Appeal by defendant from Ellis, Judge. Order entered 30 January 1981 in District Court, Scotland County. Heard in the Court of Appeals 4 March 1982.
Whichard, Judge. Judges Martin (Robert M.) and Martin (Harry C.) concur.
The complaint alleged and the answer admitted that defendant and plaintiff Gail H. Williford had entered a Separation Agreement providing for payment by defendant of alimony and child support. On the basis of defendant's admission, summary judgment was allowed and defendant was ordered specifically to perform the provisions of the agreement.
Thereafter the court adjudged defendant in contempt for non-compliance. It prescribed a method whereby he could purge the contempt. Defendant again failed to comply, however, and a further contempt order was entered.
Defendant appeals from this order, assigning as error (1) entry of the order, and (2) refusal to admit his evidence of changed circumstances and to modify the alimony provisions. We affirm.
Defendant contends he lacked the means to make the payments, and that his failure to comply thus was not wilful. He attributes his inability to make the payments to (1) reduction in income, and (2) acquisition of a second family.
The court found the following facts:
Defendant voluntarily left the employment he had when the agreement was entered. He obtained new employment at a reduction in gross annual salary of approximately $7,000.00. He then voluntarily left that employer to work for an unnamed concern for undisclosed compensation. His income situation was thus "of his own making."
Defendant remarried and had a child by the second marriage. He applied his income to matters other than his obligations under the agreement and court orders. Since entry of the orders he had continued to pay his country club dues, truck payments, and bank loan payments. Despite no ownership interest therein, he had commenced making the payments on a home owned by his second wife.
These findings are supported by competent evidence. They are thus conclusive on appeal and are reviewable only as to their sufficiency to warrant the order. Clark v. Clark, 294 N.c. 554, 243 S.E.2d 129 (1978); Rose's Stores v. Tarrytown Center, 270 N.C. 206, 154 S.E.2d 313 (1967); State Board of Registration v. Testing Laboratories, Inc., 52 N.C. App. 344, 278 S.E.2d 564 (1981); Jones v. Jones, 52 N.C. App. 104, 278 S.E.2d 260 (1981).
"[O]ne does not act willfully in failing to comply with a judgment if it has not been within his power to do so since the judgment was rendered." Lamm v. Lamm, 229 N.C. 248, 250, 49 S.E.2d 403, 404 (1948). See also Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966); Vaughan v. Vaughan, 213 N.C. 189, 195 S.E. 351 (1938); Jones v. Jones, supra; Teachey v. Teachey, 46 N.C. App. 332, 264 S.E.2d 786 (1980). However, "[a] defendant may not deliberately divest himself of his property and in effect pauperize himself for appearance at a hearing for contempt and thereby escape punishment because he is at that time unable to comply with the court order." Bennett v. Bennett, 21 N.C. App. 390, 393, 204 S.E.2d 554, 556 (1974). Further, "[p]ayment of alimony may not be avoided merely because . . . the husband has remarried and voluntarily assumed additional obligations." Sayland v. Sayland, 267 N.C. 378, 383, ...