222 N.C. App. 75
N.C. Ct. App.2012Background
- Defendant and plaintiff, formerly married, resolved their equitable distribution via a May 2010 consent order.
- Under the consent order, the Denali was to be transferred to plaintiff and the Mercedes to defendant, with the Mercedes currently titled only in plaintiff’s name.
- The parties were to remove each other’s name from the vehicle titles within one year and bear their own vehicle costs.
- Defendant did not refinance the Mercedes in her name, leaving plaintiff liable for the Mercedes debt.
- On August 23, 2010, Coastal Federal Credit Union informed that the Mercedes was repossessed and sold, leaving a deficiency of $12,284.89 charged to plaintiff.
- Plaintiff filed a verified motion for civil contempt on February 7, 2011, seeking fees and costs for pursuing the contempt and asking the court to sanction defendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Burden of proof in contempt show cause | Plaintiff contends burden shifts when a motion initiates contempt | Defendant argues burden on her due to assistant clerk’s show cause order | Defendant waived due to no objection; burden on plaintiff not required |
| Willfulness of noncompliance with the consent order | Plaintiff argues defendant had the means and willfully failed to pay | Defendant asserts no knowledge or intent to owe the deficiency | Court found willfulness based on evidence defendant knew of deficiency and could pay |
| Procedural defect waiver | Plaintiff asserts no waiver issue if not objected | Defendant failed to raise procedural defect | Waived defect by defendant’s appearance and participation in the contempt hearing |
Key Cases Cited
- Lowder v. Mills, Inc., 301 N.C. 561 (N.C. 1981) (waiver rules in show cause contempt proceedings)
- Bethea v. McDonald, 70 N.C. App. 566 (N.C. App. 1984) (appearance in court suffices to support jurisdiction over contempt)
- Trivette v. Trivette, 162 N.C. App. 55 (N.C. App. 2004) (burden of proof issues when aggrieved party initiates contempt)
- Cannon v. Miller, 313 N.C. 324 (N.C. 1985) (binding authority on appellate adherence to Supreme Court decisions)
- Watson v. Watson, 187 N.C. App. 55 (N.C. App. 2007) (finding of fact conclusive if supported by competent evidence)
- In the Matter of Appeal from Civil Penalty, 324 N.C. 373 (N.C. 1989) (panel bound by prior decisions of same court)