D'Alessandro v. D'Alessandro

762 S.E.2d 329

Christina D'ALESSANDRO, Plaintiff,

v.Adam D'ALESSANDRO, Defendant.

Nos. COA–14–58, COA14–68.

Court of Appeals of North Carolina.

Aug. 5, 2014.

Appeal by defendant from Orders entered 2 July 2013 and 12 July 2013 by Judge Lori G. Christian in District Court, Wake County. Heard in the Court of Appeals 21 May 2014.

Lane & Lane, PLLC, Fayetteville, by Freddie Lane, Jr. and Melissa C. Rush–Lane, for defendant-appellant.

No appellee brief filed.

STROUD, Judge.

Defendant appeals from two orders, one addressing motions by both parties for contempt as to a child custody order and defendant's motion to modify custody, and the other holding defendant in civil contempt for failure to pay child support as ordered. For the reasons stated below, we reverse the orders holding defendant in civil contempt due to the trial court's failure to inquire as to defendant's desire for counsel and his ability to pay for legal representation. We remand the order as to modification of custody for additional findings of fact.

I. Background

The parties were married on 27 May 2000 and two children were born to their marriage—Madeline ¹, born in 2002, and Cathy, born in 2004. Plaintiff also has a son, Andy, born in 1997 from a prior relationship, who was not adopted by defendant. On 28 January 2011, plaintiff filed a lawsuit in Wake County District Court, File No. 11 CVD 1280, seeking temporary and permanent custody as well as an emergency custody order of the two children of the marriage. On 14 February 2011, defendant filed his answer and counterclaims to the custody complaint, seeking custody of the two children of the marriage and also including a counterclaim for custody of Andy. On 13 May 2011, the trial court entered an order for temporary custody, granting the parties joint legal custody of the two children of the marriage, with primary physical custody to plaintiff, and granting sole legal custody of Andy to plaintiff.

On 27 June 2011, Wake County Child Support Enforcement filed a complaint in Wake County District Court, File No. 11 CVD 9780, for child support on behalf of Christina D'Alessandro, seeking to establish child support for the two children of the marriage. A child support order (“child support order”) was entered on 2 December 2011. This order found that defendant had voluntarily left his employment with Advanced Irrigation Repair, where he was earning $2600.00 per month, and that he had 20 years of experience in landscape irrigation. The trial court further found that defendant had not provided any support to plaintiff since July 2011. The child support order set defendant's child support obligation in the amount of $607.00 per month, effective 1 July 2011, and established child support arrears owed by defendant of $3035.00, to be paid at the rate of $13.00 per month.

During 2011, the parties, mostly defendant, filed numerous motions regarding custody disputes—defendant filed at least eleven—but we will not address the details of these motions and resulting orders as they are not relevant to the issues in this appeal. Ultimately, on 26 April 2012, the trial court entered an order for permanent custody in Wake County File No. 11 CVD 1280 which granted sole legal and physical custody of all three children to plaintiff. However, the trial court also found that defendant was a “de facto” parent of Andy and that plaintiff had acted in a manner inconsistent with her constitutionally protected rights as a parent in creating a family unit with defendant and allowing defendant to share decision-making responsibilities as a parent of Andy, and granted defendant visitation with Andy.

The trial court made extensive findings as to defendant's animosity toward plaintiff, his controlling behaviors, his anger and inability to communicate with plaintiff, his disparaging comments about plaintiff to the children, his inappropriate discussions with the children about the plaintiff and the difficulties that the extensive conflict between the parents was causing the children. This order set out a detailed visitation schedule, required the parties to communicate through Our Family Wizard for the next 18 months, to have Andy and Cathy engage in therapy, and to participate in the children's therapy as recommended by the therapist.

Some other relevant requirements of the custody order were for defendant to pay half of “uninsured medical and counseling expenses for the minor children;” to register for an anger management class within 30 days; to pay plaintiff's attorney fees in the amount of $5,000.00, to be paid at a rate of $100.00 per month starting on 1 May 2012; and not to remove the children from school without written consent from plaintiff except for regular visitation.

On 27 August 2012, the trial court entered an order granting plaintiff's motion to intervene as plaintiff in the child support action and removing the matter from the “IV–D docket and transfer[ing] to the courtroom of the assigned family court District Court Judge for all further hearings.” This order also released the attorneys for Wake County Human Services Child Support Enforcement as attorneys of record.

During 2012, both before and after entry of the child support order and custody order noted above, the parties filed various motions and several orders were entered, most of which are not relevant for the purposes of this appeal. Overall, these motions and orders demonstrate that the parties continued to have many disputes regarding visitation, and defendant persistently continued to fail to pay child support as ordered. Of these numerous motions, we will discuss only the motions which were addressed in the trial court's orders now on appeal and which are relevant to the issues raised on appeal ²:

1. On 7 May 2012, plaintiff filed a motion for order to show cause in File No. 11 CVD 1280 as to defendant's failure to pay $100 per month towards her attorney fees and to abide by the child custody order in various ways.

2. On or about 2 November 2012 ³, defendant served upon plaintiff a motion pro se in file No. 11 CVD 1280 to modify child custody and visitation and child support, based on allegations regarding plaintiff's remarriage, claims of her emotional and physical neglect of the children, and that plaintiff had “commited (sic) fraud to obtain the current order.”

3. On 10 May 2013, plaintiff filed a motion for an order to show cause in File No. 11 CVD 9780 as to defendant's failure to pay child support in violation of the child support order, alleging that he had paid only $26.00 since the 20 February 2013 hearing.

All of these motions, filed in both court files, were heard by the trial court on 20 February 2013. Plaintiff was represented by counsel, and defendant appeared pro se. The trial court entered two orders as a result of this hearing:

1. On 2 July 2013, in file No. 11 CVD 1280, the trial court entered an order on civil contempt and on defendant's motion to modify custody which allowed defendant's motion to modify custody but ordered only that defendant would no longer have the same visitation with Andy as the other two children and that Andy would be permitted to initiate visitation in the future; held defendant in civil contempt as to his failure to comply with the custody order; and held that defendant would be required to pay plaintiff's attorney's fees as set forth in the order in File No. 11 CVD 9780.

2. On 12 July 2013, in File No. 11 CVD 9780, the trial court held defendant in civil contempt for failure to pay child support in the amount of $10,933.00; awarded plaintiff $10,000.00 in attorney fees, to be paid at a rate of $1000.00 per month; and remanded defendant into custody of the Sheriff of Wake County, to remain until paying $10,000.00 to purge himself of contempt, which sum would be first applied to child support arrearages and then to attorney's fees.

Defendant timely filed notice of appeal from both orders. Both appeals were heard by this panel on the same hearing date. Although the trial court did not formally consolidate the two actions, both were heard together and as a practical matter, were treated as consolidated. We have therefore consolidated these cases for purposes of the appeals and issue one opinion addressing both.

II. Contempt

Defendant raises the issue of the trial court's failure to inquire as to his desire for appointed counsel when it considered plaintiff's motions for contempt. In one order, defendant was held in civil contempt for his failure to comply with various provisions of the custody order, including his failure to pay for uninsured counseling expenses and to pay the attorney's fees at the rate of $100.00 per month, and in the other, he was held in civil contempt for failure to pay child support as required by the child support order. The trial court, in both cases,⁴ “immediately remanded [defendant] into the custody of the Wake County Sheriff's Department,” to “remain in custody until such time as he has purged his contempt by paying $10,000.00.”

Where a defendant faces the potential of incarceration if held in contempt, the trial court must inquire into the defendant's desire for and ability to pay for counsel to represent him as to the contempt issues. King v. King, 144 N.C.App. 391, 394–95, 547 S.E.2d 846, 848 (2001). A defendant may waive his right to representation but the record must reflect that he was advised of this right and he must voluntarily waive it. See id. This requirement has been long established by both the United States Supreme Court and the North Carolina Supreme Court:

In light of the Supreme Court's opinion in Lassiter [v. Department of Social Services of Durham County, N.C., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) ], we now hold that principles of due process embodied in the Fourteenth Amendment require that, absent the appointment of counsel, indigent civil contemnors may not be incarcerated for failure to pay child support arrearages....

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