{
  "id": 9081068,
  "name": "ROBERT E. WOLF, Plaintiff v. LORENE L. WOLF, Defendant",
  "name_abbreviation": "Wolf v. Wolf",
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    "judges": [
      "Chief Judge EAGLES and Judge McGEE concur."
    ],
    "parties": [
      "ROBERT E. WOLF, Plaintiff v. LORENE L. WOLF, Defendant"
    ],
    "opinions": [
      {
        "text": "TYSON, Judge.\nRobert E. Wolf (\u201cplaintiff\u2019) appeals from an order that (1) denied his motion to modify post-separation and child support orders and (2) held him in contempt. Lorene L. Wolf (\u201cdefendant\u201d) also appeals from that order that denied in part and allowed in part her motion for contempt and attorney\u2019s fees. We affirm the order of the trial court.\nI. Facts\nPlaintiff and defendant married on 14 December 1985. Three children were born of the marriage. Plaintiff and defendant separated on 30 March 1997. Plaintiff was employed by Shurtape Technologies (\u201cShurtape\u201d) earning approximately $6,127.00 per month.\nPlaintiff filed a complaint that requested permanent custody of the minor children, child support, and equitable distribution of the marital estate on 23 May 1997. Defendant answered and counterclaimed for divorce from bed and board, sole custody of the minor children, child support payments, alimony, post-separation support, possession of the marital property, equitable distribution, and attorney\u2019s fees in the alimony and child support actions on 22 September 1997.\nAfter a hearing on 4 March 1998, the trial court entered two orders on 7 December 1998, nunc pro tunc 3 April 1998, granting defendant (1) primary care and custody of the minor children, (2) post-separation support in the amount of $609.00 per month, (3) fifteen percent (15%) of the gross amount of any bonus received by plaintiff in the future as additional post-separation support, (4) child support in the amount of $1,129.00 per month, (5) twenty percent (20%) of the gross amount of any bonus received by plaintiff in the future as additional child support, and (6) attorney\u2019s fees in the child support action.\nPlaintiff was laid off by Shurtape when his department was eliminated in January 1999. On 4 March 1999, plaintiff was hired with Tesa Tape, Inc. (\u201cTesa\u201d). Plaintiff received a hiring bonus in the amount of $5,069.24. Plaintiff contends that the additional money received at hiring was not a \u201chiring bonus\u201d but \u201crelocation expenses.\u201d Plaintiff earned approximately the same salary with Tesa as he had with Shurtape. Plaintiff\u2019s employment with Tesa was terminated on 28 September 1999. Plaintiff had paid his child and post separation support payments in the amount of $1,129.00 per month and $609.00 per month respectively until he was terminated. Plaintiff did not pay fifteen percent and twenty percent of his hiring bonus in child or post-separation support.\nPlaintiff filed a verified motion to \u201cModify/Reduce/Eliminate Post-Separation Support\u201d on 17 November 1999. The next day Plaintiff filed a motion to \u201cModify/Reduce Child Support.\u201d On 7 April 2000, defendant filed a \u201cMotion For Contempt\u201d for nonpayment of child support, post-separation support, and reimbursement of medical expenses and an \u201cOrder to Show Cause\u201d setting the contempt motion for hearing on 19 April 2002.\nPlaintiffs and defendant\u2019s motions were heard on 31 May 2000 and 26 June 2000. The trial court issued an Order on 19 December 2000 that (1) denied plaintiff\u2019s motions to modify the child support order and the post-separation order, and (2) granted in part and denied in part defendant\u2019s motion for contempt. Both plaintiff and defendant appeal.\nII. Issues\nPlaintiff assigns as error the trial court\u2019s (1) failure to reduce, modify or eliminate plaintiff\u2019s child support and post-separation support payments and (2) holding plaintiff in contempt for his failure to pay defendant twenty percent and fifteen percent of the gross amount of his \u201crelocation expense\u201d of $5,769.24. Defendant assigns as error the trial court\u2019s denying, in part, her motion for contempt.\nIII. Plaintiff\u2019s Assignments\nA. Motion To Reduce Support Payments\nPlaintiff contends that the trial court erred by failing to modify his child and post-separation support obligations. Plaintiff argues that no evidence supports a finding or conclusion that plaintiff was voluntarily unemployed. We disagree.\nPlaintiff sought to reduce his child support obligation pursuant to G.S. \u00a7 50-13.7 and his post-separation support obligation pursuant to G.S. \u00a7 50-16.9. Both statutes require plaintiff to show that there has been \u201cchanged circumstances\u201d since the entry of the order. N.C. Gen. Stat. \u00a7 50-13.7 (2002); N.C. Gen. Stat. \u00a7 50-16.9 (2002).\nA change in circumstances must be shown by the party moving for the modification in order to modify an order for support or alimony. Rock v. Rock, 260 N.C. 223, 132 S.E.2d 342 (1963). The fact that a husband\u2019s salary or income has been reduced substantially does not automatically entitle him to a reduction. Medlin v. Medlin, 64 N.C. App. 600, 307 S.E.2d 591 (1983).\nThe trial court may refuse to modify support and/or alimony on the basis of an individual\u2019s earning capacity instead of his actual income when the evidence presented to the trial court shows that a husband has disregarded his marital and parental obligations by: (1) failing to exercise his reasonable capacity to earn, (2) deliberately avoiding his family\u2019s financial responsibilities, (3) acting in deliberate disregard for his support obligations, (4) refusing to seek or to accept gainful employment, (5) wilfully refusing to secure or take a job, (6) deliberately not applying himself to his business, (7) intentionally depressing his income to an artificial low, or (8) intentionally leaving his employment to go into another business. Bowes v. Bowes, 287 N.C. 163, 171-72, 214 S.E.2d 40, 45 (1975) (citations omitted); see also Wachacha v. Wachacha, 38 N.C. App. 504, 507-08, 248 S.E.2d 375, 377-78 (1978).\nWhen the evidence shows that a party has acted in \u201cbad faith,\u201d the trial court may refuse to modify the support awards. Chused v. Chused, 131 N.C. App. 668, 671, 508 S.E.2d 559, 561-62 (1998). If a husband has acted in \u201cgood faith\u201d that resulted in the reduction of his income, application of the earnings capacity rule is improper. Wachacha, 38 N.C. App. at 508, 248 S.E.2d at 377-78. See also Chused, 131 N.C. App. 668, 508 S.E.2d 559 (held no evidence that husband acted in bad faith by deliberately depressing his income, and the evidence was sufficient to prove husband was \u201cinvoluntarily\u201d terminated from his employment).\nThe dispositive issue is whether a party is motivated by a desire to avoid his reasonable support obligations. To apply the earnings capacity rule, the trial court must have sufficient evidence of the proscribed intent. Wachacha, 38 N.C. App. at 508, 248 S.E.2d at 378 (quoting Sguros v. Sguros, 252 N.C. 408, 114 S.E.2d 79 (1960)).\nHere there is substantial evidence in the record and the trial court did not err by finding and concluding that the plaintiff disregarded his marital and parental obligations. The trial court found and concluded that:\nthe change in the Plaintiff\u2019s employment circumstances in being terminated from [Tesa] and his continued unemployment were voluntarily effected by the Plaintiff in conscious and reckless disregard of his duty to provide support to his former wife and children as ordered by the Court in this action. (Emphasis supplied).\nThe trial court supported this finding and conclusion with extensive findings of fact. Notwithstanding plaintiff\u2019s arguments, there is sufficient evidence in the record to show that his unemployment was voluntary. The trial court made the following findings of fact, which are supported by the evidence, concerning plaintiff\u2019s termination at Tesa: (1) upon being hired by Tesa, plaintiff insisted on renaming his \u201cbonus\u201d as a relocation expense that irritated his new employer, (2) plaintiff overinflated his expense reports, (3) plaintiff failed to disclose vital information about his bankruptcy which embarrassed his supervisor, (4) plaintiff made unreasonable demands about his business trips, and (5) all of plaintiffs actions with respect to his new job lead to an \u201centirely predictable termination.\u201d This assignment of error is overruled.\nB. Trial Court\u2019s Order Holding Plaintiff In Contempt\nPlaintiff contends that the trial court erred when it held him in contempt for not paying defendant twenty percent and fifteen percent, respectively, of his $5,769.24 \u201cbonus\u201d or \u201crelocation expense.\u201d Plaintiff argues that the final order did not contemplate bonuses received from sources other than Shurtape. Alternatively, plaintiff argues that there is no evidence that his \u201crelocation expense\u201d was a \u201cbonus.\u201d We disagree.\nThe trial court considered the percentages of the bonuses to be paid to defendant and found that \u201cPlaintiff acted in conscious and reckless disregard of his duty to provide support to the Defendant and the minor children as previously ordered by the Court in this action.\u201d We do not accept plaintiff\u2019s interpretation of the final order, which obligated plaintiff to pay certain percentages of his bonuses to defendant. The child support and post-separation support orders provided that:\nIn addition to the foregoing monthly child [and post-separation] support obligation[s] of the Plaintiff, the Plaintiff shall, within ten (10) days from the date he receives any bonus from his employment in the future, pay ... to the Defendant, the sum of twenty percent (20%) [and fifteen (15%)] of the gross amount of any and all future bonuses which he receives from his employment. (Emphasis supplied).\nThere is nothing contained in these portions of the final order that restricts this provision to plaintiff\u2019s work at Shurtape. The provision applies to all future bonuses.\nAfter thorough review of the record, there is sufficient evidence to show that the money plaintiff received from Tesa upon hire was a \u201cbonus\u201d covered by the final order, and that plaintiff prevented defendant and his children from receiving it in accordance with the final order by wilfully re-labeling the bonus a relocation expense. This assignment of error is overruled.\nIV. Defendant\u2019s Assignments\nDefendant listed eight assignments of error in the record. All assignments of error raised but not argued are deemed abandoned. N.C.R. App. P. 28(b)(5) (2002).\nDefendant contends that the trial court erred by not finding plaintiff in contempt for \u201cwillful\u201d failure to comply with the other provisions of the child support and post-separation support orders. We disagree.\nTo find plaintiff in contempt, the trial court must find that (1) plaintiff failed to comply with the order, and (2) that plaintiff presently possesses the means to comply. Gorrell v. Gorrell, 264 N.C. 403, 141 S.E.2d 794 (1965). \u201cIn proceedings in contempt the facts found by the judge are not reviewable by this court, except for the purpose of passing upon their sufficiency to warrant the judgment.\u201d Green v. Green, 130 N.C. 578, 578, 41 S.E. 784, 785 (1902).\nThe trial court concluded that plaintiff was not in contempt by failing to pay his child support obligation in the amount of $1,129.00 per month and his separation support obligation in the amount of $609.00 per month. The trial court did not find that plaintiff had the ability to pay or that his failure to pay was willful concerning his fixed amount of child and post-separation support. This assignment of error is overruled. The order of the trial court is affirmed.\nAffirmed.\nChief Judge EAGLES and Judge McGEE concur.",
        "type": "majority",
        "author": "TYSON, Judge."
      }
    ],
    "attorneys": [
      "Starnes and Killian, PLLC, by Wesley E. Starnes, for plaintiff.",
      "Crowe & Davis, P.A., by H. Kent Crowe, for defendant."
    ],
    "corrections": "",
    "head_matter": "ROBERT E. WOLF, Plaintiff v. LORENE L. WOLF, Defendant\nNo. COA01-766\n(Filed 16 July 2002)\n1. Child Support, Custody, and Visitation; Divorce\u2014 child support \u2014 postseparation support \u2014 modification\u2014voluntary unemployment\nThe trial court did not err by failing to reduce, modify, or eliminate plaintiff husband\u2019s child support and postseparation support payments, because there was sufficient evidence in the record to show that plaintiff\u2019s unemployment was voluntary.\n2. Contempt\u2014 civil \u2014 child support \u2014 postseparation support \u2014 failure to pay bonus or relocation expense\nThe trial court did not err in an action for child support and postseparation support by holding plaintiff husband in civil contempt for his failure to pay defendant wife twenty percent and fifteen percent of the gross amount of his hiring bonus of $5,769.24 when the trial court\u2019s order required plaintiff to pay this percentage of his bonuses, because: (1) there is nothing in the trial court\u2019s order that restricted the provision on bonuses to plaintiff\u2019s work at a particular employment, and the provision applies to all future bonuses; and (2) there is sufficient evidence to show that the money plaintiff received was a bonus covered by the final order, and plaintiff prevented defendant and his children from receiving it in accordance with the final order by willfully relabeling the bonus a relocation expense.\n3. Contempt\u2014 civil \u2014 child support \u2014 postseparation support \u2014 failure to pay \u2014 willfulness\nThe trial court did not err by failing to find plaintiff husband in civil contempt for willful failure to pay his child support obligation in the amount of $1,129.00 per month and his postseparation support obligation of $609.00 per month, because the trial court did not find that plaintiff had the ability to pay or that his failure to pay was willful concerning his fixed amount of child and post-separation support.\nAppeal by plaintiff and defendant from an order entered 19 December 2000 by Judge J. David Abernethy in Catawba County District Court. Heard in the Court of Appeals 20 May 2002.\nStarnes and Killian, PLLC, by Wesley E. Starnes, for plaintiff.\nCrowe & Davis, P.A., by H. Kent Crowe, for defendant."
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