# Barker v. Barker > Court of Appeals of North Carolina · August 6, 2013 · 228 N.C. App. 362 URL: https://www.frixlaw.com/law-library/cases/8901668 ## Case - **Full name:** JAMESIA HICKS BARKER v. JOSEPH DAVID BARKER - **Court:** Court of Appeals of North Carolina - **Decided:** August 6, 2013 - **Citations:** 228 N.C. App. 362; 745 S.E.2d 910; 2013 N.C. App. LEXIS 822; 2013 WL 3990690 - **Precedential status:** Published - **Opinion:** Concurring in part by Dillon - **Judges:** Calabria, Dillon, Ervin - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8901668 ## How later opinions describe it (automated extraction) - holding that the father, who had agreed to pay his daughter’s education so long as she “diligently applied” herself to her studies, was obligated to continue paying the daughter’s educational expenses, notwithstanding the daughter’s poor academic performance and placement on a… ## Opinion text DILLON, Judge, concurring in part and dissenting in part. Because I believe there was competent evidence to support the trial court’s findings regarding Holly’s diligent pursuit of her education, I concur with Section III of the majority’s opinion. However, I do not believe that the trial court’s findings support a conclusion that Defendant’s actions were willful; and, therefore, I dissent from Section IV of the majority’s opinion affirming the trial court’s adjudication of civil contempt against Defendant. In the case sub judice, the trial court held Defendant in civil contempt because he failed to comply with the Stipulations and Order dated *370 20 August 2003 (the 2003 order) that required him to pay a share of his daughter’s college expenses “as long as [she] shall continue [her] education and diligently apply [herself] to the pursuit of such education.” Generally, a “judgment by consent is but a contract between the parties put upon the record with the sanction and approval of the Court[,]” Yount v. Lowe, 288 N.C. 90, 96 , 215 S.E.2d 563, 567 (1975), and that it can be enforced by the filing of “an independent action for a declaratory judgment regarding the interpretation of the contract underlying the judgment” or through a contempt proceeding, Fucito v. Francis, 175 N.C. App. 144, 148 , 622 S.E.2d 660, 663 (2005). However, our Supreme Court has held that in the domestic law context, once an agreement is incorporated into a consent order, it is no longer considered a contract between the parties, but rather a court-ordered judgment, Walters v. Walters, 307 N.C. 381, 386-87 , 298 S.E.2d 338, 342 (1983); and we have held, in this context, that it is appropriate for a trial court to construe a consent order in a contempt proceeding, but not through a declaratory judgment action. Fucito, 175 N.C. App. at 150 , 662 S.E.2d at 664. Therefore, it was appropriate for the trial court to construe the language in the 2003 order in the context of the contempt proceeding. Defendant, however, argues that his “non-compliance with [the 2003 order] was [not] willful in nature.” We have held that though a trial court has the authority in the context of domestic law to construe the terms of a prior order in a contempt proceeding, it may not adjudicate a party to be in civil contempt unless the party’s noncompliance of the court order is willful. Ross v. Voiers, 127 N.C. App. 415, 418 , 490 S.E.2d 244, 246 , disc. review denied, 347 N.C. 402 , 496 S.E.2d 387 (1987) (holding defendant’s failure to pay for a child’s college expenses pursuant to a consent order entered in a domestic action must be willful to support an adjudication of contempt). “[W]illful[ness]” is defined as “disobedience which imports knowledge and a stubborn resistance, and as something more than an intention to do a thing.” Id. (citation and quotation mark omitted) Our Court has held that if a prior order “is ambiguous such that a defendant could not understand his ... obligations under the order, he cannot be said to have ‘knowledge’ of that order for purposes of contempt proceedings[,]” and his actions, therefore, are not willful. Blevins v. Welch, 137 N.C. App. 98, 103 , 527 S.E.2d 667, 671 (2000). Thus, if the prior order is ambiguous, a reversal of the trial court’s adjudication of civil contempt “[d]ue to the ambiguity” of the prior order may be proper. Blevins, 137 N.C. App. at 103 , 527 S.E.2d at 671 . *371 In this case, the trial court found that Holly’s cumulative GPA for her first two semesters of college was 1.9; that in her third semester, Holly only earned 7.5 credit hours out of 16.5 hours attempted, finishing the semester with a 1.0 GPA and a combined GPA of 1.658, which resulted in her being placed on academic probation; that she did pull her cumulative GPA up to a 2.0 by the end of her fourth semester; that Defendant had paid for two of his daughter’s first four semesters but did not believe he was obligated to pay any more towards Holly’s first four semesters; and that he indicated a willingness to begin paying support again for future semesters. I believe that based on these findings, the 2003 order was ambiguous as to whether Defendant had an obligation to provide support for his daughter’s initial four semesters beyond the two semesters for which he had already provided support. 1 DeRossett v. Duke Energy Carolinas, LLC, 206 N.C. App. 647, 656 , 698 S.E.2d 455, 462 (2010) (holding that “[t]he extent to which a consent judgment is ambiguous is a question of law”). Further, the trial court made other findings which do not support a conclusion that Defendant acted out of “disobedience” or a “stubborn resistance” to the 2003 order, as is required to sustain an adjudication of contempt. Rather, the trial court specifically found that “Defendant refused to pay tuition for the [third] semester because... he did not feel like his daughter was ‘diligently’ applying herself.” (emphasis added). The trial court further found that the Defendant’s noncompliance “was willful in that Defendant unilaterally decided that [his daughter] was not diligently applying herself’ in her studies. In other words, the trial court found that Defendant acted willfully, not because he was acting stubbornly in refusing to meet his obligations under the terms of the 2003 order, but rather because he honestly believed that the terms of the 2003 order did not require him to provide for his daughter’s education during her time of poor academic performance. Therefore, I believe the trial court’s findings do not support its adjudication of contempt. I note that Defendant does not expressly state his lack of willfulness was due to the ambiguity of the 2003 order and that generally our review is limited to the arguments presented. See N.C. R. App. P. 28(b) (6). However, to support his contention that his actions were not “willful,” Defendant argues that he had attempted to determine “whether *372 [Holly] was applying herself diligently”; that “[w]hen he learned of her poor performance,... he sought further verification”; and that “[b]ased upon the information he had, he withheld payment.” Further, it is clear from Defendant’s arguments throughout his brief that he did not agree with the trial court’s interpretation of the 2003 order. Therefore, based on Defendant’s brief, I believe “we are able to determine the issues in this case on appeal,” Youse v. Duke Energy Corp., 171 N.C. App. 187, 192 , 614 S.E.2d 396, 400 (2005), including whether Defendant’s actions were willful where he based his actions on an interpretation of the 2003 order that was different from the trial court’s interpretation. In conclusion, I would affirm the trial court’s order insofar as it resolved the ambiguity in the 2003 order regarding Defendant’s support obligations for his daughter’s educational expenses; however, I would reverse the trial court’s adjudication of civil contempt. . The trial court, however, made other findings and concluded that, based on its interpretation of the 2003 order, Holly was being diligent in the pursuit of her education and that, therefore, Defendant was obligated to pay his share of Holly’s educational expenses for all four of her initial semesters. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8901668. Public record. Not legal advice.