{ "id": 11916967, "name": "ANN TWISDALE SMITH (Hall), Plaintiff v. DONALD E. SMITH, JR., Defendant", "name_abbreviation": "Smith v. Smith", "decision_date": "1996-01-02", "docket_number": "No. COA95-122", "first_page": "334", "last_page": "341", "citations": [ { "type": "official", "cite": "121 N.C. App. 334" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "43 ALR3d 793", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "32 ALR3d 888", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "61 ALR2d 1095", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "53 ALR2d 591", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "19 ALR3d 502", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "136 S.E.2d 81", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "82" } ], "opinion_index": 0 }, { "cite": "261 N.C. 764", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575575 ], "year": 1964, "pin_cites": [ { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0764-01" ] }, { "cite": "387 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "219" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 118", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519814 ], "year": 1990, "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0118-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "parenthetical": "c" } ], "opinion_index": 0 }, { "cite": "407 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "271" }, { "page": "271" }, { "page": "276" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523197 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/103/0697-01" ] }, { "cite": "348 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "82 N.C. App. 758", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8360037 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/82/0758-01" ] }, { "cite": "403 S.E.2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 729", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539829 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0729-01" ] }, { "cite": "397 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498506, 2499917, 2493454, 2495514, 2493374 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0482-04", "/nc/327/0482-05", "/nc/327/0482-01", "/nc/327/0482-02", "/nc/327/0482-03" ] }, { "cite": "393 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "99 N.C. App. 380", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523187 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/99/0380-01" ] }, { "cite": "179 S.E.2d 194", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "parenthetical": "holding that attorney's fees were properly awarded in a civil contempt action to enforce a child support order since attorney's fees could have been awarded in the original action for child support" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 476", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554409 ], "year": 1971, "pin_cites": [ { "parenthetical": "holding that attorney's fees were properly awarded in a civil contempt action to enforce a child support order since attorney's fees could have been awarded in the original action for child support" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0476-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1986, "pin_cites": [ { "parenthetical": "allowance of costs in discretion of court" }, { "page": "188" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 6-18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1986, "pin_cites": [ { "parenthetical": "when costs allowed to plaintiff as a matter of course" } ], "opinion_index": 0 }, { "cite": "197 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559840, 8559809, 8559848, 8559821, 8559860 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0666-03", "/nc/283/0666-01", "/nc/283/0666-04", "/nc/283/0666-02", "/nc/283/0666-05" ] }, { "cite": "196 S.E.2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "pin_cites": [ { "page": "602" }, { "page": "602" } ], "opinion_index": 0 }, { "cite": "18 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548013 ], "year": 1973, "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc-app/18/0183-01" ] }, { "cite": "336 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 808", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525512 ], "year": 1985, "pin_cites": [ { "page": "810" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0808-01" ] }, { "cite": "298 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "350" } ], "opinion_index": 0 }, { "cite": "307 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562530 ], "year": 1983, "pin_cites": [ { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0401-01" ] } ], "analysis": { "cardinality": 696, "char_count": 15958, "ocr_confidence": 0.74, "pagerank": { "raw": 1.8401690013055672e-07, "percentile": 0.722022017499862 }, "sha256": "b7957ba728c609cf99f52f6fe4e0ef1b5c2fe13ea4d1269d1c4901d96f03d9af", "simhash": "1:9f38ed26984a3474", "word_count": 2609 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and SMITH concur." ], "parties": [ "ANN TWISDALE SMITH (Hall), Plaintiff v. DONALD E. SMITH, JR., Defendant" ], "opinions": [ { "text": "WALKER, Judge.\nThe plaintiff, Ann Smith, and the defendant, Donald Smith, were married on 18 June 1966 and had a child, Brook Smith, on 19 September 1975. The parties separated on 6 August 1979 and a consent order was entered on 13 February 1980 whereby plaintiff was awarded custody of the child. On 22 January 1991 the parties entered into a consent judgment. This judgment included provisions whereby the defendant agreed to pay for the child\u2019s education and support after high school.\nOn or about 11 February 1994 plaintiff filed a motion for contempt against defendant for failure to comply with the 22 January 1991 consent order, with regard to the child\u2019s higher education. On 25 October 1994, the district court found defendant to be in contempt after finding \u201cthat defendant has the means and ability to comply with the Order or to take reasonable measures to comply with the terms of this Order.\u201d The court then issued the following order:\nthat he [defendant] comply with the terms of the Consent Order entered into by the parties and in particular Paragraph 3 of the Consent Order. Defendant shall pay within thirty (30) days of the receipt or demand any educational expense, invoice, or bill, said date of receipt being deemed to be the date of hand delivery or three (3) days after said expense, invoice or bill is mailed to his last known address.\nOn appeal, defendant argues that the trial court erred in adopting the findings of fact contained in the 1 November 1994 Order as a narration of the evidence presented at trial when it settled the record on appeal.\nDefendant presented a narration of the evidence which was objected to by opposing counsel on the grounds that there was no recording or transcription of the evidence. Plaintiff proposed that the findings of fact of the court be used as the narration of the evidence. In adopting its own findings of fact, the court stated \u201cat this time [the Court] cannot recall with sufficient specificity the evidentiary nature of the aforesaid hearing which would allow the Court to make a ruling as to the accuracy or lack of accuracy of the proposed Narration of Evidence.\u201d Even though defendant included his narration of the evidence in the record, he has failed to direct us to any portion thereof which would contradict that found by the trial court. Therefore, defendant has not shown that he was prejudiced by the trial court\u2019s procedure in settling the record.\nBy his next assignment of error, defendant argues that the trial court erred in finding the defendant in contempt of court and ordering defendant to pay the sum of $8,349.54 to purge himself of this contempt.\nPursuant to N.C. Gen. Stat. \u00a7 5A-21 (1986), in order to find a litigant in civil contempt, the Court must find: (1) the order remains in force; (2) the purpose of the order may still be served by compliance with the order; and (3) the person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable him to comply with the order. While the statute does not expressly require that defendant\u2019s conduct be willful, our courts have interpreted the statute to require an element of willfulness. Henderson v. Henderson, 307 N.C. 401, 408, 298 S.E.2d 345, 350 (1983).\nIn reviewing the trial court\u2019s finding of contempt, this Court is limited to a consideration of \u201cwhether the findings of fact by the trial judge are supported by competent evidence and whether those factual findings are sufficient to support the judgment.\u201d McMiller v. McMiller, 77 N.C. App. 808, 810, 336 S.E.2d 134, 136 (1985). For the sake of clarity, we have renumbered and paraphrased the findings of fact which the defendant claims are unsupported by the evidence. They include the following:\n(1) The child (Brook) was accepted at the University of Montana. Defendant was notified regarding Brook\u2019s acceptance to college in Montana in an attempt to work out financial arrangements.\n(2) Plaintiff incurred $8,349.54 that was directly related to educational expenses while Brook was attending the University of Montana.\n(3) On two occasions, defendant was requested by plaintiff to pay for these expenses. Despite these communications, defendant failed and refused to pay any of these expenses.\n(4) Defendant refused to pay these expenses because he thought they were unreasonable. The tuition at the University of Montana was an out-of-state tuition. The Court found as an ultimate fact that Brook\u2019s attendance at the University of Montana was not unreasonable in light of the facts and circumstances.\nDefendant also contends that the court\u2019s conclusion that he was in willful contempt is unsupported by the evidence.\nPlaintiff introduced evidence tending to show that under the consent judgment, defendant agreed to \u201cpay for the higher education of the minor child which shall include college, technical school or other educational opportunities past the high school level.\u201d That for the purposes of the judgment, educational expenses expressly included \u201cfees, tuitions, lodging, books, travel, clothing and other necessary and reasonable expenses, which would'customarily be incurred in the pursuit of higher education.\u201d\nFurthermore, the record demonstrates that defendant had the capability to comply with the consent judgment. The evidence showed that defendant was a practicing dentist whose average earnings were between $5,000-$6,000 a month in 1993. The same year defendant had a net worth of $498,000.\nDespite defendant\u2019s refusal to pay such expenses, the evidence tended to show that such expenses were reasonable and directly related to the educational needs of Brook. The consent judgment provided numerous examples of \u201chigher education\u201d expenses which included tuition. Defendant contends that Brook\u2019s expenses were unreasonable because they included out-of-state tuition. We find no limitation in the consent judgment regarding the cost of tuition or the location of a college. Furthermore, the record shows that the defendant, far from discouraging Brook from moving to Montana, sent him money to complete high school in that state. After carefully reviewing the record, we find that there was competent evidence to support the court\u2019s findings and conclusion that the defendant was in contempt of the consent judgment pursuant to N.C. Gen. Stat. \u00a7 5A-21(a).\nDefendant next assigns as error the court\u2019s order that defendant \u201cpay within thirty (30) days of receipt or demand any educational expense, invoice, or bill\u201d on the ground that the court exceeded its authority and effectively modified the consent order of 22 January 1991.\nRule 10(c)(1) of the Rules of Appellate Procedure requires that \u201c[e]ach assignment of error shall, so far as practical, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned.\u201d N.C. App. Rule 10(c). The legal basis preserved on appeal by defendant\u2019s assignment of error is that the court\u2019s order is ambiguous and an abuse of discretion. However, defendant now attempts to argue that the court\u2019s order modified the terms of the parties\u2019 consent judgment. We conclude that defendant has failed to properly preserve this question for appellate review because it has not been made the subject of an assignment of error. It is therefore beyond our scope of review and we decline to address it.\nOn appeal, plaintiff argues that the trial court erred by failing to order defendant to pay attorney\u2019s fees. We agree.\nUnder the law of this State attorney\u2019s fees are not recoverable either as an item of damages or of costs absent express statutory authority. Records v. Tape Corp. and Broadcasting System v. Tape Corp., 18 N.C. App. 183, 187, 196 S.E.2d 598, 602, cert. denied, 283 N.C. 666, 197 S.E.2d 880 (1973). In Tape Corp., this Court squarely held that neither the provisions of N.C. Gen. Stat. \u00a7 6-18 (1986) (when costs allowed to plaintiff as a matter of course) nor the provisions of N.C. Gen. Stat. \u00a7 6-20 (1986) (allowance of costs in discretion of court) are applicable to an action for civil contempt. Id. at 188, 196 S.E.2d at 602.\nHowever, a trial court may properly award attorney\u2019s fees to a plaintiff who prevails in a civil contempt action. This Court has approved the allowance of attorney\u2019s fees in contempt actions where such fees were expressly authorized by statute as in the case of child support. See Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971) (holding that attorney\u2019s fees were properly awarded in a civil contempt action to enforce a child support order since attorney\u2019s fees could have been awarded in the original action for child support).\nAlso, this Court has recently upheld the awarding of attorney\u2019s fees under the court\u2019s broad contempt powers to enforce equitable distribution awards where attorney\u2019s fees were not expressly authorized by statute. See Hartsell v. Hartsell, 99 N.C. App. 380, 393 S.E.2d 570, appeal dismissed and disc. review denied, 327 N.C. 482, 397 S.E.2d 218 (1990), affirmed, 328 N.C. 729, 403 S.E.2d 307 (1991); Conrad v. Conrad, 82 N.C. App. 758, 348 S.E.2d 349 (1986).\nDefendant argues that the court is without authority to award attorney\u2019s fees in this case. As support for this argument defendant relies on Powers v. Powers, 103 N.C. App. 697, 407 S.E.2d 269 (1991). We find Powers distinguishable from the case at hand. In Powers, the parties entered into a consent judgment wherein the defendant agreed to \u201cprovide and pay for four years of college education for Jennifer [child] at a college to be selected by the Husband [defendant] and Jennifer, provided however that the Husband shall not unreasonably withhold his consent to Jennifer\u2019s selection of a college.\u201d Id. at 699, 407 S.E.2d at 271. The defendant was found in contempt for not complying with this provision in the consent judgment. Id. at 700, 407 S.E.2d at 271. However, limiting its decision to the facts of that case, this Court declined to grant attorney\u2019s fees to the plaintiff finding that the provision involved \u201cneither a child support order (the child support provision under the consent judgment expired when the child reached 18 years of age and the provision here was made separate and apart from the child support provision) nor an equitable distribution award.\u201d Powers at 707, 407 S.E.2d at 276.\nIn the present case, defendant agreed to support Brook beyond the age of 18 in the following ways:\n3. The Defendant shall pay for the higher education of the minor child which shall include college, technical school or other educational opportunities past the high school level. For the purposes of this Judgment, expenses of higher education, shall include fees, tuitions, lodging, books, travel, clothing and other necessary and reasonable expenses, which would customarily be incurred in the pursuit of higher education.\n4. The Defendant shall maintain a life insurance policy with the minor child, Brook Smith, as beneficiary, in the sum of Fifty Thousand ($50,000.00) Dollars, which policy shall be continuously maintained until the minor child obtained the age of twenty-five years or has completed undergraduate school. . . .\n5. The Defendant shall provide health insurance for the minor child through age twenty-five or completion of his pursuit of higher education. . . .\nDefendant argues that the above provisions are not in the nature of child support. In support of this argument defendant apparently relies on N.C. Gen. Stat. \u00a7 48A-2 (1984), which defines a minor as \u201cany person who has not reached the age of 18 years,\u201d and N.C. Gen. Stat. \u00a7 50-13.4 (c) (1994), which provides that parental support obligations terminate when a child reaches 18.\nHowever, under the facts of this case we find that neither of the above statutes are controlling. The law of this State establishes that \u201ca parent can assume contractual obligations to his child greater than the law otherwise imposes.\u201d Williams v. Williams, 97 N.C. App. 118, 122, 387 S.E.2d 217, 219 (1990). \u201c[A] parent can bind himself by contract to support a child after emancipation and past majority, and such a contract is enforceable as any other contract.\u201d Church v. Hancock, 261 N.C. 764, 765, 136 S.E.2d 81, 82 (1964). Pursuant to the consent judgment, the defendant agreed to pay for the \u201chigher education of the minor child which shall include . . . fees, tuitions, lodging, books, travel, clothing and other necessary and reasonable expenses. . to provide life insurance for Brook \u201cuntil the minor child obtained the age of twenty-five or has completed undergraduate school;\u201d and to \u201cprovide health insurance for the minor child through age twenty-five or completion of his pursuit of higher education.\u201d Therefore, defendant failed to comply with the above child support provisions and we find that the trial court erroneously concluded that it had no authority to award attorney\u2019s fees. Accordingly, this case is remanded for an order awarding attorney\u2019s fees consistent with findings made by the trial court.\nAffirmed in part and reversed in part.\nJudges JOHNSON and SMITH concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Tate, Young, Morphis, Bach & Taylor, L.L.P., by Thomas C. Morphis and Paul E. Culpepper, for plaintiff-appellee.", "Paul W. Freeman, Jr. for defendant-appellant." ], "corrections": "", "head_matter": "ANN TWISDALE SMITH (Hall), Plaintiff v. DONALD E. SMITH, JR., Defendant\nNo. COA95-122\n(Filed 2 January 1996)\n1. Appeal and Error \u00a7 326 (NCI4th)\u2014 findings of fact as narration of evidence \u2014 settlement of record on appeal \u2014 no error\nThe trial court did not err in adopting the findings of fact contained in its order as a narration of the evidence presented at trial when it settled the record on appeal, since defendant provided no narration of evidence which contradicted that found by the trial court.\nAm Jur 2d, Appellate Review \u00a7\u00a7 662, 663.\nPower of trial court, on remand for further proceedings, to change prior fact findings as to matter not passed upon by appellate court, without receiving further evidence. 19 ALR3d 502.\n2. Divorce and Separation \u00a7 424 (NCI4th)\u2014 consent judgment for child support \u2014 civil contempt \u2014 sufficiency of evidence\nThe evidence was sufficient to support the trial court\u2019s findings and those findings were sufficient to support its conclusion that defendant was in contempt of court for failing to pay his child\u2019s college expenses pursuant to a consent judgment because they included out-of-state tuition where the evidence tended to show that defendant had agreed to \u201cpay for the higher education of the minor child\u201d; defendant had the capability to comply with the consent judgment; there was no limitation in the consent judgment regarding the cost of tuition or the location of a college; and defendant had sent the child money to complete high school in the state in which the college was located.\nAm Jur 2d, Contempt \u00a7\u00a7 144, 145.\nPleading and burden of proof, in contempt proceedings, as to ability to comply with order for payment of alimony or child support. 53 ALR2d 591.\nWho may institute civil contempt proceeding arising out of matrimonial action. 61 ALR2d 1095.\nPower of divorce court, after child attained majority, to enforce by contempt proceedings payment of arrears of child support. 32 ALR3d 888.\n3. Divorce and Separation \u00a7 545 (NCI4th)\u2014 consent judgment for child support \u2014 failure to comply \u2014 civil contempt \u2014 authority of court to award attorney\u2019s fees\nIn this civil contempt case where plaintiff alleged that defendant failed to comply with a consent order in which he agreed to pay for his child\u2019s higher education, maintain a life insurance policy, and provide health insurance, the trial court erred in concluding that it had no authority to award attorney\u2019s fees.\nAm Jur 2d, Contempt \u00a7\u00a7 241-246.\nAllowance of attorney\u2019s fees in civil contempt proceedings. 43 ALR3d 793.\nAppeal by defendant from order entered 25 October 1994 by Judge Timothy S. Kincaid in Caldwell County District Court. Heard in the Court of Appeals 26 October 1995.\nTate, Young, Morphis, Bach & Taylor, L.L.P., by Thomas C. Morphis and Paul E. Culpepper, for plaintiff-appellee.\nPaul W. Freeman, Jr. for defendant-appellant." }, "file_name": "0334-01", "first_page_order": 368, "last_page_order": 375 }