McKinney v. McKinneyÂ
2017 N.C. App. LEXIS 393
| N.C. Ct. App. | 2017Background
- Parents (Mother Ginger Sutphin and Father Joseph McKinney Jr.) share a minor son, Max; original custody consent order (2009) gave Mother primary physical custody with visitation to Father.
- In 2014 Father sought modification to obtain primary custody; before hearing Max twice traveled from Mother’s home in Greensboro to Father in Wilmington without Mother’s consent.
- Parties entered a July 2014 consent order directing Max’s return to Greensboro; Max again went to Wilmington in August 2014 and stayed about a month and attended school there.
- Mother filed show-cause motions; the district court held a hearing the week of Sept. 8, 2014, orally found Father in criminal and civil contempt, and later reduced the contempt findings to a written order (Sept. 25, 2014).
- Father later obtained primary custody in a December 2014 order; in March 2016 the district court awarded Mother ~$51,100 in attorneys’ fees for prosecuting the contempt action. Father appealed.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether district court criminal contempt finding is properly before Court of Appeals | Criminal contempt finding is valid and supports punishment and associated fee award | Criminal contempt can be reviewed on appeal here | Appeal dismissed as to criminal contempt — appeals from district court criminal contempt go de novo to superior court (not COA) |
| Whether district court could find Father in civil contempt after he returned the child but before written order filed | Civil contempt finding justified by Father’s conduct (failure to return/communicate) | Father had returned Max before the written order; court lacks authority to impose civil contempt once compliance occurred prior to entry | Civil contempt finding vacated — where contemnor purged contempt before written order, district court lacks authority to impose civil contempt |
| Whether Mother may recover attorneys’ fees incurred prosecuting the contempt motion when respondent purged before written order | Fees are recoverable because Mother prevailed in obtaining compliance and enforcing the order | Fees should be denied in whole or in part because contempt finding was vacated and criminal portion is not before COA | Fees tied to criminal contempt portion — appeal dismissed; fees tied to civil contempt reversed and remanded for further factfinding about willfulness and entitlement |
| Sufficiency / credibility of factual findings supporting civil contempt | Mother contends findings support willfulness (e.g., Father enticed child to stay) | Father argues many factual findings are unsupported or misstate his testimony (he told child to return; offered transportation) | Court found several factual findings unsupported or inconsistent with precedent (Hancock) and reversed fee award portion based on civil contempt; remand permitted for further findings on willfulness |
Key Cases Cited
- Reynolds v. Reynolds, 356 N.C. 287 (2002) (establishes that appeals from criminal contempt findings in district court are taken de novo to superior court)
- Hancock v. Hancock, 122 N.C. App. 518 (1996) (parental failure to force a child to comply with visitation does not alone constitute civil contempt absent evidence of encouragement or coercion)
- Ruth v. Ruth, 158 N.C. App. 123 (2003) (attorney’s fees may be awarded even if alleged contemnor purges contempt before hearing, in limited circumstances)
- Olson v. McMillian, 144 N.C. App. 615 (2001) (oral trial court orders are ineffective until reduced to writing, signed, and filed)