Appeal by defendant from order entered 25 April 2001 by Judge
William C. Lawton in Wake County District Court. Heard in the
Court of Appeals 27 March 2002.
Howard, Stallings, From & Hutson, P.A., by Catherine C.
McLamb, for plaintiff-appellee.
Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for
defendant-appellant.
BIGGS, Judge.
Defendant appeals from an order denying his motion requesting
that plaintiff be held in contempt of a 1992 child custody order.
For the reasons that follow, we affirm the trial court.
Plaintiff and defendant, formerly married, were divorced in
1991. Three daughters were born of the marriage, and in 1992 an
order was entered granting plaintiff sole custody of the children
and allowing defendant visitation rights. A year later, in 1993,
plaintiff filed a motion to modify the custody order, seeking
revocation of defendant's visitation privileges. Her motion was
granted on 8 June 1993, in an ex parte order. The trial court
found that: (1) defendant had recently been charged with two counts
of solicitation to commit murder of plaintiff and of her fiancée,and two counts of solicitation to commit burglary of plaintiff's
home and of her family's home; (2) defendant would likely be
released on bail; and (3) “[t]he defendant's disregard of and
contempt for this Court's authority has been well documented in
this cause.” The trial court concluded that the welfare of
plaintiff and of the children would be jeopardized and threatened
if defendant were allowed visitation upon his release from custody,
that circumstances justified entry of an ex parte order, and that
the prior custody order should be modified. Accordingly, the trial
court ordered that:
The prior orders affording the defendant
visitation with the parties' minor daughters
[are] hereby modified, and the defendant shall
have no right of visitation with the daughters
pending further order of this Court.
In the fall of 1993, defendant was acquitted of the criminal
charges referenced in the 1993 ex parte order. From 1993 to 1999,
plaintiff denied defendant all visitation with the minor children.
In 1999, plaintiff allowed the oldest daughter to reside with
defendant during her senior year of high school; however, plaintiff
informed defendant that she would continue to comply with the 1993
order that revoked defendant's visitation privileges. In December,
2000, plaintiff denied visitation between defendant and the younger
two girls during their Christmas vacation, and stated that her
refusal was based upon the 1993 order.
In January, 2001, defendant filed a motion to have plaintiff
held in contempt of the visitation provisions in the original 1992
custody order. A show cause order was issued on 4 January 2001. On 25 April 2001, the trial court entered an order holding that
plaintiff was not in contempt of the custody order of 1992. The
trial court concluded that:
. . . The Plaintiff has not willfully
disobeyed the provisions of that order [1992
custody order] given her reliance upon the
June 8, 1993 ex parte order terminating the
Defendant's rights of visitation pending
further orders of the Court. The June 8, 1993
Order on its face purports to be a valid
Order. Furthermore, this June 8, 1993 order
has never been modified, vacated, appealed or
otherwise changed.
Defendant appeals from this order.
Civil contempt is the “[f]ailure to comply with an order of a
court. . . .” N.C.G.S. § 5A-21(a) (2001). Proceedings for civil
contempt are “initiated by motion of an aggrieved party, . . .”
N.C.G.S. § 5A-23(a1) (2001), and a contempt hearing is conducted
upon the “order of a judicial official directing the alleged
contemnor to appear . . . and show cause why he should not be held
in civil contempt.” N.C.G.S. § 5A-23(a) (2001). “'Although the
statutes governing civil contempt do not expressly require willful
conduct, . . . case law has interpreted the statutes to require an
element of willfulness.'” To establish contempt of a court order,
“'the evidence must show that the person was guilty of 'knowledge
and stubborn resistance' in order to support a finding of willful
disobedience.'”
McKillop v. Onslow County, 139 N.C. App. 53,
61-62, 532 S.E.2d 594, 600 (2000) (quoting
Sharpe v. Nobles, 127
N.C. App. 705, 709, 493 S.E.2d 288, 290-91 (1997)). “Willfulness[is]: (1) an ability to comply with the court order; and (2) a
deliberate and intentional failure to do so.”
Sowers v. Toliver,
__ N.C. App. __, __, __ S.E.2d __, __ (7 May 2002).
On appeal, “[t]he standard of review for contempt proceedings
is limited to determining whether there is competent evidence to
support the findings of fact and whether the findings support the
conclusions of law.”
Sharpe, 127 N.C. App. at 709, 493 S.E.2d at
291
. Further, “the [trial] judge's findings of fact are conclusive
. . . [if] 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).
In the instant case, defendant presents three arguments in
support of his contention that the trial court erred in failing to
hold plaintiff in contempt: (1) the
ex parte order upon which
plaintiff relied had expired; (2) the trial court improperly placed
the burden on defendant to vacate, modify or otherwise appeal the
order, and; (3) plaintiff had specific notice that the 1993 order
upon which she relied had expired. We disagree with defendant's
contentions.
Defendant concedes that the trial court was authorized to
enter the 1993
ex parte order revoking his visitation rights.
See
N.C.G.S. § 50-13.5(d)(2) (2001). However, defendant urges this
Court to apply to the
ex parte order the provisions of N.C.G.S. §
1A-1, Rule 65 (2001), which establish that a temporary restraining
order expires automatically after ten days. We decline to do so. The 1993
ex parte order is not a temporary restraining order issued
pursuant to Rule 65, and we conclude that Rule 65 has no
application here. Rather, the order is a temporary child custody
order governed by N.C.G.S. § 50-13.5(d)(2) and (3) (2001).
See
Clark, 294 N.C. at 575-576, 243 S.E.2d at 142
(“[v]isitation
privileges are but a lesser degree of custody”). Chapter 50 does
not limit the duration of a temporary custody order to a specific
length of time, such as ten days; nor does our case law establish
a definite period of viability for temporary custody orders.
See
generally, Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61 (1999).
We
conclude, therefore, that the
ex parte order did not expire
automatically upon the passage of ten days.
Moreover, even assuming,
arguendo, that the
ex parte order had
expired, the trial court's order declining to hold plaintiff in
contempt still would be proper. The trial court found that
plaintiff had not willfully disobeyed the 1992 order, given that
she was relying on the 8 June 1993 order which “on its face
purports to be a valid order,” and which clearly stated that
defendant's visitation rights were suspended “pending further order
of the Court.” Under these circumstances, plaintiff's reliance
upon the 1993 order was justified, and the mere possibility, that
a reviewing court might have vacated the 1993 order if defendant
had appealed it, does not render plaintiff's reliance upon the 1993
order contemptuous. This assignment of error is overruled.
Defendant next argues that the trial court incorrectly
assigned to him the burden of seeking to alter the 1993 order. Weconclude that this issue is not germane to the question of whether
the trial court erred by declining to hold plaintiff in contempt.
Irrespective of which party should appropriately be charged with
the responsibility to seek modification of the
ex parte order, or
where the trial court placed this burden, it remains undisputed
that neither party had sought to “modify, appeal, vacate, or
otherwise change” the
ex parte order. The order thus remained
facially valid, and plaintiff's reliance upon it defensible. “A
party is entitled to rely on the plain terms of a court order until
such provisions are modified by the court. Even where the terms of
a court order are determined to be violative of public policy and
thus unenforceable, reliance on the original terms will not support
a contempt action prior to a judicial adjudication of such
unenforceability.”
Turman v. Boleman, 235 Ga. App. 243, 245, 510
S.E.2d 532, 534 (1998) (citations omitted). This assignment of
error is overruled.
Finally, defendant argues that plaintiff's willful defiance of
the trial court's 1992 custody order is demonstrated by her
continued reliance upon the 1993
ex parte order even after she “was
informed” that it was invalid. This argument is unavailing; the
record establishes that the validity of the 1993 order has never
been addressed by any court, and that it was defendant's attorney
who “informed” plaintiff that the order was invalid. The opinion
of defendant's counsel, that the order had expired, does not
constitute a ruling by the court on the issue, and would notrequire plaintiff to abandon her reliance on what the trial court
found to be “an order that purports on its face to be valid.”
We also reject as meritless defendant's argument that the
trial court should have considered plaintiff's own alleged
violation of the 1993 order, in allowing defendant's oldest
daughter to live with him for a period of time, as evidence of her
willful defiance of the 1992 custody order.
We conclude that the trial court's findings of fact are
supported by the record, and that the findings support its
conclusion that, by virtue of her reliance upon the 1993
ex parte
order, plaintiff was not in contempt of the 1992 custody order.
Further, although we recognize the importance of preserving a
parent's right to visit with his child, in the case
sub judice,
visitation issues would more appropriately have been addressed
through a motion to modify, vacate, or appeal the 1993 order.
Accordingly, we affirm the trial court.
Affirmed.
Judges WYNN and MCCULLOUGH concur.
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