Lueallen v. Lueallen

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-890

Filed: 6 September 2016

Union County, No. 12 CVD 2122

MIKE DEWAYNE LUEALLEN, Plaintiff,

v.

MONICA GEORGETT LUEALLEN, Defendant.

Appeal by defendant from order entered 5 December 2014 by Judge Joserph J.

Williams in District Court, Union County. Heard in the Court of Appeals 27 January

2016.

No brief filed on behalf of plaintiff-appellee.

James, McElroy & Diehl, P.A., by Preston O. Odom III, for defendant-appellant.

STROUD, Judge.

Defendant Monica Georgett Lueallen (“Mother”) appeals from the trial court’s

order on permanent child support, modification of child support, child custody,

attorney fees and contempt entered on 5 December 2014. On appeal, Mother raises

numerous arguments regarding multiple aspects of the order. We affirm the order’s

provisions addressing child custody, with the exception of Decrees 4 and 6, and we

must vacate and remand portions of the remainder of the order for recalculation of

child support and arrears, establishment of definite purge conditions, additional

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findings of fact regarding Mother’s ability to comply with purge conditions, and

additional findings of fact regarding the award of attorney fees.

I. Factual and Procedural Background

Plaintiff Mike Dewayne Lueallen (“Father”) and defendant Monica Georgett

Lueallen (“Mother”) were married in 2001 and one child, Timothy1, was born to the

marriage. When Timothy was born in 2006, the parties lived in Arkansas, but they

moved to North Carolina about six months after his birth, so Timothy spent most of

his life in the Union County/Charlotte area. In November of 20112, the parties

separated and Timothy began to reside primarily with Mother. Both parties had

Masters degrees in education and at the time of their separation, both were employed

by the Union County Schools.

On 24 May 2012, effective 21 June 2012, Mother resigned from her job in Union

County, although she did not yet have another job lined up. She received a job offer

from a school in Arkansas on 15 July 2012 and went to Arkansas, taking Timothy

with her. In early July, Mother initially told Father that she would be taking Timothy

for a “family trip” to Arkansas and that they would return in about a week to 10 days,

1 This is a pseudonym, to protect the identity of the minor child.

2 We note that Mother’s Arkansas complaint alleged that the parties separated on 11

November 2011; her North Carolina answer alleged that the parties separated on 13 September 2011;

and the 18 January 2013 visitation order found that the parties separated on 13 September. Mother

testified at the 16 January 2013 hearing that they separated on “September 11 through 13th, but

officially, permanently, it was in November 11th of 2011.” In any event, the exact date of separation

is not material for purposes of this appeal.

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in time for a camping trip he had planned with Timothy to begin around 20 or 21

July 2012. Father, however, was unable to reach Mother during her Arkansas trip

with Timothy, and they had not returned by 21 July 2012. On 21 July 2012, Mother

informed Father that there was a job available for her in Arkansas, that she had an

apartment, and that “ ‘our things are in storage.’ ” He then attempted but was unable

to make contact with her or Timothy for about a week. On 25 July 2012, Father filed

a complaint in Union County seeking emergency ex parte child custody, child custody,

child support, and attorney fees. On the same day, the trial court entered an ex parte

custody order granting Father temporary sole custody of Timothy pending further

order and requiring Mother to return Timothy to Union County.

Father notified Mother that he was coming to Arkansas to get Timothy and

arrived on 27 or 28 July 2012. Initially, Arkansas authorities refused to assist him

in getting Timothy. He registered the North Carolina ex parte custody order in Cross

County, Arkansas, on 30 July 2012, and the order was served on Mother the same

day, although it was not filed until 16 October 2012. Mother also filed for and

received an “Ex Parte Order of Protection” in Cross County, Arkansas, on the same

day. Her domestic violence complaint in Arkansas “described an incident that

occurred in October of 2011 in North Carolina” when the “parties [had] decided to

separate, with [Father] leaving the home.” The Arkansas Court vacated the portions

of the Arkansas ex parte order dealing with child custody based upon the previously-

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issued North Carolina ex parte order, which granted custody of Timothy to Father.

Mother later dismissed the Arkansas domestic violence action against Father. Father

returned to North Carolina with Timothy.

On or about 3 January 2013, Mother filed her answer and counterclaims for

divorce, child custody, child support, post-separation support, equitable distribution,

alimony, and attorney fees. On 16 January 2013, the trial court held a hearing on

the return of the ex parte custody order. As a result of this hearing, the trial court

entered a visitation order on 18 January 2013, pending a hearing on temporary child

custody. This order kept the ex parte custody order in effect, scheduled a hearing on

temporary custody and support for 11 March 2013, and granted Mother visitation

with Timothy in North Carolina every other weekend from 6:00 p.m. on Friday until

6:00 p.m. on Sunday. On 20 February 2013, the trial court entered another interim

order as a result of the same hearing. The 20 February order included more detailed

findings of fact, conclusions of law, and decretal provisions than the 18 January 2013

order but ultimately granted the same visitation.

On 13 February 2013, Mother filed a motion for psychological and mental

health evaluation, to appoint an expert pursuant to Rule 706, and to appoint a

Guardian ad Litem (“GAL”) for the child. Mother alleged that Father had been

diagnosed with bipolar disorder and depression, that he was not taking medications

as prescribed, and that he had “extreme mood swings” from being “gregarious and

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outgoing” to “openly belligerent and hostile.” She alleged that Father was mentally

unstable and unable to care for the child.

On 11 March and 22 April 2013, the trial court held a hearing on temporary

custody, temporary child support, Mother’s motion for psychological evaluation and

appointment of GAL, and attorney fees. The court entered its order from this hearing

on 25 June 2013. The order continued Mother’s alternate weekend visitation, set out

a detailed visitation for various holidays, and granted Mother three weeks of summer

visitation, but did not allow Mother to remove Timothy from North Carolina. The

order set temporary child support, requiring Mother to pay $574.85 per month,

beginning 1 June 2013. The order also denied the remaining motions for

psychological evaluation, appointment of GAL, and attorney fees.

Over seven days, beginning on 10 February 2014 and ending on 1 August 2014,

the trial court heard the matters of permanent custody, permanent child support,

attorney fees, and contempt.3 The trial court entered its order on these issues on 5

December 2014. Mother filed her notice of appeal from this order on 2 January 2015.

Although we will address the details of the order on appeal below, for purposes

of addressing the procedural posture and finality of the 5 December 2014 order, we

3On 23 May 2014, Father filed a motion to show cause for failure to pay child support, alleging

that Mother had paid only a portion of the amount owed for some months and had paid nothing for the

months of April and May 2014. The pending motion by Mother to modify the temporary child support

order was also addressed.

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note that the order included the following requirements, which Mother also

challenges on appeal:

6. Periodic Reviews shall be conducted on the following

schedule and for the following purposes:

a. Review One: Shall be conducted within 30 days

of the entry of this order, the specific date is yet

to be determined, the purpose of which shall be

to determine whether therapy for mother, as

ordered herein, has begun.

b. Review Two: Shall be conducted within 60 days

of the entry of this order, the specific date is yet

to be determined, the purpose of which shall be

to determine Mother’s progress in therapy and to

obtain an initial report from the Mother’s

therapist regarding her rehabilitation in

acknowledging that Father has not physically

abused the minor child, has not engaged in

substance abuse and to access [sic] her progress

in taking responsibility for the damage and

anxiety that she has caused in the minor child.

c. Review Three: Shall be conducted within 90 days

of the entry of this Order, the specific date is yet

to be determined, the purpose of which shall be

to determine Mother’s progress in therapy and to

obtain a report from the Mother’s therapist

regarding her rehabilitation in acknowledging

that Father has not physically abused the minor

child, has not engaged in substance abuse and to

access [sic] her progress in taking responsibility

for the damage and anxiety that she has caused

in the minor child. All of this will be taken into

account to determine at this final review whether

to further restrict or expand visitation.

On 9 February 2015, the trial court held the 30 day review hearing, as required

by the 5 December order, to review Mother’s progress in therapy and compliance with

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the order. The trial court found that Mother had “failed to produce evidence that she

obtained a mental health evaluation from a licensed psychologist” and that she had

only consulted with a “Dr. Sydney Langston” but had not produced evidence of Dr.

Langston’s credentials. The order noted that Mother continued to be under the

requirements of the 5 December order and that she would have to appear for the 60

day and 90 day review hearings.

On 9 April 2015, this Court issued an order granting Mother’s petition for writ

of supersedeas and motion for temporary stay, providing in pertinent part:

The petition for writ of supersedeas is allowed, and the 5

December 2014 order of Judge Joseph Williams is stayed

insofar as it directs defendant and her child to submit to a

mental health assessment and achieve certain goals

through therapy and as it requires periodic review

hearings to determine whether defendant has attained

those goals. Therefor, [sic] decrees four and six of the trial

court’s order are hereby stayed pending the resolution of

defendant’s appeal from Judge Williams’ order.

II. Interlocutory appeal

Mother acknowledges that the 5 December order is interlocutory because her

counterclaim for equitable distribution is still pending.4 However, she argues that

her appeal is timely under N.C. Gen. Stat. § 7A-27(b)(3)(e) (2015), and more

specifically, N.C. Gen. Stat. § 50-19.1 (2015), which provides that “[n]otwithstanding

any other pending claims filed in the same action, a party may appeal from an order

4 Her other pending claims for post-separation support and alimony have been dismissed

voluntarily.

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or judgment adjudicating a claim for . . . child custody [or] child support . . . if the

order or judgment would otherwise be a final order or judgment within the meaning

of G.S. 1A-1, Rule 54(b), but for the other pending claims in the same action.” N.C.

Gen. Stat. § 50-19.1.

Mother is correct that this order may be immediately appealable, since it

adjudicates claims for custody and child support, even if equitable distribution

remains unresolved. Yet she fails to address whether the order on appeal “would

otherwise be a final order or judgment within the meaning of G.S. 1A-1, Rule 54(b)[.]”

N.C. Gen. Stat. § 50-19.1 (emphasis added). The order, by its own terms, was not

final as to Mother’s visitation and set hearings to be held in 30, 60 and 90 days to

address this issue after her mental health evaluation. We note that this Court has

held similar orders, which set follow-up or review hearings to address issues of

pending therapy or psychological evaluations, to be temporary, even though the order

was entitled as a “permanent” custody order. See Smith v. Barbour, 195 N.C. App.

244, 249, 671 S.E.2d 578, 582 (2009) (“Although the 20 April 2005 order was entitled

‘Permanent Custody’ order, the trial court’s designation of an order as ‘temporary’ or

‘permanent’ is not binding on an appellate court. Instead, whether an order is

temporary or permanent in nature is a question of law, reviewed on appeal de novo.

As this Court has previously held, an order is temporary if either (1) it is entered

without prejudice to either party; (2) it states a clear and specific reconvening time

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in the order and the time interval between the two hearings was reasonably brief; or

(3) the order does not determine all the issues. In this case, the 20 April 2005 order

meets both the second and third prongs of the test. There is no dispute that the trial

court did not determine all of the issues before it since it did not decide Ms. Barbour’s

right to visitation. The order expressly stated that the ‘issue of visitation’ would be

set for hearing only after the ordered psychological evaluations had been completed

and specified that the trial court ‘retain[ed] jurisdiction to determine the frequency

and conditions under which the Defendant and her parents may visit with the minor

child. . . .’ The order provided for a hearing on ‘this issue of visitation to be scheduled

not later than July 15, 2005.’ This date qualifies as a clear and specific reconvening

time after a time interval that was reasonably brief.” (citations, quotation marks, and

brackets omitted)).

It seems that the order on appeal is quite similar to the order in Smith, since

it provided for additional hearings, at “clear and specific reconvening time[s]” and did

not address all of the issues, id., just as in this case, where the trial court needed

additional hearings to consider Mother’s mental health evaluation and its effect upon

her visitation. Here, however, another panel of this Court has previously ordered the

relevant provisions of the 5 December 2014 order stayed, pending this appeal. As we

are bound by that ruling, we will address Mother’s appeal. See, e.g., In re Civil

Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of

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Appeals has decided the same issue, albeit in a different case, a subsequent panel of

the same court is bound by that precedent, unless it has been overturned by a higher

court.”). In addition, if we were to dismiss Mother’s appeal, it would only add to the

delay in establishing a final custodial schedule, much to Timothy’s detriment.

III. Discussion

On appeal, Mother raises multiple issues with the trial court’s order in relation

to custody, child support, civil contempt, and attorney fees. We address the issues

raised regarding each in separate sections below.

A. Custody

Mother raises at least six issues on appeal regarding the custody portion of the

order, and we will address the second and third issues first, since they challenge the

adequacy of the trial court’s findings of fact and evidentiary support for the findings.

If the trial court’s findings are inadequate or not supported by evidence, they cannot

support its conclusions of law, and the order would fail for that reason alone.

1. Recitations of testimony

Mother identifies 17 findings of fact, out of the 209 findings made by the trial

court, which she argues are entirely or partly recitations of testimony which do not

resolve the disputes raised by the conflicting evidence presented. She also argues

that the order is “written in an unwieldly, haphazard style,” citing to Peltzer v.

Peltzer, 222 N.C. App. 784, 789, 732 S.E.2d 357, 361 (2012), in which we noted that

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an order was “written in a style perhaps best described as stream of consciousness.”

Here, Mother notes the repeated use of the words “testified,” “indicated,” “told,”

“asserts,” and “believes” in those findings.

We first address Mother’s argument regarding the “haphazard” style of the

order. This order is nothing like the equitable distribution order in Peltzer, in which

findings were all mixed together and did not “address the identification,

classification, and valuation of the property and the distributional factors in any

logical or organized manner[.]” Id. In this order, by contrast, the findings of fact are

set out in separate sections entitled as follows: “Parties, Jurisdiction and

Background”; “Arkansas Issues”; “DSS Involvement”; “School”; “Child Support

(Permanent Support, Contempt and Motion to Reduce)”; “Difficulty in Mother

Returning the Child”; “Miscellaneous”; “Attorney Fees”; and “Arrangements at Time

of Hearing.” Furthermore, in Peltzer, despite the haphazard style, we searched

through the order and found that the trial court had made all of the findings required

by the issues in the case and ultimately affirmed the majority of the order, other than

remanding “for clarification of one of the trial court’s findings of fact[.]”. Id. at 798,

732 S.E.2d at 367. We do not require that orders have any particular style or

organization, although a well-organized order is easier for everyone to understand.

In any event, this order is reasonably well-organized. Thus, we reject this portion of

Mother’s argument.

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We also reject Mother’s argument that the trial court’s findings are merely

recitations of evidence. She is correct that some of the findings recite portions of

testimony of various witnesses and that the order uses the words noted above. In the

interest of brevity, we will not quote large portions of the nineteen-and-a-half page,

single-spaced, small-font order. Moreover, we note that Mother does not challenge

the vast majority of the 209 findings.

Most of Mother’s objections are from the portion of the order dealing with “DSS

Involvement.” The order does recite some of the testimony from social workers who

interviewed Timothy and the parties regarding various reports of abuse. Since there

were four DSS investigations during the course of the case, this evidence was

extensive. The transcript of the entire trial comprises more than 1400 pages, and the

Rule 9(d) supplement including exhibits from trial has 889 pages. To summarize very

briefly, the order makes many findings which indicate repeated, persistent efforts by

Mother to obtain custody of Timothy by accusing Father of being physically abusive,

mentally unstable, and a “druggie.” Therapists and social workers have had concerns

that Mother was “coaching” Timothy to report abuse or bad behavior by Father.

Although the findings of fact are certainly not entirely favorable to Father either,

overall the trial court entirely rejected Mother’s claims of child abuse, drug abuse, or

uncontrolled mental illness. The trial court also very definitely resolved any conflicts

in the evidence and determined that Mother was intentionally trying to alienate

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Timothy from Father. For example, the following findings are not challenged by

Mother, at least as recitations of testimony:

178. Ms. Lueallen called Charlotte Mecklenburg Schools

about two children being left unattended at Mr.

Lueallen’s football practice.

179. On April 20th, Ms. Lueallen texted Mr. Lueallen,

“are you going to kill yourself and [Timothy] when you

lose in court like you promised?” On December 24, Ms.

Lueallen texted Mr. Lueallen, “maybe you are like

Anakin Skywalker, are you at least a [sic] good a father

as Vader?”

180. Ms. Lueallen paid a private investigator to go

through Mr. Lueallen’s trash, and paid for two drug

tests on Mr. Lueallen.

181. Defendant Mother’s efforts to destroy the Plaintiff

Father and re-obtain custody have been persistent and

on-going since September of 2013 and the child has

demonstrated deterioration psychologically as a result.

182. Ms. Lueallen has incurred $70,000.00 to $80,000.00

in attorney’s fees, including the Arkansas lawyer,

private investigator and two North Carolina lawyers

and has paid the lawyers $10,000.00 to $20,000.00.

183. Further, Mother’s advancement of false claims of

abuse have necessarily increased the costs of litigation,

the number of witnesses necessary for trial to defend

such accusations and the length of the trial as well.

184. The Court finds as a conclusion of law that the

Defendant Mother has acted in bad faith.

....

209. The Plaintiff Father has not physically abused the

minor child.

The trial court also includes under “ Conclusions of Law” in the order what are

probably better characterized as ultimate findings of fact:

11. Plaintiff Father has never physically abused the

minor child.

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12. Defendant Mother’s false belief that Plaintiff

physically abused the child, and her baseless and false

belief that Plaintiff Father is a “druggie” and an

“alcoholic” has created an environment of investigation,

physical, psychological and emotional that has created

anxiety in the child and has not been in the child’s best

interest.

Overall, the findings of fact are not simply recitations of testimony, and they

definitively find ultimate facts “ ‘sufficient for the appellate court to determine that

the judgment [was] adequately supported by competent evidence.’ ” In re Anderson,

151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002) (quoting Montgomery v. Montgomery,

32 N.C. App. 154, 156-57, 231 S.E.2d 26, 28 (1977)). In addition, the findings “ ‘reflect

a conscious choice between the conflicting versions of the incident[s] in question

which emerged from all the evidence presented.’ ” Moore v. Moore, 160 N.C. App. 569,

571-72, 587 S.E.2d 74, 75 (2003) (quoting In re Green, 67 N.C. App. 501, 505 n. 1, 313

S.E.2d 193, 195 n. 1 (1984)). Mother’s argument is without merit.

2. Evidentiary Support for Findings

Mother also argues that “many findings lack competent evidentiary support.”

Mother identifies several findings which she claims are unsupported. First, she

argues that “no competent evidence” supports Finding of Fact No. 181, which was as

follows:

181. Defendant Mother’s efforts to destroy the Plaintiff

Father and re-obtain custody have been persistent and

on-going since September of 2013 and the child has

demonstrated deterioration psychologically as a result.

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Her argument consists of noting portions of the testimony that are favorable

to her and her interpretations of the evidence. She makes the same argument

regarding Finding of Fact No. 183, and we reject it for the same reasons. Although

there was conflicting evidence on many facts, as noted above, the trial court rejected

Mother’s interpretations of the evidence. The trial court evaluated the credibility and

weight of the evidence and made findings accordingly.

[A]s is true in most child custody cases, the determination

of the evidence is based largely on an evaluation of the

credibility of each parent. Credibility of the witnesses is

for the trial judge to determine, and findings based on

competent evidence are conclusive on appeal, even if there

is evidence to the contrary. Here, each parent testified to

his or her version of the events which led to the above

crucial findings of fact. The fact that the trial judge

believed one party’s testimony over that of the other and

made findings in accordance with that testimony does not

provide a basis for reversal in this Court. The findings are

based largely on defendant’s competent, and apparently

credible, testimony and are thus binding on this Court.

Woncik v. Woncik, 82 N.C. App. 244, 248, 346 S.E.2d 277, 279 (1986) (citations

omitted).

Her other objections are mainly arguments that certain findings misstated

evidence in minor ways. For example, she notes that in Finding of Fact No. 180, the

trial court found that she paid for two drug tests of Father, but the evidence shows

that she paid for only one and that DSS paid for the other. There is no dispute that

he had two drug tests, both negative, and both inspired by Mother’s claims that he

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was abusing drugs. Who paid for one of the tests is not dispositive. And even if she

is correct and we were to ignore this particular finding, the remaining 208 findings

would fully support the trial court’s order. Her other arguments as to a few other

findings are similar, noting minor misstatements in portions of findings or her

favorable interpretations of various bits of evidence. We find that all of the findings

of fact regarding custody were more than adequately supported by the evidence.

3. Decree Provisions 4 and 6

Now that we have established that the findings of fact are sufficient, we will

address Mother’s first argument regarding custody, which is that “Decrees four and

six of the custody decision contravene established precedent.” She argues that Decree

4 “subjects [Mother] to a mandatory mental health evaluation/therapy process, the

goal of which is to force her to believe the trial court’s determinations that [Father]

never abused substances or [Timothy.]” She also notes that the decree “commands

[Timothy’s] therapist to ‘wholeheartedly’ accept such determinations as true and

thereby assess, inter alia, ‘[w]hat effect, if any the continued contact or exposure to

[Mother], especially her belief that [Father] abused the child and abused substances,

has had on [Timothy.]”

Mother cites Peters v. Pennington, 210 N.C. App. 1, 707 S.E.2d 724 (2011) in

support of her argument, noting that in Peters, this Court “vacated a decree

equivalent to Decrees 4 and 6.” The Peters case is factually somewhat similar to this

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one, in that after cooperating with each other regarding joint custody for

approximately two years, the mother and father engaged in an extended, extremely

contentious custody dispute. Id. at 4-5, 707 S.E.2d at 729. The mother accused the

father of sexually abusing the children and continued to insist that the children were

being sexually abused even after investigations by law enforcement and DSS and an

evaluation by a private therapist found the accusations to be unfounded. Id. at 5-7,

707 S.E.2d at 729-30. After a three-week trial, with over 24 witnesses, “including the

parties, relatives and friends, school officials, law enforcement officers, DSS

personnel, the boys’ former and current therapists, and several expert witnesses[,]”

the trial court’s order addressed the “two central issues: (1) whether [the father]

abused his sons and (2) whether [the mother’s] actions in connection with her

allegations of abuse were abusive and caused damage to the children.” Id. at 7-8, 707

S.E.2d at 730. The trial court definitively found that the father had not sexually

abused the children and that the mother’s continued insistence that he had and her

actions based upon this belief were abusive and had damaged the children. Id. at 8,

707 S.E.2d at 731.

The relevant portion of the order challenged in Peters was as follows:

5. Defendant/Mother shall obtain mental health

treatment by a provider who shall read this Order in full,

shall commit to wholeheartedly accepting that the findings

contained herein constitute the reality of Frank and

Dennis’s lives and Defendant/Mother’s role in fabricating

sex abuse allegations, even though she may have genuine

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belief that such events occurred, and shall work towards

Defendant/Mother’s rehabilitation in acknowledging that

Plaintiff/Father has not sexually abused the minor

children and in taking responsibility for the damage she

has caused to her sons. Defendant/Mother’s therapy may

include any other areas that the provider identifies.

....

7. The minor children shall continue in therapy with Dr.

Curran and Ms. Duncan, who shall read this order in its

entirety and commit to accepting it wholeheartedly as the

facts constituting the false allegations of sexual abuse with

respect to Frank and Dennis. Dr. Curran and Ms. Duncan

shall determine what type of therapy the minor children

need in light of these findings.

Id. at 9-10, 707 S.E.2d at 731.

The order in Peters also provided for future review of the mother’s visitation

based upon consideration of her progress in therapy and compliance with the court’s

order. Id. at 10, 707 S.E.2d at 732. This Court concluded:

[T]he trial court abused its discretion when fashioning

[mother’s] therapy. [Mother] is required by the 6 March

2009 order to acknowledge that [father] did not sexually

abuse their children and accept as true the trial court’s

conclusion that she harmed her children. Thus, [mother]

must force herself to believe that she implanted false

images of sexual abuse in her children. Presumably, she

must prove to a medical professional or counselor that she

genuinely believes the trial court findings were correct

before being certified as rehabilitated, which may be a

prerequisite to obtaining significant visitation or any level

of custody in the future. We hold this is an unwarranted

imposition under these facts. Our objection to this

requirement is that it mandates [mother] and the therapist

attain a standard based upon [mother’s] beliefs rather than

her behavior. It would have been appropriate to require

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[mother] to demonstrate to the court that she would not

engage in any behavior that suggests to the children that

they were sexually abused. We believe this is best achieved

through non-disparagement requirements and

prohibitions on discussing these matters with the children,

which are enforceable through the contempt powers of the

trial court, including incarceration. It was an abuse of

discretion to require [mother] to change her beliefs and

prove to a counselor that such a change has in fact

occurred. We therefore vacate paragraph 5 of the decretal

portion of the 6 March 2009 order (“Decree 5”) and remand

the order to the trial court to enter a new order based upon

[mother’s] and her agents’ ability to comply with existing

court orders and demonstrate behavior that prevents harm

to her children.

Id. at 21, 707 S.E.2d at 738-39.

The similarity of the provisions of this order and those in Peters is perhaps no

coincidence. Father’s counsel asked the trial court in the closing argument to “look

at these cases and to seriously consider restricting Ms. Lueallen’s access to supervised

therapeutic settings,” and then specifically identified Peters as a similar case

factually, such that similar restrictions and therapy requirements should be imposed.

Unfortunately, the trial court’s order relied a bit too heavily upon the wording of the

challenged decrees from Peters. We agree that the provisions of Decrees 4 and 6 are

substantially the same as the decree provisions vacated in Peters, and thus we must

also vacate these provisions of the order. But this Court’s additional observations in

Peters also apply to this case:

However, we note that [mother’s] conduct placed the

trial court in a difficult position. The court specifically

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ordered the parties not to disparage one another or to

discuss the case with the children. It found, based on

competent evidence, that [mother] willfully ignored these

rulings, which were designed to protect the integrity of the

judicial process and to protect the children from harm. The

trial court likely concluded non-disparagement

requirements and other tools would have been of little

future value as a restraint on [mother.] The court’s

skepticism was justified, not only by [mother’s] actions in

taking the children to therapy with Dr. Tanis before a

guardian ad litem was appointed, but also by her affidavits

in which she documented her conversations with the

children about the specific topics the court had restrained

her from discussing with the children.

Nevertheless, we hold it was error to require

[mother] prove to her therapists that her beliefs about the

factual underpinnings of the case had changed. While the

trial court properly vested authority in medical

professionals to determine when supervised visitation was

appropriate, the court went too far in dictating the specifics

of the therapists’ work. [Mother’s] actual behavior -- and

not her subjective beliefs over what occurred in the case --

should have been the critical focus for evaluating when

visitation was appropriate.

Id. at 22, 707 S.E.2d at 738-39.

Mother is correct that the trial court cannot order her to “believe” that Father

is not physically abusive and that he does not abuse drugs. Yet what a trial court

can, and must, do is make findings of fact regarding events which happened in the

past and order parties to take certain actions based upon those facts. In nearly every

disputed case, one party claims that an event happened, and the other party claims

that the event either did not happen or happened differently than claimed by the

other party. The trial court must determine which of the competing versions of the

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past event is correct, and based upon that determination must order the appropriate

action. In a certain sense, every court order requires all of the parties to the case to

accept a particular version of the past events, at least to the extent that the parties

must act in accord with the order or suffer consequences of contempt or other penalty.

On remand, the trial court shall “reform the therapeutic requirements placed

on [Mother] in accordance with this opinion.” Id. at 29, 707 S.E.2d at 743. The trial

court’s order may not require Mother or a therapist to “wholeheartedly accept” or

believe anything and cannot evaluate Mother’s progress by her beliefs, but it can

require them to conform their behavior and speech when dealing with Timothy fully

in accord with the trial court’s findings and conclusions. The trial court properly

ordered Mother to have a “mental health evaluation from a licensed psychologist” to

assess any need for additional therapy. In addition, the trial court ordered that

Timothy continue with his current therapist and that Mother read the order and

“commit to accepting it wholeheartedly as the facts constituting the false allegations

of physical and substance abuse with respect to the minor child[.]”

On remand, the trial court may again order a mental health evaluation of

Mother and continuing therapy for Timothy, without the offending language

identified in Peters. As a practical matter, we would note that any mental health

evaluation of Mother will be useless to the trial court if Mother simply repeats her

allegations again to the psychologist and the psychologist accepts Mother’s claims as

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Opinion of the Court

true. In fact, if the psychologist accepts Mother’s claims as true, the psychologist will

be bound by law to make yet another report to DSS of Father’s alleged abuse, since a

report is required by N.C. Gen. Stat. § 7B-301(a) (2015). Mother even acknowledged

that she was aware of this legal duty to report any allegations of abuse based upon

her training as a teacher. And testimony of Timothy’s therapist, Kristin Montanino,

reveals that several of the DSS investigations began based upon reports which the

therapist made because of what she heard from either Timothy or Mother.

Additional reports of allegations of abuse based upon the same things would

simply perpetuate the cycle of DSS investigations needlessly, to Timothy’s detriment.

The trial court in Peters was attempting to end a similar cycle of investigations of

repeated, unfounded allegations of sexual abuse. If Timothy’s therapist were to

accept Mother’s version of the facts, she would also be legally bound to make

additional reports to DSS and to conduct therapy accordingly, which would likely only

add to the harm to Timothy. Thus, it is entirely appropriate for the trial court to

require an evaluator or therapist for either party or the child to read the court’s orders

so that they will be aware of the background in which the evaluation or therapy has

been ordered, and they will be able to make an informed professional judgment about

whether there is any need for a new report of abuse to DSS5. It is also appropriate

5 In particular, any new therapist who is not familiar with the history of this family needs to

be able to determine if some information from Mother or Timothy is related to an incident or issue

already addressed by the court’s order, or if something new and different has happened that may

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Opinion of the Court

for the trial court to order that a particular therapist who is conducting therapy based

upon Mother’s version of the facts instead of those established by the trial court to

cease treating the child, to avoid further confusion and harm. And although Mother

may continue to believe anything she likes, the trial court can take into account

Mother’s continued insistence on her version of the facts and the futility of any

evaluations or therapy based upon her version of the facts, which unfortunately could

result in a visitation order that restricts Mother’s visitation even more.

4. Abuse of Discretion in Custody Order

Mother argues that the “custody decision manifests an abuse of discretion”

mainly because “the trial court stripped [Mother] of all legal custody -- and nearly all

physical custody -- of [Timothy] based solely on her beliefs about [Father’s] conduct.”

“A trial judge’s decision will not be upset in the absence of a clear abuse of

discretion if the findings are supported by competent evidence.” Phillips v. Choplin,

65 N.C. App. 506, 511, 309 S.E.2d 716, 720 (1983). Furthermore,

A trial court may be reversed for abuse of discretion only

upon a showing that its actions are manifestly unsupported

by reason. A ruling committed to a trial court’s discretion

is to be accorded great deference and will be upset only

upon a showing that it was so arbitrary that it could not

have been the result of a reasoned decision.

White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (citation omitted).

actually need to be reported. The therapist is not required to “believe” anything but does need to be

fully aware of the prior allegations and the trial court’s determinations regarding those allegations.

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As we have determined above, the trial court’s findings of fact were supported

by the evidence. Mother also argues very briefly -- just three sentences, with one cite

to Peters -- that the findings of fact do not support the trial court’s conclusion that it

is in Timothy’s “best interest for [Father] to have sole legal custody” and “primary

physical custody.” Mother points out evidence favorable to her, and the trial court

made findings regarding much of this evidence. She did travel from Arkansas to visit

many times and consistently ate lunch with Timothy at school. The trial court found

that Timothy “seemed to enjoy” these lunch visits -- although the trial court also noted

that she “sometimes violated the seating policy” but would move when asked. The

trial court also noted that “[i]t was unusual that on about fifty (50) percent of

occasions [Timothy] sat on his mother’s lap.”

Mother’s argument also notes that Father “frequently holds long hours as a

football coach” and notes other evidence negative to him. Again, we will not quote

large portions of the 209 findings of fact, but the findings do support the trial court’s

conclusion. Mother’s argument asks us to re-weigh the voluminous evidence and to

draw inferences in her favor instead of Father’s, but that is the trial court’s role, not

ours. The order includes extensive findings regarding the strengths and weaknesses

of both parties as parents and regarding the effects of the protracted bickering and

strife and repeated investigations of alleged abuse on Timothy. The trial court did

address Mother’s beliefs about Father but based its order on her actions -- which are

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Opinion of the Court

most likely motivated by her beliefs, as are most of any person’s actions -- that

“created an environment of investigation, physical, psychological and emotional that

has created anxiety in the child and has not been in the child’s best interest.” The

trial court, in its discretion, weighed all of the evidence and determined that Father

is a “fit and proper person to have primary physical custody” and “sole legal custody”

of Timothy and that this arrangement would be in his best interest. We cannot

discern any abuse of discretion in the trial court’s ruling.

B. Child support

Mother’s next arguments address the child support order. Mother first argues

that “the trial court wrongfully imputed income to [Mother.]” The trial court ordered

Mother to pay $616.68 per month as permanent child support, based upon Worksheet

A of the North Carolina Child Support Guidelines. As Mother argues, the trial court

“seemingly imputed income to her in the annual amount of $47,000.00,” since she was

unemployed at the time of trial. Mother also notes that the record does not include a

child support worksheet which shows the child support calculation, and from the

findings in the order, it is unclear exactly how the trial court calculated the obligation.

Before we address the argument as to imputation of income, we note that we

also have been unable to determine exactly what numbers the trial court used to set

the child support obligation. As this Court has previously noted, “[t]he better practice

is for an appellant to include the Guidelines worksheet in the record on appeal.”

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Hodges v. Hodges, 147 N.C. App. 478, 483 n.1, 556 S.E.2d 7, 10 n.1 (2001). We do not

know whether Mother or the trial court is responsible for the missing worksheet,

since we have no brief from Father; but in any event, we cannot review the calculation

without sufficient information. The trial court’s findings of fact regarding the

numbers needed to set child support were as follows:

Monthly Finding No.

amount

Father’s monthly income $4210.876 or 102 or

$3590.91 95

Health insurance 243.27 98

premium costs

Work-related day care $113.00 977

costs

Mother’s income $3916.67 106 (Mother “anticipates if

hired in a teaching position she

would earn $47,000.00 per

year.”)

The findings of fact are supported by the evidence, but when we calculate child

support using these numbers in Worksheet A based upon the Child Support

6 Some of the confusion comes from the length of the trial, which began on 10 February 2014,

during the 2013-14 school year. The trial court’s Finding of Fact No. 95 found “[Father’s] current

income is $3590.91 per month.” (Emphasis added). This was Father’s income during the trial. The

trial ended on 1 August 2014. Finding of Fact No. 102 states that “[Father’s] salary will be $48,492.20

per year plus $2,038.30 as an assistant coach.” (Emphasis added.) He was to begin a new position

with the Charlotte-Mecklenburg schools as of 19 August 2014, with an annual income for the 2014-15

school year of $48,492.20. Thus, by the time of the entry of an order, Father would be receiving the

greater income.

7 In Finding of Fact No. 97, the trial court found that Father pays $35.00 per week for

afterschool care. We have assumed 4.3 weeks per month, for nine months of the school year, to

calculate a monthly total, but we also realize that since Father is a teacher and coach his need for

after-school care may vary from the usual.

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Opinion of the Court

Guidelines in effect at the time of the trial, we do not get a child support obligation

for Mother of $616.68 or any number close enough that we can trust our calculation

to be the same as the trial court’s, whether we use the greater or lesser income for

Father from the findings of fact. We are therefore unable to review the trial court’s

calculation of child support and must remand for the trial court to re-calculate child

support and to set out the values used in the calculation. The trial court should also

attach Worksheet A to any order regarding child support issued on remand.

1. Imputed Income

We now return to the question of whether the trial court erred by imputing

income to Mother. Even if the exact numbers used in the child support calculation

are uncertain, the trial court did clearly impute income to Mother, since she was

unemployed and had no income at the time of trial.

The North Carolina Child Support Guidelines state:

If either parent is voluntarily unemployed or

underemployed to the extent that the parent

cannot provide a minimum level of support for

himself or herself and his or her children

when he or she is physically and mentally

capable of doing so, and the court finds that

the parent’s voluntary unemployment or

underemployment is the result of a parent’s

bad faith or deliberate suppression of income

to avoid or minimize his or her child support

obligation, child support may be calculated

based on the parent’s potential, rather than

actual, income.

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Opinion of the Court

The primary issue is whether a party is motivated by a

desire to avoid his reasonable support obligations. To

apply the earnings capacity rule, the trial court must have

sufficient evidence of the proscribed intent. The earnings

capacity rule can be applied if the evidence presented

shows that a party has disregarded its parental obligations

by:

(1) failing to exercise his reasonable capacity

to earn, (2) deliberately avoiding his family’s

financial responsibilities, (3) acting in

deliberate disregard for his support

obligations, (4) refusing to seek or to accept

gainful employment, (5) willfully refusing to

secure or take a job, (6) deliberately not

applying himself to his business, (7)

intentionally depressing his income to an

artificial low, or (8) intentionally leaving his

employment to go into another business.

The situations enumerated . . . are specific types of bad

faith that justify the trial court’s use of imputed income or

the earnings capacity rule.

Mason v. Erwin, 157 N.C. App. 284, 288-89, 579 S.E.2d 120, 123 (2003) (citations

and quotation marks omitted).

Mother argues that the trial court’s imputation of income “rests entirely upon

the finding that she last applied for a job in Mecklenburg County three years’ prior.”

Mother also notes evidence that she “persistently pursued employment after her

substitute teaching job” ended in May 2013 and that she had some brief periods of

temporary employment. Mother is correct that there was evidence of her efforts to

obtain a new job, but the evidence also supports the trial court’s determination that

she was acting in disregard of her child support obligation. The determination was

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Opinion of the Court

based only in part on the fact that Mother had not applied for a job in Mecklenburg

County in the past three years.

The trial court identified other factors as well. And the trial court may have

considered her failure to apply for jobs in Mecklenburg County particularly telling,

since she alleged in her verified motion to modify child support, filed on 3 July 2013,

that she was “currently actively seeking employment as a teacher in both the

elementary and middle school levels in both Union County and Southern Mecklenburg

County.” (Emphasis added). At trial over a year after she filed this verified motion,

she had actually not sought employment in Mecklenburg County in “three years” as

found by the trial court -- contrary to her motion. In addition, there was extensive

testimony at trial regarding Mother’s educational and professional qualifications and

her work history. It was not unreasonable to expect her to seek employment in

Mecklenburg County, based on her own verified statement that she was actually

doing so. In addition, she had taught in the Mecklenburg County schools in the past,

before taking her more recent teaching job in Union County which she resigned prior

to her move to Arkansas.

Here, the order also notes at least two of the factors identified by Mason which

can support the trial court’s conclusion that Mother acted in bad faith and

intentionally suppressed her income and imputation of income. One factor is that a

parent “ ‘intentionally leav[es] his employment to go into another business’ ” Id. at

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Opinion of the Court

289, 579 S.E.2d at 123 (quoting Wolf v. Wolf, 151 N.C. App. 523, 527, 566 S.E.2d 516,

519 (2002)). Here, the trial court found that Mother “resigned her employment with

Union County Schools . . . effective June 21, 2012.” She quit this job “without having

another job lined up.” She also left her job in Arkansas to move back to North

Carolina. She did get a job after that, but it was temporary, and she had minimal

income from a brief “customer service job” and as a substitute teacher. In addition,

the trial court considered that Mother was “ ‘refusing to seek or to accept gainful

employment.’ ” Id. (quoting Wolf, 151 N.C. App. at 527, 566 S.E.2d at 519). The trial

court made the following findings of fact and related conclusion of law:

106. Ms. Lueallen has interviewed for jobs and

anticipates if hired in a teaching position she would

earn $47,000.00 per year.

....

115. Ms. Lueallen last applied for a job at Charlotte

Mecklenburg Schools three (3) years ago.

....

117. The Defendant Mother has had the means and

ability to comply with the prior orders of the court, has

failed to look for a job in the largest county neighboring

the county of residence of the Defendant Mother and the

court finds that she has failed to exert the necessary

effort to obtain employment and the court finds that she

has willfully suppressed her income to avoid her child

support obligation.

....

Conclusions of Law:

....

8. The Defendant Mother has had the means and ability

to comply with the prior orders of the court, has failed

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Opinion of the Court

to look for a job in the largest county neighboring the

county of residence of the Defendant Mother and the

court finds that she has failed to exert the necessary

effort to obtain employment and the court finds that she

has willfully suppressed her income to avoid her child

support obligation.

As noted by Mason, “[t]he primary issue is whether a party is motivated by a

desire to avoid his reasonable support obligations.” Id. (quotation marks omitted).

The trial court made several findings about Mother’s failure to pay any child support

at all during some time periods when she did receive income or unemployment

compensation. The trial court also found that Mother had “regularly eaten at fast

food restaurants” during some months when she paid no child support.

Mother could have paid some amount of child support during these months,

even if far less than required by the temporary child support order, but she chose to

pay nothing, which is relevant to determining her motivation and bad faith. The

trial court found further that Mother “has incurred $70,000.00 to $80,000.00 in

attorney’s fees, including the Arkansas lawyer, private investigator, and two North

Carolina lawyers and has paid the lawyers $10,000.00 to $20,000.00.” In fact, Mother

testified that she had paid $10,000.00 to $20,000.00 of the fees, totaling up to

$80,000.00; her mother had paid “in the ballpark” of $50,000.00 to $60,000.00, but

she had not obtained any financial assistance from anyone to pay any child support.

The trial court may well have doubted Mother’s motivations when she paid up to

$20,000.00 in attorney fees and obtained assistance to pay up to $80,000.00, during

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Opinion of the Court

a time when she went many months without paying even one dollar toward her child

support obligation.

The trial court also made findings which more directly address Mother’s

motivations:

100. Ms. Lueallen has told Mr. Lueallen, “I am a mom

and moms don’t pay child support.”

101. In regards to Ms. Lueallen reducing her child

support, she has stated, “I’ve not got unemployment

since December so child support should be $50.00 per

month.[”]

....

207. In the past, when [Timothy] has been placed in the

custody and care of Ms. Lueallen she has demanded

that Mr. Lueallen pay babysitting fees.

The trial court also concluded, in regard to bad faith:

14. The Court finds as a conclusion of law that the

Defendant Mother has acted in bad faith.

The findings support the trial court’s conclusions that Mother was willfully

suppressing her income to avoid her child support obligation and that she was acting

in bad faith. The trial court properly imputed income to Mother. On remand, when

recalculating child support as noted above, the trial court should use the imputed

income, which we believe to be $47,000.00 annually, but the trial court should make

the actual amount used clear in its findings and calculations.

2. Amount of Child Support Arrearage

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Opinion of the Court

Mother next argues that “the findings of fact do not support the arrearage

decree.” The trial court set the total child support arrearages at $7,314.43, and this

number includes $616.68 which “came due on November 1, 2014.” We also note that

the trial ended on 1 August 2014. It is impossible for the trial court’s determination

as to arrears accrued after the trial ended to be based upon the evidence presented at

trial, nor could it be supported by the record on appeal. On remand, the order may

address any arrears accrued up to the last day of trial, based on the evidence

presented at trial. We also realize that there may have been communications

between counsel and the trial court regarding the November child support payment

and an agreement to include this month to avoid the expense of an additional hearing

or order. Unfortunately, our record does not reflect any such agreement, and we have

no brief from Father, so the trial court can correct this calculation on remand.

Mother also argues that five of the factual findings of amounts of child support

owed and paid in various months do not add up to the amount ordered as arrears,

and the months after April 2014 seem to have been omitted. We are not entirely sure

if any months were omitted from the trial court’s calculations, since one again, we

cannot get the math to work.

By our calculations, based upon the trial court’s findings of fact, the arrears

owed as of the last day of trial would be $6797.75, and the trial court did specifically

and erroneously include at least one month after the trial ended. On remand, the

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Opinion of the Court

trial court should clearly set forth the calculation of arrears. We would suggest that

a table showing the calculation would be helpful. Purely as a practical matter, it is

easier to avoid mathematical errors when the numbers can be totaled in columns

instead of having to hunt for numbers paid and owed and dates scattered throughout

19 single-spaced, small-font pages of findings.

C. Civil Contempt for Failure to Pay Temporary Child Support

In addition to establishing permanent custody and support, the trial court also

heard Father’s motion to show cause for failure to comply with the order in the child

support action, filed on 23 May 2014. An order to show cause was issued to Mother,

requiring her to appear on 2 June 2014 for a hearing. The motion alleged that Mother

owed arrears of $4,498.35 as of 13 May 2014. The trial court heard the motion along

with the other matters during the trial.

1. Failure to Pay

Mother argues that “the trial court reversibly erred in holding [Mother] in civil

contempt” because her failure to pay was not willful, based upon her periods of

unemployment.

Review in civil contempt proceedings is

limited to 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

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Opinion of the Court

purpose of passing upon their sufficiency to

warrant the judgment.

However, findings of fact to which no error is assigned are

presumed to be supported by competent evidence and are

binding on appeal. The trial court’s conclusions of law

drawn from the findings of fact are reviewable de novo.

Tucker v. Tucker, 197 N.C. App. 592, 594, 679 S.E.2d 141, 142-43 (2009) (citations,

quotation marks, and brackets omitted).

Mother’s primary argument regarding civil contempt is that the evidence did

not support the trial court’s finding that she had the ability to comply with the subject

order yet willfully failed to do so. She argues that she was “unemployed for significant

periods of time after her substitute teaching position at New Town Elementary School

ended in May 2013” and that although she received some unemployment

compensation and earnings from temporary jobs intermittently, the income did not

allow her to pay her living expenses and her temporary child support obligation of

$574.85. Thus, she argues that her failure to pay was not willful and that she did not

have the ability to comply.

The temporary child support order was entered on 25 June 2013, although it

was based upon a hearing which ended on 22 April 2013. Mother was ordered to pay

$574.85 beginning on 1 June 2013. In the temporary child support order, the trial

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Opinion of the Court

court found that Mother was employed at New Town Elementary School8 “through

the rest of this year as a contract teacher filling in for a teacher who is out on

maternity leave.” Thus, by the time the temporary order was entered by the court,

Mother’s temporary job at New Town Elementary had already ended, in May 2013.

On 3 July 2013, Mother filed a motion to modify child support, alleging that her job

had ended so she was receiving unemployment compensation. She also alleged that

she “is currently actively seeking employment as a teacher in both the elementary

and middle school levels in both Union County and Southern Mecklenburg County

school districts in the hopes of obtaining a job and maximizing her income potential.”

The order on appeal, in addition to finding her in contempt, specifically denied this

motion to modify.

As discussed above, we have already determined that the trial court’s findings

were supported by the evidence. The trial court properly concluded that Mother had

“willfully suppressed her income to avoid her child support obligation.” In addition,

we have determined that the trial court properly imputed income to Mother and

concluded that she acted in bad faith based on her failure to make reasonable efforts

to obtain a new full-time position.

8 One finding in the temporary order states that New Town Elementary is in Arkansas, but

from the evidence and other findings we believe that this was a clerical error, as the evidence shows

that New Town Elementary is in Union County, North Carolina.

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Opinion of the Court

The trial court’s conclusions of law regarding Mother’s willful failure to pay

child support and her ability to comply are supported by the findings of fact.

Our State’s case law reveals a well-established line of

authority which holds that a failure to pay may be willful

within the meaning of the contempt statutes where a

supporting spouse is unable to pay because he or she

voluntarily takes on additional financial obligations or

divests him or herself of assets or income after entry of the

support order. A contrary rule would permit a supporting

spouse to avoid his or her obligations by the simple means

of expending assets as he or she pleased, and then pleading

inability to pay support, thereby insulating him or herself

from punishment by an order of contempt.

Shippen v. Shippen, 204 N.C. App. 188, 190-91, 693 S.E.2d 240, 243-44 (2010)

(citations and quotation marks omitted).

For these reasons, Mother’s argument is without merit.

2. Purge Conditions

Mother next argues that the purge conditions of the order are not supported

by the findings of fact and conclusions of law. The trial court ordered that Mother

“shall purge herself of said contempt by payment of an additional $75.00 per month

through Centralized Collections, which shall also be applied towards her arrears.”9

The order does not specify when the purge payments end.

9 On top of that, the order also required Mother to pay $100.00 per month toward arrears, in

addition to her ongoing child support obligation of $616.68. Thus, the order required a total monthly

payment of $791.68.

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Opinion of the Court

As noted above, we are remanding for the trial court to recalculate the child

support obligation and child support arrears. For this reason alone, we would have

to vacate this portion of the order, since the amounts may be different on remand and

the trial court would need to set new purge conditions, based upon appropriate

findings of fact and a conclusion of law as to Mother’s ability to purge herself of

contempt. As also noted above, we are not entirely certain of the income which the

trial court imputed to Mother.

This Court recently vacated an order which did not set any ending date for

payments to purge contempt in Spears v. Spears, __ N.C. App. __, 784 S.E.2d 485

(2016). In Spears, the order held the defendant in contempt and required the

defendant to make purge payments of an additional $900.00 per month “over and

above” the ongoing child support and alimony obligations set by the order. Id. at __,

784 S.E.2d at 488. The Spears plaintiff countered that

the absence of an ending date for the monthly payment of

$900.00 “over and above” the February 2013 Order’s

obligations indicates that this additional payment is

simply a monthly payment towards the arrears of

$12,770.80, which would end on a definite date when the

arrears were paid in full. (Plaintiff contends that the

$900.00 monthly payments would satisfy the first purge

condition in “just over 14 months” since “$12,770.80

delinquency ÷ $900.00 additional payment = 14.189

months).” This is a reasonable argument, but it might be

more convincing if the amount paid each month would

divide evenly by a number of months. By plaintiff’s logic,

the order implies that defendant must pay $900.00 for

fourteen months and 18.98 percent of that amount in the

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Opinion of the Court

fifteenth month, or $170.80. Even if this was the trial

court’s intent, the order is impermissibly vague as written.

Accordingly, we hold that the trial court erred in failing to

establish a definite date by which defendant could have

purged himself of the contempt. We also note that in the

Order on Purge Condition Noncompliance, the trial court

repeated this error when it ordered that defendant’s “civil

contempt shall continue unless he makes payments

consistent with the February 2013 Order and the purge

conditions set by this Court.”

Id. at __, 784 S.E.2d at 501 (citations omitted).

Here, as in Spears, the purge conditions are impermissibly vague. Even if the

$75.00 per month is applied toward arrears, the ending date is uncertain. We vacate

the purge conditions and direct that the trial court enter new conditions on remand,

consistent with this opinion.

D. Attorney Fees

Finally, Mother argues that “the trial court reversibly erred in awarding

[Father] $20,000.00 in attorneys’ fees” because “the findings of fact do not support the

award.” The trial court’s findings of fact regarding attorney fees are limited as they

address only the total amounts billed by Father’s counsel in North Carolina and

Arkansas; Father’s inability to pay all of his attorney fees and that he had to borrow

money; and that he “brought this action in good faith and does not have the means

and ability to defray the costs of this action, which has been greatly increased due to

the false allegations made by [Mother.]”

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LUEALLEN V. LUEALLEN

Opinion of the Court

The order fails to make any findings regarding the reasonableness of the

attorney fees as required by law. Although the trial court found that Father was

acting in good faith and has insufficient means to defray the expense of the suit, as

required by N.C. Gen. Stat. § 50-13.6, the order failed to make any findings as to “ ‘the

nature and scope of the legal services rendered, the skill and time required, the

attorney’s hourly rate, and its reasonableness in comparison with that of other

lawyers.’ ” Smith, 195 N.C. App. at 255, 671 S.E.2d at 586 (quoting Cobb v. Cobb, 79

N.C. App. 592, 595, 339 S.E.2d 825, 828 (1986)). It is necessary that the record

contain findings regarding these factors in order to determine whether an award for

attorney fees is reasonable, and “[i]f these requirements have been satisfied, the

amount of the award is within the discretion of the trial judge and will not be reversed

in the absence of an abuse of discretion.” Id. (quotation marks and brackets omitted).

The parties offered detailed affidavits regarding attorney fees, so on remand

the trial court must also make additional findings of fact addressing “ ‘the nature and

scope of the legal services rendered, the skill and time required, the attorney’s hourly

rate, and its reasonableness in comparison with that of other lawyers’ ” in support of

its award of attorney fees. Id. (quoting Cobb, 79 N.C. App. at 595, 339 S.E.2d at 828).

IV. Conclusion

For the reasons stated above, we affirm the portions of the trial court’s order

addressing custody, with the exception of Decree provisions 4 and 6, which must be

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LUEALLEN V. LUEALLEN

Opinion of the Court

vacated and rewritten on remand. In addition, we vacate portions of the order

regarding calculating child support and arrears and remand for recalculation of those

amounts and so that the trial court may set out in more detail the numbers used in

making those calculations. We also find that the purge conditions in the order are

impermissibly vague and therefore must be redefined more precisely on remand.

Finally, we remand for additional findings of facts regarding the award of attorney

fees.

On remand, since portions of the order on appeal are vacated and the trial

court will be entering a new order -- and must be able to make findings and

conclusions as to Mother’s present ability to comply with the obligations set by the

order, including any purge conditions for contempt -- the court shall, upon timely

written request from either party, hold an additional hearing to address the order on

remand. Evidence and argument presented at this hearing shall be limited to

evidence necessary for the purposes as noted in this opinion.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

Judges ELMORE and DIETZ concur.

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