Pelc v. Pham

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-27

Filed 15 October 2025

Mecklenburg County, No. 16CVD016819-590

JAMES HOWARD PELC, Plaintiff,

v.

MONICA ELIZABETH PHAM, Defendant.

Appeal by defendant from judgment entered 4 April 2024 by Judge Christy T.

Mann in Mecklenburg County District Court. Heard in the Court of Appeals 24

September 2025.

Sodoma Law, PC, by Amy Elizabeth Simpson, for the plaintiff-appellant.

Thurman, Wilson, Boutwell & Galvin, P.A., by John D. Boutwell, for the

defendant-appellee.

TYSON, Judge.

James Howard Pelc (“Father”) appeals from order entered on 4 April 2024,

which found him to be in civil contempt for failure to pay Monica Elizabeth Pham

(“Mother”) pursuant to a 3 May 2023 order entered on remand. We vacate the trial

court’s order and remand.

I. Background

This cause returns to this Court following a hearing on remand. Pelc v. Pham

(“Pelc I”), 287 N.C. App. 427, 883 S.E.2d 634 (2023). Mother seeks to enforce and

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Opinion of the Court

collect on an order entered on 7 June 2021, which awarded her monetary damages

pursuant to a United States Citizenship and Immigration Services (“USCIS”) Form

I-864 Affidavit of Support, equitable damages for Father’s failure to repay a loan, and

attorney’s fees incurred for Mother’s Affidavit of Support claims. Although this case

has many common elements normally present in a domestic case and much of the

terminology is common to the terminology that often appears in domestic cases, the

issue presented is one of breach of contract, specifically the process by which one may

collect on a money judgement resulting from a breach of contract.

The facts and procedural history are set forth in this Court’s prior opinion

regarding Father’s appeal of that order:

Father and Mother began a romantic relationship in

Perth, Australia, and began cohabitating in 2007. The

relationship evolved into a “de facto relationship” per

Australian law, which is analogous to a common-law

marriage. Mother and Father are parents of one minor son

born on 26 June 2009. The parties resided in Australia

until 2014, when they moved to the United States (U.S.).

Father holds dual citizenship in the U.S. and

Australia. Mother holds dual citizenship in Australia and

New Zealand. Their son is a U.S. and Australian citizen

because Father is a U.S. citizen. At the time of trial, Father

was 62 years old, and Mother was 50 years old.

Father desired to return to the U.S. in 2014 to be

closer to his aging parents. Mother was reluctant, but she

agreed to move “on a trial basis” to determine whether she

would enjoy living in the U.S. Mother was required to

obtain a Fiancée Visa prior to immigrating and entering

the U.S. Mother and Father completed and signed a

USCIS Form I-134, entitled “Intent to Marry,” and

confirmed their intent to marry within ninety days upon

entry into the U.S. Mother and Father married on 21 July

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2014 in the U.S.

For Mother to remain in the U.S., Father also signed

and submitted a USCIS Form I-864, titled an “Affidavit of

Support,” on 7 August 2014. The Affidavit of Support

allows the “intending immigrant [to] establish that he or

she is not inadmissible to the United States as an alien

likely to become a public charge” by requiring the future

spouse to promise to financially support the alien.

The trial court found Father “represented that he

was not working but had assets and income from his

property from which to support [M]other” on the USCIS

Form I-864. Father signed the USCIS Form I-864 Affidavit

of Support, promising to maintain his alien wife, an

Australian/New Zealand citizen, for her to lawfully remain

in the United States for permanent residence.

The parties resided together in the U.S. with the

minor son until they separated on 4 November 2016.

Father failed to pay any support to Mother after the parties

separated.

From November 2016 until April 2017, the parties

“nested” with the minor son, meaning “Mother and Father

would alternate weeks living in Father’s residence with the

minor child.” The parties eventually stopped “nesting”

with their son. The parties have maintained separate

households since April 2017.

Neither Mother nor Father were employed for 2014

through 2017. Father has not maintained traditional

employment since February 2014. Mother resigned from

her job in Australia when she moved to the U.S., per

Father’s request. Mother, however, later secured a part-

time employment during 2018 and a full-time position in

2019.

Prior to moving to the U.S., Father identified

various properties located in different geographic areas.

He intended to use one as the family home, and another to

be used as a rental property to generate income. In May

2013, Father purchased residential property located in

Charlotte. He also purchased property located in Suwanee,

Georgia, in August 2013, which he hoped to rent.

Prior to closing on the property in Suwanee, Mother

offered funds to Father to avoid financing the property

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Opinion of the Court

through a traditional loan and borrowing from a lender.

Mother was to receive equity in the home for her

investment, or alternatively, Father promised to re-pay

Mother the interest she was obligated to pay on her o[w]n

separate line of credit. Mother provided $110,000

Australian dollars (“AUD”) to Father in two transactions

on 11 and 12 June 2013, which Father subsequently

transferred to a U.S. bank account and, upon conversion,

received currency proceeds of $104,099 U.S. Dollars

(“USD”). Father used those funds to partially purchase the

property in Suwanee.

The trial court found that Mother “trusted Father”

because of their personal relationship, and Mother

considered the transaction as a “loan to Father and not a

gift.” The trial court also found Mother had relied upon

Father’s promises to re-pay the funds loaned from her line

of credit and her reliance was reasonable.

Father paid Mother $4,071 towards the loan

proceeds in 2013 and part of 2014, which amount equaled

the interest accruing on Mother’s line of credit. Father

subsequently stopped paying Mother in 2014. In one of

Father’s responses to a motion before the trial, he

“admitted that Mother had loaned him the money,

admitted that he had paid for a time on the loan, and

admitted that it had not been paid in full.” Father sold the

Suwanee property for a profit in 2018. Father did not re-

pay Mother any of the proceeds from the sale nor make any

additional payments on the loan.

Following the dissolution of Mother’s and Father’s

relationship in late 2016, Father initiated this litigation

after Mother had threatened to take their minor son back

to Australia. He sought permanent child custody,

temporary emergency custody, and, in the alternative, a

motion for temporary parenting arrangement. The

litigation has sadly proceeded in a protracted, expensive,

contentious, and a highly-conflicted manner since it began.

Mother counterclaimed for a decree of divorce, child

custody, child support, attorney’s fees, recovery of personal

property, monetary damages resulting from breach of

contract for support, specific performance of the contract

for support, equitable distribution, interim allocation,

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postseparation support, alimony, unjust enrichment,

constructive trust, and resulting trust.

Mother voluntarily dismissed her post-separation

support, alimony, and temporary and permanent child

support claims without prejudice when trial began. The

remaining claims were tried between 9-11 December 2019.

No written order was entered until eighteen months later

on 7 June 2021.

The trial court found and concluded: (1) Father owed

Mother damages for failing to meet his contractual

obligation under the USCIS Form I-864 Affidavit of

Support; (2) Mother’s claim for quantum meruit/unjust

enrichment should be granted for the funds Mother

provided to finance the purchase of the Georgia rental

home and awarded Mother $100,028 USD, the converted

amount of the funds minus the payments Father made in

2013 and 2014, together with $33,697.10 USD in interest;

(3) Mother’s claim for attorney’s fees arising out of the

Affidavit of Support should be allowed in the amount of

$20,000 USD; and, (4) both Mother and Father’s claims for

attorney’s fees related to the child custody agreement

should be denied.

Pelc I, 287 N.C. App. at 430-33, 883 S.E.2d at 637-38.

In Pelc I, this Court affirmed in part, reversed in part, and remanded the

matter to the trial court. Id. at 430, 883 S.E.2d at 637. On remand, the trial court

was instructed to “correct and convert Mother’s equitable award from the loan

amount” from U.S. Dollars into Australian Dollars, in accordance with N.C. Gen.

Stat. § 1C-1823(b) (2023). Id. at 448, 883 S.E.2d at 648. The trial court was also

instructed to recalculate the damages owed to Mother arising from the Affidavit of

Support using the 125% of FPL Guidelines for a one-person household instead of

those attributable to a two-person household. Id. at 447, 883 S.E.2d at 647-48.

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The trial court held a hearing and entered its Order and Judgment from

Remand Hearing on 3 May 2023. The order recalculated the amount of damages

owed to Mother pursuant to the Affidavit of Support and her unjust enrichment

claims and provided: “This Consent Order and Judgment shall be enforceable by the

full contempt powers of this Court.” Although the court referred to the order as a

“Consent Order”, it was only signed by the judge, and not the parties. There are also

no findings indicating the parties had reached an agreement and requested the Court

to enter an agreement they had reached as an order. This appears to be a mis-

statement by the Court, as nothing in the record supports this order having been

derived from a consent agreement of the parties.

Sixteen days later, the trial court entered a separate order awarding

reasonable attorney’s fees to Mother. Both orders provided Father was to pay Mother

within thirty days from the entry of the order.

Father did not pay Mother any of the money he was required to pay her.

Mother filed a Motion for Contempt on 19 July 2023. The trial court issued a Show

Cause Order on 21 December 2023, which notified Father a hearing would be held on

23 January 2024.

Father filed a Motion to Claim Exempt Property pursuant to N.C. Gen. Stat.

§§ 1C-1601 and 1603 (2023). Father argued certain subsections of N.C. Gen. Stat.

§ 1C-1601 shielded portions of his house, motor vehicle, household furnishings, and

his Australian Government Employees Superannuation Board (“GESB”) account

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from being used to satisfy the damages owed to Mother. Mother objected to Father’s

exemption.

A second Show Cause Order was filed on 29 January 2024, and a hearing was

held on 6 March 2024. An Order of Civil Contempt was entered against Father on 4

April 2024. The trial court made the following findings of fact:

24. Plaintiff argued that he had certain property (for

example, his house and his retirement account) that should

be exempt from execution and/or exempt from

consideration of his ability to pay. Defendant argued that

this was a contempt proceeding and not a proceeding to

execute on or seek a writ of execution on Plaintiff’s

property, that currently there is not a pending proceeding

for a writ of execution under Chapter 1C of the North

Carolina General Statutes, and that the contempt statute

and contempt case law do not restrict the Court from

considering all of Platiniff’s income and assets in

determining whether Plaintiff has the ability to comply

with the Court’s Orders.

25. The Court finds that Plaintiff’s Motion to Claim

Exempt Property as it pertains to this contempt proceeding

should be denied.

....

41. As a result, Plaintiff has a current net estate of

$473,600.00 in US Dollars.

42. As of March 6, 2024, Plaintiff owes the following

amounts to Defendant:

(a) Affidavit of Support: $34,421.59 in US dollars

principal plus interest

(b) Attorney Fees: $32,000.00 in US dollars

(c) Unjust Enrichment: $168,652.08 in AUD

principal plus interest.

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43. If Plaintiff were to pay Defendant what he owes her, he

would still have several hundred thousand dollars left over

in his estate.

....

47. In spite of having the ability to pay Defendant from his

GESB, he has willfully refused to do so.

48. Plaintiff’s failure and refusal to abide by the terms of

the Orders or to take reasonable measures to do so has

been willful and without legal justification or excuse.

The trial court ordered Father to ninety days of imprisonment unless he

“purge[d] himself of contempt by making full payment of all amounts” set forth in the

Order from Remand and Order on Attorney’s Fees.

Father appealed the Contempt Order on 6 May 2024. A second Show Cause

Order was filed on 22 May 2024, which scheduled a hearing for 28 May 2024. A

second contempt hearing was held, and Father was recommitted to an additional

ninety days in prison unless he purged himself of contempt.

Father filed a Petition for Writ of Supersedeas and Motion for Temporary Stay

before this Court on 18 June 2024. This Court allowed Father’s motion on 27 June

2024 and stayed the contempt orders.

II. Jurisdiction

“The appeal of any contempt order . . . affects a substantial right and is

therefore immediately appealable.” Guerrier v. Guerrier, 155 N.C. App. 154, 158, 574

S.E.2d 69, 71 (2002).

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III. Issues

Father argues several issues on appeal. He asserts the trial court erred by

using a contempt proceeding, instead of an execution proceeding, to enforce its order,

in violation of N.C. Gen. Stat. § 1-302 (2023). He further argues the trial court

improperly considered certain assets when calculating his ability to pay, arguing

those assets would have been exempt property in an execution proceeding. He also

asserts the trial court’s contempt order is not supported by competent evidence,

because he does not have the ability to pay.

Lastly, Father argues the trial court’s Order and Judgment from Remand

Hearing, which was entered nearly one year before the Contempt Order, erroneously

calculated the damages Father owes to Mother.

IV. Trial Court’s Jurisdiction to Hold Father in Contempt

Father argues “the trial court has ‘blended’ for lack of a better word, the

remedies associated with both a judgment and order, without legal authority.” He

asserts enforcement of money judgments are generally governed by execution

pursuant to N.C. Gen. Stat. § 1-302 (2023).

A. Standard of Review

“Subject matter jurisdiction is conferred upon the courts by either the North

Carolina Constitution or by statute.” Harris v. Pembaur, 84 N.C. App. 666, 667, 353

S.E.2d 673, 675 (1987). “The question of subject matter jurisdiction may be raised at

any time, even in the Supreme Court.” Lemmerman v. A.T. Williams Oil Co., 318

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N.C. 577, 580, 350 S.E.2d 83, 85 (1986).

“‘[I]t is a universal rule of law that parties cannot, by consent, give a court, as

such, jurisdiction over subject matter of which it would otherwise not have

jurisdiction. Jurisdiction in this sense cannot be obtained by consent of the parties,

waiver, or estoppel.’” Pulley v. Pulley, 255 N.C.423, 429, 121 S.E.2d 876, 880 (1961)

(quoting Hart v. Thomasville Motors, Inc., 244 N.C. 84, 88, 92 S.E.2d 673, 676 (1956)),

appeal dismissed and cert. denied, 371 U.S. 22, 9 L. Ed. 2d 96 (1962). The record is

devoid of evidence to indicate this order was an order entered as a result of an

agreement by the parties.

“Whether a trial court has subject-matter jurisdiction is a question of law,

reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d

590, 592 (2010).

B. Analysis

“Where a judgment requires the payment of money or the delivery of real or

personal property it may be enforced in those respects by execution[.]” N.C. Gen.

Stat. § 1-302 (2023). “[I]t has long been the general rule that ‘judgment fixes the

amount due, and execution—not contempt proceedings—issues if not paid.’” Brown

v. Brown, 171 N.C. App. 358, 361, 615 S.E.2d 39, 41 (2005) (quoting Hildebrand v.

Vanderbilt, 147 N.C. 639, 642, 61 S.E. 620, 621 (1908)).

In Brown, this Court explained trial courts have an express statutory basis

under N.C. Gen. Stat. § 50-13.4(f) (2023) to “enforce[e] judgments for child support

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arrearage by contempt proceedings, under specified conditions[.]” Id. Because the

trial court did not comply with those statutory conditions, the judgment was not

enforceable by contempt. Id. at 362, 615 S.E.2d at 41. The trial court’s award was

vacated because the order was “not enforceable by contempt, and the trial court did

not have jurisdiction to enter an order finding defendant in contempt.” Id.

Imposition of contempt is also not the proper procedure and remedy to enforce

a judgment entered with the consent of the parties, because a consent judgment is

nothing more than an agreement and contract between parties. See Ibele v. Tate, 163

N.C. App. 779, 782, 594 S.E.2d 793, 795 (2004) (“As the consent order in this case

essentially represents a contract between the parties, the court has no authority to

exercise its inherent contempt power, and the parties have no right to grant or accept

a power held only by the judiciary, which includes the potential for imprisonment.”).

Here, as Defendant correctly argued, execution proceedings with statutory and

lawful exemptions, not contempt proceedings, were the proper avenue for recouping

damages owed to Mother under the judgment. Hildebrand, 147 N.C. at 642, 61 S.E.

at 62.

Mother was not seeking child support arrearages from Father, but contractual

damages owed to her from unjust enrichment claims and from Affidavit of Support

claims, both of which are based in contract law. See Pelc I, 287 N.C. App. at 437, 442,

883 S.E.2d at 641, 644. As was held in Brown and Ibele, the trial court had no power

to exercise its contempt power, and the contempt orders are vacated. Brown, 171

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N.C. App. at 361-62, 615 S.E.2d at 41; Ibele, 163 N.C. App. at 782, 594 S.E.2d at 795.

Mother is permitted to bring execution proceedings to recover the damages and fees

owed to her from Father without prejudice. Because the trial court’s contempt order

is vacated, Father’s remaining arguments about whether competent evidence existed

to support its findings are moot.

V. Collateral Attack

Father argues the interest owed for Mother’s unjust enrichment claims in the

3 May 2023 order was improperly calculated. Father’s argument and challenge is a

collateral attack on an earlier order not before us on appeal and is without merit.

“A collateral attack is one in which a party is not entitled to the relief requested

‘unless the judgment in another action is adjudicated invalid.’” In re Webber, 201

N.C. App. 212, 219, 689 S.E.2d 468, 474 (2009) (quoting Clayton v. N.C. State Bar,

168 N.C. App. 717, 719, 608 S.E.2d 821, 822 (2005) (citation and quotation marks

omitted)). “‘A collateral attack on a judicial proceeding is an attempt to avoid, defeat,

or evade it, or deny its force and effect, in some incidental proceeding not provided by

law for the express purpose of attacking it.’” Id. (quoting Reg’l Acceptance Corp. v.

Old Republic Sur. Co., 156 N.C. App. 680, 682, 577 S.E.2d 391, 392 (2003) (citation

and quotation marks omitted)). “Collateral attacks generally are not permitted under

North Carolina law.” Id. (citation omitted).

Father had the opportunity to appeal the 3 May 2023 order outlining the

amount he owed to Mother and any interest calculations thereon, but he failed to do

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so. Nearly one year after the entry of the 3 May 2023 order, Father appealed the trial

court’s 4 April 2024 contempt order. Father’s argument acknowledges the validity of

the 3 May 2023 order, as his arguments have largely centered on the trial court’s

inability to enforce the judgment through its contempt powers versus through

execution. Father’s arguments about the trial court’s interest calculations in an un-

appealed, final order are an impermissible collateral attack. In re Webber, 201 N.C.

App. at 219, 689 S.E.2d at 474. We overrule and dismiss this argument.

VI. Conclusion

The trial court had no jurisdiction to exercise its contempt power to compel

compliance with a money judgment arising from a general breach of contract. The

breach of contract issue was and is wholly separate from any domestic relations

orders the court may have entered. The Court lacked authority to enter the contempt

order, and the contempt order is vacated. Brown, 171 N.C. App. at 361-62, 615 S.E.2d

at 41; Ibele, 163 N.C. App. at 782, 594 S.E.2d at 795. Mother is free to bring forth

execution proceedings, subject to Defendant’s statutory and lawful exemptions, to

enforce the trial court’s 3 May 2023 judgment without prejudice. Father’s remaining

arguments are moot or are an impermissible collateral attack and are dismissed. In

re Webber, 201 N.C. App. at 219, 689 S.E.2d at 474. The order appealed from is

vacated and remanded for further proceedings. It is so ordered.

VACATED AND REMANDED.

Judges CARPENTER and STADING concur.

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