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An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
 -2-
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.
 -3-
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
 -4-
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
 -5-
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
 -6-
(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
 -7-
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
 -8-
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.
 -9-
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]
 -10-
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;
 -11-

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
 -12-
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
 -13-
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
 -14-
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
 -15-
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’
 -16-
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
 -17-
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,
 -18-
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).