Appeal by plaintiff from order entered 29 April 2002 by Judge
Charles E. Brown in Rowan County District Court. Heard in the
Court of Appeals 16 April 2003.
Horack, Talley, Pharr & Lowndes, P.A., by Thomas R. Cannon and
Kary C. Watson, for plaintiff-appellant.
Robert L. Inge for defendant-appellee.
MARTIN, Judge.
Plaintiff and defendant were married in 1992; two daughters
were born of the marriage. Plaintiff and defendant separated and
were subsequently divorced. By orders entered in the Rowan County
District Court on 21 January 1997 and 2 June 1998, plaintiff was
awarded custody of the two children and defendant was granted
visitation. In March 2001, defendant moved for modification of the
custody order. By order dated 13 July 2001 and amended order dated
24 July 2001, the district court awarded custody to defendant,
effective 27 June 2001, and granted specified visitation to
plaintiff. Plaintiff's appeal from the amended order modifying
custody is currently pending before another panel of this Court.
In accordance with the visitation provisions of the amended
custody order, plaintiff picked up the children for her scheduledvisitation on 26 December 2001 and took them to her home in West
Virginia. The following day she took the children to the West
Virginia Department of Health and Human Services. After a lengthy
interview of the children, the intake worker indicated a suspicion
of abuse by defendant and instructed plaintiff to petition for an
emergency protective order. Upon plaintiff's petition, a West
Virginia magistrate entered a protective order granting temporary
custody of the children to plaintiff, and she did not return the
children to defendant on 3 January 2002 as scheduled.
On 10 January 2002, upon motion of defendant, the Rowan County
District Court entered an order requiring plaintiff to appear on 16
January 2002 and show cause why she should not be adjudged in
contempt for her failure to abide by the terms of the July 2001
custody order. Pursuant to communication between the Rowan County
District Court and the Wood County West Virginia Family Court
concerning jurisdiction of the matter under the Uniform Child
Custody Jurisdiction and Enforcement Act (“UCCJEA”), the West
Virginia court entered an order on 14 January 2002 terminating the
emergency protective order and directing plaintiff to appear with
the children in district court in Rowan County on 16 January.
Plaintiff complied with the orders and appeared with the
children before the district court in Rowan County on 16 January.
The children were returned to defendant at that time; at
plaintiff's request the contempt hearing was continued to 28 March
so that plaintiff's attorney could prepare.
At the conclusion of the 28 March hearing, the district courtentered an order in which it found facts, concluded that plaintiff
“is in willful contempt of this court and it's [sic] orders” and
“has the means and ability to purge herself of contempt[,]” and
adjudged her to be in civil contempt. The court ordered plaintiff
committed to the sheriff's custody “until such time as she purges
herself of contempt,” but suspended the commitment “on the
condition [she] purge herself of contempt by paying the sum of
$2,637.00 into the Defendant's attorney's trust account . . .
within sixty days . . . .” According to the findings of fact, this
sum was composed of $252 in lost wages for defendant, $960 in fees
for defendant's West Virginia attorney, and $1,425 in fees for
defendant's North Carolina attorney. Plaintiff has appealed the
order finding her in civil contempt.
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Plaintiff argues the district court erred by holding her in
civil contempt after she had purged herself of contempt by
complying with the amended custody order on 16 January 2002 and
returning the children to defendant. According to G.S. § 5A-21:
(a) Failure to comply with an order of a court
is a continuing civil contempt as 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 complywith the order.
(b) A person who is found in civil contempt
may be imprisoned as long as the civil
contempt continues, . . . .
N.C. Gen. Stat. § 5A-21(a), (b) (2003). Generally, an appeal of an
underlying order stays any contempt proceedings to enforce that
order until the validity of the order is determined on appeal.
N.C. Gen. Stat. § 1-294 (2003);
Quick v. Quick, 305 N.C. 446, 290
S.E.2d 653 (1982). However, G.S. § 50-13.3(a) authorizes the
district court to enforce a custody order “by proceedings for civil
contempt during the pendency of the appeal [of that order].” N.C.
Gen. Stat. § 50-13.3(a) (2003). In contrast to criminal contempt
which “is administered as punishment for acts already committed
that have impeded the administration of justice, . . . [c]ivil
contempt, . . ., is employed to coerce disobedient defendants into
complying with orders of court.”
Brower v. Brower, 70 N.C. App.
131, 133, 318 S.E.2d 542, 544 (1984). Thus, 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.
Reynolds v. Reynolds, 147 N.C. App. 566, 573, 557 S.E.2d 126, 131
(2001) (citing
Hudson v. Hudson, 31 N.C. App. 547, 551, 230 S.E.2d
188, 190 (1976)),
reversed on other grounds, 356 N.C. 287, 569
S.E.2d 645 (2002).
In the present case, the district court found, based on the
testimony of both parties, that “[p]laintiff returned the children
to the Defendant on January 16, 2002.” Therefore, its conclusionthat she “is in willful contempt” is not supported by the findings
or evidence.
See Walleshauser v. Walleshauser, 100 N.C. App. 594,
397 S.E.2d 371 (1990) (in reviewing contempt proceedings, appellate
court constrained to determining whether there is competent
evidence to support findings of fact and findings support
conclusions of law). Moreover, because there was no longer any
purpose to be served by holding plaintiff in civil contempt, the
conclusion was improper as a matter of law.
Reynolds,
supra. The
district court was without authority to adjudge plaintiff “to be in
willful civil contempt” or to commit her to the custody of the
sheriff, even for a suspended sentence, and those portions of the
order must be vacated. Because we vacate the judgment of contempt,
we need not address plaintiff's alternative argument that the
evidence did not support the district court's finding that her non-
compliance with the custody order was willful.
Plaintiff also argues the trial court erred in ordering her to
pay defendant's lost wages and attorney's fees. At oral argument,
defendant's counsel conceded there is no legal basis upon which the
plaintiff could be required, in the contempt proceeding, to
compensate him for his lost wages.
See Atassi v. Atassi, 122 N.C.
App. 356, 470 S.E.2d 59 (1996) (compensatory damages inappropriate
in contempt proceeding). Therefore, the order requiring plaintiff
to pay defendant $252 for his lost wages is vacated.
In addition, plaintiff appears to have conceded, both in her
brief and at oral argument, that defendant is entitled to recover
his attorney's fees incurred in filing the motion to show cause andin the hearings related thereto.
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.
Reynolds, 147 N.C. App. at 575, 557 S.E.2d at 132. Therefore, that
portion of the order requiring plaintiff to pay defendant's North
Carolina attorney's fees in the amount of $1,425 is affirmed.
Still at issue, however, is the amount awarded defendant for
attorney's fees which he incurred in West Virginia, presumably in
connection with the dissolution of the temporary protective order.
Generally, a court may not award attorney's fees in the absence of
statutory authorization.
In re King, 281 N.C. 533, 189 S.E.2d 158
(1972). The proceedings in West Virginia were governed by the
UCCJEA as codified in that state's statutory scheme.
See W. Va.
Code § 48-20-101
et seq. (2003). At least two provisions of the
UCCJEA address the issue of attorney's fees.
See W. Va. Code §§
48-20-208, 48-20-312. North Carolina has also adopted the UCCJEA
and codified the same provisions relating to attorney's fees.
See
N.C. Gen. Stat. § 50A-101
et seq. (2003). However, the matter
before the district court in this State at the show cause hearing
did not implicate Chapter 50A and its provisions may not be relied
upon in this case to uphold the award of attorney's fees incurred
by defendant in West Virginia, as any such award was within the
jurisdiction of the West Virginia court. Accordingly, we hold the
district court erred in ordering plaintiff to pay defendant's WestVirginia attorney's fees in the amount of $960 for the UCCJEA
action in that state, and such portion of the order is vacated.
Affirmed in part; vacated in part.
Judges HUDSON and ELMORE concur.
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