An unpublished opinion of the North Carolina Court of Appeals does not constitute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.



                                NO. COA13-1148
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


R. SCOTT BEST,
     Plaintiff,

       v.                                     Wake County
                                              No. 10 CVD 1893
AMBER L. GALLUP,
     Defendant.


       Appeal by defendant from order entered 26 November 2012 by

Judge Lori Christian in Wake County District Court.                      Heard in

the Court of Appeals 19 February 2014.


       No brief, for plaintiff-appellee.

       Appellate Defender Staples Hughes, by Assistant Appellate
       Defender Joyce L. Terres, for defendant-appellant.


       HUNTER, Robert C., Judge.


       Amber   L.   Gallup    (“defendant”)      appeals    from    an   order    of

contempt entered in a child custody dispute between herself and

R. Scott Best (“plaintiff”).1            On appeal, defendant argues that

the trial court erred by: (1) concluding that defendant was

being held in both civil and criminal contempt; (2) holding


1
    Plaintiff did not file an appellee brief.
                                         -2-
defendant in contempt without competent evidence to support the

trial court’s findings of fact and without findings of fact to

support     the   conclusions      of     law;        and        (3)     ordering   purge

conditions that are contrary to law and impermissibly vague.

    After careful review, we affirm the trial court’s order in

part but reverse the award of attorneys’ fees.

                                   Background

    Defendant      and    plaintiff       were        formerly           involved   in   a

romantic relationship and provided parental care to defendant’s

niece,     “Valerie.”2      Plaintiff          had        no     biological    or   legal

relationship with Valerie.          In 2008, defendant legally adopted

Valerie,    and   the    parties   planned           to    marry       upon   plaintiff’s

return from a contract position in Iraq.                       While plaintiff was in

Iraq,     defendant     informed    him        that        she     was     ending   their

relationship.      However, from December 2008 to September 2009,

the parties continued to function as a family unit in some ways.

It was not until plaintiff’s return in September 2009 from his

second     contract     position    in     Iraq           that     defendant    informed

plaintiff that she no longer wanted Valerie to call him “Daddy”

and that defendant intended no further familial relationship to

exist between Valerie and plaintiff.

2
  Valerie is a pseudonym used to protect the identity of the
minor.
                                               -3-
       Since    September        2009,        plaintiff    and     defendant        have   been

engaged in contentious litigation regarding which party was to

have    custody       over      Valerie.         Throughout       the       process   of     the

litigation, the trial court has entered the following orders:

(1)     an    order     dismissing            plaintiff’s       motion       for    temporary

custody, which was reversed by this Court in Best v. Gallup, 215

N.C. App. 483, 715 S.E.2d 597 (2011), disc. rev. denied, 365

N.C. 559, 724 S.E.2d 505 (2012), and remanded for a custodial

schedule,       as    this      Court    ruled       it   was    in   the     child’s      best

interest to have visitation with plaintiff; (2) an order entered

19 September 2011 requiring defendant to surrender her passport

to plaintiff’s attorney and enjoining the parties from removing

Valerie from the jurisdiction of North Carolina; (3) a temporary

order entered 7 October 2011 requiring plaintiff to purchase

health insurance for Valerie and schedule therapist appointments

for    her;    (4)    an     order      for    temporary        custody      and   visitation

entered 9 November 2011 setting out a visitation schedule for

plaintiff with Valerie and requiring defendant to cooperate with

plaintiff’s attempts at seeking therapy for Valerie; (5) an ex

parte    order       for     emergency        custody     entered       9    December      2011

placing       Valerie      in   temporary        physical       and   legal        custody    of

plaintiff due to defendant’s attempts to illegally purchase a
                                       -4-
passport and transport Valerie out of the jurisdiction of the

state; (6) a full order for emergency custody entered 1 February

2012 nunc pro tunc 14 December 2011, placing physical and legal

custody   of    Valerie    with       plaintiff      and    granting    defendant

visitation     rights;    and   (7)    an    order    for    temporary    custody

entered 17 April 2012 nunc pro tunc 14 February 2012 (“the 17

April   order”)   granting      defendant     temporary       primary    physical

custody and plaintiff temporary secondary physical visitation

over Valerie, with plaintiff retaining the right to make all

decisions regarding the child’s therapist.                  The 17 April order

further ordered that “[d]efendant shall ensure that the minor

child attends every therapy session”; “defendant shall not allow

the minor child to be present where people are saying derogatory

things about plaintiff”; “defendant shall to [sic] control the

environment     and   people    surrounding          the    minor   child”;   and

“plaintiff and defendant shall foster a feeling of affection

between the minor child and the other party, and neither party

shall do or say anything the reasonable effect of which would be

to estrange the minor child from the other party or to impair

the child’s high regard for the other party[.]”

    On 8 June 2012, plaintiff filed a motion for order to show

cause and motion for attorneys’ fees.                  Plaintiff argued that
                                        -5-
defendant willfully violated provisions of the 17 April order

by:   (1)   interfering     with     phone      calls     between     plaintiff     and

Valerie; (2) interfering with the relationship between plaintiff

and Valerie; (3) interfering with scheduled visitations; and (4)

failing to ensure that Valerie attended every therapy session.

After a hearing held 17 September 2012, the trial court entered

an order holding defendant in continuing civil contempt, setting

out   sixteen   conditions      that    must       be    completed     to   purge   the

contempt, and ordering defendant to pay plaintiff’s reasonable

attorneys’ fees incurred in relation to the contempt hearing.

Defendant filed timely notice of appeal from this order.

                                   Discussion

                   I. Conclusion as to Criminal Contempt

      Defendant’s       first   argument      on    appeal      is   that   the   trial

court   erred      by   concluding     that     she      was    in   both   civil   and

criminal contempt.        We hold that the trial court ordered civil,

not criminal, contempt, and we will not disturb the order on

this ground.

      In contempt proceedings, the trial court’s findings of fact

are conclusive on appeal if they are supported by competent

evidence,    and    its   conclusions      of      law    are    reviewed    de   novo.

Hartsell v. Hartsell, 99 N.C. App. 380, 385, 393 S.E.2d 570, 573
                                               -6-
(1990); Tucker v. Tucker, 197 N.C. App. 592, 594, 679 S.E.2d

141, 143 (2009).

       There    are     two   kinds       of    contempt       —   civil     and   criminal.

O’Briant v. O’Briant, 313 N.C. 432, 434, 329 S.E.2d 370, 372

(1985).        “A major factor in determining whether contempt is

civil    or     criminal      is    the    purpose       for       which    the    power   is

exercised.”       Id.

               Criminal contempt is generally applied where
               the judgment is in punishment of an act
               already accomplished, tending to interfere
               with the administration of justice.    Civil
               contempt is a term applied where the
               proceeding is had to preserve the rights of
               private parties and to compel obedience to
               orders and decrees made for the benefit of
               such parties.

Id. (citation and quotation marks omitted).                              Pursuant to N.C.

Gen.    Stat.    §     5A-21(c),      “[a]      person     who      is     found   in   civil

contempt under this Article shall not, for the same conduct, be

found in criminal contempt under Article 1 of this Chapter.”

       Defendant       argues      that    because     the     trial       court   concluded

that    she      was     “being       held       in    criminal          contempt”      while

simultaneously ordering that she be held in continuing civil

contempt, the trial court erred by holding defendant in both

civil and criminal contempt for the same conduct in violation of

section       5A-21(c).            This        Court     has       previously       rejected
                                                -7-
defendant’s argument in Hancock v. Hancock, 122 N.C. App. 518,

522,    471     S.E.2d      415,    418       (1996),       where    the       trial    court’s

contempt      order     stated      that        the    plaintiff         was    in     “willful,

criminal contempt,” but the character of relief indicated that

the plaintiff was actually being held in civil contempt.                                      This

Court held that “the character of the relief is dispositive of

the distinction between criminal and civil contempt, and where

the    relief    is    imprisonment,            but   the    contemnor         may     avoid    or

terminate     imprisonment         by     performing        an     act    required       by    the

court, then the contempt is civil in nature.”                              Id.       Thus, even

though    the     trial     court       specifically         concluded         that     it     was

holding the plaintiff in criminal contempt, this Court held that

the    contempt       was   civil,        and    not     criminal,        in     nature,       and

therefore did not disturb the order based on the trial court’s

mistaken conclusion.           Id.

       Here, like the contemnor in Hancock, defendant may avoid

her sentence of thirty days imprisonment by meeting the purge

conditions       included      in       the      trial      court’s       contempt       order.

Because    “the       character      of    the    relief      is    dispositive          of    the

distinction between criminal and civil contempt,” we hold that

the contempt order is actually civil in nature, and therefore

the trial court did not improperly hold defendant in criminal
                                     -8-
contempt,    despite      its   legal      conclusion     to    the   contrary.

Hancock, 122 N.C. App. at 522, 471 S.E.2d at 418.

             II. Findings of Fact and Conclusions of Law

      Defendant next argues that the trial court’s findings of

fact are not supported by competent evidence, and the findings

of fact do not support the trial court’s conclusion that all of

the statutory elements of civil contempt were met.               We disagree.

      “In contempt proceedings[,] the judge's findings of fact

are   conclusive   on     appeal    when    supported      by   any   competent

evidence and are reviewable only for the purpose of passing on

their sufficiency to warrant the judgment.”               Clark v. Clark, 294

N.C. 554, 571, 243 S.E.2d 129, 139 (1978).                “When a trial court

sits as the trier of fact, the court's findings and judgment

will not be disturbed on the theory that the evidence does not

support the findings of fact if there is any evidence to support

the   judgment,    even    though    there     may   be    evidence    to   the

contrary.”    Atlantic Veneer Corp. v. Robbins, 133 N.C. App. 594,

599, 516 S.E.2d 169, 173 (1999).           “The trial court's conclusions

of law drawn from the findings of fact are reviewable de novo.”

Tucker, 197 N.C. App. at 594, 679 S.E.2d at 143.
                                -9-
    Pursuant to N.C. Gen. Stat. § 5A-21 (2013), failure to

comply with an order of a trial court amounts to continuing

civil contempt so 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.

At a show cause hearing, the trial court is the finder of fact,

and it must enter a finding for or against the alleged contemnor

on each of the elements set out in section 5A-21.       N.C. Gen.

Stat. § 5A-23(e), (f) (2013).

    We hold that the trial court here properly entered findings

as to each element of section 5A-21, and each of the trial

court’s findings are supported by competent evidence.

    First, after listing all of the previous orders that it had

entered in this case, concluding with the 17 April order that

plaintiff claimed defendant had failed to obey, the trial court

found as fact that “[a]t all times relevant to this hearing

these orders were still in full force and effect and the purpose

of these orders may still be served by compliance with its [sic]
                                     -10-
terms.”   The   17   April   order    was    the    last   substantive   order

entered before the trial court held defendant in contempt.                  In

that order, the trial court included the provision that “[a]ll

other orders are to remain in effect herein except as they are

changed with the entry of this order.”               Thus, the trial court

entered findings of fact as to the first two elements of section

5A-21, and there is competent evidence in the record to support

the trial court’s finding that its previous orders, specifically

including the 17 April order, were in full force and effect and

that their purposes could still be served by compliance.

    Second,     defendant    argues     that       there   is   no   competent

evidence to support the trial court’s finding that defendant’s

noncompliance with the 17 April order was willful.               We disagree.

“Willfulness in a contempt action requires either a positive

action (a ‘purposeful and deliberate act’) in violation of a

court order or a stubborn refusal to obey a court order (acting

‘with knowledge and stubborn resistance’).”                Hancock, 122 N.C.

App. at 525, 471 S.E.2d at 419.             The trial court found as fact

that:

          [S]ince the entry of the [17 April order],
          [d]efendant has willfully violated [the 17
          April order] by:

          a. Interfering with the phone calls between
          Plaintiff and minor child;
                                             -11-


            b. Failing to foster a feeling of affection
            between the minor child and the Plaintiff;

            c. Failing to control the environment and
            people   surrounding    the   minor   child,
            specifically Defendant’s boyfriend Mr. Brian
            Kiddy;

            d. Interfered             with     Plaintiff’s        scheduled
            visitation;

            e. Failing to ensure that the minor child
            attends every therapy session.

These    findings      are    supported       by    the    following     evidence:    (1)

defendant testified at the hearing on plaintiff’s motion to show

cause that she was in control of the phone that the parties had

purchased       for    the   purpose     of    the       court-ordered    phone    calls

between    plaintiff         and    Valerie;       (2)    plaintiff    testified     that

“more than half of the calls” that he made to Valerie went

unanswered; (3) even though he gave defendant notice in advance,

the phone call that plaintiff made on Valerie’s birthday went

unanswered; (4) due to the unanswered calls, plaintiff could not

speak with Valerie twice a week as was ordered by the trial

court;    (5)    plaintiff         testified    that      Valerie’s    demeanor    would

change considerably after spending time with defendant and that

she would say things like “You’ve been mean to me and my mommy”

with “hostility in her voice” even though she is a “normal kid”

when    staying       with   plaintiff;       (6)    when    he   went   to   Valerie’s
                                               -12-
therapist’s          office       to    pick     Valerie       up     after       a    scheduled

appointment,         plaintiff         saw   defendant’s         boyfriend        Brian       Kiddy

(“Kiddy”)      videotaping             Valerie    and     directing      her      to     read      to

plaintiff a pre-typed list of reasons why she “didn’t want to

go” with plaintiff;               (7) Kiddy said “[Valerie] is a prisoner in

your home” in Valerie’s presence at the doctor’s office;                                  (8) in

the   sixth-month          span    between       Valerie’s       return      to       defendant’s

home and the hearing, plaintiff had one weekend visitation with

Valerie;       and    (9)      defendant         failed     to      bring     Valerie         to    a

scheduled counseling appointment, and plaintiff was forced to

pay the cancellation fee for the missed visit.                               Thus, the trial

court    had    plenary        evidence        before     it     to   find       as    fact    that

defendant willfully violated                     the 17 April order.                   Given the

deference this Court affords the trial court’s findings of fact,

McAulliffe v. Wilson, 41 N.C. App. 117, 120–21, 254 S.E.2d 547,

550 (1979), we affirm these findings as supported by competent

evidence.

      Finally, defendant argues that the trial court failed to

find as fact that she “is able to comply with the order or is

able to take reasonable measures that would enable [her] to

comply     with      the      order.”          N.C.     Gen.     Stat.       §    5A-21(a)(3).

Defendant argues that because the contempt order merely states
                                           -13-
that she “had” the means and ability to comply with the previous

court    orders,    the     trial    court     failed    to    meet      its   statutory

burden    of    showing     that     she   currently     has    such      an       ability.

However, the trial court clearly stated that “[d]efendant is

able to comply with the [17 April order].”                          Although this is

included in the trial court’s conclusions of law, it is more

appropriately deemed a finding of fact, as it does not involve

application of legal principles.                  See Wiseman Mortuary, Inc. v.

Burrell, 185 N.C. App. 693, 697, 649 S.E.2d 439, 442 (2007).

    Because the trial court entered findings of fact as to each

element    of     section    5A-21     and   each     finding       is   supported      by

competent evidence, we affirm the trial court’s conclusion that

defendant violated the 17 April order and thus was properly held

in continuing civil contempt.

                             III. Purge Conditions

    Defendant’s          final   argument      on   appeal     is     that     the   trial

court     erred    by    ordering      purge      conditions     that        are     either

unsupported by law or unrelated to compliance with the 17 April

order.     We agree in part and reverse the award of attorneys’

fees.

    Pursuant        to    N.C.      Gen.   Stat.     §   5A-23(e),        “[i]f       civil

contempt is found, the judicial official must enter an order
                                          -14-
finding the facts constituting contempt and specifying the act

which the contemnor must take to purge himself or herself of the

contempt.”        “The court’s conditions under which defendant can

purge   herself     of    contempt       cannot      be    vague        such   that   it   is

impossible for defendant to purge herself of contempt, and a

contemnor    cannot       be    required        to   pay    compensatory         damages.”

Watson v. Watson, 187 N.C. App. 55, 65, 652 S.E.2d 310, 317

(2007) (citation omitted).

    Defendant first argues that the purge conditions do not

specify when the purge ends and are so vague that it would be

impossible to purge herself of contempt.                           Defendant cites to

cases     where    this    Court       has    reversed       “impermissibly           vague”

conditions.       For example, in Scott v. Scott, 157 N.C. App. 382,

579 S.E.2d 431 (2003), this Court held that the trial court’s

order     requiring       the       defendant     to      purge    contempt       “by      not

interfering with the plaintiff’s custody of the minor children

and [] by not threatening, abusing, harassing or interfering

with the plaintiff or the plaintiff’s custody of the minor” was

“impermissibly vague” because the conditions did not “clearly

specify what the defendant can and cannot do . . . in order to

purge [himself] of the civil contempt.”                     Scott, 157 N.C. App. at

393-94,    579    S.E.2d       at    438-39     (citations        and    quotation      marks
                                         -15-
omitted).      Here, each of the trial court’s purge conditions

listed a specific action that was either required or prohibited

in   order    for   defendant      to   purge    herself      of   contempt.      For

example, the trial court ordered defendant to obey all previous

court    orders,    ensure    that      phone   calls    between      plaintiff   and

Valerie take place on Wednesdays and Fridays at 7:00 p.m., pay

for all of Valerie’s missed therapy sessions, and ensure that

she attends three therapy sessions with plaintiff in a timely

manner.      Thus, we conclude that the trial court did not err by

entering impermissibly vague purge conditions, because defendant

can take specific action as specified in the trial court’s order

to purge herself of contempt.

      Next,     defendant      contends         that    the     purge    conditions

improperly     modified      the   previous      custody      award.         Defendant

relies on Kennedy v. Kennedy, 107 N.C. App. 695, 703, 421 S.E.2d

795, 799 (1992), where this Court vacated a contempt order that

changed custody of a child from joint custody to sole custody

without the proper motion to modify custody required by N.C.

Gen. Stat. § 50-13.7 (2013).                Here, the trial court did not

modify    custody    via     the   purge    conditions.            Primary    custody

remained     with   defendant      both    before      and    after    the   contempt

order.     Rather, the contempt order altered the previous orders’
                                         -16-
phone call requirements between Valerie and plaintiff and set

out more specific times for those calls, among other things

unrelated to custody.            Because the trial court did not modify

custody,    Kennedy      is    inapposite,       and    defendant’s       argument    is

overruled.

       Defendant     also      argues     that    the    trial       court   was     not

authorized to require payment of missed therapy appointments as

a purge condition.            This Court has established that when relief

imposed in a contempt order is remedial rather than punitive, it

is civil in nature and allowable in a civil contempt order.                          See

Bishop v. Bishop, 90 N.C. App. 499, 504, 369 S.E.2d 106, 108-09

(1988) (citation omitted).              “If the relief provided is a fine,

it is remedial when it is paid to the complainant, and punitive

when   it   is    paid   to    the    court[.]”        Id.     Accordingly,        since

defendant was ordered to repay the cancellation fee to plaintiff

that was incurred as a result of defendant’s failure to ensure

Valerie attended all therapy sessions, in contravention of a

previous    court    order,      we     hold   that     this   was    a   permissible

remedial remedy.

       Finally, defendant argues that the trial court erroneously

ordered defendant to pay attorneys’ fees as a purge condition.

We agree.        A trial court may not award attorneys’ fees unless
                                                -17-
specifically       authorized         by    statute.           United     Artists       Records,

Inc. v. Eastern Tape Corp., 18 N.C. App. 183, 187, 196 S.E.2d

598, 601-02, cert. denied, 283 N.C. 666, 197 S.E.2d 880 (1973).

This    Court     has    previously         held       that    attorneys’       fees     may    be

awarded      under      N.C.    Gen.        Stat.       §     50-13.6     to        parties    who

successfully pursue a motion for contempt in child support and

custody actions.         Wiggins v. Bright, 198 N.C. App. 692, 695, 679

S.E.2d 874, 876 (2009).               However, the trial court is required to

enter two findings of fact before awarding attorneys’ fees in

such    cases:     (1)    the       party       to    whom    the   attorneys’         fees    are

awarded      is    acting      in    good        faith,       and   (2)   that        party    has

insufficient means to defray the expense of the suit.                                    Id. at

696, 679 S.E.2d at 876.                Here, the trial court made a factual

finding that plaintiff was acting in good faith, but failed to

enter a finding that he could not defray the expense of the

suit.     Therefore, because the trial court failed to enter the

requisite findings of fact to support its award of attorneys’

fees, we reverse that portion of the contempt order.

                                           Conclusion

       For   the     foregoing        reasons,         we    affirm     the    trial     court’s

order     holding       defendant          in        civil    contempt        and     specifying

conditions that would allow defendant to purge this contempt,
                                    -18-
but   we   reverse   the   trial   court’s   award   of   attorneys’   fees

because it failed to enter the required findings of fact to

support the award.



      AFFIRMED IN PART; REVERSED IN PART.

      Judges GEER and McCULLOUGH concur.

      Report per Rule 30(e).
