Opinion
No. COA11-164
Filed 19 July 2011 This case not for publication
Appeal by plaintiff from order entered 18 August 2010 by Judge Anna F. Foster in Lincoln County District Court. Heard in the Court of Appeals 24 May 2011.
Kristie Lea Williams, pro se, plaintiff appellant. James M. Chaney, Jr., pro se, defendant appellee.
Lincoln County No. 08 CVD 1649.
Kristie Lea Williams ("plaintiff") appeals from the 18 August 2010 Order and Judgment on Plaintiff's Motion to Modify Custody/Parenting Time; Plaintiff's Motion for Modification of Parent Coordinator Appointment; Defendant's Motion for Psychological Exam and Motion for Modification of Visitation; Defendant's Motion for Contempt; Plaintiff's Motion for Sanctions; Plaintiff's Motion for Modification of Visitation; Plaintiff's Motion for Stay and Motion for Relief; Plaintiff's Notification of a Rule 60(b); and Defendant's Motion for Contempt. Judge Anna F. Foster heard arguments for these pending motions, as set out in an Order filed 18 August 2010, on 8, 14, and 31 June 2010. The 18 August 2010 Order awarded primary physical custody of the parties' minor child, Blaine Tyler Williams Chaney, to the father, James M. Chaney, Jr. ("defendant"), and secondary unsupervised custody time to plaintiff. The trial court also denied plaintiff's motions for Modification of Parent Coordinator Appointment, Rule 60(b) relief, Sanctions, and Stay and Relief. Further, the trial court ordered both parties to pay money owed to the Parent Coordinator and ordered that plaintiff be incarcerated if she fails to pay defendant's attorney fees under prior ordered sanctions. Plaintiff appeals this Order.
I. Background
Plaintiff and defendant were married in July 2000, but defendant subsequently left the marital residence in January 2001. Plaintiff gave birth to the parties' minor child on 30 August 2001, in Charlotte, North Carolina. On 2 October 2001, plaintiff filed a motion for custody, child support, and attorney fees. Plaintiff received temporary support in 2001 and later, in 2002, received joint legal primary physical custody, with defendant receiving joint legal secondary physical custody.
In January of 2006, defendant received temporary and legal custody of the child to allow plaintiff to get assistance in not alienating the affections of the child and to get her anger towards defendant in control. Due to the high conflict nature of the case, the trial court appointed Richard Kronk as parent coordinator. The parties subsequently consented to defendant having primary physical custody and plaintiff receiving secondary custody time.
Defendant filed a Motion for Contempt against plaintiff in 2009 because plaintiff failed to return the child at scheduled times and attempted to hide the child from defendant. The court entered an Order of Contempt and awarded defendant attorney fees. The court also replaced Mr. Kronk with Jean T. Travis, as parent coordinator. Later that year plaintiff obtained an Ex Parte Domestic Violence Order of Protection against defendant and defendant moved the court to enter an Emergency Custody Order due to distress over the well-being of the child. The court found that plaintiff's mental condition and actions had been called into question and believed that plaintiff presented a substantial risk of causing mental or physical injury to the child.
Pursuant to a 21 August 2009 Supplemental Custody Order, the parties consented to resolve all pending issues and plaintiff's visitation resumed. Plaintiff had filed a Motion to Modify Child Support earlier in 2009, but in her opinion did not receive a favorable outcome. During the 2 October 2009 hearing on plaintiff's Motion to Modify Child Support, Judge Meredith A. Shuford alerted both parties to the fact that her aunt, Annette Stone, had previously been involved in the parties' custody case. Judge Shuford assured the parties that she had not discussed the case with her aunt and both parties in open court waived any potential conflict of interest. Because of the unfavorable outcome, plaintiff filed a multitude of motions asking for Judge Shuford's recusal. Judge Shuford denied plaintiff's Motion to Recuse and the abundance of motions led Judge Shuford to sanction plaintiff by requiring her to pay attorney fees.
In December 2009 and January 2010 plaintiff filed a Motion for Relief from Judgment Order Modifying Child Support along with a Motion to Modify Custody Order and Parenting Time. Defendant replied with Motions for Sanctions, Psychological Exam and Modification of Visitation. On 11 February 2010, Judge Shuford denied plaintiff's motions, sanctioned plaintiff by requiring her to pay attorney fees, and ordered that defendant's motions be heard before plaintiff's next scheduled visitation. Plaintiff's Reply to Motions for Relief from Judgment, Motion for Sanctions, Motion for Psychological Exam and Motion for Modification of Visitation were scheduled to be heard 19 February 2010, but Judge Anna F. Foster was ill, so they were heard on 18 March 2010 by Judge Shuford. During this time plaintiff appealed the 11 February 2010 Order to this Court and filed a Petition for Writ of Supersedeas Temporary Stay.
Based on plaintiff's appeal, Judge Shuford ordered a continuance and temporary modification of visitation. Judge Foster was also scheduled to hear defendant's Motions for Psychological Exam and Modification of Visitation along with plaintiff's Motion for Contempt, but was forced to continue the matter due to plaintiff's appeal. This Court denied plaintiff's Writ of Supersedeas, but on 22 March 2010, plaintiff appealed from Judge Shuford's 18 March 2010 Order for Continuance and Temporary Modification of Visitation, arguing that it was a final judgment of modification of visitation. Judge Foster held a scheduling hearing on 27 April 2010 to determine all pending motions and set a hearing date of 8 June 2010.
In conjunction with plaintiff's appeal, plaintiff filed a Motion for Relief or Stay and Expedited Hearing pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure, which was also filed with this Court. Our Court remanded the matter for the trial court to conduct an evidentiary hearing. On 8, 14, and 31 June 2010, Judge Foster heard all pending motions, modified the 18 March Order, and set a summer visitation schedule until she could render her decision. She filed her Order on 18 August 2010. Plaintiff appeals from this Order and also filed two Writs of Certiorari with this Court. The first involves the 22 December 2009 Order for Denial of Motion to Recuse and Order for Sanctions, and the second involves the 11 February 2010 Order for Sanctions.
II. Analysis
Plaintiff raises eight issues in appealing the 18 August 2010 Order of the trial court. A number of these issues can be addressed together.
A. Jurisdiction
The first issue raised by plaintiff is that the trial court lacked subject matter jurisdiction to enter the 18 August 2010 Order because the Order stemmed from an invalid 2001 divorce decree. Although plaintiff did not object to the alleged lack of subject matter jurisdiction at trial, our Court may review the issue for the first time on appeal. See In re K.A.D., 187 N.C. App. 502, 503, 653 S.E.2d 427, 428 (2007). We review issues of subject matter jurisdiction de novo. Id.
Plaintiff argues that the 18 August 2010 Order stems from an invalid divorce decree, and therefore, the trial court did not have jurisdiction to enter the Order. Plaintiff contends that Lincoln County did not have jurisdiction to enter an absolute divorce as she had already initiated proceedings in Mecklenburg County. However, plaintiff had only filed a complaint for alimony, post separation support, and attorney fees in Mecklenburg County. Plaintiff did not file a complaint for divorce. For a trial court to have jurisdiction over an action for divorce, the husband and wife shall have lived separate for one year; and the plaintiff or defendant shall have resided in North Carolina for a period of six months prior to the filing of the action. See N.C. Gen. Stat. § 50-6 (2009). As noted in the Lincoln County judgment, plaintiff and defendant were separated for over a year and defendant had been a resident of Lincoln County for six months prior to filing his action. Even further, a divorce under N.C.G.S. § 50-6 "shall not affect the rights of a dependent spouse with respect to alimony which have been asserted in the action." Therefore, Lincoln County properly had jurisdiction to enter judgment on defendant's complaint for divorce and the judgment did not have any effect on plaintiff's previously filed complaint for alimony and post-separation support in Mecklenburg County.
Plaintiff also argues that the 18 March 2010 Order entered by Judge Shuford was invalid for lack of subject matter jurisdiction. Plaintiff notes that the trial court entered an Order for Modification of Visitation and Termination of Parent Complaint in Mecklenburg County after having already entered an Order for Change of Venue to Lincoln County. However, plaintiff previously appealed the 18 March 2010 Order and now the 18 August Order is the sole order before us on appeal. See Williams v. Chaney, No. COA10-1278 (N.C. Ct. App. 21 June 2011) (unpublished). Therefore, we decline to address this issue.
In plaintiff's second issue, she contends that the trial court lacked jurisdiction to decide custody issues, because the trial court was granted only limited jurisdiction to determine how it was inclined to rule on a Rule 60(b) remand. See N.C. Gen. Stat. § 1A-1, Rule 60(b) (2009). We disagree.
Plaintiff contends that her Rule 60(b) motion submitted to this Court stayed any further proceedings by the trial court in regard to any custody issues. This Court's previous Order specifically directs the trial court, following the taking of evidence, to reduce its findings of fact and conclusions of law to writing and indicate what action it would be inclined to take were an appeal not pending. The trial court held hearings regarding any pending motions on 8, 14, and 31 June 2010. Based on the evidence presented at those hearings, the trial court entered its 18 August 2010 Order with the requisite findings of fact, conclusions of law, and suggestion that plaintiff's Rule 60(b) motion be denied. Therefore, we adopt the suggestion of the trial court in denying plaintiff's Motion for Rule 60(b) Relief.
Moreover, plaintiff's Rule 60(b) motion was improper as Rule 60(b) motions can only be raised following final judgments, and the appeal from the 18 March 2010 Order was interlocutory as noted by its dismissal. Williams v. Chaney, No. COA10-1278 (N.C. Ct. App. 21 June 2011) (unpublished); see N.C.G.S. § 1A-1, Rule 60(b); Sink v. Easter, 288 N.C. 183, 196, 217 S.E.2d 532, 540-41 (1975).
B. Contempt and Order for Arrest
In her third argument, plaintiff contends that the trial court erred by holding her in civil contempt for failing to pay sanctions in the form of defendant's attorney fees and for threatening arrest if plaintiff continued to not pay the sanctions, even though plaintiff claims to be indigent. Plaintiff argues that an order for arrest for civil contempt does not exist in North Carolina. Plaintiff further argues that the Show Cause Order was invalid because it accidentally had defendant instead of plaintiff in one sentence. We disagree with plaintiff's argument and interpretation of the law.
Our Court reviews a trial court's finding of contempt by determining "whether the findings of fact by the trial judge are supported by competent evidence and whether those factual findings are sufficient to support the judgment." McMiller v. McMiller, 77 N.C. App. 808, 810, 336 S.E.2d 134, 136 (1985). "In North Carolina, a proceeding for civil contempt is one instituted to preserve and enforce the rights of a private party to an action, and to compel obedience to a judgment or decree intended to benefit such parties." General Motors Acceptance Corp. v. Wright, 154 N.C. App. 672, 677, 573 S.E.2d 226, 229 (2002). Failure to comply with an order results in 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) (2009).
Here, the trial court's findings of fact appear to be sufficiently supported by competent evidence that plaintiff could have attempted to pay the sanctions imposed against her and therefore support the entry of contempt. To show a willful failure to comply with an order, the trial court must show an ability to comply and the deliberate failure to do so. See Frank v. Glanville, 45 N.C. App. 313, 315, 262 S.E.2d 677, 679 (1980).
In the 18 August 2010 Order, the trial court made specific findings of fact that plaintiff "is able bodied, suffering from no disability" and she has been able to "borrow[] money from her father to assist her with this litigation." Even further, the trial court found that plaintiff "has travelled to the Lincoln County court house multiple times from Union [C]ounty to file excessive motions and papers with the Clerk of Court" and "has had numerous hearings transcribed." In determining so, the trial court found that plaintiff had "demonstrated a naïve indifference to her necessity to support the minor child and comply with orders of the court." (Emphasis added.) The official commentary to N.C.G.S. § 5A-21 follows the same line of reasoning in "that the person who does not have the money to make court-ordered payments but who could take a job which would enable him to make those payments, remains in contempt by not taking such a job." N.C.G.S. § 5A-21 official commentary. Plaintiff could have gotten a job during the years involved in this litigation instead of putting forth an inordinate amount of time on litigation-related matters to the detriment of her child and own well-being. Plaintiff willfully failed to comply with the trial court's order by intentionally refraining from finding a job, so as to put an excessive amount of time into filing frivolous motions with the trial court. The trial court made sufficient findings of fact to warrant holding plaintiff in contempt for failure to pay the ordered sanctions.
N.C.G.S. § 5A-21 also states in subsection (b) that "[a] person who is found in civil contempt may be imprisoned as long as the civil contempt continues[.]" N.C.G.S. § 5A-21(b). Clearly, the trial court had the authority to enter an order for arrest where plaintiff continued to willfully not pay the imposed sanctions. See N.C.G.S. § 5A-21(b). Plaintiff also took issue with the Show Cause Order as it had defendant instead of plaintiff in one sentence, and plaintiff argues that she did not receive proper notice because of the mistake. This argument is without merit as the clerk corrected the mistake before filing the Order. Therefore, the trial court's order holding plaintiff in contempt and subject to arrest upon failure to pay sanctions is supported by sufficient findings of fact and conclusions of law that plaintiff had the ability to find employment and willfully refrained.
C. Parenting Time
Plaintiff also argues that the trial court abused its discretion in awarding custody of the parties' minor child to defendant and not at least giving plaintiff ample and reasonable parenting time. In her argument plaintiff contends that the trial court retaliated against her for filing excessive motions in an attempt to frustrate the judicial process. Plaintiff also claims that the trial court's findings of fact consisted of mere conclusory statements that were devoid of any acknowledgments of plaintiff's goodwill. Based on the trial court's findings of fact and conclusions of law, we disagree.
Our Court reviews a trial court's custody order for abuse of discretion. See In re Custody of Pitts, 2 N.C. App. 211, 162 S.E.2d 524 (1968). The trial court is vested with broad discretion in cases involving custody because the trial court is able to see the parties and hear the witnesses. See Pulliam v. Smith, 348 N.C. 616, 624-25, 501 S.E.2d 898, 902 (1998); Falls v. Falls, 52 N.C. App. 203, 209, 278 S.E.2d 546, 551 (1981). Our Supreme Court has held that findings of fact have the force and effect of a jury verdict and will remain in place if they have adequate evidentiary support, even if the evidence could sustain an alternative finding. See Williams v. Insurance Co., 288 N.C. 338, 342, 218 S.E.2d 368, 371 (1975).
In determining the right to custody and visitation, the best interests and welfare of the child are the paramount considerations, and neither the right to custody nor visitation should jeopardize these interests. See In re Custody of Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971). A trial court's determination to modify custody involves a two-part test:
The trial court must determine whether there was a change in circumstances and then must examine whether such a change affected the minor child. If the trial court concludes either that a substantial change has not occurred or that a substantial change did occur but that it did not affect the minor child's welfare, the court's examination ends, and no modification can be ordered. If, however, the trial court determines that there has been a substantial change in circumstances and that the change affected the welfare of the child, the court must then examine whether a change in custody is in the child's best interests. If the trial court concludes that modification is in the child's best interests, only then may the court order a modification of the original custody order.
Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003). Custody orders are not final and remain in effect only so long as the circumstances at the time of the order are unchanged. See Crosby v. Crosby, 272 N.C. 235, 237, 158 S.E.2d 77, 79 (1967). The order may be altered upon a change in circumstances that alters the welfare of the child. See id.
Prior to the 18 August 2010 Order granting defendant primary physical custody and plaintiff secondary unsupervised custody, the trial court had entered a 2007 order, giving permanent custody to defendant, and a subsequent 2009 Supplemental Custody Order, explaining plaintiff's scheduled visits. Since the 2007 Permanent Custody Order and 2009 Supplemental Custody Order, there has been a substantial change of circumstances that has affected the welfare of the minor child, as noted in the trial court's findings of fact. Specifically, the trial court made findings of fact regarding plaintiff's changed behavior, in that: plaintiff left a troubling message on the Lincoln County Health Department's answering machine regarding her child; plaintiff made allegations that defendant abused the minor child, which were determined to be false; the parent coordinator did not feel comfortable with the manner in which plaintiff put the child on the phone during a conversation; in an interview with Union County with the child present, plaintiff made further accusations of domestic violence against defendant even though the trial court had admonished plaintiff for making false accusations; and among other findings, that plaintiff constantly filed motions in a deliberate attempt to frustrate the judicial process while also demonstrating a naïve indifference to her obligation to support the minor child.
Even further, the trial court made findings of fact regarding defendant that he and his new wife, the child's stepmother, had been the primary caregivers of the minor child and the primary parents involved in the child's education, that defendant arranged family counseling for the child and participated in the therapy, and that the child's stepmother had never experienced any domestic violence with defendant. Contrary to plaintiff's contention, the trial court made specific findings of fact relating to plaintiff's goodwill in that her relatives believe she was appropriate with the child and that plaintiff is associating with more dependable people. However, the trial court determined that plaintiff's negative actions as noted in the above-referenced findings of fact have imposed a certain amount of distress on the minor child.
Plaintiff contends that these findings of fact were merely conclusory, but that cannot be the case as the trial court held three separate hearings with witnesses, documentary evidence, and a large court file, sufficient to make the findings of fact more than conclusory. The findings of fact were based on sufficient evidence presented at trial and are enough to support a change in circumstances affecting the welfare of the child. "`Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Shipman, 357 N.C. at 474, 586 S.E.2d at 253 (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)).
Upon finding that the findings of fact are adequately supported by the evidence, our Court must examine whether the findings of fact support the trial court's conclusions of law. See id. at 475, 586 S.E.2d at 254. "If we determine that the trial court has properly concluded that the facts show that a substantial change of circumstances has affected the welfare of the minor child and that modification was in the child's best interests, we will defer to the trial court's judgment and not disturb its decision to modify an existing custody agreement." Id. As noted in the findings of fact cited above, there are substantial findings to support the trial court's conclusion of law that there had been a substantial change in circumstances affecting the welfare of the child and that the Modification of Custody/Visitation Order was in the best interests of the child. Out of ninety-eight findings of fact, there were only a handful expressing concerns about defendant, with the overwhelming amount of findings raising issues with plaintiff's emotional and psychological well-being. Therefore, we conclude that adequate evidence supports the trial court's modification of custody and visitation as being in the best interests of the child.
D. Arguments Unsupported by Authority
Finally, plaintiff makes four other arguments that the trial court abused its discretion in making certain orders. Unfortunately, plaintiff failed to cite to any authority or express a detailed argument. "The body of the argument and the statement of applicable standard(s) of review shall contain citations of the authorities upon which the appellant relies." N.C. R. App. P. 28(b)(6) (2009); see N.C. State Bar v. Gilbert, 151 N.C. App. 299, 308, 566 S.E.2d 685, 690 (2002), aff'd, 357 N.C. 502, 586 S.E.2d 89 (2003). It is not our duty to supplement an appellant's argument with relevant legal authority. See Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d 350, 358 (2005). Therefore, plaintiff's four remaining assignments of error are abandoned for lack of legal authority.
E. Writs for Certiorari and other Motions
Plaintiff filed two writs of certiorari with this Court relating to her appeal in the form of a Writ from the 22 December 2009 Order of Denial of Motion to Recuse and Order for Sanctions and a Writ from the 11 February 2009 Order for Denial of Motions and for Sanctions. Plaintiff raised similar issues in the body of this appeal as those in her Writs and for the reasoning given in this opinion we deny plaintiff's two Writs of Certiorari.
Defendant also filed a number of motions with this Court during the pendency of this appeal. Defendant filed three motions to strike certain material presented to this Court by plaintiff. Defendant first filed a motion to strike certain documents from the supplement to the record. Defendant's second motion to strike related to portions of plaintiff's brief. Finally, defendant moved to strike plaintiff's reply brief. Because we see no harm to defendant in the contested material, we deny defendant's motions to strike. Defendant also filed a Motion for Sanctions arguing that plaintiff brought a frivolous appeal. Based on the fact that plaintiff's appeal warranted the drafting of an opinion, we deny defendant's Motion for Sanctions.
III. Conclusion
For the aforementioned reasons, we affirm the decision of the trial court.
Affirmed.
Judges McGEE and ERVIN concur.
Report per Rule 30(e).