Walter v. Walter, COA20-590

Docket NºNo. COA20-590
Citation864 S.E.2d 534, 279 N.C.App. 61
Case DateAugust 17, 2021
CourtCourt of Appeal of North Carolina (US)

279 N.C.App. 61
864 S.E.2d 534

Michelle Portman WALTER, Plaintiff-Appellee,
v.
James Milton WALTER, Jr., Defendant-Appellant.

No. COA20-590

Court of Appeals of North Carolina.

Filed August 17, 2021


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.

STROUD, Chief Judge.

¶ 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.

I. Background

¶ 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

864 S.E.2d 536
[J]oint legal custody shall mean that the parties shall discuss and mutually decide upon all major educational, religious, and medical decisions affecting or involving their minor children. Further, the minor children of the parties shall reside with [Father] and spend time with [Mother] as the parties mutually agree. In the event the parties cannot agree, the schedule shall be as follows

a. The minor children shall reside with [Father], but spend time with [Mother] based on a two week schedule.

b. Beginning on January___, 2016 [Mother] shall have the minor children on Tuesday or Thursday evenings for dinner from 5:30 p.m. until 7:30 p.m. [Mother] shall also have the minor children from Friday at 5:30 p.m. until Sunday at 5:30 p.m. The following week, [Mother] shall have the minor children for dinner on Thursday for dinner from 5:30 p.m. until 7:30 p.m. This two week schedule shall continue to repeat itself. The intent of this schedule is that [Mother] not have a seven day period without seeing the children, absent vacations. Thus if [Father] has the children for a weekend, [Mother] shall have the minor children the following Tuesday and Thursday for dinner.

c. During the minor children's weekday visits with [Mother], she shall ensure that they work on their homework to provide for an orderly evening and bedtime at [Father's].

d. Any other time agreed to by the parties;

e. All exchanges shall occur with [Mother] retrieving and retuning the minor children to [Father] at the former marital residence, unless alternate arrangements are made.

f. In the event changes are needed to the regular visitation schedule provided for herein, arrangements will be made at least 48 hours in advance via e-mail or text and additional time or changes will be as mutually agreed upon. Both parties agree that neither the regular time sharing schedule nor the holiday time sharing schedule provided for herein will interfere significantly with the children's school attendance.

The Consent Order then sets out detailed provisions for holiday and summer visitation, which

shall supersede and take priority over the regular physical custody schedule of the said minor children as set out hereinabove. By mutual agreement, [Mother] and [Father] may alter these specific holiday dates, time periods, and other restrictions, and both parties agree to work together to arrange appropriate compromises when applicable regarding the following summer and holiday periods and with regard to the children attending summer camp and the like.

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
864 S.E.2d 537
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:

3. Defendant/Father has willfully violated the [Consent] [O]rder by his own unilateral decision in taking the children for an extra week of vacation against the wishes of Plaintiff/Mother.

4. As a result of this willful violation the Defendant/Father should be incarcerated for 24 hours to ensure compliance with the [Consent] [O]rder. This sentence shall be suspended so long as the [Father] pays $1,500 in attorney's fees to attorney for [Mother] and arranges for make up visitation for Plaintiff/Mother from Friday October 9, 2020 at 5:30 to Sunday October 11, 2020 at 5:30 PM.

5. It is, therefore, ORDERED, ADJUDGED AND DECREED that Defendant/Father shall be incarcerated for 24 hours to ensure compliance with the [Consent] [O]rder. This sentence shall be suspended so long as the [Father] pays $1,500 in attorney's fees to attorney for [Mother] within 24 hours of his attorney receiving notice that the order has be[en] signed and arranges for make up visitation for Plaintiff/Mother Friday October 9, 2020 at 5:30 to Sunday October 11, 2020 at 5:30 PM.

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).

II. Discussion

A. Interpretation of Consent Order

¶ 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...

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