Marshall v. Marshall ( 2014 )

NO. COA13-689
NO. COA13-692
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
JOHANNA MARIA MAGDALENA MARSHALL,
LISA MULL MOORE, ROBERT CHRISTIAN
MOORE,
Plaintiffs,
v. Mecklenburg County
No. 10 CVD 24330
HUNTER DOUGLAS MARSHALL,
Defendant.
Appeal by Defendant from orders entered 20 August and 18
October 2012 by Judge Paige B. McThenia in Mecklenburg County
District Court. Heard in the Court of Appeals 21 November 2013.
Jonathan McGirt for Plaintiff Marshall.
No brief for Plaintiffs Moore.
Marshall & Taylor, P.C., by Travis R. Taylor, for
Defendant.
STEPHENS, Judge.
Factual Background and Procedural History
This appeal arises from the self-described “desperate
measures” undertaken by Defendant Hunter Douglas Marshall
(“Defendant”) in an attempt to prevent the end of his marriage
to Plaintiff Johanna Maria Magdalena Marshall (“Johanna”), and,
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once the marriage did end, his campaign of hatred and harassment
against Johanna and Johanna’s family, friends, and
acquaintances, as well as Plaintiffs Lisa Mull Moore and Robert
Christian Moore (“the Moores”). Defendant and Johanna married
in 1985 and had two children together: a daughter born in 1990
and a son born in 1995. In 2008, Johanna expressed to Defendant
her interest in pursuing a romantic and sexual relationship with
another woman. Hoping to preserve his marriage and family,
Defendant initially agreed to his wife’s desire. Johanna began
a relationship with Plaintiff Lisa Mull Moore (“Lisa”), a woman
who was then, and remains, married to Plaintiff Robert Christian
Moore, who was also aware of and acquiesced in the relationship
between Johanna and Lisa. Defendant not only knew of and
permitted this relationship, but also expressed to Lisa his
gratitude for making Johanna “happier than she had ever been.”
However, at some point during the first half of 2009,
Defendant’s view of the relationship between Johanna and Lisa
changed, and he demanded that it end. When Johanna declined to
sever ties with Lisa, Defendant began harassing his wife by
phone, text, and email.
By April 2010, the Marshalls had separated. On 26 July
2010, they entered into a marital dissolution agreement (“MDA”)
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in Tennessee.1 The MDA included, inter alia, provisions which
barred either party from harassing or interfering with the other
and specifically prohibited Defendant from harassing “Lisa and
Bob Moore in any way, [sic] no communication with their friends
or known associates.” The MDA also includes Defendant’s
relinquishment of “any rights he has regarding North Carolina
laws of alienation of affection[] and/or criminal conversation
which may have resulted from the past actions or which may
result from the future actions” of the Moores. On 23 September
2010, the MDA was filed in the Chancery Court for Anderson
County, Tennessee and became an order of the court.
After signing the MDA, however, Defendant continued his
daily harassment of Johanna by phone, text, and email.
Defendant also repeatedly contacted Johanna’s elderly parents to
disparage them and Johanna. He began sending emails and letters
about the relationship between Johanna and Lisa to their
extended families, friends, co-workers, minister, religious
congregation, and various media entities. In October and
November 2010, Defendant sent a packet of information about the
1
At the time the MDA was signed, it appears that Johanna was
living near Charlotte, North Carolina. The record does not
clearly indicate the parties’ connection to Tennessee. In any
event, the validity of the MDA has not been challenged prior to
or in this appeal.
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women’s relationship to the minister of the Moores’ church,
members of that congregation, and the Moores’ son. The 22-page
packet included copies of numerous explicit and private emails
between Johanna and Lisa.
On 9 November 2010, Johanna’s attorney sent Defendant a
letter pointing out that his behavior was in violation of the
MDA and that Johanna would file a motion that Defendant be held
in contempt if Defendant did not cease his harassment
immediately. Defendant replied “please sue me” and continued to
send the packet to other parties, including Johanna’s friends
and relatives. On 16 November 2010, Defendant emailed a copy of
the packet to a reporter at the Charlotte Observer and explained
that he planned to begin picketing the Moores’ church.
Defendant told Johanna that he hoped to ruin the Moores’ lives
and wished that Bob Moore would end up shooting Lisa over the
situation.
On 1 December 2010, Johanna filed a complaint and motion
requesting the court to enter a domestic violence protection
order (“DVPO”) and Lisa filed a complaint requesting a no-
contact order for stalking or nonconsensual sexual conduct
(“NCO”). Following a hearing on 8 December 2010, the district
court entered a one-year DVPO and an NCO against Defendant. The
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DVPO prohibited Defendant from committing “further acts of
abuse” against Johanna or contacting her, “direct[ly] or
indirect[ly], by means such as telephone, personal contact,
email, pager,” or fax machine. The NCO prohibited Defendant
from, inter alia, abusing, stalking, harassing, or contacting
Lisa and her family, and also specifically barred Defendant from
contacting the congregation of the Moores’ church, occupants of
their neighborhood, and members of another community group with
which Lisa was affiliated.
Following entry of the orders, Defendant moved for a new
trial and to set aside the DVPO and also gave notice of intent
to appeal from both orders. In response, Johanna and Lisa moved
to dismiss Defendant’s appeal and for sanctions. On 4 March
2011, the court denied Defendant’s motions for new trial and to
set aside the DVPO and also denied the plaintiffs’ motions for
sanctions. Defendant voluntarily dismissed his notices of
appeal on 9 March 2011.
However, Defendant continued his campaign of harassment
against Johanna and the Moores, seeking “more creative and
indirect methods though which he [could] continue his
contemptuous behavior.” For example, Defendant left numerous
ranting voicemails for Johanna’s parents in which he called
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Johanna’s family “disgusting” and “scummy” people, expressed a
wish that her elderly parents would “get sick and die,” and
threatened to cut off contact with his own son if the son
visited Johanna or her parents. Defendant emailed his and
Johanna’s children and Johanna’s father, describing Johanna’s
family as “disgusting” and “lazy” people who “brought
devastation to the people and children around you.”
On 27 April 2011, pursuant to N.C. Gen. Stat. § 52C-6-601,
Johanna filed a notice of registration of a foreign support
order for the MDA in the district court in Mecklenburg County.
Defendant did not contest registration of the MDA, which was
confirmed by operation of law as of 17 May 2011. See N.C. Gen.
Stat. § 52C-6-606 (2013). On 2 September 2011, Johanna filed
motions for contempt and for costs and fees, alleging that
Defendant had breached the MDA by failing to make monthly
structured payments, that he owed Johanna attorneys’ fees she
had incurred due to his noncompliance with the MDA, and that he
was in contempt of the DVPO due to his harassment and threats
toward Johanna and her family. On the same day, Lisa filed a
motion for costs and fees, and the Moores moved for joinder of
their case with Johanna’s.
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On 24 October 2011, Johanna and Lisa moved for renewal of
the DVPO and NCO, respectively. Both orders were renewed in
December 2011 and again in May 2012. Johanna’s and Lisa’s
motions for contempt and for costs and fees came on for hearing
on 30 January, 12 April, and 13 April 2012. On 13 April 2012,
the trial court heard closing arguments from the parties and
then, prior to announcing her ruling, the judge recessed court
for one hour for lunch. When court resumed, Defendant did not
return. Instead, Defendant told the judge by telephone from the
airport in Charlotte that he was not returning to court because
he did not want to be arrested. The judge issued an order for
Defendant’s arrest and sent law enforcement officers to the
airport to prevent Defendant from leaving for his home in
California. Defendant’s wallet was recovered from the airport,
but his whereabouts remained unknown. The judge announced her
ruling in open court that afternoon, finding Defendant in
contempt of the MDA and DVPO. She awarded costs and fees to
Johanna and Lisa. The judge, concerned that Defendant might not
pay the costs and fees awarded to the plaintiffs, also suggested
that the plaintiffs seek an injunction preventing Defendant
from, inter alia, accessing a Roth IRA account worth more than
$3.5 million which had been awarded to Defendant pursuant to the
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MDA. See N.C. Gen. Stat. § 1A-1, Rule 65 (2013). Johanna did
so, and, on 16 April 2012, the court entered a temporary
restraining order preventing Defendant from accessing the Roth
IRA. Johanna then moved for a preliminary injunction pursuant
to Rule 65. Defendant did not appear at the hearing on that
motion, which the court granted on 1 June 2012.
On 20 August 2012, the court entered its written order
memorializing the ruling announced in open court at the
conclusion of the hearing on 13 April 2012, granting Johanna’s
and Lisa’s motions for sanctions, attorneys’ fees, and costs and
all of the plaintiffs’ motions for contempt (“the August
order”). The August order gave Defendant ten days to purge his
contempt by (1) ceasing all contact with and harassment of the
plaintiffs, their families, and their acquaintances and (2)
paying to Johanna $130,830.05. From that order, Defendant
appealed on 18 September 2012.
On 31 August 2012, Johanna filed another motion for
contempt, alleging that Defendant had failed to comply with the
August order. By order entered 18 October 2012 (“the October
order”), the court held Defendant in contempt for his failure to
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comply with the August order. Defendant gave notice of appeal
from the October order on 2 November 2012.2
On 23 September 2013, Johanna filed motions to dismiss
Defendant’s appeals in COA13-689 and COA13-692. By orders
entered 7 October 2013, those motions to dismiss were referred
to this panel. Johanna seeks dismissal on grounds that
Defendant’s pursuit of these appeals “is an offense to the
dignity of the Courts of the State of North Carolina” in light
of Defendant’s contemptuous behavior in the trial court and his
“outrageous conduct” toward Johanna, the Moores, and their
families, friends, and acquaintances. While we agree that
Defendant’s actions are among the most shocking and extreme that
the members of this panel have witnessed in the many divorce-
related cases they have reviewed, we must deny Johanna’s motions
to dismiss. Hateful, juvenile, and even contemptuous behavior
by appellants toward other people and our State’s trial courts
is, unfortunately, not grounds for dismissal. Accordingly, we
reach the merits of Defendant’s appeals.
Discussion
2
Defendant’s two appeals were designated with separate COA
numbers (COA13-689 for the appeal from the October order and
COA13-692 for the appeal from the August order). Because the
parties, facts, and issues raised in the two appeals are nearly
identical, we address them together in this opinion.
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Defendant argues that the trial court erred in entering the
August order because it lacked (1) subject matter jurisdiction
and (2) statutory authority pursuant to N.C. Gen. Stat. § 5A-21
to hold him in contempt. Defendant also argues that (3) the
court erred in awarding attorneys’ fees to Johanna in the August
order. Finally, Defendant argues that (4) the court lacked
jurisdiction to enter the October order. We disagree as to the
August order, but agree as to the October order.
I. Subject Matter Jurisdiction for Entry of the August Order
Defendant first argues that the trial court lacked subject
matter jurisdiction to enter the August order finding him in
contempt of both the MDA and DVPO. Specifically, he contends
the MDA (1) was not properly registered as a support order under
Chapter 52C of the North Carolina General Statutes, the Uniform
Interstate Family Support Act (“UIFSA”), (2) is not a “support
order” at all, and (3) grants exclusive jurisdiction to the
courts of Tennessee.
The issue of subject matter jurisdiction may be raised at
any time, including for the first time on appeal. Lemmerman v.
A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85,
reh’ing denied, 318 N.C. 704, 351 S.E.2d 736 (1986). “A court
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has jurisdiction over the subject matter if it has the power to
hear and determine cases of the general class to which the
action in question belongs.” Balcon, Inc. v. Sadler, 36 N.C.
App. 322, 324, 244 S.E.2d 164, 165 (1978).
We first address Defendant’s arguments regarding the trial
court’s subject matter jurisdiction to hold him in contempt for
violating the MDA. UIFSA provides that “[a] support order or an
income-withholding order issued by a tribunal of another state
may be registered in this State for enforcement.” N.C. Gen.
Stat. § 52C-6-601 (2013). Once a foreign support order is
properly registered, it “is enforceable in the same manner and
is subject to the same procedures as an order issued by a
tribunal of this State.” N.C. Gen. Stat. § 52C-6-603(b) (2013).
UIFSA defines a “[s]upport order” as “a judgment, decree, or
order, whether temporary, final, or subject to modification, for
the benefit of a child, a spouse, or a former spouse, which
provides for monetary support, health care, arrears, or
reimbursement, and may include related costs and fees, interest,
income withholding, attorneys’ fees, and other relief.” N.C.
Gen. Stat. § 52C-1-101(21) (2013). Finally, UIFSA specifically
grants subject matter jurisdiction over registered foreign
support orders to our State’s district courts. See N.C. Gen.
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Stat. § 52C-1-102 (2013) (“The General Court of Justice,
District Court Division is the court authorized to hear matters
under this Act.”).
Here, the MDA was filed on 23 September 2010 in the
Chancery Court for Anderson County, Tennessee. On 27 April
2011, Johanna initiated proceedings to register the MDA as a
support order under UIFSA. Defendant failed to contest
registration of the MDA within twenty days, and accordingly, by
operation of law, registration of the MDA was confirmed as of 17
May 2011. See N.C. Gen. Stat. § 52C-6-606.
Defendant asserts a series of inconsistent and meritless
claims regarding the MDA. He first contends that while
registration and confirmation of the MDA pursuant to UIFSA gave
the trial court jurisdiction over any support provisions
therein, the court lacked subject matter jurisdiction regarding
paragraphs 11 and 32 of the MDA because those provisions do not
explicitly discuss “support,” but rather restrain Defendant from
harassing Johanna or the Moores and require Defendant to
relinquish any possible claims for alienation of affection or
criminal conversation. Defendant cites no authority for the
startling proposition that a court might have subject matter
jurisdiction over certain paragraphs and provisions of a foreign
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support order which has been properly registered and confirmed
under UIFSA, but lack jurisdiction over other paragraphs and
provisions. Nothing in UIFSA even suggests that a properly
registered and confirmed foreign support order may only be
enforced in part by our State’s district courts. The relevant
portions of UIFSA are contained in Chapter 52C, Article 6, Part
1, entitled “Registration and Enforcement of Support Order.”
(Emphasis added). The statutes quoted above all concern the
registration and enforcement of orders, not paragraphs or
provisions. This argument is overruled.
Defendant next contends that the MDA is not a “support
order” at all because it contains no provisions for spousal
support and uses the word “alimony” only in paragraph 2,
entitled “Waiver.” This meritless argument ignores the UIFSA
definition of a “[s]upport order” as an order which benefits a
spouse or former spouse by “provid[ing] for monetary support,
health care, arrears, or reimbursement, and may include related
costs and fees, interest, income withholding, attorneys’ fees,
and other relief.” N.C. Gen. Stat. § 52C-1-101(21) (emphasis
added). Paragraph 18 of the MDA requires Defendant to make
monthly payments of $2,000 to Johanna for twelve months or until
one of the parties’ homes is sold. Although the MDA refers to
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these payments as “[s]tructured payment[s]” rather than
“alimony,” they are plainly “monetary support.” Id. Further,
paragraph 26 of the MDA requires Defendant to keep Johanna on
his employer-provided health insurance plan until Johanna is
eligible for health insurance through her own employment, with
Johanna reimbursing Defendant for the difference in cost due to
her coverage. This provision concerns both “health care” and
“reimbursement[.]” Id. Finally, UIFSA explicitly contemplates
that “support orders . . . may include . . . other relief.” Id.
Thus, the MDA falls squarely within the statutory definition of
a support order,3 and accordingly, this argument is also
overruled.
Defendant also asserts that the trial court lacked
jurisdiction to enter the August order because the MDA
explicitly grants jurisdiction to the courts of Tennessee and
contains a choice of law provision stating that the laws of that
state “shall govern.” Defendant proceeds to argue that contract
law principles dictate that these provisions deprived the North
Carolina trial court of subject matter jurisdiction in this
matter. Defendant appears utterly unable to grasp the fact
3
Further, as noted above, Defendant had the opportunity to
contest the registration of the MDA as a “support order” under
UIFSA and elected not to do so.
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that, once the MDA was properly registered and confirmed in
North Carolina, it was transformed from a mere contract between
the two parties to an order of our State’s courts, explicitly
enforceable as such. N.C. Gen. Stat. § 52C-6-603(b) (providing
that a registered and confirmed foreign support order “is
enforceable in the same manner and is subject to the same
procedures as an order issued by a tribunal of this State”)
(emphasis added). We overrule this argument. The trial court
had subject matter jurisdiction in this matter pursuant to the
provisions of UIFSA.
II. Authority to Find Contempt under Section 5A-21
Defendant next argues that the trial court lacked the
authority to hold him in civil contempt under N.C. Gen. Stat. §
5A-21 for failing to comply with the MDA and the DVPO. We
disagree.
Section 5A-21 provides that “[f]ailure to comply with an
order of a court is a continuing civil contempt . . . .” N.C.
Gen. Stat. § 5A-21(a) (2013). “The purpose of civil contempt is
not to punish; rather, its purpose is to use the court’s power
to impose fines or imprisonment as a method of coercing the
defendant to comply with an order of the court.” Jolly v.
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Wright, 300 N.C. 83, 92, 265 S.E.2d 135, 142 (1980) (citation
omitted), overruled on other ground by McBride v. McBride, 334
N.C. 124, 431 S.E.2d 14 (1993). To hold a party in civil
contempt, a court must find:
(1) The order remains in force;
(2) The purpose of the order may still be
served by compliance with the order;
(2a) The noncompliance by the person to whom
the order is directed is willful; and
(3) The person to whom the order is directed
is able to comply with the order or is able
to take reasonable measures that would
enable the person to comply with the order.
N.C. Gen. Stat. § 5A-21(a). “In order to find that a defendant
acted willfully, the court must find not only failure to comply
but that the defendant presently possesses the means to comply.”
Miller v. Miller, 153 N.C. App. 40, 50, 568 S.E.2d 914, 920
(2002) (citations and internal quotation marks omitted). On
appeal, our review of civil contempt orders “is limited to
determining whether there is competent evidence to support the
findings of fact and whether the findings support the
conclusions of law.” Id. (citation and internal quotation marks
omitted).
Defendant first contends that the MDA is nothing more than
a contract and that its breach cannot result in a finding of
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contempt. Having rejected the basis for this argument above, we
reject Defendant’s related assertion here. The MDA is a valid
and enforceable court order, and the trial court was fully
vested with authority to hold Defendant in contempt for his
failure to comply therewith.
Defendant next contends that the contempt order contains no
findings of fact that Defendant violated the DVPO first entered
in December 2010 and renewed in December 2011 and May 2012.
Specifically, Defendant observes that the DVPO prohibited him
from having contact with Johanna whether “direct or indirect, by
means such as telephone, personal contact, email, pager, gift-
giving or telefacsimile machine.” The DVPO also provided that
Defendant “shall not assault, abuse, follow, harass (by
telephone, visiting the home or workplace or other means), or
interfere” with Johanna. Defendant asserts that this language
only barred him from contacting or harassing Johanna herself
such that his admitted contact with Johanna’s friends, family,
and associates was not a violation of the DVPO.
In overruling this meritless argument, we need only observe
that the plain language of the DVPO bars Defendant from abusing
or harassing Johanna “by telephone, visiting the home or
workplace or other means[.]” Defendant does not dispute the
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trial court’s numerous findings of fact that, after entry of the
DVPO, he left hateful and vulgar voicemail and email messages
for Johanna’s elderly parents, other family members, and
friends. Defendant does not dispute the court’s finding of fact
87, that Johanna had “been incredibly tormented by” those
communications. In findings of fact 71-73, the court noted
that, in his messages to Johanna’s parents, Defendant explicitly
and repeatedly stated that he was “on a mission” to compel
various actions on Johanna’s part by harassing her family and
friends. Thus, Defendant’s communications to Johanna’s friends
and family were intended to, and did, abuse and harass Johanna
in violation of the DVPO. Further, findings of fact 61, 67, and
69-73 provide numerous examples of emails and voicemails left
for Johanna’s parents instructing them to “tell” Johanna to do
various things. For example, Defendant asked Johanna’s parents
to tell Johanna she was “doing the wrong thing” and to “ask
[Johanna] to do what is right and get out of my life.”
Defendant left a voicemail message telling Johanna’s parents
that he had sent emails to his and Johanna’s children, Johanna’s
family members, and others, “trying to put pressure on [Johanna]
to do the right thing. I’m going to keep doing that on a daily
basis until I get something to happen[.]” As the court noted in
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finding of fact 86, these communications were indirect contacts
with Johanna specifically barred by the DVPO. Defendant’s
specious arguments regarding his violation of the DVPO are
overruled.
Defendant also argues that the court erred in granting the
Moores’ motion for contempt as part of the August order,
contending that the Moores were not third-party beneficiaries of
the MDA, again citing contract law principles. We disagree.
The trial court found as fact that the Moores were third-
party beneficiaries of the MDA. We review findings of fact in
civil contempt orders only to determine whether there is
competent evidence to support them. Miller, 153 N.C. App. at
50, 568 S.E.2d at 920 (citation omitted).
North Carolina recognizes the right of a
third-party ben[e]ficiary to sue for breach
of a contract executed for his benefit.
Ordinarily the determining factor as to the
rights of a third-party beneficiary is the
intention of the parties who actually made
the contract. The real test is said to be
whether the contracting parties intended
that a third party should receive a benefit
which might be enforced in the courts. It
is not sufficient that the contract does
benefit him if in fact it was not intended
for his direct benefit.
This Court has adopted the analysis of the
Restatement (Second) of Contracts for
purposes of determining whether a
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beneficiary of an agreement made by others
has a right of action on that agreement.
. . .
(1) Unless otherwise agreed between
promisor and promisee, a beneficiary of a
promise is an intended beneficiary if
recognition of a right to performance in the
beneficiary is appropriate to effectuate the
intention of the parties and either
(a) the performance of the promise
will satisfy an obligation of the promisee
to pay money to the beneficiary; or
(b) the circumstances indicate that
the promisee intends to give the beneficiary
the benefit of the promised performance.
(2) An incidental beneficiary is a
beneficiary who is not an intended
beneficiary.
Raritan River Steel Co. v. Cherry, Bekaert & Holland, 329 N.C.
646, 651, 407 S.E.2d 178, 181 (1991) (citations, internal
quotation marks, and some brackets omitted; emphasis added).
Johanna accepted an unequal division of the Marshalls’ divisible
property in favor of Defendant per the MDA specifically because
she wanted Defendant to stop his campaign of harassment against
her and the Moores. We can scarcely conceive of a better
example of an intended beneficiary receiving “the benefit of a
promised performance” than paragraph 32 of the MDA in which
Defendant relinquishes any rights he may have against the Moores
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under our State’s alienation of affection and criminal
conversation statutes and agrees not to harass the Moores or
communicate with their known associates. The Moores are the
only beneficiaries of this clause, and Johanna, the promissee,
specially intended that they benefit from it. Thus, the trial
court’s finding of fact 12, that the Moores are third-party
beneficiaries under the MDA, is supported by competent evidence.
Defendant’s arguments to the contrary are overruled.
III. Award of Attorneys’ Fees in August Order
Defendant next argues that the court erred in the August
order by awarding Johanna attorneys’ fees to be paid by him. We
disagree.
Paragraph 6 of the MDA specifies that a court “shall award
reasonable attorneys’ fees and suit expenses to the non-
defaulting party” incurred as the result of the other party’s
noncompliance. As discussed herein, Defendant failed to comply
with the MDA causing Johanna to incur significant attorneys’
fees and costs. The trial court properly awarded attorneys’
fees to Johanna under its authority to enforce the MDA as a
court order. This argument is overruled.
IV. Subject Matter Jurisdiction for Entry of the October Order
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Defendant also argues that the trial court lacked
jurisdiction to enter the October order. We must agree.
“When an appeal is perfected[,] . . . it stays all further
proceedings in the court below upon the judgment appealed from,
or upon the matter embraced therein; but the court below may
proceed upon any other matter included in the action and not
affected by the judgment appealed from.” N.C. Gen. Stat. § 1-
294 (2013). Further, “[w]hile an appeal is not perfected until
it is actually docketed in the appellate division, a proper
perfection relates back to the time of the giving of the notice
of appeal, rendering any later orders or proceedings upon the
judgment appealed from void for want of jurisdiction.” Swilling
v. Swilling, 329 N.C. 219, 225, 404 S.E.2d 837, 841 (1991)
(citation omitted).
Here, Defendant filed his notice of appeal from the August
order on 18 September 2012, before both the 24 September 2012
hearing on Johanna’s second motion for contempt and entry of the
October order. “[T]hus, the trial court [wa]s without
jurisdiction, pending the appeal, to punish the husband in
contempt for failing to comply with the [order] appealed from
and its findings and order to that effect are void.” Webb v.
Webb, 50 N.C. App. 677, 678, 274 S.E.2d 888, 889 (1981)
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(citations omitted). Accordingly, we vacate the October order.
Because the October order is vacated, we need not address
Defendant’s argument that the trial court erred in granting
attorneys’ fees to Johanna in that order.
AFFIRMED IN PART; VACATED IN PART.
Judges GEER and ERVIN concur.
Report per Rule 30(e).