HIRSCHLER V. HIRSCHLER, 2021-NCCOA-690 (2021).
Plaintiff and Defendant were awarded joint custody of their minor child. Plaintiff had primary physical custody, and Defendant was given extended summer visitation from June 1 to July 10 for each calendar year. Important to note, Plaintiff resided in North Carolina, while Defendant lived in Florida. Both parties agreed to deviate from the normal schedule so that Defendant would have the child from May 29 through July 8.
In 2020, the minor child voiced her preference for living with Defendant. She told Plaintiff that she wanted to remain in Florida, rather than returning to North Carolina on July 8. The parties and the minor child exchanged emails and texts all regarding the return trip to North Carolina, and Plaintiff attempted to persuade the child to return. The child did not return. Defendant explained that he would not return the child against her will. Instead, he urged Plaintiff to drive down to Florida and talk to the child about returning.
In July of 2020, Plaintiff filed her motion for criminal contempt for Defendant’s failure to abide by the court custody order. An order to show cause was entered in August of the same year, ordering Defendant to come to court to show why he should not be held in criminal contempt. The hearing took place in September 2020. At the hearing, the parties’ attorneys once again confirmed that the proceeding was criminal contempt, not civil contempt. However, the court adjudicated the Defendant to be in civil contempt.
The case was dismissed on appeal, with the Court holding that the issue was moot; the child had turned 18 and the custody order was no longer enforceable. However, the Court still went on to devote the majority of the opinion on why the case would have been reversible. The main concern was that Defendant received no notice that civil contempt was a possible outcome. Our statutes for civil contempt require that the respondent have at least five days’ notice in advance of the hearing for civil contempt. In this matter, all notices, orders to show cause, and even court proceedings acknowledged only criminal contempt (which bears a higher burden of proof). Our statutes also show that civil contempt and criminal contempt are two separate pathways. The statutes state further that no person can be held in civil contempt and criminal contempt for the same actions. N.C. Gen. Stat. § 5A-23(g).
Notice and the rules of procedure are important. So much so that the Court felt the need to publish an opinion on a case they dismissed for being moot. In the future, confirm which version of contempt is being alleged and consider what the trial court may order, depending on what is noticed.