Opinion
No. COA12–829.
2013-03-5
Thomas J. BAINES, Jr., Plaintiff, v. Kimberly R. BAINES, Defendant.
Law Offices of Hayes Hofler, P.A., by R. Hayes Hofler, III, Durham, for defendant-appellant. Cheri C. Patrick, Durham, for plaintiff-appellee.
Appeal by defendant from orders entered 24 February 2012 and 5 March 2012 by Judge James T. Hill in Durham County District Court. Heard in the Court of Appeals 11 December 2012. Law Offices of Hayes Hofler, P.A., by R. Hayes Hofler, III, Durham, for defendant-appellant. Cheri C. Patrick, Durham, for plaintiff-appellee.
HUNTER, ROBERT C., Judge.
Kimberly R. Baines (“defendant”) appeals from the trial court's order finding her in contempt of court for the willful violation of a 2007 consent order for her refusal to allow Thomas J. Baines, Jr. (“plaintiff”) to exercise his visitation rights with the parties' daughter, Jessica.
Defendant also appeals from a separate order in which the trial court ordered defendant to pay plaintiff's attorney's fees. After careful review, we affirm the trial court's order finding defendant in contempt of court but reverse the order awarding attorney's fees to plaintiff.
“Jessica” is a pseudonym used to identify the parties' minor child.
Background
Plaintiff and defendant were married in 1994, had one child of the marriage in 2003, and were divorced in 2005. In August 2007, the parties entered into a consent order (“the consent order”) the terms of which provided that defendant was to maintain “sole custody” of their daughter and that plaintiff was entitled to visitation with Jessica, including alternating weekends and one weekday visit every week. The consent order also provided that the parties had agreed to utilize a parenting coordinator and required the entry of a separate order appointing a coordinator within 30 days of entry of the consent order. Although the order appointing a parenting coordinator does not appear in the record, the parties utilized Bonnie Ferrell (“Ms.Ferrell”) as a parenting coordinator until approximately 2009. Plaintiff and defendant apparently abided by the consent order without further involvement of the courts until 2011.
In August 2011, plaintiff invited his brother William Baines (“Andy”) to live in plaintiff's home. Andy had a history of drug abuse and a criminal history from crimes committed in support of his drug addiction, and he was on probation at the time he came to live with plaintiff. In September or October 2011, Andy was arrested for violation of his probation, but he was released from custody to reside with plaintiff in November 2011.
At the time plaintiff and defendant were married, defendant knew of Andy's drug problems. As of August 2011, defendant knew that Andy was living with plaintiff, but she did not object to the living arrangement until December 2011. In December 2011, defendant contacted Ms. Ferrell and expressed her concern that Andy was living with plaintiff. Ms. Ferrell communicated defendant's concern to plaintiff, but plaintiff did not agree that Andy's presence was a cause for concern.
Pursuant to the consent order, plaintiff was scheduled to have Jessica visit his home for the weekend of 16–18 December 2011. Defendant, however, refused to allow Jessica to visit plaintiff on 16 December and limited her visitations with plaintiff on 17 and 18 December such that Jessica did not stay at plaintiff's home overnight. Plaintiff contends he consented to the limitations on Jessica's weekend visit as defendant would have refused to let Jessica visit had he not agreed to defendant's demands. Defendant also insisted on conditions for Jessica's future visits including the Christmas holiday. Plaintiff retained counsel, and Jessica's Christmas visit occurred in accordance with the consent order.
In January 2012, however, defendant again prevented Jessica's visitations with plaintiff. On 6 January, defendant informed plaintiff, through counsel, that she was “suspending” plaintiff's visitation with his daughter, and she refused to allow Jessica to visit her father on a scheduled visitation the weekend of 6–8 January. The following Monday, 9 January, plaintiff was scheduled to have his daughter visit for dinner but defendant again prevented Jessica from visiting. From December 2011 through January 2012, plaintiff lost a total of 80 hours of visitation with his daughter.
On 9 January 2012, plaintiff filed a motion requesting that the trial court order defendant to show cause as to why she should not be held in contempt of court for her violations of the consent order. On the same day, defendant filed a motion requesting a modification of the consent order alleging that plaintiff created an unsafe environment for Jessica by permitting Andy to live at plaintiff's home. The motions came on for a hearing on 9 February 2012 in Durham County District Court, Judge James T. Hill presiding. In an order entered 24 February 2012, the trial court concluded that: defendant was at all times able to comply with the consent order; defendant's refusal to allow plaintiff to exercise his scheduled visitations with Jessica and her insistence on unauthorized restrictions on plaintiff's visitations constituted a willful violation of the consent order; and defendant was not entitled to a modification of the consent order. The trial court found defendant in contempt for her willful violation of the consent order and held that plaintiff was entitled to recoup his lost visitation with Jessica. On 5 March 2012, the trial court entered a separate order awarding plaintiff reasonable attorney's fees in the amount of $4,500. Defendant appeals from both orders.
Discussion
Defendant argues that the trial court erred in finding her in contempt of the parties' consent order because her actions in violation of the order were not willful as she was trying to protect her daughter from what she perceived was a dangerous situation. We disagree.
Our review of a trial court's order in a contempt proceeding “is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law.” Watson v. Watson, 187 N.C.App. 55, 64, 652 S.E.2d 310, 317 (2007). If the findings of fact are supported by any competent evidence, they are binding on appeal, and we review them only for their sufficiency to support the judgment. Id.
Civil contempt is founded on “a willful violation of a lawful court order,” and requires: “ ‘(1) an ability to comply with the court order; and (2) a deliberate and intentional failure to do so.’ ” Id. at 66, 652 S.E.2d at 318 (quoting Sowers v. Toliver, 150 N.C.App. 114, 118, 562 S.E.2d 593, 596 (2002)).
“Willful” has been defined as “disobedience ‘which imports knowledge and a stubborn resistance,’ and as ‘something more than an intention to do a thing. It implies doing the act purposely and deliberately, indicating a purpose to do it, without authority—careless whether [the contemnor] has the right or not—in violation of law....’ ”
Hancock v. Hancock, 122 N.C.App. 518, 523, 471 S.E.2d 415, 418 (1996) (quoting Jones v. Jones, 52 N.C.App. 104, 110, 278 S.E.2d 260, 264 (1981)) (alteration in original).
In Hancock, 122 N.C.App. at 523, 471 S.E.2d at 418, we reversed the trial court's order finding the plaintiff-mother in contempt for her alleged willful refusal to allow the defendant-father his visitation with the parties' child. The evidence in that case established that the mother prepared and encouraged the child to go with his father during scheduled visitations, told the child he had to visit with his father, and did “everything possible short of using physical force or a threat of punishment to make the child go[,]” but the child “simply refused” to cooperate. Id. at 525, 471 S.E.2d at 419. There was no evidence that the mother “acted purposefully and deliberately or with knowledge and stubborn resistance to prevent [the father's] visitation with the child.” Id.
Here, in contrast, defendant testified that on multiple occasions from December 2011 through January 2012 she prevented plaintiff from exercising his visitation rights. Defendant acknowledged that the 2007 consent order establishing plaintiff's visitation rights did not give her the authority to terminate plaintiff's visitations and that nothing prevented her from permitting plaintiff's visitations with Jessica except for her concern for Jessica's safety. Thus, the trial court's findings that at all times defendant had the ability to comply with the consent order but that she chose not to do so are supported by competent evidence.
Defendant argues that even if she did violate the consent order she should not be held in contempt as she “did not really make a conscious choice to disobey” given her concern for her daughter's safety. We find this argument to be without merit.
Additionally, defendant argues that she should not be held in contempt because she did not act in bad faith. Defendant emphasizes that before she chose not to comply with the consent order, she engaged a parenting coordinator to avert what she perceived as a danger to Jessica. In support of her argument, defendant cites Forte v. Forte, 65 N.C.App. 615, 616, 309 S.E.2d 729, 730 (1983), in which we affirmed the trial court's conclusion that a father did not willfully violate a child support order where he relied in good faith on the mother's agreement to support the child herself in return for the father's waiver of his visitation rights. Id. Here, there is no evidence of defendant's good faith reliance on plaintiff's agreement to limit his visitation rights. Rather, the evidence supports the trial court's conclusion that plaintiff agreed to defendant's demands to prevent losing additional visitation with his daughter until a hearing could be held on the matter.
Defendant's reliance on Meehan v. Lawrence, 166 N.C.App. 369, 382, 602 S.E.2d 21, 29 (2004), is also misplaced. In Meehan, we concluded that although the parties could not modify a child support order through an extrajudicial agreement, the evidence of the parties' oral agreement that the father would reduce his child support payments supported the trial court's finding that the father did not willfully violate the support order when he acted in accordance with the parties' oral agreement. Id. at 382–83, 602 S.E.2d at 30. The mother failed to show the father's “ ‘stubborn resistance’ to pay child support.” Id. at 383, 602 S.E.2d at 29–30 (citation omitted). The facts of this case are distinguishable as the evidence establishes that it was defendant who prohibited Jessica from visiting her father on multiple occasions and through her insistence procured some concessions from plaintiff by which he temporarily curtailed his visitation rights. We conclude this evidence establishes that defendant violated the 2007 consent order purposely and deliberately, and that the trial court did not err in finding defendant in contempt.
Next, defendant argues that the trial court erred in awarding plaintiff attorney's fees because it failed to make sufficient findings of fact that plaintiff acted in good faith and had insufficient means to defray the expense of the suit. Defendant further argues that there was insufficient evidence that defendant had insufficient means to defray the expense of the suit. We agree there is insufficient evidence to support the award.
Pursuant to N.C. Gen.Stat. § 50–13.6, in a custody action, a trial court has the discretion to award attorney's fees “to an interested party when that party is (1) acting in good faith and (2) has insufficient means to defray the expense of the suit.” Hudson v. Hudson, 299 N.C. 465, 472, 263 S.E.2d 719, 723 (1980). Facts supporting these elements must be alleged and proved. Id. “Whether these statutory requirements have been met is a question of law, reviewable on appeal. When the statutory requirements have been met, the amount of attorney's fees to be awarded rests within the sound discretion of the trial judge and is reviewable on appeal only for abuse of discretion.” Id. at 472, 263 S.E.2d at 724 (emphasis and internal citation omitted).
Here, the trial court concluded that plaintiff acted in good faith, and our review of the record leads us to conclude that competent evidence supports that conclusion. While defendant was in willful violation of the consent order, plaintiff complied with his obligations under the order and attempted to accommodate defendant's unjustified demands until the matter could be resolved in court. However, our review of the record reveals no evidence to support the trial court's conclusion that plaintiff had insufficient means to defray the costs of the litigation. It is apparent from the transcript that plaintiff's counsel discussed his client's income and expenses with the trial court, however, “ ‘the arguments of counsel are not evidence.’ ” Plummer v. Plummer, 198 N.C.App. 538, 548, 680 S.E.2d 746, 753 (2009) (citation omitted). The affidavit of plaintiff's income and expenses relied on by plaintiff's counsel in this discussion with the trial court does not appear to have been submitted as an exhibit during the hearing, and it was not included in the record on appeal. Without evidence to support the trial court's finding that plaintiff had insufficient means to defray the costs of the litigation, we must reverse the award of attorney's fees.
The trial court's 24 February 2012 order finding defendant in contempt of court is AFFIRMED.
The trial court's 5 March 2012 order awarding plaintiff attorney's fees is REVERSED. Judges McGEE and ELMORE concur.
Report per Rule 30(e).