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Shirey v. Shirey

Court of Appeals of North Carolina

October 1, 2019

STACIE B. SHIREY, Defendant.

          Heard in the Court of Appeals 8 August 2019

          Appeal by plaintiff from order entered 14 March 2018 by Judge Tracy H. Hewitt in Mecklenburg County No. 14 CVD 13699 District Court.

          Thomas Godley & Grimes, PLLC, by Maren Tallent Werts and Seth A. Glazer, for plaintiff-appellant.

          No brief for defendant-appellee.

          TYSON, JUDGE.

         Richard 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.

         I. Background

         The 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.

         While 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.

         Husband 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 named beneficiary.

         The 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.

         After 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").

         This 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.

         Wife's 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.

         While 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.

         Wife 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."

         Wife 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 affair.

         Husband 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.

         The 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."

         The 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.

         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.

         The 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.

         II. Jurisdiction

         This Court possesses jurisdiction pursuant to N.C. Gen. Stat. § 7A-27(b) (2017).

         III. Issues

         Husband 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.

         IV. Modification of Child Support and Alimony

         Husband 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.

         A. Standard of Review

         Generally, the trial court's decision regarding alimony and child support is:

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 omitted).

         A trial 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).

         B. Analysis

         The 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 ...

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