Opinion
Nos. COA10-1422 COA10-1502
Filed 21 June 2011 This case not for publication
Appeal by plaintiff from judgments entered 28 April 2010 by Judge J. Gary Dellinger in Caldwell County District Court. Heard in the Court of Appeals 28 April 2011.
John Fletcher Church, pro se. Respass Jud, by W. Wallace Respess, Jr., and Marshall Hurley, PLLC, by Marshall Hurley for Defendant.
Caldwell County File No. 01 CVD 1391.
Plaintiff John Fletcher Church appeals from orders in which the trial court (1) dismissed Plaintiff's 3 September 2009 notice of appeal and certain portions of Plaintiff's 1 September 2009 notice of appeal for non-compliance with N.C.R. App. P. 3(a)(c); (2) partially granted Plaintiff's motion to access a sealed court file concerning previous custody-related litigation between the parties; (3) denied Plaintiff's motion to reinstate visitation with his children; (4) held Plaintiff in contempt for failing to make a payment required pursuant to a prior order; (5) ordered Plaintiff to pay a portion of Defendant Jean Marie Church's attorney's fees pursuant to N.C. Gen. Stat. § 50-13; and (6) sanctioned Plaintiff for filing the 3 September 2009 notice of appeal pursuant to N.C. Gen. Stat. § 1A-1, Rule 11. After careful consideration of Plaintiff's challenges to these orders in light of the record and the applicable law, we conclude that the trial court did not err by dismissing Plaintiff's 3 September 2009 notice of appeal and that any error that the trial court may have committed in partially dismissing Plaintiff's 1 September 2009 notice of appeal has been adequately addressed by this Court's decision in Church v. Church, No. COA10-993 (N.C. App. 7 June 2011). We further conclude that Plaintiff's appeal from the order granting him partial access to the sealed court file should be dismissed as moot; that the trial court did not err by denying Plaintiff's motion to reinstate visitation or by holding Plaintiff in contempt; and that the trial court had ample basis for sanctioning Plaintiff. However, we find that the trial court's order requiring Plaintiff to pay a portion of Defendant's attorney's fees is not supported by sufficient findings of fact, requiring us to reverse that order and remand the attorney's fees issue to the Caldwell County District Court for further proceedings not inconsistent with this opinion, including the entry of a new order containing adequate findings of fact. As a result, we affirm the trial court's orders in part, reverse and remand the trial court's order for further proceedings in part, and dismiss Plaintiff's appeal in part.
I. Factual Background
Plaintiff and Defendant were married on 23 December 1992, lived together as husband and wife until separating on 31 August 2001, and were divorced on 22 November 2002. Two children were born as a result of the parties' marriage: a son, born on 23 October 1993, and a daughter, born on 18 March 1998. In the aftermath of their separation and divorce, the parties have been involved in extensive litigation in the trial and appellate courts arising from issues relating to the custody and support of their children. The records on appeal submitted in these two cases, COA10-1422 and COA10-1502, set forth a complex procedural history which stretches over a period of several years and includes several needlessly repetitive and overlapping appeals before this Court. Having provided a lengthy recitation of the factual background leading to the current appeal in our prior opinion, we see no reason to repeat that discussion in full here. Instead, we will limit our factual statement to those facts that are relevant to the issues that are before us in this appeal.
Although Plaintiff pursued separate appeals in each of the two cases that are addressed in this opinion, we have elected to file a single opinion addressing the issues raised in both of Plaintiff's appeals given the overlapping nature of the legal and factual issues that are currently before us.
A. Custody of the Parties' Minor Children
On 15 November 2004, Plaintiff was awarded primary physical custody of the children. On 27 August 2007, Defendant filed a motion seeking to have the 22 November 2004 custody order modified. On the same date, Judge Gregory R. Hayes issued an emergency ex parte order granting Defendant legal and physical custody of the children and ordering that Plaintiff have no contact with the children pending further order of the court. On 5 September 2007 and 14 September 2007, the trial court heard evidence for the purpose of determining whether the 27 August 2007 emergency order should remain in effect. On 5 December 2007, the trial court entered a temporary custody order granting legal and primary physical custody to Defendant while significantly relaxing the restrictions on the extent of Plaintiff's contact with the minor children as delineated in the emergency order.
The issue of permanent custody came on for hearing before Judge Nancy B. Norelli at the 7 April 2009 session of Caldwell County District Court. On 30 April 2009, Judge Norelli entered a written order addressing the issue of permanent "Child Custody and Visitation." According to the 30 April 2009 order, the parties were awarded joint legal custody, Defendant received primary physical custody, and Plaintiff was allowed "moderate supervised visitation for three months."
B. Orders for Interim Attorney's Fees, Finding Plaintiff in Contempt, and Requiring Plaintiff to Undergo a Psychological Evaluation
On 30 April 2009, Judge Norelli entered a number of other orders, including an order requiring Plaintiff to pay attorney's fees to Defendant. According to the interim attorney's fees order:
1. The Plaintiff shall pay directly to [Defendant's attorney] the sum of $5,000.00 on or before May 9, 2009.
2. That the Plaintiff shall pay directly to [Defendant's attorney] an additional $5,000.00 within sixty (60) days of May 9, 2009.
3. Failure to comply with this Order shall constitute willful, civil contempt of Court.
4. This is an interim order of attorney[']s fees. The Court shall make a final determination of attorney[']s fees at the three (3) month hearing scheduled for a review of visitation.
On 5 August 2009, the parties appeared before Judge Norelli for the purpose of addressing various outstanding issues, including the extent to which Plaintiff should be held in contempt for failing to make the first payment required under the interim attorney's fees order. After ascertaining that Plaintiff had not made the required payment and after giving Plaintiff an opportunity to show cause why he should not be held in contempt, Judge Norelli found Plaintiff in contempt and ordered that he be incarcerated until such time as he made the first required payment. In light of her observations of Plaintiff's conduct during the 5 August 2009 hearing, Judge Norelli also entered an order on 10 August 2009 requiring Plaintiff to undergo a psychological evaluation and suspending Plaintiff's visitation with the minor children until "further order of [the] Court."
We addressed Plaintiff's challenges to the psychological evaluation order in our earlier decision, holding that, while Judge Norelli did not err by requiring Plaintiff to undergo a psychological evaluation as a precondition for the restoration of his visitation rights, the order in question should be reversed and remanded to the Caldwell County District Court with "instructions that the Plaintiff be given an opportunity to be heard concerning the identity of the mental health professional responsible for conducting the required evaluation prior to the entry of a modified order[.]" Church, No. COA10-993, Slip. Op. at 25.
C. Notices of Appeal and Dismissal Order
On 1 September 2009, Plaintiff filed a notice of appeal seeking review of the following orders:
1. An order orally denying Plaintiff's motion for recusal of Judge Norelli, which was heard on 30 March 2009.
2. The interim attorney's fees order.
3. An order requiring Plaintiff to show cause why he should not be held in contempt.
4. An order requiring Plaintiff to show cause why he should not be held in contempt.
5. An oral announcement made by Judge Norelli on 5 August 2009 to the effect that Plaintiff's motion seeking reconsideration of the interim attorney's fees order would be denied.
6. An order finding Plaintiff in contempt for failing to make the first payment required under the interim attorney's fees order entered 5 August 2009.
7. An order finding Defendant in contempt for failing to make the first payment required under the interim attorney's fees order entered 5 August 2009.
8. The psychological evaluation order.
Plaintiff made no attempt to appeal the orders granting legal or primary physical custody of the children to Defendant until 3 September 2009, when he filed a notice of appeal seeking review of the 5 September 2007 emergency ex parte custody order, the 17 September 2007 temporary custody order, and the 30 April 2009 custody order.
On 11 January 2010, Defendant filed a motion seeking the dismissal of both notices of appeal. According to Defendant, Plaintiff had failed to note an appeal from each of the orders listed in the 3 September 2009 notice within the time period specified in N.C.R. App. P. 3(c)(1). In addition, Defendant alleged that Plaintiff had failed to note an appeal from at least some of the orders listed in the 1 September 2009 notice in a timely manner. On 28 April 2010, the trial court entered an order dismissing Plaintiff's appeal from each of the orders listed in the 3 September 2009 notice. In addition, the trial court dismissed Plaintiff's appeal from certain of the orders listed in the 3 September 2009 notice, although it did not specify the exact orders which should be dismissed with complete clarity.
D. Sealed Court File
On 9 April 2009, Judge Norelli announced in open court that all documents related to the parties' custody dispute which antedated the 30 April 2009 custody order would be placed under seal. On 19 October 2009, Plaintiff wrote to Judge Norelli requesting that she "file an order unsealing [the] file." In view of her decision to resign her judicial position, Judge Norelli forwarded Plaintiff's request to Chief Judge Robert M. Brady, who entered an order denying Plaintiff's request on 1 December 2009. On 29 October 2009, Plaintiff filed a Petition for Writs of Certiorari and Supersedeas and Mandamus and a Motion for Temporary Stay with this Court asking that "the Parties' file [be] unsealed to allow the Plaintiff access to such file so that Plaintiff can assemble the proposed record on appeal." This Court declined to act in accordance with Plaintiff's request on 20 November 2009. On 7 December 2009, Plaintiff filed a Petition for Writ of Mandamus and Extension of Time with this Court in which he asked that we "issue an [o]rder unsealing the sealed portion of the [p]arties' file or [] issue an [o]rder to compel . . . the trial court to unseal the sealed portions of [the] file." Once again, we denied Plaintiff's request by means of an order entered 12 January 2010. A few days later, Plaintiff filed a Motion to Unseal File in the Caldwell County District Court.
Although Plaintiff claims to have sought "an extension of time to deliver transcripts and [the entry of an order unsealing] the sealed portion of the parties' file" at the District Court level on 30 November 2009, he has not cited any portion of the record in support of this assertion, and we have not found any such motion in the course of our review of the voluminous materials that Plaintiff has submitted for our consideration.
E. 28 April 2010 Orders and May 2010 Notices of Appeal
On 28 April 2010, after a hearing held at a special session of the Caldwell County District Court on 20 January 2010, the trial court entered a series of orders for the purpose of addressing various pending issues, including the previously-described order dismissing all or portions of Plaintiff's 1 September 2009 and 3 September 2009 notices of appeal and orders denying Plaintiff's motion to unseal a portion of the court file, denying Plaintiff's request for reinstatement of his visitation rights, holding Plaintiff in contempt for failing to make a payment required under the interim attorney's fees order, awarding additional attorney's fees to Defendant pursuant to N.C. Gen. Stat. § 50-13.6, and sanctioning Plaintiff pursuant to N.C. Gen. Stat. § 1A-1, Rule 11.
On 27 May 2010, Plaintiff filed two notices of appeal seeking appellate review of a number of the orders entered by the trial court on 28 April 2010. In the first of these notices, Plaintiff appealed, among other things, (1) the trial court's order dismissing Plaintiff's notices of appeal, (2) the trial court's order awarding attorney's fees to Defendant pursuant to N.C. Gen. Stat. § 50-13.6, (3) the trial court's order finding Plaintiff in contempt for violating the interim attorney's fees order, and (4) the trial court's order sanctioning Plaintiff pursuant to N.C. Gen. Stat. § 1A-1, Rule 11. In the second notice of appeal, Plaintiff restated his intent to appeal various orders as expressed in the first notice of appeal and, in addition, noted his appeal from (1) the trial court's order denying Plaintiff's motion to reinstate visitation and (2) the trial court's order denying Plaintiff's motion to unseal portions of the court file.
II. Legal Analysis A. Order Dismissing Plaintiff's 1 September and 3 September 2009 Notices of Appeal
First, Plaintiff contends that the trial court erred by dismissing certain portions of his 1 September 2009 notice of appeal and his entire 3 September 2009 notice of appeal. We find no error in the trial court's decision to dismiss Plaintiff's appeal from (1) the emergency ex parte child custody order entered 5 September 2007, (2) the temporary custody order entered 17 September 2007, and (3) the custody order entered 30 April 2009, none of which were filed within the 30 day period specified in N.C.R. App. P. 3(c). In addition, Plaintiff's attempt to appeal the emergency ex parte custody order and the temporary custody order was ineffective because both of those orders were clearly interlocutory, Travco Hotels v. Piedmont Natural Gas Co, 332 N.C. 288, 291, 420 S.E.2d 426, 428 (1992) (stating that, as a general proposition, "there is no right of immediate appeal from interlocutory orders and judgments") (citing Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990)), and were superseded by the 30 April 2009 custody order. In re A.K., 360 N.C. 449, 452, 628 S.E.2d 753, 755 (2006) (stating that, in the event that "`a development occurs, by reason of which the questions originally in controversy between the parties are no longer at issue, the appeal will be dismissed [because] this Court will not . . . proceed with a cause merely to determine abstract propositions of law or to determine which party should rightly have won in the lower court'") (quoting Benvenue Parent-Teacher Ass'n v. Nash Cty. Bd. of Educ., 275 N.C. 675, 679, 170 S.E.2d 473, 476 (1969)). Although Plaintiff attempts to salvage his appeal from the 30 April 2009 order by arguing that it "was not a[n appealable] final order on the day it was filed" because the 30 April 2009 order provided for a future hearing at which "[a]ll parties shall return and report the progress with the family in dealing more appropriately and respectfully with one another," this argument is without merit. The mere fact that the 30 April 2009 order provided for a future hearing in order to review "the progress [of] the family in dealing more appropriately and respectfully with one another" does not change the fact that, as is reflected in the title adopted by Judge Norelli, this order finally determined Plaintiff's custody and visitation rights, so that he was required to note an appeal from that order within the 30 day period specified in N.C.R. App. P. 3(c). The order before us in this case is factually distinct from that which we held to be temporary in Lamond v. Mahoney, 159 N.C. App. 400, 583 S.E.2d 656 (2003). Unlike the Lamond order, which "contain[ed] no provisions governing visitation after the anticipated three months of unsupervised visitation[,]" Lamond, 159 N.C. App. at 404, 583 S.E.2d at 659, the 30 April 2009 custody order issued by Judge Norelli provides detailed visitation terms, applicable far beyond the date of the three month progress review, including, among other similar provisions, specific instructions as to how the parties would share time during the Christmas holidays. Thus, the trial court properly dismissed Plaintiff's appeal from all three of the custody-related orders listed in the 3 September 2009 notice of appeal.
As a result of the fact that the trial court did not clearly specify which of the orders listed in the 1 September 2009 notice were dismissed, we are uncertain as to which of Plaintiff's appeals the trial court intended to dismiss. Thus, we will proceed on the assumption that the trial court intended to dismiss Plaintiff's 1 September 2009 notice of appeal in its entirety.
Although he discusses his challenge to Judge Norelli's refusal to recuse herself in his brief, Plaintiff appears to have abandoned his appeal from this decision (to the extent that he ever had one). We need not discuss this and other issues abandoned by Plaintiff in his brief. N.C.R. App. P. 28(a) (stating that review on appeal is limited to "issues [] presented in [a party's] brief[,]" and "[i]ssues not presented and discussed [therein] are deemed abandoned"). As we understand Plaintiff's brief, he admits the impropriety of his appeal from this recusal-related decision and simply requests that we not sanction him for attempting to appeal this order as a result of his belief that a challenge to Judge Norelli's decision with respect to the recusal issue was "appropriate under the circumstances." Similarly, Plaintiff does not appear to argue in his brief that the trial court erred by dismissing his appeal from the two show cause orders listed in the 1 September 2009 notice of appeal; even if he had not abandoned his appeal from these orders, any attempt to appeal from them would have been unavailing given their interlocutory nature. Plaintiff does, however, vigorously contend that the trial court erroneously dismissed his appeal from the interim attorney's fees order. Since we addressed Plaintiff's challenge to the interim attorney's fees order on the merits in our prior opinion, however, any error that the trial court may have committed in dismissing Plaintiff's appeal from that order did not prejudice Plaintiff given the peculiar circumstances before us in this case. Similarly, despite the fact that Plaintiff appears to have noted a timely appeal from the remaining orders listed in the 1 September 2009 notice, we address his challenge to those orders on the merits in our prior opinion as well. As a result, Plaintiff is not entitled to any relief on appeal stemming from the trial court's decision to dismiss the appeals he attempted to note in his 1 September 2009 and 3 September 2009 notices of appeal.
B. Sealed Court File
Secondly, Plaintiff challenges the entry of an order that granted him partial access to the sealed portion of the court file in this case. Given the arguments advanced in Defendant's brief, we are unable to conclude that Plaintiff has shown the existence of an error of law in the trial court's order.
As we have already noted, Plaintiff filed a Motion to Unseal the Court File on 14 January 2010. In denying Plaintiff's motion, the trial court found that:
1. The Defendant[,] by and through counsel[,] stipulated that the Court File could be unsealed from August 27, 2007, the date of the Defendant's Motion to Modify Child Custody but not before.
2. The Clerk of Superior Court shall unseal the file from August 27, 2007, forward to today[']s date and allow the Plaintiff to copy any and all documents therein from August 27, 2007, forward but shall maintain the file in a sealed condition for all documents prior to August 27, 2007.
Based upon these findings, the trial court ordered the Clerk of Superior Court to "unseal the above-captioned file for the purposes of the Plaintiff making copies of any documents therein filed on or after August 27, 2007, but not before" and Plaintiff "shall have ten (10) days from the entry of this Order to complete any and all copying after which the file shall be sealed once again."
On appeal, Plaintiff argues that he "requires full access to the parties' file" because:
The 3 September 2009 custody orders relate to an order modifying custody. As is well known, [a] permanent order for child custody may be modified at any time upon a motion in the cause and a showing of changed circumstances by either party. N.C. [Gen. Stat.] § 50-13.7(a). [] If the trial court determines that there has been a substantial change in circumstances and that the change affects the welfare of the child, the court must then determine whether a change in custody is in the child's best interests.
Based upon this assertion, Plaintiff argues that the trial court erred by refusing to completely unseal the court file because Plaintiff
requires access to the 2004 custody order (and perhaps other documents) to set the reference point upon which a judgment can be made regarding whether, or not, the 30 April 2009 custody order supports a finding that there has been a substantial change in circumstances affecting the parties' children, and if so, does such a change warrant a change in custody.
As a result, it is clear that Plaintiff's only basis for challenging the trial court's order refusing to completely unseal the court file is prudential in nature and stems from his desire to use information gleaned from his examination of the sealed materials to support a challenge to the 30 April 2009 custody order premised on the notion that there was, in fact, no substantial change in circumstances between the entry of the 25 November 2004 custody order and that date. Given our affirmance of the trial court's decision to dismiss Plaintiff's appeal from the 30 April 2009 custody order, that custody order is not subject to further challenge. Moreover, any attempt that Plaintiff may make to show that there had been no substantial change in circumstances between 25 November 2004 and 30 April 2009 would be a futile undertaking at this point, since the relevant question in any future custody modification proceeding would be whether there had been a substantial change in circumstances between 30 April 2009 and the time of any such custody modification proceeding, a subject to which the materials that Plaintiff describes would have no demonstrable relevance. As a result, we conclude that Plaintiff's challenge to the trial court's order refusing to unseal the sealed portion of the court file is moot and that Plaintiff's appeal from this order should be dismissed as moot. See generally In re A.K., 360 N.C. at 452, 628 S.E.2d at 755.
In addition, Plaintiff argues that the trial court erred by denying his request for full access to the court file on the grounds that its decision contravened N.C. Const. art. IV, § 13( 2) (providing that the "Supreme Court shall have exclusive authority to make rules of procedure and practice for the [a]ppellate [courts]) by allowing the trial courts to limit the materials available for the records on appeal submitted to the appellate courts and N.C. Const. art. I, § 18 (proving that "[a]ll courts shall be open"). As a result of the fact that Plaintiff has not provided any legal argument demonstrating the relevance of these constitutional provisions in light of the present set of facts, we need not address this aspect of Plaintiff's argument any further. N.C.R. App P. 28(a) (stating that review on appeal is limited to "[i]ssues [] presented in [a party's] brief[,]" and "[i]ssues not presented and discussed [therein] are deemed abandoned").
C. Order Denying Motion to Reinstate Visitation
Thirdly, Plaintiff contends that the trial court erred by denying his oral motion to reinstate his visitation privileges with his minor children. We disagree.
The trial court's order denying Plaintiff's request for reinstatement of his visitation rights includes the following findings of fact:
1. The Plaintiff's visitation was suspended by the Honorable Nancy Norelli pending a psychological evaluation. The Plaintiff has failed and refused to obtain a psychological evaluation.
2. The Court offered the Plaintiff the opportunity to reinstate visitation by submitting to a psychological evaluation. The Plaintiff steadfastly refused to submit to a psychological evaluation.
3. Reinstatement of visitation shall not occur unless there is a substantial change of circumstances.
4. The best interests of the minor child will be served by continuing the suspension of the Plaintiff's visitation.
Based on these findings of fact, the trial court concluded as a matter of law that:
1. Reinstatement of visitation shall not occur unless [and] until there is a substantial change of circumstances.
2. That the Plaintiff's Motion to Reinstate Visitation is denied.
A trial judge's decision to deny a motion for an alteration in the terms and conditions of visitation is reviewed on appeal under an abuse of discretion standard, under which the trial court's ruling will remain undisturbed unless it was "manifestly unsupported by reason." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (citing Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980)).
A careful study of the record reveals that the trial court's decision to deny Plaintiff's motion was well within the bounds of reason. The record contains ample support for the trial court's determination that there had been no change in circumstances between the entry of Judge Norelli's order suspending Plaintiff's visitation rights pending the performance of a complete psychological evaluation and the date upon which the trial court heard Plaintiff's motion. At bottom, Plaintiff's challenge to the trial court's decision rests on nothing more than a thinly-veiled restatement of his vehement objections to the original psychological evaluation order. Given that we addressed Plaintiff's challenge to the psychological evaluation order in our prior opinion and affirmed Judge Norelli's determination that Plaintiff's visitation with the children should be suspended until he underwent a complete psychological evaluation, we are not authorized to revisit this issue now. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (stating that, "[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court") (citations omitted). As a result, we conclude that the trial court did not abuse its discretion by denying Plaintiff's request for the reinstatement of visitation, so that the trial court's order should be affirmed.
D. Order Holding Plaintiff in Contempt
Next, Plaintiff contends that the trial court erred by holding him in contempt based upon his failure to make a payment required by the interim attorney's fees order. According to the interim attorney's fees order, Plaintiff was required to make a second $5,000 payment to Defendant's counsel within sixty days of 9 May 2009. Although Plaintiff does not dispute his failure to make the required payment or argue that his failure to do so was not willful, he argues that the trial court lacked the authority to hold him in contempt based on his "serendipitous[]" discovery of what he claims to be an order of this Court that stayed the interim attorney's fees order. No such document is, however, contained in the record on appeal that has been presented for our review. According to well-established North Carolina law, our review is confined to the record developed in the trial court. N.C.R. App. P. 9 (stating that, "[i]n appeals from the trial division of the General Court of Justice, review is solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, and any other items filed pursuant to this Rule 9"). As a result of Plaintiff's failure to include this document in the record on appeal, we are precluded from considering it in evaluating the lawfulness of the trial court's contempt order. Thus, we conclude that the trial court's order holding Plaintiff in contempt for violating the interim attorney's fees order should be affirmed.
A careful examination of this Court's records indicates that the "order" upon which Plaintiff relies was never issued by this Court or transmitted to the Clerk of Superior Court of Caldwell County or the parties. As a result, even if Plaintiff had included all necessary documents in the record on appeal, those documents would not have established that the order which Defendant was held in contempt for violating had ever been stayed by this Court.
E. Order Requiring Plaintiff to Pay a Portion of Defendant's Attorney's Fees
Next, Plaintiff contends that the trial court erred by ordering him to pay a portion of the attorney's fees that Defendant has incurred in connection with the litigation of this case. As a result of the extended and unnecessarily convoluted history of this case, it appears that two separate orders requiring Plaintiff to pay a portion of Defendant's attorney's fees have been entered by the trial court. The vast majority of Plaintiff's challenges to the orders requiring him to pay a portion of Defendant's attorney's fees relate to the interim attorney's fees order entered by Judge Norelli on 30 April 2009, which is not properly before us for review. As a result, we will confine our review to Plaintiff's challenge of the order for attorney's fees entered by the trial court on 28 April 2010, from which Plaintiff has noted a timely appeal to this Court.
We determined that Plaintiff had not properly appealed from the interim attorney's fees order in our prior decision.
According to N.C. Gen. Stat. § 50-13.6:
In an action or proceeding for the custody or support, or both, of a minor child, including a motion in the cause for the modification or revocation of an existing order for custody or support, or both, the court may in its discretion order payment of reasonable attorney's fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit.
N.C. Gen. Stat. § 50-13.6 "provides the trial court with considerable discretion in allowing or disallowing attorney fees in child custody or support cases." Brandon v. Brandon, 10 N.C. App. 457, 463, 179 S.E.2d 177, 181 (1971). However, the trial court's discretion in making attorney's fee decisions pursuant to N.C. Gen. Stat. § 50-13.6 is not absolute. Instead:
In a custody suit or a custody and support suit, the trial judge, pursuant to the first sentence in [N.C. Gen. Stat. § ] 50-13.6[,] has the discretion to award attorney's fees to an interested party when that party is (1) acting in good faith and (2) has insufficient means to defray the expense of the suit. The facts required by the statute must be alleged and proved to support an order for attorney's fees. Whether these statutory requirements have been met is a question of law, reviewable on appeal[, and] [w]hen the statutory requirements have been met, the amount of attorney's fees to be awarded rests within the sound discretion of the trial judge and is reviewable on appeal only for abuse of discretion.
Hudson v. Hudson, 299 N.C. 465, 472, 263 S.E.2d 719, 723-24 (1980) (internal citations omitted).
In its order requiring Plaintiff to pay $7,052.49 in attorney's fees to Defendant's counsel, the trial court made the following findings of fact:
1. The Defendant has been represented by [her counsel] consistently since August 27, 2007.
2. During that period of time the Defendant has incurred substantial attorney[']s fees exceeding $35,000.00.
3. In April of 2009, the Honorable Nancy Black Norelli entered an Order which was filed on April 30, 2009, awarding Defendant Interim Attorney[']s Fees of $10,000.00 payable in two (2) installments.
4. Since April, 2009, there have been two (2) additional sessions of Court, occasioned in large part by the Plaintiff's filing frivolous Motions.
5. The Plaintiff has filed and served upon counsel for the Defendant numerous documents in the Court of Appeals for Appeals that have now been dismissed as being wholly without any basis in law or in fact.
6. The Court finds that the fees for [Defendant's counsel] are reasonable for an experienced and seasoned attorney with more than thirty-three (33) years of practice. A large amount of the work was a result of the actions of the Plaintiff[.]
7. The Defendant is without the means and ability to pay the fees as she and her husband mortgaged their home to pay the original retainer fee.
8. The Court finds that the fees submitted by the Defendant[']s attorney are fair, just, and reasonable and that the Plaintiff has the means and ability to pay the fees awarded.
A careful examination of the trial court's order reveals that it lacks sufficient findings to support an award of attorney's fees to Defendant pursuant to N.C. Gen. Stat. § 50-13.6, since the trial court never found that Defendant was an interested party acting in good faith. As a result, we conclude that the trial court's order requiring Plaintiff to pay additional attorney's fees must be reversed and that the attorney's fees issue must be remanded to the Caldwell County District Court with instructions that a new order containing adequate findings of fact be entered.
F. Order Imposing Rule 11 Sanctions
Finally, Plaintiff argues that the trial court erred by granting Defendant's motion for the imposition of sanctions against him pursuant to N.C. Gen. Stat. § 1A-1, Rule 11, and ordering Plaintiff to pay $2,000 in attorney's fees to Defendant's counsel. We disagree.
According to N.C. Gen. Stat. § 1A-1, Rule 11(a):
Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. . . . The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . . If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.
In its order sanctioning Plaintiff, the trial court found as a fact that:
1. On September 3, 2009, the Plaintiff attempted to appeal the Orders entered on September 5, 2007, September 17, 2007, and April 30, 2009. All and each of the Orders sought to be appealed from are untimely and far in excess of thirty (30) days from the entry of the Order.
2. That the Notices of Appeal that are in question here are without any basis [in] fact or law and [] violate[] the provisions of Rule 11 of the North Carolina Rules of Civil Procedure.
3. The Court also finds that the Defendant has incurred expenses as a result of this filing in the amount of at least ten (10) hours. The Court finds that that is a reasonable amount of time in preparation of this and probably is a low amount of time. The Court commends [Defendant's counsel] for limiting that amount of time.
4. The Court finds that those expenses incurred by the Defendant shall be awarded as attorney[']s fees pursuant to Rule 11. The Court finds that a reasonable amount of time was ten (10) hours and the Court finds that a reasonable amount of attorney!']s fee[] shall be $200.00 per hour and the Court finds that $2,000.00 is a reasonable attorney[']s fees in this Motion.
Based on these findings, the trial court ordered that "Plaintiff shall pay to [Defendant's counsel] $1,000.00 within sixty (60) days of the entry of this Order and the remaining $1,000.00 within ninety (90) days of the entry of this Order."
On appeal, Plaintiff challenges the trial court's sanctions order on the grounds that his 3 September 2009 notice of appeal was timely filed and that the trial court erred by concluding otherwise. Earlier in this opinion, we rejected the exact argument that Plaintiff makes in seeking to persuade us to overturn the trial court's order. As a result of our earlier conclusion that Plaintiff's argument lacked merit, and our further conclusion that Plaintiff's argument is not "warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law," N.C. Gen. Stat. § 1A-1, Rule 11(a), we conclude that the trial court properly imposed sanctions upon Plaintiff pursuant to N.C. Gen. Stat. § 1A-1, Rule 11 and that the trial court's order to that effect should be affirmed.
III. Conclusion
Thus, for the reasons discussed above, we dismiss Plaintiff's appeal from the trial court's order granting in part and denying in part his request for access to certain sealed court documents as moot; reverse the trial court's order requiring Plaintiff to pay additional attorney's fees pursuant to N.C. Gen. Stat. § 50-13.6 and remand it to the Caldwell County District Court with instructions that the court enter a new order containing appropriate findings of fact; and affirm the trial court's orders dismissing Plaintiff's 1 September 2009 and 3 September 2009 notices of appeal to the extent that we have not addressed the issues raised by those notices in our prior decision, denying Plaintiff's motion to reinstate his visitation rights, holding Plaintiff in civil contempt, and sanctioning Plaintiff pursuant to N.C. Gen. Stat. § 1A-1, Rule 11. As a result, the challenged trial court orders are affirmed in part and reversed and remanded in part, with a portion of Plaintiff's appeal being dismissed.
On appeal, Defendant has sought sanctions against Plaintiff pursuant to N.C.R. App. P. 34(a)(1), which allows this Court to impose sanctions upon a party in the event that "an appeal or any proceeding in an appeal was frivolous because . . . the appeal was not well grounded in fact and was not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law[.]" Although we do not believe that all of the issues that Plaintiff has presented for our consideration in this consolidated appeal were frivolous, we conclude that Plaintiff's challenge to the trial court's order dismissing his 3 September 2009 notice of appeal, his challenge to the order denying his request for the reinstatement of visitation rights, his challenge to the trial court's order holding him in contempt for violating the interim attorney's fees order, and his challenge to the trial court's order sanctioning him pursuant to N.C. Gen. Stat. § 1A-1, Rule 11 were "not well grounded in fact and [were] not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law[.]" N.C.R. App. P. 34(a)(1). As a result, we conclude that Plaintiff should be required to pay Defendant's "reasonable expenses, including reasonable attorney fees, incurred because of the frivolous appeal or proceeding[,]" N.C.R. App. P. 34(b)(2)c, and that this case should be remanded "to the trial division for a hearing to determine" the amount of expenses, including attorney's fees, which Plaintiff should be required to pay to Defendant in connection with the frivolous portions of this appeal. N.C.R. App. P. 34(c).
AFFIRMED IN PART; REVERSED AND REMANDED IN PART; DISMISSED IN PART.
Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).