Cox v. Cox

• Decision Date: 18 May 1999
• Docket Number: No. COA98-769, No. COA98-1165.
• Citation: Cox v. Cox, 515 S.E.2d 61, 133 N.C. App. 221 (N.C. App. 1999)
• Parties: Stephen M. COX v. Beverly J. COX.
• Court: North Carolina Court of Appeals

515 S.E.2d 61

133 NC App. 221

Stephen M. COX v. Beverly J. COX.

Nos. COA98-769, COA98-1165.

Court of Appeals of North Carolina.

May 18, 1999.

Daughtry, Woodard, Lawrence & Starling, L.L.P., by Stephen C. Woodard, Jr., Smithfield, and Reid, Lewis, Deese, Nance & Person, L.L.P., by Renny W. Deese, Fayetteville, for plaintiff-appellee.

Staton, Perkinson, Doster, Post, Silverman, Adcock & Boone, P.A., by Jonathan Silverman and Michelle A. Cummins, Sanford, for defendant-appellant.

EAGLES, Chief Judge.

First, we consider whether the trial court erred when it settled the record on appeal and prohibited defendant from assigning error to the 16 September 1997 temporary custody order. Defendant argues that this trial judge usually enters temporary child custody orders and rarely enters permanent orders, the purpose being to deprive the parties of timely appellate review. In any event, defendant appellant failed to give notice of appeal as to the 16 September 1997 child custody order. Pursuant to Rule 3 of the Rules of Appellate Procedure, the appellant must file a notice of appeal within the time period required under the rule. See Currin-Dillehay Bldg. Supply v. Frazier, 100 N.C.App. 188, 189, 394 S.E.2d 683 (1990), appeal dismissed and disc. review denied, 327 N.C. 633, 399 S.E.2d 326 (1990). Here, the appellant did not at any time give notice of appeal as to the 16 September 1997 child custody order. Accordingly, we need not address this issue. This assignment of error is overruled.

Next we consider whether the trial court erred and made it impossible for the defendant to purge herself of contempt under the 4 November 1997 civil contempt order. Defendant argues that the condition set out in the trial court's 4 November 1997 civil contempt order was so vague that it was impossible for defendant to purge herself of contempt. After careful review, we agree.

A court order holding a person in civil contempt must specify how the person may purge himself or herself of the contempt. G.S. § 5A-22(a); Nohejl v. First Homes of Craven County, Inc., 120 N.C.App. 188, 191, 461 S.E.2d 10, 12 (1995). The purpose of civil contempt is not to punish but to coerce the defendant to comply with a court order. Bethea v. McDonald, 70 N.C.App. 566, 570, 320 S.E.2d 690, 693 (1984).

Defendant was held in civil and criminal contempt for violating the 16 September 1997 temporary child custody order. In the 4 November 1997 civil contempt order, one of the conditions listed that defendant must meet to purge herself of the contempt was that Ms. Cox

shall not hereafter at any time place either of the minor children in a stressful situation or a situation detrimental to their welfare. Specifically, the defendant is ordered not to punish either of the minor children in any manner that is stressful, abusive, or detrimental to that child.

This condition does not clearly specify what the defendant can and cannot do to the minor children in order to purge herself of the civil contempt. Accordingly, the trial court committed reversible error and this civil contempt order is reversed.

Because we have reversed the trial court's 4 November 1997 civil contempt order because the vague condition made it impossible for defendant to purge herself of contempt, we need not addresses appellant's remaining assignments of error. However, in our discretion, we will review two additional issues.

First, we consider whether the trial court erred in receiving testimony from the parties' children in-chambers and outside of defendant's presence at the 17 October 1997 contempt hearing. Defendant argues that the trial court erred by conducting a private examination of the children in-chambers over defendant's objection and without defendant's consent but with counsel for both parties present. Defendant contends that her constitutional right to confront witnesses was violated. After careful review, we disagree.

In custody proceedings, the trial court may question a child in open court but the court may question the children privately only with the consent of the parties. Raper v. Berrier, 246 N.C. 193, 195, 97 S.E.2d 782, 784 (1957). In Raper, the Supreme Court held:

While we recognize that in many instances it may be helpful for the court to talk to the child whose welfare is so vitally affected by the decision, yet the tradition of courts is that their hearings shall be open....

Without doubt, the court may question a child in open court in a custody proceeding but it can do so privately only by consent of the parties.

Id. In addition in Raper, counsel was not present when the children were questioned in-chambers.

Here, defense counsel objected and specifically suggested that the trial court hear the children in the courtroom and suggested that the trial court close the courtroom for their testimony. The trial court denied defendant's request and interviewed the children in his chambers; however, the parties' attorneys were present. Although the defendant objected to the in-chambers interview, defense counsel has failed to specify how his client was prejudiced as a result of the in-chambers interview. The lawyers' presence in-chambers eliminates any prejudice to defendant that might have occurred had defendant's attorneys not been present in the trial judge's chambers. The attorneys' presence adequately protects the parties' rights and interests. Accordingly, although it was error for the trial court to conduct an in-chambers interview of the children over the objection of defendant, the error was not prejudicial since the parties' attorneys were present during the interview. This assignment of error is overruled.

Finally, we consider whether the trial court abused its discretion in awarding plaintiff attorneys' fees in the 17 October 1997 civil contempt order. Defendant argues that there is no disparity between the parties' financial resources and argues that the award of $1,200 in fees is unreasonable.

An award of attorneys' fees will be stricken only if the award constitutes an abuse of discretion. Clark v. Clark, 301 N.C. 123, 136, 271 S.E.2d 58, 67 (1980). Attorneys' fees can be properly awarded in custody, child support and alimony cases upon adequate findings of fact that the moving party acted in good faith and had insufficient means to defray the expense of the suit. G.S. § 50-13.6; see Voshell v. Voshell, 68 N.C.App. 733, 736-37, 315 S.E.2d 763, 765 (1984). Whether these statutory requirements are met is a question of law, reviewable on appeal. Taylor v. Taylor, 343 N.C. 50, 54, 468 S.E.2d 33, 35 (1996), reh'g denied, 343 N.C. 517, 472 S.E.2d 25 (1996).

Here the trial court concluded that plaintiff did not have sufficient assets with which to pay his attorneys' fees and that defendant did have the means to pay plaintiff's attorneys' fees. However, there were no findings about plaintiff's monthly income or expenses. See In re Baby Boy Scearce, 81 N.C.App. 662, 663-64, 345 S.E.2d 411, 413 (1986), disc. review denied, 318 N.C. 415, 349 S.E.2d 590 (1986). In addition the court did not explicitly find that plaintiff acted in good faith when he instituted this action. Id. Accordingly, the trial court erred in awarding plaintiff attorneys' fees and this order must be reversed and the matter remanded to the trial court to make sufficient findings of fact consistent with this opinion.

In summary, as to COA98-769, we hold that the trial court's 4 November 1997 civil contempt order is fatally vague and the trial court erred in awarding attorneys' fees. Accordingly, the 4 November 1997 civil contempt order is reversed.

We now turn to COA98-1165. Here the defendant appeals from an order determining temporary child support, attorneys' fees and visitation rights filed 6 April 1998 and an order filed 10 June 1998 dismissing her appeal from the 6 April 1998 order.

First, we consider whether the trial court abused its discretion in denying defendant visitation with her children in the 6 April 1998 child support, visitation and attorneys' fees hearing. Defendant argues that unsupervised visitation with her is in the best interest of the children. Defendant contends that the trial court's findings of fact numbers 13, 15, 17 and 19 are not supported by competent evidence. After careful review, we disagree. The guiding principle in custody and visitation disputes is the child's best interest. In re Jones, 62 N.C.App. 103, 105, 302 S.E.2d 259, 260 (1983). A trial court is given broad discretion in determining the custodial setting that will advance the welfare and best interest of minor children. In re Peal, 305 N.C. 640, 645, 290 S.E.2d 664, 667 (1982). Our review of the trial court's custody order here is confined to whether the court abused its discretion. Newsome v. Newsome, 42 N.C.App. 416, 426, 256 S.E.2d 849, 855 (1979). Since the trial court had the opportunity to see the parties in person and to hear the witnesses and determine credibility, the trial court's decision should not be reversed absent an abuse of discretion. Id.

Here finding of fact number 13 states that

[w]ith consent of both parties and counsel, the court held an in camera interview with each of the minor children separately with counsel ... present during each interview. Each child was happy, well mannered, and much improved over the emotional stage in which this court saw them during the September 5, 1997 hearing. Each child expressed no desire to visit or see their mother....

Defendant contends that since there is no record of the private examination the court conducted with the minor children during the 23 March 1998 hearing, no competent evidence existed to support the finding. We disagree. When a court makes findings of fact based on information obtained as a result of a private examination of children conducted with the consent of the parties, a party cannot complain about what the court learned from speaking with the children. Horton v. Horton, 12 N.C.App. 526, 529, 183 S.E.2d...