Maxwell v. Maxwell
212 N.C. App. 614
N.C. Ct. App.2011Background
- Plaintiff Andrew Maxwell and Defendant Kristina Maxwell are parents of quadruplets born January 18, 2004; they separated circa 2005–2006, with Plaintiff in Australia and Defendant in North Carolina.
- A 2007 consent order granted Defendant permanent custody, Plaintiff visitation, and ordered Plaintiff to pay $900 Australian dollars per month in child support.
- Defendant later obtained a domestic violence protective order in 2008 after incidents in Australia; Plaintiff challenged this via a Hague Convention action in federal court.
- The Fourth Circuit affirmed the district court in November 2009, allowing the Hague proceedings to resolve the return of children.
- In February–May 2010, the Mecklenburg County trial court (1) granted Defendant’s DVPO, (2) denied modification of child support, (3) found Plaintiff in civil contempt for nonpayment, and (4) modified custody to suspend Plaintiff’s visitation pending a mental-health evaluation, with a review to follow.
- Plaintiff appeals on three grounds: contempt, requirement to undergo a mental health evaluation without proper motion/notice, and suspension of visitation without a finding of parental unfitness or best interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether civil contempt findings support contempt order | Plaintiff contends findings do not show ability to comply | Court properly found ability to comply and willful nonpayment | Contempt affirmed on the merits |
| Whether Court properly ordered mental health evaluation without Rule 35 motion/notice | Rule 35 required motion and notice; not satisfied | Rule 35(a) not applicable; court has discretion in custody cases | No abuse of discretion; Rule 35 not controlling here |
| Whether suspension of visitation required a fitness/best interests finding | Visitation suspension without fitness finding violated statute | Court could suspend visitation pending evaluation under custody discretion | Remand for explicit findings on fitness or best interests needed |
Key Cases Cited
- Adkins v. Adkins, 82 N.C.App. 289 (1986) (present means to comply supports contempt finding)
- Brewer v. Brewer, 139 N.C.App. 222 (2000) (temporary vs. permanent orders; reconvening date matters)
- Senner v. Senner, 161 N.C.App. 78 (2003) (temporary order becomes final if reconvening date not set or reasonably brief)
- Moore v. Moore, 160 N.C.App. 569 (2003) (need for fitness/best interests findings on visitation)
- Pass v. Beck, 156 N.C.App. 597 (2003) (trial court may defer best interests determination pending expert input)
- Rawls v. Rawls, 94 N.C.App. 670 (1989) (court may order evaluation before specific visitation)
- Shumaker v. Shumaker, 137 N.C.App. 72 (2000) (presence of ability to comply supports contempt analysis)
- Cox v. Cox, 133 N.C.App. 221 (1999) (recognizes temporary designation not controlling)
- Veazey v. Durham, 231 N.C. 357 (1950) (interlocutory appeals; timing considerations)
- Goldston v. American Motors Corp., 326 N.C. 723 (1989) (interlocutory appeal exceptions)
- Hayes v. Premier Living, Inc., 181 N.C.App. 747 (2007) (standards for appellate review of interlocutory orders)