              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-329

                                 Filed: 3 July 2018

Mecklenburg County, No. 12 CVD 18697 (KBS)

JULIE MICHELLE KOLCZAK (formerly Johnson), Plaintiff,

             v.

ERIC FRANCIS JOHNSON, Defendant.


      Appeal by plaintiff from order entered on or about 13 October 2016 by Judge

Kimberly Best-Staton in District Court, Mecklenburg County. Heard in the Court of

Appeals 18 October 2017.


      Lynna P. Moen, for plaintiff-appellant.

      Horack Talley Pharr & Lowndes, P.A., by K. Mitchell Kelling and Elizabeth J.
      James, for defendant-appellee.


      STROUD, Judge.


                         For the want of a nail the shoe was lost.
                        For the want of a shoe the horse was lost.
                        For the want of a horse the rider was lost.
                       For the want of a rider the battle was lost.
                      For the want of a battle the kingdom was lost,
                         And all for the want of a horseshoe-nail.

Benjamin Franklin, Poor Richard’s Almanack (1758). No kingdoms were lost in this

appeal, but this opinion is much longer than it should have been for the want of a few

words in the district court’s order and in defendant-father’s motions.
                                 KOLCZAK V. JOHNSON

                                   Opinion of the Court



      Courts strive mightily to rule based upon the substance of pleadings and

orders, but there is a reason certain specific words are important in these legal

documents as the correct words make orders clear and can avoid unnecessary

appeals. The presence of “magic words” lets the appellate court know that the trial

court has used the correct legal standard. While the absence of “magic words” may

not result in reversal of an order, it often creates issues on appeal that could be easily

avoided.

      Plaintiff-mother appeals a trial court order modifying child custody, finding

her in contempt, and ordering her to pay defendant-father’s attorney fees. The trial

court’s order regarding civil contempt did not include any “purge” conditions, so we

must reverse the portion of the order holding Mother in civil contempt.         The trial

court’s order regarding modification of custody lacked a conclusion of law with the

simple phrase “substantial change of circumstances,” but after detailed analysis of

the trial court’s vague conclusion of Father’s “entitlement” to modification in

conjunction with the findings of fact, we affirm. Finally, the absence of the words

“insufficient means to defray the expense of the suit” in defendant-father’s motion for

modification of custody created plaintiff-mother’s entire argument on the award of

attorney fees, but again, after a detailed analysis, we affirm because plaintiff-mother

raised her objection to attorney fees too late. In summary, we affirm the order as to




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                                        Opinion of the Court



custody and attorney fees for the custody modification and reverse the order as to

civil contempt.

                                           I.      Background

       Plaintiff (“Mother”) and defendant (“Father”) were married in 2000, had one

child in 2003, one child in 2007, and separated in 2012. In 2012, Mother filed a

complaint against Father seeking child custody, child support, post-separation

support, alimony, attorney fees, equitable distribution, interim distribution, and an

injunction to prevent Father from diverting funds.                  In February 2013, Father

answered Mother’s complaint alleging marital misconduct and counterclaiming for

child custody, child support, and equitable distribution.                   From these original

pleadings, only child custody is at issue on appeal.

       On 6 January 2014, the parties entered into a Consent Order regarding

permanent child custody and child support with the parents sharing joint physical

custody – Mother having the children Saturday through Wednesday and Father

Wednesday through Saturday. On 16 April 2015, Father filed to modify custody

alleging in part that Mother had married Mr. Dayton Kolczak in January of 2014.1

The motion made detailed allegations about Mr. Kolczak’s criminal activities. For




       1    The allegation does not include the actual date of Mother’s marriage to Mr. Kolczak. Even
the trial court’s finding of fact in the order on appeal simply notes the marriage occurred in January
of 2014. Mother also admits in her brief that she married Mr. Kolczak in January of 2014. The
Consent Order did not include any finding of fact about Mother’s marital status other than her
marriage to and separation from Father.

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                                    Opinion of the Court



example, the motion alleges both Mother and Mr. Kolczak were arrested at Mother’s

home when the children were present in January 2014 and the police had to call

Father to pick up the children.     Father sought sole legal and physical custody and

also attorney fees.

      In June of 2015, Father filed a motion for emergency custody and for a

temporary parenting agreement (“TPA”) again based on the criminal conduct of Mr.

Kolczak and the negative effects it was having on the children. On 24 July 2015, the

trial court entered an order granting Father’s request for emergency custody and a

separate order for a TPA which modified the custodial schedule; the orders did not

suspend Mother’s visitation but imposed additional requirements:

                   2.    Mother’s visitation with the children shall not
             be suspended but shall be conditioned upon the following:

                      a.    Dayton Kolczak shall not be at Mother’s
                      residence at any time when the minor children are
                      present. The minor children shall have absolutely no
                      contact with Dayton Kolczak at any time during
                      their visitation with Mother. “No contact” shall
                      include but is not limited to, no contact at Mother’s
                      residence, in a car driven by Mother or anyone else,
                      in a public place or anywhere else Dayton Kolczak
                      might be present. Additionally, “no contact” shall be
                      no communication via telephone, email, text or any
                      other means of communicating with the boys.

                      ....

                  d.     Mother shall notify Father if she and/or
             Dayton Kolczak are arrested within 24 hours of said arrest.



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                                  Opinion of the Court



                  e.     There shall be no illegal drugs or drug
             paraphernalia at Mother’s home.

The orders also included provisions for no contact between the children and associates

of Mr. Kolczak and required Mother to submit to a drug test and provide the results

to Father’s attorney.

      In September 2015, Mother moved for a temporary restraining order (“TRO”)

and injunction against Father, alleging that he was contacting her “regularly and

relentlessly” “for the purposes of harassment and interference.”     On 6 November

2015, Father filed a motion for contempt alleging Mother’s failure to comply with both

the Consent Order and the TPA order and requesting attorney fees.       In October of

2015, the district court dismissed Mother’s motion for a TRO and injunction with

prejudice. In November of 2016, Father filed a second motion for contempt alleging

Mother’s additional failures to comply with both the Consent Order and the TPA

order and again requesting attorney fees.

      Over the course of five days in March and August of 2016, the trial court held

a hearing on Father’s motion to modify custody, which included a request for attorney

fees, and both of his motions for contempt. In October of 2016, the district court

entered an order determining Mother was in civil contempt, awarding Father

primary custody with Mother having secondary custody, and awarding Father

attorney fees. Mother appeals only the October 2016 order.

                                   II.    Civil Contempt


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                                     Opinion of the Court



       Mother first challenges the district court’s determination that she was in

contempt.

                     The standard of review for contempt proceedings is
              limited to determining whether there is competent
              evidence to support the findings of fact and whether the
              findings support the conclusions of law. Findings of fact
              made by the judge in contempt proceedings are conclusive
              on appeal when supported by any competent evidence and
              are reviewable only for the purpose of passing upon their
              sufficiency to warrant the judgment.

Watson v. Watson, 187 N.C. App. 55, 64, 652 S.E.2d 310, 317 (2007) (citations and

quotation marks omitted).

A.     Findings of Fact

       Mother contests eleven of the trial court’s findings of fact and argues “[t]here

are four major categories in which the trial court found Michelle in civil contempt and

they are as follows: (1) notification of arrests, (2) first right of refusal, (3) registration

in camps without consulting father, and (4) allowing Dayton at Michelle’s residence

when the minor children are present.” Mother has also challenged the contempt

portion of the order based upon the lack of any purge conditions, and as discussed

below, we are reversing the portion of the order finding her in contempt for that

reason, but because the challenged findings of fact support the portions of the order

addressing modification as well as contempt, we must address them.

       1.     Notification of Arrests




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                                  Opinion of the Court



       The TPA order required Mother to notify Father himself within 24 hours if she

or her husband was arrested. Mother did not identify the findings of fact regarding

notification of arrests as unsupported by the evidence. The relevant findings are:

                    25.   Mother did not tell Father that her Husband,
              Dayton Kolczak, had been arrested within twenty-four (24)
              hours as required by the TPA Order.

                    26.    Mother’s attorney did notify Father’s attorney
              but the requirement was for Mother to notify Father within
              twenty-four (24) hours and that did not happen.

Mother argues that though she “herself did not notify Father[,]” Father was in fact

notified. Mother contends she took “reasonable measures to comply with” the order

by her attorney notifying Father’s attorney. Thus Mother is not contending she

directly notified Father or that she was unable to directly notify Father, but rather

that having her attorney contact Father’s attorney was close enough and fulfilled the

spirit of the order.

       The trial court was well within its discretion in finding that Mother willfully

violated the Consent Order and TPA order by having Father’s attorney notified

instead of directly notifying Father. The Consent Order specifically provided that

“[t]he parties shall use email or text as their primary method of communication and

all communication should be respectful.” The TPA order further required direct

notification, which has the advantage of generally being faster. If there was an arrest

on a weekend or holiday, contacting an attorney who must then contact another



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                                  Opinion of the Court



attorney who then must contact a client may substantially delay getting the message

to Father. In addition, Mother’s choice likely caused Father to incur additional

attorney fees for a notification which could have been provided directly for free.

      2.     Right of First Refusal

      The Consent Order contains a provision that “[t]he parties agree to offer the

other parent the first right of refusal to watch the children if they are going to be

more than 3 hours away before leaving them with a third party.” Mother argues that

the evidence does not support these findings regarding right of first refusal:

                     11.    In December 2014, Mother violated the right
             of first refusal when Mother did not let Father care for the
             children. The children stayed with someone else instead of
             the Father. No email was sent to the Father to see if he
             could care for the children.

                    12.   Mother violated the right of first refusal when
             Mother left the children with Nicki St. Claire and did not
             let Father care for the children.

      The parties presented extensive and contradictory evidence regarding

Mother’s allowing the children to stay with third parties without notifying Father in

advance. Mother acknowledges that she had allowed the children to go on sleepovers

and day trips without notifying Father, but contends that “allowing a child to have

a sleepover and a daytrip is not competent evidence to find that [Mother]

willfully failed to comply with the first right of refusal requirement.” But Father

argues on appeal that Mother did not testify she was at home during the sleepover



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                                     Opinion of the Court



with Ms. St. Claire; in other words, Mother was using the sleepover as a method of

childcare. The trial court considered and weighed the evidence; we cannot re-weigh

it. Mother does not deny that the children had a sleepover and her intent in allowing

that could be interpreted in different ways. Because there was sufficient evidence for

the trial court’s findings regarding the right of first refusal, they “are conclusive on

appeal[.]” Id. at 64, 652 S.E.2d at 317.

       3.     Registration in Camp without Consulting Father

       The Consent Order contains a provision that the parties “cannot make plans

or schedule activities for the children during the other parent’s designated time

without the prior consent of the other parent.” Regarding Mother registering the

children at camp without consulting Father, Mother argues these findings of fact are

not supported by the evidence:

                    13.   Mother registered the children for camp
              without consulting with Father first.

                     ....

                    15.    No option was given to Father to make-up the
              days that he missed.2

Mother does not contest finding of fact 14 which found that her decision to enroll the

children in camp “resulted in Father not seeing the children for 18 – 21 days.”

       Mother’s entire argument on the challenged findings regarding camp is that


       2The order mistakenly includes two findings of fact numbered as 15. Based upon Mother’s
argument, this is the finding of fact 15 she challenges.

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                                  Opinion of the Court



“Father testified that ‘[w]e talked about camps’ in April 2015.   T. Vol. 2, pp. 168.

The trial court erred in holding [Mother] in civil contempt when [Father’s] testimony

was that they did talk about camps in April 2015.” Father correctly points out there

was much testimony regarding the children’s camps and the parties’ communications

about them. Father did say the phrase quoted by Mother—“[w]e talked about camps”

-- but talking about camps in general is very different than notification of specific

camps and the time periods for them. The trial court again weighed the evidence,

determined credibility, and made findings based upon the evidence.

      4.     Mr. Kolczak’s Presence at Mother’s Residence

      The TPA order specifically ordered that Mr. “Kolczak shall not be at Mother’s

residence at any time when the minor children are present.”       Mother challenges

these findings about Mr. Kolczak’s presence in violation of the TPA order:

                   16.   On or about August 21, 2015, Dayton Kolczak
             was in the driveway of Mother’s home while the children
             were present despite the Order stating he was not to be at
             the home.

                   ....

                    46.  Despite Mother’s agreement with Father that
             Mr. Kolczak would not have contact with the children, the
             children have been exposed to Mr. Kolczak and Mr.
             Kolczak has had contact with the children.

      Mother argues that the evidence shows Father

             drove the children to [Mother’s] home as [Mr. Kolczak] was
             leaving the home and was in the driveway. T. Vol. 2, pp.


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                                   Opinion of the Court



             96. [Mother] had no control over when [Father] was
             bringing the children to her home. The children were
             never present at the residence when [Mr. Kolczak] was
             present, in fact according to [Father] they were in his
             vehicle the entire time that as [Mr. Kolczak] was
             leaving. T. Vol. 2, pp. 96.

But Mother herself testified:

                    Q:     And can you please describe for the Court
             your recollection of that day when [Mr. Kolczak] was there?

                    A:      Yes.
                            He was heading out for work, [Father] had
             texted me that he was on the way with the boys and [Mr.
             Kolczak] left the house, but forgot his eyeglasses and ran
             in to get 'em.
                            He was walking out the door when [Father]
             pulled up. So he stayed around the back and then came
             out the front.

(Emphasis added.)

      Once again, Mother asks us to make a different interpretation of the evidence

than the trial court. Based on Mother’s own testimony, Mother knew that Father

would arrive at any moment but did not ensure that her husband was away from the

home before Father and the children arrived. The trial court could have found this

incident to be an innocent lapse or it could find otherwise, as it did. Furthermore, the

trial court was viewing this isolated incident in the context of criminal activity by

both Mother and her husband as there were other findings regarding Mr. Kolczak not

challenged on appeal:

                    40.    Mr. Kolczak has a criminal history and past


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            as well as run-ins with the police for the past year.

                  41.   Mr. Kolczak is associated with Jalen O'Shea
            Cureton (herein after “Mr. Cureton”).

                  42.   Mr. Cureton has been arrested and charged
            with a financial crime as a result of Father’s financial
            information being stolen and/or utilized.

                   43.   Currently, Mr. Kolczak is incarcerated upon
            information and belief in the State of Illinois for various
            felony offenses but the Court finds he has been arrested on
            various dates which the Court will not enumerate. In
            January 2014, Mr. Kolczak as well as Mother were
            arrested and charged with an offense. Father bailed
            Mother out of jail after Mother was arrested.

                   44.    Father and Mother reached an agreement
            that the children would have no contact with Mr. Kolczak.

                   45.   Mother’s criminal charges were dismissed
            after she completed court-ordered directives.

                    ....

                  47.    Mr. Kolczak’s companions, including his
            brother, Dustin Ko1czak, and his friend, Matthew Roe,
            have had contact with the children.

                  48. Dustin Kolczak as well as Matthew Roe also have
            criminal records.

There was competent evidence upon which the trial court could find Mother allowed

Mr. Kolczak to be present at the home when the children arrived.

B.    Willfulness




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                                   Opinion of the Court



      The remaining challenged findings of fact are regarding willfulness and

Mother’s ability to comply with the Contempt Order and TPA order. Mother argues

that any violations of the Content Order and TPA order were misunderstandings or

simply out of her control.

                    Civil contempt is designed to coerce compliance with
             a court order, and a party’s ability to satisfy that order is
             essential. Because civil contempt is based on a willful
             violation of a lawful court order, a person does not act
             willfully if compliance is out of his or her power.
             Willfulness constitutes: (1) an ability to comply with the
             court order; and (2) a deliberate and intentional failure to
             do so. Ability to comply has been interpreted as not only
             the present means to comply, but also the ability to take
             reasonable measures to comply.

Id. at 66, 652 S.E.2d at 318 (2007) (citations and quotation marks omitted).

      We have determined the findings of fact upon which the trial court found

Mother in willful contempt are supported by the evidence. Once again, Mother is

asking this Court to adopt a different view of her credibility and actions than the

district court, but the district court was within its discretion in determining Mother’s

actions to be in willful violation of the orders in that Mother had the ability to comply

and intentionally chose not to do so. See generally id. This argument is overruled.

C.    Purge Conditions

      Mother argues that the “Civil Contempt Order should be vacated since the

court failed to specify how [she] might purge herself of contempt.” Although the order

specifically concluded that Mother “is in civil contempt of Court” for the violations of


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                                         Opinion of the Court



the two orders, Mother is correct that the order has no purge conditions or

punishment for the contempt3. Father agrees with Mother that the order is deficient

since it has no purge conditions, but he disagrees on the relief. Father argues we

should remand to the trial court for entry of purge conditions and cites Lueallen v.

Lueallen, ___ N.C. App. ___, ___,790 S.E.2d 690, 708 (2016). But in Lueallen, the

contempt was failure to pay child support, and the order had required the obligor to

pay “an additional $75.00 per month” to be applied to arrears, where the order had

also required her to pay $100.00 per month toward arrears, and the order set no

ending date for the arrears payments. Id. at ___ n.9, 790 S.E.2d at 707 n.9. We

determined “that the purge conditions in the order are impermissibly vague” and

remanded for clarification. Id. at ___, 790 S.E.2d at 708-09. In Lueallen, the trial

court had determined that the obligor owed past-due child support and the question

was simply the correct amount and how that amount would be paid. See generally

id., ___ N.C. App. ___, 790 S.E.2d at 690.

       But in this case, the contempt is primarily based upon communication and

visitation provisions of the orders, not child support. It is not apparent from the order

how an appropriate civil contempt purge condition could “coerce the defendant to

comply with a court order” as opposed to punishing her for a past violation. Wellons


       3  Although Father specifically asked for Mother to be held in civil contempt, not criminal, and
the trial court found Mother in civil contempt, this situation may be better suited for criminal
contempt. But neither party has addressed the possibility of criminal contempt, and we will not
address this potential issue.

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                                   Opinion of the Court



v. White, 229 N.C. App. 164, 181, 748 S.E.2d 709, 722 (2013). And here the trial court

did not order vague purge conditions; it ordered none at all.

      We believe this case is more similar to Wellons than Lueallen.           Compare

Lueallen, ___ N.C. App. ___,790 S.E.2d 690; Wellons, 229 N.C. App. 164, 748 S.E.2d

709. In Wellons, the Court addressed a father’s denial of the grandparent’s visitation

privileges established by a prior order. See Wellons, 229 N.C. App. at 165, 748 S.E.2d

at 711. In Wellons, the trial court held the father in civil contempt for denial of

visitation and ordered that he comply with the terms of the prior orders as a purge

condition, but this Court reversed the contempt order:

                    In the instant case, the district court erred by failing
             to provide Mr. White a method to purge his contempt.
                    On 5 July 2012, the district court declared Mr. White
             to be in direct and wilful [sic] civil contempt of the prior
             Orders of the Court. It suspended Mr. White’s arrest based
             on the following condition: Defendant can purge his
             contempt by fully complying with the terms of the 30
             March 2012 Interim Order, the prior Orders of 28
             December 2007 and 27 July 2010, and this Order. The
             order did not establish a date after which Mr. White’s
             contempt was purged or provide any other means for Mr.
             White to purge the contempt.
                    We have previously reversed similar contempt
             orders. For instance, in Cox a contempt order stated the
             defendant could purge her contempt by not:
                    placing either of the minor children in a
                    stressful situation or a situation detrimental
                    to their welfare. Specifically, the defendant is
                    ordered not to punish either of the minor
                    children in any manner that is stressful,
                    abusive, or detrimental to that child.
             There, we reversed because the trial court failed to clearly


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            specify what the defendant can and cannot do to the minor
            children in order to purge herself of the civil contempt.
                    Similarly, in Scott a contempt order stated:
                    Defendant may postpone his imprisonment
                    indefinitely by (1) enrolling in a Controlled
                    Anger Program approved by this Court on or
                    before August 1, 2001 and thereafter
                    successfully completing the Program; (2) by
                    not interfering with the Plaintiff’s custody of
                    the minor children and (3) by not threatening,
                    abusing, harassing or interfering with the
                    Plaintiff or the Plaintiff's custody of the minor
                    children.
            There, although we indicated the requirement to attend a
            Controlled Anger Program may comport with the ability of
            civil [violators] to purge themselves, we reversed because
            the other two requirements were impermissibly vague.
                    In the case at hand, the district court did not clearly
            specify what Mr. White can and cannot do to purge himself
            of contempt. Although the district court referenced
            previous orders containing specific provisions, it did not: (i)
            establish when Mr. White’s compliance purged his
            contempt; or (ii) provide any other method for Mr. White to
            purge his contempt. We will not allow the district court to
            hold Mr. White indefinitely in contempt. Consequently, we
            reverse the portion of the 5 July 2012 order holding Mr.
            White in civil contempt.

Id. at 182–83, 748 S.E.2d 709, 722–23 (2013) (citations, quotation marks, ellipses,

and brackets omitted).    We therefore reverse the conclusion of law and decree

provision holding Mother in civil contempt, specifically conclusion of law 4 and

paragraph 1 of the decree.

                             III.    Modification of Custody

      Mother raises two issues regarding the modification of custody.



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A.     Hearsay Evidence

       Mother contends the trial court erred in modifying custody because some of the

critical findings of fact supporting modification were erroneously based upon hearsay.

Mother argues that during the hearing, Father’s counsel introduced evidence from

online searches and a newspaper article regarding Mr. Kolczak’s criminal record and

activities. Mother contends she objected to the evidence, but the trial court overruled

the objection and thus “erred relying on hearsay as a basis to change custody.”

(Original in all caps.).

                     The competency, admissibility, and sufficiency of the
              evidence is a matter for the trial court to determine. We
              review the trial court’s exclusion of documentary evidence
              under the hearsay rule for abuse of discretion. A trial court
              may be reversed for abuse of discretion only upon a
              showing that its ruling was manifestly unsupported by
              reason and could not have been the result of a reasoned
              decision.

In re Lucks, 369 N.C. 222, 228, 794 S.E.2d 501, 506 (2016) (citations and quotation

marks omitted).

       Mother’s husband, his criminal activities, and the risk to the children from

exposure to him and his associates were primary concerns in this hearing, since the

motion for modification was based in part upon Mother’s failure to comply with the

prior orders which required her not to have the children in Mr. Kolczak’s presence.

Father was not the only one to testify about Mr. Kolczak’s crimes. For example, the

first witness was Detective Kevin Jones, in the Financial Crimes Unit of the


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Charlotte/Mecklenburg Police Department.            Detective Jones testified about his

investigation of Father’s report of “credit card accounts being opened or account

takeovers as we call them, where his existing accounts had been compromised.” This

investigation revealed a connection between a man identified as Mr. Kolczak and Mr.

Jaylin Curatan, the individual making purchases at a Best Buy store with Father’s

Best Buy account. Detective Jones discovered the relationship between Mr. Kolczak

and Mr. Curatan because “Mr. Kolczak was actually arrested on September 1st, 2015,

and Mr. Curatan was with him at the time.”

         In the TPA order, the district court found that Mr. Kolczak had been “arrested

on May 15, 2015 for (1) felony possession of Schedule I Controlled Substance; (2)

felony     possession    of   cocaine;   (3)    resisting   public   officer;   and   (4)

possession/manufacturing false identification.” The district court further found in

the TPA order that “[i]n addition to these arrests, Mr. Kolczak was arrested in

Cabarrus County in August 2014, in Wake County in January 2015 and Dalton,

Georgia in April 2015.” Thus, even assuming arguendo the specific evidence Mother

challenges regarding her husband’s criminal activity was hearsay, it was not

prejudicial considering the extensive other similar evidence before the trial court. See

Williams v. Williams, 91 N.C. App. 469, 473, 372 S.E.2d 310, 312 (1988) (“While we

agree that the testimony has characteristics of hearsay under the North Carolina

Rules of Evidence, we hold that its admission was not prejudicial. The admission of



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incompetent testimony will not be held prejudicial when its import is abundantly

established by other competent testimony, or the testimony is merely cumulative or

corroborative. Because both plaintiff and defendant presented a considerable amount

of conflicting evidence regarding the alleged sexual abuse, we conclude that the

admission of this testimony was not prejudicial.” (citations and quotation marks

omitted)). This argument is overruled.

B.    Modification of Custody

      Mother next contends the “trial court erred in modifying custody without

finding a change in circumstances.” (Original in all caps.) In her brief Mother

contends that if we “exclude” the findings of fact regarding her husband’s criminal

history, there are no findings of fact regarding a change of circumstances as required

for a modification of custody because “remarriage alone is not a change of

circumstances.” Mother argues “the trial court failed to articulate any substantial

change in circumstances since entry of the original orders” and how any changes

affect the welfare of the children.

      Father’s brief seems to recognize that the order included no explicit conclusion

of a substantial change in circumstances affecting the best interests of the children.

Father argues “[f]indings of fact numbers 86 through 89 are, despite their label,

actually conclusions of law in that the trial court exercised its judgment and/or

applied legal principles to the specific facts of the immediate case.” These findings



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provide:

                   86.    Mother is not able to sever[] ties with Mr.
             Kolczak.

                   87.   It is necessary to ensure the children’s safety
             to award Father primary custody.

                  88.    Father is entitled to a modification of the
             January 6, 2014 Consent Order.

                    89.    Father is a fit and proper person to have the
             care, custody and control of the minor children and it is in
             the best interests of the minor children for Father to have
             their care, custody and control.

      Findings 86 and 87 are findings of fact, not conclusions of law, but Findings 88

and 89 are conclusions of law. “The labels ‘findings of fact’ and ‘conclusions of law’

employed by the trial court in a written order do not determine the nature of our

review.” Westmoreland v. High Point Healthcare Inc., 218 N.C. App. 76, 79, 721

S.E.2d 712, 716 (2012).

      A trial court’s determination that there has been a substantial change of

circumstances affecting the best interest of the children is a conclusion of law:

             With regard to the trial court’s conclusions of law, our case
             law indicates that the trial court must determine whether
             there has been a substantial change in circumstances and
             whether that change affected the minor child. Upon
             concluding that such a change affects the child’s welfare,
             the trial court must then decide whether a modification of
             custody was in the child’s best interests. If we determine
             that the trial court has properly concluded that the facts
             show that a substantial change of circumstances has
             affected the welfare of the minor child and that


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                                   Opinion of the Court



              modification was in the child’s best interests, we will defer
              to the trial court’s judgment and not disturb its decision to
              modify an existing custody agreement.

Shipman v. Shipman, 357 N.C. 471, 475, 586 S.E.2d 250, 254 (2003). Furthermore,

“[w]e review conclusions of law de novo.” In re B.S.O., 234 N.C. App. 706, 708, 760

S.E.2d 59, 62 (2014).

       We have already determined that the findings of fact Mother challenged above,

including those regarding Mr. Kolczak’s criminal history, are supported by competent

evidence, so we must now consider if those findings support the trial court’s conclusion

of law that “Father is entitled to a modification of the” prior order. See generally

Shipman, 357 N.C. at 475, 586 S.E.2d at 254. Mother is correct that the order includes

no specific conclusion of law – whether phrased as a finding of fact or as a conclusion

of law – that there had been a substantial change of circumstances affecting the

welfare of the children which justifies modification of custody. But finding 88 is a

conclusion that “Father is entitled to a modification” of custody, and Father could only

be “entitled” if the trial court concluded there has been a substantial change of

circumstances affecting the welfare of the children. See generally id. Mother does not

argue finding 88 could logically have any other meaning.

      In the extensive findings of fact, the trial court detailed the substantial changes

since entry of the Consent Order, including the effect these changes had on the

children’s welfare.     Along with many of the findings we have already discussed



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                                  Opinion of the Court



regarding the contempt portion of the order, the order then addressed Mother’s

marriage to Mr. Kolczak within the same month as the Consent Order. The findings

went on to note Mr. Kolczak’s criminal history and “run-ins with the police for the

past year.” The order notes that some of his criminal associates, Mr. Cureton, Mr.

Roe, and his brother Dustin, also had criminal records, and the children were exposed

to them as well. The district court found specifically that at the time of the hearing

“Mr. Kolczak is incarcerated upon information and belief in the State of Illinois for

various felony offenses[.]” The district court then noted Mr. Kolczak had “various”

other arrests, including one in January where both he and Mother were arrested, and

Father bailed Mother out of jail. The district court then noted that Mother and

Father had agreed that the children would have no contact with Mr. Kolczak, but Mr.

Kolczak had contact with the children despite that agreement.

    The district court also made findings about both parents’ participation in the

children’s educational, spiritual, and medical needs, noting that both parents had

been involved. The district court also found that outside of the contempt issues, the

parents worked “well together[,]” although sometimes Father’s text messages were

“condescending and critical[,]” and Mother failed to keep Father as well-informed as

she should. The district court found that Mother and Mr. Kolczak had signed a

Separation Agreement in December 2015, but Mother still remained in contact with

him while incarcerated; mother had taken the children to see Mr. Kolczak’s



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                                   Opinion of the Court



grandmother; and though Mother had adequate warning and opportunity to ensure

her children were not around Mr. Kolczak, she had not done so.

     It is apparent from the findings of fact that the trial court determined that

Mother’s marriage to a convicted felon, the arrest of Mother and Mr. Kolczak in the

home when the children were present, exposure to Mr. Kolczak and his criminal

associates, Mother’s refusal to ensure that Mr. Kolczak had no contact with the

children, and Mother’s continuing relationship with him, despite claiming to be

separated, were substantial changes since entry of the Consent Order. The criminal

activity endangered the children. At the time of entry of the Consent Order, Mother

had not informed Father she planned to marry Mr. Kolczak, had not been arrested,

and had never violated an order regarding custody or visitation.

     Mothers seeks to compare this case to Davis v. Davis, but in that case, “the trial

court did not conclude that there was a substantial change in circumstances, let alone

that those changes affected the welfare of the children. Actually, the trial court found

just the opposite as to defendant’s motion and was silent as to plaintiff's motion.” 229

N.C. App. 494, 504, 748 S.E.2d 594, 601–02 (2013). Nor did the Davis findings of fact

make the reason for the modification “self-evident” but rather noted the issue for

concern arose from an “isolated incident.” Id. at 504, 748 S.E.2d at 602.

     This case is more similar to those where the order was affirmed because it found

facts which show the substantial change of circumstances and how that change has



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                                          Opinion of the Court



affected the children, even though the order did not use exactly the right phrases.

See, e.g., Carlton v. Carlton, 145 N.C. App. 252, 549 S.E.2d 916, rev’d per curiam, 354

N.C. 561, 557 S.E.2d 529 (2001). In Carlton, our Supreme Court reversed based upon

the dissent. See Carlton, 354 N.C. 561, 557 S.E.2d 529. In Carlton, the trial court

had awarded the father primary custody after it modified a joint custody order with

of alternating weeks with each parent after the mother had absconded with the child

for about two months, and the father had moved to Hawaii. See Carlton, 145 N.C.

App. at 252-54, 549 S.E.2d at 917-18. The trial court did not specifically conclude

there had been a substantial change in circumstances affecting welfare of the minor

child, and the majority of this Court vacated and remanded the case to the trial court

based upon the lack of the specific conclusion of law of a substantial “change of

circumstances affecting the well-being” of the child. Id. at 259-60, 549 S.E.2d at 921-

22.4 The dissenting judge, with whom the Supreme Court agreed, see Carlton, 354

N.C. 561, 557 S.E.2d 529, would have affirmed the order, since the extensive and

detailed findings clarified the reasons for the change and the effect upon the child,




4 The concurring judge pointed out the obvious change created by the father’s move to Hawaii: “The
majority correctly states that a mere change in residency is not enough to constitute a substantial
change of circumstances. However, on these facts I believe that the defendant has shown more than a
mere change in residency. The record reveals that the trial court's original order called for the child to
alternate her residence between parents at the end of every week. The court later altered this
arrangement to every two weeks. However, even the most well-to-do individuals could not sustain this
arrangement given that the defendant’s new residence is more than 4,000 miles from Catawba County,
North Carolina. The travel expenses alone for a transcontinental transfer every two weeks would be
beyond the means of most people. This case presents a situation where the original order is not
functional.” Carlton, 145 N.C. App. at 260-61, 549 S.E.2d at 922 (Eagles, Chief J., concurring).

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                                  Opinion of the Court



stating that “I decline to read the order appealed from so narrowly as to disregard

the incorporated findings, or to constrain the trial court to use certain and specific

‘buzz’ words or phrases beyond that included in the order.” Id. at 261-63, 549 S.E.2d

at 924 (Tyson, J., dissenting). The Supreme Court did not find it necessary to remand

to the trial court for additional findings or conclusions of law but agreed with the

dissent that the basis for the modification of custody was clear from the detailed

findings of fact. See Carlton, 354 N.C. 561, 557 S.E.2d 529.

    While Mother is correct in her argument that “remarriage alone” is not

necessarily a change of circumstances supporting a modification of custody,

remarriage can be an important factor supporting a justification for modification.

Here, the district court did not modify custody based on “remarriage alone” but on

the fact that the remarriage was to a convicted felon who brought criminal activity

and criminal associates into Mother’s home and into the presence of the children.

Mother’s marriage to Mr. Kolczak caused substantial negative changes to the lives of

the children, including Mother’s arrest and exposure to criminals which resulted in a

court order for no contact with Mr. Kolczak that Mother violated. Therefore, we

conclude the trial court did not err in concluding that Father was entitled to

modification of the custody order. This argument is overruled.

                  IV.    Attorney Fees for Modification of Custody

      Mother’s last argument is that “the court erred in awarding attorney fees.” We



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                                   Opinion of the Court



first note that the order on appeal set forth two separate sections of findings of fact

for attorney fees, one for the contempt motions and one for the modification of

custody. Mother does not challenge any of the findings of fact related to the fees for

the contempt motions. Mother limits her argument regarding the award of attorney

fees to the fees for modification of custody motion only.       For example, Mother

challenges only one finding of fact, No. 91, in the section for fees for modification of

custody which states, “Father is acting in good faith in bringing this Motion. Father

does have some means to defray the cost of his legal expenses but it does not appear

that he has the ability to defray all of the costs considering the care and provisions

made for the children.” Mother also challenges only one paragraph of the decree, No.

21, which addresses specifically attorney fees for the motion for modification of

custody. Therefore, we conclude Mother has not challenged the attorney fees in

relation to the contempt motion so we will not address that award of fees.

      Mother’s only substantive argument regarding the award of attorney fees is

that the district court erred in awarding attorney fees because Father’s motion for

modification of custody “failed to allege that he has insufficient means to defray his

expense of the suit.” Father’s motion requested that “Mother be ordered to pay

Father’s costs and fees, including reasonable attorney’s fees” in its prayer for relief.

Mother first objected to an award of attorney fees based upon the lack of detail in the

motion to modify custody during the portion of the hearing held on 2 August 2016.



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                                   Opinion of the Court



Mother did not cite to the trial court any case requiring specificity in a motion for

attorney fees nor does she cite such a case on appeal. Father argued to the trial court

that Mother had waived her objection to the sufficiency of the request for attorney

fees since she had not raised it earlier:

                     There was in-depth testimony in March about this
              issue. We put on all the evidence about his inability to pay.
              That he was acting in good faith.
                     Ms. Moen did not object then. All we’re doing is
              filing a Supplemental Affidavit . . . . and the evidence has
              been presented.

The district court overruled Mother’s objection because she failed to object to the

attorney fees based upon lack of specificity in the motion earlier in the hearing.

      In Byrd v. Byrd, the plaintiff argued that the trial court erred by awarding

attorney fees to the defendant in a child support case because the “defendant’s

Answer and Counterclaim does not make the required allegations or pray for the

appropriate relief[.]” 62 N.C. App. 438, 442-43, 303 S.E.2d 205, 209 (1983). But the

defendant had offered evidence on attorney fees at the hearing, and thus this Court

determined,

              [W]hen issues not raised in the pleadings are tried by the
              express or implied consent of the parties, North Carolina
              allows for the pleadings to be amended to conform to the
              evidence. Where a party offers evidence at trial which
              introduces a new issue and there is no objection by the
              opposing party, the opposing party is viewed as having
              consented to the admission of the evidence and the
              pleadings are deemed amended to include the new issue.
                    Here, the required allegations and pleadings were


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                                   Opinion of the Court



             not made in defendant’s answer and counterclaim.
             However, it was found from the evidence at the hearing
             that the defendant was acting in good faith, that she had
             insufficient means to defray the expense of the suit and
             that plaintiff had refused a request to furnish adequate
             support at the time the action was instituted. These
             findings are supported by evidence in the record which was
             introduced at the hearing without objection by plaintiff.
             Since plaintiff did not object to the admission of this
             evidence, the pleadings are deemed to be amended to
             conform to the evidence and the trial court’s award of
             attorney’s fees was therefore proper.

Id. (citations omitted).

      This case differs from Byrd because Father did ask for attorney fees, contrast

id., although without specificity in the pleading. Here, also different, Mother did

object, but her objection came late in the hearing.       Father testified regarding his

request for attorney fees and submitted his first attorney fee affidavit on 29 March

2016. Mother did not raise her objection until 2 August 2016, the third day of the

hearing, when Husband was submitting a supplemental attorney fee affidavit. We

express no opinion on whether Husband’s motion for attorney fees was required to be

more detailed since we need not reach that issue, but Mother waived any objection to

the sufficiency of Father’s motion requesting attorney fees by failing to object earlier.

See generally id.

                                      V.       Conclusion

      We affirm the order for modification of custody and the award of attorney fees

for modification of custody. We also affirm the award of attorney fees for contempt


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                                   Opinion of the Court



because Mother did not challenge this portion of the award of attorney fees on appeal.

We affirm the findings of fact regarding Mother’s willful violations of the prior orders,

but because the trial court did not set any purge conditions, we reverse the trial

court’s determination of civil contempt, specifically conclusion of law 4 and paragraph

1 of the decree.

      AFFIRMED in part, REVERSED in part.

      Judge HUNTER concurs.

      Judge TYSON concurs in the result only.




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