Sappington v. Sappington
| Decision Date | 16 January 2018 |
| Docket Number | No. COA17-127,COA17-127 |
| Court | North Carolina Court of Appeals |
| Parties | Helga SAPPINGTON, Plaintiff, v. John S. SAPPINGTON, Defendant. |
De Ondarza Simmons, PLLC, Raleigh, by Inez de Ondarza Simmons, for Plaintiff-Appellee.
R. Ben Harrison, for Defendant-Appellant.
John S. Sappington ("Defendant") appeals from an order modifying a prior custody order and awarding attorney's fees to Helga Sappington ("Plaintiff"). For the reasons discussed below, we vacate in part and remand.
Plaintiff and Defendant (collectively, "the parties") were married on 15 September 2001. Their son ("the child") was born in February 2002. The parties lived together with the child until they separated on 1 October 2005. A judgment of divorce was entered on 12 February 2007. Plaintiff was granted sole legal and primary physical custody of the child by order entered 25 February 2009 ("the 2009 custody order"). The 2009 custody order granted Defendant supervised visitation with the child for one weekend, every two months, that was to occur only in North Carolina.
The parties agreed to a voluntary temporary child support arrangement in June 2007, and a permanent child support order was entered on 25 September 2009 ("the 2009 child support order"). The 2009 child support order required Defendant to pay $1,462.00 per month in child support and $150.00 per month toward arrearages, for a total monthly child support obligation of $1,612.00 per month. Defendant, a trained medical doctor, has a history of substance abuse and addiction that has led to numerous suspensions or surrenders of his license to practice medicine in several states over the past two decades. In June 2010, Defendant took a medical leave of absence from his job as a physician in order to seek inpatient treatment for an addiction to prescription medication. As a result, Defendant lost his income and began drawing disability insurance payments. The 2009 child support order was modified on or about 30 June 2011, "after Defendant's loss of employment[,] to reflect the difference between his previous employment income and [his] level of disability income at the time of [a 2011] hearing." Defendant's child support obligation was reduced to a monthly payment totaling $1,180.00.
In September 2013, Defendant again sought to modify the 2009 child support order. He filed an affidavit on 24 September 2013 alleging he had been unable to obtain reinstatement of his medical license in Wyoming, where he resided. Defendant stated he had exhausted his disability benefits as of June 2012 and began a part-time job in May 2013 earning hourly wages. In a memorandum dated 24 March 2014, the trial court determined that, although there had been a substantial change of circumstances regarding Defendant's income, "Defendant's repetitive misconduct, to-wit: abuse of alcohol and controlled substances, made the loss of his medical license and [loss of] employment both predictable and inevitable." Based on its finding that Defendant acted in bad faith, the trial court imputed to Defendant the same level of income previously used to calculate his total monthly child support payment. The trial court entered an order on 12 May 2014 denying Defendant's 2013 motion to modify child support.
Defendant filed a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 60 (" Rule 60 motion") on 29 September 2014, seeking relief from the trial court's order denying his motion to modify child support. Following a hearing on 21 November 2014, the trial court denied Defendant's Rule 60 motion by order entered 23 December 2014. Plaintiff filed a motion on 9 December 2014 requesting attorney's fees for defending against Defendant's 2013 motion to modify child support as well as Defendant's Rule 60 motion.
Contemporaneous with his Rule 60 motion in the child support matter, Defendant filed a separate motion on 29 September 2014 seeking to modify the 2009 custody order and requesting attorney's fees and costs from Plaintiff. The trial court held a hearing on custody and visitation issues on 11 March 2015. On or about 19 March 2015, the trial court entered an interim order that "requir[ed] [ ] [D]efendant to be drug tested and undergo family counseling and psychological counseling and evaluation before [the court] would make a final ruling on [ ] Defendant's motion [to modify custody]." Another interim order, entered with the parties' consent on 15 April 2016, permitted the child to visit Defendant in Wyoming for one week in June 2016. The order provided that the trial court "retain[ed] this matter for such other and further matters that it may deem necessary and appropriate."
Plaintiff filed a motion on 17 August 2015 seeking attorney's fees related to Defendant's motion to modify custody. Plaintiff filed an "Amended Motion for Attorney's Fees" on 1 June 2016 alleging that, as of that date, "Defendant's [2014] Motion to Modify[custody was] still pending and Plaintiff [ ] continued to incur attorney's fees as a result." (emphasis in original). Plaintiff's motion for attorney's fees in the child support matter was still pending.
Both Plaintiff and Defendant testified at the hearing on 11 March 2015. More than a year later, on 18 July 2016, the trial court held a second hearing. Defendant did not attend but was represented by counsel. The transcript indicates there was some confusion among the parties and the trial court about the purpose of the 18 July 2016 hearing. Plaintiff's counsel told the court: "I take it we are on today for child support and anything else that continues into the future[.]" Defendant's counsel told the court: 1 The trial court then told the parties:
Plaintiff argued Defendant should be required to pay her attorney's fees incurred in both the child custody and child support matters. Plaintiff further argued, with respect to Defendant's request to modify custody and visitation, that Defendant had yet to "prove that he is a fit and proper parent to have custody and control of [the] child." Plaintiff alleged Defendant had failed to comply with the terms of the interim order entered after the 11 March 2015 hearing. Plaintiff requested that the trial court proceed "step by step" on the custody issue by ordering the parties to "continue in counseling and [by requiring] that the counselor report to the [c]ourt as to any recommendation in the best interest of [the] child[.]"
Defendant argued he had in fact complied with the trial court's March 2015 interim order. He contended the evidence showed that, inter alia, he had: (1) successfully maintained his sobriety since January 2012; (2) established a permanent residence in Wyoming; and (3) had his medical license reinstated by, and was employed in, the State of Tennessee. Defendant also noted the child had made several successful unsupervised visits to Wyoming since the entry of the 2009 custody order. He asked the court to order a specific schedule of increased visitation. Defendant acknowledged his prior request for attorney's fees in the custody matter, but contended only that (1) his motion to modify the 2009 custody order was brought in good faith, and (2) the total amount of his attorney's fees was "very close to what [ ] Plaintiff ha[d] incurred." Defendant did not reassert his request for attorney's fees from Plaintiff; instead, he asked the court to order "each of [the parties to] pay [their] own attorney [sic] fees."
At the conclusion of the hearing, the trial court expressed concern about a hair follicle sample submitted by Defendant after the 11 March 2015 hearing pursuant to the court's order that he undergo drug testing. The sample was rejected because, "when [the lab technicians] opened the sample to process [it] [,] the specimen ID number on the chain of custody did not match the specimen ID number on the specimen hair." According to Defendant, the sample was rejected due to "lab and collector error." He noted that a second hair follicle sample he submitted tested negative for drugs. The trial court found that argument unpersuasive, telling counsel:
I don't know whose fault it was. But my point is, [Defendant] is a medical provider who has access to all sorts of [drug] testing materials and ... knows ... a lot more about these [screening] processes than you and I do. I am not going to take a chance with [the child's] future until I have some independent verification that [Defendant] continues to remain clean and sober.
The court ordered Defendant to submit to "a hair follicle test from [a] local [drug test provider][.]" After agreeing to the hair follicle test, counsel for Defendant told the court: "I think this concludes all the pending issues."
The trial court entered an order on 15 August 2016 that (1) modified the 2009 custody order by providing Defendant increased unsupervised visitation with the child, subject to certain restrictions; and (2) ordered Defendant to pay Plaintiff the attorney's fees she requested in her 2014 motion for fees in the child support matter and her 2015 and 2016 motions for fees in the child custody action. Defendant appeals.
Defendant first argues the trial court lacked subject matter jurisdiction to enter the 15 August 2016 order because "[it was] captioned with the incorrect [case] file number[.]" Defendant also argues Plaintiff's several attorney's fees motions and accompanying hearing notices were inconsistently captioned and thus were not "jurisdictionally sound."
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