Summerville v. Summerville , 259 N.C. App. 228 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-690
Filed: 17 April 2018
Chatham County, No. 11 CVD 751
KIMBERLY SUMMERVILLE, Plaintiff,
v.
MARK KENNETH SUMMERVILLE, Defendant.
Appeal by defendant from orders entered 16 December 2016, 20 December
2016, and 30 December 2016 by Judge Lunsford Long in Chatham County District
Court. Heard in the Court of Appeals 8 January 2018.
Collins Family Law Group, by Rebecca K. Watts, for plaintiff-appellee.
Ellis Family Law, P.L.L.C., by Gray Ellis and Jillian E. Mack, for defendant-
appellant.
DAVIS, Judge.
This appeal raises several issues in connection with the divorce of Kimberly
and Mark Kenneth Summerville. The questions specifically before us are whether
the trial court erred by (1) modifying the parties’ child custody arrangement despite
the absence of sufficient evidence of a substantial change in circumstances; (2)
making a sua sponte modification of Mr. Summerville’s existing child support award;
(3) holding Mr. Summerville in contempt for his violations of prior court orders; and
(4) awarding attorneys’ fees to Ms. Summerville without making necessary findings
SUMMERVILLE V. SUMMERVILLE
Opinion of the Court
that the fees awarded were reasonable. After a thorough review of the record and
applicable law, we affirm in part, vacate in part, and dismiss this appeal in part.
Factual and Procedural Background
The parties were married on 30 June 2001. One child (“Aaron”)1 was born of
the marriage. Aaron was diagnosed with autism when he was in the first grade.
The parties separated on 15 August 2011 and divorced on 26 August 2013. On
12 August 2013, the parties entered into a consent custody order (the “12 August 2013
Order”) in which they agreed to joint legal custody and equal physical custody of
Aaron.
On 10 February 2015, Ms. Summerville filed a motion in the cause in Chatham
County District Court asserting that Mr. Summerville was in violation of the 12
August 2013 Order because he had not provided appropriate medicine and therapy
for Aaron. In her motion, she requested that Mr. Summerville be held in contempt
for his violations of the order.
A hearing was held on 3 March 2015 before the Honorable James T. Bryan, III,
and an order captioned “Temporary Custody, Visitation Order, and Contempt Order”
(the “1 May 2015 Order”) was subsequently entered. In this order, Judge Bryan found
that Mr. Summerville had failed to provide prescription medicine for Aaron,
1 A pseudonym is used throughout this opinion to protect the privacy of the minor child and
for ease of reading.
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repeatedly questioned the therapeutic approach taken by Aaron’s therapist, and
failed to bring Aaron to therapy 43% of the time.
Based on his findings, Judge Bryan determined a substantial change in
circumstances had occurred that warranted modification of the 12 August 2013
Order, and he awarded Ms. Summerville “sole legal medical decision-making
[authority] in the area of any medical care for the minor child . . . .” The parties
retained joint legal custody, but the court modified the parties’ physical custodial
schedule. On 19 June 2015, the parties signed a consent order in which they agreed
that Mr. Summerville would pay 60% of Ms. Summerville’s attorneys’ fees related to
the filing of her 10 February 2015 motion.
On 4 March 2016, Mr. Summerville filed a motion to modify custody, alleging
in pertinent part that Aaron had been “encouraged to defy [Mr. Summerville’s]
authority while . . . in [his] care” and “has spent an increasing amount of time out of
the classroom due to the interventions by [Ms. Summerville] . . . .” Mr. Summerville’s
motion requested that the trial court grant him primary physical and sole legal
custody.
On 14 March 2016, Ms. Summerville filed a motion in the cause and a motion
for a show cause order. In her motion, she requested that the trial court hold Mr.
Summerville in contempt based on his repeated failures to comply with the court’s
orders. She alleged, in part, that Mr. Summerville had failed to give Aaron his
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medications, discouraged Aaron from using coping mechanisms recommended by his
therapist, and refused to allow Aaron to call Ms. Summerville while in Mr.
Summerville’s care. Her motion requested that the court grant her primary physical
and sole legal custody of Aaron and order Mr. Summerville to pay her attorneys’ fees.
Hearings were held in June 2016 and October 2016 before the Honorable
Lunsford Long on the parties’ pending motions. On 16 December 2016, the trial court
entered an order (1) awarding primary physical and sole legal custody of Aaron to
Ms. Summerville; (2) modifying Mr. Summerville’s child support obligation; and (3)
holding Mr. Summerville in contempt for his violations of the 1 May 2015 Order.
On 20 December 2016, the trial court entered an order requiring Mr.
Summerville to pay $42,220 in attorneys’ fees to Ms. Summerville with regard to her
defense of his motion to modify custody. On 30 December 2016, the trial court entered
an order captioned “Amendment of Judgment/Order” in which it clarified its 16
December 2016 order by stating its determination that criminal contempt — as
opposed to civil contempt — was appropriate based on Mr. Summerville’s conduct.
On 13 January 2017, Mr. Summerville filed a notice of appeal as to all three orders.
Analysis
I. Modification of Child Custody
In his first argument, Mr. Summerville contends that the trial court lacked the
authority to modify the parties’ custody of Aaron absent sufficient evidence and
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accompanying findings of a substantial change in circumstances since the 1 May 2015
Order was entered. “When reviewing a trial court’s decision to grant or deny a motion
for the modification of an existing child custody order, the appellate courts must
examine the trial court’s findings of fact to determine whether they are supported by
substantial evidence.” Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253
(2003) (citation omitted). If so, we “must determine if the trial court’s factual findings
support its conclusions of law.” Id. at 475, 586 S.E.2d at 254 (citation omitted). “The
issue of whether a trial court has utilized the correct legal standard in ruling on a
request for modification of custody is a question of law that we review de novo.”
Hatcher v. Matthews, __ N.C. App. __, __, 789 S.E.2d 499, 501 (2016) (citation
omitted).
Our Supreme Court has made clear that “[o]ur trial courts are vested with
broad discretion in child custody matters.” Shipman, 357 N.C. at 474, 586 S.E.2d at
253 (citation omitted). “Accordingly, should we conclude that there is substantial
evidence in the record to support the trial court’s findings of fact, such findings are
conclusive on appeal, even if record evidence might sustain findings to the contrary.”
Id. at 475, 586 S.E.2d at 253-54 (citation and quotation marks omitted).
A. Classification of Prior Custody Order as Permanent or Temporary
As an initial matter, we must determine whether the 1 May 2015 Order was a
permanent or temporary custody order. The distinction is important because
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[i]f a child custody order is final, a party moving for its
modification must first show a substantial change of
circumstances. If a child custody order is temporary in
nature . . . the trial court is to determine custody using the
best interests of the child test without requiring either
party to show a substantial change of circumstances.
LaValley v. LaValley, 151 N.C. App. 290, 292, 564 S.E.2d 913, 914-15 (2002) (internal
citations and footnote omitted).
We observe that the 1 May 2015 Order was labeled by Judge Bryan as a
temporary order. Mr. Summerville contends, however, that the order should
nevertheless be deemed a permanent one. We agree.
“The issue of whether an order is temporary or final in nature is a question of
law that is reviewed de novo on appeal.” Hatcher, __ N.C. App. at __, 789 S.E.2d at
502 (citation omitted). An order is temporary “if either (1) it is entered without
prejudice to either party; (2) it states a clear and specific reconvening time in the
order and the time interval between the two hearings was reasonably brief; or (3) the
order does not determine all the issues.” Smith v. Barbour, 195 N.C. App. 244, 249,
671 S.E.2d 578, 582 (citation, quotation marks, and brackets omitted), disc. review
denied, 363 N.C. 375, 678 S.E.2d 670 (2009). “If an order does not meet any of these
criteria, it is considered permanent.” Hatcher, __ N.C. App. at __, 789 S.E.2d at 502
(citation omitted). Our case law demonstrates that “[a] trial court’s designation of an
order as ‘temporary’ or ‘permanent’ is not dispositive or binding on an appellate
court.” Id. at __, 789 S.E.2d at 502 (citation omitted).
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Despite Judge Bryan’s labeling of the 1 May 2015 Order as a “temporary
order,” it does not meet any of the characteristics that would make it so. It was not
entered without prejudice to either party. Nor did it state a date for the parties to
reconvene. Finally, the order did, in fact, determine all of the issues before the court
at that time.
Thus, the 1 May 2015 Order was a permanent custody order. As such, the trial
court was authorized to determine whether a modification of custody was in Aaron’s
best interests only if it first determined that there had been a substantial change in
circumstances since the 1 May 2015 Order was entered. See LaValley, 151 N.C. App.
at 292, 564 S.E.2d at 914-15 (holding that permanent custody orders require party
moving for modification to show substantial change in circumstances before
proceeding to best interests analysis).
B. Substantial Change in Circumstances
Mr. Summerville contends that the trial court in its 16 December 2016 Order
erroneously found a substantial change in circumstances because it (1) improperly
examined events occurring before the 1 May 2015 Order was entered in assessing
whether a substantial change in circumstances had occurred; and (2) failed to directly
link any change in circumstances to an actual effect on the welfare of the minor child.
We disagree.
In this order, the trial court made the following pertinent findings of fact:
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47. . . . [T]he Court was very clear to [Mr. Summerville],
by explicitly including in its 2015 Order that should
he continue to fail to follow Dr. Meisburger’s behavior
plan and safety rules (as amended/modified) that
would constitute a substantial change in
circumstances affecting the welfare of the minor child
which might result in a modification of his custodial
rights.
....
63. Due to [Mr. Summerville]’s ongoing refusal to support
the minor child’s therapy and therapeutic strategies
and recommendations after the May 2015 Order, Dr.
Meisburger recently discontinued treating the minor
child. As a result, the minor child lost his therapist of
several years, with whom he had formed a trusting
and therapeutic bond. As a result, the minor child
must begin all over again bonding with and trusting a
new therapist. This process is more difficult for the
minor child due to his Autism diagnosis, thus this has
negatively impacted the minor child after the entry of
the last Court Order.
....
78. [Mr. Summerville]’s failure to follow the behavior plan
and Safety Rules distressed the minor child[,]
increased the child’s anxiety and made him feel
unsafe. Further, [Mr. Summerville]’s disregard of the
Safety Rules, the therapist’s recommendations, the
Parenting Coordinator’s decisions, and the Court’s
Order modeled to the minor child a flagrant disregard
for authority and rules. [Mr. Summerville]’s actions
negatively impacted the minor child’s therapeutic
progress.
79. The child’s progress has been limited by the
professional recommendations being consistently
implemented only during [Ms. Summerville]’s
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custodial time, but not [Mr. Summerville]’s.
....
81. A significant psychiatric concern is the minor child’s
memory loss of events which are frightening to him,
which is dissociation, a self-protective strategy the
child uses when he feels unsafe. For instance, a
physical and verbal altercation occurred in March
2016 between the minor child and [Mr. Summerville]
over the course of two hours outside of a scouting
event. The minor child’s therapist heard the entire,
approximately two hour recording. During the call,
the minor child screamed, wailed loudly, and begged
[Ms. Summerville] to pick him up. During the call, the
minor child reported that [Mr. Summerville] had hit
him on the head, kicked him, and thrown him to the
ground, during which the child had hurt his head and
scraped his elbow. However, [Mr. Summerville]
refused to allow [Ms. Summerville] to pick up the
child. By the next day, the child had no memory of the
entire two hour incident.
82. The symptom of the child’s dissociation shows he is
experiencing a severe emotional crisis, which results
in him removing an incident altogether from his
memory. A significant concern is that if the minor
child were mistreated he could not report it.
....
85. After May 2015, on at least three separate occasions
the minor child was injured while [Mr. Summerville]
failed to follow the Safety Rules and other
recommendations of the minor child’s psychologist.
These include [Mr. Summerville] hitting the minor
child, throwing or tackling the child to the ground
although the child was not in danger of harming
himself or others; physically pulling or dragging the
minor child while the child was distraught; using
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excessive physical force; throwing a shoe at the minor
child striking him in his head; refusing to allow the
minor child to take his ten minute break when he was
emotionally dysregulated; refusing to allow the minor
child to call [Ms. Summerville] even though [Mr.
Summerville] knows that [Ms. Summerville]’s call
helps the minor child to use his adaptive calming
strategies.
86. Since May 2015, the minor child has begged his
therapist for someone, such as his therapist, the
Parenting Coordinator, the Judge or even the police,
[to] make [Mr. Summerville] follow the Safety Rules.
Following these physical confrontations with [Mr.
Summerville], the minor child regressed in his
therapeutic progress, was emotionally distraught at
school, and caused the minor child to have difficulty
transitioning to [Mr. Summerville]. Also, following
physical confrontation with [Mr. Summerville], at
times the minor child became more susceptible to
environmental triggers, such as a firm voice, feeling
restrained, or discussions which he perceived to be an
argument, which then led to aggressive outbursts by
the child.
87. Since the entry of the last Order, there have been
several incidents of [Mr. Summerville] failing to abide
by the school’s protocols including the child’s
individualized education plan (IEP). For instance,
after the 2015 order [Mr. Summerville] has withheld
designated rewards expected by the minor child
because the minor child moved himself to a low
stimulus environment to perform his calming
techniques after a triggering event. [Mr.
Summerville] did this even though the school’s
Behavior Intervention Plan calls for the child to use
this exact strategy. The child became confused when
teachers, school behavior specialists, his therapist,
and [Ms. Summerville] congratulated and validated
him for independently calming himself during that
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triggering event, but his father punished him for it by
refusing to provide an earned reward.
Mr. Summerville does not challenge any of the above-quoted findings.
Therefore, they are binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97,
408 S.E.2d 729, 731 (1991) (“Where no exception is taken to a finding of fact by the
trial court, the finding is presumed to be supported by competent evidence and is
binding on appeal.”).
The court’s unchallenged findings established that since the entry of the 1 May
2015 Order (1) Aaron’s therapist stopped treating him due to Mr. Summerville’s
refusal to comply with — and be supportive of — therapeutic strategies and
recommendations; (2) an altercation occurred in which, according to Aaron, Mr.
Summerville hit him, kicked him, and threw him to the ground; (3) Aaron forgot this
event the next day, tending to show that he had a dissociative disorder; (4) at least
two other incidents occurred during which Mr. Summerville used excessive physical
force and refused to allow Aaron to call his mother; (5) Aaron has felt more susceptible
to environmental triggers due to Mr. Summerville’s physical confrontations with him;
and (6) Mr. Summerville has not followed Aaron’s IEP, causing Aaron to feel he was
being punished when he used calming techniques but received no reward from Mr.
Summerville.
Contrary to Mr. Summerville’s argument on appeal, these findings
demonstrate that in making its changed circumstances determination the trial court
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did, in fact, properly consider the time period since the 1 May 2015 Order was
entered. Moreover, the above-quoted findings clearly support the trial court’s
conclusion that Mr. Summerville’s actions toward Aaron during this time period were
having a negative effect on him. Therefore, we affirm the trial court’s modification of
custody in the 16 December 2016 Order.2
II. Sua Sponte Modification of Child Support
Mr. Summerville next argues that the trial court improperly made a sua sponte
modification of his child support obligation as it existed in the 12 August 2013 Order
because neither party had filed a motion to modify child support prior to the entry of
the 16 December 2016 Order. We agree.
The 16 December 2016 Order stated as follows with regard to the child support
issue:
20. Counsel for both parties shall exchange copies of each
party’s 2015 tax returns along with copies of at least
three recent paystubs and any other documentation
evidencing his/her income not later than November
28, 2016. [Ms. Summerville]’s counsel shall calculate
and provide to [Mr. Summerville]’s counsel his child
support obligation pursuant to Worksheet A of the
presumptive North Carolina Child Support
Guidelines not later than December 1. Beginning
December 5, 2016, and on the 5th of each month
thereafter, [Mr. Summerville] shall pay to [Ms.
Summerville] monthly child support of that amount
2
We also reject Mr. Summerville’s argument that Judge Long simply relied on Judge Bryan’s
stated belief that a violation of the 1 May 2015 Order going forward would constitute a substantial
change in circumstances. To the contrary, we interpret Judge Long’s 16 December 2016 Order as
containing his own determination on this issue.
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via direct deposit into an account designated by [Ms.
Summerville]. Should [Mr. Summerville]’s counsel
disagree with said child support calculation, she shall
immediately notify [Ms. Summerville]’s counsel of her
reasons for her objection and provide her own
worksheet A calculation and the matter shall schedule
[sic] to be heard before the undersigned Judge in
December 2016. Otherwise, the amount determined
by [Ms. Summerville]’s counsel is hereby ordered to be
[Mr. Summerville]’s permanent child support
obligation to [Ms. Summerville] for the support of the
minor child.
21. Each party shall submit an affidavit regarding all
assets in which each party has any interest, as well as
any debt balances in that party’s name, (a net wort
[sic] inventory) to the other party not later than
November 20, 2016. . . .
N.C. Gen. Stat. § 50-13.7(a) provides in pertinent part that
[e]xcept as otherwise provided in G.S. 50-13.7A, an order of
a court of this State for support of a minor child may be
modified or vacated at any time, upon motion in the cause
and a showing of changed circumstances by either party or
anyone interested subject to the limitations of G.S. 50-
13.10.
N.C. Gen. Stat. § 50-13.7(a) (2017).
In addition to the fact that neither of the parties had made a motion to modify
Mr. Summerville’s preexisting support obligation, no testimony or other evidence on
the support issue was presented at the June 2016 or October 2016 hearings giving
rise to the 16 December 2016 Order. Nevertheless, the trial court — despite the
absence of a request from either party — included the above-quoted provisions
changing Mr. Summerville’s support obligation.
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This Court has repeatedly held that “[a] court is without authority to sua
sponte modify an existing support order.” Royall v. Sawyer, 120 N.C. App. 880, 882,
463 S.E.2d 578, 580 (1995) (citation omitted); see also Miller v. Miller, 153 N.C. App.
40, 47, 568 S.E.2d 914, 919 (2002) (“[A] court does not have the authority to sua sponte
modify an existing support order.” (citation omitted)); Bogan v. Bogan, 134 N.C. App.
176, 179, 516 S.E.2d 641, 643 (1999) (trial court was without authority to modify child
support obligation absent existence of motion before it); Smith v. Smith, 15 N.C. App.
180, 183, 189 S.E.2d 525, 526 (1972) (trial court erred in modifying child custody and
support where only question before court concerned alimony).
Our Supreme Court recently discussed the continuing jurisdiction possessed
by trial courts in child support proceedings in Catawba County v. Loggins, __ N.C. __,
804 S.E.2d 474 (2017). In Loggins, a mother and father had signed a Voluntary
Support Agreement and Order in 1999 (the “1999 VSA”) agreeing that the father
would not make any payments to the mother but would instead reimburse the State
for the cost of public assistance paid on behalf of his two children. Id. at __, 804
S.E.2d at 476. In 2001, the mother and father signed a second Voluntary Support
Agreement and Order (the “2001 VSA”). The parties attached to this document a
child support worksheet listing the father’s gross monthly income. In the 2001 VSA,
the father agreed to pay a monthly sum in child support to the mother and a monthly
reimbursement to the State for the amount he had previously neglected to pay. After
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it was signed by the parents, the 2001 VSA was approved by the court. Id. at __, 804
S.E.2d at 476.
The father failed to make several payments after entry of the 2001 VSA, and
he was in arrears by 2007. Id. at __, 804 S.E.2d at 476. In 2014, the father moved to
set aside the 2001 VSA pursuant to Rule 60 of the North Carolina Rules of Civil
Procedure, contending that the trial court had lacked jurisdiction to enter the consent
order. He asserted that N.C. Gen. Stat. § 50-13.7(a) required the filing of a motion in
the cause by a party in order for the trial court to possess jurisdiction to modify a
child support obligation. The trial court agreed, finding that “there was no
precipitating motion filed by plaintiff or on her behalf, nor was there any proof of a
change in circumstances; therefore, the order resulting from the 2001 VSA was void.”
Id. at __, 804 S.E.2d at 477.
Our Supreme Court reversed the trial court’s ruling, holding that the court had
improperly construed N.C. Gen. Stat. § 50-13.7(a). The Supreme Court ruled the
statute’s requirement that a motion in the cause be filed was “directory rather than
mandatory.” Id. at __, 804 S.E.2d at 482. “[C]onsequently, the absence of a motion
to modify a child support order does not divest the district court of jurisdiction to act
under the purview of the statute.” Id. at __, 804 S.E.2d at 482.
The Court explained that the primary purpose of N.C. Gen. Stat. § 50-13.7(a)
is “to make the court aware of important new facts unknown to the court at the time
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of the prior custody decree . . . .” Id. at __, 804 S.E.2d at 483 (citation and quotation
marks omitted). The Court determined that this purpose was satisfied by the 2001
VSA. Thus, the Supreme Court concluded, “a VSA submitted to the district court
without . . . a motion [in the cause] still serves the purpose” of N.C. Gen. Stat. § 50-
13.7(a), including “the statutory provision requiring a showing of a change in
circumstances in order for a child support order to be modified.” Id. at __, 804 S.E.2d
at 483.
In a concurring opinion joined by Justice Ervin, Chief Justice Martin stated
that “the majority’s reasoning should be read narrowly.” Id. at __, 804 S.E.2d at 485
(Martin, C.J., concurring).
[I]f the majority ruling is read to permit even sua sponte
modifications, it would disturb several decades of Court of
Appeals precedent that domestic relations parties and
social services agencies throughout North Carolina have
presumably come to rely on. See Royall v. Sawyer, 120 N.C.
App. 880, 882, 463 S.E.2d 578, 580 (1995) (concluding that
a child support agreement could not be modified without a
motion to modify the agreement); Kennedy v. Kennedy, 107
N.C. App. 695, 703, 421 S.E.2d 795, 799 (1992) (noting that
a district court may modify a custody order only upon a
motion by either party or by anyone interested); Smith v.
Smith, 15 N.C. App. 180, 182-83, 189 S.E.2d 525, 526
(1972) (holding that it was error for the trial court to modify
a custody and support order when the only question before
the trial court at the time was alimony).
. . . . [B]y focusing on continuing jurisdiction, the majority
ducks the real issue: whether, in the absence of a motion or
its functional equivalent, a district court has the power to
modify a child support order, or instead lacks the power to
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do so unless and until it receives a request from an
interested party to modify the order.
Id. at __, 804 S.E.2d at 485 (citations omitted).
This Court has not previously addressed in a published opinion the issue raised
by the concurring opinion in Loggins — that is, whether Loggins should be construed
as implicitly overruling the long line of cases from this Court prohibiting the sua
sponte modification of child support orders. However, we recently addressed this
precise issue in an unpublished opinion.
In Mills v. Davis, __ N.C. App. __, 808 S.E.2d 519, 2017 N.C. App. LEXIS 1047(2017) (unpublished), a custody order was entered by the trial court providing for
legal and physical custody of the minor child to be shared equally by the mother and
father. A year after the order was entered, the mother filed a motion to show cause
and modify custody, asserting that the father had waived his right to custody of the
child by failing to participate in her life. Id. at *3. The trial court entered a custody
order in which it modified sua sponte the existing child support order, requiring the
father to claim the child as a dependent and requiring the parties to split the
uninsured health expenses. Id. at *5.
On appeal, the mother argued that the trial court had erred by making a sua
sponte modification of the original custody order’s child support provisions.
Distinguishing Loggins, this Court vacated the portion of the order containing the
child support modification.
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Unlike the trial court in [Loggins], which entered a
consent order sought by both parents, the trial court in this
case acted of its own volition, absent the consent,
knowledge, or urging of Mother or Father. No consent
order or pleading was filed in this case sufficient to satisfy
the purposes of N.C. Gen. Stat. § 50-13.7(a). . . .
While we recognize, following [Loggins], that the
trial court had jurisdiction to modify the Custody Order, we
hold that it did not have the power and authority to sua
sponte modify a child support order entered in a separate
civil action. See Ellis v. Ellis, 190 N.C. 418, 421, 130 S.E.
7, 9 (1925) (holding that although a court retains
jurisdiction over a case, it may still lack the power to grant
the relief contained in its judgment); see also State ex rel.
Hanson v. Yandle, 235 N.C. 532, 535, 70 S.E.2d 565, 568
(1952) (holding that where the court is without authority
its judgment is void and of no effect). Because the majority
in [Loggins] did not dispose of the necessity that a party
satisfy the requirements of N.C. Gen. Stat. § 50-13.7(a),
and in light of the concurring justices’ cautioned approach,
we will not extend the Supreme Court’s decision to give the
trial court unfettered authority to modify custody orders
sua sponte. To hold otherwise would disturb several
decades of precedent on which domestic relations parties
and social service agencies throughout North Carolina
have presumably come to rely. . . .
Id. at *16-17 (internal citations omitted).
Unpublished opinions of this Court lack precedential authority. See N.C. R.
App. P. 30(e)(3) (providing that “an unpublished decision . . . does not constitute
controlling legal authority”). Nevertheless, we believe Mills was correctly decided
and reach a similar conclusion here.
The present case is materially distinguishable from Loggins. The analysis in
Loggins makes clear that the existence of the voluntary settlement agreement signed
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by the parties and submitted to the trial court played a central role in the Supreme
Court’s decision, providing an adequate substitute for a motion in the cause. Here,
conversely, there was neither a motion in the cause nor a consent agreement in which
one or both of the parties sought a modification of Mr. Summerville’s child support
obligation. Thus, the trial court’s 16 December 2016 Order constitutes a classic case
of a sua sponte modification of a child support order despite the absence of any acts
sufficient to satisfy the purpose of N.C. Gen. Stat. § 50-13.7(a).
Had the Supreme Court in Loggins intended to express its disapproval of this
Court’s longstanding prohibition of the sua sponte modification of child support
obligations, we believe it would have said so overtly. Therefore, we read Loggins as
continuing to require some action by the parties in order to satisfy the underlying
purpose of N.C. Gen. Stat. § 50-13.7(a). Accordingly, we vacate the portion of the trial
court’s 16 December 2016 Order modifying the preexisting child support obligation of
Mr. Summerville.
III. Appeal of Contempt Finding
Mr. Summerville also seeks to challenge the trial court’s decision to hold him
in contempt. He asserts that (1) the court failed to make clear whether the contempt
was civil or criminal; (2) the court’s clarification in its 30 December 2016 Order of its
prior contempt finding was an impermissible attempt to amend its previous order
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under Rule 60; and (3) violations of a parenting coordinator’s orders cannot form the
basis for a finding of contempt.
As an initial matter, we must determine whether we possess jurisdiction to
consider this portion of Mr. Summerville’s appeal. Appeals from criminal contempt
orders are governed by N.C. Gen. Stat. § 5A-17, which states as follows:
A person found in criminal contempt may appeal in the
manner provided for appeals in criminal actions, except
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(a) (2017). “This statute vests exclusive jurisdiction in the
superior court to hear appeals from orders in the district court holding a person in
criminal contempt.” Michael v. Michael, 77 N.C. App. 841, 843, 336 S.E.2d 414, 415
(1985), disc. review denied, 316 N.C. 195, 341 S.E.2d 577 (1986).
Thus, “in criminal contempt matters, appeal is from the district court to the
superior court. . . . In civil contempt matters, appeal is from the district court to this
Court.” Brooks v. Jones, 121 N.C. App. 529, 530, 466 S.E.2d 344, 345 (1996) (internal
citations omitted). Accordingly, we must determine whether the trial court’s finding
of contempt here was criminal or civil in nature.
[W]e note that contempt in this jurisdiction may be of two
kinds, civil or criminal, although we have stated that the
demarcation between the two may be hazy at best.
Criminal contempt is generally applied where the
judgment is in punishment of an act already accomplished,
tending to interfere with the administration of justice.
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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. A major factor in determining whether
contempt is criminal or civil is the purpose for which the
power is exercised. Where the punishment is to preserve
the court’s authority and to punish disobedience of its
orders, it is criminal contempt. Where the purpose is to
provide a remedy for an injured suitor and to coerce
compliance with an order, the contempt is civil. The
importance in distinguishing criminal and civil contempt
lies in the difference in procedure, punishment and right of
review.
Bishop v. Bishop, 90 N.C. App. 499, 503, 369 S.E.2d 106, 108 (1988) (citation and
emphasis omitted).
The trial court’s 16 December 2016 Order contained a handwritten paragraph
that stated as follows:
23. [Mr. Summerville] may purge himself of his multiple
acts of contempt detailed above by paying one fine of
$500 within 10 days hereof and by complying with this
order and with all other orders in this action which
remain in effect hereafter.
In its 30 December 2016 Order, the trial court stated the following in seeking
to clarify its prior finding of contempt against Mr. Summerville:
The order of 12/16/16 is amended to add additional
language in paragraph 23: “The Court finds that civil
contempt does not provide a remedy for future compliance
issues, and that the change of custody ordered herein will
resolve future issues of noncompliance; accordingly, the
Court finds that criminal contempt is appropriate and that
[Mr. Summerville] is in criminal contempt, due to the
multiple acts of wilful [sic] and deliberate disregard of and
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Opinion of the Court
violation of the prior orders as detailed above, which
findings support an order of criminal contempt beyond a
reasonable doubt, and the Court so finds and orders.”
In Paragraph No. 23 of the 16 December 2016 Order, the trial court imposed a
fine on Mr. Summerville, which is generally associated with criminal contempt. See
Bishop, 90 N.C. App. at 504, 369 S.E.2d at 109 (holding that a fine is generally
“punitive when it is paid to the court” and therefore indicates a finding of criminal
contempt (citation omitted)). However, the fine was imposed as part of a purge
condition, which is indicative of a finding of civil contempt. See id. at 504, 369 S.E.2d
at 109 (“[T]he addition of a ‘purge’ clause would render even a determinate jail
sentence civil in nature . . . .” (citation omitted)). The trial court then clarified its
intent in its 30 December 2016 Order, stating its determination that criminal —
rather than civil — contempt was appropriate in light of Mr. Summerville’s prior
actions.
Therefore, because the trial court ultimately concluded that Mr. Summerville
should be held in criminal contempt, we lack jurisdiction over this portion of his
appeal as his sole recourse was an appeal to superior court. See Michael, 77 N.C.
App. at 843, 336 S.E.2d at 415 (dismissing appeal of criminal contempt order by
district court due to lack of appellate jurisdiction).
IV. Reasonableness of Attorneys’ Fees Award
In his final argument, Mr. Summerville contends that the trial court erred by
awarding attorneys’ fees to Ms. Summerville. He argues that the court (1) did not
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Opinion of the Court
possess statutory authority to award attorneys’ fees stemming from its finding of
criminal contempt; and (2) failed to make the requisite findings of reasonableness in
connection with the fees awarded for Ms. Summerville’s defense of his motion to
modify custody.
This Court has held that “[i]n order to award attorney’s fees in an action
involving custody or support of a minor child, the trial court is required to gather
evidence and make certain findings of fact.” Davignon v. Davignon, __ N.C. App. __,
__, 782 S.E.2d 391, 396 (2016); see also Burr v. Burr, 153 N.C. App. 504, 506, 570
S.E.2d 222, 234 (2002) (holding that “award of attorney’s fees is not left to the court’s
unbridled discretion; it must find facts to support its award” (citation omitted)). “The
trial court must first determine if the party moving for attorney’s fees has satisfied
the statutory requirements for an award pursuant to N.C. Gen. Stat. § 50-13.6.”
Davignon, __ N.C. App. at __, 782 S.E.2d at 396.
N.C. Gen. Stat. § 50-13.6 states as follows:
In an action or proceeding for the custody or support, or
both, of a minor child, including a motion in the cause for
the modification or revocation of an existing order for
custody or support, or both, the court may in its discretion
order payment of reasonable attorney’s fees to an
interested party acting in good faith who has insufficient
means to defray the expense of the suit. Before ordering
payment of a fee in a support action, the court must find as
a fact that the party ordered to furnish support has refused
to provide support which is adequate under the
circumstances existing at the time of the institution of the
action or proceeding; provided however, should the court
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Opinion of the Court
find as a fact that the supporting party has initiated a
frivolous action or proceeding the court may order payment
of reasonable attorney’s fees to an interested party as
deemed appropriate under the circumstances.
N.C. Gen. Stat. § 50-13.6 (2017).
Thus, based on this statute, the trial court is required to find “that the party
seeking the award is (1) an interested party acting in good faith and (2) has
insufficient means to defray the expense of the suit.” Cobb v. Cobb, 79 N.C. App. 592,
595, 339 S.E.2d 825, 828 (1986) (citation omitted). Moreover, in addition to the
findings required by the express terms of N.C. Gen. Stat. § 50-13.6, this Court has
also mandated that certain other findings be made in order to ensure that the amount
of fees awarded is reasonable.
Because [N.C. Gen. Stat. §] 50-13.6 allows for an award of
reasonable attorney’s fees, cases construing the statute
have in effect annexed an additional requirement
concerning reasonableness onto the express statutory
ones. . . . Namely, the record must contain additional
findings of fact upon which a determination of the requisite
reasonableness can be based, such as findings regarding
the nature and scope of the legal services rendered, the
skill and time required, the attorney’s hourly rate, and its
reasonableness in comparison with that of other lawyers.
Id. at 595, 339 S.E.2d at 828 (internal citations omitted). “When the statutory
requirements have been met, the amount of attorney’s fees to be awarded rests within
the sound discretion of the trial judge and is reviewable on appeal only for abuse of
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Opinion of the Court
discretion.” Burr, 153 N.C. App. at 506, 570 S.E.2d at 234 (citation and quotation
marks omitted).
The trial court’s 20 December 2016 order made the following pertinent findings
of fact in support of its award of attorneys’ fees.
9. Paragraph 7 of [Mr. Summerville]’s March 2016
Motion to Modify Custody included multiple
allegations which [Mr. Summerville] alleged
constituted a substantial change in circumstances
warranting a modification of custody, which he failed
to prove or this Court did not find to be credible. These
included that:
a. “[T]he minor child has spent an increasing
amount of time out of the classroom due to the
interventions by [Ms. Summerville] and/or
[Parent Coordinator]. The minor child’s school
performance has suffered enormously during the
last school year as a result of these interventions,
and these interventions have caused previously
resolved behavioral issues to re-surface and
escalate.”
b. The minor child had been “forced to miss church
youth group, Cub Scouts and other time with
[Mr. Summerville] doing the varied activities
[Mr. Summerville] participates in with the minor
child due to interventions by [Ms. Summerville]
and/or PC[,]” which caused “the minor child’s
anxiety and behavioral issues [to increase] both
at home and in school.”
c. ‘‘The minor child has had no less than twelve (12)
instances of fecal incontinence” due to
medications he takes which [Ms. Summerville]
manages with the support of the Parenting
Coordinator.
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Opinion of the Court
d. “[T]he minor child has been allowed, encouraged
and/or ordered to call [Ms. Summerville] when he
disagrees with [Mr. Summerville], and has been
encouraged to defy [Mr. Summerville]’s authority
while the minor child is in [Mr. Summerville]’s
care, causing enormous behavioral issues to
escalate beyond what has been the norm for this
minor child.”
e. “[Ms. Summerville] and Parent Coordinator
consistently question [Mr. Summerville]’s
parenting of the minor child, at times through
the minor child himself” and that “[s]uch
behavior has increased the minor child’s already
existent anxiety issues.”
10. These allegations were proven to be untrue after the
extensive efforts of [Ms. Summerville]’s counsel,
including deposing [Mr. Summerville], preparing for
and attending pretrials, drafting and arguing the
order and this hearing on attorney fees, as well as in
the final trial on these issues, which occurred over six
days of trial in June and October 2016.
11. [Ms. Summerville] incurred significant legal fees in
defending against [Mr. Summerville]’s Motion to
Modify Custody, as well as in the final trial on these
issues, which occurred over six days of trial in June
and October of 2016.
12. Pursuant to the Affidavit of Attorney’s Fees submitted
by [Ms. Summerville]’s previous counsel, Melissa
Averett, [Ms. Summerville] had incurred attorney’s
fees of in excess of $18,000 with Averett Family Law
since March 4, 2016.
13. Pursuant to the Affidavit of Attorney’s Fees and the
Addendum to Affidavit of Attorney’s Fees submitted
by [Ms. Summerville]’s current counsel, [Ms.
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Opinion of the Court
Summerville] has incurred attorney’s fees of at least
$87,118 to Gabriela J. Matthews & Associates, P.A.
since March 4, 2016 as of November 30, 2016. She has
been in court on three separate appearances since that
day and expended additional fees thereafter through
the present date.
14. In total, [Ms. Summerville] has incurred attorney fees
in excess of $104,070 since March 4, 2016 thru [sic]
November 20, 2016. After this hearing today, [Ms.
Summerville] will have current outstanding legal bills
in excess of $80,000.
15. Some of [t]he services rendered by counsel were
reasonable given the motion filed by [Mr.
Summerville], his failure to follow the Court’s prior
Orders, and the impact his actions had on the minor
child. Further, the rates charged by said counsel were
reasonable given the level of expertise and experience
of both attorneys and common curate [sic] with the
fees charged by attorneys practicing family law in this
area. The award herein set forth is for the reasonably
necessary portion of such time spent.
16. [Ms. Summerville] is an interested party and has
acted in good faith in defending against [Mr.
Summerville]’s motion and pursuing a custody
modification given [Mr. Summerville’s] actions.
17. [Ms. Summerville] submitted a sworn affidavit, filed
with this Court, in which she affirmatively pled that
she does not have the ability to defray her extensive
legal fees. In her affidavit, [Ms. Summerville] fully
disclosed to the Court all of her assets and debts as
well as her income. [Ms. Summerville] has also
incurred significant credit card debt in order to pay
some of those legal fees. However, she has no ability
to pay her outstanding legal fees given her income and
current net worth. [Ms. Summerville] is without
sufficient means with which to defray the expenses of
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Opinion of the Court
this suit. Therefore, [Ms. Summerville] is entitled to
reimbursement of her legal fees pursuant to N.C.G.S.
§50-13.6.
....
19. [Mr. Summerville] should be ordered to pay the
portion of [Ms. Summerville]’s reasonable attorney
fees . . . set forth below pursuant to N.C. Gen. Stat.
50-13.6.
Based on these findings, the trial court ordered Mr. Summerville to pay Ms.
Summerville’s attorney “the sum of $20,220 as attorney’s fees” and “the additional
sum of $22,000 by paying her $1000 per month for the next 24 [sic] months beginning
2/1/17.”
As noted above, Mr. Summerville initially contends that the trial court erred
by awarding attorneys’ fees in connection with the court’s decision to hold him in
criminal contempt. However, as established by the above-quoted findings, the order
makes clear that the award of attorneys’ fees was instead based on Ms. Summerville’s
defense of Mr. Summerville’s motion to modify custody, which is expressly authorized
under N.C. Gen. Stat. § 50-13.6.
Mr. Summerville next argues that the trial court’s order lacked the required
findings of reasonableness. Specifically, he contends that the trial court failed to
make specific findings concerning (1) the ability of Ms. Summerville to defray the cost
of the suit; (2) whether she acted in good faith; (3) her lawyer’s skill; (4) her lawyer’s
hourly rate; and (5) the nature and scope of the legal services rendered. We disagree.
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Finding Nos. 11, 12, 13, and 14 are supported by Ms. Summerville’s affidavit
and the evidence of record. Finding No. 15 establishes that the trial court considered
the relevant affidavits and determined that the rates charged by her counsel were
reasonable based on the level of expertise and experience of her attorneys and in light
of the fees charged by comparable attorneys in the geographic area.
Moreover, Finding No. 16 sets out the trial court’s determination that Ms.
Summerville was an interested party acting in good faith, and Finding No. 17
contains the court’s finding that she had insufficient means to defray the expenses of
the action. Thus, we are satisfied that the trial court’s findings were sufficient to
support its award of attorneys’ fees to Ms. Summerville pursuant to N.C. Gen. Stat.
§ 50-13.6. See Hennessey v. Duckworth, 231 N.C. App. 17, 25, 752 S.E.2d 194, 200
(2013) (holding that trial court’s findings in connection with attorneys’ fees award
were supported by plaintiff’s affidavits and were sufficient to justify award of fees to
plaintiff).
Conclusion
For the reasons stated above, we (1) affirm the portion of the trial court’s 16
December 2016 Order modifying child custody; (2) vacate the portion of the trial
court’s 16 December 2016 Order modifying child support; (3) dismiss Mr.
Summerville’s appeal of the contempt findings contained in the 16 December 2016
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Opinion of the Court
and 30 December 2016 Orders; and (4) affirm the trial court’s 20 December 2016
Order awarding attorneys’ fees.
AFFIRMED IN PART; VACATED IN PART; DISMISSED IN PART.
Chief Judge McGEE and Judge TYSON concur.
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