in the Court of Appeals 8 August 2019
by plaintiff from order entered 14 March 2018 by Judge Tracy
H. Hewitt in Mecklenburg County No. 14 CVD 13699 District
Godley & Grimes, PLLC, by Maren Tallent Werts and Seth A.
Glazer, for plaintiff-appellant.
brief for defendant-appellee.
Owen Shirey ("Husband") appeals from the trial
court's 6 March 2018 order on Stacie B. Shirey's
("Wife") motions: (1) for contempt; (2) to
enforce/attach; (3) to modify alimony and child support; (4)
for suspension of custody/visitation; and, (5) for
attorney's fees, and on Husband's motions: (1) for
contempt; and, (2) to modify. We affirm in part, reverse in
part, vacate in part, and remand.
Shireys were married on 12 October 2002, separated on 1
February 2014, and were divorced on 13 May 2016. They are the
natural parents of two children, one deceased minor son and
one minor daughter with special needs ("T.S."), who
is also a subject of this litigation.
represented by counsel, the Shireys voluntarily bargained for
and agreed upon a settlement on all issues of alimony, child
custody and support, and equitable distribution, which was
reduced to writing, signed by all parties and was jointly
presented to the court and entered as a Consent Order in the
Mecklenburg County Clerk of Superior Court on 24 May 2016.
agreed to: (1). pay $2, 800 per month for T.S.'s child
support until terminated pursuant to North Carolina Law; (2).
pay T.S.'s health insurance premium and 50% of T.S.'s
uninsured medical expenses; (3). maintain a life insurance
policy securing his life with a net death benefit of $1, 000,
000.00 to T.S. as named beneficiary; (4). pay Wife a total of
sixty (60) payments of $1, 500.00 per month in alimony; (5).
pay Wife's health insurance premium for the same five
years duration; and, (6). maintain a life insurance policy on
his life with a net benefit of $1, 500, 000.00 with Wife as
Consent Order also required the Shireys to list the former
marital residence located at 17301 Huntersville Concord Road,
Huntersville, N.C. ("Huntersville Property") for
sale and to split the net sale proceeds; list a marital
Condominium property located at 18829 Vineyard Point Lane,
Cornelius, N.C. ("Cornelius Property") for sale and
split the net sale proceeds; and for Husband to pay debt owed
by the Shireys to the Internal Revenue Service
("IRS") in the amount of $159, 163.83. The Consent
Order also addressed the disposition and sale of a resort
property located in Big Pine Key, Florida, which was owned by
the Shireys with two other couples.
their separation and divorce, the Shireys remained amicable
and were staying at a hotel in Indian River County, Florida
with T.S. for her to attend and participate in an equestrian
event on 27 January 2017. An altercation arose between them.
Wife threw a soft drink in Husband's face, and then
Husband threw a soft drink in Wife's face, then
purportedly hit her. Husband called police officers, who
observed injuries to Wife and arrested Husband. Wife then
obtained a Domestic Violence Order of Protection
DVPO restricted Husband from contacting Wife directly.
Husband attempted to send the alimony and child support
payments to Wife's counsel. Wife refused to accept these
payments and filed motions for contempt, to enforce/attach,
to modify alimony and child support, for suspension of
custody/visitation, and for attorney's fees. Husband
later filed motions for contempt and to modify alimony and
child support on 27 April 2017.
motion to modify the Consent Order's alimony and child
support provisions alleges a substantial change in
circumstances based upon the following facts: (1) Husband
selling the business interests distributed to him as separate
property in the Consent Order; (2) Husband allegedly having
acquired additional employment and income post-divorce; (3)
Husband having voluntarily provided additional funds beyond
his agreed-upon obligations for the benefit of T.S. and Wife
after entry of the Consent Order; (4) the Shireys not selling
and agreeing to maintain ownership of the property in Big
Pine Key under a limited liability company, and to operate it
as a rental property; and, (5) the Shireys' alleged
diversion of rental income from the Big Pine Key property.
legally separated and divorce was contemplated and after the
Consent Order had been entered, Husband and Wife purchased a
residence as listed tenants by the entirety located at 25
Park Avenue, Vero Beach, Florida ("Vero Beach
Property"). The parties stipulated Husband contributed
$300, 000.00 to pay for his one-half interest, and also
contributed an additional $202, 000.00 towards the purchase
price of Wife's share.
contributed $98, 000.00 toward her one-half interest in the
Vero Beach Property. Wife testified she had agreed to the
Husband's request for the Vero Beach Property to be
purchased to provide T.S. "a nice place to live."
further testified that no portion of the purchase price
contributed by Husband for her share of the Vero Beach
Property was to compensate for amounts Husband owed pursuant
to the Consent Order. Wife asserted Husband wished to
reconcile with her at the Vero Beach Property and wanted them
to raise his minor son, who was born from an extramarital
testified and denied Wife's assertions. Husband testified
the additional $202, 000.00 he paid to purchase Wife's
share of the Vero Beach Property was to satisfy amounts owed
and payable to Wife under the equitable distribution terms of
the Consent Order. Husband also testified to an agreement
providing Husband would advance Wife a portion of her share
of the net proceeds from the sale of the Cornelius Property,
and reimburse her for money garnished from her account by the
IRS by bringing those cash amounts to closing for the
parties' purchase of the Vero Beach Property.
trial court concluded Husband remained obligated to Wife for
$58, 700.70 from the sale proceeds of the Cornelius Property
and to pay $129, 873.10 to reimburse her for the IRS
garnishment. The trial court denied Wife's Motion for
Contempt, but found "Husband has failed to comply with
the terms of the Permanent Order. However, he has either
purged the contempt[s] or found not to be willful."
trial court also allowed Wife's Motion for Modification
of Child Support and Alimony. The court found a
"substantial change in circumstances impacting the
welfare of the minor child that justifies an indefinite
suspension of the child custody provisions in the permanent
order" had occurred since entry of the Consent Judgment.
Sometimes referring to the Consent Order or Judgment as a
"Permanent Order," the court also concluded the
best interests of the child required the custodial terms of
the Consent Order that placed T.S. in the primary physical
custody with Wife were to remain intact, but amended the
agreed-upon terms to allow the minor child to dictate the
terms of any visitation with Husband.
was also ordered to pay $58, 700.70, representing Wife's
remaining share of the net proceeds from the sale of the
Cornelius Property, $155, 632.68 representing Wife's
share of the proceeds from the sale of the Huntersville
Property, $129, 873.10 as reimbursement for money garnished
from Wife's account by the IRS, and pay the debt on the
2014 Ford F-250 pick-up truck in full and to transfer and
deliver title to the vehicle to Wife.
trial court also found: "Wife is an interested party
acting in good faith with insufficient means to defray costs
and expenses of suit and is entitled to an award of
attorney's fees." The trial court granted Wife's
Motion for Attorney's Fees, holding "Wife had no
choice but to initiate legal action to force Husband's
compliance with the Permanent Order." Husband was
ordered to pay Wife's attorney's fees of $69, 962.90.
Husband timely appealed.
Court possesses jurisdiction pursuant to N.C. Gen. Stat.
§ 7A-27(b) (2017).
argues the trial court erred by: (1) finding a substantial
change in circumstances had occurred to warrant a
modification of child support and alimony; (2) concluding
both that there had been a substantial change in
circumstances warranting an indefinite suspension of the
child visitation provisions in the Permanent Order and that
it is in the best interests that the custodial terms in the
consent order remain intact, yet denying Wife's motion to
suspend child custody; (3) ordering Husband to pay Wife $58,
700.70 from the net proceeds of the Cornelius Property; (4)
requiring Husband to pay Wife $129, 873.10 to reimburse Wife
for the IRS garnishment; (5) finding the parties did not
deviate from the terms of the Consent Order without the
written consent of both parties; (6) ordering Husband to pay
off the debt on the F-250 Ford pick-up; and, (7) awarding
Wife attorney's fees. Wife filed no brief or arguments on
appeal with this Court, after seeking and being granted two
extensions to do so.
Modification of Child Support and Alimony
asserts the trial court erred when it found a substantial
change in circumstances had occurred, warranting a
modification of the parties' agreed-upon terms for child
support and alimony in the Consent Order.
Standard of Review
the trial court's decision regarding alimony and child
left to the sound discretion of the trial judge and will not
be disturbed on appeal unless there has been a manifest abuse
of that discretion. When the trial court sits without a jury,
the standard of review on appeal is whether there was
competent evidence to support the trial court's findings
of fact and whether its conclusions of law were proper in
light of such facts.
Williamson v. Williamson, 217 N.C.App. 388, 390, 719
S.E.2d 625, 626 (2011) (citations and quotation marks
court abuses its discretion when it renders a decision that
is "manifestly unsupported by reason or one so arbitrary
that it could not have been the result of a reasoned
decision." Briley v. Farabow, 348 N.C. 537,
547, 501 S.E.2d 649, 656 (1998) (citations omitted). The
trial court's conclusions of law are reviewed de
novo. Lee v. Lee, 167 N.C.App. 250, 253, 60
S.E.2d 222, 224 (2004).
Order states, in relevant parts:
63. Since the entry of the Permanent Order there has been a
substantial change in circumstances affecting both the
welfare of the minor child and her mother which justifies the
modification of child support and alimony in order to
maintain their accustomed standard of living. Specifically
the court finds as follows:
a) Husband sold his interests in the businesses he previously
owed with his brother for more than $4 million which is paid
over a 10-year period in monthly installments of $30, 000
[twice monthly payments of $15, 000.00] as well as an
additional $100, 000.00 lump sum payment made annually= $460,
000.00/year. This does not ...