Lueallen v. Lueallen ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-890
Filed: 6 September 2016
Union County, No. 12 CVD 2122
MIKE DEWAYNE LUEALLEN, Plaintiff,
v.
MONICA GEORGETT LUEALLEN, Defendant.
Appeal by defendant from order entered 5 December 2014 by Judge Joserph J.
Williams in District Court, Union County. Heard in the Court of Appeals 27 January
2016.
No brief filed on behalf of plaintiff-appellee.
James, McElroy & Diehl, P.A., by Preston O. Odom III, for defendant-appellant.
STROUD, Judge.
Defendant Monica Georgett Lueallen (“Mother”) appeals from the trial court’s
order on permanent child support, modification of child support, child custody,
attorney fees and contempt entered on 5 December 2014. On appeal, Mother raises
numerous arguments regarding multiple aspects of the order. We affirm the order’s
provisions addressing child custody, with the exception of Decrees 4 and 6, and we
must vacate and remand portions of the remainder of the order for recalculation of
child support and arrears, establishment of definite purge conditions, additional
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findings of fact regarding Mother’s ability to comply with purge conditions, and
additional findings of fact regarding the award of attorney fees.
I. Factual and Procedural Background
Plaintiff Mike Dewayne Lueallen (“Father”) and defendant Monica Georgett
Lueallen (“Mother”) were married in 2001 and one child, Timothy1, was born to the
marriage. When Timothy was born in 2006, the parties lived in Arkansas, but they
moved to North Carolina about six months after his birth, so Timothy spent most of
his life in the Union County/Charlotte area. In November of 20112, the parties
separated and Timothy began to reside primarily with Mother. Both parties had
Masters degrees in education and at the time of their separation, both were employed
by the Union County Schools.
On 24 May 2012, effective 21 June 2012, Mother resigned from her job in Union
County, although she did not yet have another job lined up. She received a job offer
from a school in Arkansas on 15 July 2012 and went to Arkansas, taking Timothy
with her. In early July, Mother initially told Father that she would be taking Timothy
for a “family trip” to Arkansas and that they would return in about a week to 10 days,
1 This is a pseudonym, to protect the identity of the minor child.
2 We note that Mother’s Arkansas complaint alleged that the parties separated on 11
November 2011; her North Carolina answer alleged that the parties separated on 13 September 2011;
and the 18 January 2013 visitation order found that the parties separated on 13 September. Mother
testified at the 16 January 2013 hearing that they separated on “September 11 through 13th, but
officially, permanently, it was in November 11th of 2011.” In any event, the exact date of separation
is not material for purposes of this appeal.
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in time for a camping trip he had planned with Timothy to begin around 20 or 21
July 2012. Father, however, was unable to reach Mother during her Arkansas trip
with Timothy, and they had not returned by 21 July 2012. On 21 July 2012, Mother
informed Father that there was a job available for her in Arkansas, that she had an
apartment, and that “ ‘our things are in storage.’ ” He then attempted but was unable
to make contact with her or Timothy for about a week. On 25 July 2012, Father filed
a complaint in Union County seeking emergency ex parte child custody, child custody,
child support, and attorney fees. On the same day, the trial court entered an ex parte
custody order granting Father temporary sole custody of Timothy pending further
order and requiring Mother to return Timothy to Union County.
Father notified Mother that he was coming to Arkansas to get Timothy and
arrived on 27 or 28 July 2012. Initially, Arkansas authorities refused to assist him
in getting Timothy. He registered the North Carolina ex parte custody order in Cross
County, Arkansas, on 30 July 2012, and the order was served on Mother the same
day, although it was not filed until 16 October 2012. Mother also filed for and
received an “Ex Parte Order of Protection” in Cross County, Arkansas, on the same
day. Her domestic violence complaint in Arkansas “described an incident that
occurred in October of 2011 in North Carolina” when the “parties [had] decided to
separate, with [Father] leaving the home.” The Arkansas Court vacated the portions
of the Arkansas ex parte order dealing with child custody based upon the previously-
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issued North Carolina ex parte order, which granted custody of Timothy to Father.
Mother later dismissed the Arkansas domestic violence action against Father. Father
returned to North Carolina with Timothy.
On or about 3 January 2013, Mother filed her answer and counterclaims for
divorce, child custody, child support, post-separation support, equitable distribution,
alimony, and attorney fees. On 16 January 2013, the trial court held a hearing on
the return of the ex parte custody order. As a result of this hearing, the trial court
entered a visitation order on 18 January 2013, pending a hearing on temporary child
custody. This order kept the ex parte custody order in effect, scheduled a hearing on
temporary custody and support for 11 March 2013, and granted Mother visitation
with Timothy in North Carolina every other weekend from 6:00 p.m. on Friday until
6:00 p.m. on Sunday. On 20 February 2013, the trial court entered another interim
order as a result of the same hearing. The 20 February order included more detailed
findings of fact, conclusions of law, and decretal provisions than the 18 January 2013
order but ultimately granted the same visitation.
On 13 February 2013, Mother filed a motion for psychological and mental
health evaluation, to appoint an expert pursuant to Rule 706, and to appoint a
Guardian ad Litem (“GAL”) for the child. Mother alleged that Father had been
diagnosed with bipolar disorder and depression, that he was not taking medications
as prescribed, and that he had “extreme mood swings” from being “gregarious and
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outgoing” to “openly belligerent and hostile.” She alleged that Father was mentally
unstable and unable to care for the child.
On 11 March and 22 April 2013, the trial court held a hearing on temporary
custody, temporary child support, Mother’s motion for psychological evaluation and
appointment of GAL, and attorney fees. The court entered its order from this hearing
on 25 June 2013. The order continued Mother’s alternate weekend visitation, set out
a detailed visitation for various holidays, and granted Mother three weeks of summer
visitation, but did not allow Mother to remove Timothy from North Carolina. The
order set temporary child support, requiring Mother to pay $574.85 per month,
beginning 1 June 2013. The order also denied the remaining motions for
psychological evaluation, appointment of GAL, and attorney fees.
Over seven days, beginning on 10 February 2014 and ending on 1 August 2014,
the trial court heard the matters of permanent custody, permanent child support,
attorney fees, and contempt.3 The trial court entered its order on these issues on 5
December 2014. Mother filed her notice of appeal from this order on 2 January 2015.
Although we will address the details of the order on appeal below, for purposes
of addressing the procedural posture and finality of the 5 December 2014 order, we
3On 23 May 2014, Father filed a motion to show cause for failure to pay child support, alleging
that Mother had paid only a portion of the amount owed for some months and had paid nothing for the
months of April and May 2014. The pending motion by Mother to modify the temporary child support
order was also addressed.
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note that the order included the following requirements, which Mother also
challenges on appeal:
6. Periodic Reviews shall be conducted on the following
schedule and for the following purposes:
a. Review One: Shall be conducted within 30 days
of the entry of this order, the specific date is yet
to be determined, the purpose of which shall be
to determine whether therapy for mother, as
ordered herein, has begun.
b. Review Two: Shall be conducted within 60 days
of the entry of this order, the specific date is yet
to be determined, the purpose of which shall be
to determine Mother’s progress in therapy and to
obtain an initial report from the Mother’s
therapist regarding her rehabilitation in
acknowledging that Father has not physically
abused the minor child, has not engaged in
substance abuse and to access [sic] her progress
in taking responsibility for the damage and
anxiety that she has caused in the minor child.
c. Review Three: Shall be conducted within 90 days
of the entry of this Order, the specific date is yet
to be determined, the purpose of which shall be
to determine Mother’s progress in therapy and to
obtain a report from the Mother’s therapist
regarding her rehabilitation in acknowledging
that Father has not physically abused the minor
child, has not engaged in substance abuse and to
access [sic] her progress in taking responsibility
for the damage and anxiety that she has caused
in the minor child. All of this will be taken into
account to determine at this final review whether
to further restrict or expand visitation.
On 9 February 2015, the trial court held the 30 day review hearing, as required
by the 5 December order, to review Mother’s progress in therapy and compliance with
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the order. The trial court found that Mother had “failed to produce evidence that she
obtained a mental health evaluation from a licensed psychologist” and that she had
only consulted with a “Dr. Sydney Langston” but had not produced evidence of Dr.
Langston’s credentials. The order noted that Mother continued to be under the
requirements of the 5 December order and that she would have to appear for the 60
day and 90 day review hearings.
On 9 April 2015, this Court issued an order granting Mother’s petition for writ
of supersedeas and motion for temporary stay, providing in pertinent part:
The petition for writ of supersedeas is allowed, and the 5
December 2014 order of Judge Joseph Williams is stayed
insofar as it directs defendant and her child to submit to a
mental health assessment and achieve certain goals
through therapy and as it requires periodic review
hearings to determine whether defendant has attained
those goals. Therefor, [sic] decrees four and six of the trial
court’s order are hereby stayed pending the resolution of
defendant’s appeal from Judge Williams’ order.
II. Interlocutory appeal
Mother acknowledges that the 5 December order is interlocutory because her
counterclaim for equitable distribution is still pending.4 However, she argues that
her appeal is timely under N.C. Gen. Stat. § 7A-27(b)(3)(e) (2015), and more
specifically, N.C. Gen. Stat. § 50-19.1 (2015), which provides that “[n]otwithstanding
any other pending claims filed in the same action, a party may appeal from an order
4 Her other pending claims for post-separation support and alimony have been dismissed
voluntarily.
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or judgment adjudicating a claim for . . . child custody [or] child support . . . if the
order or judgment would otherwise be a final order or judgment within the meaning
of G.S. 1A-1, Rule 54(b), but for the other pending claims in the same action.” N.C.
Gen. Stat. § 50-19.1.
Mother is correct that this order may be immediately appealable, since it
adjudicates claims for custody and child support, even if equitable distribution
remains unresolved. Yet she fails to address whether the order on appeal “would
otherwise be a final order or judgment within the meaning of G.S. 1A-1, Rule 54(b)[.]”
N.C. Gen. Stat. § 50-19.1 (emphasis added). The order, by its own terms, was not
final as to Mother’s visitation and set hearings to be held in 30, 60 and 90 days to
address this issue after her mental health evaluation. We note that this Court has
held similar orders, which set follow-up or review hearings to address issues of
pending therapy or psychological evaluations, to be temporary, even though the order
was entitled as a “permanent” custody order. See Smith v. Barbour, 195 N.C. App.
244, 249, 671 S.E.2d 578, 582 (2009) (“Although the 20 April 2005 order was entitled
‘Permanent Custody’ order, the trial court’s designation of an order as ‘temporary’ or
‘permanent’ is not binding on an appellate court. Instead, whether an order is
temporary or permanent in nature is a question of law, reviewed on appeal de novo.
As this Court has previously held, an order is temporary if either (1) it is entered
without prejudice to either party; (2) it states a clear and specific reconvening time
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in the order and the time interval between the two hearings was reasonably brief; or
(3) the order does not determine all the issues. In this case, the 20 April 2005 order
meets both the second and third prongs of the test. There is no dispute that the trial
court did not determine all of the issues before it since it did not decide Ms. Barbour’s
right to visitation. The order expressly stated that the ‘issue of visitation’ would be
set for hearing only after the ordered psychological evaluations had been completed
and specified that the trial court ‘retain[ed] jurisdiction to determine the frequency
and conditions under which the Defendant and her parents may visit with the minor
child. . . .’ The order provided for a hearing on ‘this issue of visitation to be scheduled
not later than July 15, 2005.’ This date qualifies as a clear and specific reconvening
time after a time interval that was reasonably brief.” (citations, quotation marks, and
brackets omitted)).
It seems that the order on appeal is quite similar to the order in Smith, since
it provided for additional hearings, at “clear and specific reconvening time[s]” and did
not address all of the issues, id., just as in this case, where the trial court needed
additional hearings to consider Mother’s mental health evaluation and its effect upon
her visitation. Here, however, another panel of this Court has previously ordered the
relevant provisions of the 5 December 2014 order stayed, pending this appeal. As we
are bound by that ruling, we will address Mother’s appeal. See, e.g., In re Civil
Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of
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Appeals has decided the same issue, albeit in a different case, a subsequent panel of
the same court is bound by that precedent, unless it has been overturned by a higher
court.”). In addition, if we were to dismiss Mother’s appeal, it would only add to the
delay in establishing a final custodial schedule, much to Timothy’s detriment.
III. Discussion
On appeal, Mother raises multiple issues with the trial court’s order in relation
to custody, child support, civil contempt, and attorney fees. We address the issues
raised regarding each in separate sections below.
A. Custody
Mother raises at least six issues on appeal regarding the custody portion of the
order, and we will address the second and third issues first, since they challenge the
adequacy of the trial court’s findings of fact and evidentiary support for the findings.
If the trial court’s findings are inadequate or not supported by evidence, they cannot
support its conclusions of law, and the order would fail for that reason alone.
1. Recitations of testimony
Mother identifies 17 findings of fact, out of the 209 findings made by the trial
court, which she argues are entirely or partly recitations of testimony which do not
resolve the disputes raised by the conflicting evidence presented. She also argues
that the order is “written in an unwieldly, haphazard style,” citing to Peltzer v.
Peltzer, 222 N.C. App. 784, 789, 732 S.E.2d 357, 361 (2012), in which we noted that
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an order was “written in a style perhaps best described as stream of consciousness.”
Here, Mother notes the repeated use of the words “testified,” “indicated,” “told,”
“asserts,” and “believes” in those findings.
We first address Mother’s argument regarding the “haphazard” style of the
order. This order is nothing like the equitable distribution order in Peltzer, in which
findings were all mixed together and did not “address the identification,
classification, and valuation of the property and the distributional factors in any
logical or organized manner[.]” Id. In this order, by contrast, the findings of fact are
set out in separate sections entitled as follows: “Parties, Jurisdiction and
Background”; “Arkansas Issues”; “DSS Involvement”; “School”; “Child Support
(Permanent Support, Contempt and Motion to Reduce)”; “Difficulty in Mother
Returning the Child”; “Miscellaneous”; “Attorney Fees”; and “Arrangements at Time
of Hearing.” Furthermore, in Peltzer, despite the haphazard style, we searched
through the order and found that the trial court had made all of the findings required
by the issues in the case and ultimately affirmed the majority of the order, other than
remanding “for clarification of one of the trial court’s findings of fact[.]”. Id. at 798,
732 S.E.2d at 367. We do not require that orders have any particular style or
organization, although a well-organized order is easier for everyone to understand.
In any event, this order is reasonably well-organized. Thus, we reject this portion of
Mother’s argument.
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We also reject Mother’s argument that the trial court’s findings are merely
recitations of evidence. She is correct that some of the findings recite portions of
testimony of various witnesses and that the order uses the words noted above. In the
interest of brevity, we will not quote large portions of the nineteen-and-a-half page,
single-spaced, small-font order. Moreover, we note that Mother does not challenge
the vast majority of the 209 findings.
Most of Mother’s objections are from the portion of the order dealing with “DSS
Involvement.” The order does recite some of the testimony from social workers who
interviewed Timothy and the parties regarding various reports of abuse. Since there
were four DSS investigations during the course of the case, this evidence was
extensive. The transcript of the entire trial comprises more than 1400 pages, and the
Rule 9(d) supplement including exhibits from trial has 889 pages. To summarize very
briefly, the order makes many findings which indicate repeated, persistent efforts by
Mother to obtain custody of Timothy by accusing Father of being physically abusive,
mentally unstable, and a “druggie.” Therapists and social workers have had concerns
that Mother was “coaching” Timothy to report abuse or bad behavior by Father.
Although the findings of fact are certainly not entirely favorable to Father either,
overall the trial court entirely rejected Mother’s claims of child abuse, drug abuse, or
uncontrolled mental illness. The trial court also very definitely resolved any conflicts
in the evidence and determined that Mother was intentionally trying to alienate
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Timothy from Father. For example, the following findings are not challenged by
Mother, at least as recitations of testimony:
178. Ms. Lueallen called Charlotte Mecklenburg Schools
about two children being left unattended at Mr.
Lueallen’s football practice.
179. On April 20th, Ms. Lueallen texted Mr. Lueallen,
“are you going to kill yourself and [Timothy] when you
lose in court like you promised?” On December 24, Ms.
Lueallen texted Mr. Lueallen, “maybe you are like
Anakin Skywalker, are you at least a [sic] good a father
as Vader?”
180. Ms. Lueallen paid a private investigator to go
through Mr. Lueallen’s trash, and paid for two drug
tests on Mr. Lueallen.
181. Defendant Mother’s efforts to destroy the Plaintiff
Father and re-obtain custody have been persistent and
on-going since September of 2013 and the child has
demonstrated deterioration psychologically as a result.
182. Ms. Lueallen has incurred $70,000.00 to $80,000.00
in attorney’s fees, including the Arkansas lawyer,
private investigator and two North Carolina lawyers
and has paid the lawyers $10,000.00 to $20,000.00.
183. Further, Mother’s advancement of false claims of
abuse have necessarily increased the costs of litigation,
the number of witnesses necessary for trial to defend
such accusations and the length of the trial as well.
184. The Court finds as a conclusion of law that the
Defendant Mother has acted in bad faith.
....
209. The Plaintiff Father has not physically abused the
minor child.
The trial court also includes under “ Conclusions of Law” in the order what are
probably better characterized as ultimate findings of fact:
11. Plaintiff Father has never physically abused the
minor child.
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12. Defendant Mother’s false belief that Plaintiff
physically abused the child, and her baseless and false
belief that Plaintiff Father is a “druggie” and an
“alcoholic” has created an environment of investigation,
physical, psychological and emotional that has created
anxiety in the child and has not been in the child’s best
interest.
Overall, the findings of fact are not simply recitations of testimony, and they
definitively find ultimate facts “ ‘sufficient for the appellate court to determine that
the judgment [was] adequately supported by competent evidence.’ ” In re Anderson,
151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002) (quoting Montgomery v. Montgomery,
32 N.C. App. 154, 156-57, 231 S.E.2d 26, 28 (1977)). In addition, the findings “ ‘reflect
a conscious choice between the conflicting versions of the incident[s] in question
which emerged from all the evidence presented.’ ” Moore v. Moore, 160 N.C. App. 569,
571-72, 587 S.E.2d 74, 75 (2003) (quoting In re Green, 67 N.C. App. 501, 505 n. 1, 313
S.E.2d 193, 195 n. 1 (1984)). Mother’s argument is without merit.
2. Evidentiary Support for Findings
Mother also argues that “many findings lack competent evidentiary support.”
Mother identifies several findings which she claims are unsupported. First, she
argues that “no competent evidence” supports Finding of Fact No. 181, which was as
follows:
181. Defendant Mother’s efforts to destroy the Plaintiff
Father and re-obtain custody have been persistent and
on-going since September of 2013 and the child has
demonstrated deterioration psychologically as a result.
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Her argument consists of noting portions of the testimony that are favorable
to her and her interpretations of the evidence. She makes the same argument
regarding Finding of Fact No. 183, and we reject it for the same reasons. Although
there was conflicting evidence on many facts, as noted above, the trial court rejected
Mother’s interpretations of the evidence. The trial court evaluated the credibility and
weight of the evidence and made findings accordingly.
[A]s is true in most child custody cases, the determination
of the evidence is based largely on an evaluation of the
credibility of each parent. Credibility of the witnesses is
for the trial judge to determine, and findings based on
competent evidence are conclusive on appeal, even if there
is evidence to the contrary. Here, each parent testified to
his or her version of the events which led to the above
crucial findings of fact. The fact that the trial judge
believed one party’s testimony over that of the other and
made findings in accordance with that testimony does not
provide a basis for reversal in this Court. The findings are
based largely on defendant’s competent, and apparently
credible, testimony and are thus binding on this Court.
Woncik v. Woncik, 82 N.C. App. 244, 248, 346 S.E.2d 277, 279 (1986) (citations
omitted).
Her other objections are mainly arguments that certain findings misstated
evidence in minor ways. For example, she notes that in Finding of Fact No. 180, the
trial court found that she paid for two drug tests of Father, but the evidence shows
that she paid for only one and that DSS paid for the other. There is no dispute that
he had two drug tests, both negative, and both inspired by Mother’s claims that he
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was abusing drugs. Who paid for one of the tests is not dispositive. And even if she
is correct and we were to ignore this particular finding, the remaining 208 findings
would fully support the trial court’s order. Her other arguments as to a few other
findings are similar, noting minor misstatements in portions of findings or her
favorable interpretations of various bits of evidence. We find that all of the findings
of fact regarding custody were more than adequately supported by the evidence.
3. Decree Provisions 4 and 6
Now that we have established that the findings of fact are sufficient, we will
address Mother’s first argument regarding custody, which is that “Decrees four and
six of the custody decision contravene established precedent.” She argues that Decree
4 “subjects [Mother] to a mandatory mental health evaluation/therapy process, the
goal of which is to force her to believe the trial court’s determinations that [Father]
never abused substances or [Timothy.]” She also notes that the decree “commands
[Timothy’s] therapist to ‘wholeheartedly’ accept such determinations as true and
thereby assess, inter alia, ‘[w]hat effect, if any the continued contact or exposure to
[Mother], especially her belief that [Father] abused the child and abused substances,
has had on [Timothy.]”
Mother cites Peters v. Pennington, 210 N.C. App. 1, 707 S.E.2d 724 (2011) in
support of her argument, noting that in Peters, this Court “vacated a decree
equivalent to Decrees 4 and 6.” The Peters case is factually somewhat similar to this
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one, in that after cooperating with each other regarding joint custody for
approximately two years, the mother and father engaged in an extended, extremely
contentious custody dispute. Id. at 4-5, 707 S.E.2d at 729. The mother accused the
father of sexually abusing the children and continued to insist that the children were
being sexually abused even after investigations by law enforcement and DSS and an
evaluation by a private therapist found the accusations to be unfounded. Id. at 5-7,
707 S.E.2d at 729-30. After a three-week trial, with over 24 witnesses, “including the
parties, relatives and friends, school officials, law enforcement officers, DSS
personnel, the boys’ former and current therapists, and several expert witnesses[,]”
the trial court’s order addressed the “two central issues: (1) whether [the father]
abused his sons and (2) whether [the mother’s] actions in connection with her
allegations of abuse were abusive and caused damage to the children.” Id. at 7-8, 707
S.E.2d at 730. The trial court definitively found that the father had not sexually
abused the children and that the mother’s continued insistence that he had and her
actions based upon this belief were abusive and had damaged the children. Id. at 8,
707 S.E.2d at 731.
The relevant portion of the order challenged in Peters was as follows:
5. Defendant/Mother shall obtain mental health
treatment by a provider who shall read this Order in full,
shall commit to wholeheartedly accepting that the findings
contained herein constitute the reality of Frank and
Dennis’s lives and Defendant/Mother’s role in fabricating
sex abuse allegations, even though she may have genuine
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belief that such events occurred, and shall work towards
Defendant/Mother’s rehabilitation in acknowledging that
Plaintiff/Father has not sexually abused the minor
children and in taking responsibility for the damage she
has caused to her sons. Defendant/Mother’s therapy may
include any other areas that the provider identifies.
....
7. The minor children shall continue in therapy with Dr.
Curran and Ms. Duncan, who shall read this order in its
entirety and commit to accepting it wholeheartedly as the
facts constituting the false allegations of sexual abuse with
respect to Frank and Dennis. Dr. Curran and Ms. Duncan
shall determine what type of therapy the minor children
need in light of these findings.
Id. at 9-10, 707 S.E.2d at 731.
The order in Peters also provided for future review of the mother’s visitation
based upon consideration of her progress in therapy and compliance with the court’s
order. Id. at 10, 707 S.E.2d at 732. This Court concluded:
[T]he trial court abused its discretion when fashioning
[mother’s] therapy. [Mother] is required by the 6 March
2009 order to acknowledge that [father] did not sexually
abuse their children and accept as true the trial court’s
conclusion that she harmed her children. Thus, [mother]
must force herself to believe that she implanted false
images of sexual abuse in her children. Presumably, she
must prove to a medical professional or counselor that she
genuinely believes the trial court findings were correct
before being certified as rehabilitated, which may be a
prerequisite to obtaining significant visitation or any level
of custody in the future. We hold this is an unwarranted
imposition under these facts. Our objection to this
requirement is that it mandates [mother] and the therapist
attain a standard based upon [mother’s] beliefs rather than
her behavior. It would have been appropriate to require
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[mother] to demonstrate to the court that she would not
engage in any behavior that suggests to the children that
they were sexually abused. We believe this is best achieved
through non-disparagement requirements and
prohibitions on discussing these matters with the children,
which are enforceable through the contempt powers of the
trial court, including incarceration. It was an abuse of
discretion to require [mother] to change her beliefs and
prove to a counselor that such a change has in fact
occurred. We therefore vacate paragraph 5 of the decretal
portion of the 6 March 2009 order (“Decree 5”) and remand
the order to the trial court to enter a new order based upon
[mother’s] and her agents’ ability to comply with existing
court orders and demonstrate behavior that prevents harm
to her children.
Id. at 21, 707 S.E.2d at 738-39.
The similarity of the provisions of this order and those in Peters is perhaps no
coincidence. Father’s counsel asked the trial court in the closing argument to “look
at these cases and to seriously consider restricting Ms. Lueallen’s access to supervised
therapeutic settings,” and then specifically identified Peters as a similar case
factually, such that similar restrictions and therapy requirements should be imposed.
Unfortunately, the trial court’s order relied a bit too heavily upon the wording of the
challenged decrees from Peters. We agree that the provisions of Decrees 4 and 6 are
substantially the same as the decree provisions vacated in Peters, and thus we must
also vacate these provisions of the order. But this Court’s additional observations in
Peters also apply to this case:
However, we note that [mother’s] conduct placed the
trial court in a difficult position. The court specifically
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ordered the parties not to disparage one another or to
discuss the case with the children. It found, based on
competent evidence, that [mother] willfully ignored these
rulings, which were designed to protect the integrity of the
judicial process and to protect the children from harm. The
trial court likely concluded non-disparagement
requirements and other tools would have been of little
future value as a restraint on [mother.] The court’s
skepticism was justified, not only by [mother’s] actions in
taking the children to therapy with Dr. Tanis before a
guardian ad litem was appointed, but also by her affidavits
in which she documented her conversations with the
children about the specific topics the court had restrained
her from discussing with the children.
Nevertheless, we hold it was error to require
[mother] prove to her therapists that her beliefs about the
factual underpinnings of the case had changed. While the
trial court properly vested authority in medical
professionals to determine when supervised visitation was
appropriate, the court went too far in dictating the specifics
of the therapists’ work. [Mother’s] actual behavior -- and
not her subjective beliefs over what occurred in the case --
should have been the critical focus for evaluating when
visitation was appropriate.
Id. at 22, 707 S.E.2d at 738-39.
Mother is correct that the trial court cannot order her to “believe” that Father
is not physically abusive and that he does not abuse drugs. Yet what a trial court
can, and must, do is make findings of fact regarding events which happened in the
past and order parties to take certain actions based upon those facts. In nearly every
disputed case, one party claims that an event happened, and the other party claims
that the event either did not happen or happened differently than claimed by the
other party. The trial court must determine which of the competing versions of the
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Opinion of the Court
past event is correct, and based upon that determination must order the appropriate
action. In a certain sense, every court order requires all of the parties to the case to
accept a particular version of the past events, at least to the extent that the parties
must act in accord with the order or suffer consequences of contempt or other penalty.
On remand, the trial court shall “reform the therapeutic requirements placed
on [Mother] in accordance with this opinion.” Id. at 29, 707 S.E.2d at 743. The trial
court’s order may not require Mother or a therapist to “wholeheartedly accept” or
believe anything and cannot evaluate Mother’s progress by her beliefs, but it can
require them to conform their behavior and speech when dealing with Timothy fully
in accord with the trial court’s findings and conclusions. The trial court properly
ordered Mother to have a “mental health evaluation from a licensed psychologist” to
assess any need for additional therapy. In addition, the trial court ordered that
Timothy continue with his current therapist and that Mother read the order and
“commit to accepting it wholeheartedly as the facts constituting the false allegations
of physical and substance abuse with respect to the minor child[.]”
On remand, the trial court may again order a mental health evaluation of
Mother and continuing therapy for Timothy, without the offending language
identified in Peters. As a practical matter, we would note that any mental health
evaluation of Mother will be useless to the trial court if Mother simply repeats her
allegations again to the psychologist and the psychologist accepts Mother’s claims as
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Opinion of the Court
true. In fact, if the psychologist accepts Mother’s claims as true, the psychologist will
be bound by law to make yet another report to DSS of Father’s alleged abuse, since a
report is required by N.C. Gen. Stat. § 7B-301(a) (2015). Mother even acknowledged
that she was aware of this legal duty to report any allegations of abuse based upon
her training as a teacher. And testimony of Timothy’s therapist, Kristin Montanino,
reveals that several of the DSS investigations began based upon reports which the
therapist made because of what she heard from either Timothy or Mother.
Additional reports of allegations of abuse based upon the same things would
simply perpetuate the cycle of DSS investigations needlessly, to Timothy’s detriment.
The trial court in Peters was attempting to end a similar cycle of investigations of
repeated, unfounded allegations of sexual abuse. If Timothy’s therapist were to
accept Mother’s version of the facts, she would also be legally bound to make
additional reports to DSS and to conduct therapy accordingly, which would likely only
add to the harm to Timothy. Thus, it is entirely appropriate for the trial court to
require an evaluator or therapist for either party or the child to read the court’s orders
so that they will be aware of the background in which the evaluation or therapy has
been ordered, and they will be able to make an informed professional judgment about
whether there is any need for a new report of abuse to DSS5. It is also appropriate
5 In particular, any new therapist who is not familiar with the history of this family needs to
be able to determine if some information from Mother or Timothy is related to an incident or issue
already addressed by the court’s order, or if something new and different has happened that may
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Opinion of the Court
for the trial court to order that a particular therapist who is conducting therapy based
upon Mother’s version of the facts instead of those established by the trial court to
cease treating the child, to avoid further confusion and harm. And although Mother
may continue to believe anything she likes, the trial court can take into account
Mother’s continued insistence on her version of the facts and the futility of any
evaluations or therapy based upon her version of the facts, which unfortunately could
result in a visitation order that restricts Mother’s visitation even more.
4. Abuse of Discretion in Custody Order
Mother argues that the “custody decision manifests an abuse of discretion”
mainly because “the trial court stripped [Mother] of all legal custody -- and nearly all
physical custody -- of [Timothy] based solely on her beliefs about [Father’s] conduct.”
“A trial judge’s decision will not be upset in the absence of a clear abuse of
discretion if the findings are supported by competent evidence.” Phillips v. Choplin,
65 N.C. App. 506, 511, 309 S.E.2d 716, 720 (1983). Furthermore,
A trial court may be reversed for abuse of discretion only
upon a showing that its actions are manifestly unsupported
by reason. A ruling committed to a trial court’s discretion
is to be accorded great deference and will be upset only
upon a showing that it was so arbitrary that it could not
have been the result of a reasoned decision.
White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (citation omitted).
actually need to be reported. The therapist is not required to “believe” anything but does need to be
fully aware of the prior allegations and the trial court’s determinations regarding those allegations.
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As we have determined above, the trial court’s findings of fact were supported
by the evidence. Mother also argues very briefly -- just three sentences, with one cite
to Peters -- that the findings of fact do not support the trial court’s conclusion that it
is in Timothy’s “best interest for [Father] to have sole legal custody” and “primary
physical custody.” Mother points out evidence favorable to her, and the trial court
made findings regarding much of this evidence. She did travel from Arkansas to visit
many times and consistently ate lunch with Timothy at school. The trial court found
that Timothy “seemed to enjoy” these lunch visits -- although the trial court also noted
that she “sometimes violated the seating policy” but would move when asked. The
trial court also noted that “[i]t was unusual that on about fifty (50) percent of
occasions [Timothy] sat on his mother’s lap.”
Mother’s argument also notes that Father “frequently holds long hours as a
football coach” and notes other evidence negative to him. Again, we will not quote
large portions of the 209 findings of fact, but the findings do support the trial court’s
conclusion. Mother’s argument asks us to re-weigh the voluminous evidence and to
draw inferences in her favor instead of Father’s, but that is the trial court’s role, not
ours. The order includes extensive findings regarding the strengths and weaknesses
of both parties as parents and regarding the effects of the protracted bickering and
strife and repeated investigations of alleged abuse on Timothy. The trial court did
address Mother’s beliefs about Father but based its order on her actions -- which are
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Opinion of the Court
most likely motivated by her beliefs, as are most of any person’s actions -- that
“created an environment of investigation, physical, psychological and emotional that
has created anxiety in the child and has not been in the child’s best interest.” The
trial court, in its discretion, weighed all of the evidence and determined that Father
is a “fit and proper person to have primary physical custody” and “sole legal custody”
of Timothy and that this arrangement would be in his best interest. We cannot
discern any abuse of discretion in the trial court’s ruling.
B. Child support
Mother’s next arguments address the child support order. Mother first argues
that “the trial court wrongfully imputed income to [Mother.]” The trial court ordered
Mother to pay $616.68 per month as permanent child support, based upon Worksheet
A of the North Carolina Child Support Guidelines. As Mother argues, the trial court
“seemingly imputed income to her in the annual amount of $47,000.00,” since she was
unemployed at the time of trial. Mother also notes that the record does not include a
child support worksheet which shows the child support calculation, and from the
findings in the order, it is unclear exactly how the trial court calculated the obligation.
Before we address the argument as to imputation of income, we note that we
also have been unable to determine exactly what numbers the trial court used to set
the child support obligation. As this Court has previously noted, “[t]he better practice
is for an appellant to include the Guidelines worksheet in the record on appeal.”
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Opinion of the Court
Hodges v. Hodges, 147 N.C. App. 478, 483 n.1, 556 S.E.2d 7, 10 n.1 (2001). We do not
know whether Mother or the trial court is responsible for the missing worksheet,
since we have no brief from Father; but in any event, we cannot review the calculation
without sufficient information. The trial court’s findings of fact regarding the
numbers needed to set child support were as follows:
Monthly Finding No.
amount
Father’s monthly income $4210.876 or 102 or
$3590.91 95
Health insurance 243.27 98
premium costs
Work-related day care $113.00 977
costs
Mother’s income $3916.67 106 (Mother “anticipates if
hired in a teaching position she
would earn $47,000.00 per
year.”)
The findings of fact are supported by the evidence, but when we calculate child
support using these numbers in Worksheet A based upon the Child Support
6 Some of the confusion comes from the length of the trial, which began on 10 February 2014,
during the 2013-14 school year. The trial court’s Finding of Fact No. 95 found “[Father’s] current
income is $3590.91 per month.” (Emphasis added). This was Father’s income during the trial. The
trial ended on 1 August 2014. Finding of Fact No. 102 states that “[Father’s] salary will be $48,492.20
per year plus $2,038.30 as an assistant coach.” (Emphasis added.) He was to begin a new position
with the Charlotte-Mecklenburg schools as of 19 August 2014, with an annual income for the 2014-15
school year of $48,492.20. Thus, by the time of the entry of an order, Father would be receiving the
greater income.
7 In Finding of Fact No. 97, the trial court found that Father pays $35.00 per week for
afterschool care. We have assumed 4.3 weeks per month, for nine months of the school year, to
calculate a monthly total, but we also realize that since Father is a teacher and coach his need for
after-school care may vary from the usual.
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Opinion of the Court
Guidelines in effect at the time of the trial, we do not get a child support obligation
for Mother of $616.68 or any number close enough that we can trust our calculation
to be the same as the trial court’s, whether we use the greater or lesser income for
Father from the findings of fact. We are therefore unable to review the trial court’s
calculation of child support and must remand for the trial court to re-calculate child
support and to set out the values used in the calculation. The trial court should also
attach Worksheet A to any order regarding child support issued on remand.
1. Imputed Income
We now return to the question of whether the trial court erred by imputing
income to Mother. Even if the exact numbers used in the child support calculation
are uncertain, the trial court did clearly impute income to Mother, since she was
unemployed and had no income at the time of trial.
The North Carolina Child Support Guidelines state:
If either parent is voluntarily unemployed or
underemployed to the extent that the parent
cannot provide a minimum level of support for
himself or herself and his or her children
when he or she is physically and mentally
capable of doing so, and the court finds that
the parent’s voluntary unemployment or
underemployment is the result of a parent’s
bad faith or deliberate suppression of income
to avoid or minimize his or her child support
obligation, child support may be calculated
based on the parent’s potential, rather than
actual, income.
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Opinion of the Court
The primary issue is whether a party is motivated by a
desire to avoid his reasonable support obligations. To
apply the earnings capacity rule, the trial court must have
sufficient evidence of the proscribed intent. The earnings
capacity rule can be applied if the evidence presented
shows that a party has disregarded its parental obligations
by:
(1) failing to exercise his reasonable capacity
to earn, (2) deliberately avoiding his family’s
financial responsibilities, (3) acting in
deliberate disregard for his support
obligations, (4) refusing to seek or to accept
gainful employment, (5) willfully refusing to
secure or take a job, (6) deliberately not
applying himself to his business, (7)
intentionally depressing his income to an
artificial low, or (8) intentionally leaving his
employment to go into another business.
The situations enumerated . . . are specific types of bad
faith that justify the trial court’s use of imputed income or
the earnings capacity rule.
Mason v. Erwin, 157 N.C. App. 284, 288-89, 579 S.E.2d 120, 123 (2003) (citations
and quotation marks omitted).
Mother argues that the trial court’s imputation of income “rests entirely upon
the finding that she last applied for a job in Mecklenburg County three years’ prior.”
Mother also notes evidence that she “persistently pursued employment after her
substitute teaching job” ended in May 2013 and that she had some brief periods of
temporary employment. Mother is correct that there was evidence of her efforts to
obtain a new job, but the evidence also supports the trial court’s determination that
she was acting in disregard of her child support obligation. The determination was
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Opinion of the Court
based only in part on the fact that Mother had not applied for a job in Mecklenburg
County in the past three years.
The trial court identified other factors as well. And the trial court may have
considered her failure to apply for jobs in Mecklenburg County particularly telling,
since she alleged in her verified motion to modify child support, filed on 3 July 2013,
that she was “currently actively seeking employment as a teacher in both the
elementary and middle school levels in both Union County and Southern Mecklenburg
County.” (Emphasis added). At trial over a year after she filed this verified motion,
she had actually not sought employment in Mecklenburg County in “three years” as
found by the trial court -- contrary to her motion. In addition, there was extensive
testimony at trial regarding Mother’s educational and professional qualifications and
her work history. It was not unreasonable to expect her to seek employment in
Mecklenburg County, based on her own verified statement that she was actually
doing so. In addition, she had taught in the Mecklenburg County schools in the past,
before taking her more recent teaching job in Union County which she resigned prior
to her move to Arkansas.
Here, the order also notes at least two of the factors identified by Mason which
can support the trial court’s conclusion that Mother acted in bad faith and
intentionally suppressed her income and imputation of income. One factor is that a
parent “ ‘intentionally leav[es] his employment to go into another business’ ” Id. at
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Opinion of the Court
289, 579 S.E.2d at 123 (quoting Wolf v. Wolf, 151 N.C. App. 523, 527, 566 S.E.2d 516,
519 (2002)). Here, the trial court found that Mother “resigned her employment with
Union County Schools . . . effective June 21, 2012.” She quit this job “without having
another job lined up.” She also left her job in Arkansas to move back to North
Carolina. She did get a job after that, but it was temporary, and she had minimal
income from a brief “customer service job” and as a substitute teacher. In addition,
the trial court considered that Mother was “ ‘refusing to seek or to accept gainful
employment.’ ” Id. (quoting Wolf, 151 N.C. App. at 527, 566 S.E.2d at 519). The trial
court made the following findings of fact and related conclusion of law:
106. Ms. Lueallen has interviewed for jobs and
anticipates if hired in a teaching position she would
earn $47,000.00 per year.
....
115. Ms. Lueallen last applied for a job at Charlotte
Mecklenburg Schools three (3) years ago.
....
117. The Defendant Mother has had the means and
ability to comply with the prior orders of the court, has
failed to look for a job in the largest county neighboring
the county of residence of the Defendant Mother and the
court finds that she has failed to exert the necessary
effort to obtain employment and the court finds that she
has willfully suppressed her income to avoid her child
support obligation.
....
Conclusions of Law:
....
8. The Defendant Mother has had the means and ability
to comply with the prior orders of the court, has failed
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Opinion of the Court
to look for a job in the largest county neighboring the
county of residence of the Defendant Mother and the
court finds that she has failed to exert the necessary
effort to obtain employment and the court finds that she
has willfully suppressed her income to avoid her child
support obligation.
As noted by Mason, “[t]he primary issue is whether a party is motivated by a
desire to avoid his reasonable support obligations.” Id. (quotation marks omitted).
The trial court made several findings about Mother’s failure to pay any child support
at all during some time periods when she did receive income or unemployment
compensation. The trial court also found that Mother had “regularly eaten at fast
food restaurants” during some months when she paid no child support.
Mother could have paid some amount of child support during these months,
even if far less than required by the temporary child support order, but she chose to
pay nothing, which is relevant to determining her motivation and bad faith. The
trial court found further that Mother “has incurred $70,000.00 to $80,000.00 in
attorney’s fees, including the Arkansas lawyer, private investigator, and two North
Carolina lawyers and has paid the lawyers $10,000.00 to $20,000.00.” In fact, Mother
testified that she had paid $10,000.00 to $20,000.00 of the fees, totaling up to
$80,000.00; her mother had paid “in the ballpark” of $50,000.00 to $60,000.00, but
she had not obtained any financial assistance from anyone to pay any child support.
The trial court may well have doubted Mother’s motivations when she paid up to
$20,000.00 in attorney fees and obtained assistance to pay up to $80,000.00, during
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Opinion of the Court
a time when she went many months without paying even one dollar toward her child
support obligation.
The trial court also made findings which more directly address Mother’s
motivations:
100. Ms. Lueallen has told Mr. Lueallen, “I am a mom
and moms don’t pay child support.”
101. In regards to Ms. Lueallen reducing her child
support, she has stated, “I’ve not got unemployment
since December so child support should be $50.00 per
month.[”]
....
207. In the past, when [Timothy] has been placed in the
custody and care of Ms. Lueallen she has demanded
that Mr. Lueallen pay babysitting fees.
The trial court also concluded, in regard to bad faith:
14. The Court finds as a conclusion of law that the
Defendant Mother has acted in bad faith.
The findings support the trial court’s conclusions that Mother was willfully
suppressing her income to avoid her child support obligation and that she was acting
in bad faith. The trial court properly imputed income to Mother. On remand, when
recalculating child support as noted above, the trial court should use the imputed
income, which we believe to be $47,000.00 annually, but the trial court should make
the actual amount used clear in its findings and calculations.
2. Amount of Child Support Arrearage
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Opinion of the Court
Mother next argues that “the findings of fact do not support the arrearage
decree.” The trial court set the total child support arrearages at $7,314.43, and this
number includes $616.68 which “came due on November 1, 2014.” We also note that
the trial ended on 1 August 2014. It is impossible for the trial court’s determination
as to arrears accrued after the trial ended to be based upon the evidence presented at
trial, nor could it be supported by the record on appeal. On remand, the order may
address any arrears accrued up to the last day of trial, based on the evidence
presented at trial. We also realize that there may have been communications
between counsel and the trial court regarding the November child support payment
and an agreement to include this month to avoid the expense of an additional hearing
or order. Unfortunately, our record does not reflect any such agreement, and we have
no brief from Father, so the trial court can correct this calculation on remand.
Mother also argues that five of the factual findings of amounts of child support
owed and paid in various months do not add up to the amount ordered as arrears,
and the months after April 2014 seem to have been omitted. We are not entirely sure
if any months were omitted from the trial court’s calculations, since one again, we
cannot get the math to work.
By our calculations, based upon the trial court’s findings of fact, the arrears
owed as of the last day of trial would be $6797.75, and the trial court did specifically
and erroneously include at least one month after the trial ended. On remand, the
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Opinion of the Court
trial court should clearly set forth the calculation of arrears. We would suggest that
a table showing the calculation would be helpful. Purely as a practical matter, it is
easier to avoid mathematical errors when the numbers can be totaled in columns
instead of having to hunt for numbers paid and owed and dates scattered throughout
19 single-spaced, small-font pages of findings.
C. Civil Contempt for Failure to Pay Temporary Child Support
In addition to establishing permanent custody and support, the trial court also
heard Father’s motion to show cause for failure to comply with the order in the child
support action, filed on 23 May 2014. An order to show cause was issued to Mother,
requiring her to appear on 2 June 2014 for a hearing. The motion alleged that Mother
owed arrears of $4,498.35 as of 13 May 2014. The trial court heard the motion along
with the other matters during the trial.
1. Failure to Pay
Mother argues that “the trial court reversibly erred in holding [Mother] in civil
contempt” because her failure to pay was not willful, based upon her periods of
unemployment.
Review in civil contempt proceedings is
limited to whether there is competent
evidence to support the findings of fact and
whether the findings support the conclusions
of law. Findings of fact made by the judge in
contempt proceedings are conclusive on
appeal when supported by any competent
evidence and are reviewable only for the
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Opinion of the Court
purpose of passing upon their sufficiency to
warrant the judgment.
However, findings of fact to which no error is assigned are
presumed to be supported by competent evidence and are
binding on appeal. The trial court’s conclusions of law
drawn from the findings of fact are reviewable de novo.
Tucker v. Tucker, 197 N.C. App. 592, 594, 679 S.E.2d 141, 142-43 (2009) (citations,
quotation marks, and brackets omitted).
Mother’s primary argument regarding civil contempt is that the evidence did
not support the trial court’s finding that she had the ability to comply with the subject
order yet willfully failed to do so. She argues that she was “unemployed for significant
periods of time after her substitute teaching position at New Town Elementary School
ended in May 2013” and that although she received some unemployment
compensation and earnings from temporary jobs intermittently, the income did not
allow her to pay her living expenses and her temporary child support obligation of
$574.85. Thus, she argues that her failure to pay was not willful and that she did not
have the ability to comply.
The temporary child support order was entered on 25 June 2013, although it
was based upon a hearing which ended on 22 April 2013. Mother was ordered to pay
$574.85 beginning on 1 June 2013. In the temporary child support order, the trial
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Opinion of the Court
court found that Mother was employed at New Town Elementary School8 “through
the rest of this year as a contract teacher filling in for a teacher who is out on
maternity leave.” Thus, by the time the temporary order was entered by the court,
Mother’s temporary job at New Town Elementary had already ended, in May 2013.
On 3 July 2013, Mother filed a motion to modify child support, alleging that her job
had ended so she was receiving unemployment compensation. She also alleged that
she “is currently actively seeking employment as a teacher in both the elementary
and middle school levels in both Union County and Southern Mecklenburg County
school districts in the hopes of obtaining a job and maximizing her income potential.”
The order on appeal, in addition to finding her in contempt, specifically denied this
motion to modify.
As discussed above, we have already determined that the trial court’s findings
were supported by the evidence. The trial court properly concluded that Mother had
“willfully suppressed her income to avoid her child support obligation.” In addition,
we have determined that the trial court properly imputed income to Mother and
concluded that she acted in bad faith based on her failure to make reasonable efforts
to obtain a new full-time position.
8 One finding in the temporary order states that New Town Elementary is in Arkansas, but
from the evidence and other findings we believe that this was a clerical error, as the evidence shows
that New Town Elementary is in Union County, North Carolina.
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Opinion of the Court
The trial court’s conclusions of law regarding Mother’s willful failure to pay
child support and her ability to comply are supported by the findings of fact.
Our State’s case law reveals a well-established line of
authority which holds that a failure to pay may be willful
within the meaning of the contempt statutes where a
supporting spouse is unable to pay because he or she
voluntarily takes on additional financial obligations or
divests him or herself of assets or income after entry of the
support order. A contrary rule would permit a supporting
spouse to avoid his or her obligations by the simple means
of expending assets as he or she pleased, and then pleading
inability to pay support, thereby insulating him or herself
from punishment by an order of contempt.
Shippen v. Shippen, 204 N.C. App. 188, 190-91, 693 S.E.2d 240, 243-44 (2010)
(citations and quotation marks omitted).
For these reasons, Mother’s argument is without merit.
2. Purge Conditions
Mother next argues that the purge conditions of the order are not supported
by the findings of fact and conclusions of law. The trial court ordered that Mother
“shall purge herself of said contempt by payment of an additional $75.00 per month
through Centralized Collections, which shall also be applied towards her arrears.”9
The order does not specify when the purge payments end.
9 On top of that, the order also required Mother to pay $100.00 per month toward arrears, in
addition to her ongoing child support obligation of $616.68. Thus, the order required a total monthly
payment of $791.68.
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Opinion of the Court
As noted above, we are remanding for the trial court to recalculate the child
support obligation and child support arrears. For this reason alone, we would have
to vacate this portion of the order, since the amounts may be different on remand and
the trial court would need to set new purge conditions, based upon appropriate
findings of fact and a conclusion of law as to Mother’s ability to purge herself of
contempt. As also noted above, we are not entirely certain of the income which the
trial court imputed to Mother.
This Court recently vacated an order which did not set any ending date for
payments to purge contempt in Spears v. Spears, __ N.C. App. __, 784 S.E.2d 485
(2016). In Spears, the order held the defendant in contempt and required the
defendant to make purge payments of an additional $900.00 per month “over and
above” the ongoing child support and alimony obligations set by the order. Id. at __,
784 S.E.2d at 488. The Spears plaintiff countered that
the absence of an ending date for the monthly payment of
$900.00 “over and above” the February 2013 Order’s
obligations indicates that this additional payment is
simply a monthly payment towards the arrears of
$12,770.80, which would end on a definite date when the
arrears were paid in full. (Plaintiff contends that the
$900.00 monthly payments would satisfy the first purge
condition in “just over 14 months” since “$12,770.80
delinquency ÷ $900.00 additional payment = 14.189
months).” This is a reasonable argument, but it might be
more convincing if the amount paid each month would
divide evenly by a number of months. By plaintiff’s logic,
the order implies that defendant must pay $900.00 for
fourteen months and 18.98 percent of that amount in the
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Opinion of the Court
fifteenth month, or $170.80. Even if this was the trial
court’s intent, the order is impermissibly vague as written.
Accordingly, we hold that the trial court erred in failing to
establish a definite date by which defendant could have
purged himself of the contempt. We also note that in the
Order on Purge Condition Noncompliance, the trial court
repeated this error when it ordered that defendant’s “civil
contempt shall continue unless he makes payments
consistent with the February 2013 Order and the purge
conditions set by this Court.”
Id. at __, 784 S.E.2d at 501 (citations omitted).
Here, as in Spears, the purge conditions are impermissibly vague. Even if the
$75.00 per month is applied toward arrears, the ending date is uncertain. We vacate
the purge conditions and direct that the trial court enter new conditions on remand,
consistent with this opinion.
D. Attorney Fees
Finally, Mother argues that “the trial court reversibly erred in awarding
[Father] $20,000.00 in attorneys’ fees” because “the findings of fact do not support the
award.” The trial court’s findings of fact regarding attorney fees are limited as they
address only the total amounts billed by Father’s counsel in North Carolina and
Arkansas; Father’s inability to pay all of his attorney fees and that he had to borrow
money; and that he “brought this action in good faith and does not have the means
and ability to defray the costs of this action, which has been greatly increased due to
the false allegations made by [Mother.]”
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LUEALLEN V. LUEALLEN
Opinion of the Court
The order fails to make any findings regarding the reasonableness of the
attorney fees as required by law. Although the trial court found that Father was
acting in good faith and has insufficient means to defray the expense of the suit, as
required by N.C. Gen. Stat. § 50-13.6, the order failed to make any findings as to “ ‘the
nature and scope of the legal services rendered, the skill and time required, the
attorney’s hourly rate, and its reasonableness in comparison with that of other
lawyers.’ ” Smith, 195 N.C. App. at 255, 671 S.E.2d at 586 (quoting Cobb v. Cobb, 79
N.C. App. 592, 595, 339 S.E.2d 825, 828 (1986)). It is necessary that the record
contain findings regarding these factors in order to determine whether an award for
attorney fees is reasonable, and “[i]f these requirements have been satisfied, the
amount of the award is within the discretion of the trial judge and will not be reversed
in the absence of an abuse of discretion.” Id. (quotation marks and brackets omitted).
The parties offered detailed affidavits regarding attorney fees, so on remand
the trial court must also make additional findings of fact addressing “ ‘the nature and
scope of the legal services rendered, the skill and time required, the attorney’s hourly
rate, and its reasonableness in comparison with that of other lawyers’ ” in support of
its award of attorney fees. Id. (quoting Cobb, 79 N.C. App. at 595, 339 S.E.2d at 828).
IV. Conclusion
For the reasons stated above, we affirm the portions of the trial court’s order
addressing custody, with the exception of Decree provisions 4 and 6, which must be
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LUEALLEN V. LUEALLEN
Opinion of the Court
vacated and rewritten on remand. In addition, we vacate portions of the order
regarding calculating child support and arrears and remand for recalculation of those
amounts and so that the trial court may set out in more detail the numbers used in
making those calculations. We also find that the purge conditions in the order are
impermissibly vague and therefore must be redefined more precisely on remand.
Finally, we remand for additional findings of facts regarding the award of attorney
fees.
On remand, since portions of the order on appeal are vacated and the trial
court will be entering a new order -- and must be able to make findings and
conclusions as to Mother’s present ability to comply with the obligations set by the
order, including any purge conditions for contempt -- the court shall, upon timely
written request from either party, hold an additional hearing to address the order on
remand. Evidence and argument presented at this hearing shall be limited to
evidence necessary for the purposes as noted in this opinion.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
Judges ELMORE and DIETZ concur.
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