Adkins v. Adkins , 82 N.C. App. 289 ( 1986 )

346 S.E.2d 220 (1986)

June ADKINS (Hall),
v.
Roger Dean ADKINS.

No. 8618DC153.

Court of Appeals of North Carolina.

August 5, 1986.

J.S. Pfaff, Pfaff & Kornegay, Greensboro, for plaintiff-appellee.

Law Firm of Joe D. Floyd, P.A. by Philip R. Skager, High Point, for defendant-appellant.

PARKER, Judge.

Defendant first assigns as error the failure of the trial court to grant his motion to dismiss based on the defense of equitable estoppel. The trial court denied this motion based on the finding that defendant had not relied upon the adoption of the child in not making payments which he had stopped in 1971. Both defendant and the child testified that they each believed that she had been adopted by plaintiff's husband in April 1975, and did not learn differently until the child went with defendant to get her driver's license in 1985.

We agree with the district court that defendant was not entitled to the defense of equitable estoppel in this case. An essential element of that defense is reasonable reliance upon assertions by plaintiff. Webber v. Webber, 32 N.C.App. 572, 232 S.E.2d 865 (1977). Defendant stopped making payments in 1971 and has never shown any intention of resuming the payments. Clearly, then, he did not change his position in reliance on representations made by plaintiff in 1975. This assignment of error is overruled.

By his next assignment of error, defendant contends the district court erred in holding him liable for support arrearages from more than ten years ago. A child support order is a judgment directing payment of a sum of money and falls within the ten-year statute of limitations of G.S. 1-47. Lindsey v. Lindsey, 34 N.C.App. 201, 237 S.E.2d 561 (1977). However, the statute of limitations, as well as the equitable defense of laches, are affirmative defenses which defendant must specifically plead. G.S. 1A-1, Rule 8(c). Defendant failed to plead these affirmative defenses and they cannot be raised for the first time on appeal. Delp v. Delp, 53 N.C.App. 72, 280 S.E.2d 27, disc. rev. denied, 304 N.C. 194, 285 S.E.2d 97 (1981).

Defendant's final assignment of error is that the trial court erred in ordering him imprisoned without having established that he had property free and clear of any liens that he could use to presently purge himself of the alleged contempt. The standard is not having property free and clear of any liens, but rather that one has the present means to comply with the court order and hence to purge oneself of the contempt. Put differently, is the individual able to take reasonable measures to comply with the order? Reasonable measures may well include liquidating equity in encumbered assets. In this case the trial judge made the following finding:

15. That defendant was possessed with the means to comply with the Order of this Court as entered and as hereinabove set out and currently and presently possesses the means and ability to comply with said Order and has possessed such means and ability in the interim period, and failed to provide said $15.00 per week.

Review in 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. Cox v. Cox, 10 N.C.App. 476, 179 S.E.2d 194 (1971). Plaintiff testified that defendant completed a new home two years earlier which he put up for sale when the motion in the cause was filed; that defendant owns a 280-Z, a new Monte Carlo, and a Ford Bronco; and that he owns at least three tractor-trailer trucks in his furniture business. This evidence, which from the record before this Court, was uncontroverted, and the evidence of defendant's earnings were sufficient to support the court's finding of fact. Though not specific, the finding regarding "present means to comply" is minimally sufficient to satisfy the statutory requirement for civil contempt. G.S. 5A-21(a)(3); see Plott v. Plott, 74 N.C.App. 82, 327 S.E.2d 273 (1985). This case is distinguishable from McMiller v. McMiller, 77 N.C.App. 808, 336 S.E.2d 134 (1985), relied on by defendant. In McMiller the order contained no finding whatever as to that defendant's present means to purge himself of the contempt; the only finding was that the defendant "has had" the ability to comply with the support order.

Again, however, we reiterate that specific findings supporting the contemnor's present means are preferable. This concept is not new in the jurisprudence of North Carolina. In Mauney v. Mauney, 268 N.C. 254, 257, 150 S.E.2d 391, 394 (1966) Branch, J. (now C.J.) quoted as follows from Vaughan v. Vaughan, 213 N.C. 189, 193, 195 S.E. 351, 353 (1938) wherein the plaintiff was the supporting spouse cited for contempt:

``... the court below should take an inventory of the property of the plaintiff; find what are his assets and liabilities and his ability to pay and work—an inventory of his financial condition.'

See also Teachey v. Teachey, 46 N.C.App. 332, 264 S.E.2d 786 (1980). The purpose of civil contempt is to coerce compliance with a court order; therefore, present ability or means to satisfy that order is essential. Defendant's final assignment of error is overruled.

The judgment is

Affirmed.

ARNOLD and EAGLES, JJ., concur.