265 N.C. App. 149
N.C. Ct. App.2019Background
- District Court ordered Clifford Lee to pay child support beginning August 1, 2002; later arrears were established and monthly repayment set at $385 beginning March 1, 2011.
- The Cumberland County Child Support Enforcement Agency (the agency) filed a show-cause proceeding for Lee’s alleged noncompliance with the 2011 order; Lee was personally served and the hearing was continued multiple times.
- At the December 20, 2017 hearing Lee made arguments but presented no testimony or documentary evidence; the agency presented no evidence of Lee’s present ability to pay.
- On January 11, 2018 the trial court found Lee in willful civil contempt, concluding he had the ability to comply and ordered purge conditions tied to regular payments.
- Lee appealed, arguing (1) the record lacked evidence of his ability to pay and (2) the agency made accounting errors; the Court of Appeals considered only the first issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contempt order was supported by competent evidence that defendant had the present ability to pay (required for civil contempt enforcing child support) | Agency argued the Court of Appeals’ prior decision in Cumberland Cty. ex rel. Mitchell v. Manning was incorrect and that the burden to show ability to pay shifted to Lee when the show-cause was court-initiated—so the agency did not need to introduce evidence of ability to pay | Lee argued the record contained no competent evidence of his present ability to pay arrears or purge amount, so contempt cannot stand | Vacated and remanded: court held the agency failed to produce competent evidence that Lee had the ability to pay; the court is bound by Cumberland Cty. ex rel. Mitchell requiring such evidence, so contempt order must be vacated and the case remanded for proceedings consistent with that rule |
Key Cases Cited
- Watson v. Watson, 187 N.C. App. 55 (2007) (standard of review for contempt and deference to trial court findings)
- Cumberland Cty. ex rel. Mitchell v. Manning, 822 S.E.2d 305 (N.C. Ct. App. 2018) (trial court must have competent evidence of ability to pay before holding obligor in contempt)
- Moss v. Moss, 222 N.C. App. 75 (2012) (procedures for initiating civil contempt and burden allocation)
- Cty. of Durham v. Hodges, 809 S.E.2d 317 (N.C. Ct. App. 2018) (ability-to-pay requirement in contempt proceedings)
- Plott v. Plott, 74 N.C. App. 82 (1985) (in child support contempt proceedings court must find obligor had means to comply and wilfully refused)
- In re Civil Penalty, 324 N.C. 373 (1989) (panel precedent of Court of Appeals binds subsequent panels unless overturned by higher court)