Riggan v. Andrews

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-649

Filed 7 May 2025

Wake County, No. 20CVD000936-910

RICHARD RIGGAN, JR., Plaintiff,

v.

CHELSEA ANDREWS, Defendant.

Appeal by Mother from order entered 11 December 2023 by Judge Julie L. Bell

in Wake County District Court. Heard in the Court of Appeals 13 February 2025.

No brief filed on behalf of Richard T. Riggan, Jr., pro se plaintiff-appellee.

Law Offices of Stephanie J. Brown, by Stephanie J. Brown, for defendant-

appellant.

ARROWOOD, Judge.

Chelsea Andrews (“Mother”) appeals from an order entered 11 December 2023

denying her motion to appoint a parenting coordinator and granting Richard Riggan’s

(“Father”) motion for sanctions against Mother. For the following reasons, we vacate

and remand to the trial court for actions consistent with this opinion.

I. Background

Father and Mother were never married but have one child (“T.R.”) together,

born on 27 March 2015. On 21 January 2020, Father filed a complaint for custody in

Wake County. He alleged that the parties had previously entered into a parenting

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agreement, which provided for Father to have visitation rights every other weekend.

On 28 February 2020, Mother filed her Answer and Counterclaim for child support.

On 1 May 2020, Father filed an emergency custody motion for T.R. That same day,

a hearing regarding child custody took place in which the parties resolved their

dispute and a temporary order was entered where Father received visitation with

T.R. every weekend until a subsequent hearing for permanent custody could take

place.1

The hearing on a permanent custody order was to take place on 20 July 2020,

however, the hearing was continued because Father had not received timely discovery

from Mother. Although the hearing was postponed through an order for continuance,

there was no extension of the visitation agreement agreed upon on 1 May 2020. On

13 August 2020, the trial court entered a Consent Order for temporary custody order

in which both Mother and Father had temporary legal custody of T.R. and Mother

had temporary physical custody of T.R. Father received visitation with T.R. every

other weekend. The parties were ordered to exchange the child for visitation at

Triangle Town Center. On 7 October 2020, a Consent Order Modifying Temporary

Custody Order was entered adding more detailed provisions to allow Father to call or

video-chat T.R. every Monday, Wednesday, and Friday and modified the pick-up time

and location for exchange of the child for Father’s visitation weekends with T.R.

1 The motion for emergency custody and temporary order are not in our record but were referenced in

the Consent Order for Temporary Child Custody.

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On 2 September 2021, the trial court entered a Permanent Order Child

Custody and Child Support (Permanent Custody Order) by consent of the parties.2

The parties waived findings of fact and conclusions of law. The Permanent Custody

Order awarded Mother sole legal and physical custody of T.R., but did allow for the

parties to “mutually consent” to a liberal visitation schedule for Father. Father and

Mother were to only communicate in writing, via email or text-message. This order

provided that “neither party is seeking child support from the order” and did not

award child support but did require the parties each to pay half of the child’s

uninsured medical expenses.

On 4 and 5 January 2023, the trial court held a hearing on “Review of Custody

from the November 18th hearing” and entered an “Order Regarding Custody” on

17 March 2023.3 The Order Regarding Custody does not mention a motion to modify

a prior order or any change of circumstances but includes findings about events

extending back to 2016, before the parties began living separately. In this order, after

making several findings regarding the initial temporary custody orders, the trial

court found as follows:

11. Ultimately when Father was pro se and Mother had

counsel the parties entered into a Permanent Order for

2 The parties signed this Order on 27 July 2021 but the trial court signed it on 1 September 2021 and

it was filed the next day.

3 Our record does not include any motion for modification of child custody and there is no document

indicating why the trial court was holding a hearing regarding custody on 18 November, apparently

in 2022, although the Order does not mention the year. Therefore, we do not know what happened to

cause the trial court to “review” custody in 2023, and the findings of fact in the order do not mention

any dates of the events noted after 2019.

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Child Custody and Child Support.4 Said Order provided

that Mother had sole legal custody of the minor child and

sole physical custody of the minor child, but the parties

may mutually consent to liberal visitation for Father

pursuant to a schedule to be determined by the parties.

12. Currently there is an Order that grants Mother custody

of the minor child and Father telephone calls until this

hearing on the merits could take place.

13. Mother testified that Father abused her in 2016, 2017,

2018 and 2019 when they were together.

14. Mother has allowed Father to have unsupervised

visitation with the minor child in the past.

15. Mother does not believe that Tanner should have a

relationship with his dad.

16. Mother testified that she is concerned that her son will

grow up to be like his father.

17. Mother has told Father that she does not want him to

be around the minor child, and that she has someone who

can fill his shoes.

18. Mother would like her current boyfriend to be able to

adopt Tanner and has asked Father to sign over his rights.

19. Mother initially denied she wanted her current

boyfriend to adopt Tanner but ultimately admitted she lied

under oath.

20. Mother has told Father he will not see the minor child.

21. Besides Mother, Father has also engaged in domestic

violence with his wife.

4 This finding refers to the Permanent Custody Order entered in September 2021. Both parties were

represented by counsel when the first custody orders were entered, specifically the Consent Order for

Temporary Child Custody in August 2020 and the Consent Order Modifying Temporary Child Custody

in October 2020.

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22. On an occasion when Father was angry with Mrs.

Riggan and his stepdaughter he threated to flattened (sic)

the step daughter’s tires on her car.

23. Later three out of four of the stepdaughter’s tires on her

car flattened.

24. Father has told his wife that “a restraining order would

not stop him”.

25. Father threatened to kill his wife and said he would set

her parents’ trailer on fire.

26. Father has completed the Dose program and says he

learned a lot including how to walk away when he is angry.

27. Father has called women the B-word while Tanner is

present.

28. Father has argued and hit Mother while Tanner was

present.

29. No evidence was presented about Father ever hitting

the minor child.

30. Father has expressed racist views regarding

teammates of the minor child.

31. The parties are capable of complying with the Court's

Order.

32. The parties are fit and proper persons to have the

custodial roles contained herein.

33. The parties do not communicate well and have not

shown the ability to co-parent together.

The trial court granted Mother sole legal and primary physical custody of the

child and granted Father visitation every other weekend starting on 19 May 2023,

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from Friday after school until Sunday at 3:00 p.m., with custodial exchanges to occur

either at school or at Time Together, a supervised visitation facility. Because “the

minor child has not seen Father for a substantial period of time,” his visitation was

phased in with a series of four visits of three hours each, starting on 25 March 2023.

The Order allowed each party telephone contact with the child for at least 10-15

minutes once a week if the child was in the care of the other for at least seven days,

with the time to be agreed by use of Our Family Wizard or at 7:30 p.m. on Wednesdays

if the parties did not agree. The parties were to use Our Family Wizard to

communicate and inform the other of the child’s extracurricular activities.

On 16 June 2023, Mother filed a motion to appoint a parenting coordinator. In

her motion, Mother alleged that the parties “are in a high conflict case and continue

to have ongoing disputes since the entry of the Permanent Custody Order on this

matter. The Father has filed numerous Motion’s (sic) for Contempt and Mother

wishes to reciprocate with her own Motion’s (sic) due to the ongoing conflicts.”5 She

also alleged that “without the appointment of a Parenting Coordinator, the parties

will remain in conflict and will continue to use the court’s limited resources and time

to address pending issues. She alleged that “a parenting coordinator would be able

5 We note that our record does not include any motions filed by Father to hold Mother in contempt

before the Motion for appointment of Parenting Coordinator, but Father’s motion for Sanctions alleges

that he had “filed 3 Motions for an Order to Show cause since the entry of the parties’ March 28, 2023

Order regarding custody” and an Order to show cause had been issued for each one. Father testified

that he had filed contempt motions against Mother at least three times before her motion for parenting

coordinator was filed, on 25 April 2023, 17 May 2023, and 12 June 2023.

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to diffuse (sic) issues between the parties and without one, the parties would not be

able to move forward in any positive way without involving the court.

In response, on 20 July 2023, Father filed a motion for sanctions and attorney’s

fees, alleging that Mother made her motion for a parenting coordinator in retaliation

against Father and in bad faith. Father also made allegations about Mother’s

counsel’s communications with him to find out if he would consent or object to the

appointment of a parenting coordinator before filing the motion. He objected, but

Mother then sent in a calendar request for the hearing “without consulting with

[Father’s] counsel regarding the date requested” but Mother’s counsel had failed to

note on the request that Plaintiff’s counsel objected to the date requested. Father’s

motion also alleged that

10. In Defendant’s Motion for a Parenting Coordinator,

Defendant indicated that she was only filing her motion as

retaliation for Plaintiff's Show Cause Motions against her.

11. Defendant’s Motion was made in bad faith.

12. Furthermore, the “pending issues” as stated in the

Defendant’s Motion are solely linked to the Defendant’s

continual violations of the Court’s Permanent Custody

Order . . . .

13. That upon information and belief, Defendant’s motion

is nothing more than an attempt to stop Plaintiff from

exercising visitation with his son and an excuse for

continuing to violate this Court’s Custody Order.

He further alleged Mother had failed “to comply with the rules” and that her

failure had caused him to incur attorney’s fees and other costs. He requested that

the court deny Mother’s motion for parenting coordinator, sanction Mother “and/or

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her attorney for intentionally deceiving the Court” and for “willfully falsifying

information on the Calendar Request.” Father then filed another motion for contempt

on 11 August 2023 against Mother, alleging Mother interfered with Father’s

scheduled visitation, interrupted Father’s scheduled phone call with T.R., and

deprived Father of his custodial time with T.R.

Between 11 August 2023 and 20 October 2023, Father filed three motions for

an order to show cause for why Mother should not be held in contempt for not

complying with the custody order. In these motions, Father specifically alleged that

Mother was interfering with Father’s scheduled visitation with T.R. and interfering

with his ability to communicate with T.R. During this same time period, on

28 September 2023, Father also filed a “motion to disqualify” Mother’s counsel,

alleging that he had “initiated a bar complaint against” Mother’s counsel and that

Mother’s counsel had “offered to represent people who have claims against Father for

reduced or discounted prices as retaliation for Father’s filing a bar complaint against

him.”6

On 1 December 2023, Father filed a motion to modify the custody order,

arguing that there was a substantial change in circumstances between the parties.

Father specifically alleged that he had only seen the child two out of the sixteen

scheduled visits due to Mother’s interference and Mother had also interfered with

6 Our record does not show any court ruling on this motion, but Mother’s counsel continued to represent

her at the hearing in December 2023. Mother is represented by different counsel on appeal.

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Father’s calls with T.R.

On 11 December 2023, the trial court held a hearing on Mother’s motion to

appoint a parenting coordinator and Father’s motion for sanctions; on the same day

the trial court entered an ordered titled “Order for Sanctions/Order Regarding Motion

for Appointment of Parenting Coordinator.” The trial court specifically made the

following findings of fact:

9. Mother put in her Motion for appointment of a parenting

coordinator “The Father has filed numerous Motions for

Contempt and Mother wishes to reciprocate with her own

Motion due to the ongoing conflict.”

10. The Court finds that the Motion for the Parenting

Coordinator was made for an improper purpose to

retaliate, rather than for the purpose of enabling the

parties to parent under the current custody order.

11. Although the Court finds that parenting coordinator’s

(sic) are able to assist in a lot of cases, the Court does not

believe it will assist in this case, due to the primary source

of conflict being the allegations of failure to follow the

Order.

12. If the Order of a Court is not sufficient to cause parties

to follow an Order, the Court fails to see how a directive of

a parenting coordinator would cause the parties to follow

an Order.

13. Mother has admitted that she picks up the minor child

from school, to prevent Father from exercising his custody.

14. Mother testified she did that because she doesn’t

believe the minor child desires to participate in custody

with Father.

15. Father testified that on the rare occasion he has been

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able to exercise custody, he and the minor child had fun.

16. Mother is aware that she has a duty to follow the Court

Order.

17. The Court finds that the Motion for Appointment of a

Parenting Coordinator was in fact done for the purpose it

stated in retaliation to Father’s Motions to Show Cause,

and not for a good faith purpose, and therefore the Court

believes Father should be sanctioned.

18. Mother incurred attorney’s fees defending the Motion

for Appointment of a Parenting Coordinator.

The trial court made conclusions of law regarding its jurisdiction and then concluded

that:

3. The Motion for Appointment of a Parenting Coordinator

was filed in retaliation in bad faith.

4. Any finding of fact that should be included as a

Conclusion of Law is incorporated herein as if set forth in

full.

The trial court then ordered:

1. That the Motion for Appointment of a Parenting

Coordinator is denied.

2. The Motion for Sanctions is granted.

3. It is Ordered that Mother pay Father $1969.44 within 30

days of entry of this Order as a Sanction for filing the

Motion for Parenting Coordinator in bad faith.

Following this order, the trial court also issued an order for civil contempt

against Mother on 18 December 2023, finding that Mother willfully violated the

custody order. To purge her contempt, Mother was ordered to drop the minor child

off at the Raleigh Police Department at noon on 25 December 2023 and 31 December

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so Father could visit with the child for 2 hours at a “close by location” and then return

him to the Raleigh Police Department to return to Mother.

Mother timely filed notice of appeal from the Order for Sanctions/Order

Regarding Motion for Appointment of Parenting Coordinator and the Contempt

Order on 9 January 2024.

II. Discussion

On appeal, Mother argues the trial court erred in: (1) denying her motion for

appointment of a parenting coordinator and (2) granting Father’s motion for

sanctions against Mother.7

A. Motion for Appointment of a Parenting Coordinator

Mother argues the trial court erred in denying her motion for appointment of

a parenting coordinator. Mother first argues the trial court failed to make findings

of fact required under N.C.G.S. § 50-91(b) in making its determination. Although we

reject Mother’s contention that N.C.G.S. §50-91(b) requires specific findings of fact in

an order denying appointment of a parenting coordinator, we note that an order of

any type must include sufficient findings of fact to allow appellate review and to

support a trial court’s conclusions of law and decree. See N.C.G.S. § 1A-1, 52. We

7 Mother did not raise any argument regarding the contempt order on appeal and stated in her brief

that “subsequent to the filing of the Notice of Appeal, the trial Court has issued an Order which would

render the appeal of that issue moot.” We also note that at the conclusion of the hearing on

18 December 2023, the trial court also rendered an order holding Father in contempt of the Custody

Order based upon Mother’s motion for contempt filed 28 July 2023 for failure to inform her that he

had moved to Wilmington.

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also note that the trial court did not make separate conclusions of law addressing the

denial of the motion for appointment of parenting coordinator and granting the

motion for sanctions under Rule 11. The sole conclusion of law addressing the motion

for appointment of parenting coordinator is “The Motion for Appointment of a

Parenting Coordinator was filed in retaliation in bad faith,” but bad faith is the basis

for the Rule 11 sanctions. Thus, the trial court both denied the motion for

appointment of parenting coordinator and granted sanctions based upon Mother’s

“bad faith” in filing her motion. The Order is therefore a hybrid of an order imposing

Rule 11 sanctions and an order denying appointment of a parenting coordinator, but

based on the trial court’s conclusion of law, it is predominantly an order ruling on

Father’s motion for sanctions under Rule 11. Since the primary effect of the Order is

as an order for sanctions under Rule 11, we must review the trial court’s decision to

impose sanctions de novo, and if the court properly granted sanction, we review the

“appropriateness of the sanction imposed,” including the denial of the motion for

parenting coordinator, for abuse of discretion. The standards of review for an order

granting or denying a motion to impose sanctions under N.C.G.S. § 1A–1, Rule 11(a)

has been established by our Supreme Court:

The trial court’s decision to impose or not to impose

mandatory sanctions under N.C.G.S. § 1A–1, Rule 11(a) is

reviewable de novo as a legal issue. In the de novo review,

the appellate court will determine (1) whether the trial

court’s conclusions of law support its judgment or

determination, (2) whether the trial court’s conclusions of

law are supported by its findings of fact, and (3) whether

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the findings of fact are supported by a sufficiency of the

evidence. If the appellate court makes these three

determinations in the affirmative, it must uphold the trial

court’s decision to impose or deny the imposition of

mandatory sanctions under N.C.G.S. § 1A–1, Rule 11(a).

Finally, in reviewing the appropriateness of the particular

sanction imposed, an “abuse of discretion” standard is

proper because “[t]he rule’s provision that the court ‘shall

impose’ sanctions for motions abuses . . . concentrates [the

court’s] discretion on the selection of an appropriate

sanction rather than on the decision to impose sanctions.”

Turner v. Duke Univ., 325 N.C. 152, 165 (1989) (quoting

Westmoreland v. CBS, Inc., 770 F.2d 1168, 1174 (D.C. Cir.

1985)).

Although N.C.G.S. § 50-91(b) does not require any specific findings of fact for

the trial court’s denial of a motion for appointment of a parenting coordinator, under

Rule 52 of the Rules of Civil Procedure, in “all actions tried upon the facts without a

jury,” the trial court is required to “find the facts specially and state separately its

conclusions of law thereon and direct the entry of the appropriate judgment.”

N.C.G.S. § 1A-1, 52. Therefore, the trial court must make any findings of fact and

conclusions of law necessary to address the motions or claims the order addresses.

Here, the Order addressed both the denial of the parenting coordinator and the

imposition of sanctions under Rule 11. Although the titles assigned in the order are

not controlling, “Whether a statement is an ultimate fact or a conclusion of law

depends upon whether it is reached by natural reasoning or by an application of fixed

rules of law.” Woodard v. Mordecai, 234 N.C. 463, 472 (1951).

In order to appoint a parenting coordinator,

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the court shall make specific findings that the action is a

high-conflict case, that the appointment of the parenting

coordinator is in the best interests of any minor child in the

case, and that the parties are able to pay for the cost of the

parenting coordinator. The court does not have to find a

substantial change of circumstance occurred to appoint a

parenting coordinator.

N.C.G.S. § 50-91(b). N.C.G.S. §50-90(1) defines a “high-conflict case” as:

[a] child custody action involving minor children brought

under Article 1 of this Chapter where the parties

demonstrate an ongoing pattern of any of the following:

a. Excessive litigation.

b. Anger and distrust.

c. Verbal abuse.

d. Physical aggression or threats of physical aggression.

e. Difficulty communicating about and cooperating in the

care of the minor children.

f. Conditions that in the discretion of the court warrant the

appointment of a parenting coordinator.

N.C.G.S. § 50-90(1).

Rule 11(a) sets out the basis for imposition of sanctions for filing a motion or

other pleading:

Appellate review of sanctions under Rule 11 consists of a

three-pronged analysis: (1) factual sufficiency, (2) legal

sufficiency, and (3) improper purpose. A violation of any

one of these prongs requires the imposition of sanctions.

For each prong, the trial court must make findings of fact

and conclusions of law.

Jonna v. Yaramada, 273 N.C. App. 93, 109 (2020) (citations and internal quotation

marks omitted).

To assess the sufficiency of the factual basis of a pleading, this Court must

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determine “(1) whether the plaintiff undertook a reasonable inquiry into the facts and

(2) whether the plaintiff, after reviewing the results of his inquiry, reasonably

believed that his position was well grounded in fact.” In re Thompson, 232 N.C. App.

224, 230 (2014) (citation omitted).

An appraisal of the legal sufficiency of a pleading requires that we look “first

to the facial plausibility of the pleading and only then, if the pleading is implausible

under existing law, to the issue of whether to the best of the signer’s knowledge,

information, and belief formed after reasonable inquiry, the complaint was warranted

by the existing law.” Bryson v. Sullivan, 330 N.C. 644, 661 (1992) (citation and

internal quotation marks omitted).

Lastly, to evaluate the improper purpose prong, we must review the evidence

to ascertain whether the pleading was filed for “any purpose other than one to

vindicate rights . . . or to put claims of right to a proper test.” Mack v. Moore, 107

N.C. App. 87, 93 (1992) (citation and internal quotation marks omitted). “It must be

noted, however, that ‘just because a plaintiff is eventually unsuccessful in [his] claim,

does not mean the claim was inappropriate or unreasonable.’ ” Jonna, 273 N.C. App.

at 110 (quoting Grover v. Norris, 137 N.C. App. 487, 495 (2000)).

Here, the trial court made several findings of fact and the findings of fact are

not challenged as unsupported by the record, so they are binding on appeal. Scoggin

v. Scoggin, 250 N.C. App. 115, 118 (2016) (“In a child custody case, the trial court’s

findings of fact are conclusive on appeal if supported by substantial evidence . . . .

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Unchallenged findings of fact are binding on appeal”) (citations omitted). Instead,

the findings of fact indicate that Mother did have a factual basis to filed a motion for

parenting coordinator and there was no dispute at the hearing about the legal

sufficiency of the motion under N.C.G.S. § 50-91. The only potential basis for

imposition of Rule 11 sanctions in this case was that Mother filed the motion for an

“improper purpose.” Id.

Mother was represented by counsel when she filed the Motion for appointment

of parenting coordinator. We note that the trial court did not find, as Father’s motion

for sanctions alleged, that in filing the Motion for appointment of parenting

coordinator Mother or her counsel had failed to “comply with the rules,” intentionally

deceived the Court, or “willfully falsif[ied] information on the Calendar Request.”

Instead, the findings address only mother’s “bad faith.”

In Jonna v. Yaramada, this Court addressed a Rule 11 sanctions order imposed

in a similarly contentious custody and child support case for “allegedly improper

motions interposed in a domestic matter.” We noted that

Absent an improper motive, Rule 11 sanctions should not

be assessed against a client who relies in good faith on the

advice of counsel:

It is the rare client who understands the strategy and

tactics of domestic litigation, as it is practiced in District

Court. The defendant asks us to impute the knowledge of

the effects of these motions to the attorney’s client, the

plaintiff. It is more likely the attorney prepared the

affidavit for his client and she signed it on advice of

counsel . . . . Without a specific finding from the court

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which shows the plaintiff had knowledge of the effect of

signing the motion would have on court proceedings and

took this action to gain some temporary tactical advantage,

we are unpersuaded that a signature alone would support

Rule 11 sanctions against a client acting on an attorney’s

advice.

Jonna, 273 N.C. App. at 112 (emphasis added, cleaned up). This court then addressed

the definition of an “improper purpose” as this term has been interpreted for purposes

of Rule 11:

An improper purpose is any purpose other than one to

vindicate rights or to put claims of right to a proper test.

Our Supreme Court has determined that parties, as well

as attorneys, may be subject to sanctions for violations of

the improper purpose prong of Rule 11. A represented

party . . . will be held responsible if his evident purpose is

to harass, persecute, otherwise vex his opponents, or cause

them unnecessary cost or delay.

The existence of an improper purpose is determined from

the totality of the circumstances. The relevant inquiry is

whether the existence of an improper purpose may be

inferred from the alleged offender’s objective behavior. The

burden is on the movant to prove, by a preponderance of

the evidence, that the pleading has been interposed for an

improper purpose.

Id. at 113 (cleaned up).

In Jonna, Defendant-Mother asserted that Plaintiff-Father filed the pro se

motion, and later the Rule 59 and amended Rule 59 motions, because he was “merely

upset with the [trial c]ourt’s decision[.]” Id. The Court noted that this, standing

alone, does not constitute an improper purpose, and that “it is likely that at least one

party in any custody trial, if not both, will be unhappy with the trial court’s

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decision[,]” which may lead to a Rule 59 motion. Id. (citations omitted). The Court

reversed that portion of the order imposing sanctions because the defendant-mother

“offered no evidence to the trial court that Plaintiff-Father interposed his motions to

gain some temporary tactical advantage, to cause unnecessary expense or delay, or

to advance some other improper motive[,]” further noting that the purpose of the

motions “was to get more evidence before the trial court and obtain equally shared

physical custody of the parties’ minor child, rather than to personally or financially

injure Defendant-Mother or to delay the proceedings.” Id. (citations and internal

quotation marks omitted).

Here, there are no findings indicating that Mother’s Motion for appointment of

parenting coordinator was filed “to gain some temporary tactical advantage, to cause

unnecessary expense or delay, or to advance some other improper motive.” Instead,

the findings demonstrate the high conflict which has characterized this case since its

inception. The trial court’s order relied heavily on the use of the words in Mother’s

motion that she “wishes to reciprocate” in response to Father’s motions for contempt

against her. Although this was perhaps a poor choice of words for the motion,

otherwise the Motion clearly states the factual and legal basis for appointment of

parenting coordinator, and there was no real dispute about either. But the trial

court’s order did not directly address the motion for parenting coordinator; it focused

primarily on the motion for sanctions against Mother for filing the motion.

The order did not include any findings or conclusion of law that the case is or

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is not a “high conflict” case or about the best interest of the child or how the ongoing

conflict between the parties affects (or does not affect) the child. Instead, the trial

court focused on the Rule 11 sanction issue and Mother’s motivation, or at least one

element of her motivation, for filing the motion for parenting coordinator: that she

filed the motion in response, or retaliation, to Father’s several pending motions, and

the trial court’s conclusion of law supporting both sanctions and the denial of the

motion for parenting coordinator was Mother’s “bad faith.”

Overall, the findings of fact, along with the history of “excessive litigation” and

the custody order which sets out the custodial arrangement tend to demonstrate that

the parties have clearly been engaged in a high- conflict case, regardless of what

motivated Mother to file the motion for a parenting coordinator. The findings in the

Custody Order and the Order denying the motion for parenting coordinator

demonstrate that this case has all the elements of a “high-conflict case”: excessive

litigation, anger and distrust, verbal abuse, physical aggression or threats of physical

aggression, and difficulty communicating about and cooperating in the care of the

minor child. N.C.G.S. § 50-90. And at the hearing, counsel for both parties

acknowledged that this is a high conflict case.8

The trial court noted that there had been excessive litigation in the case,

finding that “[t]his is a case where there have been multiple show causes filed[]” and

8 Father’s counsel told the trial court, “Yes, it's a high-conflict case. I could not stand in front of you

with a straight face and say that this is not a high-conflict case.”

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“[t]he largest percentage of the show cause motions stem from the allegations that

Mother is not allowing Father to have his court Ordered visitation.” However, the

trial court did not make a finding or conclusion as to whether this case is a “high-

conflict case” as defined by N.C.G.S. § 50-90.

Very few cases have addressed orders denying appointment of a parenting

coordinator, so it is not clear whether the designation of a “high-conflict case” is a

finding of fact or a conclusion of law. N.C.G.S. § 50-91 refers to this as a “finding,”

but at least one case has addressed it as a conclusion of law. See Jackson v. Jackson,

192 N.C. App. 455, 465 (2008) (“On these findings, the trial court concluded “[t]his

case is a high-conflict case. The parties are able to pay for a Parenting Coordinator

and the appointment of a Parenting Coordinator is in [the minor child's] best interest

as set forth in G.S. 50–91(b).”)

Since a conclusion of law is reached “by an application of fixed rules of law,”

Woodard, 234 N.C. at 472, and N.C.G.S. § 50-90 provides the statutory definition of

a “high conflict case,” the determination that a case is a “high conflict case” requires

both findings of fact and “application of the fixed rules of law” of the definition

N.C.G.S. § 50-90 to those facts. Of course, the trial court would still have discretion

not to appoint a parenting coordinator, even if it concludes that a case is a high

conflict case, but the trial court’s order would need to address why the parenting

coordinator would not be in the best interest of the child, assuming the parties also

have the ability to pay a parenting coordinator.

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Here, the trial court found that although “parenting coordinators are able to

assist in a lot of cases, the Court does not believe it will assist in this case, due to the

primary source of conflict being the allegations of failure to follow the Order.”

However, in many cases addressing the appointment of a parenting coordinator, the

parties’ failures to follow orders or allegations of failures to follow orders create the

“excessive litigation” that is part of the definition of a “high conflict” case. Holding a

party in contempt may assist in resolving some of the conflict in a high conflict case,

but if a mere contempt order were sufficient to quell years of conflict in “high conflict”

cases as defined by N.C.G.S. § 50-90, there would rarely be a basis for appointment

of a parenting coordinator in any case. And in this case, prior contempt orders had

not yet ended the conflict between the parties.

Of more concern for the purposes of § 50-91, the trial court made no findings

about the best interests of the child but simply denied the motion to appoint a

parenting coordinator and sanctioned Mother for filing the motion, despite making

findings about the conflicts between the parties. Finally, the trial court made no

findings related to the parties’ financial abilities to pay for a parenting coordinator,

although Mother stated at the hearing that she was willing and able to pay for the

parenting coordinator.

Again, we recognize that N.C.G.S. § 50-91 does not require any particular

findings of fact in an order denying a motion for a parenting coordinator. This Court

previously confronted this question in Thomas v. Thomas, 233 N.C. App. 736 (2014).

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In Thomas, this Court stated,

[o]ur review reveals that N.C. Gen. Stat. § 50–91 governs

what findings must be made only if the trial court, in its

discretion, appoints a parenting coordinator. In the case

before us, the trial court did not appoint a parenting

coordinator and Mother does not cite to any authority, nor

can we find any, imposing an affirmative duty on the trial

court to require parties to produce evidence of their ability

to pay for a parenting coordinator if one is not appointed.

Id. at 747.

However, there are several key distinctions between Thomas and the facts of

this case, even beyond the fact that the order here is a hybrid with a Rule 11

sanctions. First, in Thomas, the trial court did specifically find that it was a high-

conflict case and appointing a parenting coordinator would be in the best interest of

the child. Id. However, the trial court stated that “there was insufficient evidence

concerning the parties’ present ability to pay a parenting coordinator.” Id. In making

this determination, this Court specifically noted that the unchallenged findings of

fact suggested the parties more than likely lacked the ability to pay for a coordinator

due to Father owing attorney’s fees in excess of $70,000.00 and Mother owing

attorney’s fees in excess of $90,000.00. Id. Thus, this Court affirmed the trial court’s

dismissal of the motion to appoint a parenting coordinator because evidence tended

to suggest the parties would not have been able to afford one. Id.

But here, the trial court made findings of fact, and these findings tend to

support the appointment of a parenting coordinator, not the denial of the motion, and

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the trial court seemingly denied the motion as a part of the sanction under Rule 11.

First, the trial court did not make any specific finding or conclusion that this is or is

not a high-conflict case, but it did make findings that would lead directly to a

conclusion of law that the case is a high conflict case as defined in N.C.G.S. § 50-90.

Also, counsel for both parties agreed this is a high conflict case. Furthermore, the

trial court did not make any findings regarding the best interest of the child. Where

the findings of fact demonstrate this is a high conflict case, and there is no mention

of the best interest of the child in the order, we are unable to discern why the trial

court not only denied the motion for parenting coordinator but also imposed sanctions

under Rule 11 just for requesting a parenting coordinator. And even if the trial court

determined in its discretion that a parenting coordinator should not be appointed,

this does not necessarily mean that Father’s motion for sanctions must be allowed.

“It must be noted, however, that ‘just because a plaintiff is eventually unsuccessful

in [his] claim, does not mean the claim was inappropriate or unreasonable.’ ” Jonna,

273 N.C. App. at 110 (quoting Grover v. Norris, 137 N.C. App. 487, 495 (2000)).

Finally, there was evidence presented by Mother at trial that she would be able

to afford a parenting coordinator. During trial, Mother stated she already paid for

T.R.’s therapy and she would be able to afford a parenting coordinator between her

and her fiancé’s incomes. Additionally, the only evidence that Father provided to

rebut this point was the Mother had not been able to file motions to show cause of her

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Opinion of the Court

own against Father through her attorney.9 However, there was no other evidence

presented that directly or specifically addressed Father or Mother’s inability to afford

a parenting coordinator, like there was for the parties in Thomas. In any event,

Mother testified that she would pay for the parenting coordinator’s services.

The trial court based its decision both to deny the parenting coordinator and

to grant sanctions under Rule 11 primarily on the fact that the motion was made in

retaliation for Father’s contempt filings. In addition, it states that one of the causes

of the conflict was Mother’s failure to follow the previous order. That the motion was

filed in response to motions for contempt also seems to support rather than detract

from the need for a parenting coordinator.

In all custody cases, the best interest of the child should serve as the lodestar

for the court’s decisions. See Respess v. Respess, 232 N.C. App. 611, 615 (2014) (“It is

long-established that a trial court’s determination of child custody . . . must be guided

by the best interests of the child[.]”) In the present case, based upon the findings that

were made even more than those that were missing, it appears the trial court was

viewing a need to punish Mother for her actions regarding the previous order rather

than a reasoned decision of whether a parenting coordinator would serve as a means

of reducing the conflict between the parents thereby benefiting the child at issue,

whose wellbeing should be the primary focus. As an aside, the appointment of a

9 But Mother was represented by counsel this hearing and was represented by counsel throughout

most of this case, including the filing of the motion for appointment of a parenting coordinator.

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parenting coordinator does not lessen the trial court’s ability to punish the Mother

for previous contemptuous acts, as it surely did by requiring her to take T.R., age 8,

to the Raleigh Police Department on both Christmas day and New Year’s Eve to visit

with Father for two hours.10 We also note that the trial court could tax the entire

cost of the parenting coordinator to the Mother if the court finds that she is the

primary cause for the need for the coordinator.

Accordingly, the trial court’s findings of fact do not support its conclusion of

law to deny the parenting coordinator and granting Rule 11 sanctions based on

Mother’s filing the motion to appoint a parenting coordinator. In addition, the

findings of fact would support a conclusion that this is a “high conflict” case in which

the trial court has the discretion to appoint a parenting coordinator, but the trial

court did not make any findings or conclusions regarding the child’s best interests.

We therefore vacate the order denying the appointment of a parenting coordinator

and awarding sanctions under Rule 11 and remand for entry of a new order. Although

the trial court is not required on remand to allow the motion for parenting coordinator

and the trial court may decide again to impose Rule 11 sanctions, whatever the

decisions on remand are, the trial court must make findings of fact and conclusions

of law to support both the ruling on the motion for parenting coordinator and the

10 But we caution that punishment is the purpose of a show cause order for criminal contempt. For

civil contempt, the purpose of the order is not to punish but to enforce compliance with the court’s

order.

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Opinion of the Court

ruling on the motion for sanctions under Rule 11, since these two motions present

different legal issues.

II. Conclusion

For the foregoing reasons, we vacate the order and remand to the trial court

for actions consistent with this opinion.

VACATED AND REMANDED.

Judge STROUD concurs.

Judge FREEMAN concurs in the result only.

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