Taylor v. Taylor

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-673
NORTH CAROLINA COURT OF APPEALS
Filed: 16 December 2014
DONNA TAYLOR,
Plaintiff

Buncombe County
v.
No. 12 CVD 4993

CHRISTOPHER D. TAYLOR,
Defendant

Appeal by plaintiff from order entered 6 November 2013 by

Judge Ward D. Scott in Buncombe County District Court. Heard in

the Court of Appeals 22 October 2014.

The Moore Law Firm, by Jennifer W. Moore, for Plaintiff.

Steven Kropelnicki for Defendant

ERVIN, Judge.

Plaintiff Donna Taylor (now Sampson) appeals from an order

holding her in civil contempt and establishing conditions by

means of which she was entitled to purge herself of contempt.

On appeal, Plaintiff contends that the trial court erred by

holding her in contempt, establishing a set of unreasonable

conditions by means of which she could purge herself of

contempt, ordering her to purge herself of contempt by paying
 -2-
compensatory damages to Defendant, and requiring her to pay

attorney’s fees to Defendant as a purge condition. After

careful consideration of Plaintiff’s challenges to the trial

court’s order in light of the record and the applicable law, we

conclude that the trial court erred by determining that

Plaintiff could purge herself of civil contempt by paying

compensatory damages to Defendant, that those portions of the

trial court’s order requiring that Plaintiff pay compensatory

damages to Defendant as a purge condition should be vacated, and

that the remainder of the trial court’s order should be

affirmed.

I. Factual Background

Plaintiff and Defendant were married on 10 November 1992

and separated 3 September 2012. On 17 October 2012, Plaintiff

filed an action seeking equitable distribution, post-separation

support, and alimony. On 28 November 2012, the parties settled

the outstanding equitable distribution claim and Plaintiff

dismissed her claims for post-separation support, alimony, and

attorney fees. On 15 January 2013, Judge Julie Kepple entered a

judgment that embodied the terms of the 28 November 2012

agreement and that awarded Plaintiff, among other things, the

marital residence, an automobile, household goods and other

items of property exclusive of “[D]efendant’s personal
 -3-
belongings that may still be situated in the home” and “the

contents of the garage as of the date of separation which shall

be the sole property of the Defendant.” In addition to his

personal belongings and the contents of the garage, Defendant

was also awarded, among other things, “[h]is jewelry including

his wedding ring”; “[a]ll property owned by him prior to the

marriage and any property acquired by gift or inheritance”; a

“1952 Chevy truck and all parts associated with the vehicle”

which was “currently titled in the name of Plaintiff’s father,”

with Plaintiff being ordered to “request that her father

transfer that title to Defendant.”

On 22 December 2012, Defendant brought his father and

cousin to the former marital residence for the purpose of

retrieving the items listed in the 15 January 2013 judgment.

Defendant was not, however, able to recover any of these items

because deputies from the Buncombe County Sheriff’s Department

arrived and informed him that he was not supposed to be on the

property. On 26 February 2013, the parties entered into a

consent order which provided that, “[o]n 02 March 2013,

Plaintiff shall allow Defendant to remove all items of personal

property awarded to him in the Equitable Distribution Judgment,”

with “[a]ll items that have been awarded to Defendant in the

Judgment [to] be placed in the garage for Defendant to take.”
 -4-
The trial court entered a civil restraining order against

Defendant by consent on the same day.

Defendant arrived at the marital residence to take

possession of the property allocated to him in the 15 January

2013 judgment on 2 March 2013. However, Defendant was refused

access to the Chevrolet truck by an off-duty deputy hired by

Plaintiff. In addition, Defendant found that a number of items

to which he was entitled and that had been left in the garage on

the date of separation were missing.

On 6 March 2013, Defendant filed a motion seeking the entry

of an order finding Plaintiff in contempt for refusing to allow

him to retrieve all of the items that he had been awarded in the

15 January 2013 judgment. On 11 April 2013, a hearing on

Defendant’s motion was held. At that hearing, Defendant

described the items that he was and was not able to retrieve

from the marital property, including, but not limited to, the

1952 Chevrolet truck and associated parts.

On 26 April 2013, the trial court entered an order finding

Plaintiff in civil contempt; authorizing her to purge herself of

the contempt by complying with prior orders of the court; and

ordering her to allow Defendant to enter the home, the shed, and

the garage that were located on the site of the marital

residence for the purpose of finding and removing the items of
 -5-
property that had been awarded to him in the 15 January 2013

judgment. On 24 June 2013, the parties were ordered to file

affidavits setting forth their opinions with respect to the fair

market value of the items that Defendant had not been able to

retrieve. Plaintiff and Defendant filed the required affidavits

on 3 July 2013 and 9 July 2013, respectively.

On 27 April 2013, Defendant went to the marital residence

to retrieve the remaining property to which he was entitled

under the 15 January 2013 judgment. At that time, Defendant

discovered that several items that he was entitled to remove

from the premises were missing or had been tampered with.

Although Defendant was able to take the Chevrolet truck into his

possession, he noticed, upon further inspection, that metal

filings, debris and motor oil had been poured into the engine at

some point during the time that the truck was in Plaintiff’s

possession.

On 25 June 2013, Defendant filed another motion seeking to

have Plaintiff held in contempt for failing to comply with the

court’s prior orders. In his motion, Defendant requested that

Plaintiff be held in contempt and incarcerated until she paid

the cost of repairing the damaged truck engine, or in the

alternative, that Plaintiff be held in criminal contempt and

punished for her contemptuous conduct. After holding a hearing
 -6-
for the purpose of considering Defendant’s motion on 27 August

2013, the trial court entered an order on 6 November 2013

finding that Plaintiff had intentionally and deliberately failed

to deliver the truck engine to Defendant in good repair despite

having had the ability to do so. In addition, the trial court

found that Plaintiff had willfully failed to deliver a number of

other items with an aggregate value of $5,431.25 to Defendant

and that Defendant had incurred $11,240.97 in attorney’s fees in

connection with his efforts to enforce the 15 January 2013

judgment. The trial court found Plaintiff in civil contempt

for violating prior orders of the court and authorized Plaintiff

to purge herself of contempt by paying the sum of $5,431.25 to

Defendant within 90 days; paying attorney’s fees in the amount

of $11,240.97 to Defendant within 90 days; and paying

“Defendant’s invoice for the truck engine for up to $7,000

within 90 days after receipt of the invoice.” Finally, the

trial court ordered that, in the event that Plaintiff failed to

comply with these judicially established purge conditions,

Defendant was entitled to seek further relief, including

incarceration, by making a proper application to the court.

Plaintiff noted an appeal to this Court from the trial court’s

order.

I. Legal Analysis
 -7-
A. Findings in Support of Legal Conclusions

In her first challenge to the trial court’s order,

Plaintiff contends that the trial court erred by determining

that Plaintiff could purge herself of contempt by paying various

amounts of money on the grounds that the trial court’s findings

of fact failed to support the trial court’s decision to hold her

in contempt. Plaintiff’s contention lacks merit.

A litigant’s failure to comply with a prior order of the

court constitutes a continuing civil contempt as long as the

order remains in force, the purpose of the order may still be

served by compliance with the order, the noncompliance by the

person to whom the order is directed is willful, and the person

to whom the order is directed is able to comply with the order

or to take reasonable measures that would permit compliance with

the order. N.C. Gen. Stat. § 5A-21. “In a domestic relations

action, a consent judgment which has been adopted by the court

may be enforced by civil contempt.” Hartsell v. Hartsell, 99

N.C. App. 380, 384, 393 S.E.2d 570, 573, appeal dismissed and

disc. review denied, 327 N.C. 482, 397 S.E.2d 218 (1990), aff’d

per curiam, 328 N.C. 729, 403 S.E.2d 307 (1991). “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.”
 -8-
Trivette v. Trivette, 162 N.C. App. 55, 60, 590 S.E.2d 298, 302-

303 (2004) (quoting Sharpe v. Nobles, 127 N.C. App. 705, 709,

493 S.E.2d 288, 291 (1997)). Findings of fact made during a

contempt proceeding 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, 99 N.C. App. at 385, 393 S.E.2d at 573.

In her brief, Plaintiff challenges Finding of Fact No. 15,

which states that “Plaintiff failed to comply with the terms of

the Equitable Distribution Judgment in that she intentionally

and deliberately did not distribute the truck engine in good

condition, in direct disobedience of the court’s order.”

According to Plaintiff, since neither she nor Defendant owned

the truck, the trial court lacked the authority to order the

truck’s distribution in the 15 January 2013 judgment, a fact

that, in Plaintiff’s opinion, prohibited the trial court from

holding her in contempt for failing to deliver the truck to

Defendant in good condition. A decision to accept the validity

of Plaintiff’s argument would, however, put us in the position

of overturning a portion of the original equitable distribution

order. Aside from the fact that Plaintiff consented to the

entry of the trial court’s order, Nickels v. Nickels, 51 N.C.

App. 690, 693, 277 S.E.2d 577, 579 (stating that “[a] consent
 -9-
judgment cannot be set aside except upon proper allegation and

proof that consent was not in fact given or that it was obtained

by fraud or mutual mistake”), disc. review denied, 303 N.C. 545,

281 S.E.2d 392 (1981), Plaintiff failed to either note an appeal

from the 15 January 2013 judgment in a timely manner, N.C.R.

App. P. 3(c)(1) (providing that a party must file and serve a

notice of appeal in a civil action within 30 days from the entry

of judgment), or seek relief from the equitable distribution

judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b). As a

result, since Plaintiff consented to the entry of the equitable

distribution judgment and has failed to challenge its validity

in a legally recognized manner, Plaintiff has no choice except

to comply with the trial court’s order. As a result, the trial

court did not err by utilizing the information contained in

Finding of Fact No. 15 to support its decision to find Plaintiff

in contempt.

In addition, Plaintiff contends that Finding of Fact No. 6,

in which the trial court found that Plaintiff should have

delivered the specific items listed in Finding of Fact No. 5 to

Defendant in accordance with the 15 January 2013 judgment,

lacked adequate evidentiary support given that the items of

property listed in Finding of Fact No. 5 were not specifically

identified in the 15 January 2013 judgment. In other words,
 -10-
Plaintiff’s argument rests on the contention that she cannot

lawfully be held in contempt for failing to allow Defendant to

obtain items that she was never ordered to distribute in the

first place. Plaintiff has not, however, cited any authority

requiring that items of property be identified in an equitable

distribution order more distinctly than the property

identification provisions of the equitable distribution order in

order for the distribution to become mandatory, and we know of

none. As a result of the fact that the equitable distribution

judgment awarded Defendant, in pertinent part, “the contents of

the garage” as of date of separation, “[t]ools,” “[h]is jewelry

including his wedding ring,” and “[a]ll property owned by him

prior to the marriage and any property acquired by gift or

inheritance” and the fact that the record contains evidentiary

support for the trial court’s determination that the specific

items that Defendant claimed to be entitled to obtain were

included in the items of property to be distributed to him in

accordance with the provisions of the equitable distribution

judgment,1 the record contained competent evidence to support the

1
At the hearing, Defendant described specific items of
jewelry that he was unable to recover, including a gold rope
chain, a gold band, a gold nugget band, and a three diamond gold
band. In addition, Defendant described the specific tools that
he was unable to retrieve from the garage, including a Snap-on
torque wrench, a Snap-on double slayer set, a blue point piston
ring compressor set, a compound square, a framing square, a
 -11-
trial court’s finding that Plaintiff failed to distribute these

items to Defendant as required by the equitable distribution

order. As a result, the record contained sufficient evidence to

support the trial court’s conclusion that certain items of

property should have been distributed to Defendant in accordance

with the equitable distribution order and that Plaintiff should

be held in contempt for failing to turn these items over to

Defendant.

The contempt order also determined that Plaintiff should be

held in contempt for failing to distribute additional items of

property to Defendant.2 However, the record is devoid of any

evidence tending to show that these additional items were in the

garage as of the date of separation or that Defendant was

otherwise entitled to receive them under the equitable

distribution judgment.3 As a result, given that there was no

evidence tending to show that Defendant was entitled to obtain

possession of these additional items of property under the

equitable distribution judgment, the trial court lacked any

framing hammer, and a wet dry shop vacuum. The trial court
found Defendant’s description of these missing items to be
credible and specifically rejected Plaintiff’s testimony
concerning the whereabouts of these items.
2
The items in question included a Buick Grand National
Model, a ’69 Camaro Model, and a Von Dutch ’53 Chevy Truck
Matchbox toy.
3
In fact, Defendant testified that these model cars had been
acquired during the marriage.
 -12-
authority to hold Plaintiff in contempt for failing to

distribute these additional items to Defendant.

The fact that the trial court erred in this limited respect

is not, however, sufficient to support an award of relief from

the trial court’s contempt order. An “appellant must not only

show error, but also that the error is material and prejudicial,

amounting to a denial of a substantial right and that a

different result would likely have ensued.” Cook v. Southern

Bonded, Inc., 82 N.C. App. 277, 281, 346 S.E.2d 168, 171 (1986),

disc. review denied, 318 N.C. 692, 351 S.E.2d 741 (1987). As we

have already noted, the record contains numerous instances of

contumacious conduct on the part of Plaintiff, who deliberately

delayed distributing property to which Defendant was clearly

entitled under the equitable distribution judgment, such as the

tools and jewelry discussed earlier in this opinion.

Plaintiff’s failure to distribute these items of property formed

a more than sufficient basis for the trial court’s finding that

Plaintiff should be held in contempt without regard to the fact

that Defendant did not receive the additional items of property

discussed in the preceding paragraph. In view of this fact and

our subsequent holding that the trial court lacked the authority

to require Plaintiff to reimburse Defendant for the missing

items as a purge condition, Plaintiff has not been prejudiced by
 -13-
the trial court’s decision to hold Plaintiff in contempt because

she failed to distribute these additional items of property to

Defendant. As a result, the trial court did not commit

prejudicial error by holding Plaintiff in contempt for her

failure to comply with prior orders of the court.

B. Failure to Establish Purge Conditions

Secondly, Plaintiff contends that the trial court erred by

finding her in contempt without affording her an opportunity to

purge herself of contempt. More specifically, Plaintiff

contends that the trial court lacked the authority to find her

in contempt for violating the 26 April 2013 contempt order given

that the purge conditions contained in the 26 April 2013 order

were so vague that Plaintiff could not possibly comply with

them. Plaintiff is not entitled to relief from the trial

court’s order on the basis of this contention.

An order holding a person in civil contempt must specify

the manner in which the person being held in contempt can purge

himself or herself of the contempt. N.C. Gen. Stat. § 5A-22.

The purge conditions adopted in response to this requirement

cannot be so vague as to render it impossible for an individual

to purge himself or herself of the contempt. Watson v. Watson,

187 N.C. App. 55, 65, 652 S.E.2d 310, 317 (2007), disc. review

denied, 362 N.C. 373, 662 S.E.2d 551 (2008). Although Plaintiff
 -14-
now complains that the purge provisions of the 26 April 2013

order were impermissibly vague, she did not, however, note a

timely appeal to this Court from the 26 April 2013 order and has

not sought to have that order set aside. N.C. R. App. P. Rule

3(c)(1) (providing that a party wishing to challenge a trial

court order on appeal must file and serve a notice of appeal

within thirty days after the entry of judgment). Thus, since

the 26 April 2013 order remains in full force and effect and

since Plaintiff is not contending that the allegedly vague purge

conditions precluded her from understanding her obligation to

turn over various items of property to Defendant, Plaintiff is

not entitled to collaterally attack the validity of the 26 April

2013 order in the course of an appeal taken from a later order.

As a result, since this aspect of Plaintiff’s challenge to the

trial court’s order is not properly before us,4 Plaintiff is not

entitled to relief from the trial court’s order on the basis of

this argument.

4
Plaintiff has not argued that that order that is before us
in this case did not delineate a series of steps that Plaintiff
could take in order to purge herself of contempt. Any such
contention would have been patently devoid of merit given that
the order at issue here specifically provided that Plaintiff
could purge herself of contempt by paying Defendant the value of
the items that Defendant should have received pursuant to the
equitable distribution order, reimbursing Defendant for the
attorney’s fees that he incurred in attempting to enforce the
trial court’s order, and paying the cost of having the truck
engine repaired.
 -15-
C. Validity of Specific Purge Conditions

1. Compensatory Damages

Thirdly, Plaintiff contends that the trial court erred in

ordering that Plaintiff could purge herself of civil contempt by

paying Defendant compensatory damages since the trial court

lacked the authority to require the payment of compensatory

damages as a purge condition. Defendant’s contention has merit.

According to the prior decisions of this Court, a trial

judge has no authority to award indemnifying fines or other

compensation to a private party in a civil contempt proceeding,

see Hartsell, 99 N.C. App. at 390-92, 393 S.E.2d at 577; United

Artists Records, Inc. v. Eastern Tape Corp., 18 N.C. App. 183,

187, 196 S.E.2d 598, 601-02, cert. denied, 283 N.C. 666, 197

S.E.2d 880 (1973), even if the party being held in contempt

deliberately and negatively affected the value of the other

party’s property while it was in his or her possession. See

Hartsell, 99 N.C. App. at 384, 393 S.E.2d at 573 (holding that

an award of compensatory damages in a contempt proceeding was

inappropriate despite the fact that, “when plaintiff took

possession of the [residence from the defendant,] it was a

‘wreck’ in that the house was full of garbage, the water pipes

had burst, flooding the inside, the yard was overgrown and full

of weeds, and part of a bedroom floor was rotted out where rain
 -16-
had come in through an open window”). As we have already noted,

the trial court found in its contempt order that “Defendant

should be reimbursed by Plaintiff for the replacement cost of

the engine” and authorized Plaintiff to purge herself of

contempt by paying “Defendant’s invoice for the truck engine for

up to $7,000 within 90 days after receipt of the invoice.” In

addition, the trial court found that the missing items that

Defendant should have received under the 15 January 2013 order

had a value of $5,431.25 and imposed a purge condition requiring

Plaintiff to pay that sum to Defendant. The clear effect of

these purge conditions was to require Plaintiff to compensate

Defendant for the value of his missing property and for the

damage that Plaintiff had inflicted upon the truck engine. As a

result of the fact that the trial court lacked the authority to

require Plaintiff to pay compensatory damages in order to purge

herself from contempt, we must vacate the compensatory damage

portions of the trial court’s civil contempt order.

2. Attorney’s Fees

Finally, Plaintiff contends that the trial court erred by

requiring Plaintiff to pay Defendant’s attorney’s fees in the

amount of $11,240.97. More specifically, Plaintiff contends

that the trial court did not properly hold Plaintiff in contempt
 -17-
and that the attorney’s fee award should be overturned for that

reason. We are not persuaded by Plaintiff’s argument.

As this Court has previously determined, a trial judge may

impose a purge condition requiring the payment of the other

litigant’s attorney’s fees in a case in which a party has been

found to be in contempt for violating an equitable distribution

order, Watson, 187 N.C. App. at 69, 652 S.E.2d at 320, even if

the trial court also unlawfully required the payment of

compensatory damages as a purge condition in the same case. See

Hartsell, 99 N.C. App. at 389-90, 393 S.E.2d at 576 (sustaining

an award of attorney’s fees despite having invalidated the trial

court’s award of compensatory damages in a case in which the

defendant had failed to comply with a provision contained in an

equitable distribution order requiring him to clean a house and

deliver it to the plaintiff in a tidy condition). In apparent

recognition of the trial court’s right to require her to pay

attorney’s fees to Defendant in contempt cases, Plaintiff

asserts that the trial court lacked the authority to require the

payment of Defendant’s attorney’s fees as a purge condition on

the theory that the trial court erred by holding her in

contempt, a contention that we have rejected earlier in this

opinion. As a result, given that the trial court properly found

Plaintiff to be in contempt for her failure to comply with the
 -18-
trial court’s earlier orders, the trial court did not err by

ordering Plaintiff to pay Defendant’s attorney’s fees as a purge

condition.

III. Conclusion

Thus, for the reasons set forth above, we conclude that

Plaintiff has not established that the trial court’s decision to

hold her in contempt should be overturned on appeal or that the

trial court erred by requiring her to pay Defendant’s attorney’s

fees as a purge condition. However, the trial court did err by

ordering Plaintiff to pay Defendant compensatory damages as a

purge condition. As a result, those portions of the trial

court’s contempt order requiring Plaintiff to pay Defendant

compensatory damages should be, and hereby are, vacated, while

the remainder of the trial court’s order should be, and hereby

is, affirmed.

AFFIRMED IN PART AND VACATED IN PART.

Judges BRYANT and ELMORE concur.

Report per Rule 30(e).