Domestic Relations – Child Support – Sua Sponte Modification – Custody – Autism Protocols – Contempt

Where there was neither a motion to modify child support nor any evidence presented about that issue, the trial court should not have modified defendant’s child support obligation sua sponte.

We affirm the trial court’s custody modification and attorneys’ fee award. We vacate the child support modification and dismiss defendant’s appeal of the order finding him in criminal contempt.

Custody

Even though the trial court labeled its 2015 order a “temporary” custody order, since the 2015 order (1) was not entered without prejudice to either party, (2) did not state a date for the parties to reconvene, and (3) determined all of the issues before the court at that time, the 2015 order was a permanent custody order. As such, the trial court could modify custody only if it first determined that there had been a substantial change in circumstances since the 2015 order was entered.

The court’s unchallenged findings established that since the entry of the 2015 order (1) the child “Aaron’s” therapist stopped treating him due to defendant’s refusal to comply with therapeutic strategies and recommendations; (2) an altercation occurred in which, according to Aaron, defendant hit him, kicked him, and threw him to the ground; (3) Aaron forgot this event the next day, tending to show that he had a dissociative disorder (meaning he could be abused, forget it, and not be able to report it); (4) at least two other incidents occurred during which defendant used excessive physical force and refused to allow Aaron to call his mother; (5) Aaron has felt more susceptible to environmental triggers due to defendant’s physical confrontations with him; and (6) defendant has not followed Aaron’s individualized education plan, causing Aaron to feel he was being punished when he used calming techniques but received no reward from defendant.

These findings demonstrate that in making its changed circumstances determination the trial court did, in fact, properly consider the time period since the 2015 order was entered. Moreover, the findings clearly support the trial court’s conclusion that defendant’s actions toward Aaron during this time period were having a negative effect on him. Therefore, we affirm the trial court’s modification of custody in its Dec. 16, 2016, order.

Child Support

Although neither party had moved to modify child support, and although no evidence on the support issue was presented, the trial court nevertheless modified defendant’s child support obligation.

This court has repeatedly held that a court is without authority to sua sponte modify an existing support order. However, in Catawba County v. Loggins, 804 S.E.2d 474 (2017), (Lawyers Weekly No. 010-061-17), which involved a voluntary modification of a prior voluntary support order, our Supreme Court held that “the absence of a motion to modify a child support order does not divest the district court of jurisdiction to act under the purview of [G.S. § 50-13.7(a)].” The court explained that the primary purpose of § 50-13.7(a) is “to make the court aware of important new facts unknown to the court at the time of the prior custody decree. . . .”

The concurring opinion in Loggins said “the majority’s reasoning should be read narrowly.”

The present case is materially distinguishable from Loggins. The existence of the voluntary support order signed by the parties and submitted to the trial court played a central role in the Supreme Court’s decision, providing an adequate substitute for a motion in the cause.

Here, conversely, there was neither a motion in the cause nor a consent agreement in which one or both of the parties sought a modification of defendant’s child support obligation. Thus, the trial court’s Dec. 16, 2016, order constitutes a classic case of a sua sponte modification of a child support order despite the absence of any acts sufficient to satisfy the purpose of G.S. § 50-13.7(a).

Had the Supreme Court in Loggins intended to express its disapproval of this court’s longstanding prohibition of the sua sponte modification of child support obligations, we believe it would have said so overtly. Therefore, we read Loggins as continuing to require some action by the parties in order to satisfy the underlying purpose of § 50-13.7(a). Accordingly, we vacate the portion of the trial court’s Dec. 16, 2016, order modifying defendant’s child support obligation.

Contempt

The trial court’s Dec. 16, 2016, order imposed a fine on defendant, which is generally associated with criminal contempt. However, the fine was imposed as part of a purge condition, which is indicative of a finding of civil contempt. In a Dec. 30, 2016, order, the trial court clarified its intent, stating its determination that criminal – rather than civil – contempt was appropriate in light of defendant’s prior actions.

Because the trial court ultimately concluded that defendant should be held in criminal contempt, we lack jurisdiction over defendant’s appeal of the contempt holding. His sole recourse was an appeal to superior court under G.S. § 5A-17(a).

Affirmed in part, vacated in part, and dismissed in part.

Summerville v. Summerville (Lawyers Weekly No. 011-141-18, 30 pp.) (Mark Davis, J.) Appealed from Chatham County District Court (Lunsford Long, J.) Rebecca Watts for plaintiff; Gray Ellis and Jillian Mack for defendant. N.C. App.