Opinion
COA22-20
04-04-2023
CLARENCE THEODORE MANN, Plaintiff, v. SHEREE VAICKUS, Defendant.
Rik Lovett &Associates, by S. Thomas Currin, II, for Plaintiff-Appellant. Jackson Family Law, by Jill Schnabel Jackson, for Defendant-Appellee.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
Heard in the Court of Appeals 23 August 2022.
Appeal by Plaintiff from orders entered 1 April 2021 by Judge David K. Baker in Wake County District Court. No. 14 CVD 16153
Rik Lovett &Associates, by S. Thomas Currin, II, for Plaintiff-Appellant.
Jackson Family Law, by Jill Schnabel Jackson, for Defendant-Appellee.
CARPENTER, Judge.
Clarence Theodore Mann ("Plaintiff-Father") appeals from several orders entered on 1 April 2021, which modified physical and legal custody, child support, and adjudicated him in civil contempt of a prior child support order. After careful review, we remand for entry of a child custody order with findings of fact supporting its conclusions of law-without internal contradictions-and affirm the matter in all other respects.
I. Factual and Procedural Background
Plaintiff-Father and Sheree Vaickus ("Defendant-Mother") were married on 11 August 2004 before divorcing on 30 January 2015. They have one child together, M.T.M., who is nearly thirteen years old. M.T.M. is significantly delayed in school due to severe hearing loss, which requires extensive intervention to meet her special health and educational needs, such as speech therapy, reading and remediation classes, hearing aids, audiology services, and additional pediatric medical care.
Initials have been used to protect the identity of the minor child.
On 7 October 2015, three orders, which addressed custody, child support, and a specific performance issue, were entered and resolved all outstanding claims and motions in the divorce action. Thereafter, beginning on 8 September 2017, the parties filed several motions regarding custody and child support, which resulted in the entry of two consent orders resolving disputed issues as of 19 March 2019. By consent, these orders: appointed a Parent Coordinator ("PC") for a one-year term; provided the parties would exercise joint legal custody with a tiebreaker provision; modified physical custody to give primary custody to Defendant-Mother during the school year and primary custody to Plaintiff-Father during the summer; and provided no base child support but set the parties' respective responsibilities for certain child-related expenses.
The litigation that is the subject of this appeal commenced 22 April 2019 when Plaintiff-Father filed a motion to replace the PC. On 4 December 2019, Defendant-Mother moved for modification of child custody, modification of child support, and civil contempt. The parties filed additional motions which are not directly relevant to our analysis. All motions came before the Honorable David K. Baker in Wake County District Court on 18, 19, and 22 February 2021.
The hearing resulted in five orders entered on 1 April 2021: (1) Child Custody Modification Order ("Child Custody Order"), which granted Defendant-Mother primary physical custody and primary legal custody with respect to health and education; (2) Order Appointing PC By Consent; (3) Child Support Modification Order ("Child Support Order"); (4) Contempt Order; and (5) Attorney Fees Order. On 7 April 2021, the trial court entered an Order Confirming Satisfaction of Purge Conditions Resolving Plaintiff's Civil Contempt ("Satisfaction Order"). The Satisfaction Order resolved Plaintiff-Father's civil contempt after he made certain payments totaling $11,723.50, comprised of $9,223.50 in child-related expenses and $2,500.00 in attorney's fees. Plaintiff-Father filed timely notice of appeal on 15 April 2021.
II. Jurisdiction
Four of the five orders entered 1 April 2021-excluding the interlocutory Contempt Order-are immediately appealable final judgments of a district court in a civil action, despite the interlocutory nature of the contempt issue. See N.C. Gen. Stat. § 7A-27(b)(2) (2021); see also N.C. Gen. Stat. § 50-19.1 (2021) ("Notwithstanding any other pending claims filed in the same action, a party may appeal from an order or judgment adjudicating a claim for . . . child custody [or] child support . . . if the order . . . would otherwise be a final order . . . but for the other pending claims in the same action."). Plaintiff-Father has met his burden on appeal of establishing the Contempt Order affects a substantial right; therefore, the Contempt Order is subject to immediate appeal per N.C. Gen. Stat. § 7A-27(b)(3)(a). See Guerrier v. Guerrier, 155 N.C.App. 154, 158, 574 S.E.2d 69, 71 (2002) ("The appeal of any contempt order, however, affects a substantial right and is therefore immediately appealable.").
III. Issues
The issues before this Court are whether the trial court erred in: (1) modifying child custody; (2) modifying child support; and (3) adjudicating Plaintiff-Father in civil contempt for nonpayment of child-related expenses. We address each issue in turn.
IV. Analysis
A. Modification of Custody
First, Plaintiff-Father asserts the trial court erred by: issuing Finding of Fact 53 of the Child Custody Order ("Finding 53"), because it conflicts with the conclusion to modify custody and is binding on appeal; adopting a disproportionate number of Defendant-Mother's proposed findings and conclusions; and determining that M.T.M.'s best interests would be served by granting Defendant-Mother primary physical and legal custody with respect to education and healthcare decisions. After careful review, we agree with Plaintiff-Father's argument regarding Finding 53 and remand to the trial court for entry of a revised custody order.
"It is a long-standing rule that the trial court is vested with broad discretion in cases involving child custody." Pulliam v. Smith, 348 N.C. 616, 624, 501 S.E.2d 898, 902 (1998) (citation omitted); see also In re Peal, 305 N.C. 640, 645, 290 S.E.2d 664, 667 (1982) ("[T]he presiding judge, who has the unique opportunity of seeing and hearing the parties, witnesses and evidence at trial, is vested with broad discretion in [custody] cases[.]" (emphasis in original)). "Absent an abuse of discretion, the trial court's decision in matters of child custody should not be upset on appeal." Everette v. Collins, 176 N.C.App. 168, 171, 625 S.E.2d 796, 798 (2006). "Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." In re A.M.C., 381 N.C. 719, 723, 874 S.E.2d 493, 496 (2022) (citation omitted).
"When reviewing a trial court's decision to grant or deny a motion for the modification of an existing child custody order, the appellate courts must examine the trial court's findings of fact to determine whether they are supported by substantial evidence." Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003) (citation omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). "Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal." Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
"In addition to evaluating whether a trial court's [challenged] findings of fact are supported by substantial evidence, this Court must determine if the trial court's factual findings support its conclusions of law." Shipman, 357 N.C. at 475, 586 S.E.2d at 254. "If the trial court's uncontested findings of fact support its conclusions of law, [this Court] must affirm the trial court's order." Respess v. Respess, 232 N.C.App. 611, 614, 754 S.E.2d 691, 695 (2014) (internal quotation omitted).
1. Findings and Conclusions
Plaintiff-Father argues Finding 53 is binding on appeal, and its final sentence does not support the conclusion of law to transfer primary legal and physical custody to Defendant-Mother. In response, Defendant-Mother cites a case regarding a scrivener's error in reducing a verbal agreement to writing, and asserts the trial court unintentionally omitted the word "not[,]" meaning Finding 53 should read "that were [not] in the best interests of the child." See Archer v. McClure, 166 N.C. 140, 141, 81 S.E. 1081, 1083 (1914). After careful review, we agree with Plaintiff-Father.
"Evidence must support findings; findings must support conclusions; conclusions must support the judgment. . . . [E]ach link in the chain of reasoning must appear in the order itself." Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980). "A judgment will not be supported by findings of fact . . . which are actually antagonistic, inconsistent, or contradictory as to material matters." Spencer v. Spencer, 70 N.C.App. 159, 168, 319 S.E.2d 636, 643-44 (1984) (citing Lackey v. Hamlet City Bd. of Ed., 257 N.C. 78, 84, 125 S.E.2d 343, 347 (1962)).
Plaintiff-Father has not disputed the trial court's finding of fact or conclusion of law that a substantial change in circumstances occurred warranting a modification of child custody. See Pulliam, 348 N.C. at 619, 501 S.E.2d at 899. Accordingly, this conclusion and its factual basis are binding on appeal. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731. Furthermore, Defendant-Mother did not file a cross appeal contesting Finding 53, so it is likewise binding on appeal. See id. at 97, 408 S.E.2d at 731.
Finding 53 states,
The exercise of joint legal custody has been problematic in this case due to Plaintiff's failure to substantively respond to Defendant about decisions for the child, which forces Defendant to choose whether to make a decision for the benefit of the child without Plaintiff's consent or to wait for a consent from Plaintiff that may never happen. It is unfair and detrimental to the child, and not in her best interest, to delay necessary medical, health and educational decisions when Plaintiff historically has deferred to Defendant's decision-making. There is no evidence that Defendant has engaged in or made decisions as a coparent that were in the best interests of the child. (emphasis added).
Plaintiff-Father maintains the final sentence of Finding 53 does not support the trial court's conclusion to award Defendant-Mother primary physical and legal custody. As written, the final sentence of Finding 53 internally contradicts the other two sentences contained in Finding 53 and all additional findings tending to support the trial court vesting primary legal custody with Defendant-Mother. See Spencer, 70 N.C.App. at 168, 319 S.E.2d at 643-44.
A trial court's award of primary physical and legal custody to a parent absent "evidence that [parent] has engaged in or made decisions as a coparent that were in the best interests of the child[,]" would likely "not . . . be[ ] the result of a reasoned decision." See In re A.M.C., 381 N.C. at 723, 874 S.E.2d at 496. Based on the context of Finding 53, let alone the direction of the oral forecast of ruling and remaining findings, it is likely the trial court intended the opposite meaning. Nevertheless, we must take the trial court's written judgment as we find it, because its unchallenged findings are binding on appeal. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731.
For reasons unbeknownst to us, the majority of the trial court's oral forecast of ruling was unable to be transcribed. Nonetheless, a portion of the trial court's forecast regarding custody was properly recorded and transcribed.
The final sentence of Finding 53 contradicts the remaining findings of fact, which support a transfer of primary legal and physical custody to Defendant-Mother. See Spencer, 70 N.C.App. at 168, 319 S.E.2d at 643-44. Accordingly, we remand for entry of a new child custody order with findings of fact supporting its conclusions of law, without internal contradictions. See Shipman, 357 N.C. at 475, 586 S.E.2d at 254. Having concluded the final sentence of Finding 53 is internally inconsistent and contradicts the thrust of the remaining findings of fact, we do not reach the question of whether the trial court's findings of fact support its conclusion of law regarding M.T.M.'s best interests.
2. Defendant-Mother's Proposed Order
Plaintiff-Father next asserts the trial court improperly delegated its factfinding duty by adopting the majority of Defendant-Mother's proposed order with little-to-no modification, thus constituting an abuse of discretion. Specifically, he asserts fifty-four of the trial court's eighty numbered paragraphs are taken verbatim from the proposed order, and eleven of the additional twenty-six findings were included with only minor changes. Plaintiff-Father also seeks to bolster his argument with the observation that Finding 53 is contained verbatim in Defendant-Mother's proposed order-purported error and all.
In support of his argument, Plaintiff-Father cites In re J.S., a juvenile case wherein the trial court improperly delegated its fact-finding duty by incorporating by reference a department of social services court report and mental health report as findings of fact. 165 N.C.App. 509, 511, 598 S.E.2d 658, 660 (2004). In re J.S. is factually distinguishable because the instant case does not involve an instance of wholesale incorporation by reference. As both parties correctly note, the trial court supplemented and made certain changes to the proposed order, including multiple findings of fact recognizing Plaintiff-Father's love for M.T.M.
In juvenile cases we have observed, "when examining whether a trial court's fact findings are sufficient, we will examine whether the record of the proceedings demonstrates that the trial court, through processes of logical reasoning, based on the evidentiary facts before it, found the ultimate facts necessary to dispose of the case." In re J.W., 241 N.C.App. 44, 45-46, 772 S.E.2d 249, 251 (2015); see In re M.R.D.C., 166 N.C.App. 693, 698, 603 S.E.2d 890, 893 (2004) ("[A]lthough the trial court may properly incorporate various reports into its order, it may not use these as a substitute for its own independent review."). We went on to explain, "[i]f we are confident the trial court did so, it is irrelevant whether those findings appear cut-and-pasted from a party's earlier pleading or submission." In re J.W., 241 N.C.App. at 45-46, 772 S.E.2d at 251.
When reviewing allegations of improper delegation of fact-finding duty, the relevant inquiry is not a math formula or a strict comparison between proposed orders and the final judgment; rather, the question is whether the trial court independently reviewed and applied logical reasoning to the evidence of record to find the facts necessary to dispose of the issues before it. See id., 241 N.C.App. at 45-46, 772 S.E.2d at 251.
In this case, we again note that Plaintiff-Father has not challenged a single finding of fact as unsupported by the evidence. The fact that the phrasing of Finding 53 matches the proposed order is instructive but not outcome-determinative to our inquiry. Our review reveals the trial court weighed the evidence and found the facts necessary to dispose of the case, including Plaintiff-Father being less attuned to the child's unique educational and healthcare needs than Defendant-Mother. See id. at 45-46, 772 S.E.2d at 251.
B. Modification of Child Support
Plaintiff-Father next argues the trial court erred in: establishing M.T.M.'s reasonable needs at $6,781.00 per month because Plaintiff-Father is due a credit for parenting time expenses; allocating $6,103.00 per month responsibility to Plaintiff-Father and $678.00 per month to Defendant-Mother, given her level of income; and calculating Defendant-Mother's income as $106,638.00 per year.
"Child support orders entered by a trial court are accorded substantial deference by appellate courts and our review is limited to a determination of whether there was a clear abuse of discretion." Leary v. Leary, 152 N.C.App. 438, 441, 567 S.E.2d 834, 837 (2002). "Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." In re A.M.C., 381 N.C. at 723, 874 S.E.2d at 496. Where the parties' combined adjusted gross income is higher than the Guidelines threshold-presently $30,000.00 per month-"[t]he Guidelines are inapplicable at bar and the trial court [is] required to make a case-by-case determination" based on the child's reasonable needs and standard of living. Meehan v. Lawrance, 166 N.C.App. 369, 383-84, 602 S.E.2d 21, 30 (2004). Again, Plaintiff-Father has not disputed the trial court's finding of fact or conclusion of law that a substantial change in circumstances occurred warranting a modification of child support, so this conclusion and its factual basis are binding on appeal. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731.
First, Plaintiff-Father's assertion as to a parenting time credit is without merit, as such considerations are within the discretion of the trial court. Brinkley v. Brinkley, 135 N.C.App. 608, 612, 522 S.E.2d 90, 93 (1999) ("[T]he imposition of a credit is not an automatic right even when the trial court finds that one party has overpaid his child support obligation."). Second, the trial court did not err in closely scrutinizing Plaintiff-Father's assets and financial statements because Plaintiff Father failed to produce financial documentation for fiscal year 2020, the year of the trial, and he also failed to serve a financial affidavit from which the trial court could determine his monthly expenses. Finding of Fact 23, addressing the trial court's methodology in calculating Plaintiff-Father's income, exceeds three pages and is supported by unchallenged findings of fact.
Defendant-Mother and her current husband, Mr. Vaickus, own and operate "Your Right Hand, Inc." (75% Defendant-Mother, 25% Mr. Vaickus), which has an operations and branding contract with Akta PD, LLC (49% Defendant-Mother, 51% Mr. Vaickus), an entity also owned and operated by the couple. Based on Defendant Mother's tax returns and Exhibit 379, a financial summary from Defendant-Mother's accountant admitted without objection, the trial court could have properly determined that Defendant-Mother's gross income was lower than $106,638.00, given losses incurred by the corporate entities.
Defendant-Mother represented to the trial court in her Amended Income of Defendant filing that her income was $106,644.00 per year, testifying that number "was a true reflection of what [she's able] to provide for [the child] at this time[,]" despite claiming business losses in recent years. The $6.00 discrepancy between the trial court's gross income finding and Defendant-Mother's Amended Income filing is de minimis and does not warrant reversal. See Comstock v. Comstock, 240 N.C.App. 304, 313, 771 S.E.2d 602, 609 (2015) (concluding an error in valuing vehicle at $11,890.00, rather than $10,214.95, was de minimis and did not warrant reversal because the error amounted to 0.6% of the adjusted value of the marital estate).
Finally, Plaintiff-Father's assertions that Defendant-Mother's income should be higher due to the interaction between the two corporate entities lacks merit. In fact, given the entities' reported losses, the higher gross income to which Defendant Mother testified worked in Plaintiff-Father's favor. The court's comprehensive Child Support Order is supported by ample unchallenged findings of fact, which are binding on appeal. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731. Accordingly, the trial court did not abuse its discretion in modifying child support.
C. Civil Contempt
Plaintiff-Father asserts the trial court erred by failing to find that the prior child support "order remains in force" before adjudicating him in civil contempt of that order. See N.C. Gen. Stat. § 5A-21(a) (2021). Defendant-Mother raises the issue of waiver, stating that Plaintiff-Father waived appellate review of the contempt adjudication by failure to object. In response, Plaintiff-Father correctly notes no oral ruling on contempt is contained in the transcript, and Plaintiff-Father had no proper opportunity to object until entry of the Contempt Order, which was filed mere minutes before the Child Support Order on 1 April 2021; therefore, the issue was properly preserved. See Hall v. Wilmington Health, PLLC, 282 N.C.App. 463, 47374, 872 S.E.2d 347, 358 (2022).
The 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 v. Nobles, 127 N.C.App. 705, 709, 493 S.E.2d 288, 291 (1997) (citation omitted). "Findings of fact made by the judge in contempt proceedings are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing upon their sufficiency to warrant the judgment." Hartsell v. Hartsell, 99 N.C.App. 380, 385, 393 S.E.2d 570, 573 (1990) (citation omitted).
With respect to civil contempt, our statute provides:
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 comply with the order.N.C. Gen. Stat. § 5A-21(a).
The duty of each parent to support their child is an ongoing obligation until the child "reaches the age of 18" or is "otherwise emancipated." See N.C. Gen. Stat. § 50-13.4(c) (2021); see also Morris v. Powell, 269 N.C.App. 496, 498, 840 S.E.2d 223, 225 (2020). Past-due child support payments remain an enforceable obligation for an extended period of time. See Belcher v. Averette, 136 N.C.App. 803, 806, 526 S.E.2d 663, 665 (2000) (citation omitted) ("[T]here is no bar to recovery of unpaid child support payments which came due during the ten years immediately prior to the filing of a claim for past due support.").
Once a past-due child support payment vests, the arrears generally cannot be modified by any court for any reason-excluding any past-due payments which vest after a motion to modify is properly noticed, filed, and deemed timely by the trial court. See N.C. Gen. Stat. § 50-13.10(a) (2021). Of course, in line with ex post facto jurisprudence, a party cannot be held in civil contempt for violating an order if the violation occurred before the order was reduced to writing, signed by the judge, and filed with the clerk of court under Rule 58 of the North Carolina Rules of Civil Procedure. See Carter v. Hill, 186 N.C.App. 464, 465-66, 650 S.E.2d 843, 844 (2007).
In this case, the trial court found that the prior child support order "remained in force with regard to expenses incurred for the benefit of the minor child between March 28, 2019 and December 4, 2019." Plaintiff-Father's hyper-technical argument that the prior child support order was only "in force" for two minutes before it was superseded by the 1 April 2021 Child Support Order mischaracterizes the statutory requirement of N.C. Gen. Stat. § 5A-21(a)(1). The prior child support order here was "in effect" during the relevant time period and until the Child Support Order was entered on 1 April 2021, modifying the parties' obligations.
The trial court found Plaintiff-Father in civil contempt for nonpayment of his share of speech therapy expenses, private school tuition, and unreimbursed medical expenses, totaling $9,223.50, which remained due and owing under the prior child support order. In other words, the order "remained in force" with respect to the sums due and owing. See N.C. Gen. Stat. § 5A-21(a)(1). In the interest of judicial economy, the trial court consolidated all open matters pending before it, conducted a three-day hearing, and entered orders on all pending matters within minutes of each other on 1 April 2021. We cannot conclude the trial court erred in enforcing the prior child support order by adjudicating Plaintiff-Father in civil contempt. See Sharpe, 127 N.C.App. at 709, 493 S.E.2d at 291.
V. Conclusion
Because Finding 53 is inconsistent with the remaining findings of fact supporting the modification of custody, we remand the Child Custody Order to the trial court for entry of an order whose findings are compatible and support its conclusions of law. The trial court, in its discretion, may conduct this task on the record presently before it, without rehearing the matter or taking additional evidence. As the trial court did not abuse its discretion in modifying the parties' child support, we affirm the Child Support Order. Finally, we affirm the Contempt Order enforcing the payment of sums due and owing to Defendant-Mother under the prior child support order.
AFFIRMED IN PART, REMANDED IN PART.
Judges DILLON and GORE concur.
Report per Rule 30(e).