Grissom v. Cohen , 261 N.C. App. 576 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-66
Filed: 2 October 2018
Mecklenburg County, No. 07-CVD-314
AMY S. GRISSOM, Plaintiff,
v.
DAVID I. COHEN, Defendant.
Appeal by plaintiff from order entered 9 October 2017 by Judge Matthew J.
Osman in District Court, Mecklenburg County. Heard in the Court of Appeals 4 June
2018.
James, McElroy & Diehl, P.A., by Preston O. Odom, III, and Jonathan D. Feit,
for plaintiff-appellant.
Womble Bond Dickinson LLP, by H. Stephen Robinson; Kevin L. Miller; and
Tom Bush, for defendant-appellee.
STROUD, Judge.
Plaintiff Amy S. Grissom (“Mother”) appeals from the trial court’s order
holding that defendant David I. Cohen (“Father”) is not in civil contempt of a prior
custody order based upon the refusal of the parties’ daughter, Mary,1 to return to the
physical custody of Mother. The trial court first entered an order denying Mother’s
motion for contempt on 17 August 2016, but this order did not include findings of fact
1 We use pseudonyms to protect the identity of the parties’ children.
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necessary to permit review by this Court, so we vacated that order and remanded for
the trial court to enter a new order including findings of fact to support its conclusion.
We affirm.
I. Background
This appeal arises from an exceptionally contentious and prolonged custody
battle between Mother and Father, beginning in January 2007 and continuing, with
a few lulls, ever since. The parties are the parents of two children; the oldest, their
son John, had just turned 18 before Mother filed her contempt motion, and the
contempt motion and order in this appeal applies only to their daughter, Mary, now
age 17. We will not recount the details of this battle leading up to the order on appeal,
but in brief summary, the first custody order entered in 2009 granted sole legal and
primary physical custody to Mother and secondary custodial time to Father.2
Father’s decision-making authority regarding the children was severely curtailed by
this order based upon Father’s misdeeds as described in the order. There were some
relatively minor legal skirmishes after the 2009 order, with no major changes to the
custodial arrangement until 9 March 2015, when the trial court entered an order
modifying the 2009 custody order (“2015 Modified Custody Order”). Generally, the
2 Mother’s counsel described the history in his closing argument, stating that he first wanted
to “remind the Court . . . that [Father] has created nine years of litigation, has filed three motions to
modify custody, has participated in two three-week custody trials, has involved the children with
subpoenas, affidavits, live testimony last time and this time. There have been four judges, 636 findings
of fact in two custody orders.” And now, we can add two appeals to this tally.
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2015 Modified Custody Order found that Father’s behavior and relationship with the
children had improved and the children wanted to spend more time with him. The
2015 Modified Custody Order allowed Father to have greater visitation time with the
two children.
On 10 June 2016, Mother filed a motion she calls an “Omnibus Motion,”
comprising a motion for civil and criminal contempt, a motion for a temporary
restraining order (“TRO”) and preliminary injunction, and a motion for “judicial
assistance.” The Omnibus Motion is single-spaced and 17 pages long. Five and a half
pages summarize the procedural history, including quotes from portions of prior
orders, with particular emphasis on any findings unflattering to Father. The
substantive portion of the Omnibus Motion begins at the bottom of page 5 and is
entitled “Withholding of Plaintiff/Mother’s Physical Custodial Time and Alienation.”
Mother then makes four pages of allegations, some “upon information and belief,” of
Father’s actions and statements she alleges are part of his “campaign to alienate the
children from Plaintiff/Mother,” which has “intensified after the Court’s most recent
Custody Order and has resulted in the children being severely alienated from
Plaintiff/Mother.”3 She stresses her belief that Father has encouraged the children
3 John had attained the age of 18 years old two months before Mother filed the Omnibus
Motion, but he was still a minor as of January 2016 and at the time of most of the events described in
the motion. Thus, when we refer to the “children,” we are referring to both John and Mary, but we
realize that John was an adult when the Omnibus Motion was filed and he was no longer subject to
the 2015 Modified Custody Order at that time.
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not to return to her and that he has not “caused the children to face any consequences
for their failure” to return to her home. She alleged that in January 2016, she
received an email from John, which was copied to Father; Dr. Shulstad, the children’s
pediatrician; Samantha Bosco, the guidance counselor at Mary’s high school, and
Janani Buford, the guidance counselor at Mary’s middle school. John said Mary had
confided to him a few days before that she was self-harming by cutting herself, and
she had been doing this for about a year. He believed that she “needed serious help”
and needed “to be in as positive of an environment as possible.” John also stated:
After almost ten years of moving back and forth constantly,
and my 18th birthday coming quickly, I feel that I am
mature and reasonable enough to make my own decisions.
I have spoken with [Mary] and I feel that it is best if we
spent time solely with Dad. [Mary] and I both love you very
much. I would still like to see you and sustain a good
relationship with you, but this current situation is just too
difficult for me and [Mary] to cope with. I hope that you
will understand and respect our decision just as we have
understood and respected yours for almost a decade.
John claimed Mary asked Mother if she could see a therapist but her Mother ignored
her; Mother denied that Mary ever requested to see a therapist. At the time of this
email, the children had been with Father since 28 December 2015 for holiday
visitation and they did not return to Mother’s home afterwards except for some brief
visits; they did not stay overnight. Mother alleged this email was another example
of Father’s campaign to destroy her relationship with the children. She alleged that
Father was encouraging the children not to return to Mother’s home and that he gave
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them no consequences for their refusal. She alleged that despite the children’s refusal
to return to her home, he “rewards” Mary by continuing to allow her to have
sleepovers with friends, buy clothing, keep her phone, and take vacations. She
alleged that the children were “hostile” and “cruel” to her, just as Father has been.
The next section of the motion is entitled “Refusal to Support [Mary’s]
Attendance in Therapy, Failure to Apprise Plaintiff/Mother of [Mary’s] Condition,
And Attempt to Obtain [Mary’s] Therapeutic Records.” Mother describes her efforts
to find a therapist for Mary after receiving the email from John and Mary’s opposition
to seeing the therapist she selected, alleging that Mary’s reluctance was caused by
Father’s “influencing [Mary] to further his own goals.” Mary did ultimately see the
therapist Mother selected, Ms. Reed, although she “continues to be reluctant.” She
alleged that on 2 February 2016, Mary “refused to leave school to attend an
appointment with Ms. Reed,” and Mother took her to see Dr. Shulstad, who
discovered eight or nine “fresh cuts on [Mary’s] leg.” She notes this cutting occurred
while Mary was with Father. Dr. Shulstad encouraged Mary to see Ms. Reed, and
although she refused at times, she attended some appointments “when forced to do
so by Dr. Shulstad or when she wants something (such as medical authorization to
attend a summer camp).”
The next section of the motion is entitled “Interfering with Educational
Decisions” and includes about a page of allegations of the parties’ disputes regarding
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Father taking Mary to tour boarding schools during the previous summer. The
following section is entitled “Motion for Contempt.” It has five paragraphs, alleging
his willful violation of the order and requesting that Father be held in civil and
criminal contempt.
The next section of the motion is entitled, “Motion for Temporary Restraining
Order and Preliminary Injunction.” Mother requested that the court enter a
Temporary Restraining Order and Preliminary Injunction enjoining Father “from
interfering with” Mother’s custodial rights and “authority to made medical and
mental health decisions” for Mary; from taking Mary to “tour any additional schools”
or talking to her or assisting her in any way regarding her application or attendance
at any school; and from showing “these Motions and any subsequent Orders to the
parties’ children” or talking about them. She also asked that Father be required to
“return [Mary] to” her physical custody and “to support [Mary’s] attendance at
reunification therapy and counseling with the therapist” of Mother’s choice.
The last section of the motion is entitled “Motion for Judicial Assistance” and
Mother moved for the court to “facilitate intensive reunification therapy.”
The prayer for relief is two pages long. In pertinent part, Mother requested
issuance of a show cause order directing that a hearing be held and that Father “show
cause as to why he should not be held in contempt of the March 2015 Custody Order.”
She also requested that the court
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3. Find Defendant/Father in civil contempt of court and
punish him as set forth in N.C.G.S. § 5A-21 et seq. until he
can demonstrate a willingness to comply with the Court’s
March 2015 Custody Order.
4. Find Defendant/Father in criminal contempt of court
and punish him as set forth in N.C.G.S. § 5A-12 as a result
of his willful failure to comply with the provisions of the
March 2015 Custody Order.
Mother specifically asked for a list of “mechanisms” to enforce the Order and
“as purging conditions” of contempt. This list includes several continuing actions,
including that he “exert his parental authority and control”: to ensure that [Mary]
returns to” her custody and stays there; to ensure that Mary attends counseling, to
ensure that Mary attends reunification therapy; and to ensure that Mary
communicates with Mother while in Father’s care. Mother also asked that Father be
required to permit Mother to “make up the custodial parenting time missed since
January 4, 2016.”
On 13 June 2016, Mother filed and served Father with a Notice of Hearing for
28 June 2016 on “Plaintiff/Mother’s Motion for Contempt filed June 10, 2016.” On 14
June 2016, the trial court entered an Order to Show Cause requiring Father to appear
and show cause why he should not be held in civil or criminal contempt. Father
requested continuance of the hearing to allow more time to prepare, but his motion
was denied, and the trial court held a hearing on the contempt motion and order to
show cause on 28 June 2016.
As this Court noted in the prior appeal, “At the 28 June 2016 show cause
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hearing, the trial court did not allow Mother to proceed on both civil and criminal
contempt, requiring Mother to choose to pursue either civil or criminal contempt.
Accordingly, Mother chose to proceed on her civil contempt motion against Father.”
Grissom v. Cohen, __ N.C. App. __, 803 S.E.2d 697, at *2 (2017) (unpublished)
(“Grissom I”). The trial court entered its first order finding Father not to be in civil
contempt which was reversed by the first appeal and remanded for findings of fact:
The trial court’s order, though, is devoid of any specific
factual findings regarding Father’s actions concerning the
issue of Father’s willfulness. In order for us to conduct any
meaningful review of the trial court’s determination
regarding Father’s willfulness, we must know what facts
the trial court found to make that ultimate finding.
Therefore, we remand the matter and direct the trial court
to enter specific factual findings regarding whether
Father’s actions were willful. For instance, if the trial
court enters findings that Father did not force or encourage
his children to stay with him during Mother’s time with the
children, such findings would support the trial court’s
ultimate finding that Father did not act willfully, and the
trial court would not be required to hear any additional
evidence on the matter.
Grissom I, __ N.C. App. __, 803 S.E.2d 697, at *5 (citation omitted).
On 9 October 2017, the trial court entered a new order (“Order on Remand”)
with detailed findings of fact and conclusions of law4 without receiving additional
evidence. Mother timely appealed.
II. Analysis
4 The trial court has entered orders addressing the other motions in the Omnibus Motion and
those orders are not the subject of this appeal.
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Mother argues the trial court “erred by failing to hold Father in civil contempt
for effectively eliminating Mother’s primary custody of their daughter.” She claims
to challenge 22 of the 37 findings of fact in the order and 7 of the legal conclusions.
Although she argues she is challenging the findings of fact, she does not argue that
the findings are not supported by the evidence. Instead, she contends the trial court’s
findings are in error because it (1) “misallocated the burden of proof;” (2)
“Misapprehended the express and implied requirements of the Modified Custody
Order,” specifically arguing that the order is a “forced visitation” order;” and (3) erred
by determining that “Father committed no willful violation of the modified custody
order” based upon the trial court’s misunderstanding of “willfulness” in this context.
She makes the bold and legally impossible request that this Court make the factual
determination that “Father willfully violated the Modified Custody Order” and to
“remand . . . for a new fact-finder to consider additional evidence regarding whether
Father remains in civil contempt.” We cannot do this, since it is the trial court, not
our Court, which is “entrusted with the duty to hear testimony, weigh and resolve
any conflicts in the evidence, [and] find the facts[.]” State v. Cooke, 306 N.C. 132, 134,
291 S.E.2d 618, 620 (2015). Mother requests in the alternative that we “remand for
a new fact-finder to conduct a new contempt hearing with detailed instructions
indicating that [Hancock v. Hancock, 122 N.C. App. 518, 471 S.E.2d 415 (1996)] and
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its progeny do not control.”5
This Court does not conduct wholesale de novo review of contempt orders, as
Mother seems to request. Instead, “[t]he standard of review for contempt proceedings
is limited to determining whether there is competent evidence to support the findings
of fact and whether the findings support the conclusions of law.” Sharpe v. Nobles,
127 N.C. App. 705, 709, 493 S.E.2d 288, 291 (1997). “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). Since Mother
has challenged none of the findings of fact as unsupported by the evidence, but argues
only that the trial court “misapprehended” the law, we will review de novo the trial
court’s “apprehension of the law” to determine if the trial court considered the issues
under the correct legal standards. See generally id. If the trial court considered the
issues based upon the correct law, we will review the legal conclusions to determine
if they are supported by the findings of fact. Id.The trial court may find a party in civil contempt for failure to follow a court
order under N.C. Gen. Stat. § 5A-21, which provides :
(a) Failure to comply with an order of a court is a
5 Mother has not suggested any impropriety by the trial court and we cannot discern any
conceivable legal basis for her request for a “new fact-finder.” Mother asks for remand and she asks
not only for another bite at the apple -- she wants a new apple also.
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continuing civil contempt as long as:
(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) (2017).
A. Burden of Proof
Mother first argues the trial court improperly placed the burden of proof of civil
contempt on her and not on Father. She notes correctly that “A show cause order in
a civil contempt proceeding which is based on a sworn affidavit and a finding of
probable cause by a judicial official shifts the burden of proof to the defendant to show
why he should not be held in contempt.” State v. Coleman, 188 N.C. App. 144, 149-
50, 655 S.E.2d 450, 453 (2008). The trial court entered the14 June 2016 Show Cause
Order based on Mother’s Omnibus Motion, so Father had the burden to show why he
should not be held in contempt under the show cause order. Id. But Mother had also
filed and served a separate notice of hearing on 13 June 2016 on the motion for
contempt; on that motion and notice of hearing, the burden of proof was on her. See
N.C. Gen. Stat. § 5A-23(a1) (“The burden of proof in a hearing pursuant to this
subsection shall be on the aggrieved party.”).
Mother argues that the trial court improperly placed the burden on her based
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upon the following conclusion of law in Order on Remand: “5. As a matter of law,
Mother failed to prove by a preponderance of the evidence that Father was in
violation of the Modified Custody Order; nor has Mother met her burden of proving
that Father is in civil contempt.” (Emphasis added). The Order on Remand also
included several other conclusions of law that Father was not in willful contempt.
Three were included in the section of the order entitled “Conclusions of Law:”
3. As a matter of law, Father has not willfully violated the
Order with his actions such that he is in civil contempt, as
alleged by Mother.
...
7. Father is not in civil contempt of Court.
8. Mother’s motion for Contempt should be denied.
At least two others were included within the Findings of Fact:
35. Father is not in civil contempt.
36. Mother’s motion for civil contempt should be denied.
Mother also argues that it would be “problematic to simply reverse based on
the burden-misallocation and remand for an unguided reconsideration,” because of
Mary’s “fast-approaching eighteenth birthday.” She therefore requests this Court to
make new factual determinations based upon the allegations in her verified motion -
- which we cannot do, and would not do if we could -- or that we remand for a complete
do-over with a different judge. Even if there was any legal basis for a complete do-
over -- and there is not -- remand for an entirely new trial would be unlikely to
accomplish Mother’s purpose of having a new order before Mary turns 18. We
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appreciate her urgency to have the assistance of the courts in reestablishing her
relationship with Mary, but we must review the order on appeal in compliance with
the correct standards of review.6 See generally Sharpe, 127 N.C. App. at 709, 493
S.E.2d at 291; Tucker, 197 N.C. App. at 594, 679 S.E.2d at 142-43 (2009).
We agree the trial court’s various conclusions of law are confusing, and the
trial court probably should not have used the words “her burden” in the order. Taken
out of context, these words create Mother’s argument that the trial court
“misapprehended” the law and placed the burden on her. See Tigani v. Tigani, __
N.C. App. __, __, 805 S.E.2d 546, 549-50 (2017) (“N.C. Gen. Stat. § 5A-23(a) (2015)
provides that a proceeding for civil contempt may be initiated by the order of a judicial
official directing the alleged contemnor to appear and show cause why he should not
be held in civil contempt, or by the notice of a judicial official that the alleged
contemnor will be held in contempt unless he appears and shows cause why he should
not be held in contempt. Under either of these circumstances, the alleged contemnor
has the burden of proof. In addition, pursuant to N.C. Gen. Stat. § 5A-23(a1),
proceedings for civil contempt may be initiated by motion of an aggrieved party giving
notice to the alleged contemnor to appear before the court for a hearing on whether
the alleged contemnor should be held in civil contempt. The burden of proof in a
6 The trial court agreed, and we agree that everyone should be complying with the existing
2015 Modified Custody order, but the reality is this: as of 27 May 2019, Mother and Mary will have
to deal with their relationship on their own terms. We sincerely hope they will be successful, and
sooner rather than later.
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hearing pursuant to this subsection shall be on the aggrieved party. When an
aggrieved party rather than a judicial official initiates a proceeding for civil contempt,
the burden of proof is on the aggrieved party, N.C. Gen. Stat. § 5A-23(a1) (2015),
because there has not been a judicial finding of probable cause.” (Citations, quotation
marks, brackets, and ellipses omitted)).
Father argues that the trial court’s confusing order is the result of Mother’s
complex motions. In her Omnibus Motion she asked to proceed on both civil and
criminal contempt simultaneously, and to proceed on both the motion for contempt
(for which she would have the burden of proof) and the show cause order for contempt
(for which Father would have the burden of proof). He contends that since this Court
had already remanded for a detailed order, the trial court was simply trying to cover
all the bases. Father may be right that the trial court was simply trying to address
both the contempt motion and the Show Cause Order with its multiple conclusions of
law that Father was not in willful contempt.7 But upon reviewing the various
motions, hearing transcript, this Court’s prior opinion, and the entire order in
context, we simply cannot agree that the trial court misallocated the burden of proof.
At the beginning of the hearing, the trial court and counsel discussed which
portions of the Omnibus Motion were to be heard that day. Before any evidence was
7 Despite its length, this opinion does not fully reflect the procedural or factual complexities of
this case. After all, Mother calls her motion an “Omnibus Motion”, and this name is accurate; Omnibus
means, according to Black’s Law Dictionary, “In all things; on all points.” In omnibus, Black’s Law
Dictionary (10th Ed. 2014).
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presented, the trial court asked Mother’s counsel:
Judge: Well, you get to choose whether you want to proceed
first or whether you want the burden to shift, right, on the
motion to show cause?
[Mother’s counsel]: I do want the burden to shift. My sole
question is about time and some equal allocation of the
time.
The trial court then asked counsel how many witnesses each anticipated
calling to assist in allocation of the time for the hearing. Father’s counsel said he
would call four or five witnesses; Mother’s counsel said she would call “zero to one”
but noted that he would need adequate time for cross-examination and argument.
The trial court then allocated time for the case, and Father presented his evidence
first, because he had the burden of proof. During the testimony of the witnesses,
there were many objections from counsel and the trial court tried to keep the
questioning focused on the issue being heard since the issue was civil contempt, not
criminal. At one point during cross-examination of Father by Mother’s counsel,
regarding the dispute over Father’s taking Mary to visit boarding schools in 2015, the
trial court noted this would be a past violation and not something for which Father
may be held in civil contempt for as of that hearing in 2016. The trial court noted:
JUDGE OSMAN: I mean, as it relates to -- well, I mean, I
don’t know. I just did a CLE on this, I planned a CLE on
this. I kind of feel like I know what I’m talking about. But
sure, go ahead.
At these points and others during the hearing, the trial court demonstrated that it
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understood the differences between civil and criminal contempt and understood the
differences in the burden of proof between a motion for contempt and a show cause
order. We are satisfied that the trial court understood that the burden of proof was
on Father to show cause on why he should not be held in contempt and that the
reference in the order to “her burden” was in response to Mother’s motion for
contempt, as opposed to the show cause order.
Even if we remanded for the trial court to rephrase its order and remove the
words at issue, ultimately, nothing would change. Father met his burden to show
cause as to why he should not be held in contempt. He testified, and he presented
compelling evidence including testimony from John, Mary, Dr. Shulstad, Ms. Buford,
and various documentary exhibits. A remand would simply delay final resolution of
the contempt motion and prolong litigation in this matter until after Mary turns 18.
Mother did not testify or present any testimony from any other witnesses,
electing to rest on her verified motion alone.8 Over Father’s objection, the trial court
agreed to accept her verified motion as equivalent to testimony presented at trial. We
express no opinion on whether the trial court should have accepted the motion in this
manner, but the mere fact that she filed a verified motion does not make her
allegations irrefutable, any more than her live testimony would be irrefutable. The
8 The trial court demonstrated its understanding of the burden of proof at this point in the
hearing as well. When the trial court asked if Mother would call any witnesses, her counsel stated, “I
don’t have a witness.” The trial court responded, “Nor are you required to do so with a show cause.”
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trial court has the discretion to determine the credibility and weight of all the
evidence, whether it was a written document or live testimony, and this Court cannot
re-weigh the evidence. See, e.g., Clark v. Dyer, 236 N.C. App. 9, 27-28, 762 S.E.2d
838, 848 (2014) (“[I]t is within a trial court’s discretion to determine the weight and
credibility that should be given to all evidence that is presented during the trial. We
will not reweigh the evidence presented to the trial court[.]” (Citation and quotation
marks omitted)). Father refuted the motion, and Mother had full opportunity to
respond to his presentation of evidence, but chose not to do so and to rely only on her
written motion. In other words, Father met his burden to produce evidence in
response to the Show Cause Order to show why he should not be held in willful
contempt with competent evidence which the trial court determined was credible.
The burden then shifted back to Mother to refute his evidence, but she elected not to
present any evidence. In that sense, she did not carry “her burden,” either to show
contempt under her motion for contempt or to respond to Father’s evidence presented
based upon the show cause order.
Mother also argues that the trial court’s “misapprehension” of the burden of
proof caused the findings of fact to be improper, since the court was considering the
evidence under the wrong law. Even if the trial court had “misapprehended” the
burden of proof, Mother has not explained how this “misapprehension” would have
had any effect on the findings of fact. The findings are all supported by the evidence
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and most of the facts are not really in dispute. For example, Mother challenges this
finding of fact:
16. [Mary] revealed to her brother that she had been self-
harming for approximately one year and that she felt
depressed and particularly so when at her Mother’s home.
But Mother’s own Omnibus Motion included detailed allegations of these same facts
about Mary’s revelation to John. There was no real dispute regarding most of the
basic facts relevant to contempt, such as when Mary stopped going to her Mother’s
house, her stated reasons for stopping, or that she was depressed and self-harming.
Mother’s motion is based only on why Mary remained at her Father’s home. She
claims Mary stayed because of Father’s continuing intense efforts to alienate Mary
and his refusal to force her to return to Mother’s home; Father claims Mary refused
to go and he tried but was unable to make her go by any reasonable means short of
physical force or punishment that may exacerbate her depression and self-harming.
The trial court’s findings resolved these factual issues, and based upon the evidence,
we cannot discern how a “misapprehension” of the burden of proof would have made
any meaningful difference in the findings of fact. This argument is without merit.
B. “Implied” Forced visitation provisions
Mother next argues that the trial court “misapprehended the express and
implied requirements of the modified custody order.” She notes that the Order on
Remand states that the 2015 Modified Custody Order has no “directive” requiring
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either party to “force visitation with the other parent.” She challenges these findings
of fact, which she notes are actually mixed findings of fact and conclusions of law:
26. It is very clear that both children do not want to
see their Mother, and there is no directive in the Order
imposing any duty on either parent to force visitation with
the other parent.
....
33. Father is not in willful violation of the Modified
Custody Order, and any noncompliance by Father, the
person to whom the order is directed, is not willful. To the
extent the visitation schedule is not being honored, the
Court finds that this is the consequence of [Mary’s] refusal
to return and not due to any ongoing conduct by Father to
thwart, prevent or inhibit [Mary’s] return to Mother’s
residence.9
Mother contends that the 2015 Modified Custody Order does have “implied” forced
visitation requirements. The 2015 Modified Custody Order is long and very detailed,
but in summary, the order sets out detailed provisions on custodial times for each
parent including holidays and school breaks and detailed provisions on decision-
making. It also includes the provision that “[t]his order is enforceable by the
contempt powers of the Court.”
Mother relies heavily on Reynolds v. Reynolds, 109 N.C. App. 110, 426 S.E.2d
102 (1993), for her argument that the 2015 Modified Custody Order is a “forced
visitation” order. See id. at 113, 426 S.E.2d at 104. Yet Reynolds was not a contempt
9 Although she fortunately did not request this relief before the trial court, Mother implies
quite strongly that the trial court could even hold Mary in contempt for not returning to her physical
custody. She notes that “the court here incorrectly omitted Daughter as a person (1) to whom the
Modified Custody Order is directed; and (2) over whom it possesses jurisdiction.”
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case; it was a constitutional challenge to a visitation order. Id. at 112, 426 S.E.2d at
104. In Reynolds, the mother and father originally had an order of joint custody
without a specified visitation schedule. Id. at 111, 426 S.E.2d at 103. The parties
could not agree on visitation, so the father filed a motion for visitation. Id. The
daughter, then age 11, “expressed a desire not to visit her father[,]” but the trial court
determined it was in her best interest to visit with him and entered an order setting
a visitation schedule. Id. at 113, 426 S.E.2d at 104. There is no indication in the
opinion that the daughter had any serious emotional or behavioral problems -- such
as self-harming -- but she simply did not want to visit her father. See generally id.The order in Reynolds included a provision “that ‘[v]iolation of this Order shall be
punishable by Contempt.’” Id., 426 S.E.2d at 105. Both the mother and the daughter
challenged the order as a violation of their constitutional due process rights. See
generally id. at 112, 426 S.E.2d at 104 (“The plaintiffs’ sole contention on appeal is
that the Order for visitation violates the Constitutional rights of the minor plaintiff.”).
This Court found “no merit to the arguments presented in the plaintiffs’ brief” and
affirmed the order. Id.Mother’s argument regarding “forced visitation” based on Reynolds relies upon
this Court’s comparison of the Reynolds order to an order in Mintz v. Mintz, 64 N.C.
App. 338, 307 S.E.2d 391 (1983). See Reynolds, 109 N.C. App. at 112-13, 426 S.E.2d
at 104. As explained in Reynolds, the Mintz order
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set out a specific visitation schedule which the minor son
of the parties simply decided he did not want to follow. The
plaintiff mother, who had primary custody of the child, did
not insist that the child comply with the Order. Unlike the
Order in the present case, the Order in Mintz provided that,
upon noncompliance with the Order, the father was to take
the Order to the sheriff’s office and the sheriff was to
immediately arrest the mother for contempt and place the
son in the custody of the father. This Court found that such
a provision denied the mother due process of law, and
therefore held the visitation Order to be invalid. This
Court further concluded that, although the facts in Mintz
failed to support a valid Order, an Order of “forced
visitation” could be entered once the trial judge has (1)
afforded the parties an opportunity for a hearing in
accordance with due process, (2) created an Order setting
out specific findings of fact and conclusions of law to justify
and support the Order, and (3) made findings that include
at a minimum that the drastic action of incarceration of a
parent is reasonably necessary for the promotion and
protection of the best interest and welfare of the child.
Reynolds, 109 N.C. App. at 113, 426 S.E.2d at 104 (citations omitted) (emphasis
added).
The Reynolds Court concluded that the order did not violate the plaintiffs’ due
process rights, since it was “not analogous to the contempt provision in the Mintz case
as it does not provide that the violator will be incarcerated upon the oral report of a
violation to the sheriff. Rather, the provision is a valid declaration that one who
violates the Order will be subject to contempt proceedings in accordance with due
process.” Reynolds, 109 N.C. App. at 113, 426 S.E.2d at 105. The holding of Reynolds
is simply that custody or visitation provisions do not violate the constitutional due
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Opinion of the Court
process rights of either the parents or the child because they are enforceable by
contempt proceedings as long as the alleged condemner has proper notice and
opportunity for hearing. See generally id. Reynolds does not establish any sort of
“forced visitation” rule. Id.Nor does the Mintz case create a “forced visitation” rule as Mother claims. See
generally 64 N.C. App. 338, 307 S.E.2d 391. In fact, Mintz uses the word “forced” only
once, in the first sentence, as a description of what happened in the case: “This case
concerns a domestic confrontation between mother and father over forced visitation
of their 11-year-old child with the father.” Id. at 338, 307 S.E.2d at 392.10 As noted
in Reynolds, the Mintz order was defective because it allowed immediate
incarceration of the alleged contemnor based on the word of the other parent, without
opportunity for prior notice and hearing. Reynolds, 109 N.C. App. at 113, 426 S.E.2d
at 104. Mintz does not address any sort of “implied” provisions of forced visitation.
See generally Mintz, 64 N.C. App. 338, 307 S.E.2d 391.
Mother argues that because the 2015 Modified Custody Order has a provision
that “[t]his order is enforceable by the contempt powers of the Court,” it is a “forced
visitation” order. Father responds that this provision is unnecessary, since all
custody and visitation orders are enforceable by the contempt powers of the court
10 Mintz does use the verb “force” three times, but these are as part of the facts and description
of the issues. For example, the mother claimed “she felt she could not force David to go with his dad.”
Id. at 338-39, 307 S.E.2d at 392 (quotation marks omitted).
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anyway. Many orders include this provision simply as a reminder to the parties of
the potential consequences of violation, but its absence does not mean the order
cannot be enforced by contempt under N.C. Gen. Stat. § 5A-11 (2017) (“Criminal
contempt”) or N.C. Gen. Stat. § 5A-21 (“Civil contempt”). But Mother argues this
provision creates a “forced visitation” order with “express and implied” requirements.
Apparently, the “express” requirements are the custodial schedule, and the “implied”
requirements are the actions a party must take to “force” visitation or custodial time
in accord with the order. She argues that
to avoid contempt, Father must do exceedingly more than
meet the de minimis threshold the court seemingly (and
incorrectly) created here -- that is, he cannot forestall a
“willful noncompliance” determination merely by foregoing
blatant force, manipulation, punishment, marginalization,
persuasion, or mandates to thwart Daughter’s court-
ordered “best interests” relationship with Mother.
This awkward sentence seems to be based in part upon the trial court’s finding No.
27:
27. The Court finds that Father did not create any
situation to manipulate, or otherwise punish, or
marginalize Mother’s parenting time, nor did Father
attempt to persuade or mandate in any fashion that [Mary]
and [John] should not spend time with Mother as set forth
in the Modified Custody Order.”
But the trial court’s finding was simply addressing Mother’s own allegations
in her Omnibus Motion that Father had intentionally done these very things in the
past to alienate the children from her and was continuing to do them still. For
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Opinion of the Court
example, her Omnibus Motion makes detailed allegations about times when Father
had in the past “physically blocked” the children from seeing Mother; used his religion
to divide the children from her; “used his ‘money, power, and high energy to influence
professionals to advance his agenda with respect to’” the children; “manipulated the
professionals involved in the care of his children;” empowered the children to make
Mother appear to be the “the bad guy,” and many other similar allegations. The trial
court found that Father had not committed this misbehavior as alleged by Mother’s
Omnibus Motion. This finding does not mean that the trial court misunderstood
Father’s obligation to take any reasonable measures possible to make Mary return to
her Mother’s home. Instead, the trial court found that “Father has taken reasonable
measures to comply with the order as detailed in Findings of Fact 20, 21, and 22.11
However, any noncompliance with the Modified Custody Order is, again, due to
[Mary’s] refusal to comply and not due to or caused by any noncompliance with the
order by Father.”
In every custody case, even contempt cases, the “polar star” is the best interest
of the children; the Mintz case makes this point:
11Those findings state that Father encouraged Mary to return; he drove Mary by her Mother’s
house and encouraged her to get out and visit Mother; he invited Mother to come to his home to talk
to Mary. Although the trial court did not specifically find how many times these things happened,
these are ultimate findings of fact. See, e.g., In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337
(2003) (“The trial court may not simply recite allegations, but must through processes of logical
reasoning from the evidentiary facts find the ultimate facts essential to support the conclusions of
law.” (Citation and quotation marks omitted)). The trial court need not recite all of the evidence, but
the evidence showed Father encouraged Mary to return and drove her to her Mother’s home almost
daily except during times when they were out of town.
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Opinion of the Court
In all custody or visitation cases the child’s best interest is
the polar star. Here, the order fails to contain any findings
that the best interests and welfare of the child would be
served by jailing the mother if the child refuses to visit with
his father. This failing in the order also contributes to its
invalidity.
Mintz, 64 N.C. App. at 340, 307 S.E.2d at 393 (citations omitted). The Mintz Court
also notes that for older children, the trial court may give more weight to the wishes
of the child:
If the child is of the age of discretion, the child’s preference
on visitation may be considered, but his choice is not
absolute or controlling. As to what age is the age of
discretion, we feel that the better statement of the law is
that found in 42 Am. Jur. 2d Infants § 45 (1969): The nearer
the child approaches the age of 14, the greater is the weight
which should be given to the child’s custodial preference.
As to when the child is mature and intelligent enough to
formulate a rational judgment concerning its welfare, it is
generally agreed that in the absence of a statute to the
contrary, no specific age is set by law in this regard, but the
question depends on the mental capacity, or the mental
development, or the intelligence of each child in
question. It remains the duty of the trial judge to
determine the weight to be accorded the child’s preference,
to find and conclude what is in the best interest of the child,
and to decide what promotes the welfare of the child.
Id. at 340-41, 307 S.E.2d at 393-94 (citations omitted).
Mary was 15 years old at the time of the hearing, and the evidence showed that
she is a very intelligent, mature, and capable young woman. The trial court heard
Mary’s testimony and testimony from her long-time pediatrician and her school
guidance counselors. The trial court had the duty to consider the weight to give to
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Opinion of the Court
her preference and to consider her best interests; the transcript and order show the
trial court took this duty seriously. Although this is a contempt case and not a case
establishing custody, the trial court was considering Mary’s best interests as part of
its evaluation of what Father should do to make Mary visit her Mother. There is no
dispute that she was depressed and self-harming.12 Dr. Shulstad testified that he
had insisted that Mary go to therapy, and if she had not, he would have considered
inpatient treatment for her protection.13 The evidence showed, and the trial court
determined, that Mary’s older brother, John, was the one whom she confided in and
he sought help for her. And Mary and John then refused to return to their Mother’s
home. Mary testified that she was more depressed and anxious at her Mother’s home
and she did not feel she was ready to return. The trial court determined that Father
did all that he could reasonably do to get Mary to visit her mother without resorting
to actions that would likely be harmful to her. Mother cites to Hancock v. Hancock,
122 N.C. App. 518, 471 S.E.2d 415 (1996), and argues that Father “did not ‘do
everything possible short of using physical force or a threat of punishment’ to ensure
[Mary] was in Mother’s custody.” She notes that Father picked Mary up from school
12 Mother actually took the position at the hearing that Mary’s self-harming was “irrelevant”
to whether Father was in contempt. In a colloquy regarding one of the many objections during John’s
testimony, her counsel stated: “We’ll stipulate there was cutting going on. I question what the
relevance is of all of this in determining whether or not [Father] has wilfully violated the Court’s order
by not allowing [Mother] the right to exercise her custody time. There is no relevance.”
13 He testified, “When you are self cutting, [Mary] or any other self-cutter who refuses therapy,
yes. Then the appropriate medical decision is that child is doing harm to themselves and at any point
could go beyond self-cutting to self-mutilation to accidental death, that child needs to be admitted to
the hospital.”
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Opinion of the Court
or soccer practice, “indulged” her by allowing her to keep her phone, see friends, go
on trips out of town, buy new clothes, “enjoy an amusement park[,]” and “mingle at
various other social events.” The trial court considered Mary’s best interests and
determined that Father did all that he could reasonably do without making Mary’s
situation worse. When announcing the ruling to the parties at the hearing, the trial
court noted: “I cannot -- and this might be one of the most compelling parts -- I cannot
find it is in the best interest of [Mary] to force visitation at this time, consistent with
Hancock, based on what the testimony was from her.”
Father was dealing with a depressed teenage girl who was self-harming. He
picked her up from school because she told him she would walk home from school or
practice instead of going with her mother, if he did not pick her up. Isolating her
from friends or locking her in the house would likely exacerbate her condition. Mary
was in therapy and improving, but therapy does not have instantaneous results. The
trial court was well aware of the parties’ “tumultuous history” and Father’s past
misdeeds -- as are we, since Mother has listed them several times all the way back to
2006 in her Omnibus Motion and her brief -- but the trial court properly considered
Mary’s best interests and the current circumstances in evaluating whether Father
was in willful civil contempt.
C. Willfulness
Mother next contends the trial court “misapprehended” the law regarding
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Opinion of the Court
willful contempt by a parent in the context of a child’s refusal to visit with or see the
other parent. She also argues extensively this Court should disapprove or limit
Hancock and that the trial court erred by relying on Hancock.14 She claims that
the Modified Custody Order clearly contains the type of
“forced-visitation” provision that Mintz contemplated and
Reynolds recognized, see 109 N.C. App. at 113, 426 S.E.2d
at 104-105, making Reynolds precedential and Hancock
inapposite. See Hancock, 122 N.C. App. at 526, 471 S.E.2d
at 420 (noting the underlying consent judgment and the
contempt order lacked the type of forced-visitation
provision contemplated in Mintz). The forced-visitation
provision’s presence here thus vitiates challenged Findings
of Fact 23-27, 29-30, 32-36, and Conclusions of Law 1-3 and
5-8, for they all assume its absence.
Mother argues that the 2015 Modified Custody Order has “implied forced visitation”
provisions and Father willfully violated those “implied” provisions by not forcing
Mary to go to her Mother’s home, but the trial court failed to recognize these “implied”
requirements of the Order based upon its interpretation of Hancock, 122 N.C. App.
518, 471 S.E.2d 415. Specifically, Mother argues:
Here, the court interpreted Hancock and its progeny to rule
otherwise, determining that Father could not be held in
contempt--even though he never even attempted to use any
incentive, reward, punishment, or other effective means of
persuasion to ensure compliance--because the Modified
Custody Order purportedly lacks an express forced-
visitation provision.
14 Mother filed a Motion for Initial En Banc review in this case, requesting this Court to
overrule Hancock explicitly. The motion was denied.
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Opinion of the Court
Mother’s argument misconstrues Hancock and Reynolds and ignores the requirement
that all orders dealing with child custody and visitation, even a contempt order, must
consider the best interests of the child.
In Hancock, the parties’ son refused to go on three weekend visits with his
father. Hancock, 122 N.C. App. at 521-22, 471 S.E.2d at 417. The trial court held the
mother in civil contempt for willful failure to comply with the visitation order. Id. at
522, 471 S.E.2d at 417-18. On appeal, the mother argued that “there must be a
showing that the custodial parent deliberately interfered with or frustrated the
noncustodial parent’s visitation before the custodial parent’s actions can be
considered willful.” Id. at 522, 471 S.E.2d at 418. This Court agreed and reversed
the order of civil contempt. Id. at 523, 471 S.E.2d at 418. The Court noted the
testimony by mother, her daughter, and the child; all of the evidence showed that the
mother had gotten the son ready for visitation, packed his things, told him he had to
go, put him outside for his father to pick him up while she stayed inside, and told him
to get into the car with his father. Id. at 523-24, 471 S.E.2d at 418-19. He refused.
Id. at 524, 471 S.E.2d at 419. The son testified that “he loved his father and wished
to spend time with him, but only if his father’s second wife and her children would
not be there.” Id. He said he did not “feel comfortable” with his father’s wife or at
his father’s home, that his step-mother “called him ‘a spoiled brat,’” and that the bed
there was uncomfortable. Id. at 525, 471 S.E.2d at 419. There was evidence he
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Opinion of the Court
“hated” his step-brother. Id.This Court held there was no evidence that the mother had willfully disobeyed
the court’s order and she was not in civil contempt:
Nowhere in the record do we find evidence that plaintiff
acted purposefully and deliberately or with knowledge and
stubborn resistance to prevent defendant’s visitation with
the child. The evidence shows plaintiff prepared the child
to go, encouraged him to visit with his father, and told him
he had to go. The child simply refused. Plaintiff did
everything possible short of using physical force or a threat
of punishment to make the child go with his father. While
perhaps the plaintiff could have used some method to
physically force the child to visit his father, even if she
improperly did not force the visitation, her actions do not
rise to a willful contempt of the consent judgment.
Id. at 525, 471 S.E.2d at 419 (emphasis added).
The Hancock Court further noted that the father may have a remedy by asking
the trial court for an order of “forced visitation,” but civil contempt was not the proper
remedy:
Where, as here, the custodial parent does not prevent
visitation but takes no action to force visitation when the
child refuses to go, the proper method is for the
noncustodial parent to ask the court to modify the order to
compel visitation. A trial judge has the power to make an
order forcing a child to visit the noncustodial parent. In
this case, the trial court attempted the functional
equivalent of an order of forced visitation by sentencing
plaintiff to jail but allowing her to purge herself of
contempt by delivering the child over to defendant each
and every time he was entitled to visitation. However, the
order fails as an attempt at forced visitation.
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Opinion of the Court
Id. at 526, 471 S.E.2d at 420 (citations, quotation marks, and brackets omitted). The
Hancock Court noted that a trial judge could enter an “order of forced visitation” but
only if
the circumstances are so compelling and only after he has
done the following: afforded to the parties a hearing in
accordance with due process; created a proper court order
based on findings of fact and conclusions of law determined
by the judge to justify and support the order; and made
findings that include at a minimum that the drastic action
of incarceration of a parent is reasonably necessary for the
promotion and protection of the best interest and welfare
of the child. Neither the consent judgment nor the
contempt order contains any findings that the
incarceration of the plaintiff is reasonably necessary to
promote and protect the best interests of the child.
Id. (citation and quotation marks omitted).
Here, Mother included in her Omnibus Motion two motions which are
essentially motions for a forced visitation order. She asked for a mandatory
preliminary injunction requiring Father to return Mary to her home and to “exert his
parental influence” to make her stay there. She also asked for “judicial assistance”
in the form of mandated reunification therapy. If these motions are not requests for
“forced visitation” orders, it is hard to imagine what a forced visitation request would
include. Those motions are not subjects of the order on appeal. But even in a
contempt order, if the trial court is to enter a contempt order that operates as an
order of “forced visitation,” the order may be entered only under “compelling”
circumstances and
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Opinion of the Court
only after he has done the following: afforded to the parties
a hearing in accordance with due process; created a proper
court order based on findings of fact and conclusions of law
determined by the judge to justify and support the order;
and made findings that include at a minimum that the
drastic action of incarceration of a parent is reasonably
necessary for the promotion and protection of the best
interest and welfare of the child.
Id. (quoting Mintz, 64 N.C. App. at 341, 307 S.E.2d at 394). And this is exactly what
the trial court noted it could not do: “this might be one of the most compelling parts -
- I cannot find that it is in the best interest of [Mary] to force visitation at this time.”
Mother seeks to distinguish Hancock based upon the differences in the facts:
the duration of the missed custodial time; the custodial status (denial of weekend
visitation v. physical custody); Father’s “indulgence” of Mary when at his home; and
the tumultuous history of this case. We agree that no two custody cases are alike
factually; “Happy families are all alike; every unhappy family is unhappy in its own
way.”15 The trial court’s job is to hear the evidence, find the facts, consider those facts
and circumstances, and determine what action the parent should reasonably take to
force visitation, consistent with the best interests of the child. See generally Hancock,
122 N.C. App. at 526, 471 S.E.2d at 420. The differences in the facts of the cases do
not eliminate Hancock as a precedent supporting the trial court’s order, nor is it the
only case which supports the order. See also McKinney v. McKinney, __ N.C. App.
15 Leo Tolstoy, Anna Karenina 3 (Melanie Hill & Kathryn Knight eds., Constance Garnett
trans., 2005) (1875).
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__, __, 799 S.E.2d 280, 284-85 (2017) (“In the present case, the district court made no
finding that Father refused to allow Max to live with Mother or refused to obey the
custody orders. The district court did not find that Father encouraged Max to stay
with him, but rather, found that he told Max that Max should go home. It is true
that the district court found that Father did not punish Max or make life
uncomfortable for Max while remaining in Wilmington. And these actions and
inactions may have been improper, but otherwise do not rise to the level of contempt.
We do not think that the findings that Father provided a high standard of living for
Max which was an ‘enticement’ for Max to prefer living with Father is enough to rise
to the level of willfulness, absent a finding supported by the evidence that Father
provided a high standard of living for the purpose of enticing Max to run away from
Mother rather than merely for the purpose of providing for or bonding with Max.”
(citations omitted)).
The need to consider the child’s best interest is why cases have typically not
required a parent to use “physical force” or other extreme measures to make a child
visit or stay with a parent. See generally McKinney, __ N.C. App. at __, 799 S.E.2d
at 284-85; Hancock, 122 N.C. App. at 525-26, 471 S.E.2d at 419-20. A certain amount
of physical force would make a child go in any case, regardless of the child’s age or
circumstances, but it would probably never be in a child’s best interest.
Mother’s predictions of anarchy in enforcement of custody orders based upon
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Opinion of the Court
Hancock -- and the trial court’s order -- from allowing a parent to ignore a court order
with impunity where a child simply refuses to go are unfounded. She argues:
Granting an alleged contemnor absolution based [sic]
Hancock, however, violates several fundamental legal
principles and perpetuates bad public policy.
For instance, allowing a parent to sidestep contempt
based on a child’s actual or purported refusal to honor a
custody order -- i.e., the adjudication of what is in the
child’s best interest -- effectively means that a child
possesses actual or apparent authority to modify or
otherwise override the ruling, sua sponte. This is wrong on
several levels. This faulty position likewise seemingly
implies that every court-ordered custody/visitation
schedule automatically is subject to a child’s approval, a
condition previously allowed only by express provision
under extreme circumstances.
Further, allowing a parent to raise a child’s actual
or purported “wishes” as a shield against contempt liability
in such circumstances perversely places the child in
jeopardy of being (1) held in contempt; and/or (2)
adjudicated “delinquent” or “undisciplined”. It similarly
exposes the alleged contemnor- parent to possible criminal
prosecution for aiding a “delinquent” or “undisciplined”
juvenile.
(Citations omitted).
The order on appeal did not allow Father to ignore the court’s order with
impunity. And neither Hancock nor any other case grants alleged contemnors
“absolution” based simply on a child’s refusal or wishes, nor does it imply that any
“court-ordered custody/visitation schedule” is subject to a child’s approval. The
problem with Mother’s efforts to hold Father in civil contempt was not the provisions
of the Order or Hancock; it was the unique facts of this case, including Mary’s mental
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Opinion of the Court
health concerns. This is not a case of a young child simply saying “no.”
III. Conclusion
The trial court did not misapprehend the law of civil contempt, either on the
burden of proof or willfulness. The trial court’s conclusions of law are supported by
the findings of fact. We therefore affirm the order.
AFFIRMED.
Chief Judge McGEE and Judge BRYANT concur.
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