Walter v. Walter
Decision Date | 17 August 2021 |
Docket Number | No. COA20-590,COA20-590 |
Citation | 864 S.E.2d 534,279 N.C.App. 61 |
Parties | Michelle Portman WALTER, Plaintiff-Appellee, v. James Milton WALTER, Jr., Defendant-Appellant. |
Court | North Carolina Court of Appeals |
Morrow, Porter, Vermitsky & Taylor, PLLC, Winston-Salem, by John C. Vermitsky, for Plaintiff-Appellee.
Fox Rothschild LLP, Raleigh, by Michelle D. Connell, for Defendant-Appellant.
¶ 1 James Milton Walter, Jr., ("Father") appeals from a contempt order entered 20 February 2020 in which the trial court determined that Father had willfully violated a child-custody order and held Father in civil contempt. For the reasons discussed herein, we vacate.
¶ 2 Michelle Portman Walter ("Mother") and Father were married in 2000 and divorced in February 2016. The couple are the parents to two minor children during their marriage, "KLW" and "ELW."1
¶ 3 On 22 October 2015, Mother filed a complaint asserting claims for child custody, child support, post-separation support, alimony, attorney's fees, equitable distribution, and absolute divorce. Father filed an answer and asserted counterclaims for child custody, child support, and equitable distribution on 28 December 2015. Mother replied and filed a motion for summary judgment divorce. Absolute divorce was granted on 1 February 2016.
¶ 4 On 11 March 2016, the district court entered a Consent Order for Child Custody and Child Support (the "Consent Order"). The Consent Order awarded joint legal custody to the parties, with primary legal custody to Father and secondary legal custody to Mother. The Consent Order does not expressly award "physical custody" to either party and defines "joint legal custody" as follows:2
The Consent Order specifically sets out the schedule for Christmas, Thanksgiving, Spring Break, and summer vacation. As relevant to this appeal, the Consent Order states the following regarding summer vacation:
(e) Beginning in 2016, the [Father] shall have summer vacation with the minor children for at least two non-consecutive weeks during each summer (school) vacation period of the minor children , as said period is determined by the school the children are attending; however the parties recognize, in the event [Father] travels out of town with the minor children, he may need to have two consecutive weeks for the trip. The [Father] shall give the [Mother] adequate, written notice of his proposed period of summer vacation for the upcoming summer period, (within 5 days of making the plans) including where he is traveling with the minor children. Beginning in 2016, the [Mother] shall have summer vacation with the minor children for at least one week during each summer (school) vacation period of the minor children, as said period is determined by the school the children are attending. The [Mother] shall give the [Father] written notice on or before April 1st of each year of her proposed period of summer vacation for the upcoming summer period, so as to allow [Father] to plan the minor children's activities.
(Emphasis added.)
¶ 5 On 30 August 2019, Mother filed a motion to show cause why Father should not be held in both civil and criminal contempt of court for an alleged violation of the Consent Order. Mother alleged that Father had "willfully failed, refused and neglected to abide by the terms and provisions of [the Consent Order] ... in that the [Father] ha[d] exercised [an] extra vacation week without the [Mother's] agreement to changing the visitation schedule" after he had already "exercised his two non-consecutive weeks [with the children during their summer vacation]." The district court entered a show-cause order on the same day.
¶ 6 The hearing on civil contempt was held on 21 January 2020.3 On 20 February 2020, the district court entered an Order for Contempt (the "Contempt Order") finding Father in civil contempt of the Consent Order. The Contempt Order states the following:
Father filed a timely notice of appeal of the Contempt Order on 25 February 2020. This appeal is properly before this Court under N.C. Gen. Stat. § 7A-27(b) (2019).
¶ 7 Father first argues that the Consent Order's provisions regarding summer vacation are ambiguous and therefore Father could not have willfully violated the Contempt Order as Mother claims. As a result, according to Father, the trial court erred by finding him in civil contempt. We agree that the Consent Order is ambiguous. Father's interpretation of the Consent Order is at least as reasonable as Mother's proposed interpretation. The Consent Order is not a model of clarity. Because the Consent Order is ambiguous and Father acted in accordance with his reasonable interpretation of the Consent Order, we hold that Father did not willfully violate the terms of the Consent Order.
¶ 8 We review the trial court's conclusions of law in a civil contempt order de novo. Tucker v. Tucker , 197 N.C. App. 592, 594, 679 S.E.2d 141, 143 (2009). Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the district court. In re Appeal of Greens of Pine Glen Ltd. , 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003). This Court also reviews a trial court's determination of ambiguity of provisions of a consent order de novo :
Our Court has previously held that, as a consent order is merely a court-approved contract, it is subject to the rules of contract interpretation. Our Court has also stated that, when a question arises regarding contract interpretation, whether ... the language of a contract is ambiguous or unambiguous is a question for the court to determine. In making this determination, words are to be given their usual and ordinary meaning and all the terms of the agreement are to be reconciled if possible. An ambiguity exists in a contract when either the meaning of words or the effect of provisions is uncertain or capable of several reasonable interpretations.
Myers v. Myers , 213 N.C. App. 171, 175, 714 S.E.2d 194, 198 (2011) (internal citations and quotation marks omitted).
¶ 9 Where a consent order is "fairly and reasonably susceptible" to the interpretations proposed by both parties, it is ambiguous. See id. at 175, 714 S.E.2d at 198 ( ...
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