Davis v. Davis, 229 N.C. App. 494

Background

Parties divorced after a 2003 custody order awarding joint legal custody, plaintiff (mother) primary custody, defendant (father) alternate-weekend visitation with shared holidays/summers and make-up drill-weekend provisions.
On Jan. 18, 2009, during weekend visitation father disciplined daughter Mary “in an inappropriate manner,” leaving a bruise; DSS investigated and found allegations unsubstantiated.
Plaintiff unilaterally suspended father’s court-ordered visitation, conditioned resumption on his obtaining anger management counseling; for years she allowed only supervised or limited contacts while communications and settlement attempts proceeded.
Father filed to modify custody (seeking primary custody) and later filed contempt for plaintiff’s denial of visitation; plaintiff moved to suspend visitation and to clarify/modify the 2003 order and requested anger management for father.
After protracted delays, a multi-day hearing occurred in 2011; in May 2012 the trial court denied father’s motion to modify custody, denied contempt, ordered father to obtain anger management assessment, resumed visitation with phased conditions, and appended clarifications to the 2003 order.
On appeal the court vacated in part and affirmed in part: it vacated the visitation modifications and anger-management order for lack of a required finding of substantial change affecting the children’s welfare, and affirmed denial of contempt.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court could modify custody/visitation or order anger-management without expressly finding a substantial change in circumstances affecting the children’s welfare	Mother: court may require mental-health/anger management and may clarify ambiguous provisions without needing express change-of-circumstances finding	Father: modification/order required express finding that a substantial change affecting the children’s welfare occurred	Vacated modifications and anger-management order: trial court failed to make required findings of a substantial change affecting welfare before modifying custody/visitation or ordering treatment
Whether the court had authority under Chapter 50B or inherent powers to order anger-management when raised in a motion in the cause	Mother: Chapter 50B authority or trial-court discretion supports ordering evaluation/treatment	Father: absent proper findings in a Chapter 50 custody motion, court lacked basis to impose treatment	Rejected: Chapter 50B inapplicable; court may order evaluations only when modification is justified by required findings; here findings insufficient
Whether the changes to visitation were mere “clarifications” not requiring a change-of-circumstances showing	Mother: amendments were clarifications of ambiguous scheduling provisions and thus permissible	Father: changes altered substantive rights and therefore required change-of-circumstances finding	Rejected: changes (except possibly narrow clerical fixes) were substantive and required the statutory showing; court’s order did not contain required findings, so changes vacated
Whether plaintiff was in contempt for unilaterally suspending visitation for >2 years	Father: plaintiff willfully disobeyed the 2003 order and should be held in contempt	Mother: her conduct was justified by safety concerns after the Jan. 2009 incident; she sought remedies and later moved to modify	Affirmed denial of contempt: competent evidence supported trial court finding that plaintiff’s failure to comply was justified under the circumstances, so nonwillful

Key Cases Cited

Shipman v. Shipman, 357 N.C. 471 (explaining requirement that custody modification be supported by substantial change affecting child's welfare)
Peal, In re Custody of, 305 N.C. 640 (trial court afforded broad discretion in custody matters)
Hibshman v. Hibshman, 212 N.C. App. 113 (modification reversible error absent findings of substantial change)
Clark v. Clark, 294 N.C. 554 (custody orders enforceable by contempt; appellate review of contempt findings)
Greer v. Greer, 101 N.C. App. 351 (trial court must make specific findings on changed circumstances and listed statutory factors)
Shepherd v. Shepherd, 273 N.C. 71 (stability of custody decrees requires findings before modification)
Stanback v. Stanback, 266 N.C. 72 (modification must conform to changed conditions and be necessary)
Jones v. Patience, 121 N.C. App. 434 (limits on ordering court-ordered counseling absent proper custody modification motion)
Lee v. Lee, 37 N.C. App. 371 (mother held in contempt for unilaterally suspending father's visitation)
Hancock v. Hancock, 122 N.C. App. 518 (willfulness defined for contempt as knowledge and stubborn resistance)