Opinion
COA22-273
12-20-2022
MARIA PEDROTTI, Plaintiff, v. JOHN PEDROTTI, Defendant
The Law Corner, by Matthew Jackson, for the Plaintiff-Appellee. Tharrington Smith, LLP, by Jeffrey R. Russell and Evan B. Horwitz, for the Defendant-Appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 5 October 2022.
Appeal by Defendant from order entered 26 October 2021 by Judge J. Brian Ratledge in Wake County District Court. Wake County, No. 15 CVD 12470
The Law Corner, by Matthew Jackson, for the Plaintiff-Appellee.
Tharrington Smith, LLP, by Jeffrey R. Russell and Evan B. Horwitz, for the Defendant-Appellant.
JACKSON, Judge.
¶ 1 John Pedrotti ("Defendant") appeals from an order giving Maria Pedrotti ("Plaintiff") sole legal custody and primary physical custody of their minor child and holding Defendant in contempt. We affirm in part and vacate in part.
I. Background
¶ 2 Plaintiff and Defendant were married on 22 May 1998. On 28 January 2014, the only child of the marriage ("the minor child") was born. Plaintiff and Defendant separated on 23 December 2014. On 15 September 2015, Plaintiff filed a complaint for child custody, child support, and equitable distribution. Defendant filed an answer and counterclaim on 28 October 2015.
¶ 3 On 20 April 2016, an amended consent order ("Amended Consent Order") for permanent custody and support was entered awarding joint legal and physical custody of the minor child to Plaintiff and Defendant. At the time of the Amended Consent Order, the parties were also appointed a parenting coordinator. The parenting coordinator filed a Notice and Parenting Coordinator Report on 6 March 2017 which stated the current physical custody schedule was not in the minor child's best interests. Plaintiff filed a Motion to Modify Custody on 9 March 2017. On 11 July 2017, Plaintiff and Defendant entered into a Consent Order on Temporary Modification of Child Custody ("Temporary Order"). On 26 July 2017, Plaintiff filed a Motion to Show Cause Order and a Motion for Contempt alleging Defendant violated the terms of the Temporary Order. The parties executed a Memorandum of Judgment on 1 August 2017.
¶ 4 On 8 December 2018, Plaintiff and Defendant entered into a Consent Contempt Order in which Defendant was held in civil contempt for violating the Amended Consent Order. As a part of this Consent Contempt Order, Defendant agreed to relinquish all final decision-making authority over both education and healthcare decisions concerning the minor child to Plaintiff, after a good faith discussion between the parties.
¶ 5 Again, on 20 February 2019, the parenting coordinator filed a Notice and Parenting Coordinator Report which stated that shared physical custody was not in the minor child's best interests, as Defendant continued to engage in hostile communications with Plaintiff, continually claimed his parental rights were being violated, and communicated with the minor child on a level not congruent with the minor child's age.
¶ 6 On 19 March 2019, a Memorandum of Judgment/Order was entered in which the parties agreed to submit to a custody evaluation with a custody evaluator. In her report, the custody evaluator noted the parties' greatest issue was a lack of coparenting and recommended a 2-2-5 schedule but that if Defendant was unable to maintain minimal conflict with Plaintiff and follow the directives of the parenting coordinator, then the shared custody schedule should change, vesting primary custody with Plaintiff. On 18 November 2019, a Modification of Custody Order ("2019 Order") was entered granting Plaintiff sole legal custody of the minor child for all issues except medical decisions. The 2019 Order also awarded physical custody to Plaintiff and Defendant in equal shares following a 2-2-5 schedule where the parties were to exchange custody through school drop-off. The parties were also to alternate weeks during the minor child's summer break exchanging custody through summer camp and school drop-off.
¶ 7 On 1 October 2020, Plaintiff filed a Motion for Order to Show Cause and Motion for Contempt which included allegations of an incident which took place at Lifetime Fitness on 24 August 2020. On 5 October 2020, the trial court entered an Order to Appear and Show Cause against Defendant. Plaintiff then filed another Motion to Modify Custody on 26 October 2020, citing as a substantial change in circumstances that Defendant had escalated his combativeness in the presence of the minor child, the minor child's schooling arrangements were at home full-time for the remainder of the 2020 school year, and Plaintiff had changed her residence since the entry of the 2019 Order. Defendant responded by filing a Motion to Modify Child Custody on 2 November 2020. Then, on 17 December 2020, Defendant filed a Motion for Order to Show Cause and Motion for Contempt stating that Plaintiff failed to make joint decisions with Defendant regarding the minor child's religious upbringing by unilaterally arranging for the minor child to be baptized on 11 August 2018 without Defendant's knowledge or involvement. On 5 February 2021, the trial court entered an Order to Appear and Show Cause against Plaintiff.
¶ 8 On 19 August 2021, Plaintiff's Motion to Modify Child Custody and Motion for Contempt and Defendant's Motion to Modify Child Custody and Motion for Contempt came on for hearing before the Honorable J. Brian Ratledge in Wake County District Court. On 26 October 2021, the trial court entered an Order for Modification of Child Custody ("2021 Order") modifying the parties' custody schedule and holding Defendant in contempt. Further, Defendant's Order to Show Cause was dismissed. Defendant filed a Notice of Appeal of the 2021 Order on 16 November 2021.
II. Discussion
¶ 9 Defendant argues that the trial court erred in the entry of the 2021 Order by (1) finding and concluding there was a substantial change in circumstances; (2) failing to make sufficient findings to support Conclusion of Law 3; (3) failing to show the custody modification was not only in the minor child's best interests but also in direct response to, or in remedy of, any substantial changes that the trial court concluded affected his welfare; (4) making findings of fact 12, 15, 18(b), 21-26, 28-29; (5) modifying the physical custody schedule by reducing Defendant's time with the minor child to every other weekend; and (6) holding Defendant in civil contempt and issuing a censure in a civil contempt matter. We first address Defendant's contentions (1)(5) before addressing contention (6) regarding the civil contempt order.
A. The findings of fact are supported by sufficient evidence
¶ 10 In Defendant's first five assignments of error, he contends the trial court erred in several of its findings. We disagree, with the exception of Finding of Fact 26, and address these issues in turn below.
¶ 11 In reviewing a trial court's decision to grant a motion for modification of an existing child custody order, we examine the trial court's findings of fact to ensure they are supported by substantial evidence. Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003). Further, "[i]n addition to evaluating whether a trial court's findings of fact are supported by substantial evidence, this Court must determine if the trial court's factual findings support its conclusions of law." Id. at 475, 586 S.E.2d at 254. We review the trial court's conclusions of law de novo. State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011).
1. No error in finding a substantial change in circumstances or a connection between the substantial change and welfare of the minor child
¶ 12 Defendant argues there was insufficient evidence to support any finding of a substantial change in circumstances since the entry of the 2019 Order, or in the alternative, to demonstrate a connection between the alleged substantial change and the welfare of the minor child. We disagree.
¶ 13 A trial court can only modify a permanent custody order where there has been a substantial change in circumstances since the order was put in place and when the modification is in the best interest of the child. Woodring v. Woodring, 227 N.C.App. 638, 643, 745 S.E.2d 13, 18 (2013). "[W]hen evaluating whether there has been a substantial change in circumstances, courts may only consider events which occurred after the entry of the previous order, unless the events were previously undisclosed to the court." Id. at 645, 745 S.E.2d at 20. Moreover, the trial court has erred where it makes a modification after considering only previous findings without making findings of additional changes in circumstances or conditions. Ford v. Wright, 170 N.C.App. 89, 96, 611 S.E.2d 456, 461 (2005). Additionally, to modify a custody order, the "evidence must demonstrate a connection between the substantial change in circumstances and the welfare of the child, and . . . the trial court [is required to] make findings of fact regarding that connection." Shipman, 357 N.C. at 478, 586 S.E.2d at 255.
¶ 14 An interference with a parent's visitation may constitute a substantial change in circumstances sufficient to warrant a change of custody if the interference had a negative impact on the welfare of the child. Correll v. Allen, 94 N.C.App. 464, 46970, 380 S.E.2d 580, 584 (1989). See also Woncik v. Woncik, 82 N.C.App. 244, 346 S.E.2d 277 (1986) (Holding that conduct undertaken deliberately to belittle another parent in the mind of their child has a negative impact on the welfare of the child and constituted a substantial change in circumstances sufficient to warrant a change of custody). Further, "[i]t is beyond obvious that a parent's unwillingness or inability to communicate in a reasonable manner with the other parent regarding their child's needs may adversely affect a child[.]" Laprade v. Barry, 253 N.C.App. 296, 303, 800 S.E.2d 112, 117 (2017). See also Trivette v. Trivette, 162 N.C.App. 55, 61, 590 S.E.2d 298, 304 (2004) (Holding there was a substantial change in circumstances affecting the welfare of the plaintiff and the defendant's children where the defendant "became angry and enraged when communicating with the plaintiff even when the children were present."). However, where "the effects of the change on the welfare of the child are not self-evident[,] [there must be] a showing of evidence directly linking the change to the welfare of the child." Shipman, 357 N.C. at 478, 586 S.E.2d 256 (emphasis and citations omitted).
a. A substantial change in circumstances since entry of the 2019 Order
¶ 15 First, Defendant argues that because there have been long-standing disagreements between him and Plaintiff and because those disagreements were noted in the 2019 Order, a single additional incident where the parties had a nonphysical altercation was not a substantial change to warrant modification. Further, Defendant argues that neither Plaintiff's change in residential address nor the minor child's change in schooling constituted a substantial change.
¶ 16 As discussed above, there may exist a substantial change in circumstances where a defendant undertakes conduct to intentionally belittle the other parent in the mind of the child. See Wonick, 82 N.C.App. at 249, 346 S.E.2d at 280. Further, consistent with our holdings in both Laprade and Trivette, an inability to effectively communicate with the other spouse, despite there already having been evidence of long-standing conflict between the parents, may still constitute a substantial change in circumstances when there has been an escalation in conflict, the conflict is currently affecting the child, or the ineffective communication takes place in the presence of the child. See Laprade, 253 N.C.App. 296, 800 S.E.2d 112; See also Trivette v. Trivette, 162 N.C.App. 55, 590 S.E.2d 298 (2004).
¶ 17 Here, while the 2019 Order did refer to long-standing conflict between the parties and their inability to effectively communicate, there was an escalation of this conflict on 24 August 2020 when Defendant confronted Plaintiff at the Lifetime Fitness where Plaintiff was picking up the minor child from virtual learning. While Plaintiff was walking with the minor child to her car, Defendant pulled his car behind hers to prevent her from being able to drive away. Defendant then began screaming at Plaintiff that they were to exchange custody in Cary. Defendant continued, yelling expletives at Plaintiff, in the presence of the minor child who began crying. Plaintiff was able to put the minor child in the car, but Defendant refused to move his car from behind Plaintiff's for four minutes before he let her leave.
¶ 18 This event not only demonstrated Defendant's intent to belittle Plaintiff in the presence of the minor child, but also an escalation in an already contentious relationship and a complete inability to communicate effectively about the needs of the minor child-constituting a substantial change in circumstances.
¶ 19 Because the trial court's findings concerning the Lifetime Fitness incident alone are enough to warrant a modification of the 2019 Order, we need not address Defendant's contentions as to whether Plaintiff's change in residence or the minor child's change in schooling amounts to a substantial change in circumstances.
b. A connection between the change in circumstances and the effect on the welfare of the minor child.
¶ 20 Defendant argues the trial court erred in making Conclusion of Law 3 because the trial court neglected to make sufficient findings of fact demonstrating a connection between the changed circumstances and the welfare of the minor child.
¶ 21 In its Conclusion of Law 3, the trial court stated:
3. A substantial change in circumstances affecting the best interests of the minor child has occurred since entry of the [2019] Order. The best interests of the minor child will be served by modifying the [2019] Order and implementing the provisions contained in the [2021] Order below, and the parties are fit and proper to have custody as assigned below.
To support this conclusion, the trial court made several findings indicating a connection between the change in circumstances and the welfare of the minor child.
In Finding of Fact 21, the trial court stated:
21. Since entry of the [2019] Order, a substantial change in circumstances affecting the well-being of the minor child has occurred which warrants modification of the [2019] Order, specifically: Defendant's actions in confronting Plaintiff in person with the minor child present and blocking her and the minor child from leaving the parking lot had a negative impact on the minor child.
While Defendant contends that this finding merely states there is a connection between the change in circumstances and the welfare of the minor child, we explained above in Section II.A.1.a. how our decisions in both Laprade and Trivette support a finding of substantial change in circumstances where there has been an escalation in combativeness or when a parent inappropriately communicates with the other in the presence of the child. Additionally, the trial court made other findings supporting a connection between Defendant's behavior and the welfare of the minor child. In
Findings of Fact 22 and 23, the trial court stated:
22. Despite Defendant's love for the minor child, his actions at Lifetime were hostile, unnecessary, intimidating, and served no legitimate purpose other than to harass and disparage Plaintiff, along with interfering and hampering the love and respect the minor child has for Plaintiff.
23. Defendant's display of anger, along with his testimony of what unfolded, at Lifetime creates legitimate doubts on his willingness and ability to foster an environment which enforces healthy relational boundaries and respect for the other parent[.]
These findings together with Finding of Fact 21 establish a connection between the change in circumstances and the welfare of the minor child and therefore support the trial court's Conclusion of Law 3.
c. Modification of the 2019 Order was not only in the minor child's best interests but also in direct response to, or in remedy of, any substantial changes that affected his welfare.
¶ 22 Defendant argues the trial court erred by failing to show the modification of the 2019 Order was in the minor child's best interests and in direct response to, or remedy of, a substantial change that affected his welfare.
¶ 23 As demonstrated in the trial court's findings referenced above, the modification was clearly in the best interests of the minor child, as Defendant's actions were hostile, intimidating, unnecessary, and served no purpose but to hamper the minor child's love and respect for Plaintiff and created serious doubt as to his ability to foster respect for Plaintiff.
¶ 24 We therefore hold the findings clearly indicate why the modification would be in the minor child's best interests and show a connection between the substantial change and the minor child's welfare.
2. No error in Findings of Fact 12, 15, 18(b), 21-25, 28-29
¶ 25 Defendant next argues Findings of Fact 12, 15, 18(b), 21-26, and 28-29 were not supported by competent evidence. We address Defendant's contentions regarding these findings in relevant order, with the exception of Finding of Fact 26 which is addressed in Section II.B. below.
¶ 26 "The modification of a custody decree must be supported by findings of fact based on competent evidence that there has been a substantial change of circumstances affecting the welfare of the child[.]" Pulliam v. Smith, 348 N.C. 616, 618-19, 501 S.E.2d 898, 899 (1998) (internal marks and citations omitted). These findings have "the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them[.]" Williams v. Pilot Life Ins. Co., 288 N.C. 338, 342, 218 S.E.2d 368, 371 (1975) (citations omitted). This is true, even though the evidence presented could also sustain findings to the contrary. Id.
¶ 27 However, where a modified custody order is so devoid of detailed findings that this Court is unable to determine that the order is in the best interests of the child, the order is fatally defective. Dixon v. Dixon, 67 N.C.App. 73, 76-77, 312 S.E.2d 669, 672 (1984). Further, custody orders are often vacated when they have findings consisting only of conclusory statements that "the party being awarded custody is a fit and proper person to have custody and that it will be in the best interest of the child to award custody to that person." Id. at 77, 312 S.E.2d at 672.
¶ 28 In custody cases, our trial courts are vested with broad discretion because not only has the trial court had the opportunity to see and hear the parties and witnesses in person, but it "can detect tenors, tones, and flavors that are lost in the bare printed record read months later by appellate judges." Pulliam, 348 N.C. 616, 625, 501 S.E.2d 898, 903 (internal marks and citations omitted). Therefore, a trial court's decision should only be upset on appeal upon a clear showing of abuse of discretion. Id., 501 S.E.2d at 902 (internal marks and citations omitted).
¶ 29 Defendant challenges the trial court's Findings of Fact 21-23, recited above in Section II.A.1.b., contending that there is insufficient evidence to show the Lifetime Fitness incident's negative effect on the minor child and a lack of evidence showing how Defendant's actions hampered the love and respect the minor child has for Plaintiff, or Defendant's ability to foster an environment which enforces healthy relational boundaries and respect for the other parent.
¶ 30 As stated above, this Court has previously held that conduct undertaken to belittle another parent in the mind of a minor child has a negative impact on the welfare of the child. Woncick, 82 N.C.App. 244, 346 S.E.2d 277. Further, there was evidence presented, through testimony from Plaintiff, sufficient to support a finding that Defendant was screaming expletives at Plaintiff in the presence of the minor child and that the minor child asked if Defendant was going to hurt them. Not only does this demonstrate how the incident negatively affected the minor child but also how Defendant's actions were intended to belittle Plaintiff in the presence of the minor child and Defendant's inability to foster an environment which enforced healthy boundaries and respect for Plaintiff.
¶ 31 Defendant also challenges Findings of Fact 28 and 29. These findings state:
28. It is in the best interests of the minor child for Plaintiff to have sole legal custody of the minor child due to the lengthy history of inability to co-parent between the parties.
29. It is in the best interests of the minor child for the physical custody arrangements as noted in the decretal section to be ordered.
¶ 32 Defendant contends the record is void of evidence that would support a finding that it is in the best interests of the minor child for Plaintiff to have sole legal custody noting the continued use of a parenting coordinator would be more beneficial seeing as Plaintiff has previously excluded Defendant from major life events, specifically referencing decisions regarding the minor child's baptism. Further, Defendant believes the decretal section, paragraph 6, contradicts the findings here and there is no evidence that reducing the minor child's time with Defendant would be in his best interest.
¶ 33 Paragraph 6 of the decretal section only states, in relevant part, "the parties shall utilize a parenting coordinator to monitor and supervise communication and coordinate matter when cooperation is essential." This paragraph in no way contradicts the trial court's findings as the evidence in the record demonstrates Defendant's continued inability to communicate reasonably with Plaintiff despite there having been a parenting coordinator previously appointed per the 2019 Order. Further, it is within the trial court's discretion to modify custody, and because there is evidence present in the record to support a change in the custody schedule and arrangement in general, the trial court did not abuse its discretion in doing so.
¶ 34 Finally, Defendant contends there is insufficient evidence to support Findings of Fact 12, 15, 18(b), 24, and 25.
¶ 35 In Finding of Fact 12, the trial court found:
12. As Plaintiff approached her car with the minor child to leave Lifetime, Defendant exited his car and approached Plaintiff and minor child while his car was parked directly perpendicular behind Plaintiff's car, which was parked in a parking space. Defendant called her several derogatory names in front of the minor child, along with screaming and yelling.
Defendant argues that because the only evidence presented was a surveillance video without sound, there was not substantial evidence to support a finding that Defendant called Plaintiff derogatory names in the presence of the minor child while screaming and yelling.
¶ 36 However, despite the surveillance footage being void of sound, the trial court heard testimony from both Plaintiff and Defendant. Plaintiff testified stating:
[Defendant] started screaming. And then he started calling me names. And things that a seven-a six year-old should not be hearing about his mother, like calling me- calling me . . . that every single name that you can think of, that I was 'going to pay for this.'
Plaintiff also testified the minor child was "not only screaming but crying and then asking me if 'my dad is going to hurt us.'" Defendant denied Plaintiff's allegations in his testimony.
¶ 37 While it is clear the trial court was presented with two different versions of the Lifetime Fitness incident, the trial court is vested with broad discretion in custody cases, and as long as there is evidence in the record to support the findings, despite there being evidence to the contrary, they are conclusive on appeal.
¶ 38 In Finding of Fact 15 the trial court stated:
15. Furthermore, Defendant denied intentionally parking behind Plaintiff so as to block her from leaving. Defendant claimed he returned to his vehicle and only left after being unsuccessful at reaching his attorney. Defendant admitted on cross-examination he was not going to move his vehicle until he received a satisfactory answer (relating to the dispute at Lifetime) from his attorney or
the [p]arenting [c]oordinator.
Defendant argues he did not state, upon cross-examination, that he was not going to move his vehicle until he received an answer from his attorney or the parenting coordinator. However, on cross, Defendant testified:
THE COURT: You were asked-you stayed in your car for three additional minutes. You said, "Yes." Go ahead as to why you were doing that.
THE WITNESS: As I've said, to try to reach counsel.
Q. Why do you have to block [Plaintiff] and your child in to-can't you call from a parking spot and let them leave?
A. I felt I was in my right to-that it was my custodial time to pick up [the minor child], and as I said-as you well know, there is a history of this . . . I wanted to speak to counsel or to [the parenting coordinator] to see if they could speak to [Plaintiff] and remedy this.(Emphasis added). This testimony serves as evidence that Defendant intended to keep Plaintiff and the minor child from leaving the parking lot at Lifetime Fitness while he called his attorney and parenting coordinator-hoping to have the situation remedied.
¶ 39 In Finding of Fact 18(b), the trial court found:
18. Defendant's version of the events at Lifetime are not credible. In particular: ...
b. a third-party voluntarily got involved in this situation and first conferred with Plaintiff before engaging Defendant. It is highly unlikely, under these circumstances, for a third-party to have inserted themselves in this incident if, indeed, it was as peaceful as Defendant claims. More likely than not, this interaction between the parties was anything but quiet and this third-party entered this scene due to openly hearing Defendant's expressions and seeing Plaintiff's distress[.]
Defendant agues there was no evidence to support the finding because there was no testimony or evidence that indicated who the third-party was, the voluntary or involuntary nature of his choice to be involved, or why he chose to become involved.
However, at trial Plaintiff testified:
[S]omeone-I think it was a member-approached and knocked on my window, and then he asked me if I was okay. And I said, 'I can't move. I can't get out of the car. I can't get out of the car.'
Moreover, in support of Plaintiff's allegations, the Lifetime Fitness surveillance footage depicts, at 4:18:45.332 p.m., a third-party approaching Plaintiff and Defendant's cars, and presumably speaking with Plaintiff, if not both Plaintiff and Defendant, through the car windows.
¶ 40 Although Defendant testified he did not remember a third-party that day, the video surveillance footage provided evidence to the contrary.
¶ 41 In Finding of Fact 24, the trial court stated:
24. The Court finds it would be in the minor child's best
interests for Plaintiff to have primary physical custody, with Defendant having visitation every other weekend from Friday release of school to Monday morning drop-off at school, along with Wednesday overnight visitation on the weeks which do not include his weekend.
Defendant argues there was no evidence to suggest this custody schedule would be in the best interests of the child. As noted previously, there is no evidence indicating the trial court abused its discretion in modifying the order to reflect a custody schedule as represented above. Further, there is evidence in the record-the Lifetime Fitness incident-to support the trial court's decision to modify the custody arrangement to try and better suit the best interests of the minor child.
¶ 42 Finally, in Finding of Fact 25, the trial court found:
25. Defendant clearly violated specific provisions of the [2019] Order in that he was:
a. not to assault, threaten or harass the other party;
b. not make derogatory comments about the other party in the presence of the minor child; and
c. exchanges should occur through school or summer camp, when in session.
Defendant's actions were willful and he had the ability to comply with the provisions. Further, Defendant's behaviors were intentional and without justification.
Defendant argues there is no evidence to support a finding that he willfully violated the provisions of the 2019 Order. However, as is reflected above, there is evidence of Defendant's behavior through the Lifetime Fitness incident which shows he clearly violated the 2019 Order.
¶ 43 Because the trial court is vested with broad discretion and there exists no evidence that the trial court abused its discretion here, and because each of these findings is supported by competent evidence, the trial court did not err in Findings of Fact 12, 15, 18(b), 21-25, or 28-29.
3. No error or abuse of discretion in modifying the physical custody schedule by reducing father's time with the minor child to every other weekend
¶ 44 Defendant contends the trial court abused its discretion by reducing Defendant's time with the minor child instead of addressing the problems existing between Plaintiff and Defendant surrounding exchanges of the minor child. Further, Defendant argues that because there are no findings stating it would be in the minor child's best interests to lessen time spent with Defendant and increase time with Plaintiff, that the minor child was not doing his schoolwork or was otherwise doing poorly with Defendant, or that the minor child's needs were not met at Defendant's household, the trial court seemingly ordered a custodial schedule designed to punish Defendant instead of addressing the root problem.
¶ 45 Again, we note that our trial courts are vested with broad discretion and absent an abuse of such discretion, their decisions will not be upset on appeal. Pulliam, 348 N.C. at 625, 501 S.E.2d at 902.
¶ 46 In the 2019 Order, the trial court granted Plaintiff and Defendant shared physical custody of the minor child creating a 2-2-5 schedule. The 2021 Order altered custody granting Plaintiff primary physical custody, with Defendant having visitation every other weekend from Friday release of school to Monday morning drop-off at school, along with Wednesday overnight visitation on the weeks which do not include his weekend.
¶ 47 Despite Defendant's position that the trial court created this new schedule in an attempt to punish Defendant, the court's findings of fact clearly indicate the need for the change in custody. Defendant escalated issues in the already contentious relationship between he and Plaintiff when he confronted Plaintiff at Lifetime Fitness in front of the minor child while screaming expletives. Further, in its 2021 Order, the trial court was not required to make specific findings like those asserted by Defendant but did make sufficient findings to support the change in custody.
¶ 48 Because the trial court made findings to support the change in custody and because it was within the trial court's discretion to do so, the trial court did not err in modifying the 2019 Order.
B. Error in holding Defendant in civil contempt and issuing a censure in a civil contempt matter
¶ 49 Defendant contends the trial court erred in holding him in civil contempt as it did not include a purge condition in its civil contempt order and by ordering a censure in a civil contempt matter. We agree.
¶ 50 In North Carolina,
(a) Failure to comply with an order of a court is a continuing civil contempt as long as:
(1) The order remains in force;
(2) The purpose of the order may still be served by compliance with the order;
(2a) The noncompliance by the person to whom the order is directed is willful; and
(3) The person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable the person to comply with the order.N.C. Gen. Stat. § 5A-21(a)(1)-(3) (2021). There are important distinctions between civil and criminal contempt. Criminal contempt is generally used as punishment for an act already accomplished which tends to interfere in the administration of justice, while civil contempt is "to preserve the rights of private parties and to compel obedience to orders and decrees made for the benefit of such parties." Hardy v. Hardy, 270 N.C.App. 687, 690, 842 S.E.2d 148, 151 (2020) (citations omitted). Further, the general purpose of criminal contempt is to "preserve the court's authority and to punish disobedience of its orders[.]" Id. (citations omitted). On the other hand, the purpose of civil contempt is to "provide a remedy for an injured suitor and to coerce compliance with an order[.]" Id. (citations omitted).
¶ 51 Notably, an "order of the court holding a person in civil contempt must specify how the person may purge himself of the contempt" because, as stated, the purpose of civil contempt is not to punish but to coerce the defendant to comply with the order. N.C. Gen. Stat. § 5A-22(a) (2021). "The court's conditions under which [a] defendant can purge [himself] of contempt cannot be vague such that it is impossible for [a] defendant to purge [himself] of contempt[.]" Watson v. Watson, 187 N.C.App. 55, 65, 652 S.E.2d 310, 317 (2007) (citations omitted), disc. review denied, 362 N.C. 373, 662 S.E.2d 551 (2008). Moreover, in Bethea v. McDonald, we held that an order which holds the defendant in civil contempt for failing to comply with the terms of visitation in a custody order must be vacated where the order lacks a provision specifying how the defendant may purge themself of contempt as required by statute. Bethea, 70 N.C.App. 566, 570, 320 S.E.2d 690, 693 (1984).
¶ 52 Here, in the 2021 Order, the trial court ordered:
22. Defendant is in Civil Contempt of the November 19, 2019 Order. He is hereby censured and ordered to follow any and all Court Orders relating to the minor child.
This provision of the decretal is clearly void of any purge condition or language stating how Defendant may purge himself of this civil contempt. For that reason alone, the order for contempt must be vacated. However, it is also important to note that the order here censured Defendant, which is a punishment available only to those held in criminal contempt not civil contempt. See N.C. Gen. Stat. § 5A-12(a) (2021). Not only did the trial court err in censuring Defendant in a civil contempt order, but because the 2021 Order holding Defendant in contempt is void of any purge conditions, the contempt order must be vacated.
¶ 53 Finally, we address Defendant's contention from Section II.A.2. above as to Finding of Fact 26 which states:
26. Defendant is found in Civil Contempt and is hereby held in Civil Contempt; however, a censure is appropriate. In this finding of Civil Contempt, Defendant is strongly exhorted and reminded to follow any and all court orders relating to the minor child.
¶ 54 Because the 2021 Order contained no purge clause, and because censure is not available in civil contempt, Finding of Fact 26 is erroneous and must be vacated.
III. Conclusion
¶ 55 We therefore hold the trial court did not err in in its findings, with the exception of Finding of Fact 26, because the findings were supported by competent evidence. However, we find the trial court erred in Finding of Fact 26 and in holding Defendant in civil contempt and issuing a censure in a civil contempt matter.
AFFIRMED IN PART AND VACATED IN PART.
Judges WOOD and GRIFFIN concur.
Report per Rule 30(e).