An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-243

NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

APRIL ROBBINS (formerly HUNT),

Plaintiff,

v. New Hanover County

No. 10 CVD 5691

JEFFERY H. HUNT,

Defendant.

Appeal by defendant from order entered 6 November 2013 by 

Judge J. H. Corpening, II in New Hanover County District Court. 

Heard in the Court of Appeals 28 August 2014.

No brief filed by plaintiff-appellee.

Chris Kremer for defendant-appellant.

STEELMAN, Judge.

Where there was competent evidence to support the trial 

court’s findings that defendant willfully failed to pay 

prospective alimony, the trial court did not err in holding 

defendant in contempt. Where there was insufficient evidence in 

the record to support the trial court’s findings that defendant 

willfully failed to pay back alimony and attorney’s fees, the 
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trial court’s contempt order is reversed, and the matter 

remanded for further findings of fact. Where defendant failed 

to preserve the issue of attorney’s fees, and where the appeal 

of that issue was previously resolved by this Court, we dismiss 

defendant’s argument.

I. Factual and Procedural Background

April Robbins (plaintiff) and Jeffery Hunt (defendant) were 

married on 28 November 1992. Two children were born of the 

marriage, in 1997 and 1999. Plaintiff and defendant resided 

together until their separation on 20 March 2010.

On 10 December 2010, plaintiff filed a complaint seeking 

post-separation support, permanent alimony, equitable 

distribution of marital assets, temporary and permanent custody 

of the children, retroactive and prospective child support, and 

attorney’s fees.

On 6 May 2013, the trial court entered its order on 

permanent alimony, equitable distribution, and attorney’s fees. 

In the alimony portion of the case, the trial court held that 

plaintiff was a dependent spouse, and ordered defendant to pay 

alimony of $800 per month, back alimony of $8,000 within 90 

days, and $2,000 in attorney’s fees within 90 days. The marital 
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property was divided in accordance with a separate schedule 

which is not found in the record on appeal.

The order of 6 May 2013 was appealed to this Court. On 6 

May 2014, this Court filed an opinion affirming the trial 

court’s award of alimony, but remanding the issues of equitable 

distribution and attorney’s fees for additional findings of 

fact. Hunt v. Hunt, ___ N.C. App. ___, 759 S.E.2d 712 (2014) 

(unpublished), disc. review denied, ___ N.C. ___, ___ S.E.2d 

___, 197P14 (19 August 2014).

On 5 July 2013, plaintiff filed a verified motion for 

contempt, alleging that defendant had failed to pay the back 

alimony, attorney’s fees, and prospective alimony ordered by the 

trial court.

On 6 November 2013, the trial court entered an order 

holding defendant in contempt of court, finding that defendant 

failed to make alimony payments for June, July, August, and 

September of 2013, failed to pay the back alimony and attorney’s 

fees, had the ability to comply with the 6 May 2013 order, and 

willfully refused to do so without justification. The trial 

court concluded that defendant was in willful civil contempt of 

its 6 May 2013 order, and ordered defendant to pay $11,200 in 

accrued alimony, and $2,000 in attorney’s fees, within 30 days 
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of 30 September 2013. If defendant failed to make these 

payments, then a warrant for his arrest was to issue, and 

defendant would be confined in the common jail of New Hanover 

County. Defendant was also ordered to pay $750 for the costs 

and fees associated with the contempt hearing.

From the 6 November 2013 contempt order, defendant appeals.

II. Contempt Order

In his first argument, defendant contends that the trial 

court’s findings of fact were not supported by the evidence, and 

therefore do not support the entry of an order of contempt. We 

disagree in part and agree in part.

A. Standard of Review

The standard of review for contempt 

proceedings is limited to determining 

whether there is competent evidence to 

support the findings of fact and whether the 

findings support the conclusions of law. 

Findings of fact made by the judge in 

contempt proceedings are conclusive on 

appeal when supported by any competent 

evidence and are reviewable only for the 

purpose of passing upon their sufficiency to 

warrant the judgment.

Watson v. Watson, 187 N.C. App. 55, 64, 652 S.E.2d 310, 317 

(2007) (citations and quotations omitted), disc. review denied, 

362 N.C. 373, 662 S.E.2d 551 (2008).

To hold a defendant in civil contempt, the 

trial court must find the following: (1) the 
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order remains in force, (2) the purpose of 

the order may still be served by compliance, 

(3) the non-compliance was willful, and (4) 

the non-complying party is able to comply 

with the order or is able to take reasonable 

measures to comply. In order to find that a 

defendant acted willfully, the court must 

find not only failure to comply but that the 

defendant presently possesses the means to 

comply. Wilfulness [sic] in matters of this 

kind involves more than deliberation or 

conscious choice; it also imports a bad 

faith disregard for authority and the law.

Shippen v. Shippen, 204 N.C. App. 188, 190, 693 S.E.2d 240, 243 

(2010) (citations and quotations omitted).

B. Analysis

Defendant acknowledges that he failed to make any of the 

alimony payments ordered by the trial court, but argues that 

this was not sufficient to support the trial court’s findings in 

support of its contempt order. Defendant argues that plaintiff 

was required to show that defendant’s failure to pay was 

willful, and that the evidence presented at trial did not 

support a finding of willfulness.

We first note that there is no transcript of the contempt 

hearing before us, but rather a narrative summary of the 

contempt hearing prepared by defendant. The narration is in the 

form of questions and answers, but is not a transcript certified 

by a court reporter.
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At the 30 September 2013 contempt hearing, plaintiff 

testified that defendant had failed to pay the $8,000 in back 

alimony and the $2,000 in attorney’s fees previously ordered by 

the court. She also testified that defendant had failed to pay 

any prospective alimony of $800 per month commencing in June of 

2013. Plaintiff’s testimony concerning defendant’s ability to 

pay these sums was very vague. The testimony pertinent to 

defendant’s ability to pay was as follows:

1. Defendant had recently remarried.

2. In April, defendant went on a 7-day 

cruise with the children of his marriage to 

plaintiff, along with his new wife, his new 

mother-in-law, and his new stepson, to 

Jamaica.

3. Defendant recently took a trip to 

Germany with his new wife.

4. Plaintiff heard from her children that 

defendant recently took a trip to Chicago.

5. Defendant purchased smart phones for 

the children of his marriage to plaintiff, 

which plaintiff returned to defendant.

6. Plaintiff “guessed” that the April 

cruise to Jamaica cost $15,000. She did not 

venture a guess as to the costs of either 

the trip to Germany or the trip to Chicago.

7. Plaintiff never testified as to whether 

defendant paid for any of these trips.

8. Defendant was current on his monthly 

child support obligation, and was also 
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current in paying for the children’s tuition 

at a private school.

Over the objection of the plaintiff, defendant’s counsel 

introduced an affidavit of the defendant concerning his 

financial condition. Defendant did not appear or testify at the 

contempt hearing. The affidavit contained the following 

information pertinent to his ability to pay:

1. Defendant’s net monthly income in 

September of 2013 was $6,942.22. In the 

trial court’s order of 6 May 2013, the court 

found defendant’s net monthly income to have 

been $9,567.45. There is no explanation in 

defendant’s affidavit for the $2,600 per 

month difference.

2. Defendant has paid the monthly child 

support and private school tuition for his 

daughters.

3. Under the 6 May 2013 court order, 

defendant was ordered to pay all marital 

debts, and particularly a debt to the United 

States Internal Revenue Service of 

$16,801.44.

Based upon the evidence presented at the contempt hearing, 

the trial court found that defendant had failed to pay the 

$8,000 in back alimony, the $2,000 in attorney’s fees, and the 

monthly alimony payments from June 2013 through September 2013, 

as ordered in the 6 May 2013 order. The only finding pertaining 

to defendant’s ability to comply and the willfulness of his 

conduct was finding of fact 6:
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6. The Defendant has the present ability 

to comply with the prior Order of this Court

and his refusal and failure to do so is 

wilful [sic] and without just cause, excuse 

or justification.

We note that much of what was contained in defendant’s 

affidavit, his counsel’s argument to the trial court, and his 

brief to this Court are arguments that defendant should not be 

required to pay alimony, and cannot afford to pay alimony. The 

question of the appropriateness of the award of alimony and the 

amount of alimony was previously decided by this Court in Hunt 

v. Hunt, ___ N.C. App. ___, 759 S.E.2d 712. Judge Corpening 

previously heard the case, and it was appropriate for him to 

consider defendant’s monthly income and expenses as found in the 

original order filed less than five months prior to the contempt 

hearing. It was also appropriate for him to consider the amount 

of defendant’s monthly income as found in the 6 May 2013 order 

to determine whether defendant’s failure to pay the alimony of 

$800 per month for the months of June, July, August and 

September of 2013 was willful. Defendant’s affidavit did not 

state that he had suffered any reduction in income since the 

entry of the 6 May 2013 order. Apparently, Judge Corpening 

found defendant’s assertions in his affidavit as to his income 

and expenses were simply not credible.
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We hold that with respect to the June, July, August and 

September alimony payments of $800 per month, there was 

competent evidence to support findings that defendant failed to 

make those payments, that he had the ability to do so, and that 

his failure to make the payments was willful. We affirm this 

portion of the trial court’s order.

However, with respect to the trial court’s holding that 

defendant was in contempt for failing to pay back alimony and 

attorney’s fees totaling $10,000, we are compelled to reverse 

and remand this ruling for further findings of fact. While the 

order of 6 May 2013 is in the record, the distribution of 

marital property was made in an attachment to the order, which 

is not in the record. We thus have no evidence before us as to 

defendant’s assets. The only other evidence potentially 

relevant to this issue was plaintiff’s testimony concerning the 

trips to Jamaica, Germany, and Chicago. Based upon the 

narrative evidence before us, plaintiff did not testify that 

defendant paid for any of these trips, and was uncertain as to 

whether the Chicago trip was for business purposes.

With respect to defendant’s assertion concerning the debt 

owed to the Internal Revenue Service, defendant documented this 

with a notice of intent to levy in the amount of $16,801.44 
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dated 22 April 2013. We hold that this was insufficient 

evidence upon which to base a finding of fact that defendant had 

the ability to pay the $10,000 and that his failure to pay was 

willful. We reverse this portion of the trial court’s order and 

remand for additional findings of fact. In its discretion, the 

trial court may allow additional evidence.

III. Attorney’s Fees

In his second argument, defendant contends that the trial 

court erred in awarding attorney’s fees to plaintiff in its 6

May 2013 order. In his notice of appeal in this case, defendant 

appeals only from the contempt order, not the original order 

containing the award of attorney’s fees. We hold therefore that 

defendant has failed to preserve this issue. N.C. R. App. P. 

28(b)(6).

Even assuming arguendo that defendant preserved this issue, 

we note that we have previously ruled upon the matter of 

attorney’s fees in this case. Defendant appealed from the 

original order awarding attorney’s fees in Hunt v. Hunt, ___ 

N.C. App. ___, 759 S.E.2d 712. In that case, we held that the 

trial court did not abuse its discretion in including the 

services of a paralegal in the cost of attorney’s fees, but 

remanded the matter to the trial court due to inadequate 
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findings of fact. Id. As this issue has been previously 

remanded to the trial court, we hold that it is moot, and not 

properly before us. We therefore dismiss this portion of 

defendant’s appeal. 

AFFIRMED IN PART, REVERSED AND REMANDED IN PART, DISMISSED 

IN PART.

Judge GEER concurs.

Judge HUNTER, Robert N., Jr. concurred prior to 6 September 

2014.

Report per Rule 30(e).