in the Court of Appeals 15 May 2017.
by defendant from order entered 8 August 2016 by Judge Fred
S. Battaglia, Jr. in Durham County No. 10 CVD 001342 District
J. Falcone for plaintiff-appellee.
Blain Law Firm, PC, by Sabrina Blain, for
Anthony Guinyard ("Defendant") appeals from order
finding him in civil contempt. We affirm in part, vacate in
part, and remand.
and Marilyn Latriece Wilson ("Plaintiff") share
joint legal custody of their son, who was thirteen at the
time the contempt order was entered. Plaintiff has primary
physical custody and lives in Durham, North Carolina.
Defendant has secondary physical custody in the form of
visitation and lives in Charleston, South Carolina.
Defendant's visitation includes two weekends a month to
be exercised at Defendant's discretion, so long as he
gives proper notice.
relevant part, the 2011 child custody order provides:
j) The parties may mutually agree to change these visitation
times to accommodate their schedules and for the benefit of
the minor child but the change must be mutual. (emphasis
11. The Plaintiff and the Defendant shall meet at South of
the Border Amusement Park . . . to facilitate visitation
between the minor child and the Defendant. And if at any time
except for good cause shown (such as serious illness of child
etc) that exchange does not occur, round trip gas expenses
and hotel expenses in the amount of 279.00 are due by the end
of the following week in addition to being subject to
contempt of court.
16. Failure to abide by the terms of this order is grounds
order was modified in part by a consent order entered in
March 2014. The consent order provided:
The exchange for visitation with the minor child will take
place at 10:00 o'clock P.M. on Friday night and 7:00
o'clock P.M. on Sunday night.
2. If for any reason there is a delay in the exchanged
meeting time due to unforeseen circumstances, which arise
before the parties have to leave for the custody exchange,
the party delayed will text the other party at least two (2)
hours in advance as to the circumstances causing their
inability to meet at the designated time as well as to let
the other party know when they would be available to make the
3. If any delays arise while the parties are on the road
traveling to the exchange point, the party delayed will text
the other party immediately with the same information
referenced in the previous paragraph[.]
4. All other terms of the previous Order of the Court will
remain in full force and effect.
filed a motion for contempt on 12 February 2016. The motion
alleged Defendant had been "habitually late, " and
detailed a specific instance where their son missed a day of
school after an exchange was missed on the Sunday of the
Super Bowl. The hearing on the motion was scheduled for 11
receiving notice of the contempt motion, Defendant requested
his current attorney to withdraw from representation and
signed his consent to a motion for his counsel to withdraw on
20 May 2016. On 7 July 2016, Defendant filed a motion to
continue the hearing, asserting as grounds that he needed to
hire an attorney to represent him. This motion was denied.
The motion to withdraw consented to by Defendant was brought
before the court and granted on 11 July 2016, prior to the
hearing, Plaintiff testified she often had to text Defendant
to determine whether he was on schedule. She testified since
she was "generally waiting on him, " she would
usually wait to leave her home in Durham until she had
confirmed Defendant was leaving Charleston. Plaintiff
presented evidence tending to show Defendant had arrived late
to over forty exchanges between May 2014 and February 2016.
Defendant arrived over two hours late on several of these
testified Defendant made the following excuses for arriving
late: (1) he was simply "running behind;" (2) a
fast food restaurant messed up his order; (3) the kids needed
to stop and use the bathroom; (4) he was waiting on a driver;
or, (5) he was running late from work.
testified he was late to the various exchanges,
"[b]ecause things happen, life happens" and because
their son wanted to continue playing. He testified he was in
constant communication with Plaintiff regarding the exchange
the missed exchange on the Sunday evening of the Super Bowl,
Defendant asserted Plaintiff texted him and their son
throughout the Super Bowl, and that both of them asked
Plaintiff if they could wait to leave until after the game
was over. After the game ended, Defendant testified he texted
Plaintiff around 10 p.m. to ask whether she was ready to meet
him, and asserted he and their son were in the truck ready to
leave. Defendant testified they did not meet that night
because Plaintiff said she was already in bed.
testified she and Defendant agreed prior to the Super Bowl
party that Defendant would leave at 8:30 p.m. to meet
Plaintiff at the exchange location. On cross-examination,
Plaintiff's counsel presented text messages to refresh
Defendant's recollection of the times and content of
Plaintiff's text messages to him. These texts
demonstrated Plaintiff had texted Defendant several times
throughout the evening, including at 8:30 p.m. to see if
Defendant had left as agreed upon. Between 11:00 p.m. and
11:20 p.m., Plaintiff again asked Defendant if he had left to