Plott v. Plott

327 S.E.2d 273 (1985)

Olivia Parker PLOTT v. Artist Lee PLOTT.

No. 8422DC645.

Court of Appeals of North Carolina.

April 2, 1985.

*274 Brock & McClamrock by Grady L. McClamrock, Jr., Mocksville, for plaintiff-appellant.

Powell & Yeager by Lawrence J. Fine, Winston-Salem, for defendant-appellee.

EAGLES, Judge.

Plaintiff first assigns error to the court's order on the basis that the evidence does not support the findings of fact and that the findings of fact do not support the conclusions of law. Specifically, plaintiff contends that there is no evidence to support the finding that plaintiff possessed the means to comply with the support order. She argues that this unsupported finding was error because Coble v. Coble, 300 N.C. 708, 268 S.E.2d 185 (1980) requires that court orders in child support cases be supported by findings based on competent evidence. We disagree with her contention.

Coble v. Coble, supra, applies to actions to determine the amount of child support. When the court entered the 2 May 1983 order directing the payment of child support, it made the findings required by Coble v. Coble, supra. There was no appeal and those findings presumably were supported by competent evidence. Here, *275 plaintiff does not contend that the findings in the 2 May 1983 child support order were not supported by competent evidence. Rather, she argues that those same findings must be made and supported in this proceeding to enforce the child support order. This argument is without merit.

It is well established that in civil contempt proceedings to enforce orders for child support, the court is required to find only that the allegedly delinquent obligor has the means to comply with the order and that he or she wilfully refused to do so. E.g., Fitch v. Fitch, 26 N.C.App. 570, 216 S.E.2d 734, cert. denied 288 N.C. 240, 217 S.E.2d 679 (1975); Bennett v. Bennett, 21 N.C.App. 390, 204 S.E.2d 554 (1974). The court here made the following pertinent findings:

3. That since the entry of the aforesaid Order, the plaintiff has paid a total of $140.00 for the support and maintenance of the minor children born to the marriage and that the total arrearage which is due and owing under the terms of said Order is $1,025.00. 4. That the plaintiff has had the means with which to comply with the terms of the Order of May 2, 1983, each month since its entry. 5. That the plaintiff's expenses for her support are approximately the same now as on May 2, 1983, and that the plaintiff has had no extraordinary financial expenditures since that date.

Based on these findings, the court concluded that plaintiff was in contempt of court for failure to comply with the child support order.

Though the findings are not explicit, it is clear that plaintiff both possessed the means to comply with the order and has wilfully refused to do so. While explicit findings are always preferable, they are not absolutely essential where the findings otherwise clearly indicate that a contempt order is warranted. Medlin v. Medlin, 64 N.C.App. 600, 307 S.E.2d 591 (1983).

Plaintiff's contention that the court's findings are not supported by evidence is likewise without merit. The statutes governing proceedings for civil contempt in child support cases clearly assign the burden of proof to the party alleged to be delinquent. Civil contempt proceedings are initiated by a party interested in enforcing the order by filing a motion in the cause. The motion must be based on a sworn statement or affidavit from which the court determines there is "probable cause to believe that there is civil contempt." G.S. 5A-23. The opposing party must then show cause why he should not be found in contempt. In a proceeding to enforce an order for child support, this would involve showing either that the alleged delinquent lacked the means to pay or that the failure to pay was not wilfull. See generally, Lee, N.C.Family Law Section 166 (1980).

The court here had already found probable cause to believe that there was civil contempt based on the verified allegations in defendant's motion. Plaintiff offered no evidence except a stipulation as to the amount of the arrearage. This was clearly not sufficient to refute the motion's allegations. Since plaintiff failed to carry her burden, the court was warranted in finding her in contempt. Plaintiff's contention that the evidence is not sufficient is without merit.

Plaintiff contends that the evidence and findings supporting the award of attorney fees to defendant were insufficient. We disagree. In actions for support only, the court may award reasonable attorney fees to a party if it finds: (1) that the party is acting in good faith; (2) that the party has insufficient means to defray the costs of the action; and (3) that the party ordered to pay support had not provided adequate support under the circumstances existing at the time of the institution of the action or proceeding. Gibson v. Gibson, 68 N.C.App. 566, 316 S.E.2d 99 (1984); Quick v. Quick, 67 N.C.App. 528, 313 S.E.2d 233 (1984); G.S. 50-13.6.

*276 The trial court made the following finding regarding defendant's attorney fees:

6. That the defendant's attorney has rendered further legal services to the defendant in this cause, in the preparation, filing and hearing of this Motion on behalf of the defendant and the minor children born to the marriage, and that the value of said services is $150.00.

Accordingly, the court concluded "[t]hat the defendant is entitled to an award from the plaintiff as attorney's fees." The other required findings are not so explicit. Nevertheless, the essential facts are evidence in the court's order. There is no allegation and no evidence of bad faith on the part of defendant. From the terms of the 2 May 1983 order setting the amount of child support, plaintiff's stipulation in court that the arrearage was $1025, and the absence of any evidence from plaintiff, we can properly infer that plaintiff had refused to provide adequate support under the circumstances existing at the time this action to enforce the support order was instituted by defendant.

Further, defendant alleged in his verified motion that he lacked sufficient means to pay the legal costs of the action. This allegation was not contradicted. The court, in concluding that defendant was "entitled" to attorney fees, necessarily found defendant's allegation to be true. We think that Medlin v. Medlin, supra, applies to awards of attorney fees so that explicit findings are not required where there is no conflicting evidence and the facts are obvious. Plaintiff's argument is without merit.

The order appealed from is

Affirmed.

ARNOLD and PARKER, JJ., concur.