Best v. Gallup

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1148
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
R. SCOTT BEST,
Plaintiff,
v. Wake County
No. 10 CVD 1893
AMBER L. GALLUP,
Defendant.
Appeal by defendant from order entered 26 November 2012 by
Judge Lori Christian in Wake County District Court. Heard in
the Court of Appeals 19 February 2014.
No brief, for plaintiff-appellee.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Joyce L. Terres, for defendant-appellant.
HUNTER, Robert C., Judge.
Amber L. Gallup (“defendant”) appeals from an order of
contempt entered in a child custody dispute between herself and
R. Scott Best (“plaintiff”).1 On appeal, defendant argues that
the trial court erred by: (1) concluding that defendant was
being held in both civil and criminal contempt; (2) holding
1
Plaintiff did not file an appellee brief.
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defendant in contempt without competent evidence to support the
trial court’s findings of fact and without findings of fact to
support the conclusions of law; and (3) ordering purge
conditions that are contrary to law and impermissibly vague.
After careful review, we affirm the trial court’s order in
part but reverse the award of attorneys’ fees.
Background
Defendant and plaintiff were formerly involved in a
romantic relationship and provided parental care to defendant’s
niece, “Valerie.”2 Plaintiff had no biological or legal
relationship with Valerie. In 2008, defendant legally adopted
Valerie, and the parties planned to marry upon plaintiff’s
return from a contract position in Iraq. While plaintiff was in
Iraq, defendant informed him that she was ending their
relationship. However, from December 2008 to September 2009,
the parties continued to function as a family unit in some ways.
It was not until plaintiff’s return in September 2009 from his
second contract position in Iraq that defendant informed
plaintiff that she no longer wanted Valerie to call him “Daddy”
and that defendant intended no further familial relationship to
exist between Valerie and plaintiff.
2
Valerie is a pseudonym used to protect the identity of the
minor.
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Since September 2009, plaintiff and defendant have been
engaged in contentious litigation regarding which party was to
have custody over Valerie. Throughout the process of the
litigation, the trial court has entered the following orders:
(1) an order dismissing plaintiff’s motion for temporary
custody, which was reversed by this Court in Best v. Gallup, 215
N.C. App. 483, 715 S.E.2d 597 (2011), disc. rev. denied, 365
N.C. 559, 724 S.E.2d 505 (2012), and remanded for a custodial
schedule, as this Court ruled it was in the child’s best
interest to have visitation with plaintiff; (2) an order entered
19 September 2011 requiring defendant to surrender her passport
to plaintiff’s attorney and enjoining the parties from removing
Valerie from the jurisdiction of North Carolina; (3) a temporary
order entered 7 October 2011 requiring plaintiff to purchase
health insurance for Valerie and schedule therapist appointments
for her; (4) an order for temporary custody and visitation
entered 9 November 2011 setting out a visitation schedule for
plaintiff with Valerie and requiring defendant to cooperate with
plaintiff’s attempts at seeking therapy for Valerie; (5) an ex
parte order for emergency custody entered 9 December 2011
placing Valerie in temporary physical and legal custody of
plaintiff due to defendant’s attempts to illegally purchase a
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passport and transport Valerie out of the jurisdiction of the
state; (6) a full order for emergency custody entered 1 February
2012 nunc pro tunc 14 December 2011, placing physical and legal
custody of Valerie with plaintiff and granting defendant
visitation rights; and (7) an order for temporary custody
entered 17 April 2012 nunc pro tunc 14 February 2012 (“the 17
April order”) granting defendant temporary primary physical
custody and plaintiff temporary secondary physical visitation
over Valerie, with plaintiff retaining the right to make all
decisions regarding the child’s therapist. The 17 April order
further ordered that “[d]efendant shall ensure that the minor
child attends every therapy session”; “defendant shall not allow
the minor child to be present where people are saying derogatory
things about plaintiff”; “defendant shall to [sic] control the
environment and people surrounding the minor child”; and
“plaintiff and defendant shall foster a feeling of affection
between the minor child and the other party, and neither party
shall do or say anything the reasonable effect of which would be
to estrange the minor child from the other party or to impair
the child’s high regard for the other party[.]”
On 8 June 2012, plaintiff filed a motion for order to show
cause and motion for attorneys’ fees. Plaintiff argued that
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defendant willfully violated provisions of the 17 April order
by: (1) interfering with phone calls between plaintiff and
Valerie; (2) interfering with the relationship between plaintiff
and Valerie; (3) interfering with scheduled visitations; and (4)
failing to ensure that Valerie attended every therapy session.
After a hearing held 17 September 2012, the trial court entered
an order holding defendant in continuing civil contempt, setting
out sixteen conditions that must be completed to purge the
contempt, and ordering defendant to pay plaintiff’s reasonable
attorneys’ fees incurred in relation to the contempt hearing.
Defendant filed timely notice of appeal from this order.
Discussion
I. Conclusion as to Criminal Contempt
Defendant’s first argument on appeal is that the trial
court erred by concluding that she was in both civil and
criminal contempt. We hold that the trial court ordered civil,
not criminal, contempt, and we will not disturb the order on
this ground.
In contempt proceedings, the trial court’s findings of fact
are conclusive on appeal if they are supported by competent
evidence, and its conclusions of law are reviewed de novo.
Hartsell v. Hartsell, 99 N.C. App. 380, 385, 393 S.E.2d 570, 573
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(1990); Tucker v. Tucker, 197 N.C. App. 592, 594, 679 S.E.2d
141, 143 (2009).
There are two kinds of contempt — civil and criminal.
O’Briant v. O’Briant, 313 N.C. 432, 434, 329 S.E.2d 370, 372
(1985). “A major factor in determining whether contempt is
civil or criminal is the purpose for which the power is
exercised.” Id.Criminal contempt is generally applied where
the judgment is in punishment of an act
already accomplished, tending to interfere
with the administration of justice. Civil
contempt is a term applied where the
proceeding is had to preserve the rights of
private parties and to compel obedience to
orders and decrees made for the benefit of
such parties.
Id. (citation and quotation marks omitted). Pursuant to N.C.
Gen. Stat. § 5A-21(c), “[a] person who is found in civil
contempt under this Article shall not, for the same conduct, be
found in criminal contempt under Article 1 of this Chapter.”
Defendant argues that because the trial court concluded
that she was “being held in criminal contempt” while
simultaneously ordering that she be held in continuing civil
contempt, the trial court erred by holding defendant in both
civil and criminal contempt for the same conduct in violation of
section 5A-21(c). This Court has previously rejected
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defendant’s argument in Hancock v. Hancock, 122 N.C. App. 518,
522, 471 S.E.2d 415, 418 (1996), where the trial court’s
contempt order stated that the plaintiff was in “willful,
criminal contempt,” but the character of relief indicated that
the plaintiff was actually being held in civil contempt. This
Court held that “the character of the relief is dispositive of
the distinction between criminal and civil contempt, and where
the relief is imprisonment, but the contemnor may avoid or
terminate imprisonment by performing an act required by the
court, then the contempt is civil in nature.” Id. Thus, even
though the trial court specifically concluded that it was
holding the plaintiff in criminal contempt, this Court held that
the contempt was civil, and not criminal, in nature, and
therefore did not disturb the order based on the trial court’s
mistaken conclusion. Id.Here, like the contemnor in Hancock, defendant may avoid
her sentence of thirty days imprisonment by meeting the purge
conditions included in the trial court’s contempt order.
Because “the character of the relief is dispositive of the
distinction between criminal and civil contempt,” we hold that
the contempt order is actually civil in nature, and therefore
the trial court did not improperly hold defendant in criminal
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contempt, despite its legal conclusion to the contrary.
Hancock, 122 N.C. App. at 522, 471 S.E.2d at 418.
II. Findings of Fact and Conclusions of Law
Defendant next argues that the trial court’s findings of
fact are not supported by competent evidence, and the findings
of fact do not support the trial court’s conclusion that all of
the statutory elements of civil contempt were met. We disagree.
“In contempt proceedings[,] the judge's findings of fact
are conclusive on appeal when supported by any competent
evidence and are reviewable only for the purpose of passing on
their sufficiency to warrant the judgment.” Clark v. Clark, 294
N.C. 554, 571, 243 S.E.2d 129, 139 (1978). “When a trial court
sits as the trier of fact, the court's findings and judgment
will not be disturbed on the theory that the evidence does not
support the findings of fact if there is any evidence to support
the judgment, even though there may be evidence to the
contrary.” Atlantic Veneer Corp. v. Robbins, 133 N.C. App. 594,
599, 516 S.E.2d 169, 173 (1999). “The trial court's conclusions
of law drawn from the findings of fact are reviewable de novo.”
Tucker, 197 N.C. App. at 594, 679 S.E.2d at 143.
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Pursuant to N.C. Gen. Stat. § 5A-21 (2013), failure to
comply with an order of a trial court amounts to continuing
civil contempt so 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.
At a show cause hearing, the trial court is the finder of fact,
and it must enter a finding for or against the alleged contemnor
on each of the elements set out in section 5A-21. N.C. Gen.
Stat. § 5A-23(e), (f) (2013).
We hold that the trial court here properly entered findings
as to each element of section 5A-21, and each of the trial
court’s findings are supported by competent evidence.
First, after listing all of the previous orders that it had
entered in this case, concluding with the 17 April order that
plaintiff claimed defendant had failed to obey, the trial court
found as fact that “[a]t all times relevant to this hearing
these orders were still in full force and effect and the purpose
of these orders may still be served by compliance with its [sic]
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terms.” The 17 April order was the last substantive order
entered before the trial court held defendant in contempt. In
that order, the trial court included the provision that “[a]ll
other orders are to remain in effect herein except as they are
changed with the entry of this order.” Thus, the trial court
entered findings of fact as to the first two elements of section
5A-21, and there is competent evidence in the record to support
the trial court’s finding that its previous orders, specifically
including the 17 April order, were in full force and effect and
that their purposes could still be served by compliance.
Second, defendant argues that there is no competent
evidence to support the trial court’s finding that defendant’s
noncompliance with the 17 April order was willful. We disagree.
“Willfulness in a contempt action requires either a positive
action (a ‘purposeful and deliberate act’) in violation of a
court order or a stubborn refusal to obey a court order (acting
‘with knowledge and stubborn resistance’).” Hancock, 122 N.C.
App. at 525, 471 S.E.2d at 419. The trial court found as fact
that:
[S]ince the entry of the [17 April order],
[d]efendant has willfully violated [the 17
April order] by:
a. Interfering with the phone calls between
Plaintiff and minor child;
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b. Failing to foster a feeling of affection
between the minor child and the Plaintiff;
c. Failing to control the environment and
people surrounding the minor child,
specifically Defendant’s boyfriend Mr. Brian
Kiddy;
d. Interfered with Plaintiff’s scheduled
visitation;
e. Failing to ensure that the minor child
attends every therapy session.
These findings are supported by the following evidence: (1)
defendant testified at the hearing on plaintiff’s motion to show
cause that she was in control of the phone that the parties had
purchased for the purpose of the court-ordered phone calls
between plaintiff and Valerie; (2) plaintiff testified that
“more than half of the calls” that he made to Valerie went
unanswered; (3) even though he gave defendant notice in advance,
the phone call that plaintiff made on Valerie’s birthday went
unanswered; (4) due to the unanswered calls, plaintiff could not
speak with Valerie twice a week as was ordered by the trial
court; (5) plaintiff testified that Valerie’s demeanor would
change considerably after spending time with defendant and that
she would say things like “You’ve been mean to me and my mommy”
with “hostility in her voice” even though she is a “normal kid”
when staying with plaintiff; (6) when he went to Valerie’s
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therapist’s office to pick Valerie up after a scheduled
appointment, plaintiff saw defendant’s boyfriend Brian Kiddy
(“Kiddy”) videotaping Valerie and directing her to read to
plaintiff a pre-typed list of reasons why she “didn’t want to
go” with plaintiff; (7) Kiddy said “[Valerie] is a prisoner in
your home” in Valerie’s presence at the doctor’s office; (8) in
the sixth-month span between Valerie’s return to defendant’s
home and the hearing, plaintiff had one weekend visitation with
Valerie; and (9) defendant failed to bring Valerie to a
scheduled counseling appointment, and plaintiff was forced to
pay the cancellation fee for the missed visit. Thus, the trial
court had plenary evidence before it to find as fact that
defendant willfully violated the 17 April order. Given the
deference this Court affords the trial court’s findings of fact,
McAulliffe v. Wilson, 41 N.C. App. 117, 120–21, 254 S.E.2d 547,
550 (1979), we affirm these findings as supported by competent
evidence.
Finally, defendant argues that the trial court failed to
find as fact that she “is able to comply with the order or is
able to take reasonable measures that would enable [her] to
comply with the order.” N.C. Gen. Stat. § 5A-21(a)(3).
Defendant argues that because the contempt order merely states
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that she “had” the means and ability to comply with the previous
court orders, the trial court failed to meet its statutory
burden of showing that she currently has such an ability.
However, the trial court clearly stated that “[d]efendant is
able to comply with the [17 April order].” Although this is
included in the trial court’s conclusions of law, it is more
appropriately deemed a finding of fact, as it does not involve
application of legal principles. See Wiseman Mortuary, Inc. v.
Burrell, 185 N.C. App. 693, 697, 649 S.E.2d 439, 442 (2007).
Because the trial court entered findings of fact as to each
element of section 5A-21 and each finding is supported by
competent evidence, we affirm the trial court’s conclusion that
defendant violated the 17 April order and thus was properly held
in continuing civil contempt.
III. Purge Conditions
Defendant’s final argument on appeal is that the trial
court erred by ordering purge conditions that are either
unsupported by law or unrelated to compliance with the 17 April
order. We agree in part and reverse the award of attorneys’
fees.
Pursuant to N.C. Gen. Stat. § 5A-23(e), “[i]f civil
contempt is found, the judicial official must enter an order
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finding the facts constituting contempt and specifying the act
which the contemnor must take to purge himself or herself of the
contempt.” “The court’s conditions under which defendant can
purge herself of contempt cannot be vague such that it is
impossible for defendant to purge herself of contempt, and a
contemnor cannot be required to pay compensatory damages.”
Watson v. Watson, 187 N.C. App. 55, 65, 652 S.E.2d 310, 317
(2007) (citation omitted).
Defendant first argues that the purge conditions do not
specify when the purge ends and are so vague that it would be
impossible to purge herself of contempt. Defendant cites to
cases where this Court has reversed “impermissibly vague”
conditions. For example, in Scott v. Scott, 157 N.C. App. 382,
579 S.E.2d 431 (2003), this Court held that the trial court’s
order requiring the defendant to purge contempt “by not
interfering with the plaintiff’s custody of the minor children
and [] by not threatening, abusing, harassing or interfering
with the plaintiff or the plaintiff’s custody of the minor” was
“impermissibly vague” because the conditions did not “clearly
specify what the defendant can and cannot do . . . in order to
purge [himself] of the civil contempt.” Scott, 157 N.C. App. at
393-94, 579 S.E.2d at 438-39 (citations and quotation marks
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omitted). Here, each of the trial court’s purge conditions
listed a specific action that was either required or prohibited
in order for defendant to purge herself of contempt. For
example, the trial court ordered defendant to obey all previous
court orders, ensure that phone calls between plaintiff and
Valerie take place on Wednesdays and Fridays at 7:00 p.m., pay
for all of Valerie’s missed therapy sessions, and ensure that
she attends three therapy sessions with plaintiff in a timely
manner. Thus, we conclude that the trial court did not err by
entering impermissibly vague purge conditions, because defendant
can take specific action as specified in the trial court’s order
to purge herself of contempt.
Next, defendant contends that the purge conditions
improperly modified the previous custody award. Defendant
relies on Kennedy v. Kennedy, 107 N.C. App. 695, 703, 421 S.E.2d
795, 799 (1992), where this Court vacated a contempt order that
changed custody of a child from joint custody to sole custody
without the proper motion to modify custody required by N.C.
Gen. Stat. § 50-13.7 (2013). Here, the trial court did not
modify custody via the purge conditions. Primary custody
remained with defendant both before and after the contempt
order. Rather, the contempt order altered the previous orders’
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phone call requirements between Valerie and plaintiff and set
out more specific times for those calls, among other things
unrelated to custody. Because the trial court did not modify
custody, Kennedy is inapposite, and defendant’s argument is
overruled.
Defendant also argues that the trial court was not
authorized to require payment of missed therapy appointments as
a purge condition. This Court has established that when relief
imposed in a contempt order is remedial rather than punitive, it
is civil in nature and allowable in a civil contempt order. See
Bishop v. Bishop, 90 N.C. App. 499, 504, 369 S.E.2d 106, 108-09
(1988) (citation omitted). “If the relief provided is a fine,
it is remedial when it is paid to the complainant, and punitive
when it is paid to the court[.]” Id. Accordingly, since
defendant was ordered to repay the cancellation fee to plaintiff
that was incurred as a result of defendant’s failure to ensure
Valerie attended all therapy sessions, in contravention of a
previous court order, we hold that this was a permissible
remedial remedy.
Finally, defendant argues that the trial court erroneously
ordered defendant to pay attorneys’ fees as a purge condition.
We agree. A trial court may not award attorneys’ fees unless
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specifically authorized by statute. United Artists Records,
Inc. v. Eastern Tape Corp., 18 N.C. App. 183, 187, 196 S.E.2d
598, 601-02, cert. denied, 283 N.C. 666, 197 S.E.2d 880 (1973).
This Court has previously held that attorneys’ fees may be
awarded under N.C. Gen. Stat. § 50-13.6 to parties who
successfully pursue a motion for contempt in child support and
custody actions. Wiggins v. Bright, 198 N.C. App. 692, 695, 679
S.E.2d 874, 876 (2009). However, the trial court is required to
enter two findings of fact before awarding attorneys’ fees in
such cases: (1) the party to whom the attorneys’ fees are
awarded is acting in good faith, and (2) that party has
insufficient means to defray the expense of the suit. Id. at
696, 679 S.E.2d at 876. Here, the trial court made a factual
finding that plaintiff was acting in good faith, but failed to
enter a finding that he could not defray the expense of the
suit. Therefore, because the trial court failed to enter the
requisite findings of fact to support its award of attorneys’
fees, we reverse that portion of the contempt order.
Conclusion
For the foregoing reasons, we affirm the trial court’s
order holding defendant in civil contempt and specifying
conditions that would allow defendant to purge this contempt,
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but we reverse the trial court’s award of attorneys’ fees
because it failed to enter the required findings of fact to
support the award.
AFFIRMED IN PART; REVERSED IN PART.
Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).