Wilson v. GuinyardÂ
254 N.C. App. 229
| N.C. Ct. App. | 2017Background
- Parents share joint legal custody; mother (Wilson) has primary physical custody in Durham, NC; father (Guinyard) has secondary physical custody and bi-monthly weekend visitation from Charleston, SC.
- 2011 custody order set exchange location and provided that missed exchanges (except for good cause) could trigger contempt and require reimbursement for travel/hotel; a 2014 consent order fixed exchange times and required advance text notice for delays.
- Plaintiff filed a contempt motion alleging Defendant was habitually late to exchanges (over 40 late arrivals from May 2014–Feb 2016) and described a missed exchange after a Super Bowl party that caused the child to miss school.
- Defendant’s counsel moved to withdraw; Defendant consented and later sought a continuance to obtain new counsel (denied). At hearing Defendant proceeded pro se, did not claim indigence, and did not request appointed counsel.
- Trial court found Defendant willfully in civil contempt, imposed purge conditions (pick up/drop off next three weekends; forfeiture of a weekend if >30 minutes late), and awarded Plaintiff attorney’s fees.
- On appeal the Court of Appeals affirmed contempt findings and purge conditions, but vacated the attorney’s fees award for lack of required findings and remanded that issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court erred by failing to inquire into Defendant’s desire/ability to pay for counsel | Wilson argued no error: Defendant had counsel and consented to withdrawal; no indigence shown | Guinyard argued court should have inquired into his desire/ability to pay or appoint counsel before contempt hearing because incarceration was possible | Court: No error — Defendant never claimed indigence or requested appointed counsel; had retained counsel earlier and consented to withdrawal; no special complexity required appointment |
| Whether findings support willful civil contempt for repeated late/missed exchanges | Wilson contended evidence showed habitual, willful noncompliance supporting contempt | Guinyard argued lateness did not equal willful contempt and orders allowed delay for unforeseen circumstances | Court: Affirmed contempt — competent evidence of habitual lateness and specific willful refusal to comply (Super Bowl incident); ability to comply was found |
| Whether contempt order improperly modified custody or imposed invalid purge conditions | Wilson maintained purge conditions merely spelled out compliance steps, not a custody modification | Guinyard argued the order effectively modified custody/visitation terms | Court: No modification — joint legal and secondary physical custody remained; purge conditions were specific and coercive (not punitive) and therefore permissible |
| Whether trial court abused discretion awarding Plaintiff attorney’s fees | Wilson sought fees under statute, arguing fees were reasonable and warranted | Guinyard argued fees improper or unsupported | Court: Vacated and remanded — trial court failed to make statutorily required findings (good faith of interested party, inability to pay, and factual basis for reasonableness) |
Key Cases Cited
- King v. King, 144 N.C. App. 391 (discusses right to counsel in civil contempt where liberty is at stake)
- Lassiter v. Dept. of Social Services of Durham Cty., N.C., 452 U.S. 18 (procedural due process standard for appointed counsel in civil matters risking loss of liberty)
- Tyll v. Berry, 234 N.C. App. 96 (appointment of counsel in indigent civil contempt is case-by-case)
- Hodges v. Hodges, 64 N.C. App. 550 (appointment required only when necessary for adequate presentation or fundamental fairness)
- McBride v. McBride, 334 N.C. 124 (indigent civil contemnor cannot be jailed for inability to pay child support without counsel)
- Sharpe v. Nobles, 127 N.C. App. 705 (standard of review for contempt orders: findings supported by competent evidence)
- Scott v. Scott, 157 N.C. App. 382 (civil contempt aims to coerce compliance; court must find ability to comply)
- Mauney v. Mauney, 268 N.C. 254 (willfulness requires knowledge and stubborn resistance)
- Tankala v. Pithavadian, 789 S.E.2d 31 (an order adding specific dates/locations consistent with custody terms is not a modification)