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Kolczak v. Johnson

Court of Appeals of North Carolina

July 3, 2018

JULIE MICHELLE KOLCZAK (formerly Johnson), Plaintiff,

          Heard in the Court of Appeals 18 October 2017.

          Appeal by plaintiff from order entered on or about 13 October 2016 by Judge Kimberly Best-Staton in District Court, Mecklenburg County No. 12 CVD 18697 (KBS).

          Lynna P. Moen, for plaintiff-appellant.

          Horack Talley Pharr & Lowndes, P.A., by K. Mitchell Kelling and Elizabeth J. James, for defendant-appellee.

          STROUD, JUDGE.

         For the want of a nail the shoe was lost. For the want of a shoe the horse was lost. For the want of a horse the rider was lost. For the want of a rider the battle was lost. For the want of a battle the kingdom was lost, And all for the want of a horseshoe-nail.

         Benjamin Franklin, Poor Richard's Almanack (1758). No kingdoms were lost in this appeal, but this opinion is much longer than it should have been for the want of a few words in the district court's order and in defendant-father's motions.

         Courts strive mightily to rule based upon the substance of pleadings and orders, but there is a reason certain specific words are important in these legal documents as the correct words make orders clear and can avoid unnecessary appeals. The presence of "magic words" lets the appellate court know that the trial court has used the correct legal standard. While the absence of "magic words" may not result in reversal of an order, it often creates issues on appeal that could be easily avoided.

         Plaintiff-mother appeals a trial court order modifying child custody, finding her in contempt, and ordering her to pay defendant-father's attorney fees. The trial court's order regarding civil contempt did not include any "purge" conditions, so we must reverse the portion of the order holding Mother in civil contempt. The trial court's order regarding modification of custody lacked a conclusion of law with the simple phrase "substantial change of circumstances," but after detailed analysis of the trial court's vague conclusion of Father's "entitlement" to modification in conjunction with the findings of fact, we affirm. Finally, the absence of the words "insufficient means to defray the expense of the suit" in defendant-father's motion for modification of custody created plaintiff-mother's entire argument on the award of attorney fees, but again, after a detailed analysis, we affirm because plaintiff-mother raised her objection to attorney fees too late. In summary, we affirm the order as to custody and attorney fees for the custody modification and reverse the order as to civil contempt.

         I. Background

         Plaintiff ("Mother") and defendant ("Father") were married in 2000, had one child in 2003, one child in 2007, and separated in 2012. In 2012, Mother filed a complaint against Father seeking child custody, child support, post-separation support, alimony, attorney fees, equitable distribution, interim distribution, and an injunction to prevent Father from diverting funds. In February 2013, Father answered Mother's complaint alleging marital misconduct and counterclaiming for child custody, child support, and equitable distribution. From these original pleadings, only child custody is at issue on appeal.

         On 6 January 2014, the parties entered into a Consent Order regarding permanent child custody and child support with the parents sharing joint physical custody - Mother having the children Saturday through Wednesday and Father Wednesday through Saturday. On 16 April 2015, Father filed to modify custody alleging in part that Mother had married Mr. Dayton Kolczak in January of 2014.[1]The motion made detailed allegations about Mr. Kolczak's criminal activities. For example, the motion alleges both Mother and Mr. Kolczak were arrested at Mother's home when the children were present in January 2014 and the police had to call Father to pick up the children. Father sought sole legal and physical custody and also attorney fees.

         In June of 2015, Father filed a motion for emergency custody and for a temporary parenting agreement ("TPA") again based on the criminal conduct of Mr. Kolczak and the negative effects it was having on the children. On 24 July 2015, the trial court entered an order granting Father's request for emergency custody and a separate order for a TPA which modified the custodial schedule; the orders did not suspend Mother's visitation but imposed additional requirements:

2. Mother's visitation with the children shall not be suspended but shall be conditioned upon the following:
a. Dayton Kolczak shall not be at Mother's residence at any time when the minor children are present. The minor children shall have absolutely no contact with Dayton Kolczak at any time during their visitation with Mother. "No contact" shall include but is not limited to, no contact at Mother's residence, in a car driven by Mother or anyone else, in a public place or anywhere else Dayton Kolczak might be present. Additionally, "no contact" shall be no communication via telephone, email, text or any other means of communicating with the boys.
d. Mother shall notify Father if she and/or Dayton Kolczak are arrested within 24 hours of said arrest.
e. There shall be no illegal drugs or drug paraphernalia at Mother's home.

         The orders also included provisions for no contact between the children and associates of Mr. Kolczak and required Mother to submit to a drug test and provide the results to Father's attorney.

         In September 2015, Mother moved for a temporary restraining order ("TRO") and injunction against Father, alleging that he was contacting her "regularly and relentlessly" "for the purposes of harassment and interference." On 6 November 2015, Father filed a motion for contempt alleging Mother's failure to comply with both the Consent Order and the TPA order and requesting attorney fees. In October of 2015, the district court dismissed Mother's motion for a TRO and injunction with prejudice. In November of 2016, Father filed a second motion for contempt alleging Mother's additional failures to comply with both the Consent Order and the TPA order and again requesting attorney fees.

         Over the course of five days in March and August of 2016, the trial court held a hearing on Father's motion to modify custody, which included a request for attorney fees, and both of his motions for contempt. In October of 2016, the district court entered an order determining Mother was in civil contempt, awarding Father primary custody with Mother having secondary custody, and awarding Father attorney fees. Mother appeals only the October 2016 order.

         II. Civil Contempt

          Mother first challenges the district court's determination that she was in contempt.

The standard of review for contempt proceedings is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law. Findings of fact made by the judge in contempt proceedings are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing upon their sufficiency to warrant the judgment.

Watson v. Watson, 187 N.C.App. 55, 64, 652 S.E.2d 310, 317 (2007) (citations and quotation marks omitted).

         A. Findings of Fact

         Mother contests eleven of the trial court's findings of fact and argues "[t]here are four major categories in which the trial court found Michelle in civil contempt and they are as follows: (1) notification of arrests, (2) first right of refusal, (3) registration in camps without consulting father, and (4) allowing Dayton at Michelle's residence when the minor children are present." Mother has also challenged the contempt portion of the order based upon the lack of any purge conditions, and as discussed below, we are reversing the portion of the order finding her in contempt for that reason, but because the challenged findings of fact support the portions of the order addressing modification as well as contempt, we must address them.

         1. Notification of Arrests

          The TPA order required Mother to notify Father himself within 24 hours if she or her husband was arrested. Mother did not identify the findings of fact regarding notification of arrests as unsupported by the evidence. The relevant findings are:

25. Mother did not tell Father that her Husband, Dayton Kolczak, had been arrested within twenty-four (24) hours as required by the TPA Order.
26. Mother's attorney did notify Father's attorney but the requirement was for Mother to notify Father within twenty-four (24) hours and that did not happen.

         Mother argues that though she "herself did not notify Father[, ]" Father was in fact notified. Mother contends she took "reasonable measures to comply with" the order by her attorney notifying Father's attorney. Thus Mother is not contending she directly notified Father or that she was unable to directly notify Father, but rather that having her attorney contact Father's attorney was close enough and fulfilled the spirit of the order.

         The trial court was well within its discretion in finding that Mother willfully violated the Consent Order and TPA order by having Father's attorney notified instead of directly notifying Father. The Consent Order specifically provided that "[t]he parties shall use email or text as their primary method of communication and all communication should be respectful." The TPA order further required direct notification, which has the advantage of generally being faster. If there was an arrest on a weekend or holiday, contacting an attorney who must then contact another attorney who then must contact a client may substantially delay getting the message to Father. In addition, Mother's choice likely caused Father to incur additional attorney fees for a notification which could have been provided directly for free.

         2. Right of First Refusal

         The Consent Order contains a provision that "[t]he parties agree to offer the other parent the first right of refusal to watch the children if they are going to be more than 3 hours away before leaving them with a third party." Mother argues that the evidence does not support these findings regarding right of first refusal:

11. In December 2014, Mother violated the right of first refusal when Mother did not let Father care for the children. The children stayed with someone else instead of the Father. No email was sent to the Father to see if he could care for the children.
12. Mother violated the right of first refusal when Mother left the children with Nicki St. Claire and did not let Father care for the children.

         The parties presented extensive and contradictory evidence regarding Mother's allowing the children to stay with third parties without notifying Father in advance. Mother acknowledges that she had allowed the children to go on sleepovers and day trips without notifying Father, but contends that "allowing a child to have a sleepover and a daytrip is not competent evidence to find that [Mother] willfully failed to comply with the first right of refusal requirement." But Father argues on appeal that Mother did not testify she was at home during the sleepover with Ms. St. Claire; in other words, Mother was using the sleepover as a method of childcare. The trial court considered and weighed the evidence; we cannot re-weigh it. Mother does not deny that the children had a sleepover and her intent in allowing that could be ...

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