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Summerville v. Summerville

Court of Appeals of North Carolina

April 17, 2018

KIMBERLY SUMMERVILLE, Plaintiff,
v.
MARK KENNETH SUMMERVILLE, Defendant.

          Heard in the Court of Appeals 8 January 2018.

          Appeal 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 plaintiff-appellee.

          Ellis Family Law, P.L.L.C., by Gray Ellis and Jillian E. Mack, for defendant-appellant.

          DAVIS, Judge.

         This 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 part.

         Factual and Procedural Background

         The parties were married on 30 June 2001. One child ("Aaron")[1] was born of the marriage. Aaron was diagnosed with autism when he was in the first grade.

         The 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 of Aaron.

         On 10 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.

         A 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 time.

         Based 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.

         On 4 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.

         On 14 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.

         Hearings 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.

         On 20 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.

         Analysis

         I. Modification of Child Custody

         In his 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 omitted).

         Our 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).

         A. Classification of Prior Custody Order as Permanent or Temporary

         As an 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 omitted).

         We 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 agree.

         "The 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 (citation omitted).

          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 time.

         Thus, 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 analysis).

         B. Substantial Change in Circumstances

         Mr. 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.

         In this order, the trial court made the following pertinent findings of fact:

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 ...

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