STROUD, Judge.
Plaintiff Amy S. Grissom ("Mother") appeals from the trial court's order holding that defendant David I. Cohen ("Father") is not in civil contempt of a prior custody order based upon the refusal of the parties' daughter, Mary,
This appeal arises from an exceptionally contentious and prolonged custody battle between Mother and Father, beginning in January 2007 and continuing, with a few lulls, ever since. The parties are the parents of two children; the oldest, their son John, had just turned 18 before Mother filed her contempt motion, and the contempt motion and order
On 10 June 2016, Mother filed a motion she calls an "Omnibus Motion," comprising a motion for civil and criminal contempt, a motion for a temporary restraining order ("TRO") and preliminary injunction, and a motion for "judicial assistance." The Omnibus Motion is single-spaced and 17 pages long. Five and a half pages summarize the procedural history, including quotes from portions of prior orders, with particular emphasis on any findings unflattering to Father. The substantive portion of the Omnibus Motion begins at the bottom of page 5 and is entitled "Withholding of Plaintiff/Mother's Physical Custodial Time and Alienation." Mother then makes four pages of allegations, some "upon information and belief," of Father's actions and statements she alleges are part of his "campaign to alienate the children from Plaintiff/Mother," which has "intensified after the Court's most recent Custody Order and has resulted in the children being severely alienated from Plaintiff/Mother."
John claimed Mary asked Mother if she could see a therapist but her Mother ignored her; Mother denied that Mary ever requested to see a therapist. At the time of this email, the children had been with Father since 28 December 2015 for holiday visitation and they did not return to Mother's home afterwards except for some brief visits; they did not stay overnight. Mother alleged this email was another example of Father's campaign
The next section of the motion is entitled "Refusal to Support [Mary's] Attendance in Therapy, Failure to Apprise Plaintiff/Mother of [Mary's] Condition, And Attempt to Obtain [Mary's] Therapeutic Records." Mother describes her efforts to find a therapist for Mary after receiving the email from John and Mary's opposition to seeing the therapist she selected, alleging that Mary's reluctance was caused by Father's "influencing [Mary] to further his own goals." Mary did ultimately see the therapist Mother selected, Ms. Reed, although she "continues to be reluctant." She alleged that on 2 February 2016, Mary "refused to leave school to attend an appointment with Ms. Reed," and Mother took her to see Dr. Shulstad, who discovered eight or nine "fresh cuts on [Mary's] leg." She notes this cutting occurred while Mary was with Father. Dr. Shulstad encouraged Mary to see Ms. Reed, and although she refused at times, she attended some appointments "when forced to do so by Dr. Shulstad or when she wants something (such as medical authorization to attend a summer camp)."
The next section of the motion is entitled "Interfering with Educational Decisions" and includes about a page of allegations of the parties' disputes regarding Father taking Mary to tour boarding schools during the previous summer. The following section is entitled "Motion for Contempt." It has five paragraphs, alleging his willful violation of the order and requesting that Father be held in civil and criminal contempt.
The next section of the motion is entitled, "Motion for Temporary Restraining Order and Preliminary Injunction." Mother requested that the court enter a Temporary Restraining Order and Preliminary Injunction enjoining Father "from interfering with" Mother's custodial rights and "authority to made medical and mental health decisions" for Mary; from taking Mary to "tour any additional schools" or talking to her or assisting her in any way regarding her application or attendance at any school; and from showing "these Motions and any subsequent Orders to the parties' children" or talking about them. She also asked that Father be required to "return [Mary] to" her physical custody and "to support [Mary's] attendance at reunification therapy and counseling with the therapist" of Mother's choice.
The last section of the motion is entitled "Motion for Judicial Assistance" and Mother moved for the court to "facilitate intensive reunification therapy."
The prayer for relief is two pages long. In pertinent part, Mother requested issuance of a show cause order directing that a hearing be held and that Father "show cause as to why he should not be held in contempt of the March 2015 Custody Order." She also requested that the court
Mother specifically asked for a list of "mechanisms" to enforce the Order and "as purging conditions" of contempt. This list includes several continuing actions, including that he "exert his parental authority and control": to ensure that [Mary] returns to" her custody and stays there; to ensure that Mary attends counseling, to ensure that Mary attends reunification therapy; and to ensure that Mary communicates with Mother while in Father's care. Mother also asked that Father be required to permit Mother to "make up the custodial parenting time missed since January 4, 2016."
On 13 June 2016, Mother filed and served Father with a Notice of Hearing for 28 June
As this Court noted in the prior appeal, "At the 28 June 2016 show cause hearing, the trial court did not allow Mother to proceed on both civil and criminal contempt, requiring Mother to choose to pursue either civil or criminal contempt. Accordingly, Mother chose to proceed on her civil contempt motion against Father." Grissom v. Cohen, ___ N.C. App. ___, 803 S.E.2d 697, at *2 (2017) (unpublished) ("Grissom I"). The trial court entered its first order finding Father not to be in civil contempt which was reversed by the first appeal and remanded for findings of fact:
Grissom I, ___ N.C. App. ___, 803 S.E.2d 697, at *5 (citation omitted).
On 9 October 2017, the trial court entered a new order ("Order on Remand") with detailed findings of fact and conclusions of law
Mother argues the trial court "erred by failing to hold Father in civil contempt for effectively eliminating Mother's primary custody of their daughter." She claims to challenge 22 of the 37 findings of fact in the order and 7 of the legal conclusions. Although she argues she is challenging the findings of fact, she does not argue that the findings are not supported by the evidence. Instead, she contends the trial court's findings are in error because it (1) "misallocated the burden of proof;" (2) "Misapprehended the express and implied requirements of the Modified Custody Order," specifically arguing that the order is a "forced visitation order;" and (3) erred by determining that "Father committed no willful violation of the modified custody order" based upon the trial court's misunderstanding of "willfulness" in this context. She makes the bold and legally impossible request that this Court make the factual determination that "Father willfully violated the Modified Custody Order" and to "remand ... for a new fact-finder to consider additional evidence regarding whether Father remains in civil contempt." We cannot do this, since it is the trial court, not our Court, which is "entrusted with the duty to hear testimony, weigh and resolve any conflicts in the evidence, [and] find the facts[.]" State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 620 (1982). Mother requests in the alternative that we "remand for a new fact-finder to conduct a new contempt hearing with detailed instructions indicating that [Hancock v. Hancock, 122 N.C. App. 518, 471 S.E.2d 415 (1996)] and its progeny do not control."
This Court does not conduct wholesale de novo review of contempt orders, as Mother seems to request. Instead, "[t]he
The trial court may find a party in civil contempt for failure to follow a court order under N.C. Gen. Stat. § 5A-21, which provides:
N.C. Gen. Stat. § 5A-21(a) (2017).
Mother first argues the trial court improperly placed the burden of proof of civil contempt on her and not on Father. She notes correctly that "A show cause order in a civil contempt proceeding which is based on a sworn affidavit and a finding of probable cause by a judicial official shifts the burden of proof to the defendant to show why he should not be held in contempt." State v. Coleman, 188 N.C. App. 144, 149-50, 655 S.E.2d 450, 453 (2008). The trial court entered the 14 June 2016 Show Cause Order based on Mother's Omnibus Motion, so Father had the burden to show why he should not be held in contempt under the show cause order. Id. But Mother had also filed and served a separate notice of hearing on 13 June 2016 on the motion for contempt; on that motion and notice of hearing, the burden of proof was on her. See N.C. Gen. Stat. § 5A-23(a1) ("The burden of proof in a hearing pursuant to this subsection shall be on the aggrieved party.").
Mother argues that the trial court improperly placed the burden on her based upon the following conclusion of law in Order on Remand: "5. As a matter of law, Mother failed to prove by a preponderance of the evidence that Father was in violation of the Modified Custody Order; nor has Mother met her burden of proving that Father is in civil contempt." (Emphasis added). The Order on Remand also included several other conclusions of law that Father was not in willful contempt. Three were included in the section of the order entitled "Conclusions of Law:"
At least two others were included within the Findings of Fact:
Mother also argues that it would be "problematic to simply reverse based on the burden-misallocation and remand for an unguided reconsideration," because of Mary's "fast-approaching eighteenth birthday." She therefore requests this Court to make new factual determinations based upon the allegations in
We agree the trial court's various conclusions of law are confusing, and the trial court probably should not have used the words "her burden" in the order. Taken out of context, these words create Mother's argument that the trial court "misapprehended" the law and placed the burden on her. See Tigani v. Tigani, ___ N.C. App. ___, ___, 805 S.E.2d 546, 549-50 (2017) ("N.C. Gen. Stat. § 5A-23(a) (2015) provides that a proceeding for civil contempt may be initiated by the order of a judicial official directing the alleged contemnor to appear and show cause why he should not be held in civil contempt, or by the notice of a judicial official that the alleged contemnor will be held in contempt unless he appears and shows cause why he should not be held in contempt. Under either of these circumstances, the alleged contemnor has the burden of proof. In addition, pursuant to N.C. Gen. Stat. § 5A-23(a1), proceedings for civil contempt may be initiated by motion of an aggrieved party giving notice to the alleged contemnor to appear before the court for a hearing on whether the alleged contemnor should be held in civil contempt. The burden of proof in a hearing pursuant to this subsection shall be on the aggrieved party. When an aggrieved party rather than a judicial official initiates a proceeding for civil contempt, the burden of proof is on the aggrieved party, N.C. Gen. Stat. § 5A-23(a1) (2015), because there has not been a judicial finding of probable cause." (Citations, quotation marks, brackets, and ellipses omitted)).
Father argues that the trial court's confusing order is the result of Mother's complex motions. In her Omnibus Motion she asked to proceed on both civil and criminal contempt simultaneously, and to proceed on both the motion for contempt (for which she would have the burden of proof) and the show cause order for contempt (for which Father would have the burden of proof). He contends that since this Court had already remanded for a detailed order, the trial court was simply trying to cover all the bases. Father may be right that the trial court was simply trying to address both the contempt motion and the Show Cause Order with its multiple conclusions of law that Father was not in willful contempt.
At the beginning of the hearing, the trial court and counsel discussed which portions of the Omnibus Motion were to be heard that day. Before any evidence was presented, the trial court asked Mother's counsel:
The trial court then asked counsel how many witnesses each anticipated calling to assist in allocation of the time for the hearing. Father's counsel said he would call four or five witnesses; Mother's counsel said she
At these points and others during the hearing, the trial court demonstrated that it understood the differences between civil and criminal contempt and understood the differences in the burden of proof between a motion for contempt and a show cause order. We are satisfied that the trial court understood that the burden of proof was on Father to show cause on why he should not be held in contempt and that the reference in the order to "her burden" was in response to Mother's motion for contempt, as opposed to the show cause order.
Even if we remanded for the trial court to rephrase its order and remove the words at issue, ultimately, nothing would change. Father met his burden to show cause as to why he should not be held in contempt. He testified, and he presented compelling evidence including testimony from John, Mary, Dr. Shulstad, Ms. Buford, and various documentary exhibits. A remand would simply delay final resolution of the contempt motion and prolong litigation in this matter until after Mary turns 18.
Mother did not testify or present any testimony from any other witnesses, electing to rest on her verified motion alone.
Mother also argues that the trial court's "misapprehension" of the burden of proof caused the findings of fact to be improper, since the court was considering the evidence under the wrong law. Even if the trial court had "misapprehended" the burden of proof, Mother has not explained how this "misapprehension" would have had any effect on the findings of fact. The findings are all supported
But Mother's own Omnibus Motion included detailed allegations of these same facts about Mary's revelation to John. There was no real dispute regarding most of the basic facts relevant to contempt, such as when Mary stopped going to her Mother's house, her stated reasons for stopping, or that she was depressed and self-harming. Mother's motion is based only on why Mary remained at her Father's home. She claims Mary stayed because of Father's continuing intense efforts to alienate Mary and his refusal to force her to return to Mother's home; Father claims Mary refused to go and he tried but was unable to make her go by any reasonable means short of physical force or punishment that may exacerbate her depression and self-harming. The trial court's findings resolved these factual issues, and based upon the evidence, we cannot discern how a "misapprehension" of the burden of proof would have made any meaningful difference in the findings of fact. This argument is without merit.
Mother next argues that the trial court "misapprehended the express and implied requirements of the modified custody order." She notes that the Order on Remand states that the 2015 Modified Custody Order has no "directive" requiring either party to "force visitation with the other parent." She challenges these findings of fact, which she notes are actually mixed findings of fact and conclusions of law:
Mother contends that the 2015 Modified Custody Order does have "implied" forced visitation requirements. The 2015 Modified Custody Order is long and very detailed, but in summary, the order sets out detailed provisions on custodial times for each parent including holidays and school breaks and detailed provisions on decision-making. It also includes the provision that "[t]his order is enforceable by the contempt powers of the Court."
Mother relies heavily on Reynolds v. Reynolds, 109 N.C. App. 110, 426 S.E.2d 102 (1993), for her argument that the 2015 Modified Custody Order is a "forced visitation" order. See id. at 113, 426 S.E.2d at 104. Yet Reynolds was not a contempt case; it was a constitutional challenge to a visitation order. Id. at 112, 426 S.E.2d at 104. In Reynolds, the mother and father originally had an order of joint custody without a specified visitation schedule. Id. at 111, 426 S.E.2d at 103. The parties could not agree on visitation, so the father filed a motion for visitation. Id. The daughter, then age 11, "expressed a desire not to visit her father[,]" but the trial court determined it was in her best interest to visit with him and entered an order setting a visitation schedule. Id. at 113, 426 S.E.2d at 104. There is no indication in the opinion that the daughter had any serious emotional or behavioral problems — such as self-harming — but she simply did not want to visit her father. See generally id. The order in Reynolds included a provision "that `[v]iolation of this Order shall be punishable by Contempt.'" Id., 426 S.E.2d at 105. Both the mother and the daughter challenged the order as a violation of their constitutional due
Mother's argument regarding "forced visitation" based on Reynolds relies upon this Court's comparison of the Reynolds order to an order in Mintz v. Mintz, 64 N.C. App. 338, 307 S.E.2d 391 (1983). See Reynolds, 109 N.C. App. at 112-13, 426 S.E.2d at 104. As explained in Reynolds, the Mintz order
Reynolds, 109 N.C. App. at 113, 426 S.E.2d at 104 (citations omitted) (emphasis added).
The Reynolds Court concluded that the order did not violate the plaintiffs' due process rights, since it was "not analogous to the contempt provision in the Mintz case as it does not provide that the violator will be incarcerated upon the oral report of a violation to the sheriff. Rather, the provision is a valid declaration that one who violates the Order will be subject to contempt proceedings in accordance with due process." Reynolds, 109 N.C. App. at 113, 426 S.E.2d at 105. The holding of Reynolds is simply that custody or visitation provisions do not violate the constitutional due process rights of either the parents or the child because they are enforceable by contempt proceedings as long as the alleged condemner has proper notice and opportunity for hearing. See generally id. Reynolds does not establish any sort of "forced visitation" rule. Id,
Nor does the Mintz case create a "forced visitation" rule as Mother claims. See generally 64 N.C. App. 338, 307 S.E.2d 391. In fact, Mintz uses the word "forced" only once, in the first sentence, as a description of what happened in the case: "This case concerns a domestic confrontation between mother and father over forced visitation of their 11-year-old child with the father." Id. at 338, 307 S.E.2d at 392.
Mother argues that because the 2015 Modified Custody Order has a provision that "[t]his order is enforceable by the contempt powers of the Court," it is a "forced visitation" order. Father responds that this provision is unnecessary, since all custody and visitation orders are enforceable by the contempt powers of the court anyway. Many orders include this provision simply as a reminder to the parties of the potential consequences of violation, but its absence does not mean the order cannot be enforced by contempt under N.C. Gen. Stat. § 5A-11 (2017) ("Criminal contempt") or N.C. Gen.
This awkward sentence seems to be based in part upon the trial court's finding No. 27:
But the trial court's finding was simply addressing Mother's own allegations in her Omnibus Motion that Father had intentionally done these very things in the past to alienate the children from her and was continuing to do them still. For example, her Omnibus Motion makes detailed allegations about times when Father had in the past "physically blocked" the children from seeing Mother; used his religion to divide the children from her; "used his `money, power, and high energy to influence professionals to advance his agenda with respect to'" the children; "manipulated the professionals involved in the care of his children;" empowered the children to make Mother appear to be the "the bad guy," and many other similar allegations. The trial court found that Father had not committed this misbehavior as alleged by Mother's Omnibus Motion. This finding does not mean that the trial court misunderstood Father's obligation to take any reasonable measures possible to make Mary return to her Mother's home. Instead, the trial court found that "Father has taken reasonable measures to comply with the order as detailed in Findings of Fact 20, 21, and 22.
In every custody case, even contempt cases, the "polar star" is the best interest of the children; the Mintz case makes this point:
Mintz, 64 N.C. App. at 340, 307 S.E.2d at 393 (citations omitted). The Mintz Court also notes that for older children, the trial court may give more weight to the wishes of the child:
Id. at 340-41, 307 S.E.2d at 393-94 (citations omitted).
Mary was 15 years old at the time of the hearing, and the evidence showed that she is a very intelligent, mature, and capable young woman. The trial court heard Mary's testimony and testimony from her long-time pediatrician and her school guidance counselors. The trial court had the duty to consider the weight to give to her preference and to consider her best interests; the transcript and order show the trial court took this duty seriously. Although this is a contempt case and not a case establishing custody, the trial court was considering Mary's best interests as part of its evaluation of what Father should do to make Mary visit her Mother. There is no dispute that she was depressed and self-harming.
Father was dealing with a depressed teenage girl who was self-harming. He picked her up from school because she told him she would walk home from school or practice instead of going with her mother, if he did not pick her up. Isolating her from friends or locking her in the house would likely exacerbate her condition. Mary was in therapy and improving, but therapy does not have instantaneous results. The trial court was well aware of the parties' "tumultuous history" and Father's past misdeeds — as are we, since Mother has listed them several times all the way back to 2006 in her Omnibus Motion and her brief — but the trial court properly considered Mary's best interests and the current
Mother next contends the trial court "misapprehended" the law regarding willful contempt by a parent in the context of a child's refusal to visit with or see the other parent. She also argues extensively this Court should disapprove or limit Hancock and that the trial court erred by relying on Hancock.
Mother argues that the 2015 Modified Custody Order has "implied forced visitation" provisions and Father willfully violated those "implied" provisions by not forcing Mary to go to her Mother's home, but the trial court failed to recognize these "implied" requirements of the Order based upon its interpretation of Hancock, 122 N.C. App. 518, 471 S.E.2d 415. Specifically, Mother argues:
Mother's argument misconstrues Hancock and Reynolds and ignores the requirement that all orders dealing with child custody and visitation, even a contempt order, must consider the best interests of the child.
In Hancock, the parties' son refused to go on three weekend visits with his father. Hancock, 122 N.C. App. at 521-22, 471 S.E.2d at 417. The trial court held the mother in civil contempt for willful failure to comply with the visitation order. Id. at 522, 471 S.E.2d at 417-18. On appeal, the mother argued that "there must be a showing that the custodial parent deliberately interfered with or frustrated the noncustodial parent's visitation before the custodial parent's actions can be considered willful." Id. at 522, 471 S.E.2d at 418. This Court agreed and reversed the order of civil contempt. Id. at 523, 471 S.E.2d at 418. The Court noted the testimony by mother, her daughter, and the child; all of the evidence showed that the mother had gotten the son ready for visitation, packed his things, told him he had to go, put him outside for his father to pick him up while she stayed inside, and told him to get into the car with his father. Id. at 523-24, 471 S.E.2d at 418-19. He refused. Id. at 524, 471 S.E.2d at 419. The son testified that "he loved his father and wished to spend time with him, but only if his father's second wife and her children would not be there." Id. He said he did not "feel comfortable" with his father's wife or at his father's home, that his step-mother "called him `a spoiled brat,'" and that the bed there was uncomfortable. Id. at 525, 471 S.E.2d at 419. There was evidence he "hated" his step-brother. Id.
This Court held there was no evidence that the mother had willfully disobeyed the court's order and she was not in civil contempt:
Id. at 525, 471 S.E.2d at 419 (emphasis added).
The Hancock Court further noted that the father may have a remedy by asking the trial court for an order of "forced visitation," but civil contempt was not the proper remedy:
Id. at 526, 471 S.E.2d at 420 (citations, quotation marks, and brackets omitted). The Hancock Court noted that a trial judge could enter an "order of forced visitation" but only if
Id. (citation and quotation marks omitted).
Here, Mother included in her Omnibus Motion two motions which are essentially motions for a forced visitation order. She asked for a mandatory preliminary injunction requiring Father to return Mary to her home and to "exert his parental influence" to make her stay there. She also asked for "judicial assistance" in the form of mandated reunification therapy. If these motions are not requests for "forced visitation" orders, it is hard to imagine what a forced visitation request would include. Those motions are not subjects of the order on appeal. But even in a contempt order, if the trial court is to enter a contempt order that operates as an order of "forced visitation," the order may be entered only under "compelling" circumstances and
Id. (quoting Mintz, 64 N.C. App. at 341, 307 S.E.2d at 394). And this is exactly what the trial court noted it could not do: "this might be one of the most compelling parts — I cannot find that it is in the best interest of [Mary] to force visitation at this time."
Mother seeks to distinguish Hancock based upon the differences in the facts: the duration of the missed custodial time; the custodial status (denial of weekend visitation v. physical custody); Father's "indulgence" of Mary when at his home; and the tumultuous history of this case. We agree that no two custody cases are alike factually; "Happy families are all alike; every unhappy family is unhappy in its own way."
The need to consider the child's best interest is why cases have typically not required a parent to use "physical force" or other extreme measures to make a child visit or stay with a parent. See generally McKinney, ___ N.C. App. at ___, 799 S.E.2d at 284-85; Hancock, 122 N.C. App. at 525-26, 471 S.E.2d at 419-20. A certain amount of physical force would make a child go in any case, regardless of the child's age or circumstances, but it would probably never be in a child's best interest.
Mother's predictions of anarchy in enforcement of custody orders based upon Hancock — and the trial court's order — from allowing a parent to ignore a court order with impunity where a child simply refuses to go are unfounded. She argues:
(Citations omitted).
The order on appeal did not allow Father to ignore the court's order with impunity. And neither Hancock nor any other case grants alleged contemnors "absolution" based simply on a child's refusal or wishes, nor does it imply that any "court-ordered custody/visitation schedule" is subject to a child's approval. The problem with Mother's efforts to hold Father in civil contempt was not the provisions of the Order or Hancock; it was the unique facts of this case, including Mary's mental health concerns. This is not a case of a young child simply saying "no."
The trial court did not misapprehend the law of civil contempt, either on the burden of proof or willfulness. The trial court's conclusions of law are supported by the findings of fact. We therefore affirm the order.
AFFIRMED.
Chief Judge McGEE and Judge BRYANT concur.