NO. COA13-937

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

STEVEN G. GORDON,

Plaintiff,

v. Guilford County

No. 09 CVD 10832

DEBORAH J. GORDON,

Defendant.

Appeal by plaintiff from Order entered on or about 24 April 

2013 by Judge Jan H. Samet in District Court, Guilford County. 

Heard in the Court of Appeals 6 February 2014.

Randolph M. James, PC, by Randolph M. James, for plaintiffappellant.

Woodruff Law Firm, P.A., by Jessica Snowberger Bullock, for 

defendant-appellee.

STROUD, Judge.

Steven Gordon (“plaintiff”) appeals from an order entered 

on or about 24 April 2013 finding him to be in civil contempt and 

ordering him jailed unless he pays $20,000 to his former wife, 

Deborah Gordon (“defendant”), within 60 days. We affirm.

I. Background
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Much of the background to this case was discussed in our 

opinion arising from the last contempt order that plaintiff 

appealed:

The parties were married in 1983 and 

separated in 2007. On 21 August 2009, the 

parties executed a mediated settlement 

agreement, pursuant to which Plaintiff was 

required to pay Defendant a distributive 

award in the amount of $1,200,000.00 and to 

pay $5,600.00 per month in post-separation 

support until $1,000,000.00 of the 

distributive award had been paid. In return, 

Defendant agreed to waive the right to 

receive additional post-separation support 

or alimony.

On 24 August 2009, Plaintiff filed a 

complaint for divorce. On 28 October 2009, 

Defendant filed an answer in which she 

admitted the material facts alleged in 

Plaintiff’s complaint and asserted 

counterclaims for, among other things, 

divorce, distribution of the parties’ IRA 

accounts, breach of contract, specific 

performance of the mediated settlement 

agreement, and attorney’s fees. In a reply 

filed on 13 November 2009, Plaintiff 

admitted that he had not made all the 

payments required by the mediated settlement 

agreement and asserted various defenses 

stemming from his alleged inability to 

obtain a bank loan or otherwise procure the 

funds needed to make the required payments.

On 5 May 2010, the trial court entered a 

consent order which provided, in pertinent 

part, that:

. . . .
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Plaintiff shall pay to Defendant on the 

first day of each month beginning June 1, 

2010 the sum of $9000, by direct deposit to 

her checking account until the earlier to 

occur of the following:

(i) July 31, 2011 or

(ii) The sale of 8640 Adkins Road, Colfax, 

NC

. . . .

On 12 April 2012, the trial court orally 

determined that Plaintiff was in contempt of 

the consent judgment by willfully failing to 

list the Adkins Road property for sale with 

Ms. Laney; stated that Defendant had chosen, 

instead, to list the property with an 

“inexperienced” agent who “doesn’t even come 

close to having the qualities, the skills 

necessary, the connections necessary to sell 

this price of a house;” and noted that, in 

the court’s “opinion [, Plaintiff] really 

[wasn’t] trying to satisfy this obligation” 

because he did not “believe that [he] should 

have to pay [Defendant any more] money.” As 

a result, the trial court told Plaintiff 

that he was being held in contempt of court 

for willfully failing to list the property 

with Ms. Laney and that, in the event that 

he failed to execute a listing contract with 

her within fourteen days, he would be jailed 

pending compliance with the relevant 

provision of the consent judgment.

Gordon v. Gordon, ___ N.C. App. ___, 746 S.E.2d 21, 2013 WL 

3049072 at *1-*3 (2013) (unpublished) (brackets and ellipses 

omitted), disc. rev. denied, ___ N.C. ___, 753 S.E.2d 679 
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(2014). Defendant appealed the 2012 contempt order to this 

Court. Id. at *4. We affirmed. Id. at *13.

Since the 2012 order, there have been additional conflicts 

between the parties over the money plaintiff owes defendant. 

After November 2012, plaintiff failed to pay the $5,000 per 

month that had been ordered by the trial court. As a result, 

defendant filed a motion for contempt. The trial court issued an 

order to show cause, finding that there was probable cause to 

believe plaintiff was in contempt of the 2010 Consent Order. 

Plaintiff responded, claiming that he was unable to make the 

required payments.

The trial court held a hearing on defendant’s contempt 

motion on 26 February 2013. By order entered 24 April 2013, the 

trial court made written findings of fact and conclusions of 

law. The trial court held plaintiff in civil contempt and 

ordered that he be jailed if he failed to pay $20,000 in 

arrearages within 60 days “until such time as he complies with 

this order.” Plaintiff filed notice of appeal to this Court on 

30 April 2013.

II. Civil Contempt

Plaintiff argues on appeal that the trial court erred in 

holding him in contempt because it failed to find that he has the 
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present ability to pay the $20,000 he concedes that he owes. We 

disagree.

A. Standard of Review and Burden of Proof

Review in civil contempt proceedings is 

limited to 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. However, findings of 

fact to which no error is assigned are 

presumed to be supported by competent 

evidence and are binding on appeal. The 

trial court’s conclusions of law drawn from 

the findings of fact are reviewable de novo.

A show cause order in a civil contempt 

proceeding which is based on a sworn 

affidavit and a finding of probable cause by 

a judicial official shifts the burden of 

proof to the defendant to show why he should 

not be held in contempt.

Tucker v. Tucker, 197 N.C. App. 592, 594, 679 S.E.2d 141, 142-43 

(2009) (citations, quotation marks, and brackets omitted). 

Here, there was a show cause order with a judicial finding of 

probable cause. Therefore, the burden was on plaintiff “to show 

why he should not be held in contempt.” Id. at 594, 679 S.E.2d 

at 143.

B. Present Ability to Pay
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The trial court found plaintiff to be in civil contempt and 

ordered him to pay $20,000 in arrearages within 60 days or be 

sent to jail. Plaintiff argues that there was no finding and no 

evidence that he was presently able to comply or take reasonable 

steps to purge his contempt and that therefore he could not be 

subjected to an indefinite term in jail for civil contempt. 

For civil contempt to be applicable, the 

defendant must be able to comply with the 

order or take reasonable measures that would 

enable him to comply with the order. We hold 

this means he must have the present ability 

to comply, or the present ability to take 

reasonable measures that would enable him to 

comply, with the order.

Jones v. Jones, 62 N.C. App. 748, 749, 303 S.E.2d 583, 584 

(1983); see also N.C. Gen. Stat. § 5A-21(a)(3) (2013). 

“Reasonable measures” to pay an outstanding judgment could 

include “borrowing the money, selling defendant’s . . . property

. . . , or liquidating other assets, in order to pay the 

arrearage.” Teachey v. Teachey, 46 N.C. App. 332, 335, 264 

S.E.2d 786, 787-88 (1980).

When a defendant has the present means to 

comply with a court order and deliberately 

refuses to comply, there is a present and 

continuing contempt and the court may commit 

such defendant to jail for an indefinite 

term, that is, until he complies with the 

order. Under such circumstances, however, 

there must be a specific finding of fact 

supported by competent evidence to the 
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effect that such defendant possesses the 

means to comply with the court order. Our 

Supreme Court has indicated . . . that the 

court below should take an inventory of the 

property of the plaintiff; find what are his 

assets and liabilities and his ability to 

pay and work—an inventory of his financial 

condition—so that there will be convincing 

evidence that the failure to pay is 

deliberate and wilful.

Bennett v. Bennett, 21 N.C. App. 390, 393-94, 204 S.E.2d 554,

556 (1974).

First, we must address plaintiff’s argument that the trial 

court failed to find that he has the present ability to comply 

with its order. The trial court specifically found that 

17. The evidence before the Court 

establishes conclusively that Plaintiff had 

the present ability to pay the $5,000 

monthly alimony for the months of November 

and December of 2012 and January and 

February of 2013.

18. During the relevant period, Plaintiff 

had available to him from his business for 

his personal use at least $20,000 in cash 

used for the purchase of vehicles used as 

leased vehicles. He also had available at 

least $20,000 available to pay alimony 

through cash advances available through 

lines of credit associated with credit 

cards. Evidence also shows that Plaintiff 

had as much as $16,000 in business cash used 

to pay mortgage payments for his relatives’ 

mortgages or rents. 

The trial court then concluded that “Plaintiff had the present 

ability to comply with the May 5, 2010 Consent Order Judgment 
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directing Plaintiff to pay [the] $5,000 per month alimony 

payment.” (emphasis added.)

Plaintiff contends that the trial court’s use of the word 

“had” rather than the word “has” is fatal to its judgment, as 

this shows that the Court failed to make findings as to his 

present ability to pay. Plaintiff claims that although he may 

have had the ability to pay $20,000 at some time in the past

prior to the hearing, at the time of the hearing he no longer 

had such present ability. The hearing was held on 26 February 

2013, at which time the trial court took the matter under 

advisement; the order was entered on 24 April 2013. Plaintiff 

does not claim that his circumstances changed between date of 

the February 2013 hearing and entry of the order in April 2013; 

his argument focuses only on the word “had.”

Although we agree that a trial court must make findings as 

to a contemnor’s present ability to pay before holding him in 

civil contempt, we cannot take the word “had” out of the context 

of the entire order. Perhaps some of the confusion as to verb 

tense arises from the fact that at any civil contempt hearing, 

the parties are presenting evidence of what has happened in the 

past to prove the present state of affairs to enable the trial 

court to make findings of fact about what the present 
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circumstances are and what will likely happen in the future. And 

then the written order from that hearing is actually prepared 

and entered after the hearing, so that the trial court is 

necessarily referring to events that occurred and evidence that 

was presented in the past, which was the present on the date the 

events happened or on the date of the hearing. Time stubbornly

refuses to stand still even long enough for a hearing to be 

completed or an order prepared and entered. We must read the 

findings of fact with these considerations in mind.

The findings in this case are similar to those we approved 

in Hartsell v. Hartsell, 99 N.C. App. 380, 385, 393 S.E.2d 570, 

574 (1990). In Hartsell, the trial court found that “‘defendant 

had at all times been fully capable and able of complying with 

all provisions of the Court’s decree’ and that ‘defendant had 

the present ability and continuing capability to comply with all 

remaining provisions of the Court’s decree with which he had not 

heretofore complied.’” Id. at 385, 393 S.E.2d at 573 (brackets 

omitted). Despite the trial court’s use of the word “had,” we 

affirmed the trial court’s conclusion that the defendant’s 

failure to comply was willful and that he had the present

ability to comply because there was evidence that he had “the 
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present ability to take reasonable measures that would enable 

him to comply.” Id. at 386, 393 S.E.2d at 574.

Taking the findings as a whole, it is clear that the trial 

court considered plaintiff’s ability to comply as of the date of 

the hearing and within the sixty days afforded to him to take 

any additional measures he may need to take. The trial court 

properly took an inventory of plaintiff’s recent income and 

expenses in considering his ability to comply throughout the 

relevant period, including February 2013, when the hearing was 

held. See Bennett, 21 N.C. App. at 393-94, 204 S.E.2d at 556. It 

made findings on his various sources of income, how he pays his 

expenses, and other voluntary expenses he has undertaken to pay 

rather than paying the judgment. Given the extensive evidence 

presented and findings made regarding plaintiff’s income and 

expenses, we hold that the trial court’s finding on present 

ability to pay is adequate.

Plaintiff further argues that there was no evidence to 

support a finding that he had the present ability to pay.

Plaintiff claims that the trial court “made no findings 

regarding cash available to plaintiff as of the hearing or as of 

the day the Order was entered.” This is true, but the trial 

court also did not order plaintiff to pay immediately on the day 
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of the hearing nor immediately on the date the order was 

entered. The trial court gave plaintiff 60 days after entry of 

the order to acquire the $20,000, and the findings show that 

plaintiff had various options to accomplish this.

The trial court found that plaintiff’s 2012 income was 

approximately $139,641. Plaintiff earned approximately $15,000 

per month in November and December 2012. The trial court also

found that “the personal debts of the Plaintiff are paid through 

the business and $180,000 in personal expenses were paid from 

October 2011 through October 2012.” The trial court found that 

plaintiff voluntarily pays thousands of dollars in expenses for 

his adult children and his mother, totaling more than $16,500 

over the course of four months. Plaintiff does not challenge 

any of these findings as unsupported by competent evidence, so 

they are binding on appeal. Tucker, 197 N.C. App. at 594, 679 

S.E.2d at 143.

Although plaintiff should have well been able to pay 

defendant by temporarily ceasing to pay the expenses he had been 

paying for his adult children and mother, the trial court also 

made findings regarding his ability to take reasonable measures 

that would enable him to comply by borrowing the funds. The 

evidence showed that plaintiff had two credit cards. As of 
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December 2012, one had a cash advance available of $4,500 and 

the other had an available cash advance of $4,590. The credit 

cards also provided plaintiff with available lines of credit in 

excess of $44,887. Plaintiff does not argue that he expected 

his income or expenses to change substantially in the 

foreseeable future. Plaintiff did contend at the hearing that 

his business, Flash Gordon Motors & Leasing, Inc., was in 

decline, and of course this was contested by defendant’s 

evidence. In any event, the trial court heard and considered 

this evidence, weighed its credibility, and made its findings, 

which did not include a finding that the business was failing. 

Therefore, it was fully appropriate for the trial court to base 

its finding of present ability to pay on evidence of income and 

expenses in the recent past. See Parsons v. Parsons, ___ N.C. 

App. ___, ___, 752 S.E.2d 530, 534 2013 (noting that future 

expenses “can [generally] only be predicted based on past 

experience”). This evidence shows that plaintiff could take 

reasonable steps to pay the full $20,000 he owes by paying a 

portion of his $15,000 monthly income, taking out cash advances 

from his credit cards, ceasing to voluntarily pay the expenses 

of other family members, and/or transferring any expenses in 

excess of his income to his credit cards for those months.
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Plaintiff further challenges the trial court’s 

consideration of his business assets in finding a present 

ability to comply. He contends that considering business 

expenditures “would effectively eliminate the corporate identity 

of any closely-held corporation.” Again, we disagree.

In determining a contemnor’s present ability to pay, the 

appellate courts of this state have directed trial courts to 

“take an inventory of the property of the plaintiff; find what 

are his assets and liabilities and his ability to pay and work—

an inventory of his financial condition.” Bennett, 21 N.C. App. 

at 393-94, 204 S.E.2d at 556. Considering how a contemnor pays 

his expenses is an important part of this analysis. 

In Foy v. Foy, 69 N.C. App. 213, 316 S.E.2d 315 (1984), we 

affirmed a trial court’s finding of willful noncompliance with 

an alimony order. In reviewing the trial court’s willfulness 

findings, we considered the defendant’s interest in a closely 

held company as a possible source of funds for the defendant, 

even though he did not receive any direct income. Foy, 69 N.C. 

App. at 215, 316 S.E.2d at 316-17. Plaintiff’s interest in his 

company is far more clearly established than that of the 

defendant in Foy.
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Here, the trial court’s findings indicated that plaintiff

had a history of using his corporate assets to pay for his 

personal debts and personal expenses. In fact, the evidence 

showed that he had used corporate assets to pay $180,000 in 

personal expenses from October 2011 through October 2012.

Plaintiff does not argue that this finding is unsupported by the 

evidence. These expenditures relate directly to plaintiff’s 

assets and liabilities and to his ability to pay the arrearages.

Therefore, the trial court properly considered plaintiff’s

corporate assets and liabilities and did not impair or disregard 

his business’s corporate identity in any way.

Given this evidence and the findings made by the trial 

court, we hold that the trial court did not err in concluding 

that within 60 days plaintiff could take reasonable steps to pay 

the entire $20,000 of the arrearages between using the cash 

advances, charging any expenses not covered by the business to

one of his credit cards, and ceasing to voluntarily pay 

thousands of dollars to his other relatives. See Williford v. 

Williford, 56 N.C. App. 610, 612, 289 S.E.2d 907, 909 (1982)

(“[P]ayment of alimony may not be avoided merely because the 

husband has remarried and voluntarily assumed additional 

obligations.” (citation, quotation marks, and ellipses
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omitted)); Teachey, 46 N.C. App. at 335, 264 S.E.2d at 787-88

(noting that reasonable efforts could include borrowing money 

and liquidating assets); Watson v. Watson, 187 N.C. App. 55, 67, 

652 S.E.2d 310, 319 (2007) (affirming a finding of civil 

contempt where the trial court afforded the defendant 90 days to 

take reasonable measures to pay the required sum), disc. rev. 

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

Plaintiff argues that compliance with the order would 

require him to take on debts he could never hope to pay off, but

neither the evidence nor the findings support plaintiff’s dim 

view of his wherewithal. The trial court’s uncontested findings 

show that he earned approximately $15,000 per month in the 

months preceding the hearing, that plaintiff had the ability to 

pay thousands of dollars per month to family members, and that 

his debts and $180,000 of his personal expenses were paid by his 

business. Drawing money from any of these sources could 

properly be considered “reasonable measures” to pay off the 

arrearages. See Teachey, 46 N.C. App. at 335, 264 S.E.2d at 787-

88.

C. Crediting the amount seized from plaintiff

Plaintiff next contends that the trial court erred in not 

crediting him with the $7,322.42 seized by defendant from his 
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checking account. These funds were seized by execution upon a 

judgment which was entered upon the distributive award of 

$1,025,000; that judgment is not a subject of this appeal. 

Plaintiff’s argument conveniently ignores the fact that these 

funds were seized by execution to pay this outstanding judgment, 

which is separate from his alimony obligation, as well as the 5 

May 2010 consent order, which differentiates between the $5,000 

per month he is required to pay in alimony and the $1,025,000 

distributive award.1 The 5 May 2010 order specifically states 

that the “alimony does not reduce the $1,025,000 distributive 

award.”

The 12 April 2012 judgment and order further clarified this 

distinction. At that time, plaintiff still owed approximately 

$894,023 toward the distributive award. The trial court 

continued to require that plaintiff pay $5,000 per month as 

alimony until the distributive award was paid in full. The trial 

court specifically stated that the monthly $5,000 payment “is 

not a credit against the money judgment.” It further clarified 

that “[t]he requirement that Plaintiff Husband make monthly 

 

1 Plaintiff also argues that the $5,000 per month ordered by the 

trial court in the May 2010 consent order was not actually 

“alimony.” Plaintiff specifically consented to the order which 

identified this payment as “alimony.” He never appealed from 

that order and cannot now collaterally attack that 

determination.
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payments to Defendant Wife for support and maintenance does not 

alter, limit, delay, or postpone Defendant Wife’s rights to 

enforce the money judgment and to pursue all collection rights 

and remedies.”

2 As these prior orders make clear, the $7,322 was 

seized by execution on the judgment entered as to the $1,025,000 

distributive award. The $7,322 seized did reduce the amount he 

owed on the distributive award judgment, and plaintiff does not 

get to count the amount seized by defendant twice.

III. Conclusion

Based on plaintiff’s repeated, willful disregard of court 

orders, as found by the trial court, and the trial court’s 

adequate findings regarding plaintiff’s present ability to pay 

$20,000 within 60 days, we conclude that the trial court did not 

err in holding plaintiff in civil contempt for his willful 

disregard of the order requiring him to pay $5,000 per month to 

defendant. We affirm the trial court’s order.

AFFIRMED.

Judges CALABRIA and DAVIS concur.

 

2 Plaintiff did appeal that order and the subsequent June 2012 

order holding plaintiff in contempt for willful failure to

comply with the 5 May 2010 order. Both orders were affirmed by 

this Court. Gordon, 2013 WL 3049072 at *13. We further rejected 

plaintiff’s characterization of the $5,000 monthly payment as an 

“alternative penalty.” Id.