Evans v. Evans

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1305
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
DELORES BENTON EVANS,
Plaintiff-Appellant,
v. Durham County
No. 90 CVD 123
EARL MARSHALL EVANS, SR., BY AND
THROUGH HIS COURT-APPOINTED
GUARDIAN, CHARLES L. STEEL IV,
Defendant-Appellee
Appeal by Plaintiff from order entered 29 August 2013 by
Judge James T. Hill in District Court, Durham County. Heard in
the Court of Appeals 7 April 2014.
Graebe Hanna & Sullivan, PLLC, by Christopher T. Graebe and
Mark R. Sigmon, for Plaintiff-Appellant.
Eric C. Michaux, by Eric C. Michaux; and Williams Mullen,
by Robert W. Shaw, for Defendant-Appellee.
McGEE, Judge.
Delores Benton Evans (“Plaintiff”) and Earl Marshall Evans,
Sr. (“Defendant”) were married on 16 August 1969. Plaintiff
filed for divorce, child support, and equitable distribution on
10 January 1990. The trial court entered a consent judgment as
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to the division of the marital property on 8 December 1992.
Paragraphs 2, 4, and 5 of the consent judgment are of particular
relevance to this appeal.
Pursuant to paragraph 2, Defendant agreed to “execute and
to deliver to [] Plaintiff two (2) promissory notes,
simultaneously upon the execution of this Consent Judgment by
the parties.” One promissory note was to be in the amount of
$25,000.00 and would be due on or before 15 January 1993. The
second promissory note was to be in the amount of $200,000.00
and would be due on or before 15 November 1993. In paragraph 4
of the consent judgment, Defendant agreed “to pay all principal,
interest, taxes and insurances that are currently owed or that
may hereafter become due and payable on” the beach house on
Topsail Island that Plaintiff and Defendant owned as tenants in
common.
The consent judgment provided that, if the foregoing
conditions were “satisfied in their entirety,”
Plaintiff shall execute and deliver to []
Defendant quitclaim deeds conveying all her
rights, title and interest in the following
properties, subject to all mortgages of
record:
a. A shopping center located at 2500
Fayetteville Street, Durham, North Carolina;
b. A house and lot located at 1610
Fayetteville Street, Durham, North Carolina;
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c. A service station and lot located at 909
Alston Avenue, Durham, North Carolina;
d. An office building and lot located at
2808 Fayetteville Street, Durham, North
Carolina;
e. A house and lot located at 808 Ridgeway
Street, Durham, North Carolina;
f. A 50 acre tract of land in Granville
County, North Carolina;
g. A 45 acre tract of land on Hopkins Road
in Durham County, North Carolina;
h. A store and lot located at 370 Old Oxford
Road, Durham, North Carolina; and
i. A lot(s) located on Lee Street, Durham
County, North Carolina.
Defendant was found incompetent by order of the Clerk of
Superior Court, Durham County, on 3 January 2012, and Charles L.
Steel, IV (“Mr. Steel”), was appointed as Defendant’s guardian
of the estate. Mr. Steel filed a document titled “Motion to
Show Cause”1 on 12 April 2013, alleging that Defendant performed
“all of his responsibilities and requirements” under the consent
judgment. Mr. Steel alleged that Plaintiff failed to transfer
four tracts of real property, as provided in the consent
judgment, and requested that the trial court find Plaintiff in
contempt and require Plaintiff to transfer the properties to
Defendant.
1
Despite the title of the document, the body of the document
asks the trial court to hold Plaintiff in contempt.
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The trial court held a hearing on Mr. Steel’s motion on 29
July 2013. The trial court heard testimony from Mr. Steel,
Floyd McKissick, Jr., and John Perry. The trial court also
admitted into evidence depositions of Mr. Steel and Plaintiff
and various affidavits. The trial court entered an order on 29
August 2013, finding that:
(1) “Plaintiff, by her conduct and
representations to Defendant, conveyed to
Defendant her position that the Consent
Judgment remained enforceable by both
parties through 2003, notwithstanding the
statute of limitations for enforcing the
Consent Judgment.”
(2) “In 1996 Plaintiff and Defendant
replaced 1992 Note #2 with a new promissory
note for $250,000 (the “1996 Note”). The
1996 Note was an extension and modification
of 1992 Note #2 in the amount of
$200,000.00.”
(3) “Defendant satisfied the obligations of
paragraph 2 of the Consent Judgment by a
payment of $203,758.82 on August 27, 2003,
his last remaining obligation under the
Consent Judgment.”
The trial court ordered that Plaintiff execute and deliver
the quitclaim deeds Defendant requested. Plaintiff appeals.
Plaintiff first argues the trial court erred by placing the
burden of proof on Plaintiff. N.C. Gen. Stat. § 5A-23(a1)
(2013) provides as follows:
Proceedings for civil contempt may be
initiated by motion of an aggrieved party
giving notice to the alleged contemnor to
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appear before the court for a hearing on
whether the alleged contemnor should be held
in civil contempt. . . . The motion must
include a sworn statement or affidavit by
the aggrieved party setting forth the
reasons why the alleged contemnor should be
held in civil contempt. The burden of proof
in a hearing pursuant to this subsection
shall be on the aggrieved party.
N.C.G.S. § 5A-23(a1) (emphasis added).
In Trivette v. Trivette, 162 N.C. App. 55, 61, 590 S.E.2d
298, 303 (2004), this Court vacated the adjudication of contempt
where the trial court found that the alleged contemnor “did not
show cause as to why his failure to pay his child support
obligations was not wilful, [the alleged contemnor] was per se
wilfully in contempt of the mediated consent order.” Id.“Because the trial court erroneously placed the burden on [the
alleged contemnor] to prove a lack of wilful contempt, the trial
court’s finding of fact does not support its conclusion of law.”
Id.Likewise, in the present case, the contempt proceeding was
initiated by a motion filed by Defendant, the alleged aggrieved
party, rather than by an order or notice issued by a judicial
official. Thus, there is no basis to place the burden of proof
on the alleged contemnor in this case. Id. at 60, 590 S.E.2d at
303. The trial court found: “Plaintiff has failed to show cause
as to why she should not be held in contempt of this [c]ourt’s
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Consent Judgment.” The trial court also stated: “This [c]ourt
FINDS that Plaintiff has failed to show cause why she should not
be held in contempt, and is HEREBY ADJUDGED to be willfully IN
CONTEMPT of the Consent Judgment.” The foregoing statements
indicate that the trial court erroneously placed the burden on
Plaintiff. In accordance with Trivette, we must vacate the
trial court’s order.
Vacated.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).