Civil Contempt and Child Custody
In Chica v. Chica, the North Carolina Court of Appeals, in an unpublished opinion, reviewed Plaintiff Father’s appeal of the trial court’s December 6, 2018 Order finding him in civil contempt and establishing purge conditions. Plaintiff Father also appealed the trial court’s April 2019 Order denying, in part, Plaintiff’s Motion for a New Trial related to the December 6, 2018 Order.
Chica v Chica, COA19-856 (N.C. Ct. App. 2020)
- Facts: Plaintiff Father and Defendant Mother were married on or about July 11, 1998. Two children were born of the marriage, and the parties separated in December 2014. The parties reached and the court entered a Consent Order for Child Support and Child Custody. The Consent Order’s relevant sections involve joint legal custody and decision-making, school assignment, medical and dental expenses, and the children’s private school.
Defendant Mother filed a Motion for Order to Show Cause and Motion for Contempt, alleging that the Plaintiff Father “willfully failed to comply” with the Consent Order on September 4, 2018. Defendant Mother alleged that Plaintiff Father violated the Consent Order when the children were removed from their private school and enrolled in public school without her consent. Defendant Mother further alleges that blocking her cell phone number, failing to respond to her emails, and taking the minor child to the doctor without notifying Defendant violated the Consent Order.
In the school assignment section of the Consent Order, the parties agreed that the children would be enrolled in Wake County schools so long as the Plaintiff resides in Wake County and the Defendant in Franklin County.
Mother testified during the December 5, 2018 hearing that Father emailed her on January 22, 2018, notifying her that he no longer wanted their daughter to attend private school. Father told Mother she could continue the private school program solely at her expense. Father enrolled the children in Holly Springs schools (Wake County) without consent or notification of the Mother. Mother only discovered that Father had moved to Holly Springs after the children informed her of the move. Mother emailed the Father acknowledging her discovery of the move and enrollment to figure out the logistics of the move.
Father testified that he had moved to Holly Springs in May 2018 without notifying the Mother. The children were enrolled in Holly Springs public schools around July or August 2018 without any communication with the Mother outside of the January 22, 2018 email. Father testified that he did not respond to Mother’s request for information about schools. He blocked the Mother’s cell phone number because the messages’ frequency and content were harassing.
In the Consent Order’s Medical and Dental section, the parties must mutually agree to non-emergency, non-routine medical, dental, vision, and/or orthodontic treatments.
Mother discovered that Father had taken the parties’ son to the doctor for a chronic cough when Father emailed her after the appointment to provide the contact information. Mother testified that she learned of these visits only after an email from Father.
Father testified that he notified Mother after several medical and dental appointments. Father further testified that he believed that he would comply with the Consent Order by providing all of the information she needed. Father admitted that he had plenty of time before the parties’ son’s asthma appointment to notify Mother.
The travel portion of the Consent Order’s relevant section required either party to give the other parent forty-eight hours’ notice of planned travel to include destination, address, and telephone numbers.
Mother testified that Father took the minor children to California to visit grandparents without providing an address or a phone number. Mother admitted that she did have grandparents’ old address, had asked for an update from Father, which he failed to provide.
Father testified that he received Mother’s request for the address; however, when Mother said she did not have the information, Father “did not believe” her.
The trial court held that Father was in civil contempt and ordered Father to be put in jail until he provided proof that the parties’ son was re-enrolled in private school and funds paid for the remainder of the school session. After Father was taken into custody and removed from the courtroom, the court ordered him to pay for before/after school care the children may need. The trial court further required Father to unblock the Defendant’s cell phone number.
- Issues: Whether Plaintiff Father willfully violated the Consent Order’s express terms and had the present ability to comply with the Order. Whether the trial court’s purge conditions were overly vague and impermissibly modified the parties’ Consent Order. Whether the trial court properly held Plaintiff Father in civil rather than criminal contempt for violating the Consent Order’s travel and medical information requirements. Whether the trial court was in error in denying Plaintiff’s Rule 59 Motion and declining to set aside prior Contempt and Purge Orders
- Holding: Yes, the Plaintiff willfully violated the Consent Order’s express terms, and Plaintiff’s actions were part and parcel of his ongoing and continuing contempt of the Consent Order.
- Rationale: C.G.S. § 5A-21(a) states that failure to comply with a court order is continuing civil contempt as long as 1) the Order remains in effect, 2) the purpose of the Order may be met with compliance, 2a) the noncompliance is willful, and 3) the person directed in the Order can comply with the Order or is able to take reasonable measures enabling them to comply with the Order.
The trial court found that Father had violated the Consent Order by blocking Mother’s calls, unilaterally removing the parties’ son from the private school, enrolling the children in public school, informing Mother of medical appointments after the fact, and failing to provide addresses and phone numbers when traveling to California. N.C.G.S. § 5A-21(b) permits the court to imprison a party to compel compliance with an order “as long as civil contempt continues.”
The Court of Appeals, quoting Watson v Watson, 652 S.E.2d 310, 318 (N.C.App. 2007), defines willfulness as an ability to comply with the court order and a deliberate and intentional failure to do so. This Court further held that when there is evidence in the record regarding the party’s assets in contempt, a general finding of present ability to comply is sufficient. (Id.). The trial court found that Father earned $190,000 per year and had “folks” that could help enroll the son in private school. The Court ruled that the trial court properly found that Father had the present ability to comply with the purge conditions.
Father argued that the purge conditions were impermissibly vague and improperly modified the Consent Order. Quoting Watson, this Court held that contempt conditions could not be vague such that a party can’t purge themself of contempt. (Id.). Father complied with the purge conditions before the purge hearing the very next morning. This Court found that requiring the Father to enroll the child in private school was merely enforcement of the Consent Order and not a modification. Father unilaterally modified the Order by enrolling the child in public school.
Father’s counsel argued that the trial court erred when it ordered Father to pay all before and after school care, when the Consent Order requires a 60/40 split between the parties. The trial court amended the Contempt and Order to Purge Orders by removing the Father’s requirement for before- and after-school care and transportation and that the minor children attend Kidz R Kidz in the mornings.
- Lesson: Whether you have a consent order or an order of the court in a child custody case, failure to follow the express terms of the Order can lead to being held in contempt of court and potential imprisonment until purge conditions are met. An experienced family law attorney can help you determine what steps are required to make changes to these orders and prevent excess costs, fees, and potential imprisonment.