D'Alessandro v. D'Alessandro

NO. COA14-58
NO. COA14-68
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
CHRISTINA D’ALESSANDRO,
Plaintiff,
v. Wake County
Nos. 11 CVD 1280, 11 CVD 9780
ADAM D’ALESSANDRO,
Defendant.
Appeal by defendant from Orders entered 2 July 2013 and 12
July 2013 by Judge Lori G. Christian in District Court, Wake
County. Heard in the Court of Appeals 21 May 2014.
Lane & Lane, PLLC by Freddie Lane, Jr. and Melissa C. Rush-
Lane, for defendant-appellant.
No appellee brief filed.
STROUD, Judge.
Defendant appeals from two orders, one addressing motions
by both parties for contempt as to a child custody order and
defendant’s motion to modify custody, and the other holding
defendant in civil contempt for failure to pay child support as
ordered. For the reasons stated below, we reverse the orders
holding defendant in civil contempt due to the trial court’s
failure to inquire as to defendant’s desire for counsel and his
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ability to pay for legal representation. We remand the order as
to modification of custody for additional findings of fact.
I. Background
The parties were married on 27 May 2000 and two children
were born to their marriage—Madeline1, born in 2002, and Cathy,
born in 2004. Plaintiff also has a son, Andy, born in 1997 from
a prior relationship, who was not adopted by defendant. On 28
January 2011, plaintiff filed a lawsuit in Wake County District
Court, File No. 11 CVD 1280, seeking temporary and permanent
custody as well as an emergency custody order of the two
children of the marriage. On 14 February 2011, defendant filed
his answer and counterclaims to the custody complaint, seeking
custody of the two children of the marriage and also including a
counterclaim for custody of Andy. On 13 May 2011, the trial
court entered an order for temporary custody, granting the
parties joint legal custody of the two children of the marriage,
with primary physical custody to plaintiff, and granting sole
legal custody of Andy to plaintiff.
On 27 June 2011, Wake County Child Support Enforcement
filed a complaint in Wake County District Court, File No. 11 CVD
9780, for child support on behalf of Christina D’Alessandro,
1
We will use pseudonyms to protect the privacy of the minor
children.
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seeking to establish child support for the two children of the
marriage. A child support order (“child support order”) was
entered on 2 December 2011. This order found that defendant had
voluntarily left his employment with Advanced Irrigation Repair,
where he was earning $2600.00 per month, and that he had 20
years of experience in landscape irrigation. The trial court
further found that defendant had not provided any support to
plaintiff since July 2011. The child support order set
defendant’s child support obligation in the amount of $607.00
per month, effective 1 July 2011, and established child support
arrears owed by defendant of $3035.00, to be paid at the rate of
$13.00 per month.
During 2011, the parties, mostly defendant, filed numerous
motions regarding custody disputes—defendant filed at least
eleven—but we will not address the details of these motions and
resulting orders as they are not relevant to the issues in this
appeal. Ultimately, on 26 April 2012, the trial court entered
an order for permanent custody in Wake County File No. 11 CVD
1280 which granted sole legal and physical custody of all three
children to plaintiff. However, the trial court also found that
defendant was a “de facto” parent of Andy and that plaintiff had
acted in a manner inconsistent with her constitutionally
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protected rights as a parent in creating a family unit with
defendant and allowing defendant to share decision-making
responsibilities as a parent of Andy, and granted defendant
visitation with Andy.
The trial court made extensive findings as to defendant’s
animosity toward plaintiff, his controlling behaviors, his anger
and inability to communicate with plaintiff, his disparaging
comments about plaintiff to the children, his inappropriate
discussions with the children about the plaintiff and the
difficulties that the extensive conflict between the parents was
causing the children. This order set out a detailed visitation
schedule, required the parties to communicate through Our Family
Wizard for the next 18 months, to have Andy and Cathy engage in
therapy, and to participate in the children’s therapy as
recommended by the therapist.
Some other relevant requirements of the custody order were
for defendant to pay half of “uninsured medical and counseling
expenses for the minor children;” to register for an anger
management class within 30 days; to pay plaintiff’s attorney
fees in the amount of $5,000.00, to be paid at a rate of $100.00
per month starting on 1 May 2012; and not to remove the
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children from school without written consent from plaintiff
except for regular visitation.
On 27 August 2012, the trial court entered an order
granting plaintiff’s motion to intervene as plaintiff in the
child support action and removing the matter from the “IV-D
docket and transfer[ing] to the courtroom of the assigned family
court District Court Judge for all further hearings.” This
order also released the attorneys for Wake County Human Services
Child Support Enforcement as attorneys of record.
During 2012, both before and after entry of the child
support order and custody order noted above, the parties filed
various motions and several orders were entered, most of which
are not relevant for the purposes of this appeal. Overall, these
motions and orders demonstrate that the parties continued to
have many disputes regarding visitation, and defendant
persistently continued to fail to pay child support as ordered.
Of these numerous motions, we will discuss only the motions
which were addressed in the trial court’s orders now on appeal
and which are relevant to the issues raised on appeal2:
2
The orders disposed of the other pending motions but neither
party has challenged the trial court’s disposition of those
motions on appeal.
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1. On 7 May 2012, plaintiff filed a motion for order to
show cause in File No. 11 CVD 1280 as to defendant’s failure to
pay $100 per month towards her attorney fees and to abide by the
child custody order in various ways.
2. On or about 2 November 20123, defendant served upon
plaintiff a motion pro se in file No. 11 CVD 1280 to modify
child custody and visitation and child support, based on
allegations regarding plaintiff’s remarriage, claims of her
emotional and physical neglect of the children, and that
plaintiff had “commited (sic) fraud to obtain the current
order.”
3. On 10 May 2013, plaintiff filed a motion for an order
to show cause in File No. 11 CVD 9780 as to defendant’s failure
to pay child support in violation of the child support order,
alleging that he had paid only $26.00 since the 20 February 2013
hearing.
All of these motions, filed in both court files, were heard
by the trial court on 20 February 2013. Plaintiff was
represented by counsel, and defendant appeared pro se. The trial
court entered two orders as a result of this hearing:
3
Defendant’s motion for modification apparently was not filed
with the trial court prior to the hearing but was served upon
plaintiff’s counsel and this motion was heard by the consent of
the parties.
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1. On 2 July 2013, in file No. 11 CVD 1280, the trial
court entered an order on civil contempt and on defendant’s
motion to modify custody which allowed defendant’s motion to
modify custody but ordered only that defendant would no longer
have the same visitation with Andy as the other two children and
that Andy would be permitted to initiate visitation in the
future; held defendant in civil contempt as to his failure to
comply with the custody order; and held that defendant would be
required to pay plaintiff’s attorney’s fees as set forth in the
order in File No. 11 CVD 9780.
2. On 12 July 2013, in File No. 11 CVD 9780, the trial
court held defendant in civil contempt for failure to pay child
support in the amount of $10,933.00; awarded plaintiff
$10,000.00 in attorney fees, to be paid at a rate of $1000.00
per month; and remanded defendant into custody of the Sheriff of
Wake County, to remain until paying $10,000.00 to purge himself
of contempt, which sum would be first applied to child support
arrearages and then to attorney’s fees.
Defendant timely filed notice of appeal from both orders.
Both appeals were heard by this panel on the same hearing date.
Although the trial court did not formally consolidate the two
actions, both were heard together and as a practical matter,
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were treated as consolidated. We have therefore consolidated
these cases for purposes of the appeals and issue one opinion
addressing both.
II. Contempt
Defendant raises the issue of the trial court’s failure to
inquire as to his desire for appointed counsel when it
considered plaintiff’s motions for contempt. In one order,
defendant was held in civil contempt for his failure to comply
with various provisions of the custody order, including his
failure to pay for uninsured counseling expenses and to pay the
attorney’s fees at the rate of $100.00 per month, and in the
other, he was held in civil contempt for failure to pay child
support as required by the child support order. The trial
court, in both cases,4 “immediately remanded [defendant] into the
custody of the Wake County Sheriff’s Department,” to “remain in
custody until such time as he has purged his contempt by paying
$10,000.00.”
Where a defendant faces the potential of incarceration if
held in contempt, the trial court must inquire into the
4
The trial court actually included this provision in the order
entered in File No. 11 CVD 9780, but ordered in File No. 11 CVD
1280 that “Defendant is held in civil contempt under the terms
and conditions set forth in the contempt order in Wake County
File No. 11 CVD 9780.”
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defendant’s desire for and ability to pay for counsel to
represent him as to the contempt issues. King v. King, 144 N.C.
App. 391, 394-95, 547 S.E.2d 846, 848 (2001). A defendant may
waive his right to representation but the record must reflect
that he was advised of this right and he must voluntarily waive
it. See id. This requirement has been long established by both
the United States Supreme Court and the North Carolina Supreme
Court:
In light of the Supreme Court’s opinion in
Lassiter, we now hold that principles of due
process embodied in the Fourteenth Amendment
require that, absent the appointment of
counsel, indigent civil contemnors may not
be incarcerated for failure to pay child
support arrearages. . . .
At the outset of a civil contempt proceeding
for nonsupport, the trial court should
assess the likelihood that the defendant may
be incarcerated. If the court determines
that the defendant may be incarcerated as a
result of the proceeding, the trial court
should, in the interest of judicial economy,
inquire into the defendant’s desire to be
represented by counsel and into his ability
to pay for legal representation. If such a
defendant wishes representation but is
unable due to his indigence to pay for such
representation, the trial court must appoint
counsel to represent him.
McBride v. McBride, 334 N.C. 124, 131-32, 431 S.E.2d 14, 19
(1993).
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At the hearing on 20 February 2013, when all of the pending
motions were heard, defendant appeared pro se. There was
obviously a likelihood that defendant may be incarcerated if
held in contempt, as he had been previously held in contempt and
incarcerated after a prior motion, and on 20 February 2013
defendant had to respond to two show cause orders, one alleging
violation of the custody order and one alleging violation of the
child support order. But there is no indication in the record
that defendant was advised of his right to have counsel
appointed to represent him on the contempt motions at this
hearing. The only mention of the issue appears in the
transcript, after a long colloquy during which the trial court
identified all of the various pending motions filed by both
parties which were to be heard that day:
THE COURT: Okay. Now, I’m moving on to your
motions, Mr. Williams.
MR. WILLIAMS: Yes, Your Honor. May 7th, 2012
motion to show cause. [Pause.]
MR. WILLIAMS: And that should’ve been—— an
order was issued in that as well.
THE COURT: And Mr. D’Alessandro has signed
waivers, I’m assuming.
MR. WILLIAMS: This is the one where he was,
Your Honor, wanted for arrest. I’m assuming
he has.
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THE COURT: Do you have a copy of that order?
Of that order to show cause?
MR. WILLIAMS: I’ve got the motion.
Unfortunately, it appears from our record that Mr.
Williams’ assumption—that defendant had signed waivers—was
unfounded. Perhaps he had signed waivers at other hearing dates,
as this matter had been rescheduled several times, but nothing
in the record in either File No. 11 CVD 1280 nor File No. 11 CVD
9780 shows that he waived his right to counsel for the hearing
on 20 February 2013. And it would appear that had the trial
court inquired, defendant might have been found, at least
potentially, to be indigent and thus entitled to court-appointed
counsel, as he claimed to be unable to pay the sums ordered by
the trial court. Cf. Young v. Young, ___ N.C. App. ___, ___, 736
S.E.2d 538, 544 (2012) (noting that a defendant must show that
he is indigent to be entitled to court-appointed counsel).
Throughout the hearing, defendant steadfastly insisted he could
not afford to pay plaintiff:
[Defendant]: . . . . I can’t financially
comply. I can’t be in compliance. As much as
I try to honor, you know, every order out of
the court, physically it’s impossible to
live, eat, and pay all that is required.
. . . .
[Defendant]: That is all cumulative total of
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the 115, the 200 percent of my income that
is tied up in these orders that is——where do
I start? At the point of separation, we were
$750,000 in debt, and I have some paperwork
in here to verify that.
[Court]: How much were you in debt?
[Defendant]: About $750,000, Your Honor.
[Court]: That’s marital debt?
[Defendant]: That was both marital and
business. It was all together.
[Court]: Okay. And?
[Defendant]: She has since gone through the
bankruptcy process. But quite honestly, I
can’t even afford to file for bankruptcy.
Business bankruptcy costs about $30,000 in
attorneys fees. And a personal bankruptcy,
Chapter 13, would be at least $3,000.
We must therefore “conclude that the trial court erred by
ordering that the defendant be incarcerated for civil contempt
without the benefit of appointed counsel to represent him at the
hearing resulting in his incarceration.” McBride, 334 N.C. at
132, 431 S.E.2d at 20. Accordingly, we reverse both orders to
the extent that they hold defendant in contempt of the custody
order and the child support order.
III. Modification of custody
Although the orders must be reversed as to the contempt
provisions as discussed above, defendant did not have any right
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to appointment of counsel to represent him regarding his
November 2012 motion to modify the custody order, so we will
address his arguments regarding the provisions of the 2 July
2013 order as to modification of custody. The trial court’s
order of 2 July 2013 addresses modification of custody to a very
limited extent. The only findings of fact which could be
considered as relevant to the modification issue5 are as follows:
7. The minor child [Andy] did not exercise
visitation with Defendant for several
months.
8. The Court spoke with [Andy] and finds
that
a. the minor child loves the Defendant
but feels that the Defendant has
purposefully rejected him as
demonstrated by Defendant’s
unwillingness to hug the child prior to
today’s hearing;
b. the minor does now and always has
considered Defendant to be his father
but considers prior actions of
Defendant to be further evidence that
Defendant has rejected him, including
Defendant’s earlier choice not to visit
with the child.
9. The custody order was violated in that
[Andy] did not visit with the Defendant;
5
These findings seem mostly directed to address the defendant’s
motion to hold plaintiff in contempt as to denial of visitation
with Andy, an issue defendant has not raised on appeal. But as
they address some of the visitation issues, they could be
considered as relevant to the motion to modify custody.
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however, the lack of visitation was not
willful on the part of the Plaintiff because
the minor child refused to go based on his
belief that Defendant had rejected him.
10. The parties agree at the hearing that
there has been a substantial change in
circumstances affecting the minor child
[Andy] such that a modification of his
custody and visitation is warranted.
11. It is in the best interest of the minor
child that he have some contact with the
Defendant that is initiated by the Defendant
but that visitation with Defendant should be
modified from the prior order.
Based on these findings of fact and the conclusion of law
that “[t]here has been a substantial change in circumstances
affecting the welfare of the minor child [Andy] as to warrant a
modification of his custody and visitation[,]” the trial court
ordered as follows:
3. The Defendant’s motion to modify child
custody is granted as to the visitation
provision relating to [Andy] as follows:
a. Defendant shall have no further
visitation obligation in regards to the
minor child, [Andy,] unless initiated
by [Andy];
b. Defendant shall initiate a dinner
visit with the minor child within 1
month of this hearing (February 20,
2013);
c. Defendant shall not make any
negative comments to the minor child
regarding Plaintiff or her spouse.
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Defendant shall not discuss custody or
custody related matters with [Andy].
On appeal from this order, defendant argues that the trial
court failed to make findings of fact and conclusions of law
fully addressing his motion to modify custody. Although there
were several motions heard on 20 February 2013, defendant
correctly points out that his evidence as to the motion to
modify custody took up most of the time devoted to the hearing.
In fact, when the trial court was reviewing the various pending
motions and determining how to proceed to hear them all in an
orderly manner, plaintiff’s counsel agreed that defendant should
present his evidence first, stating that “I believe the longer
hearing is going to be his motion to modify custody, and that’s
his burden.”
Defendant alleged several reasons to modify custody for all
three children in his motion, and his evidence addressed these
reasons as to all three children. Specifically, defendant
presented evidence regarding his claims that plaintiff had
“emotionally and physically neglected” the three children, not
just Andy. His motion requested “51% legal and physical”
custody of all three children, and at the hearing, he clarified
that he was asking to be granted primary physical and legal
custody of all three children. Defendant argues that “the court
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order is devoid of any findings, conclusions or decree with
respect to” the two biological children of the parties and that
the trial court “should have ruled upon whether there was
sufficient evidence to warrant modification of the permanent
custody order with respect to the younger children.”
Defendant does not challenge the limited findings of fact
and conclusion of law as to the modification of the custody
order regarding Andy, but argues that the trial court simply
failed to address his motion for modification of custody as to
the two younger biological children of the marriage, and he is
correct. The order is devoid of any mention of the fact that he
sought complete modification of the custodial arrangements for
all three children. Thus, we cannot review the trial court’s
determinations as to the other two children.
Our Supreme Court has explained why it is
essential for trial courts to include a
specific finding of a substantial change in
circumstances affecting the welfare of the
child prior to modifying a custody order:
A decree of custody is entitled to such
stability as would end the vicious
litigation so often accompanying such
contests, unless it be found that some
change of circumstances has occurred
affecting the welfare of the child so as to
require modification of the order. To hold
otherwise would invite constant litigation
by a dissatisfied party so as to keep the
involved child constantly torn between
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parents and in a resulting state of turmoil
and insecurity. This in itself would destroy
the paramount aim of the court, that is,
that the welfare of the child be promoted
and subserved.
Requiring this specific finding also ensures
the modification is truly necessary to make
a custody order conform to changed
conditions when they occur. Finally, such
findings are required in order for the
appellate court to determine whether the
trial court gave due regard to the factors
expressly listed in N.C. Gen. Stat. § 50–
13.7.
Davis v. Davis, ___ N.C. App. ___, ___, 748 S.E.2d 594, 599
(2013) (citations and quotation marks omitted).
It would appear from the lack of findings of fact and
conclusions of law as to the two biological children that the
trial court did not find defendant’s requests to be supported by
the facts, the law, or perhaps both, but still the trial court
needs to make findings of fact so that it is clear that
defendant’s motion to modify custody was addressed in full.
The need for this type of finding is even greater in a case
such as this, which has been protracted and contentious, to the
detriment of all three children. The absence of these findings
of fact and conclusions of law serves to “invite constant
litigation by a dissatisfied party so as to keep the involved
child[ren] constantly torn between parents and in a resulting
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state of turmoil and insecurity.” Id. We must therefore remand
the order concerning modification of custody to the trial court
to make additional findings of fact and conclusions of law
addressing the denial of defendant’s motion to modify custody as
to the two younger children. The trial court need not make any
additional findings as to Andy, as the order modified visitation
as to Andy and defendant has not challenged this modification on
appeal.
IV. Conclusion
For the reasons stated above, the orders of 2 July 2013 and
12 July 2013 are reversed as to any provisions holding defendant
in civil contempt of the trial court’s prior orders, and the
order of 2 July 2013 is remanded to the trial court for
additional findings of fact and conclusions of law addressing
its denial of defendant’s motion for modification of custody of
the two younger children.
12 July 2013 Order in 11 CVD 9780: REVERSED.
2 July 2013 Order in 11 CVD 1280: REVERSED in
part, REMANDED in part.
Judges STEPHENS and MCCULLOUGH concur.