An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04-792

NO. COA04-1144


Filed: 17 May 2005


v .                         Wake County
                            No. 01 CVD 2256

    Appeals by defendant Barbour from contempt judgment entered 13 February 2004 nunc pro tunc 24 October 2003 by Judge Shelley H. Desvouges; the underlying order for custody evaluation, entered 6 June 2003 by Judge Anne B. Salisbury; the underlying Temporary Custody Order, entered 3 July 2003 by Judge Monica M. Bousman; and the contempt order entered 19 April 2004 nunc pro tunc 5 March 2004 by Judge Shelley H. Desvouges; in Wake County District Court. Heard in the Court of Appeals 7 March 2005.
    Hatch, Little & Bunn, L.L.P., by Helen M. Oliver and John E. McKnight, for plaintiff-appellee.

    Staci D. Barbour, pro se defendant-appellant.

    MARTIN, Chief Judge.
    Defendant-appellant Barbour (Barbour) is the mother of K.O.S, born 6 November 1999. Barbour and defendant Kanawati (Kanawati) were married to one another when K.O.S. “was conceived and were still married at the time of the child's birth.” On 23 February 2001 plaintiff Smith (Smith) filed both a district court custodyaction and a superior court legitimation action. These appeals relate to the district court proceedings. Barbour defended against the custody claim by asserting that K.O.S. was a child born of her marriage to Kanawati, and thus was presumed to be his legitimate child.
    In the order of temporary custody, filed 8 August 2001, the district court found that Smith believed himself to be the biological father of K.O.S., that they shared a last name, and that Smith had been permitted visitation with K.O.S. until May of 2001, during which time Barbour never indicated to him that he was not the biological father. The district court found that Smith had standing to pursue custody and that he should be permitted visitation. Because Barbour disputed K.O.S.'s paternity, the district court also ordered the parties to submit to a paternity test and, if the paternity test indicated Smith was the father, Barbour was to undergo a mental evaluation due to a past history of anxiety disorders. Barbour appealed this order 14 August 2001.
    After receiving results indicating that he was the biological father, Smith filed a motion to show cause on 1 October 2001 because Barbour had not completed the mental evaluation, and also for modification of the temporary custody order. The district court found Barbour in civil contempt for failing to obtain a mental evaluation. Barbour appealed this order as well and it was consolidated with her appeal of the 14 August 2001 order. This Court reversed the paternity portion of the temporary custody order, holding the district court did not have subject matterjurisdiction to decide paternity since the legitimation action had been filed in superior court. The order for temporary visitation was reversed and remanded due to “the absence of any notice to the child's presumed father, Bilal Kanawati, who was a necessary party to the action.” Smith v. Barbour, 154 N.C. App. 402, 409, 571 S.E.2d 872, 878 (2002), cert. denied, ___ N.C. ___, 599 S.E.2d 408- 09 (2004) (Barbour I).
    On 18 September 2001, Smith amended the petition in the legitimation action, adding Kanawati as a party and seeking “to attach a blood test indicating [Smith] was the biological father of the child.” On 6 June 2002, the trial court granted summary judgment in favor of Smith, declaring him to be the legitimate father of the child. Barbour appealed, among other things, the denial of her motion to dismiss based on lack of subject matter jurisdiction. On 7 December 2004, this Court affirmed, holding that Smith “adequately rebutted the presumption of legitimacy by providing conclusive evidence that he was the child's biological father.” Smith v. Barbour, ___ N.C. App. ___, ___ S.E.2d ___ (December 7, 2004) (COA02-1396), disc. review denied,___ N.C. ___, ___ S.E.2d ___ (March 4, 2005) (No. 024P05) (unpublished) (Barbour II).
    In response to our opinion in Barbour I, Kanawati was joined as a necessary party in the temporary custody matter on 8 May 2003, nunc pro tunc 8 April 2003. His answer alleged, among other things, that 1) he was not the natural father of K.O.S.; 2) he was separated from Barbour at the time of conception, and 3) he had nointerest in having custody or visitation with K.O.S. At the hearing concerning temporary custody on 25 June 2003, Kanawati testified that Barbour told him Smith is the biological father of K.O.S., and that she repeatedly requested that he “claim” K.O.S. as his, offering custody of their child in exchange. Kanawati explained that he does not wish to interfere with Smith's rights to his child, K.O.S., but noted that he feared Barbour having unsupervised visitation with both children at the same time, due to her past history of flight.
    The trial court found, based on testimony at the 25 June 2003 hearing, that after being told by Barbour that he was the father of her child, Smith provided some financial care for Barbour during her pregnancy until she fled from North Carolina with her child from her marriage to Kanawati. Smith did not know Barbour's whereabouts from June 1999 until he received a telephone call in October of that year, telling him that “authorities had found her and [her child] and were removing [her child] from her physical custody.” During this phone call, she also told Smith she feared arrest, and “that she thought she was in labor.” Smith traveled to Nebraska to assist Barbour, and “participated in events surrounding” K.O.S.'s birth. The trial court found that Smith “was present for the birth of the child”, chose K.O.S.'s middle name, and with Barbour, “gave the child [his] surname. [He] offered to put his name on the child's birth certificate as her father, but . . . Barbour chose not to do so.”     The court further found that Smith aided Barbour and K.O.S. while “they remained in Nebraska, and came back with them to North Carolina.” After returning to North Carolina, Smith visited K.O.S. under Barbour's supervision, “purchased clothing for the child and provided transportation for Defendant Barbour for shopping trips since he believed that Defendant Barbour had a fear of driving.” Smith also sought visitation with K.O.S. “outside the presence of Defendant Barbour or her family, but this request was denied.” Smith was permitted “unsupervised periods with the child for a few hours,” once the custody action was filed, but the court noted that Smith was not allowed to “take the child for extended periods.” “In early 2001, a controversy arose between the parties concerning [Smith's] visitation periods” however, and “Barbour refused [Smith] the opportunity to see the child after May, 2001 following an altercation between [Smith] and defendant Barbour's father.”
    The trial court found not credible Barbour's testimony that she did not know whether Kanawati or Smith was the father of the child, but that she believes that Kanawati is the father despite the results of the DNA test, citing an incident in which Barbour secured a domestic violence protective order against Smith, indicating that they had “a child in common.” The trial court found that the “presumption the Defendant Kanawati is the father of the minor child has been rebutted by clear, cogent, and convincing evidence.” After making findings addressing Smith's and Barbour's concerns about one another, the trial court ordered that primaryphysical custody remain with Barbour, but granted Smith custody on alternating weekends, Tuesday evenings, and further provided that:
        f. In the event that the custody evaluation and subsequent court hearing to determine custody is not resolved by November 21, 2003, [Smith] shall have the minor child from the close of school on the child's last day before Thanksgiving until Sunday following Thanksgiving at 6:00 p.m.

        g. In the event that the custody evaluation and subsequent court hearing to determine custody is not resolved by December 19, 2003, [Smith] shall have the minor child from December 19 at noon until December 24 at 8:00 p.m.

        . . . .

        The foregoing holiday and special occasion custodial periods shall supersede and replace any conflicting regular custodial periods.

In addition to the visitation periods, other relevant portions of the order provide guidelines for the custody exchange, including a requirement that the parties keep their cell phones turned on during the exchange period. It also required Barbour to provide Smith with documentation regarding the preschool schedule, K.O.S.'s medical records, and social security card.
    On 11 August 2003, Smith filed a motion for Barbour to show cause why she should not be held in contempt because she had not submitted to a custody evaluation as provided by the 6 June 2003 order and had failed to pay her half share of the costs. He filed another motion and order to show cause on 9 October 2003, alleging: Barbour failed to provide him with preschool enrollment information, a list of health care providers, and a copy of the child's social security card; Barbour did not permit earlyvisitation on the Fridays when K.O.S. was not in school; and that Barbour had not kept her cell phone charged. The motions were heard together on 24 October 2003. The trial court held Barbour in contempt because she had not provided some of the requisite information and had not complied with the 5 June 2003 order for a custody evaluation. Barbour appealed from this contempt order.
    On 29 December 2003, Smith filed a third motion to show cause, alleging that Barbour had willfully failed to comply with the visitation order by failing to notify him that K.O.S. would not be in school on 19 September and 19 December, and by not allowing him weekend visitation on 26 December 2003. After a hearing on 5 March 2004, Barbour was found in contempt of the temporary custody order, due to her denial of Smith's visitation. Barbour agreed to purge herself of contempt by permitting Smith an additional weekend of custodial time in April 2004. Barbour was also ordered to pay attorney's fees to Smith's counsel. Barbour also appealed from this contempt order.

    Because the issues presented by defendant's appeals to this Court arise out of the same action and involve common questions of law, we have consolidated the appeals pursuant to Rule 40 of the North Carolina Rules of Appellate Procedure. In her two appeals, appellant Barbour brings forward forty-eight assignments of error in seven separate arguments. She has not presented arguments in support of the remaining eighteen assignments of error contained inthe records on appeal. Therefore, they are deemed abandoned. N.C. R. App. P. 28(b)(6).
    In summary, appellant argues the trial court erred in holding her in contempt in case COA04-792 because (1) she is not subject to contempt for violation of the order for custody evaluation pursuant to N.C. Gen. Stat. § 1A-1, Rule 37; and (2) the contempt order in COA04-792 was conditional, not self-executing, lacked a purge provision, and did not meet statutory and jurisdictional requirements. In case COA04-1144, she argues (1) she was denied her constitutional right to confront her accuser and that (2) the trial court erroneously ordered her to pay Smith's attorney's fees. In both cases she argues the trial court erred in holding her in contempt because it made inadequate findings that her conduct was wilful; she also contends the trial court lacked jurisdiction since the contempt orders are based on an invalid temporary custody order and that her protected liberty interest in her child prevented a holding of civil contempt. We affirm the orders holding Barbour in contempt, but remand the issue of attorneys' fees for additional findings.
    Barbour's first argument is that the trial court erred by holding her in contempt for violating the custody order because there were inadequate findings as to the wilfulness of her conduct and her ability to pay for the custody evaluation. “Civil contempt is employed to coerce disobedient defendants into complying with orders of court.” Ruth v. Ruth, 158 N.C. App. 123, 126, 579 S.E.2d 909, 912 (2003) (quoting Brower v. Brower, 70 N.C. App. 131, 133,318 S.E.2d 542, 544 (1984)). On appellate review, we must determine if there is competent evidence to support the findings of fact, and whether those findings support the conclusions of law. Sharpe v. Nobles, 127 N.C. App. 705, 709, 493 S.E.2d 288, 291 (1997).
    Failure to comply with a court order is 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 comply with the order.

N.C. Gen. Stat. § 5A-21(a) (2003). Wilful noncompliance “imports knowledge and a stubborn resistance,” and “involves more than deliberation or conscious choice; it also imports a bad faith disregard for authority and the law.” Hancock v. Hancock, 122 N.C. App. 518, 523, 471 S.E.2d 415, 418 (1996) (citations omitted). The evidence must show “knowledge and stubborn resistance” in order “to support a finding of willfulness.” Id.
    Before finding Barbour in contempt the trial court found that the prior orders remained in force, that the purpose of those orders could still be served, that Barbour wilfully failed to comply and that she had the means to comply. The court found that the temporary custody order was clear and unambiguous regarding the holiday visitation schedule, and that Barbour wilfully failed tocomply with the order regarding the weekend of 26 December. Her contention that the trial court failed to find that she could afford the evaluation also lacks merit, since the trial court found that “[d]efendant did not make reasonable efforts to enable her to comply . . . by not establishing a payment schedule or requesting that the hospital waive part of the fees. No evidence was presented that [she] was without financial resources to pay for her share of the evaluation.” Since there was competent evidence before the trial court to support its findings, and those findings support the conclusions of law, the trial court did not err. This argument is overruled.
    Second, Barbour contends the Order for Custody Evaluation is essentially an expanded order for a mental examination, and her failure to comply is not sanctionable by contempt pursuant to N.C. Gen. Stat. § 1A-1, Rule 37(b)(2)(d), which provides that a party who fails to obey a discovery order for a mental or physical evaluation may not be held in contempt. However, Barbour was not sanctioned pursuant to Rule 37 for her failure to make discovery, but rather for her failure to comply with an order entered to assist the court in determining the issue of child custody. The order required the evaluator to assess “the respective strengths and weaknesses of each party as a parent . . . .” Such an order is authorized pursuant to N.C. Gen. Stat. § 8C-1, Rule 706(a), is within the broad discretion accorded the trial court in making custody determinations, and may be enforced by contempt proceedings under N.C. Gen. Stat. § 5A-21. This argument is overruled.    In her third argument, Barbour maintains the 24 October 2003 contempt order was invalid because it was conditional, not self- executing, did not contain a purge provision; and she argues that statutory requirements were not met, which should have divested the trial court of jurisdiction. Defendant again confuses cases imposing contempt as a discovery sanction with those involving civil contempt to enforce a court's order under N.C. Gen. Stat. § 5A-21.
    N.C. Gen. Stat. § 5A-21 allows a trial court to hold a party in contempt for failing to comply with a court order. Since the purpose of civil contempt is to coerce the party to comply with a court order, not to punish, Cox v. Cox, 133 N.C. App. 221, 226, 515 S.E.2d 61, 65 (1999), an order “holding a person in civil contempt must specify how the person may purge himself of the contempt.” N.C. Gen. Stat. § 5A-22 (2003). This requires that the contempt order contain “conditional language” such as that complained of by Barbour. The trial court's order in COA04-792 stated:
        1. Defendant shall comply with the June 5, 2003 Order for Psychological Evaluation within thirty (30) days of the hearing on this matter (October 24, 2003) or show cause or present evidence that she has made efforts to comply with the order.

        2. If Defendant is unable to comply with the Order, she must appear and show that her failure to comply is justifiable or an order for arrest shall be issued.

        3. Defendant shall provide Plaintiff with information regarding the minor child's preschool enrollment pursuant to paragraph 16 of the July 3, 2003 Order by 5:00 p.m. on Monday, October 28, or an order for arrest shall be issued.
This order complied with the requirements of N.C. Gen. Stat. § 5A-22, clearly explaining what Barbour was required to do to purge herself of contempt. Barbour also asserts that it was error to hold her in contempt for item number three when the record indicates that she provided this information on 27 October 2003. Her compliance with the provision merely illustrates that she purged herself of contempt in that respect.
    Barbour also contends this contempt order failed to meet statutory and jurisdictional requirements. She argues that the 9 October 2003 Motion and Order to Show Cause did not comply with the statutory requirement that a sworn statement or affidavit be attached to the motion. She cites Young v. Mastrom, Inc., which states that “[t]he order or notice may only 'be issued on the motion and sworn statement or affidavit of one with an interest in enforcing [a previous] order . . . and a finding by the judicial official of probable cause to believe there is civil contempt.'” 149 N.C. App. 483, 484, 560 S.E.2d 596, 597 (2002) (quoting N.C. Gen. Stat. § 5A-23) (emphasis supplied). She maintains that because the Motion and Order to Show Cause was not signed by plaintiff but by his attorney, the Order should not have issued.
    However, even assuming arguendo that the Motion and Order to Show Cause were procedurally deficient, Barbour appeared pursuant to the notice and thereby waived any procedural defect. “[W]hen the contemnor came into court to answer the charges of the show cause order, he waived procedural requirements.” Lowder v. Mills, Inc., 301 N.C. 561, 583, 273 S.E.2d 247, 260 (1981), reversed in part onother grounds, 309 N.C. 695, 309 S.E.2d 193 (1983). In her brief, Barbour acknowledges that she “is not arguing that she did not have sufficient notice, but rather that the statutorily required affidavit was absent.” Therefore, this argument is overruled.
    In her fourth argument, Barbour asserts that her constitutional right to confront her accuser was denied because Smith was not present at the contempt hearing. This argument overlooks the distinction between criminal and civil contempt. Barbour relies on Cotton Mills v. Local 578, where our Supreme Court stated that
        our Constitution, synonymous with due process of law, guarantees to one charged with contempt of court by an asserted willful violation of a restraining order a right, when he denies the asserted violation, to confront and cross-examine witnesses by whose testimony the asserted violation is to be established. Such right of confrontation and cross-examination has been repeatedly declared in analogous situations.

251 N.C. 218, 228, 111 S.E.2d 457, 463 (1959), cert. denied, 362 U.S. 941, 4 L. Ed. 2d 770 (1960). Later cases, however, distinguish between civil and criminal contempt, although “the demarcation between the two may be hazy at best.” O'Briant v. O'Briant, 313 N.C. 432, 434, 329 S.E.2d 370, 372 (1985). Where contempt is retrospective, for actions interfering “with the administration of justice,” the contempt is criminal; civil contempt is prospective and designed to coerce a party to comply with court orders. Id. The dispositive distinction is the ability to purge oneself; “where the relief is imprisonment, but the contemnor may avoid or terminate imprisonment by performing an actrequired by the court, then the contempt is civil in nature.” Hancock, 122 N.C. App. at 522, 471 S.E.2d at 418. Civil contempt does not require all the procedural and evidentiary standards of criminal contempt. See Hartsell v. Hartsell, 99 N.C. App. 380, 388, 393 S.E.2d 570, 575 (1990), aff'd, 328 N.C. 729, 403 S.E.2d 307 (1991) (noting that where punitive relief was not ordered, “the trial court was not required to afford the defendant all procedural and evidentiary safeguards required for criminal contempt proceedings”). Here, Barbour was able to purge herself by completing the required action. Therefore, the court was not obligated to provide Barbour with confrontation rights and her argument is overruled.
    Next, Barbour argues the trial court never had the authority to issue the contempt orders since they enforce an invalid temporary custody order, based on the results of the DNA test held invalid by this Court in Barbour I, 154 N.C. App. at 409, 571 S.E.2d at 878. This argument is without merit. Barbour presented the same argument in Barbour II and this Court held the legitimation order valid, and the DNA test admissible, despite the fact that the paternity adjudication was invalid. Finding that a second DNA test would have been “redundant,” this Court held that Smith “adequately rebutted the presumption of legitimacy by providing conclusive evidence that he was the child's biological father.” Noting that Barbour did not object to the test's accuracy, this Court held that summary judgment declaring that Smith is K.O.S.'s father was not erroneous. Since a prior panel ofthis Court has ruled on the issue of the validity of the DNA test, we note that the temporary custody order is not based on an “invalid” or “void” DNA test, and we are bound by their holding regarding K.O.S.'s paternity. See Weston v. Carolina Medicorp, Inc., 113 N.C. App. 415, 417, 438 S.E.2d 751, 753 (1994) (“According to the doctrine of the law of the case, once an appellate court has ruled on a question, that decision becomes the law of the case and governs the question both in subsequent proceedings in a trial court and on subsequent appeal”).
    In her sixth argument, Barbour maintains that her constitutional liberty interest in her child is violated by the trial court holding her in civil contempt. As K.O.S.'s mother, Barbour argues, she has primary rights to K.O.S. against third parties. We are bound by the law of the case as to this issue as well. In Barbour I, the Court stated:
        [Smith]'s status for purposes of temporary custody remained that of a third party under Ellison. Yet even as a third party, [Smith] had standing to bring this action because the district court's findings that the child shared [Smith]'s last name and [Smith] had visited the child since her birth two years prior to this action indicated the existence of a sufficient relationship. As such, the trial court had the authority to enter a temporary custody order.

154 N.C. App. at 409, 571 S.E.2d at 878 (citing Ellison v. Ramos, 130 N.C. App. 389, 395, 502 S.E.2d 891, 895, disc. review denied, 349 N.C. 356, 517 S.E.2d 891-92 (1998)) (“where a third party and a child have an established relationship in the nature of aparent-child relationship, the third party does have standing . . . to seek custody.”)
    This Court has never held that Smith lacked standing to bring suit and has held that the district court had the authority to enter the custody order. This Court remanded the custody order because defendant Kanawati, a necessary party, was not given notice. Once given notice, Kanatawi answered that he does not believe K.O.S. is his child, and does not seek a relationship with K.O.S. In continuing to rely upon her selective reading of Barbour I, Barbour neglects to recognize that Smith, the biological father of K.O.S., has equivalent standing to hers. Barbour erroneously maintains that Smith has no standing due to the vacated paternity order, but as noted above, this Court had already determined that Smith has rights to K.O.S. as the biological father.
    Finally, Barbour asserts that the trial court's award of attorney's fees to Smith in the 19 April 2004 contempt order was erroneous because it was not based upon findings regarding Barbour's ability to pay. “An award of attorneys' fees will be stricken only if the award constitutes an abuse of discretion.” Cox, 133 N.C. App. at 228, 515 S.E.2d at 66. “[B]efore attorney's fees can be taxed in an action for custody . . . the facts required by the statute--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--must be both alleged and proved.” Taylor v. Taylor, 343 N.C. 50, 54, 468 S.E.2d 33, 35, reh'g denied, 343 N.C. 517, 472 S.E.2d 25-26 (1996). This is “aquestion of law, reviewable on appeal.” Cox, 133 N.C. App. at 228, 515 S.E.2d at 66. The statute provides, in pertinent part:
        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.

N.C. Gen. Stat. § 50-13.6 (2003).
    The trial court ordered Barbour to pay attorney's fees after finding: “[t]he Plaintiff's Affidavit of Attorney's Fees in the amount of $801.50 are reasonable considering the time, legal expertise, trial time, and effort expended in this type of action, and the Plaintiff brought this action in good faith.” The trial court erred, however, in making no findings that Smith had insufficient means to defray the expense of the suit. Cox, 133 N.C. App. at 228, 515 S.E.2d at 66. Therefore, we must vacate the order for attorneys' fees and remand that issue for additional findings regarding Smith's inability to defray the costs of the suit.
    The orders from which defendant Barbour appeals are affirmed. That portion of the 19 April 2004 order which awards attorneys' fees to plaintiff is vacated, and the issue of attorneys' fees is remanded to the trial court for further proceedings consistent with this opinion.
    COA04-792 - Affirmed.
    COA04-1144 - Affirmed in part, vacated in part, and remanded.
    Judges HUDSON and JACKSON concur.
    Report per rule 30(e).

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