in the Court of Appeals 8 January 2018.
by defendant from orders entered 16 December 2016, 20
December 2016, and 30 December 2016 by Judge Lunsford Long in
Chatham County No. 11 CVD 751 District Court.
Collins Family Law Group, by Rebecca K. Watts, for
Family Law, P.L.L.C., by Gray Ellis and Jillian E. Mack, for
appeal raises several issues in connection with the divorce
of Kimberly and Mark Kenneth Summerville. The questions
specifically before us are whether the trial court erred by
(1) modifying the parties' child custody arrangement
despite the absence of sufficient evidence of a substantial
change in circumstances; (2) making a sua sponte
modification of Mr. Summerville's existing child support
award; (3)holding Mr. Summerville in contempt for his
violations of prior court orders; and (4)awarding
attorneys' fees to Ms. Summerville without making
necessary findings that the fees awarded were reasonable.
After a thorough review of the record and applicable law, we
affirm in part, vacate in part, and dismiss this appeal in
and Procedural Background
parties were married on 30 June 2001. One child
("Aaron") was born of the marriage. Aaron was
diagnosed with autism when he was in the first grade.
parties separated on 15 August 2011 and divorced on 26 August
2013. On 12 August 2013, the parties entered into a consent
custody order (the "12 August 2013 Order") in which
they agreed to joint legal custody and equal physical custody
February 2015, Ms. Summerville filed a motion in the cause in
Chatham County District Court asserting that Mr. Summerville
was in violation of the 12 August 2013 Order because he had
not provided appropriate medicine and therapy for Aaron. In
her motion, she requested that Mr. Summerville be held in
contempt for his violations of the order.
hearing was held on 3 March 2015 before the Honorable James
T. Bryan, III, and an order captioned "Temporary
Custody, Visitation Order, and Contempt Order" (the
"1 May 2015 Order") was subsequently entered. In
this order, Judge Bryan found that Mr. Summerville had failed
to provide prescription medicine for Aaron, repeatedly
questioned the therapeutic approach taken by Aaron's
therapist, and failed to bring Aaron to therapy 43% of the
on his findings, Judge Bryan determined a substantial change
in circumstances had occurred that warranted modification of
the 12 August 2013 Order, and he awarded Ms. Summerville
"sole legal medical decision-making [authority] in the
area of any medical care for the minor child . . . ."
The parties retained joint legal custody, but the court
modified the parties' physical custodial schedule. On 19
June 2015, the parties signed a consent order in which they
agreed that Mr. Summerville would pay 60% of Ms.
Summerville's attorneys' fees related to the filing
of her 10 February 2015 motion.
March 2016, Mr. Summerville filed a motion to modify custody,
alleging in pertinent part that Aaron had been
"encouraged to defy [Mr. Summerville's] authority
while . . . in [his] care" and "has spent an
increasing amount of time out of the classroom due to the
interventions by [Ms. Summerville] . . . ." Mr.
Summerville's motion requested that the trial court grant
him primary physical and sole legal custody.
March 2016, Ms. Summerville filed a motion in the cause and a
motion for a show cause order. In her motion, she requested
that the trial court hold Mr. Summerville in contempt based
on his repeated failures to comply with the court's
orders. She alleged, in part, that Mr. Summerville had failed
to give Aaron his medications, discouraged Aaron from using
coping mechanisms recommended by his therapist, and refused
to allow Aaron to call Ms. Summerville while in Mr.
Summerville's care. Her motion requested that the court
grant her primary physical and sole legal custody of Aaron
and order Mr. Summerville to pay her attorneys' fees.
were held in June 2016 and October 2016 before the Honorable
Lunsford Long on the parties' pending motions. On 16
December 2016, the trial court entered an order (1) awarding
primary physical and sole legal custody of Aaron to Ms.
Summerville; (2) modifying Mr. Summerville's child
support obligation; and (3) holding Mr. Summerville in
contempt for his violations of the 1 May 2015 Order.
December 2016, the trial court entered an order requiring Mr.
Summerville to pay $42, 220 in attorneys' fees to Ms.
Summerville with regard to her defense of his motion to
modify custody. On 30 December 2016, the trial court entered
an order captioned "Amendment of Judgment/Order" in
which it clarified its 16 December 2016 order by stating its
determination that criminal contempt - as opposed to civil
contempt - was appropriate based on Mr. Summerville's
conduct. On 13 January 2017, Mr. Summerville filed a notice
of appeal as to all three orders.
Modification of Child Custody
first argument, Mr. Summerville contends that the trial court
lacked the authority to modify the parties' custody of
Aaron absent sufficient evidence and accompanying findings of
a substantial change in circumstances since the 1 May 2015
Order was entered. "When reviewing a trial court's
decision to grant or deny a motion for the modification of an
existing child custody order, the appellate courts must
examine the trial court's findings of fact to determine
whether they are supported by substantial evidence."
Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d
250, 253 (2003) (citation omitted). If so, we "must
determine if the trial court's factual findings support
its conclusions of law." Id. at 475, 586 S.E.2d
at 254 (citation omitted). "The issue of whether a trial
court has utilized the correct legal standard in ruling on a
request for modification of custody is a question of law that
we review de novo." Hatcher v. Matthews, __
N.C. App.__, __, 789 S.E.2d 499, 501 (2016) (citation
Supreme Court has made clear that "[o]ur trial courts
are vested with broad discretion in child custody
matters." Shipman, 357 N.C. at 474, 586 S.E.2d
at 253 (citation omitted). "Accordingly, should we
conclude that there is substantial evidence in the record to
support the trial court's findings of fact, such findings
are conclusive on appeal, even if record evidence might
sustain findings to the contrary." Id. at 475,
586 S.E.2d at 253-54 (citation and quotation marks omitted).
Classification of Prior Custody Order as Permanent or
initial matter, we must determine whether the 1 May 2015
Order was a permanent or temporary custody order. The
distinction is important because
[i]f a child custody order is final, a party moving for its
modification must first show a substantial change of
circumstances. If a child custody order is temporary in
nature . . . the trial court is to determine custody using
the best interests of the child test without requiring either
party to show a substantial change of circumstances.
LaValley v. LaValley, 151 N.C.App. 290, 292, 564
S.E.2d 913, 914-15 (2002) (internal citations and footnote
observe that the 1 May 2015 Order was labeled by Judge Bryan
as a temporary order. Mr. Summerville contends, however, that
the order should nevertheless be deemed a permanent one. We
issue of whether an order is temporary or final in nature is
a question of law that is reviewed de novo on
appeal." Hatcher, N.C. App. at, 789 S.E.2d at
502 (citation omitted). An order is temporary "if either
(1) it is entered without prejudice to either party; (2) it
states a clear and specific reconvening time in the order and
the time interval between the two hearings was reasonably
brief; or (3) the order does not determine all the
issues." Smith v. Barbour, 195 N.C.App. 244,
249, 671 S.E.2d 578, 582 (citation, quotation marks, and
brackets omitted), disc. review denied, 363 N.C.
375, 678 S.E.2d 670 (2009). "If an order does not meet
any of these criteria, it is considered permanent."
Hatcher, N.C. App. at, 789 S.E.2d at 502 (citation
omitted). Our case law demonstrates that "[a] trial
court's designation of an order as 'temporary' or
'permanent' is not dispositive or binding on an
appellate court." Id. at, 789 S.E.2d at 502
Despite Judge Bryan's labeling of the 1 May 2015 Order as
a "temporary order, " it does not meet any of the
characteristics that would make it so. It was not entered
without prejudice to either party. Nor did it state a date
for the parties to reconvene. Finally, the order did, in
fact, determine all of the issues before the court at that
the 1 May 2015 Order was a permanent custody order. As such,
the trial court was authorized to determine whether a
modification of custody was in Aaron's best interests
only if it first determined that there had been a substantial
change in circumstances since the 1 May 2015 Order was
entered. See LaValley, 151 N.C.App. at 292, 564
S.E.2d at 914-15 (holding that permanent custody orders
require party moving for modification to show substantial
change in circumstances before proceeding to best interests
Substantial Change in Circumstances
Summerville contends that the trial court in its 16 December
2016 Order erroneously found a substantial change in
circumstances because it (1) improperly examined events
occurring before the 1 May 2015 Order was entered in
assessing whether a substantial change in circumstances had
occurred; and (2) failed to directly link any change in
circumstances to an actual effect on the welfare of the minor
child. We disagree.
order, the trial court made the following pertinent findings
47. . . . [T]he Court was very clear to [Mr. Summerville], by
explicitly including in its 2015 Order that should he
continue to fail to follow Dr. Meisburger's behavior plan
and safety rules (as amended/modified) that would constitute
a substantial change in circumstances affecting the welfare
of the minor child which might result in a modification of
his custodial rights.
. . . .
63. Due to [Mr. Summerville]'s ongoing refusal to support
the minor child's therapy and therapeutic strategies and
recommendations after the May 2015 Order, Dr. Meisburger
recently discontinued treating the minor child. As a result,
the minor child lost his therapist of several years, with
whom he had formed a trusting and therapeutic bond. As a
result, the minor child must begin all over again bonding
with and trusting a new therapist. This process is more
difficult for the minor child due to his Autism diagnosis,
thus this has negatively impacted the minor child after the
entry of the last Court Order.
. . . .
78. [Mr. Summerville]'s failure to follow the behavior
plan and Safety Rules distressed the minor child[, ]
increased the child's anxiety and made him feel unsafe.
Further, [Mr. Summerville]'s disregard of the Safety
Rules, the therapist's recommendations, the Parenting
Coordinator's decisions, and the Court's Order
modeled to the minor child a flagrant disregard for authority
and rules. [Mr. Summerville]'s actions negatively
impacted the minor child's therapeutic progress.
79. The child's progress has been limited by the
professional recommendations being consistently implemented
only during [Ms. Summerville]'s custodial time, but ...