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Tigani v. Tigani

Court of Appeals of North Carolina

October 17, 2017

KIM TIGANI, Plaintiff,
v.
GREGORY TIGANI, Defendant.

          Heard in the Court of Appeals 23 August 2017.

         Appeal by defendant from order entered 15 August 2016 by Judge Joseph Williams in Union County No. 11 CVD 2028 District Court.

          Plumides, Romano, Johnson and Cacheris, PC, by Richard B. Johnson, for plaintiff-appellee.

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

          ZACHARY, Judge.

         Gregory Tigani (defendant) appeals from an order finding him in civil contempt of court for his failure to abide by the terms of an order of the trial court directing defendant to pay $20, 096.68 in attorney's fees to the attorney hired by Kim Tigani (plaintiff) in the course of domestic litigation between the parties. On appeal, defendant argues that the trial court erred by finding defendant in contempt of court for his failure to abide by the order to pay attorney's fees to plaintiff's counsel and by ordering that defendant be incarcerated until he purged himself of his contempt. Defendant contends that the court's findings were not supported by competent evidence. After careful review of defendant's arguments, in light of the record on appeal and the applicable law, we conclude that defendant's arguments have merit and that the contempt order should be reversed.

         Factual and Procedural Background

         Plaintiff and defendant were married in 1986, separated in 2006, and executed a separation agreement in 2007. In 2011, plaintiff filed a complaint alleging that defendant had breached the terms of the separation agreement and seeking specific performance and attorney's fees. Defendant filed an answer and counterclaims. In 2015, the matter was tried before a jury, which found that both parties had breached the separation agreement, that plaintiff was entitled to damages of $62, 000, and that defendant was entitled to nominal damages of $1.00. On 2 October 2015, the trial court entered orders that awarded plaintiff $62, 000 in damages and denied plaintiff's request for specific performance.

         The present appeal arises from the court's order, also entered 2 October 2015, awarding plaintiff's attorney's fees. The trial court ordered defendant to pay plaintiff's counsel, Mr. Richard Johnson, a total of $20, 096.68 in attorney's fees, with $10, 048.34 due no later than 1 November 2015, and the remainder payable no later than 1 March 2016. On 25 November 2015, plaintiff's counsel filed a verified motion asking the court to hold defendant in contempt of court for failure to make the payment that was due by 1 November 2015. The first sentence of plaintiff's motion, entitled "Motion For Contempt, " stated that plaintiff was "moving the Court for an Order to Show Cause directed to Defendant[.]" Plaintiff set out the relevant facts and asked the trial court to issue "an Order directing Defendant to appear and show cause" why he should not be held in contempt. Plaintiff also requested issuance of "an Order finding Defendant in contempt of this Court and committing Defendant to custody until such time as he fully complies" with the order to pay attorney's fees. Plaintiff served defendant's counsel with her Notice of Hearing indicating that the "matters for hearing" were a "SHOW CAUSE, " among other matters. Defendant moved for a continuance, which was denied. The trial court conducted a hearing on the motion on 25 July 2016. Neither defendant nor his counsel attended the hearing. After hearing from plaintiff's counsel, the trial court ruled that defendant was in civil contempt of court for his failure to abide by the terms of the court's order.

         On 15 August 2016, the court entered an order finding defendant "in contempt of court for his failure to comply with" the order to pay attorney's fees, and ordering that defendant be incarcerated in the Union County jail until he paid the full amount of attorney's fees. On the same day that the order was entered, defendant filed a motion under N.C. Gen. Stat. § 1A-1, Rule 60, asking the court to set aside the contempt order. On 25 August 2016, defendant's appellate counsel filed a petition for writ of supersedeas and a motion for a temporary stay with this Court, which were both denied the same day. On 26 August 2016, before the court had ruled on defendant's Rule 60 motion, defendant entered notice of appeal to this Court. Also on 26 August 2016, plaintiff's counsel asked the trial court to issue an order for defendant's arrest. Because defendant had given notice of appeal, the court ruled that it was divested of jurisdiction and denied the request that it order defendant's arrest.

         Standard of Review

         It is well-established that "[t]he standard of review we follow in a contempt proceeding is 'limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law.' " Miller v. Miller, 153 N.C.App. 40, 50, 568 S.E.2d 914, 920 (2002) (quoting Sharpe v. Nobles, 127 N.C.App. 705, 709, 493 S.E.2d 288, 291 (1997)). "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." Tucker v. Tucker, 197 N.C.App. 592, 594, 679 S.E.2d 141, 142 (2009) (internal quotation marks omitted). However, "[i]f, as here, the finding that the failure to pay was willful is not supported by the record, the decree committing defendant to imprisonment for contempt must be set aside." Henderson v. Henderson, 307 N.C. 401, 409, 298 S.E.2d 345, 351 (1983).

         Civil Contempt: Legal Principles

         The purpose of a proceeding for civil contempt "is not to punish, but to coerce the defendant to comply with the order." Bethea v. McDonald, 70 N.C.App. 566, 570, 320 S.E.2d 690, 693 (1984) (citing Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980)). N.C. Gen. Stat. § 5A-21(a) (2015) provides that:

(a) Failure to comply with an order of a court is a continuing civil ...

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