Faught v. Faught , 67 N.C. App. 37 ( 1984 )

312 S.E.2d 504 (1984)

Donna Laper FAUGHT
v.
William Flener FAUGHT.

No. 8314DC353.

Court of Appeals of North Carolina.

March 6, 1984.

Maxwell, Freeman, Beason & Morano, P.A. by Homa J. Freeman, Jr. and James B. Maxwell, Durham, for plaintiff.

McCain & Essen by Grover C. McCain, Jr. and Jeff Erick Essen, Chapel Hill, for defendant.

WELLS, Judge.

We note at the outset that defendant has failed to include in his brief exceptions supporting his assignments of error, a violation of Rule 28(b)(5) of the Rules of Appellate Procedure. Such error normally constitutes an abandonment of the omitted exceptions, but we will consider defendant's arguments on the merits through our discretionary power under Rule 2 of the Rules of Appellate Procedure.

In defendant's first assignment of error, he contends that the trial judge erred in holding defendant in contempt for his failure to comply with earlier court orders, when defendant lacked the financial ability to comply. Defendant concedes that he had the financial ability to pay the monthly alimony payments under the 1979 court order, and willfully chose not to comply, resulting in an accrual of a large arrearage. Defendant contends, however, that he is unable to pay both the monthly alimony payments and the "catch-up" payments on the arrearage, ordered in both the 1981 and 1982 contempt orders. As there is nothing in the record to show that defendant has appealed from entry of the 1981 order, the only issue before us today is the validity of the judgment entered in June, 1982.

Defendant was found in contempt of court in 1982 under N.C.Gen.Stat. § 5A-11(a)(3) (1981) which provides that "[w]illful disobedience of ... a court's lawful ... order" constitutes criminal contempt. Failure to comply with a court order is not willful within the meaning of the statute, however, where a defendant does not possess the means to comply, Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966). In the case at bar, defendant contends that because the alimony payments and various catch-up payments totalled nearly 100 per cent of his monthly income, his failure to comply with the court's order was not willful within the meaning of the contempt statute.

Defendant overlooks a well-established line of authority which holds that a failure to pay may be willful within the meaning of the contempt statutes where a supporting spouse is unable to pay because he or she voluntarily takes on additional financial obligations or divests him or herself of assets or income after entry of the support order. See, e.g., Williford v. Williford, 56 N.C.App. 610, 289 S.E.2d 907 (1982) (supporting spouse took lower-paying job and applied salary to matters other than support obligations); Frank v. Glanville, 45 N.C.App. 313, 262 S.E.2d 677 (1980) (supporting spouse failed to take steps to obtain employment which would have enabled him to meet obligations); Bennett v. Bennett, 21 N.C.App. 390, 204 S.E.2d 554 (1974) (defendant spouse took lower paying job to avoid support obligations). A contrary rule would permit a supporting spouse to avoid his or her obligations by the simple means of expending assets as he or she pleased, and then pleading inability to pay support, thereby insulating him or herself from punishment by an order of contempt. Defendant's failure to comply with the alimony order was therefore willful within the meaning of G.S. § 5A-11(a)(3). Defendant's first assignment of error is overruled.

In his second argument, defendant contends that the trial judge erred by increasing instead of decreasing the alimony payments, because plaintiff had willfully failed to contribute to her own support. The trial judge found as facts that plaintiff had attempted to find work as a teacher and had held several teaching and clerical jobs and there is ample evidence to support these findings of fact. Defendant argues, however, that before ordering an increase in alimony the trial judge should have considered whether plaintiff had sought non-teaching jobs for which she might be qualified. Defendant has not based this argument upon any assignment of error or exception in the record, and he may not raise it for the first time on appeal. Rule 10(a) of the Rules of Appellate Procedure. Defendant's assignment of error is overruled.

In his third assignment of error, defendant contends that there was insufficient evidence from which the trial judge could have found and concluded that plaintiff's monthly living expenses had risen from $1,542.00 per month in 1979 to $1,901.62 in 1982. In the 1979 order the trial court found plaintiff's reasonable financial needs to be $1,542.00 per month, but ordered defendant to pay only $1,260.00 per month in alimony. In the 1982 order, the trial court found plaintiff's current needs to be $1,901.62 per month, but ordered payments of $1,149.00 per month. Thus, the 1982 order requires defendant to pay a sum less than the reasonable needs of plaintiff conclusively established in the 1979 order. Defendant has shown no harm from these findings and conclusions. Furthermore, our review of the record persuades us that the evidence in this hearing supports the trial court's findings and conclusions as to plaintiff's present needs. On appeal, a reviewing court must affirm the findings of the court below where there is competent evidence to support them, Williams v. Insurance Co., 288 N.C. 338, 218 S.E.2d 368 (1975), Harrelson v. Insurance Co., 272 N.C. 603, 158 S.E.2d 812 (1968).

In his fourth assignment of error, defendant contends that the trial judge did not have the authority to compel defendant to execute an assignment of his United States Army retirement benefits and wages received from South Brunswick High School. Defendant has waived the portion of his assignment of error dealing with the assignment of his wages from South Brunswick High School by failing to support his contention with legal arguments in his brief. Rule 28(b)(5) of the Rules of Appellate Procedure.

Under 10 U.S.C. § 1408 (1983), the Uniform Services Former Spouses' Protection Act, a supporting spouse's military retirement pay may be assigned to a dependent spouse under a valid court order. Although the federal statute became effective 1 February 1983, after the filing of the trial judge's order in the case at bar, it is clear that the federal act is to be applied retroactively to 26 June 1981, 10 U.S.C. § 1408(c)(1), Smith v. Smith, 458 A.2d 711 (Del.Fam.Ct.1983), In re Marriage of Hopkins, 191 Cal. Rptr. 70, 142 Cal. App. 3d 350 (1983).

Defendant contends, however, that even if the federal statute applies, the act cannot come into play until service upon the Secretary of the Army with a valid court order assigning defendant's military benefits. Defendant misconstrues the plain language of 10 U.S.C. § 1408(d)(1), which provides that service of a valid court order upon the proper military official is required to permit payment to the dependent spouse. There is nothing in the federal act which deprives the trial judge of authority to order an assignment of benefits until notice is served upon the Secretary.

Defendant's assignment of error is overruled, and the trial judge's order is

Affirmed.

BRASWELL and PHILLIPS, JJ., concur.