Groseclose v. Groseclose ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-950
Filed 5 December 2023
Mecklenburg County, No. 15 CVD 17121
JENNIFER GROSECLOSE, Plaintiff/Mother,
v.
ALAN GROSECLOSE, Defendant/Father.
Appeal by defendant from order entered 16 December 2021 by Judge Tracy H.
Hewett in Mecklenburg County District Court. Heard in the Court of Appeals 5
September 2023.
James, McElroy & Diehl, P.A., by Preston O. Odom, III, Haley E. White, and
Kristin J. Rempe, for plaintiff-appellee.
Wofford Burt, PLLC, by J. Huntington Wofford and Rebecca B. Wofford, for
defendant-appellant.
ZACHARY, Judge.
Defendant Alan Groseclose (“Father”) appeals from the trial court’s order
denying his motion for modification of permanent child support and permanent
alimony, and granting Plaintiff Jennifer Groseclose’s (“Mother”) motion for contempt.
After careful review, we affirm in part and remand for additional findings of fact and
conclusions of law.
I. Background
Mother and Father were married in 2000, separated in 2014, and divorced
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thereafter. One child was born of the marriage. On 3 December 2015, the trial court
entered a temporary support order addressing postseparation support and child
support (together, “temporary support”). The court ordered Father to pay:
$726.37 per month in ongoing temporary child support; . . .
$11,848.52 in child support arrears at the rate of $300.00
per month; . . . $400.00 per month in ongoing
postseparation support; . . . $800.00 in postseparation
support arrears at the rate of $100.00 per month; and . . .
$7,444.50 in attorney’s fees to [Mother]’s counsel at the
rate of $200 per month.
Father filed his first motion to modify 20 days later, alleging that he suffered
a substantial decrease in income and seeking a reduction in his temporary support
obligations. Father was then late in paying his temporary support and attorney’s fees
for several months of 2016, and failed to make any payments in October, November,
or December of that year. Mother filed her first motion for contempt. On 3 January
2017, the trial court entered a permanent support order, denying Father’s motion to
modify, granting Mother’s motion for contempt, and ordering Father to pay
$2,579 in temporary support arrears and $600 in attorney’s
fees obligations; . . . $803.61 per month in permanent child
support; . . . $1,000 per month in alimony until December
30, 2020; and . . . $18,000 in attorney’s fees at the rate of
$225 per month until paid in full.
Father filed two more motions to modify his support obligations in 2017, while
the parties’ equitable distribution action reached its conclusion. On 19 September
2017, the trial court entered its equitable distribution order, awarding Mother “a
distributive award of $158,141.00 [payable by Father] at a rate of $1,000 per month
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until paid in full in order to achieve an equal distribution of the marital estate.” The
trial court made a finding of fact that Father “had the ability to pay such a
distributive award.”
On 3 December 2018, Father filed his fourth motion to modify, again alleging
a substantial decrease in his income and requesting that the trial court reduce his
child support and alimony obligations. On 18 June 2020, Mother filed another motion
for contempt, alleging that Father had failed to pay his child support, alimony,
attorney’s fees, and distributive award payments.
On 12 February and 3 March 2021, the parties’ motions came on for hearing in
Mecklenburg County District Court. On 16 December 2021, the trial court entered an
order denying Father’s motion to modify and granting Mother’s motion for contempt.
The trial court also ordered Father to pay Mother an additional sum in
reimbursement for her attorney’s fees. On 14 January 2022, Father timely filed notice
of appeal.
II. Discussion
Father argues that the trial court erred by denying his motion to modify his
child support and alimony obligations and by granting Mother’s motion for contempt.
A. Modification of Child Support and Alimony
Father first contends that the trial court abused its discretion by denying his
motion for modification “where the findings of fact supported changed
circumstances[,]” namely, “an involuntary decrease in [Father’s] income” and
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Father’s persistent health concerns. We do not find Father’s arguments as to this
issue to be persuasive. Father also argues that the trial court’s “findings of fact lacked
detail to support the finding” of his actual monthly income. On this issue, we agree
and remand for additional findings of fact.
1. Standard of Review and Applicable Legal Principles
Generally, the amount of child support and alimony is “left to the sound
discretion of the trial judge and will not be disturbed on appeal unless there has been
a manifest abuse of that discretion.” Shirey v. Shirey, 267 N.C. App. 554, 559, 833
S.E.2d 820, 824 (2019) (citation omitted), disc. review denied, 376 N.C. 675, 853
S.E.2d 159 (2021). “A trial court abuses its discretion when it renders a decision that
is manifestly unsupported by reason or one so arbitrary that it could not have been
the result of a reasoned decision.” Id. at 560, 833 S.E.2d at 825 (cleaned up).
“When the trial court sits without a jury, the standard of review on appeal is
whether there was competent evidence to support the trial court’s findings of fact and
whether its conclusions of law were proper in light of such facts.” Id. at 559–60, 833
S.E.2d at 824–25 (citation omitted). “When the trial judge is authorized to find the
facts, [its] findings, if supported by competent evidence, will not be disturbed on
appeal despite the existence of evidence which would sustain contrary findings.” Kelly
v. Kelly, 228 N.C. App. 600, 605, 747 S.E.2d 268, 275 (2013) (citation omitted). While
“the trial court need not recite all of the evidentiary facts[,]” it still “must find those
material and ultimate facts from which it can be determined whether the findings
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are supported by the evidence and whether they support the conclusions of law
reached.” Id. at 606–07, 747 S.E.2d at 276 (citation omitted). We review de novo the
trial court’s conclusions of law. Shirey, 267 N.C. App. at 560, 833 S.E.2d at 825.
An order for child support or alimony may be modified “upon motion in the
cause and a showing of changed circumstances by either party[.]” N.C. Gen. Stat.
§§ 50-13.7(a), -16.9(a) (2021). The movant bears the burden of showing a change of
circumstances in order to modify either child support or alimony. Thomas v. Thomas,
134 N.C. App. 591, 592, 518 S.E.2d 513, 514 (1999) (child support); Britt v. Britt, 49
N.C. App. 463, 470, 271 S.E.2d 921, 926 (1980) (alimony).
In both contexts, the change of circumstances must be substantial. For
example, for the purposes of modifying alimony, this Court has made clear that
not any change of circumstances will be sufficient to order
modification of an alimony award; rather, the phrase is
used as a term of art to mean a substantial change in
conditions, upon which the moving party bears the burden
of proving that the present award is either inadequate or
unduly burdensome.
Britt, 49 N.C. App. at 470, 271 S.E.2d at 926. Meanwhile, the “modification of a child
support order involves a two-step process. The court must first determine a
substantial change of circumstances has taken place; only then does it proceed to
apply the [Child Support] Guidelines to calculate the applicable amount of support.”
McGee v. McGee, 118 N.C. App. 19, 26–27, 453 S.E.2d 531, 536 (emphasis added),
disc. review denied, 340 N.C. 359, 458 S.E.2d 189 (1995).
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2. The Trial Court’s Findings of Fact
In its order, the trial court made the following pertinent findings of fact
regarding the lack of a substantial change of circumstances for the purposes of
modifying child support and/or alimony:
23. The Court does not find that there has been a
substantial change in circumstances such that
permanent child support or alimony should be
modified.
24. In the January 3, 2017 Permanent Support Order,
the Court found as follows:
a. [Mother]’s income from her full-time job at
Calvary Church is $2,594.73 gross per month
and $1,974.45 net per month.
b. Two-thirds (2/3) of [Mother]’s shared family
expenses should be attributed to [Mother].
Thus, [Mother]’s portion of the shared family
expenses is $1,699.90 per month.
c. [Mother]’s monthly individual expenses are
$1,493.83.
d. [Mother]’s total monthly needs and expenses
are $3,193.73, plus her child support
obligation of $305.89 pursuant to the North
Carolina Child Support Guidelines.
e. [Mother] has a monthly shortfall in excess of
$2,300.
f. [Father]’s testimony regarding his income
was not credible.
g. [Father]’s income from employment is
$6,067.90 gross per month.
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h. [Father] received money from friends to help
him pay his living expenses and attorney’s
fees in the average amount of $750 per month.
[Father] testified that this monetary support
from friends was a “loan” or series of “loans.”
However, [Father] failed to present any
evidence to support his contention that the
additional monetary support were loans.
i. [Father]’s portion of the shared family
expenses is $1,740.95 per month. [Father]’s
individual expenses are $583.00 per month.
[Father]’s total monthly needs and expenses
are $2,323.95, plus his child support
obligation of $803.61.
j. After mandatory deductions listed on his
paystub, [Father]’s total monthly net income
is $6,273.26. After subtracting his total
monthly needs and expenses and his child
support obligation, [Father] has a monthly
surplus of $3,145.70.
25. The Permanent Support Order awarded [Mother]
monthly alimony of $1,000 per month for a period of
five (5) years or sixty (60) months.
26. [Father]’s current Fourth Motion to Modify was filed
on December 3, 2018 after he became unemployed
due to his employer in Virginia Beach, Virginia
changing management or otherwise reorganizing
such that the “last in was the first out” and [Father]
was the “last in.” The Court does not find that
[Father]’s income changed substantially at that time
as he received unemployment benefits, severance
pay, and his living expenses were paid by his sister.
Additionally, [Father] began receiving financial
assistance from his girlfriend . . . in 2018. The Court
acknowledges and finds as fact that when [Father]
was employed in Virginia Beach, he paid his court-
ordered obligations.
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27. In April 2019, [Father] moved in with [his girlfriend]
and continued living a lifestyle with no substantial
economic difference, except the majority of his
income came from [his girlfriend] by way of her
payment of his living expenses and alleged “loans,”
which this Court finds were actually regular,
recurring gifts and not loans.
28. The Court does not find that either of the “loans”
evidenced by promissory notes signed by [Father]
and [his girlfriend] are truly loans for the following
reasons:
a. Though the terms call for payments to begin,
no payments have ever been made, despite
the fact that [Father] had voluntary
deductions totaling $1,093.31 from his Lowe’s
pay which would have covered either or both
of the “loan” payments cited in the promissory
notes.
b. [Father] has experience with the courts such
that he knew that he would need to have
evidence that money given to him is to be paid
back (i.e., a loan) and therefore, he attempted
to create evidence of such.
c. Despite his experience with the courts,
[Father] never disclosed any other gifts paid
on his behalf, nor that he lived with [his
girlfriend], and had access to her bank
account via his own debit card attached to
that account, despite being asked in
discovery.
d. During his testimony, [Father] cited his
advanced age (64 years old), his poor health
(which he also cited 4 years ago at the
equitable distribution trial), his inability to
secure a better paying job, no savings, no
property, no investments, and little credit
available. Accordingly, the Court finds that
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[Father] and [his girlfriend] could not, in good
faith, have signed the promissory notes
setting forth 5 and 10 year terms for
repayment and intended that [Father] would
repay the loans according to the terms in the
promissory notes.
e. The loans are unsecured with no penalty for
non-payment or late payment.
f. The loan documents and promissory notes
were prepared just prior to the deadline for
the filing of Financial Affidavits, wherein the
parties are required to disclose debts and
provide documentation evidencing such debts.
g. See Lowe v. Lowe, 2005 N.C. App. LEXIS 1025(2005), which provides that loans from close
family members should be closely scrutinized
for legitimacy and failure to make payments
on loans for several years when funds are
available to do so is evidence that the loans
are illusory. The alleged “loans” from
[Father’s girlfriend] to [Father] do not pass
such scrutiny and the evidence shows that the
“loans” are illusory.
29. In addition to the purported “loans” from [Father’s
girlfriend] (which the Court finds were not loans at
all, but were gifts which should be included in
[Father]’s income) almost all of [Father]’s living
expenses were either paid directly by [his girlfriend]
or by the authorized use of her bank account and
debit card.
....
32. [Father] has a cavalier and entitled attitude toward
money that became apparent though his testimony
and actions, including, but not limited to:
a. When questioned about his failure to pay
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support to [Mother], [Father] responded: “If I
pay her, I can’t pay something else.”
b. [Father]’s Financial Affidavit listed voluntary
deductions from his paycheck totaling
approximately $1,093.31 per month. [Father]
listed a monthly garnishment of $568.90 on
his Financial Affidavit, and he testified that
the garnishment had been satisfied in
January 2021, prior to the filing of his verified
Financial Affidavit.
c. [Father] spent significant amounts of money
on alcohol and shopping at higher end grocery
stores and gourmet shops.
d. The last entry in [Father]’s job search log was
May 6, 2019. [Father] has not continued to
search for higher paying employment in line
with his skills and abilities.
e. [Father]’s Financial Affidavit states that his
average monthly net income is $640.38 and
his monthly needs and expenses are
$1,921.31. [Father]’s statement that “no one
can live on $640.38 per month” further
demonstrates his attitude of entitlement to a
certain lifestyle.
f. [Father] took a 6 week leave of absence from
his job at Lowe’s because he “thought” he had
COVID. Notably, this was right around the
same time that [Father] received a tax refund.
g. The Court previously found that [Father]
incorporated and ran several coin businesses,
and that fact has not changed. In fact,
[Father]’s most recent well-paid employment
was in the coin business.
h. [Father] earned his real estate license, which
is a difficult undertaking. This demonstrates
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to the Court that even if [Father] was unable
to sell houses and subsequently let his real
estate license lapse, that he has the ability to
earn more than he is earning at his current
job.
i. The history of this case shows that [Father]
did not make any support payments to
[Mother] until he was court ordered to do so.
j. [Father] has filed multiple motions to modify
support and there have been multiple motions
for contempt filed against him. [Mother] has
prevailed on her motions for contempt.
[Father]’s motions to modify support have
either been voluntarily dismissed by [Father]
or denied by the Court.
k. Prior Court Orders have found as a fact that
[Father] is not entirely credible.
l. [Father]’s actions show a pattern of
fluctuating income but a consistent relatively
high standard of living.
33. At present, the Court finds [Father]’s gross monthly
income to be $6,526.18 per month. This is comprised
of (a) $2,355.43 from Lowe’s; (b) $2,758.75 from
monetary “loans” from [his girlfriend], which the
Court finds to be gift income; (c) $1,412 from
additional regular, recurring gifts by way of [his
girlfriend] paying [Father]’s living expenses, directly
and through [Father]’s use of her bank account.
After mandatory deductions set forth on [Father]’s
paystub, [Father]’s net monthly income is $5,904.44.
This income is [Father]’s actual income from all
sources. The Court does not find bad faith such that
it will impute income to [Father].
34. At present, the Court finds that [Father]’s shared
monthly expenses are $500 per month that he pays
to [his girlfriend]. [Father]’s individual expenses are
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$71.00 per month. Additionally, his court ordered
obligations including a monthly child support
obligation of $803.61, the Equitable Distributive
award of $1,000 per month, and attorney’s fees
payment of $225.00 per month. [Father]’s monthly
expenses total $2,599.61, leaving him a monthly
surplus of $3,304.83. [Father] therefore has the
ability to pay $1,000 each month in alimony.
....
37. [Mother] has a monthly shortfall of $1,027.52. Her
current monthly shortfall is lower than what the
Court found in the January 3, 2017 Permanent
Support Order and approximately 2.8% more than
the amount of alimony that was originally ordered
in the Permanent Support Order.
38. The Court finds that [Mother] had no choice but to
reduce her personal expenses in November 2018
when [Father] unilaterally began paying only $50
per month toward his alimony obligation, which is
only 5% of the court-ordered amount. After [Father]
reduced his support payments, [Mother] took on a
temporary part-time job as a delivery driver for Uber
Eats for a few months to help make ends meet. The
Court does not consider [Mother]’s temporary
income for these calculations.
....
Alimony
41. This Court considered two possible calculations for
alimony, neither of which the Court finds to be a
substantial change in circumstances such that
alimony should be modified.
42. For both calculations, the Court used [Father]’s
income as set forth above.
a. The first calculation is based on [Mother]
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receiving the entire distributive award
payment of $1,000 per month from [Father].
[Mother]’s monthly income is $3,744.27 when
she receives the entire $1,000 distributive
award payment. [Mother]’s reasonable
monthly expenses of $2,861.89, plus her
monthly child support obligation of $442.60,
equals $3,304.49. In this scenario, there is no
shortfall, but only a slim $347 per month left
over after her expenses. This Court finds that
alimony of $1,000 per month would still be
awarded and appropriate. This Court is
constrained from reconsidering dependency
that was already established by the
Permanent Support Order. See Cunningham
v. Cunningham, 345 N.C. 430, 480 S.E.2d 403(1997). The Court considers the following:
i. [Father]’s marital misconduct, i.e.,
abandonment, under N.C.G.S. § 50-16.3A
according to the Permanent Support
Order, Finding of Fact No. 19, “[Father]
moved to Hawaii without informing
[Mother] or the minor child of his
intentions or whereabouts,” which left
[Mother] without any financial support
([Father] did, however, leave her with
debt) or even knowledge as to where
[Father] was living;
ii. The extent to which the earning power,
expenses, or financial obligations of a
spouse will be affected by reason of serving
as the custodian of the minor child; and
iii. That the standard of living during the
marriage was significantly higher than
the modest $2,861.89 cited in [Mother]’s
Financial Affidavit, which is the result of
[Mother] being forced to reduce her
expenses from the standard of living she
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enjoyed during her marriage.
b. The second calculation is based on [Father]
only paying a fraction of the distributive
award payment. Since November 1, 2018,
[Father] has only been paying $50 (or 5%) of
the distributive award payment such that
[Mother]’s income for alimony purposes would
only be increased by $50 per month, which
results in a shortfall of $997.52, which is
approximately 3% less than what is currently
ordered in the Permanent Support Order.
43. [Father] has failed to show a substantial change in
circumstances such that his alimony obligation
should be modified.
Child Support
44. The Court considered [Mother]’s income including
the $1,000 per month alimony payment and the
$1,000 distributive award payment (even though she
has not been receiving the court-ordered amounts of
those payments since November 2018) and
determined that the calculation does not result in a
15% or more decrease to [Father]’s child support
obligation.
a. [Father]’s gross monthly income is $6,526.18.
If the $1,000 monthly alimony payment is
added to [Mother]’s gross income for child
support purposes, the North Carolina Child
Support Guidelines have her child support
obligation at $442.60. [Father]’s child support
obligation would be $771.44 which is
approximately only 4.2% lower than the
current ordered amount of $803.61.
b. If the Court adds both the $1,000 monthly
alimony payment and the $1,000 distributive
award payment to [Mother]’s gross income,
her child support obligation would be $552.30.
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[Father]’s child support obligation would be
$759.74 which is approximately 5.8% lower
than the current ordered amount of $803.81.
c. If the Court considers what [Mother] has
actually received since November 1, 2018 (i.e.,
$50 in monthly alimony and $50 in monthly
distributive award payments), her gross
income would be $2,844.27, which results in a
child support obligation of $453.38. [Father]’s
child support obligation would be $818.22,
which is approximately 2% higher than the
court ordered amount of $803.81.
45. [Father] failed to present evidence of a substantial
change in circumstances sufficient to justify a
downward modification of his alimony obligation
and permanent child support obligation and his
Motion to Modify should be denied.
3. Substantial Change of Circumstances
Father first argues that the trial court erred by failing to find a substantial
change of circumstances where he met his burden of showing such a change “based
on an involuntary decrease in his income.” As Father notes, it is undisputed that he
“lost his job in October 2018, and then remained unemployed until he found a new
job paying significantly less than he earned prior to his unemployment.” Father
contends that he suffered “a decrease of more than 60% from his income from
employment when the Support Order was entered. Such a decrease in income is
clearly substantial and should have been sufficient for the trial court to find a
substantial change in circumstances and to modify [his] support obligation.”
However, this Court has repeatedly recognized that “[t]he fact that a husband’s
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salary or income has been reduced substantially does not automatically entitle him
to a reduction” of either child support or alimony. Wolf v. Wolf, 151 N.C. App. 523,
526, 566 S.E.2d 516, 518 (2002); see also Britt, 49 N.C. App. at 470, 271 S.E.2d at 926(“[A] conclusion of law that there has been a substantial change of circumstances
based only on income is inadequate and in error.”). “There cannot be a conclusion of
substantial change in circumstances based solely on change in income. The overall
circumstances of the parties must be compared with those at the time of the award.”
Patton v. Patton, 88 N.C. App. 715, 719, 364 S.E.2d 700, 703 (1988) (citation omitted).
In the instant case, the trial court made that comparison and determined that Father
failed to show a substantial change of circumstances.
Father primarily contends that “[t]he trial court improperly made findings of
fact under a capacity to earn analysis and then made an inconsistent ultimate finding
of fact that [its] analysis was based on” his “actual income[.]” This assertion is
misplaced.
“The trial court may refuse to modify support and/or alimony on the basis of
an individual’s earning capacity instead of his actual income when the evidence
presented to the trial court shows that a husband has disregarded his marital and
parental obligations . . . .” Wolf, 151 N.C. App. at 526, 566 S.E.2d at 518. “When the
evidence shows that a party has acted in ‘bad faith,’ the trial court may refuse to
modify the support awards. If a husband has acted in ‘good faith’ that resulted in the
reduction of his income, application of the earnings capacity rule is improper.” Id. at
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527, 566 S.E.2d at 519 (citation omitted).
Father specifically highlights those portions of the trial court’s finding of fact
32 that seem to address his “intent with regard to income and spending money” to
argue that the trial court improperly conducted an earning-capacity analysis, despite
its seemingly contradictory finding that Father had not acted in bad faith.
“[H]owever, the trial court never reached the step of calculating [Father]’s child
support [or alimony] obligation, since the trial court found no change of circumstances
warranting a modification of [his] current obligation. Therefore, [Father]’s discussion
of the earning capacity rule is incorrect.” Armstrong v. Droessler, 177 N.C. App. 673,
677–78, 630 S.E.2d 19, 22 (2006).
Rather than conducting an earning-capacity analysis, the trial court’s
extensive findings concerning Father’s “cavalier and entitled attitude toward money”
provide an illustrative context for the trial court’s finding that Father “continued
living a lifestyle with no substantial economic difference, except the majority of his
income came from” his girlfriend. Indeed, the final two paragraphs of finding of fact
32, which Father does not specifically challenge in his appellate brief, state that
Father “is not entirely credible” and that his “actions show a pattern of fluctuating
income but a consistent relatively high standard of living.”
We conclude that “[i]n the present case, the trial court did not impute income
to [Father] as a result of voluntary unemployment or underemployment, but rather
was merely attempting to determine what [Father] actually earned in [2021].
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Consequently, the law of imputation is inapplicable.” Diehl v. Diehl, 177 N.C. App.
642, 650, 630 S.E.2d 25, 30 (2006).
4. Calculation of Father’s Income
Father next complains that the trial court “did not use [his] actual income as
a basis for the calculation of his income.” First, the North Carolina Child Support
Guidelines explicitly state that a parent’s income includes “gifts . . . or maintenance
received from persons other than the parties to the instant action.” N.C. Child
Support Guidelines, at 3 (2019).
When income is received on an irregular, non-recurring, or
one-time basis, the court may average or prorate the
income over a specified period of time or require an obligor
to pay as child support a percentage of his or her non-
recurring income that is equivalent to the percentage of his
or her recurring income paid for child support.
Id. Additionally, this Court has observed that “[t]here appears to be no good reason
to employ a different definition of income for the purposes of a child support award
than for an alimony award.” Glass v. Glass, 131 N.C. App. 784, 788, 509 S.E.2d 236,
239 (1998).
Mother submits in her brief on appeal that the facts of this case resemble those
of Onslow County v. Willingham, in which the defendant-father testified that a female
“friend” with whom he shared a joint bank account “contributed about $800.00 per
month into the joint [bank] account and that she had been giving him this financial
assistance in the form of a loan for about three months.” 199 N.C. App. 755, 687
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S.E.2d 541, 2009 WL 2929305, at *5 (2009) (unpublished).1 The trial court, however,
did not find the defendant-father’s “assertion that said deposits were loans to be
credible[,]” and this Court recognized that the trial court “was not bound to accept
[the defendant-father’s] assertion that any of the recurring, financial assistance
provided to him was in the form of loans.” Id. Indeed, the defendant-father “did not
produce any documentation or other evidence to show that these deposits were loans.”
Id., at *6. Therefore, we concluded that “[i]n accordance with the Guidelines, these
deposits could be classified as ‘gifts’ or ‘maintenance received from persons other than
the parties to the instant action.’ ” Id.
Although an unpublished decision of this Court, and therefore not binding
authority, we find our previous decision in Willingham to be persuasive in guiding
our analysis of the trial court’s findings in the case at bar. As quoted above, the trial
court found that the “alleged ‘loans’ . . . were actually regular, recurring gifts and not
loans[,]” and made extensive findings of fact as to why it did “not find that either of
the ‘loans’ evidenced by promissory notes signed by [Father] and [his girlfriend]
[we]re truly loans.” Just as in Willingham, the trial court’s findings support its
conclusion that these “alleged ‘loans’ ” were properly classified as income to Father.
Moreover, as in Willingham, the trial court here concluded that Father’s testimony
1 Although unpublished opinions do not have precedential value, “an unpublished opinion may
be used as persuasive authority at the appellate level if the case is properly submitted and discussed
and there is no published case on point.” Zurosky v. Shaffer, 236 N.C. App. 219, 234, 763 S.E.2d 755,
764 (2014).
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was not credible, a determination by which this Court is bound. See Asare v. Asare,
281 N.C. App. 217, 243, 869 S.E.2d 6, 25 (2022) (“The trial court is the sole judge of
the credibility and weight of the evidence.”).
5. Father’s Health
Father also argues that “[t]he trial court failed to consider [his] health” in
denying his motion to modify. Father cites this Court’s opinion in Kelly in support of
his contention that “[w]orsening health, although not automatically a changed
circumstance, must be considered in a modification proceeding as it may affect the
obligor’s ability to earn income or be reason for a decline in income.” However, as
Father acknowledges, “the relevance of [the Kelly] defendant’s medical condition was
his claim that it was contributing to his reduction in income” and yet, in Kelly, “the
trial court found that his income was not substantially reduced.” 228 N.C. App. at
611, 747 S.E.2d at 278. The trial court in this case similarly did not find that Father’s
income was substantially reduced, “and thus the trial court did not err in not making
detailed findings as to [Father]’s health.” Id.
In sum, the trial court did not err by determining that Father’s decrease in
income from employment alone was not sufficient to show a substantial change of
circumstances; finding that Father’s actual income included the gift income from his
girlfriend; or declining to make detailed findings as to Father’s health.
6. Sufficiency of the Findings of Fact
Nonetheless, while “the trial court need not recite all of the evidentiary facts[,]”
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it still “must find those material and ultimate facts from which it can be determined
whether the findings are supported by the evidence and whether they support the
conclusions of law reached.” Id. at 606–07, 747 S.E.2d at 276 (citation omitted).
“There are two kinds of facts: Ultimate facts, and evidentiary facts. Ultimate
facts are the final facts required to establish the plaintiff’s cause of action or the
defendant’s defense; and evidentiary facts are those subsidiary facts required to prove
the ultimate facts.” Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982)
(citation omitted), superseded in part on other grounds, N.C. Gen. Stat. § 50-13.4(f)(9)
(1983).
[W]hile Rule 52(a) does not require a recitation of the
evidentiary and subsidiary facts required to prove the
ultimate facts, it does require specific findings of the
ultimate facts established by the evidence, admissions and
stipulations which are determinative of the questions
involved in the action and essential to support the
conclusions of law reached.
Id. at 452, 290 S.E.2d at 658. Our Supreme Court has explained that this requirement
is not a formality, but rather is essential to the process of appellate review:
The purpose of the requirement that the court make
findings of those specific facts which support its ultimate
disposition of the case is to allow a reviewing court to
determine from the record whether the judgment—and the
legal conclusions which underlie it—represent a correct
application of the law. The requirement for appropriately
detailed findings is thus not a mere formality or a rule of
empty ritual; it is designed instead to dispose of the issues
raised by the pleadings and to allow the appellate courts to
perform their proper function in the judicial system.
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Id. (cleaned up).
Father contends that the trial court’s “findings of fact lacked detail to support
the finding” that Father’s actual gross income was $6,526.18 per month. For example,
Father argues that “the trial court did not make findings that would allow this [C]ourt
to see how the trial [court] calculated the ultimate monthly amount of $1,412.00” in
“regular, recurring gifts[.]” Although we have concluded that the trial court did not
err in determining that Father’s actual gross income included this gift income, and
the record amply supports the trial court’s determinations as to what to include or
not to include in calculating Father’s actual gross income, we agree with Father that
the trial court’s findings of fact leave us unable to determine precisely how it
calculated Father’s actual gross income.
“The findings of fact should address . . . how [the trial court] calculated
[Father’s actual] gross income based upon its consideration of the evidence
presented.” Craven Cty. ex rel. Wooten v. Hageb, 277 N.C. App. 586, 590, 861 S.E.2d
571, 574–75 (2021). Accordingly, because we cannot determine how the trial court
used the evidence presented to calculate Father’s actual gross income, we remand for
additional findings of fact concerning this issue.
B. Contempt
Father further argues that “[t]he trial court erred in holding [him] in contempt
of court based on an ultimate conclusion that he has at all times had the ability to
comply, but not making findings of fact supported by the evidence that he had the
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ability to comply during the specific time periods at issue.”
The trial court found as fact that Father was in substantial compliance with
his child support obligation, but that he “has willfully failed to pay his court ordered
financial obligations as to alimony, equitable distribution distributive award, and
attorney’s fee award, and is therefore in civil contempt.” The trial court also found
that Father “has, at all times, been fully aware of the Permanent Support [and
Equitable Distribution] Order[s], has had full knowledge and understanding of the
requirements of the Order[s], and has had the ability to comply with the Order[s].”
The court determined that Father’s failure to comply with those orders “is willful,
wanton, deliberate, without justification, and constitutes a civil contempt of Court[,]”
and set the following purge conditions:
a. In addition to his ongoing obligations to pay
prospective alimony, attorney’s fee award payments,
and distributive award payments, [Father] shall pay
arrears to [Mother] as follows:
i. $5,000 within thirty (30) days of the entry
of this Order;
ii. $5,000 within sixty (60) days of the entry
of this Order;
iii. $5,000 within ninety (90) days of the entry
of this Order;
iv. $5,000 within one hundred and twenty
(120) days of the entry of this Order.
b. After payment of $20,000 as set forth above, [Father]
will owe $43,184.50 in arrears as of September 30,
2021. Beginning on the first (1st) day of the first (1st)
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month after the last $5,000 payment is due as set
forth above, [Father] shall continue paying $2,500
per month towards his arrears until paid in full.
c. [Father] shall pay to [Mother] the sum of $17,919.15
as attorney’s fees. The Court will hold a hearing at a
later date to determine a payment schedule for
[Father]’s payment of attorney’s fees once he has
satisfied his arrearages as set forth above.
1. Standard of Review
Appellate review of “contempt proceedings is limited to whether there is
competent evidence to support the findings of fact and whether the findings support
the conclusions of law.” Adkins v. Adkins, 82 N.C. App. 289, 292, 346 S.E.2d 220, 222
(1986). “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.” Hartsell v.
Hartsell, 99 N.C. App. 380, 385, 393 S.E.2d 570, 573, appeal dismissed in part and
disc. review denied in part, 327 N.C. 482, 397 S.E.2d 218 (1990), aff’d per curiam, 328
N.C. 729, 403 S.E.2d 307 (1991).
2. Ability to Pay
It is well established that “the trial court cannot hold a defendant in contempt
unless the court first has sufficient evidence to support a factual finding that the
defendant had the ability to pay, in addition to all other required findings to support
contempt.” Cty. of Durham ex rel. Wilson v. Burnette, 262 N.C. App. 17, 22, 821 S.E.2d
840, 846 (2018) (citation omitted), aff’d per curiam, 372 N.C. 64, 824 S.E.2d 397- 24 -
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(2019). Father compares this case to Burnette, in which the defendant “presented
substantial evidence regarding his medical condition, his minimal living expenses,
and his lack of income[,]” but the plaintiff “presented no evidence other than the
amount of arrears owed, including any evidence regarding [the] defendant’s ability to
work, income, potential income, or assets.” Id. at 23, 821 S.E.2d at 846. Father asserts
that he similarly “presented evidence of his inability to pay and it was not refuted by”
Mother; according to Father, “[t]he trial court’s finding are, in essence, that she did
not believe what he was saying to be true, but this is insufficient.”
Indeed, it is axiomatic that “the trial court is the sole judge of credibility and
weight of the evidence[.]” Id. Nonetheless, “although the trial court could find [the]
defendant’s evidence not to be credible, this does not create evidence for [the] plaintiff.
The absence of evidence is not evidence.” Id. (emphasis omitted). Therefore, the
Burnette Court concluded that “even if the trial court determined not one word of [the
defendant’s evidence] to be true, we are then left with no evidence from [the] plaintiff
other than the amount owed.” Id.
However, Father’s reliance on Burnette is misplaced. Unlike the facts
presented in Burnette, Father’s own evidence in the case at bar evinces his ability to
pay. Here, the trial court found as fact that Father’s “Financial Affidavit listed
voluntary deductions from his paycheck totaling approximately $1,093.31” and that
despite a “pattern of fluctuating income” Father has maintained “a consistent
relatively high standard of living.” Further, the trial court noted that Father “spent
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significant amounts of money on alcohol and shopping at higher end grocery stores
and gourmet shops,” evidencing his “cavalier and entitled attitude toward money[.]”
These findings are supported by competent evidence in the record, and in turn
support the trial court’s conclusion that Father had the ability to pay for the purposes
of civil contempt. Adkins, 82 N.C. App. at 292, 346 S.E.2d at 222.
“Given the extensive evidence presented and findings made regarding
[Father]’s income and expenses, we hold that the trial court’s finding on present
ability to pay is adequate.” Gordon v. Gordon, 233 N.C. App. 477, 483, 757 S.E.2d
351, 355 (2014). Accordingly, the trial court’s conclusion that Father is in contempt
is affirmed.
3. Purge Conditions
Finally, Father argues that the trial court’s “findings of fact are insufficient to
warrant the purge conditions” because there was no showing that he had the present
ability to satisfy the purge conditions. We agree, and remand for the trial court to
consider this issue.
“To justify conditioning [a] 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
[the] defendant has the present ability to pay those arrearages.” Tigani v. Tigani, 256
N.C. App. 154, 160, 805 S.E.2d 546, 551 (2017) (citation omitted); see also Burnette,
262 N.C. App. at 38–39, 821 S.E.2d at 856 (remanding for additional findings of fact
and conclusions of law, including conclusion as to the defendant’s “present ability to
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pay the full amount of any purge payments ordered”); Bishop v. Bishop, 90 N.C. App.
499, 502, 369 S.E.2d 106, 108 (1988) (“Since the instant order allows [the] defendant
to purge his contempt by paying the entire $2,230 arrearage, the trial court would . . .
be required to conclude [that the] defendant had the [present] ability . . . to pay the
entire $2,230 arrearage in order to hold him in civil contempt.”).
In the present case, although the trial court made sufficient findings of fact
regarding Father’s ability to pay his court-ordered support obligations, it failed to
make a conclusion of law that he had the present ability to satisfy the purge
conditions that it imposed. Accordingly, we must remand for the entry of a new order
“including the required findings of fact . . . and conclusions of law for [Father’s]
present ability to pay the full amount of any purge payments ordered. The trial court
may, in its discretion, receive evidence on remand.” Burnette, 262 N.C. App. at 38–
39, 821 S.E.2d at 856. “On remand, if the trial court holds [Father] in civil contempt,
new evidence will be necessary to determine if [Father] has the present ability to pay
any purge payments ordered.” Id. at 39 n.11, 821 S.E.2d at 856 n.11.
C. Attorney’s Fees
Lastly, Father concludes his appellate brief with the following paragraph: “The
trial court entered an award of attorney fees [sic] in its order. Her consideration of an
award of such fees was based in significant part on her prior erroneous rulings as set
forth herein. The attorney fees [sic] award should, therefore, be vacated.” Father cites
no authority nor makes any substantive argument other than summarily relying
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upon his previous arguments, already discussed in this opinion.
“Issues not presented in a party’s brief, or in support of which no reason or
argument is stated, will be taken as abandoned.” N.C.R. App. P. 28(b)(6). “An
appellant avoids abandonment when it complies with the rule’s mandate that ‘[t]he
body of the argument . . . shall contain citations of the authorities upon which the
appellant relies.’ ” K2HN Constr. NC, LLC v. Five D Contr’rs, Inc., 267 N.C. App. 207,
213, 832 S.E.2d 559, 564 (2019) (alterations in original) (quoting N.C.R. App. P.
28(b)(6)). “This Court has routinely held an argument to be abandoned where an
appellant presents argument without such authority and in contravention of the
rule.” Id. Father cites no legal authority in his argument concerning the trial court’s
award of attorney’s fees; accordingly, this issue is “taken as abandoned.” N.C.R. App.
P. 28(b)(6).
III. Conclusion
For the foregoing reasons, we affirm the trial court’s order in part and remand
for additional findings of fact and conclusions of law (1) detailing the court’s
calculation of Father’s actual income, and (2) stating whether Father has the ability
to satisfy the purge conditions. The court may hear additional evidence on either
issue, in its discretion.
AFFIRMED IN PART; REMANDED.
Judges HAMPSON and FLOOD concur.
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