Appeal by defendant from an order entered 26 January 2005 by
Judge Chester C. Davis in Forsyth County District Court. Heard in
the Court of Appeals 7 December 2005.
Glenn M. Walker, plaintiff-appellee, pro se.
White and Crumpler, by Laurie A. Kelly, for defendant-
appellant.
HUNTER, Judge.
Stacey R. Hamer (“defendant”) appeals from a contempt order
entered 26 January 2005. For the reasons stated herein, we affirm
the order.
Defendant and Glenn M. Walker (“plaintiff”) are the parents of
A.G.W. Defendant and plaintiff did not marry, but an order was
entered 21 November 2000 establishing paternity and granting joint
legal custody to the parties. Defendant was granted primary
residential custody and plaintiff was granted secondary residential
custody with liberal visitation.
Defendant and plaintiff lived in different parts of North
Carolina. In an order entered 13 February 2004, the trial courtdirected that the parties meet at Exit 281 on Interstate 40, half-
way between their respective residences, to exchange A.G.W. for
visitation every other weekend at 5:30 p.m. Plaintiff made a show
cause motion to hold defendant in contempt on 23 September 2004 for
defendant's failure to comply with the visitation schedule on
several occasions.
In an order entered 26 January 2005, the trial court held
defendant in civil contempt for failure to comply with the 13
February 2004 order by denying defendant visitation with A.G.W.
The trial court also ordered that:
1. Defendant shall purge herself of contempt
by paying $675.00 toward plaintiff's
attorney fees on or before 20 December
2004.
. . .
3. Should the Court find during this six-
month period that defendant has committed
an additional act of contempt, such will
be grounds for primary physical custody
of [A.G.W.] to go to his father.
Defendant appeals from this order.
I.
Defendant first contends that the trial court's order that a
finding of an additional act of contempt in the six months
following the entry of the order would be grounds for a change of
custody is error. We find this issue to be moot.
In
Smithwick v. Frame, 62 N.C. App. 387, 391, 303 S.E.2d 217,
220 (1983), this Court addressed a challenge to a contempt order
reserving punishment for the defendants until final disposition of
the child custody matter. The trial court elected not to punishdefendants when the final disposition of the custody order was
entered.
Id. As the defendants “suffered no injury or prejudice
as a result of the contempt order,” the trial court found the
assignments of error to be moot.
Id.
Similarly here, no finding was made during the now expired
six-month period following the entry of the order that defendant
had committed an additional act of contempt. As defendant suffered
no injury or prejudice, we find that defendant's related
assignments of error regarding change of custody are moot.
We further note that defendant moved to withdraw related
assignments of error as to venue and jurisdiction and this motion
has been granted. We therefore do not address these assignments of
error.
II.
Defendant finally contends that the trial court may not order
her to pay plaintiff's attorney fees to purge herself of contempt
without further findings that plaintiff acted in good faith and had
insufficient means to defray the costs of the action. We disagree.
N.C. Gen. Stat. § 50-13.6 (2003) states in pertinent part
that:
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.
Id. However, “[t]he court is vested with broad power when it is
authorized to punish 'as for contempt.'”
Blair v. Blair, 8 N.C.
App. 61, 63, 173 S.E.2d 513, 514 (1970) (citations omitted).
Included in such broad power is “the authority for a district court
judge to require one whom he has found in wilful contempt of court
for failure to comply with a child [custody] order entered pursuant
to G.S. 50-13.1, et seq., to pay reasonable counsel fees to
opposing counsel as a condition to being purged of contempt.”
Id.
Here, the trial court ordered defendant to pay a portion of
plaintiff's attorney's fees as a punishment in making it a
condition to be purged of contempt, rather than a discretionary
award pursuant to N.C. Gen. Stat. § 50-13.6. Therefore, findings
as to plaintiff's good faith and insufficient means were
unnecessary. We find the trial court did not err in its order.
As the trial court did not err in its order that defendant pay
a portion of plaintiff's attorney's fee as a condition to purge
herself of contempt, and as defendant's other assignments of error
are moot or have been withdrawn by defendant's own motion, we
affirm the trial court's order of contempt.
Affirmed.
Judges McCULLOUGH and GEER concur.
Report per Rule 30(e).
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