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Custody, Contempt of a Court Order, and Concerns for Health and Safety

Davis v. Davis, 748 S.E.2d 594 (N.C. App. 2013)

Here we examine a North Carolina Court of Appeals case where the Defendant appealed the trial court denial of a motion to modify custody and a motion to hold the Plaintiff in contempt of court. For this article, we will focus only on the denial of the Motion for Contempt.

(a) Facts: In this case, the trial court denied the Defendant’s motion to hold Plaintiff in contempt of court. The trial court granted Plaintiff primary custody of the minor children, and the Defendant was granted visitation on alternate weekends. Holidays, birthdays, and summers were split evenly between the parties. The Court allowed for special visitation to make up time to accommodate the Defendant’s National Guard schedule.

An argument between the Defendant and one of the minor children led to the Defendant physically disciplining the minor child in an “inappropriate manner.” Defendant picked the child up by the collar leaving bruises on her neck during the loss of temper.

Plaintiff filed a motion for the Defendant to be ordered to attend anger management and suspend visitation until further notice. Two months later, the Defendant filed a motion to hold Plaintiff in contempt of the 2003 custody order. Due to several continuances and motions, the trial court’s decision was entered three years, three months, and 22 days after the incident, with the Defendant’s visitation withheld the entire time. The trial court denied the motion for contempt.

Defendant claims the trial court erred in failing to find the Plaintiff in contempt for violating the 2003 custody order. The Court of Appeals confirmed the trial court ruling that the Defendant was not in contempt of the 2003 custody order.

(b) Issue: Can a party be held in contempt of court for violating a custody order if there are justifiable concerns for the health and safety of minor children?

(c) Answer to the issue: It depends.

(d) Summary of Rationale:

Under North Carolina law, “[a]n order providing for the custody of a minor child is enforceable by proceedings for civil contempt, and its disobedience may be punished by proceedings for criminal contempt. . . .” N.C. Gen. Stat § 50-13.3(a). The N.C. Supreme Court has held that “failure to obey and order of a court cannot be punished by contempt proceedings unless the disobedience is willful.” Mauney v. Mauney, 150 S.E.2d 391, 393 (NC 1966). The N. C. Court of Appeals held in Hancock v. Hancock, 471 S.E.2d 415, 418 (N.C. App. 1996), that willful disobedience is “disobedience which imports knowledge and stubborn resistance” and “imports a bad faith disregard for authority and the law.” The North Carolina Supreme Court has further held that “willfulness [may also be] defined as the wrongful doing of an act without justification or excuse” in State v. Ramos, 678 S.E.2d 224, 226 (N.C. 2009).

In this case, the Court of Appeals held that Plaintiff’s failure to comply with the 2003 order was justified because the minor child had been “manhandled.” Even though the DSS investigation failed to substantiate the abuse, the minor children testified that they did not feel safe attending their regular visitation schedule without Defendant attending anger management.

The Court of Appeals noted that even though the trial court concluded that the Defendant was not a threat to the minor children, it was not entirely inconsistent for the trial court to consider Plaintiff’s fears and action justified under the circumstances. The trial court findings that the Plaintiff’s actions were “justified under the circumstances” is adequate to support the denial of Defendant’s motion for contempt.

The Court of Appeals, quoting Hancock, 471 S.E.2d at 418, held that a party does not act willfully or with “a bad faith disregard for authority and the law” when their actions are justified, and that the trial court may have been reluctant to hold Plaintiff in contempt on what it considered justifiable concerns for the children’s safety. Because there was sufficient evidence to support the trial court’s finding as to contempt, the Court of Appeals affirmed the denial of the motion for contempt.

Obvious lesson:

1. Parties to a court order should always make every attempt to follow all orders of the court promptly and never consciously disregard a court order.

2. If you have any concerns that you feel prevent you from being able to follow the court order as directed, you should seek the advice of an attorney before taking any actions.

3. If you suspect that there is a substantial risk of bodily injury to the child or domestic violence, you should immediately seek the help of law enforcement or a family law attorney to begin emergency proceedings to protect your

4. Failure to comply with a Court Order can open the disobedient party to civil or criminal contempt, lead to jail time, and lead to having to pay the opposing party’s attorney fees.