Wilson v. Guinyard

254 N.C.App. 229

801 S.E.2d 700

Marilyn Latriece WILSON, Plaintiff,

v.Mark Anthony GUINYARD, Defendant.

No. COA16-1277

Court of Appeals of North Carolina.

Filed: June 20, 2017

Edward J. Falcone, Durham, for plaintiff-appellee.

The Blain Law Firm, PC, by Sabrina Blain, for defendant-appellant.

TYSON, Judge.

I. Factual Background

Defendant and Marilyn Latriece Wilson ("Plaintiff") share joint legal custody of their son, who was thirteen at the time the contempt order was entered. Plaintiff has primary physical custody and lives in Durham, North Carolina. Defendant has secondary physical custody in the form of visitation and lives in Charleston, South Carolina. Defendant's visitation includes two weekends a month to be exercised at Defendant's discretion, so long as he gives proper notice.

In relevant part, the 2011 child custody order provides:

j) The parties may mutually agree to change these visitation times to accommodate their schedules and for the benefit of the minor child but the change must be mutual. (emphasis original)

11. The Plaintiff and the Defendant shall meet at South of the Border Amusement Park ... to facilitate visitation between the minor child and the Defendant. And if at any time except for good cause shown (such as serious illness of child etc) that exchange does not occur, round trip gas expenses and hotel expenses in the amount of 279.00 are due by the end of the following week in addition to being subject to contempt of court.

16. Failure to abide by the terms of this order is grounds for contempt[.]

This order was modified in part by a consent order entered in March 2014. The consent order provided:

The exchange for visitation with the minor child will take place at 10:00 o'clock P.M. on Friday night and 7:00 o'clock P.M. on Sunday night.

2. If for any reason there is a delay in the exchanged meeting time due to unforeseen circumstances, which arise before the parties have to leave for the custody exchange, the party delayed will text the other party at least two (2) hours in advance as to the circumstances causing their inability to meet at the designated time as well as to let the other party know when they would be available to make the exchange;

3. If any delays arise while the parties are on the road traveling to the exchange point, the party delayed will text the other party immediately with the same information referenced in the previous paragraph[.]

4. All other terms of the previous Order of the Court will remain in full force and effect.

Plaintiff filed a motion for contempt on 12 February 2016. The motion alleged Defendant had been "habitually late," and detailed a specific instance where their son missed a day of school after an exchange was missed on the Sunday of the Super Bowl. The hearing on the motion was scheduled for 11 July 2016.

After receiving notice of the contempt motion, Defendant requested his current attorney to withdraw from representation and signed his consent to a motion for his counsel to withdraw on 20 May 2016. On 7 July 2016, Defendant filed a motion to continue the hearing, asserting as grounds that he needed to hire an attorney to represent him. This motion was denied. The motion to withdraw consented to by Defendant was brought before the court and granted on 11 July 2016, prior to the contempt hearing.

At the hearing, Plaintiff testified she often had to text Defendant to determine whether he was on schedule. She testified since she was "generally waiting on him," she would usually wait to leave her home in Durham until she had confirmed Defendant was leaving Charleston. Plaintiff presented evidence tending to show Defendant had arrived late to over forty exchanges between May 2014 and February 2016. Defendant arrived over two hours late on several of these occasions.

Plaintiff testified Defendant made the following excuses for arriving late: (1) he was simply "running behind;" (2) a fast food restaurant messed up his order; (3) the kids needed to stop and use the bathroom; (4) he was waiting on a driver; or, (5) he was running late from work.

Defendant testified he was late to the various exchanges, "[b]ecause things happen, life happens" and because their son wanted to continue playing. He testified he was in constant communication with Plaintiff regarding the exchange times.

Regarding the missed exchange on the Sunday evening of the Super Bowl, Defendant asserted Plaintiff texted him and their son throughout the Super Bowl, and that both of them asked Plaintiff if they could wait to leave until after the game was over. After the game ended, Defendant testified he texted Plaintiff around 10 p.m. to ask whether she was ready to meet him, and asserted he and their son were in the truck ready to leave. Defendant testified they did not meet that night because Plaintiff said she was already in bed.

Plaintiff testified she and Defendant agreed prior to the Super Bowl party that Defendant would leave at 8:30 p.m. to meet Plaintiff at the exchange location. On cross-examination, Plaintiff's counsel presented text messages to refresh Defendant's recollection of the times and content of Plaintiff's text messages to him. These texts demonstrated Plaintiff had texted Defendant several times throughout the evening, including at 8:30 p.m. to see if Defendant had left as agreed upon. Between 11:00 p.m. and 11:20 p.m., Plaintiff again asked Defendant if he had left to meet her at the exchange location. When she did not receive a response and had to work the following morning, she sent the message "I'm going to bed."

Because the exchange did not occur Sunday night, their son missed attending school the next day. When Plaintiff requested a 7:00 p.m. exchange time Monday evening, Defendant responded he would meet her after he got off work. Plaintiff and her son did not arrive home in Durham until 1:15 a.m. Tuesday morning, where she had to work the following morning and their son had to attend school. Based upon the evidence presented, the trial court found Defendant in civil contempt of the child custody order. Defendant appeals.

II. Jurisdiction

Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 5A-24 (2015).

III. Issues

Defendant argues the trial court erred by: (1) failing to inquire into his desire for and ability to pay for legal representation, (2) finding him in civil contempt, (3) improperly modifying the custody order and imposing improper purge conditions, and (4) abusing its discretion in awarding Plaintiff attorney's fees.

IV. Legal Representation

Defendant argues the trial court erred when it failed to inquire into his desire for and ability to pay for legal representation.

A. Standard of Review

"Under the requirements of due process, a defendant should be advised of his or her right to have appointed counsel where the defendant cannot afford counsel on his own, and ‘where the litigant may lose his physical liberty if he loses the litigation.’ " King v. King, 144 N.C. App. 391, 393, 547 S.E.2d 846, 847 (2001) (quoting Lassiter v. Dept. of Social Services of Durham Cty., N.C., 452 U.S. 18, 25, 101 S.Ct. 2153, 68 L.Ed.2d 640, 648 (1981) ). The burden of proof is on the litigant facing contempt to show "(1) he is indigent, and (2) his liberty interest is at stake." Id.

B. Analysis

This Court has held, "[i]n civil contempt proceedings, the question whether an indigent, alleged contemnor is entitled to counsel under the Due Process Clause of the Fourteenth Amendment to the United States Constitution is a determination made on a case-by-case basis." Tyll v. Berry , 234 N.C. App. 96, 101, 758 S.E.2d 411, 415 (2014) ; see Hodges v. Hodges , 64 N.C. App. 550, 552, 307 S.E.2d 575, 577 (1983) ("When a civil proceeding may result in imprisonment, due process requirements are met by evaluating the necessity for appointed counsel on a case-by-case basis."). "[A]ppointment of counsel for indigents is required only where assistance of counsel is necessary for an adequate presentation of the merits, or to otherwise insure fundamental fairness." Hodges , 64 N.C. App. at 552, 307 S.E.2d at 577 (citation and internal quotation marks omitted).

Defendant cites a recent case from this Court to support the contention that "[w]here 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." D'Alessandro v. D'Alessandro , 235 N.C. App. 458, 462, 762 S.E.2d 329, 332 (2014) (emphasis supplied) (citing King v. King , 144 N.C. App. 391, 394-95, 547 S.E.2d 846, 848 (2001) ); see also McBride v. McBride , 334 N.C. 124, 131, 431 S.E.2d 14, 19 (1993) (holding the "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").

However, these cases relate specifically to civil contempt proceedings for nonsupport. Our Courts have held in cases for nonsupport:

[w]hen a truly indigent defendant is jailed pursuant to a civil contempt order which calls upon him to do that which he cannot do—to pay child support arrearage which he is unable to pay—the deprivation of his physical liberty is no less than that of a criminal defendant who is incarcerated upon conviction of a criminal offense.

McBride , 334 N.C. at 130-31, 431 S.E.2d at 19.

Here, Defendant was held in civil contempt for his failure to comply with provisions of the custody order regarding the exchange time for weekend visitations. Defendant has the ability to comply with the purge conditions as imposed and the instant case presents no "unusually complex issues of law or fact which would necessitate the appointment of counsel." Hodges , 64 N.C. App. at 553, 307 S.E.2d at 577.

Defendant received notice of the hearing several months prior to the scheduled date, at which time he was represented by retained counsel. On 20 May 2016, Defendant consented to...