Risen v. Risen, 051920 NCCA, COA19-342

Docket Nº:COA19-342
Opinion Judge:STROUD, JUDGE.
Party Name:ANNDREA RISEN, Plaintiff, v. PAUL RISEN, Defendant.
Attorney:Cynthia Ann Hatfield, for plaintiff-appellant. Lee M. Cecil, for defendant-appellee.
Judge Panel:Judges MURPHY and BROOK concur.
Case Date:May 19, 2020
Court:Court of Appeals of North Carolina
 
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ANNDREA RISEN, Plaintiff,

v.

PAUL RISEN, Defendant.

No. COA19-342

Court of Appeals of North Carolina

May 19, 2020

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Heard in the Court of Appeals 13 November 2018.

Appeal by plaintiff from order entered 6 August 2018 by Judge Mark T. Cummings in District Court, Guilford County No. 06 CVD 11417.

Cynthia Ann Hatfield, for plaintiff-appellant.

Lee M. Cecil, for defendant-appellee.

STROUD, JUDGE.

Plaintiff appeals from an order holding her in civil contempt for failing to comply with a prior child custody order. Several of the trial court's findings of fact are not supported by the evidence, and without those findings of fact, the trial court's conclusions of law are not supported by the findings. In addition, the trial court's decree includes several provisions regarding potential punishment of the minor children which are beyond the court's authority in this action. We reverse the trial court's order.

I. Background

Plaintiff-mother and defendant-father were married and had two children born in 2002 and 2004. During the relevant time period at issue in this order the older child, Greta, was 15, and the younger, Pat, was 13, though both were within a month of turning 16 and 14.1 The parties divorced, and in 2014 the trial court entered a detailed temporary custody order granting joint legal and physical custody of the children to the parties, with Mother to have primary physical custody and Father to have secondary custody. On 6 January 2015, the trial court entered a consent order modifying some provisions of the temporary custody order based on the parent coordinator's memorandum of action; the memorandum modified custody for holidays and travel outside of the country. On 21 November 2017, the trial court entered another consent order finding that the temporary custody order "is now permanent by the operation of law" and continuing the hearing on both parties' pending motions to modify custody.

On 29 March 2018, the trial court entered an order holding Mother in criminal contempt based upon a prior motion filed by Father regarding visitation.2 On 23 April 2018, Father filed a verified "DEFENDANT'S MOTION TO SHOW CAUSE REQUEST FOR CONTEMPT AND ATTORNEY FEES AND MOTION TO COMPEL VISITATION" alleging Mother had failed to comply "with the terms of the September 19, 2014 Order of this Court," specifically as to certain custody provisions by withholding the children and attempting to alienate the children from Father. The motion also requested the trial court to compel the minor children themselves to comply with the order, although the children did not have guardians ad litem and were not represented by counsel. The specific time period covered by Father's contempt motion as clarified at the start of the hearing was "March 29, 2018, to April 23rd, 2018[, ]" because there was a prior contempt hearing and order "which would have dealt with all issues before that[.]" Thus, the focus of this particular hearing was extremely limited, encompassing visitation for approximately three weeks. On 6 August 2018, the trial court entered an order concluding Mother was in civil contempt, and Mother timely filed notice of appeal from this order.

We first note that we have had difficulty understanding portions of the parties' arguments and the trial court's order because our record does not include the criminal contempt motion and order which immediately preceded this motion and order. Father's motion for contempt references a prior order holding Mother in criminal contempt on 29 March 2018. Father alleged Mother, was found in criminal contempt of Court by the Honorable Mark Cumming by Order of this Court on March 29th, 2018. Plaintiff has appealed the matter to Superior Court, which is currently pending. Plaintiff continues her violation of Judge Vincent's order even though she has been found in criminal contempt by Judge Cummings.

Also relevant to the particular visits in question, the parenting coordinator entered a memorandum of action on 20 April 2018, regarding scheduling issues for the particular weekend which is the primary focus of Father's contempt motion. The 20 April 2018 memorandum states in part: [I]n the fall of 2017 the Plaintiff/Mother discontinued effectuating the custodial schedule, keeping the children in her custody. This issue was again before the Court on Defendant/Father's Motion for Contempt in March 29, 2018. The Court issued its Order finding the Plaintiff/Mother in Contempt of Court and sentenced Plaintiff/Mother to 30 days in jail, suspending all but 24 hours thereof for 12 months and placing Plaintiff/Mother on supervised probation for 12 months. There are additional terms of this Order which are not set forth herein and reference is made thereto for said details. Plaintiff/Mother has notified the PC that she has appealed the Order but the PC has not been provided documents relevant to said appeal.

The Contempt Order was entered just as the minor children of the parties were beginning their Spring Break holiday from school. Under the guiding custody order and Memorandums relating thereto that have been entered since said Order, the Plaintiff/Mother had custody of the children throughout the Spring Break holiday this year. Spring Break ended on Monday, April 9th when the children returned to school and the weekend following their return to school was their mother's routine weekend for custody. The weekend beginning yesterday, April 19, 2018 is the Defendant/Father's routine weekend with the children.

The PC wrote both parents asking the Plaintiff/Mother to confirm that she was not picking up the children, or having a third party do so, on Thursday, April 19th in respect of the routine schedule where they were to be with their father. The PC has not received a response to that message, The Defendant/Father was asked if he had the children and he reported that he did not.

The Plaintiff/Mother applied for a Domestic Violence Protective Order on April 18, 2018 asking the Court to interrupt Defendant's custodial rights and allow her sole custody. The Court entered an Order denying the ex parte request.3 The PC has communicated to the parents that the routine schedule set forth in Judge Vincent's Order should be followed by the parents. This Memorandum of Action is being issued to clarify the custodial scheduling that governs the children's schedule at this time.

The parents shall follow the schedule set forth below consistent with the Court's Order. The parents should note that the appeal from the Contempt Order does not provide any right to the Plaintiff/Mother to disregard the custodial schedule set forth in Judge Vincent's Order. The schedule is as set forth on the attached and incorporated Custody Tables through the end of May, 2018. The PC will forward the custody tables for June through the summer in the next week.

The father shall have custody of the minor children from Thursday through Sunday night, returning them to school on Monday morning the first, third and fifth weekends of every month. The Memorandum of Action defining the first/third/fifth weekend is referred to if there is question thereon. The table attached and incorporated herein sets forth the weekend schedule consistent with that Memorandum of Action.

The father should have been able to obtain custody of the children on Thursday, April 19, 2018 and enjoy custody through the weekend, returning them to school on Monday morning, April 23rd. Since he does not have the children as of the entry of this Order, this weekend shall be modified so that he returns the children to school on Tuesday morning, April 24, 2018. Thereafter the schedule shall be as set forth on the attached table.[4]

Each parent should be supportive of the resumption of the schedule to the children, insulate the children from conflict between the adults, not discuss the court proceedings with the children and otherwise remain neutral with the children regarding the conflicts between the parents.

The Plaintiff/Mother shall not go to the children's school, or send a third party to their schools, to pick up the children on the Father's custodial days, beginning with today, Friday, April 20, 2018. Neither parent shall appear at the children's school during the transition times when they are not the parent in custody of the children under Judge Vincent's Order. A copy of this Memorandum will be provided to each child's school so that can assist in the effectuation of these provisions.

(Emphasis added.) Thus, both Father's contempt motion and the memorandum by the parenting coordinator, which addressed this visitation, noted the criminal contempt order, but neither the prior motion for criminal contempt nor the order is included in our record on appeal.

Because of the prior criminal contempt motion and order, at the beginning of the hearing, counsel for Mother clarified that the motion for contempt under consideration addressed only the time period of 29 March 2018 to 23 April 2018, since the 29 March 2018 order addressed any prior violations by Mother. Father's counsel did not contend otherwise, and his motion for contempt addresses only this time period. Although the absence of the prior criminal contempt proceedings and other documents noted above from our record makes the parties' arguments more difficult to understand, we can address the arguments without them, since Father's motion for contempt references only Mother's violation of the 19 September 2014 custody...

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