Bossian v. Bossian

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-443
No. COA21-483
Filed 5 July 2022
Wake County, No. 14 CVD 2713
KIMBERLY BOSSIAN, Plaintiff,
v.
DENNIS BOSSIAN, Defendant.
Appeal by Defendant from orders entered 29 April 2021 and 24 May 2021 by
Judge Mark Stevens in Wake County District Court. Heard in the Court of Appeals
9 March 2022.
Tharrington Smith, LLP, by Jeffrey R. Russell, Alice C. Stubbs, and Casey C.
Fidler, for Plaintiff-Appellee.
John M. Kirby, for Defendant-Appellant.
WOOD, Judge.
¶1 Defendant Dennis Bossian (“Defendant”) appeals from Orders finding him in
civil contempt, ordering his arrest, denying his Rule 59 motion, and granting
Kimberly Bossian’s (“Plaintiff”) Rule 60 motion. After careful review of the record
and applicable law, we affirm the Orders of the trial court.
I. Factual and Procedural Background
¶2 Plaintiff and Defendant married on August 22, 1998, separated on February 3,
2013, and are now divorced. The parties have two children born April 9, 2000, and
August 28, 2002. On February 12, 2015, Wake County District Court Judge Christian
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entered an Order for Permanent Child Custody and Child Support (“Custody and
Support Order”). The Custody and Support Order granted primary custody of the
two minor children to Plaintiff and secondary physical custody with visitation during
the children’s spring break and two weeks during the summer to Defendant, who
resided in Rhode Island. The Custody and Support Order required Defendant to pay
$1,225.87 in child support each month until the order was modified or terminated
pursuant to the North Carolina Child Support Guidelines. On March 5, 2015, the
trial court entered an Order for Equitable Distribution (“Equitable Distribution
Order”), requiring Defendant to pay $1,800.00 to Plaintiff as a distributive award
following the sale of the marital home.
¶3 Both the Custody and Support Order and the Equitable Distribution Order
have remained in effect without modification since February 12, 2015, and March 5,
2015, respectively. In January 2016, Plaintiff and Defendant mutually agreed their
younger son would move to Rhode Island with his father and Defendant would
assume primary custody of him. The younger son resided in Rhode Island with
Defendant from January 2016 until July 2018, at which time he returned to North
Carolina to live with Plaintiff. Neither parent sought permission from the trial court
to modify the Custody and Support Order.
¶4 On March 11, 2020, Plaintiff filed a Motion for Order to Show Cause and, in
the alternative, a Motion for Contempt for Defendant’s failure to pay child support in
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the amount of $62,519.37; unreimbursed medical expenses in the amount of
$5,871.50; and a distributive award payment owed to Plaintiff from the sale of the
former marital home in the amount of $1,800.00. On May 1, 2020, the trial court
entered an Order to Appear and Show Cause against Defendant; calendared
Defendant’s advisement hearing for July 23, 2020; and set the show cause hearing
for August 25, 2020. At the July 23, 2020 hearing, Defendant signed a Waiver of
Counsel, waiving his right to a court-appointed attorney. On August 11, 2020,
Defendant, through counsel on a limited appearance, filed a Motion to Continue the
show cause hearing, as well as a “Motion to Dismiss or Discontinue Plaintiff’s
Complaint.”
¶5 On August 25, 2020, at calendar call held via WebEx, the Honorable Anna
Worley denied Defendant’s Motion to Continue and set the case for in-person hearing
that afternoon in front of the Honorable Ashleigh Dunston “with the understanding
that Defendant would be physically present for the live hearing.” When the matter
was called for hearing, Plaintiff and her attorney were present in the courtroom and
Defendant appeared remotely via WebEx. At the afternoon hearing before Judge
Dunston, Defendant objected to the WebEx hearing and requested a continuance to
have his younger son serve as his witness. Defendant admitted that while he had
booked a flight to North Carolina for the contempt hearing on August 24, 2020, to
return to Rhode Island on August 26, 2020, he “would have been not only prejudiced
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by not having [his son] testify, but also, upon his return to Rhode Island, . . . would
have been subject to a 14-day quarantine.” The trial court found that Defendant
“intentionally chose not to appear in-person for the hearing; although he continuously
stated that he wanted an in-person hearing” and that Defendant’s request for an in-
person hearing “was waived when he elected not to appear in court on August 25,
2020.”
¶6 At the contempt hearing, Plaintiff testified Defendant possessed the ability to
pay child supports as he is a licensed civil trial lawyer and is the head of civil
litigation in Orabona Law Offices in Providence, Rhode Island. Plaintiff also testified
Defendant is advertised on Orabona Law Offices’ website as having tried more than
a hundred jury trials and possessing an 85% success rate. Plaintiff testified
Defendant told her he makes more than $100,000.00 per year and that “he took the
new job with Orabona for a substantial pay increase.” Additionally, Plaintiff testified
Defendant previously worked for Rob Levine Law Offices; was a former equity
partner in the law firm of Anderson, Zangari & Bossian; and was previously employed
at CVS’s corporate office. Plaintiff testified Defendant possesses income and assets
in an amount sufficient to purge all amounts currently owed to her. Plaintiff’s counsel
presented evidence to show that Defendant last paid child support in the amount of
$141.00 to Plaintiff in January 2016; offered evidence of the debt she had incurred to
meet her reasonable expenses and pay legal fees; and requested Defendant be ordered
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to pay her attorney’s fees.
¶7 Defendant, appearing pro se, cross-examined Plaintiff regarding a “Consent
modification of custody agreement,” which he purported to be a part of the court file.
However, Judge Dunston found that this “Consent modification of custody
agreement” was not in the court file and would not permit it to be read into evidence.
Defendant did not 1) dispute his income amount; 2) offer witnesses on his behalf; 3)
testify that he paid Plaintiff any amount of money since the Custody and Support
Order was entered; or 4) provide evidence of any payment made to Plaintiff since
entry of the Custody and Support Order.
¶8 On September 18, 2020, Judge Dunston entered an Order for Civil Contempt
and Attorney’s Fees (“Contempt Order”) finding Defendant in contempt for willfully
violating prior orders of the Court. The trial court held Defendant’s failure to comply
with its Orders had been willful and without just cause or excuse. While the order
did not make detailed findings regarding Defendant’s income or expenses, it stated
Defendant is a civil trial lawyer who earns more than $100,000.00 per year, which
gives him the ability to pay child support owed pursuant to the entry of the Custody
and Support Order and the ability to comply with this Contempt Order. Further, the
trial court found that at the time of the Equitable Distribution Order, and at all
relevant times thereafter, Defendant had the requisite means and ability to comply
with the terms of that Order. The court also found that Plaintiff acted in good faith
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in bringing this contempt proceeding, possessed insufficient means to defray the
expenses of this action, and was entitled to an award of attorney’s fees from
Defendant.
¶9 In the Contempt Order, Judge Dunston took into consideration the terms of
the parties’ mutual agreement concerning the period their younger son resided with
Defendant in Rhode Island and its impact upon Defendant’s child support obligation.
Recognizing that the child support terms of the Custody and Support Order could not
be retroactively modified, the trial court set a lower purge amount for Defendant than
what was otherwise owed to Plaintiff.
¶ 10 The trial court determined a modified child support arrearage based on its
equitable calculation of (1) the number of months the younger son resided with his
father in Rhode Island, and (2) the amount of child support Defendant owed to
Plaintiff once the elder son reached the age of majority. The court set Defendant’s
child support purge amount at $25,527.02. Defendant was ordered to pay $5,871.50
for his portion of unreimbursed medical expenses, and $1,800.00 owed from the sale
of their marital residence. The trial court ordered Defendant to pay a total purge
amount of $31,398.52 by October 30, 2020. The court awarded Plaintiff $11,590.42
in attorney’s fees, payable in installments beginning October 2020. The Contempt
Order concluded “[t]he purposes of the Court’s Orders can still be served by finding
Defendant in civil contempt and ordering the purge conditions set forth herein” and
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“Defendant has the ability to meet the purge conditions set forth herein and the
ability to comply with this Order” and ordered:
[i]f Defendant fails to meet the purge conditions by
compliance . . . , he shall be taken into custody at 12:00 p.m.
on November 2, 2020 and shall remain there until he
purges himself of contempt by paying $33,198.52 . . . , and
if he has not met his purge conditions by that date, an order
for arrest shall be issued. No further notice will be
provided as Defendant was advised in open court that he is
in contempt.”
¶ 11 On September 25, 2020, Plaintiff filed a Rule 60 Motion for Relief to correct
alleged clerical errors in the Contempt Order. Plaintiff argued the Court
miscalculated the equitable credits attributed to Defendant’s purge amount.
Specifically, the Contempt Order found that Defendant “owes [m]onthly child support
. . . for one child for the period of January 2019 through August of 2020, of $971.29
for eight (8) months, in the total amount of $1,942.58”1 in error when the order should
have found Defendant owes monthly child support for one child for the period of
January 2019 through August 2020, in the amount of $971.29 for twenty (20) months,
in the amount of $19,425.80, because the number of months between January 2019
and August 2020 is twenty (20) months, not eight (8). As a result, Defendant’s child
1It is apparent that the Contempt Order’s finding is a miscalculation of the amount
Defendant would have owed for payment of eight months of child support at a monthly
amount of $971.29. This calculation equals $7,770.32, not $1,942.58.
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support arrearages increased to $43,010.24. Thereafter, Defendant filed a Rule 59
Motion for Relief from the Civil Contempt and Attorney’s Fees alleging, inter alia,
the trial court erred because no evidence was presented to the Court of Defendant’s
present ability to pay, and Plaintiff was permitted to recover attorney’s fees.
¶ 12 On April 29, 2021, the Honorable Mark Stevens presided over the hearing on
the parties’ respective Rule 59 and Rule 60 Motions. At the hearing, Defendant
testified that if Judge Dunston made a clerical error in the Contempt Order, he would
not contest it. Subsequently, Judge Stevens granted Plaintiff’s Rule 60 motion. Next,
Defendant contended there should be no finding of willful contempt because he had
been unemployed since November 25, 2020, possessed no assets or retirement fund,
and was currently unable to pay a purge amount. Judge Stevens denied Defendant’s
Rule 59 motion. At the conclusion of the hearing, the court inquired whether
Defendant had purged his contempt as required by the Contempt Order. After
Plaintiff and Defendant indicated no money had been paid towards the purge amount
and Defendant testified as to his financial difficulty, Judge Stevens found he
continued to be in contempt. After finding Defendant had the present ability to purge
his contempt, Judge Stevens ordered Defendant to pay $9,300.00. (“Arrest Order”).
Thereafter, Defendant was taken into custody.
¶ 13 On May 24, 2021, Judge Stevens entered two written Orders denying
Defendant’s Rule 59 motion and granting Plaintiff’s Rule 60 motion, respectively.
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The court modified the amount payable to purge contempt for child support, equitable
distribution, and unreimbursed medical expenses to $50,681.74, payable by July 20,
2021; and in its Order granting Plaintiff’s Rule 60 motion stated, “[e]xcept as modified
herein, the remaining terms of the Contempt Order entered September 18, 2020,
remain in full force and effect.” Defendant now timely appeals from the trial court’s
“Arrest Order”, “Order granting Plaintiff’s Rule 60 motion,” and “Order denying
Defendant’s Rule 59 motion.”
II. Discussion
¶ 14 Defendant raises several issues on appeal. We address each in turn.
A. Defendant’s Violation of the Contempt Order and His Subsequent
Arrest
¶ 15 Defendant first argues that the only motions at the April 29, 2021 hearing
before Judge Stevens were the Rule 59 and 60 motions and that the trial court erred
in holding him in contempt for violating the Contempt Order when he was provided
no notice of this potential proceeding and of his arrest. Defendant contends the lack
of notice deprived him of the opportunity to present a defense in violation of his due
process rights. We disagree.
¶ 16 “The standard of review for contempt proceedings is limited to determining
whether there is competent evidence to support the findings of fact and whether the
findings support the conclusions of law. ‘Findings of fact made by the judge in
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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.’ ” Watson v. Watson, 187 N.C. App. 55, 64, 652 S.E.2d 310,
317 (2007) (citation omitted).
¶ 17 Civil contempt is employed to coerce contumacious defendants into compliance
with the orders of the court. “[T]he length of time that a defendant can be imprisoned
in a proper case is not limited by law, since the defendant can obtain his release
immediately upon complying with the court's order.” Brower v. Brower, 70 N.C. App.
131, 133, 318 S.E.2d 542, 544 (1984) (citing Jolly v. Wright, 300 N.C. 83, 265 S.E. 2d
135 (1980)). Pursuant to N.C. Gen. Stat. § 5A-21(a), “[f]ailure to comply with a court
order is a continuing civil contempt as long as:
(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) (2021). Additionally, civil contempt proceedings can be
initiated:
by motion pursuant to G.S. 5A-23(a1), by the order of a
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judicial official directing the alleged contemnor to appear
at a specified reasonable time and show cause why he
should not be held in civil contempt, or by the notice of a
judicial official that the alleged contemnor will be held in
contempt unless he appears at a specified reasonable time
and shows cause why he should not be held in contempt.
The order or notice must be given at least five days in
advance of the hearing unless good cause is shown.
N.C. Gen. Stat. § 5A-23(a) (2021). In the case before us, contempt proceedings were
properly initiated against the Defendant with a judicial order to show cause entered
May 1, 2020, directing Defendant to appear on August 25, 2020, and show cause why
he should not be held in civil contempt for failure to abide by the Custody and Support
Order to pay child support and unreimbursed medical expenses, as well as the
Equitable Distribution Order for the distributive award payment from the sale of the
parties’ former marital home.
¶ 18 At the August 25, 2020 hearing, Judge Dunston held Defendant in civil
contempt for willfully violating prior orders of the Court by failing to make any child
support payments to Plaintiff since January 2016. Defendant’s commitment,
however, was stayed to give Defendant an opportunity to purge himself of contempt
by compliance with the order by 5:00 pm on October 30, 2020. Further, the Contempt
Order would be enforced if Defendant failed to meet the purge conditions: “he shall
be taken into custody at 12:00 p.m. on November 2, 2020, and shall remain there until
he purges himself of contempt by paying $33,198.52,” and if he has not met his purge
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conditions by October 30, 2020, “an order for arrest shall be issued. No further notice
will be provided as Defendant was advised in open court that he is in contempt.”
¶ 19 It is within a trial court judge’s discretion whether to stay the enforcement of
a civil contempt order. See Guerrier v. Guerrier, 155 N.C. App. 154, 157, 574 S.E.2d
69, 71 (2002). (Defendant’s Commitment to custody for being found in contempt for
failure to pay child support and equitable distribution was stayed by the trial court
to give Defendant an opportunity to purge himself of contempt by compliance with
the order).
¶ 20 Both Rule 59 and Rule 60 Motions were heard by Judge Stevens on April 29,
2021, and Defendant remained in contempt of the Custody and Support Order
because he had not paid any amount towards his child support arrears as required
by the Contempt Order. Judge Steven’s Arrest Order only effectuated the Contempt
Order.
¶ 21 The record reflects that Judge Stevens utilized an “Order for Civil Contempt”
form to effectuate the enforcement of the Contempt Order. Defendant contends that
this action constituted a “new contempt order.” We disagree.
¶ 22 We note that after Defendant testified that he was unemployed and had only
$9,326.26 to his name, Judge Stevens changed the purge amount under the Arrest
Order to $9,300.00. However, this modification does not constitute a new contempt
order. See Cumberland City. ex rel. Mitchell v. Manning, 262 N.C. App. 383, 386, 822
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S.E.2d 305, 307 (2018). Judge Steven’s Arrest Order served to enforce Judge
Dunston’s Contempt Order. In effectuating the Contempt Order, Judge Stevens
determined Defendant’s present ability to pay and comply, then entered an order
reducing the purge amount to afford Defendant the opportunity to comply so he would
not be held in custody indeterminately.
¶ 23 Judge Stevens did not err by finding Defendant continued to be in civil
contempt or by issuing an Arrest Order because (1) Defendant was given proper
notice of his commitment for failure to comply with the Contempt Order by the terms
of that order, and (2) Judge Stevens’ order served as an enforcement order
effectuating the consequences of Defendant’s continued contempt.
B. Willful Violation of the Amended Contempt Order
¶ 24 Next, Defendant argues since the parties contended the Contempt Order
contained errors, his failure to make payments pursuant to the Contempt Order was
not willful. We disagree.
¶ 25 “Because civil contempt is based on a willful violation of a lawful court order,
a person does not act willfully if compliance is out of his or her power.” Watson, 187
N.C. App. at 66, 652 S.E.2d at 318 (citations and quotation marks omitted). This
Court has explained “[w]illfulness constitutes: (1) an ability to comply with the court
order; and (2) a deliberate and intentional failure to do so. Ability to comply has been
interpreted as not only the present means to comply, but also the ability to take
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reasonable measures to comply.” Id. (citations and quotation marks omitted).
Therefore, “[a] failure to obey an order of a court cannot be punished by contempt
proceedings unless the disobedience is wilful [sic], which imports knowledge and a
stubborn resistance.” Cox v. Cox, 10 N.C. App. 476, 477,179 S.E.2d 194, 195 (1971)
(citation omitted).
¶ 26 While both parties filed motions to amend the Contempt Order, this fact does
not give Defendant legal justification for failing to comply with the Order. As noted
by Plaintiff, Rule 60 of the North Carolina Rules of Civil Procedure states that “[a]
motion under this section does not affect the finality of a judgment or suspend its
operation.” N.C. Gen. Stat. § 1A-1, R. 60. Although Plaintiff brought a Rule 60
motion, the operation of the Contempt Order was not suspended. As to Defendant’s
Rule 59 motion, Rule 62 of the North Carolina Rules of Civil Procedure states,
“[i]n its discretion and on such conditions for the security
of the adverse party as are proper, the court may stay the
execution of or any proceedings to enforce a judgment
pending the disposition of a motion for a new trial or to
alter or amend a judgment made pursuant to Rule 59, or of
a motion for relief from a judgment or order made pursuant
to Rule 60 . . . .”
N.C. Gen. Stat. § 1A-1, R. 62(b).
¶ 27 However, the record before us does not show Defendant filed a motion to stay
the Contempt Order pending a hearing on his Rule 59 motion. Defendant’s
compliance with the Contempt Order was mandatory, not optional, and pending
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motions to modify it did not relieve Defendant of his obligation to comply with it.
Defendant chose not to pay anything towards the arrears he owed to Plaintiff,
including payment of the $1,800.00 distributive award under the Equitable
Distribution Order. Defendant’s refusal to pay any amount of arrears owed to
Plaintiff is a clear indication of his “stubborn resistance” to the Orders of the trial
court.
C. Defendant’s Willful Conduct in Light of Parties’ Modification of Custody
Agreement
¶ 28 Next, Defendant contends the trial court erred in denying his Rule 59 motion,
as the evidence demonstrated that Defendant’s non-payment of child support was not
willful because the parties had modified their child custody agreement. We disagree.
¶ 29 We first note that a child support order may only be modified by the court
following a motion in the pending child support action and a showing of changed
circumstances. N.C. Gen. Stat. § 50-13.7(a) (2021). A party seeking to modify the
child support order carries the burden of showing a substantial change of
circumstances affecting the welfare of the child has occurred since the entry of the
previous order. Ebron v. Ebron, 40 N.C. App. 270,252 S.E.2d 235 (1979).
¶ 30 Additionally, a supporting parent possesses “no authority to unilaterally
modify the amount of the [court ordered] child support payment. The supporting
parent must [first] apply to the trial court for modification.” Chused v. Chused, 131
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N.C. App. 668, 672-73, 508 S.E.2d 559, 562 (1998) (quoting Craig v. Craig, 103 N.C.
App. 615, 618, 406 S.E.2d 656, 658 (1991)). “If a person unilaterally reduces his court
ordered child support payments, he subjects himself to contempt.” Id.¶ 31 When one of several children reaches the age of eighteen, we look to our
determinations in Craig v. Craig. In Craig, we held a parent has no authority to
unilaterally modify the amount of the child support payment “when one of two or
more minor children for whom support is ordered reaches age eighteen, and when the
support ordered to be paid is not allocated as to each individual child[] . . . .” 103 N.C.
App. 615, 618, 406 S.E.2d 656, 658 (1991).
¶ 32 Here, the record reflects Defendant never requested a modification of the
Custody and Support Order. While Defendant testified that he attempted to file a
modification to child support in July 2016 and a court hearing was scheduled, his
motion, ultimately, was never adjudicated. According to Defendant, the scheduled
modification hearing “became moot” once his son moved to Rhode Island to live with
him. Defendant made no further effort to modify the child support order. Further,
the Custody and Support Order did not allocate the support payment by child or
indicate Defendant’s child support obligations would recalculate once the elder child
reached the age of majority. To the contrary, the order required Defendant to pay
monthly child support in the amount of $1,225.87 to Plaintiff until the order was
modified or child support automatically terminated because the younger child
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reached the age of majority. It was incumbent on Defendant to file a motion to modify
child support. See id., 103 N.C. App. at 617-20, 406 S.E.2d at 657-59. In Massey v.
Massey, this court held “[t]he defendant could easily have taken the question of
payments due after his child reached majority to the court for a modification of the
order. The defendant had an obligation to observe the order until it was lawfully
changed.” 71 N.C. App. 753, 757, 323 S.E.2d 451, 454 (1984).
¶ 33 We find Defendant’s argument that a modification of child custody indirectly
relates to the modification of child support or provides a reasonable excuse for not
paying child support unpersuasive. While Defendant contends the parties modified
the custody arrangement on their own, he offers no evidence in the record before us
in support of the parties having agreed to such a modification or of it having been
reduced to writing. Notwithstanding the existence of such an agreement, this court
has long established, “[i]ndividuals may not modify a court order for child support
through extrajudicial written or oral agreements.” Baker v. Showalter, 151 N.C. App.
546, 551, 566 S.E.2d 172, 175 (2002) (citing Griffin v. Griffin, 96 N.C. App. 324, 328,
385 S.E.2d 526, 529 (1989)). Because child support obligations may only be modified
by court order, Defendant’s argument fails.
¶ 34 However, “[a] failure to obey an order of a court cannot be punished by
contempt proceedings unless the disobedience is wilful [sic], which imports
knowledge and a stubborn resistance.” Cox, 10 N.C. App. at 477, 179 S.E.2d at 195
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(1971). Here, Defendant would have this court believe his actions were not willful
because he ceased making child support payments only after the parties agreed the
younger son would reside with him, while overlooking his continued refusal to make
his court ordered child support payments once his younger son returned to North
Carolina to live with Plaintiff. We do not. Defendant is a seasoned, practicing
attorney whose defiance of a court order and failure to follow the proper legal
procedures to modify the order from which he seeks relief epitomizes disobedience
that is willful, knowing, and stubbornly resistant. See id.¶ 35 Next, Defendant argues his “obligation to make support payments during the
two-year period that the younger son resided with him was at least questionable,” so
his behavior cannot be willful. Defendant cites to Holden v. Holden, 214 N.C. App.
100, 715 S.E.2d 201 (2011), for the proposition that a potential contemnor cannot
willfully refuse to comply with an ambiguous term in an consent order the contemnor
does not understand. We are unpersuaded.
¶ 36 Looking to the plain language of the Custody and Support Order, there is no
ambiguity concerning Defendant’s payment of child support. The Order is clear that
“Defendant shall pay the Plaintiff the sum of one thousand two hundred twenty-five
dollars and eighty-seven cents ($1,225.87) in child support” for their two minor
children every month. We hold that absent a court ordered modification of the
Custody and Support Order, Defendant’s failure to pay constituted willful non-
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compliance. See Craig, 103 N.C. App. at 617–20, 406 S.E.2d at 657–59; see also
Sharpe v. Nobles, 127 N.C. App. 705, 709, 493 S.E.2d 288, 290–91 (1997).
D. Plaintiff’s Rule 60 motion
¶ 37 Next, Defendant argues Plaintiff’s Rule 60 motion should have been denied
because the trial court’s miscalculations as to the Contempt Order purge amount
constituted more than a mere “clerical error.” We disagree.
¶ 38 Pursuant to N.C. Gen. Stat. § 1A-1, R. 60, a judge is permitted to correct
“[c]lerical mistakes in judgments, orders or other parts of the record and errors
therein arising from oversight or omission . . . on his own initiative or on the motion
of any party and after such notice, if any, as the judge orders.” N.C. Gen. Stat. § 1A-
1, R. 60. Relief under Rule 60(a) is limited to the “correction of clerical errors, [and]
. . . it does not permit the correction of serious or substantial errors.” Buncombe Cty.
By and Through Child Support Enf't Agency ex rel. Andres v. Newburn, 111 N.C. App.
822, 825, 433 S.E.2d 782, 784 (1993) (citation omitted). “A trial court’s order
correcting a clerical error under Rule 60(a) is subject to the abuse of discretion
standard.” In re Estate of Meetze, 272 N.C. App. 475, 479, 847 S.E.2d 220, 224 (2020).
Accordingly, a trial court abuses its discretion and enters an order that is substantive
and outside the scope of Rule 60(a) when it “alter[s] the effect of the [original] order.”
Howard Schultz & Assocs. v. Ingram, 38 N.C. App. 422, 427, 248 S.E.2d 345, 349
(1978).
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¶ 39 In the present case, the clear intent of the Contempt Order was to hold
Defendant in civil contempt for failure to pay child support, unreimbursed medical
expenses, and the distributive award payment owed to Plaintiff. The record reflects
that Judge Dunston, in determining the purge amount for the Contempt Order,
determined it would be equitable for child support to be calculated based upon the
actual custody schedule the parties followed during the respective time periods. The
Contempt Order detailed that the calculation of the purge amount would be based
upon the “[m]onthly child support pursuant to Worksheet A of the 2019 North
Carolina Child Support Guidelines for one child for the period of January 2019
through August of 2020, of $971.29 for eight (8) months, in the total amount of
$1,942.58.2
¶ 40 Based on the language in the Contempt Order, the clear intent of the Order
was for Defendant to receive a credit towards his purge amount based upon the
specified twenty-month period from January 2019 to August of 2020, the result of
which is a reduction in his purge amount. However, the Contempt Order contained
clear typographical errors, as the duration of the period identified by the trial court
was a twenty-month period, not an eight-month period as stated in the Order.
2Again, we note that this formula is a miscalculation of the amount Defendant would have
owed for payment of eight months of child support at a monthly amount of $971.29. This
calculation comes to $7,770.32, not $1,942.58.
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Additionally, the modified child support payment of $971.29 per month for twenty
months should have been written as “$19,425.80” rather than “$1,942.58.” In other
words, the calculation was off by one decimal place.
¶ 41 Notwithstanding, Judge Dunston articulated her reasoning and logic for the
recalculation. In Gordon v. Gordon, this Court affirmed the trial court’s correction to
an alimony order which originally required plaintiff ex-husband to continue making
monthly payments to defendant ex-wife through and including March 1994, at which
time she would have turned 62. 119 N.C. App. 316, 317-19, 458 S.E.2d 505, 505-06
(1995). The wife would not have turned 62, however, until March 1995. Id. This
court held a date miscalculation notwithstanding, the clear intent of the order was
that plaintiff would play alimony to defendant until she reached age sixty-two. Id. at
317-18, 458 S.E.2d at 506.
¶ 42 Here, it is clear Judge Dunston intended to calculate the purge amount based
on the parties’ custody schedule between the period of January 2019 to August 2020,
so as to reflect the period of time before the younger son turned eighteen years old.
Judge Stevens’ Order granting Plaintiff’s Rule 60 motion notes the corrected
amounts, which increased Defendant’s purge amount to $48,881.74. Based upon the
clear intent of the order for Defendant to be given in equity a certain amount of
“credit”, we do not believe that Judge Stevens’ later clerical correction altered the
effect of the original Contempt Order: regardless of the amount of purge “credit” to
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which Defendant was entitled, he was required to pay the total amount of child
support arrearages accrued since January 2016. We hold there was no abuse of
discretion by Judge Stevens’ granting Plaintiff’s Rule 60(a) motion to correct the
clerical errors in the Contempt Order.
E. Denial of Defendant’s Rule 59 motion
¶ 43 Next, Defendant contends Judge Stevens erred in denying his Rule 59 motion.
Under a Rule 59 motion, “an appellate court’s review of a trial judge’s discretionary
ruling either granting or denying a motion to set aside a verdict and order a new trial
is strictly limited to the determination of whether the record affirmatively
demonstrates a manifest abuse of discretion . . . .” Worthington v. Bynum, 305 N.C.
478, 482, 290 S.E.2d 599, 602 (1982).
1. Modification of child support
¶ 44 First, Defendant contends the trial court should have granted his Rule 59
motion because the parties modified child support based on an alleged split custody
agreement between the parties. Defendant argues that when the parties “agreed to
change the custody arrangement, they implicitly agreed to modify the support
obligation.” Defendant argues that Judge Stevens erred in dismissing the Rule 59
motion because the Contempt Order should have modified the child support
obligations based upon this alleged mutual child custody agreement. We disagree.
¶ 45 Again, we note that this alleged custody agreement does not appear anywhere
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in the record. It is well settled that our review is limited to those items contained in
the record. N.C. R. App. P. Art. II, Rule 9(a). We reiterate: to modify a child support
order or a child custody order, a judicial modification by a court is required and
“[i]ndividuals may not modify a court order for child support through extrajudicial
written or oral agreements.” Baker, 151 N.C. App. at 551, 566 S.E.2d at 175 (citing
Griffin, 96 N.C. App. at 328, 385 S.E.2d at 529); N.C. Gen. Stat. § 50-13.7(a). It is well
settled,
[N]o agreement or contract between husband and wife will
serve to deprive the courts of their inherent as well as their
statutory authority to protect the interests and provide for
the welfare of infants. They may bind themselves by a
separation agreement or by a consent judgment, but they
cannot thus withdraw children of the marriage from the
protective custody of the court.
Griffin, 96 N.C. App. at 328, 385 S.E.2d at 529 (citation omitted). Any extrajudicial
written agreement between the parties intended to modify the court ordered custody
arrangement is invalid and does not implicitly or otherwise modify the parties’ court
ordered child support obligations. Simply put, the parties do not possess the
authority to modify a child custody and support order without court intervention.
¶ 46 Additionally, our statute generally prohibits a North Carolina court from
modifying, reducing, or vacating vested child support arrearages that have accrued
under a valid child support order issued by a North Carolina court or any other court.
N.C. Gen. Stat. § 50-13.10(a) (2021). Our State Supreme Court has held that this
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general rule prohibits a retroactive modification to past due child support; that is,
any modification that affects payments due before the motion for modification was
filed in a court. See Hill v. Hill, 335 N.C. 140, 145, 435 S.E.2d 766, 768 (1993).
¶ 47 Here, the trial court did not possess the authority to retroactively modify
Defendant’s vested child support arrearages in the Custody and Support Order.
Therefore, Judge Stevens did not err in denying Defendant’s Rule 59 motion.
2. Evidence of Defendant’s inability to pay
¶ 48 Next, Defendant contends his Rule 59 motion should have been granted by
Judge Stevens because there was insufficient evidence of his ability to pay child
support during the relevant period and to pay the purge amounts. Defendant argues
he should not have been found in contempt and should not have been arrested
pursuant to Judge Stevens’ Arrest Order. We disagree.
¶ 49 As discussed supra, a defendant’s failure to comply with a court order is a
continuing civil contempt as long as the trial court finds that: (1) the order remains
in force; (2) the order’s purpose may still be served by compliance; (3) the
noncompliance was willful; and (4) the noncomplying party is able to comply with the
order or is able to take reasonable measures to comply. N.C. Gen. Stat. § 5A-21(a).
“[I]f a judicial official enters an order to show cause or a notice of contempt, the
burden shifts to the alleged contemnor to prove that he or she was not in wilful [sic]
contempt of the court's prior order.” Trivette v. Trivette, 162 N.C. App. 55, 60, 590
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S.E.2d 298, 303 (2004) (citing Plott v. Plott, 74 N.C. App. 82, 85, 327 S.E.2d 273, 275
(1985)). In a civil contempt hearing, “the defendant has the burden of presenting
evidence to show that he was not in contempt and the defendant refuses to present
such evidence at his own peril.” Hartsell v. Hartsell, 99 N.C. App. 380, 387, 393
S.E.2d 570, 575 (1991). While explicit findings are preferable in a civil contempt
proceeding to enforce an order for child support, “they are not absolutely essential
where the findings otherwise clearly indicate that a contempt order is
warranted.” Plott, 74 N.C. App. at 85, 327 S.E.2d at 275. “[T]his Court has held that
a general finding of present ability to comply is sufficient basis for the conclusion of
wilfulness [sic] necessary to support a judgment of civil contempt.” Hartsell, 99 N.C.
App. at 385, 393 S.E.2d at 574 (citation omitted).
¶ 50 In the present case, because a judicial official found probable cause existed to
issue a show cause order to Defendant, Defendant bore the burden to demonstrate
why he should not have been held in willful contempt. State v. Coleman, 188 N.C.
App. 144, 149–50, 655 S.E.2d 450, 453 (2008). Defendant did not proffer evidence
during the contempt hearing to show why he should not have been held in contempt.
¶ 51 Plaintiff testified at the contempt hearing before Judge Dunston that
Defendant possessed the ability to pay child support, as he is “the head of civil
litigation as a trial attorney with Orabona Law Offices in Providence, Rhode Island”
and that his picture appears on the law firm’s website as having tried over a hundred
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jury trials to verdict with a documented 85% success rate. Plaintiff testified that
Defendant took this job with Orabona Law “for a substantial pay increase,” and that
his income exceeded $100,000.00 per year. Plaintiff also testified that Defendant
possesses income and assets in an amount sufficient to pay all arrearage amounts
owed to her. The evidence in the record tends to show that as of the date of the
contempt hearing, Defendant had last made a partial child support payment to
Plaintiff in the amount of $141.00 in January 2016.
¶ 52 Defendant offered no rebuttal evidence, chose not to call witnesses to testify on
his behalf, and did not proffer alternative explanations for his income or deny his
ability to pay the full amounts of arrearages owed. Defendant did not testify that he
paid Plaintiff any amount of money since the Custody and Support Order was entered
and did not provide any receipts or documentation of payments made to Plaintiff since
the Custody and Support Order. In short, Defendant did not dispute Plaintiff’s
testimony about his ability to pay.
¶ 53 Although the Contempt Order did not contain detailed findings regarding
Defendant’s expenses or a detailed inventory of his financial condition, his testimony
provided sufficient evidence of his present ability to comply with the Order and the
purge condition. Therefore, the trial court did not abuse its discretion when it denied
Defendant’s Rule 59 motion. The court’s general finding of Defendant’s present
ability to comply served as a sufficient basis for the conclusion of willfulness.
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3. Imposition of legal fees
¶ 54 Defendant argues the trial court erred in denying his Rule 59 motion as to the
imposition of legal fees, and in his brief asserts “attorney [sic] fees may not be taxed
in a contempt action.” Defendant’s argument is without merit. The case cited by
Defendant for his claim explains: “The Court acknowledged that attorneys’ fees had
been awarded in limited types of civil contempt actions; specifically, those involving
child support and equitable distribution.” Baxley v. Jackson, 179 N.C. App. 635, 640,
634 S.E.2d 905, 908 (2006) (citations omitted). Pursuant to N.C. Gen. Stat. § 50-13.6,
in an action or proceeding for child support, “the court may in its discretion order
payment of reasonable attorney’s fees to an interested party acting in good faith who
has insufficient means to defray the expense of the suit.” N.C. Gen. Stat. § 50-13.6.
(2021). Attorneys’ fees may be awarded, without the finding required by N.C. Gen.
Stat. § 50-13.6, when the contempt is to enforce an equitable distribution order.
Hartsell, 99 N.C. App. at 389–90, 393 S.E.2d at 576–77.
¶ 55 Here, the trial court did not abuse its discretion in awarding Plaintiff’s
attorney’s fees in the contempt matter for the non-payment of child support and for
the non-payment of the amounts due under the Equitable Distribution Order. The
trial court found Plaintiff acted in good faith in bringing this contempt action, would
not have had to bring forth a motion for contempt but for Defendant’s conduct,
possessed insufficient means to defray the expenses of this action, and was entitled
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to an award of attorney’s fees from Defendant. As such, we conclude the trial court
did not err by denying Defendant’s Rule 59 motion regarding the award of Plaintiff’s
attorney’s fees.
4. Medical Expenses
¶ 56 Lastly, Defendant argues the trial court erred in ordering he reimburse
Plaintiff $5,871.50 for his share of unreimbursed medical expenses. Defendant
argues the unreimbursed expenses mainly consisted of cosmetic dental work, which
was neither reasonable nor medically necessary. We disagree.
¶ 57 Defendant cites Billings v. Billings, in which we held that defendant parent
presented substantial evidence that her child’s orthodontic treatment for braces was
reasonable and medically necessary, and thereby, fell under the medical expenses
category in a child support order. 164 N.C. App. 598, 596 S.E.2d 474, 2004 N.C. App.
LEXIS 1093 (2004) (unpublished). Before we address the merits of Defendant’s
argument, we note his reliance on an unpublished opinion. “Citation to unpublished
authority is expressly disfavored by our appellate rules but permitted if a party, in
pertinent part, ‘believes . . . there is no published opinion that would serve as well’ as
the unpublished opinion.” State ex rel. Moore Cty. Bd. of Educ. v. Pelletier, 168 N.C.
App. 218, 222, 606 S.E.2d 907, 909 (2005) (quoting N.C. R. App. 30(e)(3)).
Unpublished opinions are not controlling authority. Nonetheless, we find its
reasoning persuasive, and we adopt it hereby.
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¶ 58 Here, the record contains substantial evidence that the children’s orthodontic
treatments were reasonable and medically necessary and not merely cosmetic
procedures. The evidence tends to show Dr. Khara, of Khara Orthodontics,
determined the elder son had a significantly deep overbite and severe overjet with
palatal impingement that could cause the child to “loose [sic] upper teeth sooner.”
Additionally, Dr. Khara expressed significant concerns about the child’s airway.
Medical notes in the record detailed that the elder son’s airway is so narrow, it is “off
the chart ‘black in color’ . . . [and] this may effect [sic] [the child] medically in [the]
future.” Dr. Khara’s treatment plan recommended a Herbst appliance followed by
braces to address these concerns, because it would help the child’s airway, as well as
improve his profile by bringing his lower jaw forward. Such medical treatments,
particularly orthodontic appointments and treatment plans, constitute medically
necessary procedures. Billings, 2004 N.C. App. LEXIS 1093 at *5. Treatments
related to the prevention of tooth loss, or the expansion of the airway are undertaken
for the good of the child’s health, rather than merely cosmetic purposes. Based on
the evidence in the record, these medical appointments and procedures were
reasonable, medically necessary, and qualify as medical expenses Defendant is
obligated to pay. We hold that the trial court did not abuse its discretion in denying
Defendant’s Rule 59 motion as to the medical expenses.
III. Conclusion
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¶ 59 For the foregoing reasons, we hold the trial court properly effectuated a prior
Contempt Order by issuing an Arrest Order for Defendant. We also hold the trial
court did not abuse its discretion by denying Defendant’s Rule 59 motion and
affirming Plaintiff’s Rule 60 motion. Accordingly, we affirm.
AFFIRMED.
Judges DILLON and HAMPSON concur.