An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-815
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
LISA C. BROWNSTEAD,
Plaintiff,
v. Mecklenburg County
No. 07 CVD 6452
CHRISTOPHER K. BROWNSTEAD
Defendant.
Appeal by defendant from order entered 25 March 2013 by
Judge Paige B. McThenia in Mecklenburg County District Court.
Heard in the Court of Appeals 20 November 2013.
The Law Office of Donald J. Vicini, P.C., by Donald J.
Vicini, for plaintiff-appellee.
Seth B. Weinshenker, P.A., by Seth B. Weinshenker, for
defendant-appellant.
HUNTER, JR., Robert N., Judge.
Christopher Brownstead (“Defendant”) appeals from a 25
March 2013 order finding Defendant in willful civil contempt for
failure to pay child support payments and court-ordered
attorney’s fees for Lisa Brownstead (“Plaintiff”). Defendant
contends the trial court’s award of attorney’s fees was an abuse
of discretion because N.C. Gen. Stat. § 50-13.6 (2013) requires
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that Plaintiff show she has insufficient means to defray the
expense of the suit and that the trial court make specific
findings to that effect. Defendant also argues that the trial
court erred in modifying a prior order’s “math error” of the
amount of child support in arrears. After careful review, we
vacate paragraph 2c of the trial court’s order that requires
Defendant to pay Plaintiff’s attorney’s fees and remand for
further findings of fact concerning Plaintiff’s ability to
defray the costs of litigation. We affirm the remainder of the
trial court’s order.
I. Facts & Procedural History
Plaintiff and Defendant were married to each other from 6
October 2001 and were separated on 10 September 2006. Three
children were born during Plaintiff and Defendant’s marriage.
On 12 January 2010, Judge Donnie Hoover entered an Amended Order
Regarding Modification of Child Support and Contempt in
Mecklenburg County District Court. The order altered the prior
temporary child support and custody order of the court due to a
change in Defendant’s employment. Defendant was ordered to pay
$1,430.00 per month in permanent ongoing child support.
Defendant remained responsible for $8,518.06 in past due
payments payable before 14 June 2009 and the total amount of all
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past due payments, $26,259.00. Defendant was required to
continue to provide health insurance for the children. Lastly,
Defendant was required to pay $2,500 of Plaintiff’s attorney’s
fees. In its findings of fact, the trial court found that
“Plaintiff instituted her Motions for Contempt in good faith and
has insufficient means with which to defray the expenses of this
suit.”
Defendant did not comply with the 12 January 2010 order and
Plaintiff filed motions for contempt requesting attorney’s fees
and judgments for past due amounts on 10 October 2011, 9
February 2012, and 15 June 2012. Orders were issued finding
Defendant in contempt on 9 March 2010, 27 July 2010, 19 July
2011, and 25 March 2013, and each subsequent order altered the
amounts owed by Defendant. Defendant appeals the 25 March 2013
order.
The 25 March 2013 contempt order found Defendant was in
“willful civil contempt” and required Defendant to pay his past
due child support obligations in two payments to Plaintiff of
$6,636.50 and to pay continuing obligations of $1,430 and
“[a]rrears payments of $500 until the total amount of $21,009.00
has been paid.” The trial court explained the $21,009 figure
was a correction of the 19 July 2010 order, which the trial
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court said contained a “math error” on a prior arrearage figure.
The trial court also ordered Defendant to pay “plaintiff’s
reasonable attorney fees and expenses in the total amount of
$15,000 at the monthly rate of $400 per month” to Plaintiff’s
counsel. In Paragraph 24 of the order, the trial court found:
24. In Plaintiff’s pleadings, specifically
the October 10, 2011 verified Motion for
Contempt, and the June 15, 2012 verified
Amended Motion for Contempt and
Determination of Attorney Fees, plaintiff
affirmed that she was an interested party,
acting in good faith, with insufficient
means to defray the cost of litigation or
pay her attorney for his services. During
the September 12, 2012 hearing, Defendant
did not cross-examine the Plaintiff on any
of these issues, nor otherwise present any
evidence to refute Plaintiff’s verified
claims. The court accepts Plaintiff’s
verified pleadings as Plaintiff’s affidavit
in support of Plaintiff’s motion and as
Plaintiff’s affidavit upon which this order
is, inter alia, based. The court finds that
Plaintiff is an interested party, acting in
good faith, who has insufficient means to
defray the cost of litigation or to pay her
attorney for his services, which would not
have been necessary but for Defendant’s
wrongful and willful failure to comply with
the valid orders of the court.
Defendant timely filed a written notice of appeal on 23 April
2013.
II. Jurisdiction & Standard of Review
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This Court has jurisdiction of this matter pursuant to N.C.
Gen. Stat. § 5A-24 (2013) (“A person found in civil contempt may
appeal in the manner provided for appeals in civil actions.”);
Hancock v. Hancock, 122 N.C. App. 518, 522, 471 S.E.2d 415, 418
(1996) (“[I]n civil contempt matters, appeal is from the
district court to this Court.”).
Defendant argues that the trial court abused its discretion
in awarding attorney’s fees to Plaintiff without making any
findings of fact showing Plaintiff had insufficient means to
defray her legal expenses. We agree. Defendant next argues the
trial court erred in altering the total amount in arrears after
discovering an error carried forward from a prior order. We
disagree.
“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.” Watson v. Watson, 187 N.C. App. 55, 64,
652 S.E.2d 310, 317 (2007), disc. review denied, 362 N.C. 373,
662 S.E.2d 551 (2008). “‘Findings of fact made by the judge in
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.’”
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Id. (quoting Hartsell v. Hartsell, 99 N.C. App. 380, 385, 393
S.E.2d 570, 573 (1990)). Where there is no finding of fact on
an issue, there can be no competent evidence to support a
conclusion of law on that issue. See Winders v. Edgecombe Cnty.
Home Health Care, 187 N.C. App. 668, 674, 653 S.E.2d 575, 579
(2007).
III. Analysis
Defendant first argues that the trial court made
insufficient findings of fact that Plaintiff had insufficient
means to defray the costs of litigation. We agree.
In an action for child custody, “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.
“A party has insufficient means to defray the expense of the
suit when he or she is unable to employ adequate counsel in
order to proceed as litigant to meet the other spouse as
litigant in the suit.” Taylor v. Taylor, 343 N.C. 50, 54, 468
S.E.2d 33, 35 (citation and quotation marks omitted), reh’g
denied, 343 N.C. 517, 472 S.E.2d 25 (1996). The trial court’s
findings concerning a party’s ability to defray the costs of
litigation must consist of more than a “bald statement that a
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party has insufficient means to defray the expenses of the
suit.” Cameron v. Cameron, 94 N.C. App. 168, 172, 380 S.E.2d
121, 124 (1989) (vacating attorneys’ fees order and remanding
for sufficient findings of fact); Atwell v. Atwell, 74 N.C. App.
231, 238, 328 S.E.2d 47, 51 (1985) (vacating attorneys’ fees
award where findings of fact were insufficient to support
determination that wife had insufficient means to defray
litigation costs). Merely restating the statutory language in
this respect is insufficient because this “finding” concerning a
party’s ability to defray the costs of litigation is, in
substance, a conclusion of law; as such, it must be supported by
findings of fact. Atwell, 74 N.C. App. at 238, 328 S.E.2d at 51
(citing Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982)).
This Court more recently held in Dixon v. Gordon, ___ N.C.
App. ___, 734 S.E.2d 299 (2012), review denied, ___ N.C. ___,
743 S.E.2d 191 (2013), that an order’s recitation of “the bare
statutory language” that the father in a child custody action
did “not have sufficient funds with which to employ and pay
legal counsel” to “meet [the mother] on an equal basis” was
insufficient to support the award of attorneys’ fees. Id. at
___, 734 S.E.2d at 305. Further, in Dixon, evidence of the
father’s income was found in the record, but we held there were
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still “no findings in the trial court’s order which detail this
information.” Id. This Court also noted that “more specific
findings of fact are normally present in cases where attorney’s
fees are awarded for actions involving child custody.” Id. at
___ n.1, 734 S.E.2d at 305 n.1; see also Church v. Decker,
COA13-456, 2013 WL 6669119 at *2–3 (Dec. 17, 2013) (unpublished)
(citing Dixon to note a lack of specific findings under similar
facts).
Here, the trial court ruled that Plaintiff was entitled to
attorney’s fees by stating only the “bare statutory language”
that Plaintiff had “insufficient means with which to defray the
costs of this action” and not including any findings in its
order to support this determination. Without such findings, the
trial court’s order for attorney’s fees cannot be sustained.
Dixon, ___ N.C. App. at ___, 734 S.E.2d at 305; Cameron, 94 N.C.
App. at 172, 380 S.E.2d 124; Atwell, 74 N.C. App. at 238, 328
S.E.2d at 51–52. Accordingly, we remand this matter to the
trial court for entry of adequate findings of fact, based on the
evidentiary record, concerning Plaintiff’s ability to defray the
costs of litigation.
Defendant also argues that “there was no testimony or
evidence offered by the Appellee to support those findings” that
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Defendant was $21,009 in arrears instead of the $18,519 which
was listed in the 26 July 2010 order. Defendant does not cite
to any relevant authority for his argument except to state that
contempt motions are not the usual method used to correct or
amend a prior motion. Defendant only notes, without citation,
that Rule 59(e) and Rule 60 of the North Carolina Rules of Civil
Procedure are the usual motions used to correct prior orders.
Rule 28 of our Appellate Rules of Procedure provides:
The body of the argument and the statement
of applicable standard(s) of review shall
contain citations of the authorities upon
which the appellant relies. Evidence or
other proceedings material to the issue may
be narrated or quoted in the body of the
argument, with appropriate reference to the
record on appeal, the transcript of
proceedings, or exhibits.
N.C. R. App. P. 28; see also State v. Green, 101 N.C. App. 317,
320, 399 S.E.2d 376, 378, writ denied, 328 N.C. 335, 400 S.E.2d
449 (1991) (“Under Rule 28(b)(5) of the N.C. Rules of Appellate
Procedure, when a party fails to cite authority in support of an
assignment of error, the party abandons that assignment of
error.”).
Further, “[i]t is not the duty of this Court to supplement
an appellant’s brief with legal authority or arguments not
contained therein.” Eaton v. Campbell, ___ N.C. App. ___, ___,
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725 S.E.2d 893, 894 (2012) (citation and quotation marks
omitted); see also Viar v. N.C. Dep’t of Transp., 359 N.C. 400,
402, 610 S.E.2d 360, 361 (2005); Goodson v. P.H. Glatfelter Co.,
171 N.C. App. 596, 606, 615 S.E.2d 350, 358 (“It is not the duty
of this Court to supplement an appellant’s brief with legal
authority or arguments not contained therein.”), disc. review
denied, 360 N.C. 63, 623 S.E.2d 582 (2005).
Because Defendant does not cite any relevant legal
authority noting that the trial court was prohibited from
modifying the prior contempt order in a subsequent contempt
order, we hold Defendant has abandoned his argument on appeal by
failing to cite authority for his position.
IV. Conclusion
As the trial court did not make specific findings of fact
concerning Plaintiff’s ability to defray the costs of litigation
in this child custody case, we must remand this case to the
trial court for further findings of fact on that issue. We
affirm the trial court’s modification of the trial court order.
Vacated and remanded in part, affirmed in part.
Judges ROBERT C. HUNTER and CALABRIA concur.
Report per Rule 30(e).
Brownstead v. Brownstead
Combined Opinion