Marshall v. Marshall

NO. COA13-689
NO. COA13-692

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

JOHANNA MARIA MAGDALENA MARSHALL,
LISA MULL MOORE, ROBERT CHRISTIAN
MOORE,
Plaintiffs,

v. Mecklenburg County
No. 10 CVD 24330
HUNTER DOUGLAS MARSHALL,
Defendant.

Appeal by Defendant from orders entered 20 August and 18

October 2012 by Judge Paige B. McThenia in Mecklenburg County

District Court. Heard in the Court of Appeals 21 November 2013.

Jonathan McGirt for Plaintiff Marshall.

No brief for Plaintiffs Moore.

Marshall & Taylor, P.C., by Travis R. Taylor, for
Defendant.

STEPHENS, Judge.

Factual Background and Procedural History

This appeal arises from the self-described “desperate

measures” undertaken by Defendant Hunter Douglas Marshall

(“Defendant”) in an attempt to prevent the end of his marriage

to Plaintiff Johanna Maria Magdalena Marshall (“Johanna”), and,
 -2-
once the marriage did end, his campaign of hatred and harassment

against Johanna and Johanna’s family, friends, and

acquaintances, as well as Plaintiffs Lisa Mull Moore and Robert

Christian Moore (“the Moores”). Defendant and Johanna married

in 1985 and had two children together: a daughter born in 1990

and a son born in 1995. In 2008, Johanna expressed to Defendant

her interest in pursuing a romantic and sexual relationship with

another woman. Hoping to preserve his marriage and family,

Defendant initially agreed to his wife’s desire. Johanna began

a relationship with Plaintiff Lisa Mull Moore (“Lisa”), a woman

who was then, and remains, married to Plaintiff Robert Christian

Moore, who was also aware of and acquiesced in the relationship

between Johanna and Lisa. Defendant not only knew of and

permitted this relationship, but also expressed to Lisa his

gratitude for making Johanna “happier than she had ever been.”

However, at some point during the first half of 2009,

Defendant’s view of the relationship between Johanna and Lisa

changed, and he demanded that it end. When Johanna declined to

sever ties with Lisa, Defendant began harassing his wife by

phone, text, and email.

By April 2010, the Marshalls had separated. On 26 July

2010, they entered into a marital dissolution agreement (“MDA”)
 -3-
in Tennessee.1 The MDA included, inter alia, provisions which

barred either party from harassing or interfering with the other

and specifically prohibited Defendant from harassing “Lisa and

Bob Moore in any way, [sic] no communication with their friends

or known associates.” The MDA also includes Defendant’s

relinquishment of “any rights he has regarding North Carolina

laws of alienation of affection[] and/or criminal conversation

which may have resulted from the past actions or which may

result from the future actions” of the Moores. On 23 September

2010, the MDA was filed in the Chancery Court for Anderson

County, Tennessee and became an order of the court.

After signing the MDA, however, Defendant continued his

daily harassment of Johanna by phone, text, and email.

Defendant also repeatedly contacted Johanna’s elderly parents to

disparage them and Johanna. He began sending emails and letters

about the relationship between Johanna and Lisa to their

extended families, friends, co-workers, minister, religious

congregation, and various media entities. In October and

November 2010, Defendant sent a packet of information about the

1
At the time the MDA was signed, it appears that Johanna was
living near Charlotte, North Carolina. The record does not
clearly indicate the parties’ connection to Tennessee. In any
event, the validity of the MDA has not been challenged prior to
or in this appeal.
 -4-
women’s relationship to the minister of the Moores’ church,

members of that congregation, and the Moores’ son. The 22-page

packet included copies of numerous explicit and private emails

between Johanna and Lisa.

On 9 November 2010, Johanna’s attorney sent Defendant a

letter pointing out that his behavior was in violation of the

MDA and that Johanna would file a motion that Defendant be held

in contempt if Defendant did not cease his harassment

immediately. Defendant replied “please sue me” and continued to

send the packet to other parties, including Johanna’s friends

and relatives. On 16 November 2010, Defendant emailed a copy of

the packet to a reporter at the Charlotte Observer and explained

that he planned to begin picketing the Moores’ church.

Defendant told Johanna that he hoped to ruin the Moores’ lives

and wished that Bob Moore would end up shooting Lisa over the

situation.

On 1 December 2010, Johanna filed a complaint and motion

requesting the court to enter a domestic violence protection

order (“DVPO”) and Lisa filed a complaint requesting a no-

contact order for stalking or nonconsensual sexual conduct

(“NCO”). Following a hearing on 8 December 2010, the district

court entered a one-year DVPO and an NCO against Defendant. The
 -5-
DVPO prohibited Defendant from committing “further acts of

abuse” against Johanna or contacting her, “direct[ly] or

indirect[ly], by means such as telephone, personal contact,

email, pager,” or fax machine. The NCO prohibited Defendant

from, inter alia, abusing, stalking, harassing, or contacting

Lisa and her family, and also specifically barred Defendant from

contacting the congregation of the Moores’ church, occupants of

their neighborhood, and members of another community group with

which Lisa was affiliated.

Following entry of the orders, Defendant moved for a new

trial and to set aside the DVPO and also gave notice of intent

to appeal from both orders. In response, Johanna and Lisa moved

to dismiss Defendant’s appeal and for sanctions. On 4 March

2011, the court denied Defendant’s motions for new trial and to

set aside the DVPO and also denied the plaintiffs’ motions for

sanctions. Defendant voluntarily dismissed his notices of

appeal on 9 March 2011.

However, Defendant continued his campaign of harassment

against Johanna and the Moores, seeking “more creative and

indirect methods though which he [could] continue his

contemptuous behavior.” For example, Defendant left numerous

ranting voicemails for Johanna’s parents in which he called
 -6-
Johanna’s family “disgusting” and “scummy” people, expressed a

wish that her elderly parents would “get sick and die,” and

threatened to cut off contact with his own son if the son

visited Johanna or her parents. Defendant emailed his and

Johanna’s children and Johanna’s father, describing Johanna’s

family as “disgusting” and “lazy” people who “brought

devastation to the people and children around you.”

On 27 April 2011, pursuant to N.C. Gen. Stat. § 52C-6-601,

Johanna filed a notice of registration of a foreign support

order for the MDA in the district court in Mecklenburg County.

Defendant did not contest registration of the MDA, which was

confirmed by operation of law as of 17 May 2011. See N.C. Gen.

Stat. § 52C-6-606 (2013). On 2 September 2011, Johanna filed

motions for contempt and for costs and fees, alleging that

Defendant had breached the MDA by failing to make monthly

structured payments, that he owed Johanna attorneys’ fees she

had incurred due to his noncompliance with the MDA, and that he

was in contempt of the DVPO due to his harassment and threats

toward Johanna and her family. On the same day, Lisa filed a

motion for costs and fees, and the Moores moved for joinder of

their case with Johanna’s.
 -7-
On 24 October 2011, Johanna and Lisa moved for renewal of

the DVPO and NCO, respectively. Both orders were renewed in

December 2011 and again in May 2012. Johanna’s and Lisa’s

motions for contempt and for costs and fees came on for hearing

on 30 January, 12 April, and 13 April 2012. On 13 April 2012,

the trial court heard closing arguments from the parties and

then, prior to announcing her ruling, the judge recessed court

for one hour for lunch. When court resumed, Defendant did not

return. Instead, Defendant told the judge by telephone from the

airport in Charlotte that he was not returning to court because

he did not want to be arrested. The judge issued an order for

Defendant’s arrest and sent law enforcement officers to the

airport to prevent Defendant from leaving for his home in

California. Defendant’s wallet was recovered from the airport,

but his whereabouts remained unknown. The judge announced her

ruling in open court that afternoon, finding Defendant in

contempt of the MDA and DVPO. She awarded costs and fees to

Johanna and Lisa. The judge, concerned that Defendant might not

pay the costs and fees awarded to the plaintiffs, also suggested

that the plaintiffs seek an injunction preventing Defendant

from, inter alia, accessing a Roth IRA account worth more than

$3.5 million which had been awarded to Defendant pursuant to the
 -8-
MDA. See N.C. Gen. Stat. § 1A-1, Rule 65 (2013). Johanna did

so, and, on 16 April 2012, the court entered a temporary

restraining order preventing Defendant from accessing the Roth

IRA. Johanna then moved for a preliminary injunction pursuant

to Rule 65. Defendant did not appear at the hearing on that

motion, which the court granted on 1 June 2012.

On 20 August 2012, the court entered its written order

memorializing the ruling announced in open court at the

conclusion of the hearing on 13 April 2012, granting Johanna’s

and Lisa’s motions for sanctions, attorneys’ fees, and costs and

all of the plaintiffs’ motions for contempt (“the August

order”). The August order gave Defendant ten days to purge his

contempt by (1) ceasing all contact with and harassment of the

plaintiffs, their families, and their acquaintances and (2)

paying to Johanna $130,830.05. From that order, Defendant

appealed on 18 September 2012.

On 31 August 2012, Johanna filed another motion for

contempt, alleging that Defendant had failed to comply with the

August order. By order entered 18 October 2012 (“the October

order”), the court held Defendant in contempt for his failure to
 -9-
comply with the August order. Defendant gave notice of appeal

from the October order on 2 November 2012.2

On 23 September 2013, Johanna filed motions to dismiss

Defendant’s appeals in COA13-689 and COA13-692. By orders

entered 7 October 2013, those motions to dismiss were referred

to this panel. Johanna seeks dismissal on grounds that

Defendant’s pursuit of these appeals “is an offense to the

dignity of the Courts of the State of North Carolina” in light

of Defendant’s contemptuous behavior in the trial court and his

“outrageous conduct” toward Johanna, the Moores, and their

families, friends, and acquaintances. While we agree that

Defendant’s actions are among the most shocking and extreme that

the members of this panel have witnessed in the many divorce-

related cases they have reviewed, we must deny Johanna’s motions

to dismiss. Hateful, juvenile, and even contemptuous behavior

by appellants toward other people and our State’s trial courts

is, unfortunately, not grounds for dismissal. Accordingly, we

reach the merits of Defendant’s appeals.

Discussion

2
Defendant’s two appeals were designated with separate COA
numbers (COA13-689 for the appeal from the October order and
COA13-692 for the appeal from the August order). Because the
parties, facts, and issues raised in the two appeals are nearly
identical, we address them together in this opinion.
 -10-
Defendant argues that the trial court erred in entering the

August order because it lacked (1) subject matter jurisdiction

and (2) statutory authority pursuant to N.C. Gen. Stat. § 5A-21

to hold him in contempt. Defendant also argues that (3) the

court erred in awarding attorneys’ fees to Johanna in the August

order. Finally, Defendant argues that (4) the court lacked

jurisdiction to enter the October order. We disagree as to the

August order, but agree as to the October order.

I. Subject Matter Jurisdiction for Entry of the August Order

Defendant first argues that the trial court lacked subject

matter jurisdiction to enter the August order finding him in

contempt of both the MDA and DVPO. Specifically, he contends

the MDA (1) was not properly registered as a support order under

Chapter 52C of the North Carolina General Statutes, the Uniform

Interstate Family Support Act (“UIFSA”), (2) is not a “support

order” at all, and (3) grants exclusive jurisdiction to the

courts of Tennessee.

The issue of subject matter jurisdiction may be raised at

any time, including for the first time on appeal. Lemmerman v.

A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85,

reh’ing denied, 318 N.C. 704, 351 S.E.2d 736 (1986). “A court
 -11-
has jurisdiction over the subject matter if it has the power to

hear and determine cases of the general class to which the

action in question belongs.” Balcon, Inc. v. Sadler, 36 N.C.

App. 322, 324, 244 S.E.2d 164, 165 (1978).

We first address Defendant’s arguments regarding the trial

court’s subject matter jurisdiction to hold him in contempt for

violating the MDA. UIFSA provides that “[a] support order or an

income-withholding order issued by a tribunal of another state

may be registered in this State for enforcement.” N.C. Gen.

Stat. § 52C-6-601 (2013). Once a foreign support order is

properly registered, it “is enforceable in the same manner and

is subject to the same procedures as an order issued by a

tribunal of this State.” N.C. Gen. Stat. § 52C-6-603(b) (2013).

UIFSA defines a “[s]upport order” as “a judgment, decree, or

order, whether temporary, final, or subject to modification, for

the benefit of a child, a spouse, or a former spouse, which

provides for monetary support, health care, arrears, or

reimbursement, and may include related costs and fees, interest,

income withholding, attorneys’ fees, and other relief.” N.C.

Gen. Stat. § 52C-1-101(21) (2013). Finally, UIFSA specifically

grants subject matter jurisdiction over registered foreign

support orders to our State’s district courts. See N.C. Gen.
 -12-
Stat. § 52C-1-102 (2013) (“The General Court of Justice,

District Court Division is the court authorized to hear matters

under this Act.”).

Here, the MDA was filed on 23 September 2010 in the

Chancery Court for Anderson County, Tennessee. On 27 April

2011, Johanna initiated proceedings to register the MDA as a

support order under UIFSA. Defendant failed to contest

registration of the MDA within twenty days, and accordingly, by

operation of law, registration of the MDA was confirmed as of 17

May 2011. See N.C. Gen. Stat. § 52C-6-606.

Defendant asserts a series of inconsistent and meritless

claims regarding the MDA. He first contends that while

registration and confirmation of the MDA pursuant to UIFSA gave

the trial court jurisdiction over any support provisions

therein, the court lacked subject matter jurisdiction regarding

paragraphs 11 and 32 of the MDA because those provisions do not

explicitly discuss “support,” but rather restrain Defendant from

harassing Johanna or the Moores and require Defendant to

relinquish any possible claims for alienation of affection or

criminal conversation. Defendant cites no authority for the

startling proposition that a court might have subject matter

jurisdiction over certain paragraphs and provisions of a foreign
 -13-
support order which has been properly registered and confirmed

under UIFSA, but lack jurisdiction over other paragraphs and

provisions. Nothing in UIFSA even suggests that a properly

registered and confirmed foreign support order may only be

enforced in part by our State’s district courts. The relevant

portions of UIFSA are contained in Chapter 52C, Article 6, Part

1, entitled “Registration and Enforcement of Support Order.”

(Emphasis added). The statutes quoted above all concern the

registration and enforcement of orders, not paragraphs or

provisions. This argument is overruled.

Defendant next contends that the MDA is not a “support

order” at all because it contains no provisions for spousal

support and uses the word “alimony” only in paragraph 2,

entitled “Waiver.” This meritless argument ignores the UIFSA

definition of a “[s]upport order” as an order which benefits a

spouse or former spouse by “provid[ing] for monetary support,

health care, arrears, or reimbursement, and may include related

costs and fees, interest, income withholding, attorneys’ fees,

and other relief.” N.C. Gen. Stat. § 52C-1-101(21) (emphasis

added). Paragraph 18 of the MDA requires Defendant to make

monthly payments of $2,000 to Johanna for twelve months or until

one of the parties’ homes is sold. Although the MDA refers to
 -14-
these payments as “[s]tructured payment[s]” rather than

“alimony,” they are plainly “monetary support.” Id. Further,

paragraph 26 of the MDA requires Defendant to keep Johanna on

his employer-provided health insurance plan until Johanna is

eligible for health insurance through her own employment, with

Johanna reimbursing Defendant for the difference in cost due to

her coverage. This provision concerns both “health care” and

“reimbursement[.]” Id. Finally, UIFSA explicitly contemplates

that “support orders . . . may include . . . other relief.” Id.

Thus, the MDA falls squarely within the statutory definition of

a support order,3 and accordingly, this argument is also

overruled.

Defendant also asserts that the trial court lacked

jurisdiction to enter the August order because the MDA

explicitly grants jurisdiction to the courts of Tennessee and

contains a choice of law provision stating that the laws of that

state “shall govern.” Defendant proceeds to argue that contract

law principles dictate that these provisions deprived the North

Carolina trial court of subject matter jurisdiction in this

matter. Defendant appears utterly unable to grasp the fact

3
Further, as noted above, Defendant had the opportunity to
contest the registration of the MDA as a “support order” under
UIFSA and elected not to do so.
 -15-
that, once the MDA was properly registered and confirmed in

North Carolina, it was transformed from a mere contract between

the two parties to an order of our State’s courts, explicitly

enforceable as such. N.C. Gen. Stat. § 52C-6-603(b) (providing

that a registered and confirmed foreign support order “is

enforceable in the same manner and is subject to the same

procedures as an order issued by a tribunal of this State”)

(emphasis added). We overrule this argument. The trial court

had subject matter jurisdiction in this matter pursuant to the

provisions of UIFSA.

II. Authority to Find Contempt under Section 5A-21

Defendant next argues that the trial court lacked the

authority to hold him in civil contempt under N.C. Gen. Stat. §

5A-21 for failing to comply with the MDA and the DVPO. We

disagree.

Section 5A-21 provides that “[f]ailure to comply with an

order of a court is a continuing civil contempt . . . .” N.C.

Gen. Stat. § 5A-21(a) (2013). “The purpose of civil contempt is

not to punish; rather, its purpose is to use the court’s power

to impose fines or imprisonment as a method of coercing the

defendant to comply with an order of the court.” Jolly v.
 -16-
Wright, 300 N.C. 83, 92, 265 S.E.2d 135, 142 (1980) (citation

omitted), overruled on other ground by McBride v. McBride, 334

N.C. 124, 431 S.E.2d 14 (1993). To hold a party in civil

contempt, a court must find:

(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). “In order to find that a defendant

acted willfully, the court must find not only failure to comply

but that the defendant presently possesses the means to comply.”

Miller v. Miller, 153 N.C. App. 40, 50, 568 S.E.2d 914, 920

(2002) (citations and internal quotation marks omitted). On

appeal, our review of civil contempt orders “is limited to

determining whether there is competent evidence to support the

findings of fact and whether the findings support the

conclusions of law.” Id. (citation and internal quotation marks

omitted).

Defendant first contends that the MDA is nothing more than

a contract and that its breach cannot result in a finding of
 -17-
contempt. Having rejected the basis for this argument above, we

reject Defendant’s related assertion here. The MDA is a valid

and enforceable court order, and the trial court was fully

vested with authority to hold Defendant in contempt for his

failure to comply therewith.

Defendant next contends that the contempt order contains no

findings of fact that Defendant violated the DVPO first entered

in December 2010 and renewed in December 2011 and May 2012.

Specifically, Defendant observes that the DVPO prohibited him

from having contact with Johanna whether “direct or indirect, by

means such as telephone, personal contact, email, pager, gift-

giving or telefacsimile machine.” The DVPO also provided that

Defendant “shall not assault, abuse, follow, harass (by

telephone, visiting the home or workplace or other means), or

interfere” with Johanna. Defendant asserts that this language

only barred him from contacting or harassing Johanna herself

such that his admitted contact with Johanna’s friends, family,

and associates was not a violation of the DVPO.

In overruling this meritless argument, we need only observe

that the plain language of the DVPO bars Defendant from abusing

or harassing Johanna “by telephone, visiting the home or

workplace or other means[.]” Defendant does not dispute the
 -18-
trial court’s numerous findings of fact that, after entry of the

DVPO, he left hateful and vulgar voicemail and email messages

for Johanna’s elderly parents, other family members, and

friends. Defendant does not dispute the court’s finding of fact

87, that Johanna had “been incredibly tormented by” those

communications. In findings of fact 71-73, the court noted

that, in his messages to Johanna’s parents, Defendant explicitly

and repeatedly stated that he was “on a mission” to compel

various actions on Johanna’s part by harassing her family and

friends. Thus, Defendant’s communications to Johanna’s friends

and family were intended to, and did, abuse and harass Johanna

in violation of the DVPO. Further, findings of fact 61, 67, and

69-73 provide numerous examples of emails and voicemails left

for Johanna’s parents instructing them to “tell” Johanna to do

various things. For example, Defendant asked Johanna’s parents

to tell Johanna she was “doing the wrong thing” and to “ask

[Johanna] to do what is right and get out of my life.”

Defendant left a voicemail message telling Johanna’s parents

that he had sent emails to his and Johanna’s children, Johanna’s

family members, and others, “trying to put pressure on [Johanna]

to do the right thing. I’m going to keep doing that on a daily

basis until I get something to happen[.]” As the court noted in
 -19-
finding of fact 86, these communications were indirect contacts

with Johanna specifically barred by the DVPO. Defendant’s

specious arguments regarding his violation of the DVPO are

overruled.

Defendant also argues that the court erred in granting the

Moores’ motion for contempt as part of the August order,

contending that the Moores were not third-party beneficiaries of

the MDA, again citing contract law principles. We disagree.

The trial court found as fact that the Moores were third-

party beneficiaries of the MDA. We review findings of fact in

civil contempt orders only to determine whether there is

competent evidence to support them. Miller, 153 N.C. App. at

50, 568 S.E.2d at 920 (citation omitted).

North Carolina recognizes the right of a
third-party ben[e]ficiary to sue for breach
of a contract executed for his benefit.
Ordinarily the determining factor as to the
rights of a third-party beneficiary is the
intention of the parties who actually made
the contract. The real test is said to be
whether the contracting parties intended
that a third party should receive a benefit
which might be enforced in the courts. It
is not sufficient that the contract does
benefit him if in fact it was not intended
for his direct benefit.

This Court has adopted the analysis of the
Restatement (Second) of Contracts for
purposes of determining whether a
 -20-
beneficiary of an agreement made by others
has a right of action on that agreement.

. . .

(1) Unless otherwise agreed between
promisor and promisee, a beneficiary of a
promise is an intended beneficiary if
recognition of a right to performance in the
beneficiary is appropriate to effectuate the
intention of the parties and either

(a) the performance of the promise
will satisfy an obligation of the promisee
to pay money to the beneficiary; or

(b) the circumstances indicate that
the promisee intends to give the beneficiary
the benefit of the promised performance.

(2) An incidental beneficiary is a
beneficiary who is not an intended
beneficiary.

Raritan River Steel Co. v. Cherry, Bekaert & Holland, 329 N.C.

646, 651, 407 S.E.2d 178, 181 (1991) (citations, internal

quotation marks, and some brackets omitted; emphasis added).

Johanna accepted an unequal division of the Marshalls’ divisible

property in favor of Defendant per the MDA specifically because

she wanted Defendant to stop his campaign of harassment against

her and the Moores. We can scarcely conceive of a better

example of an intended beneficiary receiving “the benefit of a

promised performance” than paragraph 32 of the MDA in which

Defendant relinquishes any rights he may have against the Moores
 -21-
under our State’s alienation of affection and criminal

conversation statutes and agrees not to harass the Moores or

communicate with their known associates. The Moores are the

only beneficiaries of this clause, and Johanna, the promissee,

specially intended that they benefit from it. Thus, the trial

court’s finding of fact 12, that the Moores are third-party

beneficiaries under the MDA, is supported by competent evidence.

Defendant’s arguments to the contrary are overruled.

III. Award of Attorneys’ Fees in August Order

Defendant next argues that the court erred in the August

order by awarding Johanna attorneys’ fees to be paid by him. We

disagree.

Paragraph 6 of the MDA specifies that a court “shall award

reasonable attorneys’ fees and suit expenses to the non-

defaulting party” incurred as the result of the other party’s

noncompliance. As discussed herein, Defendant failed to comply

with the MDA causing Johanna to incur significant attorneys’

fees and costs. The trial court properly awarded attorneys’

fees to Johanna under its authority to enforce the MDA as a

court order. This argument is overruled.

IV. Subject Matter Jurisdiction for Entry of the October Order
 -22-
Defendant also argues that the trial court lacked

jurisdiction to enter the October order. We must agree.

“When an appeal is perfected[,] . . . it stays all further

proceedings in the court below upon the judgment appealed from,

or upon the matter embraced therein; but the court below may

proceed upon any other matter included in the action and not

affected by the judgment appealed from.” N.C. Gen. Stat. § 1-

294 (2013). Further, “[w]hile an appeal is not perfected until

it is actually docketed in the appellate division, a proper

perfection relates back to the time of the giving of the notice

of appeal, rendering any later orders or proceedings upon the

judgment appealed from void for want of jurisdiction.” Swilling

v. Swilling, 329 N.C. 219, 225, 404 S.E.2d 837, 841 (1991)

(citation omitted).

Here, Defendant filed his notice of appeal from the August

order on 18 September 2012, before both the 24 September 2012

hearing on Johanna’s second motion for contempt and entry of the

October order. “[T]hus, the trial court [wa]s without

jurisdiction, pending the appeal, to punish the husband in

contempt for failing to comply with the [order] appealed from

and its findings and order to that effect are void.” Webb v.

Webb, 50 N.C. App. 677, 678, 274 S.E.2d 888, 889 (1981)
 -23-
(citations omitted). Accordingly, we vacate the October order.

Because the October order is vacated, we need not address

Defendant’s argument that the trial court erred in granting

attorneys’ fees to Johanna in that order.

AFFIRMED IN PART; VACATED IN PART.

Judges GEER and ERVIN concur.

Report per Rule 30(e).