Church v. Decker

• Decision Date: 07 June 2011
• Docket Number: Caldwell County No. 01 CvD 1391,NO. COA10-993,COA10-993
• Court: North Carolina Court of Appeals
• Parties: JOHN FLETCHER CHURCH, Plaintiff v. JEAN MARIE CHURCH (now DECKER), Defendant.

JOHN FLETCHER CHURCH, Plaintiff v. JEAN MARIE CHURCH (now DECKER), Defendant.

NO. COA10-993

Caldwell County No. 01 CvD 1391

NORTH CAROLINA COURT OF APPEALS

Filed: June 7, 2011

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Appeal by plaintiff from orders entered 30 April 2009, 5 August 2009, and 10 August 2009 by Judge Nancy Black Norelli in Caldwell County District Court. Heard in the Court of Appeals 9 February 2011.

John Fletcher Church, pro se.

Respess & Jud, by W. Wallace Respess, Jr., and Marshall Hurley, PLLC, by Marshall Hurley for Defendant.

ERVIN, Judge.

Plaintiff John Fletcher Church appeals from an order entered 30 April 2009 awarding interim attorney's fees to Defendant Jean Marie Decker (formerly Church), an order entered 5 August 2009 finding Plaintiff in civil contempt for nonpayment of attorney's fees, and an order entered 10 August 2009requiring Plaintiff to submit to a complete psychological evaluation by Dr. Debra Peters Moore. After careful consideration of Plaintiff's challenges to the trial court's orders in light of the record and the applicable law, we conclude that Plaintiff failed to note a timely appeal from the interim attorney's fees order and that the trial court did not err by holding Plaintiff in contempt. However, although the record contains ample support for the trial court's decision to require Plaintiff to undergo a psychological evaluation and to temporarily suspend his visitation with his children pending completion of that evaluation, the record contains no indication that Plaintiff was given an opportunity to be heard with respect to the selection of the individual responsible for conducting that examination. As a result, we affirm the 5 August 2009 orders holding Plaintiff in civil contempt, remand the 10 August 2009 order requiring Plaintiff to undergo a psychological evaluation with instructions that Plaintiff be given an opportunity to be heard with respect to the identity of the person responsible for performing the evaluation prior to the issuance of a modified order, and dismiss Plaintiff's appeal from the 30 April 2009 order awarding interim attorney's fees.

I. Factual Background

Plaintiff and Defendant were married on 23 December 1992, lived together as husband and wife until their separation on 31August 2001, and were granted an absolute divorce on 22 November 2002. Two children were born of the parties' marriage: a son, who was born on 23 October 1993, and a daughter, who was born on 18 March 1998. Based upon an order entered on 22 November 2004, Plaintiff had primary physical custody of the children from 15 November 2004 until 27 August 2007.

On 27 August 2007, Defendant filed a motion seeking modification of the existing custody order. On the same date, Judge Gregory R. Hayes issued an emergency ex parte order granting Defendant legal and physical custody of the children, and ordering that Plaintiff have no contact with the children pending further judicial review. On 5 September 2007 and 14 September 2007, the trial court heard evidence in order to determine whether or not the 27 August 2009 emergency order should continue in effect. After considering that evidence, Judge J. Gary Dellinger entered a temporary custody order on 5 December 2007 granting legal custody and primary physical custody to Defendant, but significantly relaxing the restrictions on Plaintiff's contact with the minor children set out in the emergency order. On 17 December 2007, Plaintiff filed a motion to set aside or amend the temporary custody order, a motion which Plaintiff claims was denied by the trial court on 6 August 2008.

The issue of permanent custody came on for trial before the trial court on 30 March 2009. The trial court heard evidence concerning the issue of custody from 30 March 2009 through 3 April 2009, with further hearings being held on 7 April 2009 and 9 April 2009 for the purpose of addressing Defendant's motions for child support and attorney's fees. At the conclusion of the 9 April 2009 hearing, the trial court announced that it would enter an order granting joint legal custody to the parties and awarding primary physical custody to Defendant.

On 30 April 2009, the trial court entered three separate orders: (1) an interim attorney's fees order, (2) an interim child support order and (3) an order addressing child custody and visitation issues. The interim attorney's fees order contained the following findings of fact:

9. On April 9, 2009, the Court heard abbreviated evidence regarding child support and entered a child support order requiring the Plaintiff to pay child support to the Defendant.

10. From August 27, 2007, to April 9, 2009, the Plaintiff provided Blue Cross Blue Shield Insurance Coverage for the minor children but paid no child support.

11. The Plaintiff failed to provide child support which was adequate under the circumstances existing at the time of the institution of this action on August 27, 2007, through the date of this hearing.

12. The Plaintiff has at all times had themeans and ability with which to provide support adequate for the minor children. However, he has taken no actions whatsoever to pay any support other than health insurance.

13. The Defendant has insufficient means with which to defray the expense of this suit.

14. The Defendant was an interested party acting in good faith at the time she filed the Motion to Modify Child Custody and Support on August 27, 2 007.

15. The Defendant has incurred attorney[']s fees in excess of $25,000.00.

16. The Court has reviewed the affidavit of attorney[']s fees of the Defendant['s] [counsel], and finds that the fees set forth in the affidavit are reasonable from the experience of the Defendant['] s attorney and the experience required for the services rendered.

17. The Plaintiff asserts that he has retained the services of an attorney and requests that the court delay the entry of an order regarding attorney[']s fees until the three month hearing which is presently scheduled for the review of the terms of the Plaintiff [']s visitation in three months.

18. The Court finds that an interim payment of attorney[']s fees will serve the interest of justice and that a determination of the final award of attorney [']s fees shall be made at the three month hearing following the entry of this Order.

Based on these findings of fact, the trial court concluded as a matter of law:

1. That the Defendant is entitled to an award of counsel fees pursuant to North Carolina General Statute Section 5013.6.

2. That the Defendant was at all times on or after August 7, 2007, an interested party acting in good faith who had insufficient means with which to defray the expenses of this suit.

3. That the Plaintiff has the means and ability with which to defray a reasonable attorney[']s fee.

In light of these findings of fact and conclusions of law, the trial court ordered that:

1. The Plaintiff shall pay directly to [Defendant's attorney] the sum of $5,000.00 on or before May 9, 2009.

2. That the Plaintiff shall pay directly to [Defendant's attorney] an additional $5,000.00 within sixty (60) days of May 9, 2009.

3. Failure to comply with this Order shall constitute willful, civil contempt of Court.

4. This is an interim order of attorney[']s fees. The Court shall make a final determination of attorney[']s fees at the three (3) month hearing scheduled for a review of visitation.

On 11 May 2009, Plaintiff filed a motion entitled "Motion to Stay Interim Attorney Fees; Motion to Set Aside/Amend Orderfor Interim Attorney[']s Fees; Motion for Protective Order Regarding Interim Attorney Fees."¹ In June and July of 2 0 09, Defendant filed a series of motions seeking the entry of orders requiring Plaintiff to show cause why he should not be held in contempt based upon his alleged failure to comply with the terms of the 30 April 2009 orders. The issues raised by these and other filings came on for hearing before the trial court on 5 August 2009.

At the 5 August 2009 hearing, the trial court determined that Plaintiff had failed to make the first attorney's fee payment required by the interim attorney's fees order and informed Plaintiff that he must show cause for his noncompliance in order to avoid incarceration. Plaintiff claimed that he lacked the ability to make the required payment and argued that the "interim order is unlawful, and I don't think I should pay due to that." In response, the trial court reminded Plaintiff that it had previously determined that he had the ability to comply with the order and asked him to demonstrate that a change in circumstance had occurred between the date of the interim attorney's fees order and the date upon which the initialpayment was due. In response, Plaintiff admitted that "there [had not been] a change." Following this exchange, the trial court held Plaintiff in contempt. Plaintiff was immediately taken into custody and held in the Caldwell County jail until payment was made. Later that day, 5 August 2009, the trial court entered two orders addressing the issue of whether Plaintiff should be held in contempt for failing to make the first payment required under the interim attorney's fees order, both of which reached an identical conclusion, but with the second of the two orders containing more detailed findings of fact and conclusions of law. In addition, the trial court orally announced that Plaintiff's "Motion to Stay Interim Attorney Fees; Motion to Set Aside/Amend Order for Interim Attorney[']s Fees; Motion for Protective Order Regarding Interim Attorney Fees" was denied. Finally, based upon Plaintiff's actions during the 5 August 2009 hearing, the trial court entered an order dated 10 August 2009 requiring Plaintiff to undergo a psychological evaluation to be administered by Dr. Debra Peters...