IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-914

Filed: 7 July 2020

Mecklenburg County, No. 16 CVD 13133 (SPS)

SHEILA HOLBROOK PRICE, Plaintiff,

v.

ALEXANDER GRAHAM BIGGS, III, Defendant.

Appeal by defendant from orders entered 11 September 2017 by Judge Jane V. 

Harper and 2 April 2019 by Judge Sean P. Smith in Mecklenburg County District

Court. Heard in the Court of Appeals 27 May 2020.

Collins Family Law Group, by Rebecca K. Watts, for defendant.

No appearance for plaintiff.

ARROWOOD, Judge.

Alexander Graham Biggs, III, (“defendant”) appeals from the trial court’s order 

modifying his child support obligations and establishing a payment schedule for child 

support arrearages for which he was found in contempt. For the following reasons, 

we reverse and remand.

I. Background

This case arises from orders governing defendant’s child support obligations 

after his divorce from Sheila Holbrook Price (“plaintiff”). On 27 September 2010, the 

trial court entered a judgement for divorce that incorporated the provisions of the 
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parties’ separation agreement detailing defendant’s financial obligations to plaintiff 

for care of their children. On 6 July 2017, plaintiff filed a contempt motion against 

defendant pursuant to N.C. Gen. Stat. § 5A-23(a1) (2019), seeking enforcement of 

allegedly overdue child support payments pursuant to that judgment. The trial court 

heard plaintiff’s motion on 31 August 2017.

On 11 September 2017, the court entered an order finding defendant in 

contempt for overdue child support and awarded plaintiff attorney’s fees related to 

her motion. In the contempt order, the trial court deferred setting a payment 

schedule for the arrearages until entry of an order disposing of defendant’s pending 

motion to modify child support. It does not appear from the record that the court ever 

heard this motion.

Plaintiff subsequently filed another motion to modify child support on 

12 February 2018. On 6 September 2018, the trial court held a hearing on this 

motion (“the first hearing”). The trial court limited plaintiff and defendant to one 

hour and forty minutes each to present their cases. Plaintiff used nearly her full 

allotment of one hour and forty minutes to present her evidence. Near the end of 

plaintiff’s case, the court implored the parties to reach a settlement agreement and 

ordered a recess for that purpose. During the recess, parties entered a settlement 

agreement and the hearing ended, so defendant never presented his case and 
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evidence. This settlement fell through, as defendant’s counsel subsequently told him 

not to sign the consent order.

On 6 February 2019, another hearing was held on plaintiff’s motion (“the 

second hearing”). The trial court allotted plaintiff and defendant twenty-five minutes 

each to present their cases. Defendant’s counsel asked for the one hour and forty 

minutes he did not use to present his case at the first hearing. The trial court refused, 

despite admitting it did not recall the prior proceedings in the case. Thus, defendant 

was only afforded twenty-five minutes total to present his case, compared to 

plaintiff’s total of nearly two hours and five minutes across the two hearings.

After defendant used his twenty-five minutes to present his evidence, his 

counsel again requested additional time. The trial court responded:

Why are we making this so hard y’all? It’s so 

disappointing. It’s so disappointing to see this enormous 

number and to see y’all do this after what we did with 

[defendant’s counsel at the first hearing] who made his own 

mistakes. It’s so disappointing. You’re looking at me like 

I’m going to make it all better somehow. I’m going to issue 

some award for attorney’s fees and child support and make 

some decisions about what you have to do and make it all 

better. That’s delusional. So now [defendant’s counsel], 

you’re making the argument pursuant to these cases and 

so oh well Judge - - like I have all the time in the world to 

hear these cases.

This exchange was the extent of the trial court’s treatment of defendant’s request.

On 2 April 2019, the trial court entered an order modifying defendant’s child 

support obligations and awarded plaintiff attorney’s fees in relation to her motion. 
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The order also set a payment schedule for defendant’s child support arrearages and 

attorney’s fees pursuant to the prior contempt order. Defendant timely noted his 

appeal.

II. Discussion

On appeal, defendant argues that the trial court: (a) erred in its contempt 

order by improperly placing the burden of proof on defendant, failing to make 

statutorily required findings of fact, and setting improper purge conditions; (b) 

abused its discretion by failing to allow defendant equal time to present evidence at 

the hearings on plaintiff’s motion to modify child support; and (c) erred in awarding 

attorney’s fees to plaintiff in both orders. We address each argument in turn.

A. Contempt Order

Defendant argues that the trial court erred in its contempt order by (1) 

improperly placing the burden on defendant to prove why he was not in contempt, (2) 

failing to make statutorily required findings of fact, (3) setting improper purge 

conditions, and (4) awarding attorney’s fees to plaintiff. We agree with defendant’s

first two arguments, and reverse and remand for entry of a new order. Thus, we do 

not reach defendant’s remaining arguments.

“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.” Adkins v. Adkins, 82 N.C. App. 289, 292, 346 S.E.2d 220, 222 
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(1986) (citation omitted). We review the trial court’s conclusions of law de novo. Hall 

v. Hall, 188 N.C. App. 527, 530, 655 S.E.2d 901, 904 (2008) (citation omitted).

In contempt proceedings initiated by a party, the burden is on the movant to 

prove the other party’s contempt. N.C. Gen. Stat. § 5A-23(a1) (2019). Civil contempt 

consists of the following four elements:

(1) The order remains in force;

(2) The purpose of the order may still be served by 

compliance with the order;

(2a) The noncompliance by the person to whom the order 

is directed is willful; 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 the person to comply with 

the order.

N.C. Gen. Stat. § 5A-21(a) (2019). The trial court must make findings addressing 

each of these elements in its contempt order. N.C. Gen. Stat. § 5A-23(e).

“[T]his Court has required the trial courts to find as a fact that the defendant 

possessed the means to comply with orders of the court during the period when he 

was in default. [T]he court must find not only failure to comply but that the defendant 

presently possesses the means to comply. . . . To support a finding of willfulness, there 

must be evidence to establish as an affirmative fact that defendant possessed the 

means to comply with the order for support at some time after the entry of the order.” 

Teachey v. Teachey, 46 N.C. App. 332, 333-34, 264 S.E.2d 786, 787 (1980) (emphasis 
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added) (alterations and citations omitted). In the instant case, the trial court failed 

to make express findings on elements (2a) and (3) of N.C. Gen. Stat. § 5A-23(a1).

First, the trial court did not make any express findings on whether defendant’s 

past failure to pay the overdue child support was willful, and improperly placed the 

burden of proof for this element on defendant. The court found that defendant had

not worked as a golf pro, at an annual salary ranging from $150,000.00 to 

$175,000.00, since the entry of the 2010 divorce decree incorporating the parties’ 

initial agreement on child support. The court also found that defendant now works 

at a job with an annual salary of $50,000.00. The court further found as fact that “[i]t 

has been his choice to work at a much lower-paying job,” and it “may be the case”

“that he has paid what he could afford[.]” The court does not reconcile these findings 

with each other and come to a clear determination on willfulness. Rather, the court 

found that “[h]e offered no reason, and the court finds none, why he could not have 

resumed working as a golf pro, where he earned [more money].”

Second, the contempt order contained no express findings of fact addressing 

defendant’s present ability to comply with the child support order of which he was 

alleged to be in contempt, and improperly placed the burden of proof on defendant. 

The trial court found that “no evidence was offered of his ability to pay the entire 

amount of arrears at this time.” In the same finding, the court also questioned the 

testimony he offered of his current income and expenses, finding that “[h]e offered no 
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documents to corroborate either his income or his expenses.” However, the court did

not point to alternative evidence indicating a present ability to pay the overdue child 

support. These findings are fatal to the order.

“Under . . . show cause proceeding[s initiated by the trial court sua sponte], 

the burden of proof is on the alleged contemnor. However, when an aggrieved party 

rather than a judicial official initiates a proceeding for civil contempt, the burden of 

proof is on the aggrieved party, because there has not been a judicial finding of 

probable cause.” Moss v. Moss, 222 N.C. App. 75, 77, 730 S.E.2d 203, 205 (2012) 

(internal citations omitted) (citing N.C. Gen. Stat. § 5A-23(a), (a1) (2011)). Here, 

plaintiff filed a motion requesting the trial court to find defendant in contempt 

pursuant to N.C. Gen. Stat. § 5A-23(a1). The court did not subsequently direct 

defendant to show cause why he should not be held in contempt, per N.C. Gen. Stat. 

§ 5A-23(a), before the hearing on plaintiff’s motion. Therefore, as the aggrieved party, 

plaintiff bore the burden of proving that defendant was in contempt of the 2010 child 

support order.

As such, the trial court’s findings that no evidence was presented on whether 

defendant’s noncompliance with his child support obligations was willful or whether 

he had the present ability to comply therewith were an improper basis for its 

affirmative findings on these issues. Plaintiff bore the burden of proving defendant’s 

contempt. In contempt proceedings initiated under N.C. Gen. Stat. § 5A-23(a1), a 
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finding that no evidence was presented of an essential element of civil contempt 

compels a finding that plaintiff, as the aggrieved party, failed to meet her burden of 

proving defendant’s contempt. The court erred in holding otherwise.

The trial court failed to make essential findings mandated by N.C. Gen. Stat. 

5A-23(a1) and improperly shifted the burden of proof to defendant. Thus, the trial 

court’s findings of fact do not support its conclusion of law that defendant was in 

contempt of his child support obligations under the parties’ 2010 divorce decree. 

Accordingly, we reverse the contempt order and remand for entry of a new order 

containing adequate findings of fact and placing the evidentiary burden upon plaintiff 

to prove defendant’s contempt.

B. Hearing and Order on Motion to Modify Child Support

Defendant next argues that the trial court violated his right to due process of 

law at the second hearing on plaintiff’s motion to modify child support, by denying 

him an adequate amount of time to present his case. We agree.

Because defendant did not object on due process grounds after the trial court

denied his request for additional time, we review the court’s decision for abuse of 

discretion. “The trial judge has inherent authority to supervise and control trial 

proceedings. The manner of the presentation of evidence is largely within the sound 

discretion of the trial judge and his control of a case will not be disturbed absent a 

manifest abuse of discretion.” State v. Davis, 317 N.C. 315, 318, 345 S.E.2d 176, 178 
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(1986) (citations omitted). “A trial court may be reversed for abuse of discretion only 

upon a showing that its [ruling] . . . was so arbitrary that it could not have been the 

result of a reasoned decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 

(1985) (internal citation omitted).

The Due Process Clause of the Fifth and Fourteenth Amendments entitles a 

person to some degree of notice and an opportunity to be heard before a state actor 

may deprive him of a recognized property interest. See generally In re W.B.M., 202 

N.C. App. 606, 615, 690 S.E.2d 41, 47-48 (2010) (citing U.S. Const. Amends. V, XIV; 

N.C. Const. art. I, § 19). An obligation to pay child support is a recognized property 

interest triggering procedural due process requirements. Mann v. Mann, 57 N.C. 

App. 587, 589, 291 S.E.2d 794, 795 (1982). An opportunity to be heard must be 

provided “at a meaningful time and in a meaningful manner.” In re W.B.M., 202 N.C. 

App. at 615, 690 S.E.2d at 48 (internal quotation marks omitted) (citing Matthews v. 

Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d 18, 32 (1976)).

At the first hearing on plaintiff’s motion, plaintiff used nearly her full 

allotment of one hour and forty minutes to present her case. After plaintiff rested 

her case, the court implored the parties to reach a settlement agreement and ordered 

a recess for that purpose. At recess, the parties then entered a settlement agreement 

per the court’s request. The hearing ended, so defendant never presented his case 

and evidence. This settlement fell through. On 6 February 2019 at the next hearing 
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on plaintiff’s motion, plaintiff and defendant were each allotted twenty-five minutes 

to present their cases. Defendant’s counsel asked for the one hour and forty minutes 

he did not use to present his case in the prior hearing. The trial court refused, despite 

admitting it did not remember the events of the prior hearing. Thus, defendant was 

only afforded twenty-five minutes total to present his case compared to plaintiff’s 

total of nearly two hours and five minutes.

Under the circumstances of this case, we find that the trial court abused its 

discretion by denying defendant’s request for an adequate opportunity to be heard. 

As an initial matter, nothing in the record indicates that defendant undermined the 

settlement reached in the recess at the first hearing in bad faith. The trial court did 

not make any oral findings to that effect before denying defendant equal time to 

present his case. In fact, the trial judge admitted his lack of memory of the prior 

proceedings contemporaneously with his ruling. Nor did the trial judge make any 

findings on this matter in his written order on the motion to modify child support, 

other than simply finding that the court had denied defendant’s request for the 

additional time.

Moreover, assuming arguendo that the trial court at the second hearing was 

operating under time constraints and limited the parties’ time to present evidence in 

furtherance of a legitimate purpose of expediency, the record does not show why the 

matter could not have been continued to another time at which the court could afford 
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defendant adequate time to present his case. Nor does it indicate why plaintiff was 

entitled to half of the limited time allotted to present her case, given that she had 

received an hour and forty minutes to do so at the first hearing.

The only reasoning the trial judge provided for his ruling was that, despite his

initial lack of memory regarding the occurrences of the first hearing, he felt that the 

parties were wasting the court’s time. In the circumstances present in the instant 

case, this was not a rational basis upon which to deny defendant adequate time to 

present evidence. Therefore, we hold that the trial court abused its discretion in so 

ruling. We reverse and remand for a rehearing at which defendant is afforded 

adequate time to present his evidence. Thus, we do not reach defendant’s remaining 

argument on the trial court’s award of attorney’s fees to plaintiff.

III. Conclusion

For the foregoing reasons, we reverse and remand the contempt order for entry 

of an order that comports with the requirements of case law and statute; to the extent

necessary, the court may conduct a new hearing to accomplish this result. We also 

reverse the child support modification order and remand for rehearing at which 

defendant can be afforded his due process right to present his case.

REVERSED AND REMANDED.

Judges INMAN and MURPHY concur.