                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-884

                                 Filed: 16 May 2017

Guilford County, No. 02 CVD 8173

GINGER A. McKINNEY, NOW GINGER L. SUTPHIN, Plaintiff,

               v.

JOSEPH A. McKINNEY, JR., Defendant.


      Appeal by Defendant from orders entered 25 September 2014 and 22 March

2016 by Judge Teresa H. Vincent in Guilford County District Court. Heard in the

Court of Appeals 8 February 2017.


      Wyatt Early Harris Wheeler, LLP, by A. Doyle Early, Jr., and Arlene M. Zipp,
      for the Plaintiff-Appellee.

      Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson and K. Edward
      Greene, for the Defendant-Appellant.


      DILLON, Judge.


      Joseph A. McKinney, Jr., (“Father”) appeals from two orders of the district

court entered during the course of a dispute between Father and Ginger A. McKinney

(Sutphin) (“Mother”) regarding the custody of their adolescent son, Max.1

Specifically, Father appeals (1) the district court’s September 2015 order finding him

in civil and criminal contempt (the “Contempt Order”), and (2) the district court’s



      1   A pseudonym.
                              MCKINNEY V. MCKINNEY

                                  Opinion of the Court



March 2016 order (the “Fee Award Order”) denying his motion for relief from

judgment or new trial and awarding attorney’s fees to Mother.

                                   I. Background

      Mother and Father separated in 2002 when Max was two years old. For a

period of time, the parties shared custody of Max. In 2009, when Max was ten years

old, the parties entered into a consent order (the “2009 Custody Order”) which

awarded primary physical custody of Max to Mother and provided a specific schedule

for Father’s visitation.

      In early 2014, Max expressed a strong desire to move from Greensboro, where

he resided with Mother, to live with Father in Wilmington. In May 2014, Father filed

a motion to modify custody with the district court.

      In June 2014, before Father’s motion to modify custody was heard, Max left

Greensboro on his own and traveled to Wilmington to stay with Father. In July 2014,

the parties entered into a consent order (the “2014 Consent Order”) providing that

Max would return to Greensboro.

      However, in August 2014, Max again traveled on his own to Wilmington,

staying for approximately one month with Father and attending high school in

Wilmington. Mother then filed the second show cause motion based on Father’s

failure to return Max to Greensboro.




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      A hearing was held during the week of 8 September 2014 during which the

district court orally rendered its decision, finding Father in criminal and civil

contempt for failure to comply with the 2009 Custody Order and the 2014 Consent

Order.

      On 13 September 2014, Max returned to live with Mother in Greensboro.

      On 25 September 2014, the district court entered a written order (the

“Contempt Order”), reducing its prior oral decision finding Father in civil and

criminal contempt to writing.

      In December 2014, the district court entered an order on Father’s custody

modification motion, awarding Father primary physical custody of Max.

      On 22 March 2016, the district court entered the Fee Award Order awarding

Mother approximately $51,100 for attorney’s fees she incurred in prosecuting her

contempt motion.

                                      II. Analysis

      Father appeals the Contempt Order finding him in civil and criminal contempt

and the Fee Award Order awarding Mother $51,100.

      Regarding the Contempt Order, we dismiss the appeal with respect to the

portion finding Father in criminal contempt because that appeal must first be taken

to superior court. Further, we vacate the Contempt Order to the extent that the




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                                         Opinion of the Court



district court found Father in civil contempt based on the fact that Father had already

returned Max prior to the entry of the Order, thus satisfying the “purge” language.

       Regarding the Fee Award Order, we dismiss the appeal to the extent the award

is based on the criminal contempt finding. We reverse and remand to the extent the

award is based on the civil contempt finding. We address our holdings in greater

detail below.

                                         A. Contempt Order

                                        1. Criminal Contempt

       In its Contempt Order, the district court found Father in criminal contempt for

“failure to communicate with [] Mother” in August 2014 when Max ran away to

Wilmington for the second time. The district court sentenced Father to thirty (30)

days in jail, but suspended the sentence for twelve (12) months based on certain

conditions.2

       In support of its order of criminal contempt, the district court essentially found

that (1) Max ran away to Wilmington on 13 August 2014 after Max had a

disagreement with Mother; (2) Mother sent text messages to Father regarding Max’s



       2   We note that the district court provided as one of the conditions of the suspended sentence
that “the remaining balance of the sentence can be purged upon the return of custody to the Plaintiff
Mother at any time prior to the time the full 30-day sentence has been served.” This condition is the
type that would be more appropriate for a finding of civil contempt. However, we conclude that the
district court’s finding of contempt was criminal in nature based on other conditions that the district
court imposed. The district court imposed the sentence as a means to punish Father for what it
determined to be a violation of the 2009 Custody Order that occurred from August 13-17, when Father
failed to communicate with Mother.

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                                       Opinion of the Court



welfare; (3) Father did not respond to Mother’s inquiries until 17 August 2014; (4)

Father’s failure to respond to Mother violated a provision in the 2009 Custody Order

that “[t]he parties shall confer with each other on all important matters pertaining

to the health, welfare, education, and upbringing of the minor child with a view to

arriving at a harmonious policy calculated to promote the best interest of the minor

child”; and (5) Father’s violation was willful, deliberate, and stubborn.

       Our Supreme Court held in a per curiam opinion adopting a dissent from our

Court that a finding of criminal contempt by the district court should be appealed to

superior court and not to the Court of Appeals. Reynolds v. Reynolds, 356 N.C. 287,

569 S.E.2d 645 (2002); see also Hancock v. Hancock, 122 N.C. App. 518, 522, 471

S.E.2d 415, 417 (1996) (“Criminal contempt orders are properly appealed from district

court to the superior court, not to the Court of Appeals.”). And our General Assembly

has directed that an “appeal from a finding of contempt by a judicial official inferior

to a superior court judge is by hearing de novo before a superior court judge.” N.C.

Gen. Stat. § 5A-17 (2015). Accordingly, we conclude that Father’s appeal of that

portion of the Contempt Order finding him in criminal contempt is not properly before

us.3 Therefore, we dismiss this portion of Father’s appeal.

                                         2. Civil Contempt



       3  It appears from the record that Father did, in fact, appeal the criminal contempt order to
superior court on 15 September 2014. However, the record does not include any documentation of the
outcome of that appeal and Father has not appealed from any order of the superior court.

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                                   Opinion of the Court



      On 10 September 2014, the district court rendered its oral order finding Father

in civil contempt for “failing to return the child pursuant to the [2009 Custody Order]

and the [2014 Consent Order].” On 13 September, before the district court entered

its written Contempt order, Max returned to live with Mother in Greensboro. On 25

September, the district court entered the written Contempt Order finding Father in

civil contempt and stating that Father could “purge himself of contempt by having

[Max] delivered to the Plaintiff Mother[.]”

      Our Court has held that a district court “does not have the authority to impose

civil contempt after an individual has complied with a court order, even if the

compliance occurs after the party is served with a motion to show cause why he should

not be held in contempt of court.” Ruth v. Ruth, 158 N.C. App. 123, 126, 579 S.E.2d

909, 912 (2003).

      Here, the district court’s order became effective on 25 September when the

district court reduced its order to writing and the order was filed with the clerk. See

N.C. R. Civ. P., Rule 58 (“[A] judgment is entered when it is reduced to writing, signed

by the judge, and filed with the clerk of court.”); see also Olson v. McMillian, 144 N.C.

App. 615, 619, 548 S.E.2d 571, 574 (2001) (“When a trial court’s oral order is not

reduced to writing, it is non-existent[.]” (internal marks omitted)). Because Father

had already returned Max to Mother prior to 25 September, the district court lacked

the authority to find Father in civil contempt for failing to return Max. Therefore,



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                                   Opinion of the Court



we vacate the Contempt Order to the extent the district court found Father in civil

contempt.

                                   B. Fee Award Order

      In March 2016, the district court ordered Father to pay Mother $51,100 for

attorneys’ fees incurred in connection with Mother’s prosecution of the Contempt

Order. To the extent that the Fee Award Order relates to the finding of criminal

contempt, we dismiss the appeal. The appeal of the criminal contempt order and

related issues lies with the superior court as part of that court’s review of the criminal

contempt finding.

      We conclude, though, that Father’s appeal of the portion of the Fee Award

Order relating to the civil contempt finding is properly before us. We note that we

have vacated the district court’s finding that Father was in civil contempt based on

the fact that he purged himself of contempt prior to the Contempt Order being

entered. However, our Court has held that the moving party may still recover

attorneys’ fees even if the other party has purged himself prior to the entry of an

order finding him in civil contempt:

             As a general rule, attorney’s fees in a civil contempt action
             are not available unless the moving party prevails.
             Nonetheless, in the limited situation where contempt fails
             because the alleged contemnor complies with the previous
             orders after the motion to show cause is issued and prior to
             the contempt hearing, an award of attorney’s fees is proper.

Ruth, 158 N.C. App. at 127, 579 S.E.2d at 912.


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                                   Opinion of the Court



      Here, the district court found Father in civil contempt for his failure to comply

with the 2009 Custody Order and the 2014 Consent Order based on Max running

away to live with Father for approximately a month in August 2014. The district

court’s findings suggest, in part, that Max ran away from Mother on his own and

arrived at Father’s house in Wilmington on 14 August; Father lives a wealthy lifestyle

and Max likes the way he lives when he is with him. The district court further found

that Father never told Max to run away from Mother; and Father “enticed” Max to

stay with him because of Father’s lifestyle. We hold that several of the findings made

by the district court in support of its civil contempt order are erroneous.

      For instance, the district court found that “[t]here was no evidence presented

that the Defendant Father instructed [Max] that he had to abide by the [custody

orders].” However, Father stated several times during his testimony that he told Max

that Max needed to go back home to Mother. The district court also found that

“[t]here was no evidence presented that the Defendant Father secured transportation

after August 13, 2014, and told the child to get in the car or plane.” But Father did

state that he was willing to provide transportation but that Max was simply not

willing to go. It was certainly within the district court’s discretion to find that

Father’s testimony was not credible, but the district court did not state that “there

was no credible evidence . . . .” Therefore, these findings are not supported by the

evidence.



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                                   Opinion of the Court



      Further, much of the district court’s reasoning in finding Father in civil

contempt runs contra to our decision in Hancock v. Hancock, 122 N.C. App. 518, 417

S.E.2d 415 (1996). In Hancock, we held that a parent was not in civil contempt of a

custody order where the mother encouraged her ten-year old child to go on scheduled

visits with the father, that she did not force the child to stay or discourage the child

from going with the father, that the child refused to go, and that the mother otherwise

did not use physical force or a threat of punishment to make the child go with the

father. Id. at 525, 471 S.E.2d at 419. Based on these findings, we reversed an order

finding the mother in civil contempt, stating as follows:

             We find no evidence that [the mother] willfully refused to
             allow the child to visit with the [father]. Nor do we agree
             with the trial court’s finding that “[the mother’s] inaction
             in not requiring the minor child to visit with [the father]
             amounts to contempt because there is no evidence [the
             mother] resisted [the father’s]” visitation or otherwise
             refused to obey the visitation order. She simply did not
             physically force the child to go. Absent any evidence she
             encouraged [the child’s] refusal to go or attempted in any
             way to prevent the visitation, her actions or inactions, even
             if improper, do not rise to the level of contempt.

Id. at 525-26, 471 S.E.2d at 420-21.

      In the present case, the district court made no finding that Father refused to

allow Max to live with Mother or refused to obey the custody orders. The district

court did not find that Father encouraged Max to stay with him, but rather, found

that he told Max that Max should go home. It is true that the district court found



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                                  Opinion of the Court



that Father did not punish Max or make life uncomfortable for Max while remaining

in Wilmington.    And these actions and inactions may have been improper, but

otherwise do not rise to the level of contempt. See id. We do not think that the

findings that Father provided a high standard of living for Max which was an

“enticement” for Max to prefer living with Father is enough to rise to the level of

willfulness, absent a finding supported by the evidence that Father provided a high

standard of living for the purpose of enticing Max to run away from Mother rather

than merely for the purpose of providing for or bonding with Max.

      Accordingly, we reverse the district court’s order awarding attorney’s fees

incurred in relation to the civil contempt finding. On remand, the district court is

free to consider evidence and enter findings regarding whether Father acted willfully

in refusing to allow Max to visit with Mother.

                                   III. Conclusion

      We dismiss the appeal from the finding of criminal contempt and dismiss the

appeal from the portion of the Fee Award Order relating to the finding of criminal

contempt. We vacate the finding of civil contempt and reverse the portion of the Fee

Award Order relating to the finding of civil contempt. This matter is remanded for

action consistent with this opinion.

      DISMISSED IN PART, VACATED IN PART, AND REMANDED.

      Judges ELMORE and ZACHARY concur.



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