party in civil
    contempt, a court must find:
    (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.
    N.C. Gen. Stat. § 5A-21(a).         “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) (citations and internal quotation marks omitted).                        On
    appeal,    our   review   of    civil    contempt    orders   “is    limited    to
    determining whether there is competent evidence to support the
    findings    of    fact    and    whether       the   findings       support    the
    conclusions of law.”       
    Id.
     (citation and internal quotation marks
    omitted).
    Defendant first contends that the MDA is nothing more than
    a contract and that its breach cannot result in a finding of
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    contempt.    Having rejected the basis for this argument above, we
    reject Defendant’s related assertion here.               The MDA is a valid
    and   enforceable     court   order,    and    the   trial   court     was    fully
    vested with authority to hold            Defendant     in contempt for his
    failure to comply therewith.
    Defendant next contends that the contempt order contains no
    findings of fact that Defendant violated the DVPO first entered
    in December 2010 and renewed in December 2011 and May 2012.
    Specifically, Defendant observes that the DVPO prohibited him
    from having contact with Johanna whether “direct or indirect, by
    means such as telephone, personal contact, email, pager, gift-
    giving or telefacsimile machine.”             The DVPO also provided that
    Defendant    “shall     not   assault,        abuse,   follow,       harass    (by
    telephone, visiting the home or workplace or other means), or
    interfere” with Johanna.            Defendant asserts that this language
    only barred him from contacting or harassing Johanna herself
    such that his admitted contact with Johanna’s friends, family,
    and associates was not a violation of the DVPO.
    In overruling this meritless argument, we need only observe
    that the plain language of the DVPO bars Defendant from abusing
    or    harassing   Johanna     “by    telephone,      visiting    the    home    or
    workplace or other means[.]”             Defendant does not dispute the
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    trial court’s numerous findings of fact that, after entry of the
    DVPO, he left hateful and vulgar voicemail and email messages
    for   Johanna’s      elderly      parents,       other    family     members,       and
    friends.     Defendant does not dispute the court’s finding of fact
    87,   that   Johanna       had   “been       incredibly       tormented    by”    those
    communications.          In findings of fact 71-73, the                   court noted
    that, in his messages to Johanna’s parents, Defendant explicitly
    and   repeatedly     stated      that   he    was   “on   a    mission”    to    compel
    various actions on Johanna’s part by harassing her family and
    friends.     Thus, Defendant’s communications to Johanna’s friends
    and family were intended to, and did, abuse and harass Johanna
    in violation of the DVPO.             Further, findings of fact 61, 67, and
    69-73 provide numerous examples of emails and voicemails left
    for Johanna’s parents instructing them to “tell” Johanna to do
    various things.          For example, Defendant asked Johanna’s parents
    to tell Johanna she was “doing the wrong thing” and to “ask
    [Johanna]    to     do    what   is     right   and   get      out   of    my    life.”
    Defendant    left    a    voicemail     message     telling      Johanna’s       parents
    that he had sent emails to his and Johanna’s children, Johanna’s
    family members, and others, “trying to put pressure on [Johanna]
    to do the right thing.           I’m going to keep doing that on a daily
    basis until I get something to happen[.]”                 As the court noted in
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    finding of fact 86, these communications were indirect contacts
    with    Johanna   specifically    barred       by     the   DVPO.      Defendant’s
    specious    arguments      regarding    his    violation      of    the   DVPO    are
    overruled.
    Defendant also argues that the court erred in granting the
    Moores’    motion    for    contempt    as     part    of   the     August   order,
    contending that the Moores were not third-party beneficiaries of
    the MDA, again citing contract law principles.                We disagree.
    The trial court found as fact that the Moores were third-
    party beneficiaries of the MDA.               We review findings of fact in
    civil     contempt   orders    only    to     determine      whether      there   is
    competent evidence to support them.                 Miller, 153 N.C. App. at
    50, 
    568 S.E.2d at 920
     (citation omitted).
    North Carolina recognizes the right of a
    third-party ben[e]ficiary to sue for breach
    of a contract executed for his benefit.
    Ordinarily the determining factor as to the
    rights of a third-party beneficiary is the
    intention of the parties who actually made
    the contract.   The real test is said to be
    whether the contracting parties intended
    that a third party should receive a benefit
    which might be enforced in the courts.   It
    is not sufficient that the contract does
    benefit him if in fact it was not intended
    for his direct benefit.
    This Court has adopted the analysis of the
    Restatement    (Second)   of   Contracts  for
    purposes    of     determining    whether   a
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    beneficiary of an agreement made by others
    has a right of action on that agreement.
    . . .
    (1) Unless otherwise agreed between
    promisor and promisee, a beneficiary of a
    promise   is  an   intended  beneficiary  if
    recognition of a right to performance in the
    beneficiary is appropriate to effectuate the
    intention of the parties and either
    (a) the performance of the promise
    will satisfy an obligation of the promisee
    to pay money to the beneficiary; or
    (b) the circumstances indicate that
    the promisee intends to give the beneficiary
    the benefit of the promised performance.
    (2) An        incidental beneficiary is a
    beneficiary        who   is   not  an   intended
    beneficiary.
    Raritan River Steel Co. v. Cherry, Bekaert & Holland, 
    329 N.C. 646
    ,    651,    
    407 S.E.2d 178
    ,    181    (1991)    (citations,    internal
    quotation      marks,    and     some   brackets   omitted;    emphasis       added).
    Johanna accepted an unequal division of the Marshalls’ divisible
    property in favor of Defendant per the MDA specifically because
    she wanted Defendant to stop his campaign of harassment against
    her    and   the   Moores.        We    can   scarcely    conceive   of   a    better
    example of an intended beneficiary receiving “the benefit of a
    promised performance” than               paragraph 32 of the MDA in which
    Defendant relinquishes any rights he may have against the Moores
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    under   our     State’s     alienation     of     affection    and    criminal
    conversation statutes and agrees not to harass the Moores or
    communicate with their known associates.               The Moores are the
    only beneficiaries of this clause, and Johanna, the promissee,
    specially intended that they benefit from it.                 Thus, the trial
    court’s finding of fact 12, that the Moores are third-party
    beneficiaries under the MDA, is supported by competent evidence.
    Defendant’s arguments to the contrary are overruled.
    III. Award of Attorneys’ Fees in August Order
    Defendant next argues that the court erred in the August
    order by awarding Johanna attorneys’ fees to be paid by him.                 We
    disagree.
    Paragraph 6 of the MDA specifies that a court “shall award
    reasonable     attorneys’    fees   and    suit    expenses     to   the   non-
    defaulting party” incurred as the result of the other party’s
    noncompliance.     As discussed herein, Defendant failed to comply
    with the MDA causing Johanna to incur significant attorneys’
    fees and costs.       The trial court properly awarded attorneys’
    fees to Johanna under its authority to enforce the MDA as a
    court order.     This argument is overruled.
    IV. Subject Matter Jurisdiction for Entry of the October Order
    -22-
    Defendant       also     argues    that        the     trial     court      lacked
    jurisdiction to enter the October order.                   We must agree.
    “When an appeal is perfected[,] . . . it stays all further
    proceedings in the court below upon the judgment appealed from,
    or upon the matter embraced therein; but the court below may
    proceed upon any other matter included in the action and not
    affected by the judgment appealed from.”                     
    N.C. Gen. Stat. § 1
    -
    294 (2013).      Further, “[w]hile an appeal is not perfected until
    it is actually docketed in the appellate division, a proper
    perfection relates back to the time of the giving of the notice
    of appeal, rendering any later orders or proceedings upon the
    judgment appealed from void for want of jurisdiction.”                           Swilling
    v.   Swilling,    
    329 N.C. 219
    ,    225,    
    404 S.E.2d 837
    ,   841    (1991)
    (citation omitted).
    Here, Defendant filed his notice of appeal from the August
    order on 18 September 2012, before both the 24 September 2012
    hearing on Johanna’s second motion for contempt and entry of the
    October      order.      “[T]hus,       the     trial       court     [wa]s      without
    jurisdiction,     pending      the   appeal,     to        punish    the   husband    in
    contempt for failing to comply with the [order] appealed from
    and its findings and order to that effect are void.”                             Webb v.
    Webb,   
    50 N.C. App. 677
    ,      678,    
    274 S.E.2d 888
    ,   889    (1981)
    -23-
    (citations omitted).       Accordingly, we vacate the October order.
    Because   the    October   order    is   vacated,   we   need    not   address
    Defendant’s     argument   that    the   trial   court   erred   in    granting
    attorneys’ fees to Johanna in that order.
    AFFIRMED IN PART; VACATED IN PART.
    Judges GEER and ERVIN concur.
    Report per Rule 30(e).