McKinney v. McKinneyÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-884
Filed: 16 May 2017
Guilford County, No. 02 CVD 8173
GINGER A. McKINNEY, NOW GINGER L. SUTPHIN, Plaintiff,
v.
JOSEPH A. McKINNEY, JR., Defendant.
Appeal by Defendant from orders entered 25 September 2014 and 22 March
2016 by Judge Teresa H. Vincent in Guilford County District Court. Heard in the
Court of Appeals 8 February 2017.
Wyatt Early Harris Wheeler, LLP, by A. Doyle Early, Jr., and Arlene M. Zipp,
for the Plaintiff-Appellee.
Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson and K. Edward
Greene, for the Defendant-Appellant.
DILLON, Judge.
Joseph A. McKinney, Jr., (“Father”) appeals from two orders of the district
court entered during the course of a dispute between Father and Ginger A. McKinney
(Sutphin) (“Mother”) regarding the custody of their adolescent son, Max.1
Specifically, Father appeals (1) the district court’s September 2015 order finding him
in civil and criminal contempt (the “Contempt Order”), and (2) the district court’s
1 A pseudonym.
MCKINNEY V. MCKINNEY
Opinion of the Court
March 2016 order (the “Fee Award Order”) denying his motion for relief from
judgment or new trial and awarding attorney’s fees to Mother.
I. Background
Mother and Father separated in 2002 when Max was two years old. For a
period of time, the parties shared custody of Max. In 2009, when Max was ten years
old, the parties entered into a consent order (the “2009 Custody Order”) which
awarded primary physical custody of Max to Mother and provided a specific schedule
for Father’s visitation.
In early 2014, Max expressed a strong desire to move from Greensboro, where
he resided with Mother, to live with Father in Wilmington. In May 2014, Father filed
a motion to modify custody with the district court.
In June 2014, before Father’s motion to modify custody was heard, Max left
Greensboro on his own and traveled to Wilmington to stay with Father. In July 2014,
the parties entered into a consent order (the “2014 Consent Order”) providing that
Max would return to Greensboro.
However, in August 2014, Max again traveled on his own to Wilmington,
staying for approximately one month with Father and attending high school in
Wilmington. Mother then filed the second show cause motion based on Father’s
failure to return Max to Greensboro.
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Opinion of the Court
A hearing was held during the week of 8 September 2014 during which the
district court orally rendered its decision, finding Father in criminal and civil
contempt for failure to comply with the 2009 Custody Order and the 2014 Consent
Order.
On 13 September 2014, Max returned to live with Mother in Greensboro.
On 25 September 2014, the district court entered a written order (the
“Contempt Order”), reducing its prior oral decision finding Father in civil and
criminal contempt to writing.
In December 2014, the district court entered an order on Father’s custody
modification motion, awarding Father primary physical custody of Max.
On 22 March 2016, the district court entered the Fee Award Order awarding
Mother approximately $51,100 for attorney’s fees she incurred in prosecuting her
contempt motion.
II. Analysis
Father appeals the Contempt Order finding him in civil and criminal contempt
and the Fee Award Order awarding Mother $51,100.
Regarding the Contempt Order, we dismiss the appeal with respect to the
portion finding Father in criminal contempt because that appeal must first be taken
to superior court. Further, we vacate the Contempt Order to the extent that the
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Opinion of the Court
district court found Father in civil contempt based on the fact that Father had already
returned Max prior to the entry of the Order, thus satisfying the “purge” language.
Regarding the Fee Award Order, we dismiss the appeal to the extent the award
is based on the criminal contempt finding. We reverse and remand to the extent the
award is based on the civil contempt finding. We address our holdings in greater
detail below.
A. Contempt Order
1. Criminal Contempt
In its Contempt Order, the district court found Father in criminal contempt for
“failure to communicate with [] Mother” in August 2014 when Max ran away to
Wilmington for the second time. The district court sentenced Father to thirty (30)
days in jail, but suspended the sentence for twelve (12) months based on certain
conditions.2
In support of its order of criminal contempt, the district court essentially found
that (1) Max ran away to Wilmington on 13 August 2014 after Max had a
disagreement with Mother; (2) Mother sent text messages to Father regarding Max’s
2 We note that the district court provided as one of the conditions of the suspended sentence
that “the remaining balance of the sentence can be purged upon the return of custody to the Plaintiff
Mother at any time prior to the time the full 30-day sentence has been served.” This condition is the
type that would be more appropriate for a finding of civil contempt. However, we conclude that the
district court’s finding of contempt was criminal in nature based on other conditions that the district
court imposed. The district court imposed the sentence as a means to punish Father for what it
determined to be a violation of the 2009 Custody Order that occurred from August 13-17, when Father
failed to communicate with Mother.
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Opinion of the Court
welfare; (3) Father did not respond to Mother’s inquiries until 17 August 2014; (4)
Father’s failure to respond to Mother violated a provision in the 2009 Custody Order
that “[t]he parties shall confer with each other on all important matters pertaining
to the health, welfare, education, and upbringing of the minor child with a view to
arriving at a harmonious policy calculated to promote the best interest of the minor
child”; and (5) Father’s violation was willful, deliberate, and stubborn.
Our Supreme Court held in a per curiam opinion adopting a dissent from our
Court that a finding of criminal contempt by the district court should be appealed to
superior court and not to the Court of Appeals. Reynolds v. Reynolds, 356 N.C. 287,
569 S.E.2d 645 (2002); see also Hancock v. Hancock, 122 N.C. App. 518, 522, 471
S.E.2d 415, 417 (1996) (“Criminal contempt orders are properly appealed from district
court to the superior court, not to the Court of Appeals.”). And our General Assembly
has directed that an “appeal from a finding of contempt by a judicial official inferior
to a superior court judge is by hearing de novo before a superior court judge.” N.C.
Gen. Stat. § 5A-17 (2015). Accordingly, we conclude that Father’s appeal of that
portion of the Contempt Order finding him in criminal contempt is not properly before
us.3 Therefore, we dismiss this portion of Father’s appeal.
2. Civil Contempt
3 It appears from the record that Father did, in fact, appeal the criminal contempt order to
superior court on 15 September 2014. However, the record does not include any documentation of the
outcome of that appeal and Father has not appealed from any order of the superior court.
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Opinion of the Court
On 10 September 2014, the district court rendered its oral order finding Father
in civil contempt for “failing to return the child pursuant to the [2009 Custody Order]
and the [2014 Consent Order].” On 13 September, before the district court entered
its written Contempt order, Max returned to live with Mother in Greensboro. On 25
September, the district court entered the written Contempt Order finding Father in
civil contempt and stating that Father could “purge himself of contempt by having
[Max] delivered to the Plaintiff Mother[.]”
Our Court has held that a district court “does not have the authority to impose
civil contempt after an individual has complied with a court order, even if the
compliance occurs after the party is served with a motion to show cause why he should
not be held in contempt of court.” Ruth v. Ruth, 158 N.C. App. 123, 126, 579 S.E.2d
909, 912 (2003).
Here, the district court’s order became effective on 25 September when the
district court reduced its order to writing and the order was filed with the clerk. See
N.C. R. Civ. P., Rule 58 (“[A] judgment is entered when it is reduced to writing, signed
by the judge, and filed with the clerk of court.”); see also Olson v. McMillian, 144 N.C.
App. 615, 619, 548 S.E.2d 571, 574 (2001) (“When a trial court’s oral order is not
reduced to writing, it is non-existent[.]” (internal marks omitted)). Because Father
had already returned Max to Mother prior to 25 September, the district court lacked
the authority to find Father in civil contempt for failing to return Max. Therefore,
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Opinion of the Court
we vacate the Contempt Order to the extent the district court found Father in civil
contempt.
B. Fee Award Order
In March 2016, the district court ordered Father to pay Mother $51,100 for
attorneys’ fees incurred in connection with Mother’s prosecution of the Contempt
Order. To the extent that the Fee Award Order relates to the finding of criminal
contempt, we dismiss the appeal. The appeal of the criminal contempt order and
related issues lies with the superior court as part of that court’s review of the criminal
contempt finding.
We conclude, though, that Father’s appeal of the portion of the Fee Award
Order relating to the civil contempt finding is properly before us. We note that we
have vacated the district court’s finding that Father was in civil contempt based on
the fact that he purged himself of contempt prior to the Contempt Order being
entered. However, our Court has held that the moving party may still recover
attorneys’ fees even if the other party has purged himself prior to the entry of an
order finding him in civil contempt:
As a general rule, attorney’s fees in a civil contempt action
are not available unless the moving party prevails.
Nonetheless, in the limited situation where contempt fails
because the alleged contemnor complies with the previous
orders after the motion to show cause is issued and prior to
the contempt hearing, an award of attorney’s fees is proper.
Ruth, 158 N.C. App. at 127, 579 S.E.2d at 912.
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Opinion of the Court
Here, the district court found Father in civil contempt for his failure to comply
with the 2009 Custody Order and the 2014 Consent Order based on Max running
away to live with Father for approximately a month in August 2014. The district
court’s findings suggest, in part, that Max ran away from Mother on his own and
arrived at Father’s house in Wilmington on 14 August; Father lives a wealthy lifestyle
and Max likes the way he lives when he is with him. The district court further found
that Father never told Max to run away from Mother; and Father “enticed” Max to
stay with him because of Father’s lifestyle. We hold that several of the findings made
by the district court in support of its civil contempt order are erroneous.
For instance, the district court found that “[t]here was no evidence presented
that the Defendant Father instructed [Max] that he had to abide by the [custody
orders].” However, Father stated several times during his testimony that he told Max
that Max needed to go back home to Mother. The district court also found that
“[t]here was no evidence presented that the Defendant Father secured transportation
after August 13, 2014, and told the child to get in the car or plane.” But Father did
state that he was willing to provide transportation but that Max was simply not
willing to go. It was certainly within the district court’s discretion to find that
Father’s testimony was not credible, but the district court did not state that “there
was no credible evidence . . . .” Therefore, these findings are not supported by the
evidence.
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Opinion of the Court
Further, much of the district court’s reasoning in finding Father in civil
contempt runs contra to our decision in Hancock v. Hancock, 122 N.C. App. 518, 417
S.E.2d 415 (1996). In Hancock, we held that a parent was not in civil contempt of a
custody order where the mother encouraged her ten-year old child to go on scheduled
visits with the father, that she did not force the child to stay or discourage the child
from going with the father, that the child refused to go, and that the mother otherwise
did not use physical force or a threat of punishment to make the child go with the
father. Id. at 525, 471 S.E.2d at 419. Based on these findings, we reversed an order
finding the mother in civil contempt, stating as follows:
We find no evidence that [the mother] willfully refused to
allow the child to visit with the [father]. Nor do we agree
with the trial court’s finding that “[the mother’s] inaction
in not requiring the minor child to visit with [the father]
amounts to contempt because there is no evidence [the
mother] resisted [the father’s]” visitation or otherwise
refused to obey the visitation order. She simply did not
physically force the child to go. Absent any evidence she
encouraged [the child’s] refusal to go or attempted in any
way to prevent the visitation, her actions or inactions, even
if improper, do not rise to the level of contempt.
Id. at 525-26, 471 S.E.2d at 420-21.
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
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Opinion of the Court
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. See id. 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.
Accordingly, we reverse the district court’s order awarding attorney’s fees
incurred in relation to the civil contempt finding. On remand, the district court is
free to consider evidence and enter findings regarding whether Father acted willfully
in refusing to allow Max to visit with Mother.
III. Conclusion
We dismiss the appeal from the finding of criminal contempt and dismiss the
appeal from the portion of the Fee Award Order relating to the finding of criminal
contempt. We vacate the finding of civil contempt and reverse the portion of the Fee
Award Order relating to the finding of civil contempt. This matter is remanded for
action consistent with this opinion.
DISMISSED IN PART, VACATED IN PART, AND REMANDED.
Judges ELMORE and ZACHARY concur.
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