                               NO. COA14-58
                               NO. COA14-68

                     NORTH CAROLINA COURT OF APPEALS

                            Filed: 5 August 2014


CHRISTINA D’ALESSANDRO,
     Plaintiff,

    v.                                  Wake County
                                        Nos. 11 CVD 1280, 11 CVD 9780
ADAM D’ALESSANDRO,
     Defendant.


    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 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
                                        -2-
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—Madeline1, 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,

1
  We will use pseudonyms to protect the privacy of the minor
children.
                                        -3-
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
                                                 -4-
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
                                           -5-
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 appeal2:




2
  The orders disposed of the other pending motions but neither
party has challenged the trial court’s disposition of those
motions on appeal.
                                          -6-
     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 20123, 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:

3
  Defendant’s motion for modification apparently was not filed
with the trial court prior to the hearing but was served upon
plaintiff’s counsel and this motion was heard by the consent of
the parties.
                                         -7-
       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,
                                            -8-
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



4
  The trial court actually included this provision in the order
entered in File No. 11 CVD 9780, but ordered in File No. 11 CVD
1280 that “Defendant is held in civil contempt under the terms
and conditions set forth in the contempt order in Wake County
File No. 11 CVD 9780.”
                                   -9-
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, 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. . . .

          At the outset of a civil contempt proceeding
          for nonsupport, the trial court should
          assess the likelihood that the defendant may
          be incarcerated. If the court determines
          that the defendant may be incarcerated as a
          result of the proceeding, the trial court
          should, in the interest of judicial economy,
          inquire into the defendant’s desire to be
          represented by counsel and into his ability
          to pay for legal representation. If such a
          defendant   wishes  representation  but   is
          unable due to his indigence to pay for such
          representation, the trial court must appoint
          counsel to represent him.

McBride v. McBride, 334 N.C. 124, 131-32, 431 S.E.2d 14, 19

(1993).
                                           -10-
       At the hearing on 20 February 2013, when all of the pending

motions     were     heard,      defendant      appeared        pro       se.   There    was

obviously a likelihood that defendant may be incarcerated if

held in contempt, as he had been previously held in contempt and

incarcerated       after    a    prior    motion,         and   on   20    February     2013

defendant had to respond to two show cause orders, one alleging

violation of the custody order and one alleging violation of the

child support order.            But there is no indication in the record

that    defendant     was       advised    of       his     right     to    have   counsel

appointed    to    represent      him     on    the       contempt    motions      at   this

hearing.       The     only      mention       of    the     issue     appears     in   the

transcript, after a long colloquy during which the trial court

identified all of the various pending motions                              filed by both

parties which were to be heard that day:

            THE COURT: Okay. Now, I’m moving on to your
            motions, Mr. Williams.

            MR. WILLIAMS: Yes, Your Honor. May 7th, 2012
            motion to show cause. [Pause.]

            MR. WILLIAMS: And that should’ve been—— an
            order was issued in that as well.

            THE COURT: And Mr. D’Alessandro has signed
            waivers, I’m assuming.

            MR. WILLIAMS: This is the one where he was,
            Your Honor, wanted for arrest. I’m assuming
            he has.
                                      -11-
             THE COURT: Do you have a copy of that order?
             Of that order to show cause?

             MR. WILLIAMS: I’ve got the motion.

      Unfortunately,        it   appears     from    our    record     that     Mr.

Williams’     assumption—that       defendant       had    signed     waivers—was

unfounded. Perhaps he had signed waivers at other hearing dates,

as this matter had been rescheduled several times, but nothing

in the record in either File No. 11 CVD 1280 nor File No. 11 CVD

9780 shows that he waived his right to counsel for the hearing

on 20 February 2013. And it would appear that had the trial

court     inquired,    defendant    might    have    been    found,    at     least

potentially, to be indigent and thus entitled to court-appointed

counsel, as he claimed to be unable to pay the sums ordered by

the trial court. Cf. Young v. Young, ___ N.C. App. ___, ___, 736

S.E.2d 538, 544 (2012) (noting that a defendant must show that

he   is   indigent     to   be   entitled    to   court-appointed       counsel).

Throughout the hearing, defendant steadfastly insisted he could

not afford to pay plaintiff:

             [Defendant]: . . . . I can’t financially
             comply. I can’t be in compliance. As much as
             I try to honor, you know, every order out of
             the court, physically it’s impossible to
             live, eat, and pay all that is required.

             . . . .

             [Defendant]: That is all cumulative total of
                               -12-
         the 115, the 200 percent of my income that
         is tied up in these orders that is——where do
         I start? At the point of separation, we were
         $750,000 in debt, and I have some paperwork
         in here to verify that.

         [Court]: How much were you in debt?

         [Defendant]: About $750,000,    Your Honor.

         [Court]: That’s marital debt?

         [Defendant]: That was both        marital     and
         business. It was all together.

         [Court]: Okay. And?

         [Defendant]: She has since gone through the
         bankruptcy process. But quite honestly, I
         can’t even afford to file for bankruptcy.
         Business bankruptcy costs about $30,000 in
         attorneys fees. And a personal bankruptcy,
         Chapter 13, would be at least $3,000.

    We must therefore “conclude that the trial court erred by

ordering that the defendant be incarcerated for civil contempt

without the benefit of appointed counsel to represent him at the

hearing resulting in his incarceration.” McBride, 334 N.C. at

132, 431 S.E.2d at 20. Accordingly, we reverse both orders to

the extent that they hold defendant in contempt of the custody

order and the child support order.

                   III. Modification of custody

    Although the orders must be reversed as to the contempt

provisions as discussed above, defendant did not have any right
                                      -13-
to   appointment    of    counsel     to     represent   him    regarding      his

November 2012 motion to modify the custody order, so we will

address his arguments regarding the provisions of the 2 July

2013 order as to modification of custody.                 The trial court’s

order of 2 July 2013 addresses modification of custody to a very

limited   extent.        The   only   findings    of   fact    which   could    be

considered as relevant to the modification issue5 are as follows:

           7.   The minor child [Andy] did not exercise
           visitation   with   Defendant  for   several
           months.

           8.   The Court spoke with [Andy] and finds
           that

             a. the minor child loves the Defendant
             but   feels  that   the   Defendant   has
             purposefully     rejected      him     as
             demonstrated       by         Defendant’s
             unwillingness to hug the child prior to
             today’s hearing;

             b. the minor does now and always has
             considered Defendant to be his father
             but    considers   prior   actions   of
             Defendant to be further evidence that
             Defendant has rejected him, including
             Defendant’s earlier choice not to visit
             with the child.

           9.   The custody order was violated in that
           [Andy] did not visit with the Defendant;

5
  These findings seem mostly directed to address the defendant’s
motion to hold plaintiff in contempt as to denial of visitation
with Andy, an issue defendant has not raised on appeal. But as
they address some of the visitation issues, they could be
considered as relevant to the motion to modify custody.
                             -14-
         however, the lack of visitation was not
         willful on the part of the Plaintiff because
         the minor child refused to go based on his
         belief that Defendant had rejected him.

         10. The parties agree at the hearing that
         there has been a substantial change in
         circumstances affecting the minor child
         [Andy] such that a modification of his
         custody and visitation is warranted.

         11. It is in the best interest of    the minor
         child that he have some contact      with the
         Defendant that is initiated by the   Defendant
         but that visitation with Defendant   should be
         modified from the prior order.

    Based on these findings of fact and the conclusion of law

that “[t]here has been a substantial change in circumstances

affecting the welfare of the minor child [Andy] as to warrant a

modification of his custody and visitation[,]” the trial court

ordered as follows:

         3.   The Defendant’s motion to modify child
         custody is granted as to the visitation
         provision relating to [Andy] as follows:

            a. Defendant shall have no further
            visitation obligation in regards to the
            minor child, [Andy,] unless initiated
            by [Andy];

            b. Defendant shall initiate a dinner
            visit with the minor child within 1
            month of this hearing (February 20,
            2013);

            c.   Defendant  shall not  make  any
            negative comments to the minor child
            regarding Plaintiff or her spouse.
                                         -15-
                Defendant shall not discuss custody or
                custody related matters with [Andy].

       On appeal from this order, defendant argues that the trial

court failed to make findings of fact and conclusions of law

fully addressing his motion to modify custody.                           Although there

were   several       motions    heard    on     20    February          2013,   defendant

correctly   points      out    that    his    evidence        as   to    the    motion   to

modify custody took up most of the time devoted to the hearing.

In fact, when the trial court was reviewing the various pending

motions and determining how to proceed to hear them all in an

orderly manner, plaintiff’s counsel agreed that defendant should

present his evidence first, stating that “I believe the longer

hearing is going to be his motion to modify custody, and that’s

his burden.”

       Defendant alleged several reasons to modify custody for all

three children in his motion, and his evidence addressed these

reasons   as    to    all     three   children.          Specifically,          defendant

presented      evidence     regarding        his     claims    that       plaintiff      had

“emotionally and physically neglected” the three children, not

just   Andy.      His     motion      requested       “51%     legal      and   physical”

custody of all three children, and at the hearing, he clarified

that he was asking to be granted primary physical and legal

custody of all three children.               Defendant argues that “the court
                                    -16-
order is devoid of any findings, conclusions or decree with

respect to” the two biological children of the parties and that

the   trial    court   “should   have    ruled   upon   whether     there   was

sufficient     evidence   to   warrant   modification    of   the   permanent

custody order with respect to the younger children.”

      Defendant does not challenge the limited findings of fact

and conclusion of law as to the modification of the custody

order regarding Andy, but argues that the trial court simply

failed to address his motion for modification of custody as to

the two younger biological children of the marriage, and he is

correct.      The order is devoid of any mention of the fact that he

sought complete modification of the custodial arrangements for

all three children.        Thus, we cannot review the trial court’s

determinations as to the other two children.

              Our Supreme Court has explained why it is
              essential for trial courts to include a
              specific finding of a substantial change in
              circumstances affecting the welfare of the
              child prior to modifying a custody order:

              A decree of custody is entitled to such
              stability    as    would    end    the  vicious
              litigation    so    often   accompanying   such
              contests, unless it be found that some
              change    of    circumstances    has   occurred
              affecting the welfare of the child so as to
              require modification of the order. To hold
              otherwise would invite constant litigation
              by a dissatisfied party so as to keep the
              involved    child    constantly   torn  between
                                          -17-
             parents and in a resulting state of turmoil
             and insecurity. This in itself would destroy
             the paramount aim of the court, that is,
             that the welfare of the child be promoted
             and subserved.

             Requiring this specific finding also ensures
             the modification is truly necessary to make
             a   custody   order   conform   to   changed
             conditions when they occur. Finally, such
             findings are required in order for the
             appellate court to determine whether the
             trial court gave due regard to the factors
             expressly listed in N.C. Gen. Stat. § 50–
             13.7.

Davis v. Davis, ___ N.C. App. ___, ___, 748 S.E.2d 594, 599

(2013) (citations and quotation marks omitted).

      It    would    appear   from     the   lack     of   findings        of   fact   and

conclusions of law as to the two biological children that the

trial court did not find defendant’s requests to be supported by

the facts, the law, or perhaps both, but still the trial court

needs   to    make    findings    of      fact   so    that      it   is    clear      that

defendant’s motion to modify custody was addressed in full.

      The need for this type of finding is even greater in a case

such as this, which has been protracted and contentious, to the

detriment of all three children. The absence of these findings

of   fact    and    conclusions      of   law    serves     to    “invite       constant

litigation by a dissatisfied party so as to keep the involved

child[ren] constantly torn between parents and in a resulting
                                        -18-
state of turmoil and insecurity.”              Id.     We must therefore remand

the order concerning modification of custody to the trial court

to   make    additional    findings     of     fact    and   conclusions    of   law

addressing the denial of defendant’s motion to modify custody as

to the two younger children. The trial court need not make any

additional findings as to Andy, as the order modified visitation

as to Andy and defendant has not challenged this modification on

appeal.

                                 IV.   Conclusion

      For the reasons stated above, the orders of 2 July 2013 and

12 July 2013 are reversed as to any provisions holding defendant

in civil contempt of the trial court’s prior orders, and the

order   of    2   July    2013   is    remanded       to   the   trial   court   for

additional findings of fact and conclusions of law addressing

its denial of defendant’s motion for modification of custody of

the two younger children.

      12 July 2013 Order in 11 CVD 9780: REVERSED.

     2 July 2013 Order in 11 CVD 1280: REVERSED in
part,    REMANDED in part.

      Judges STEPHENS and MCCULLOUGH concur.
