Domestic Relations – Child Custody – Motion to Appoint a Parenting Coordinator

The trial court’s findings of fact do not support its conclusion of law to deny the parenting coordinator and granting Rule 11 sanctions based on Mother’s filing the motion to appoint a parenting coordinator.

We vacated the order denying the appointment of a parenting coordinator and awarding sanctions under Rule 11 and remanded to the trial court.

Mother appealed from an order denying her motion to appoint a parenting coordinator and granting Father’s motion for sanctions against Mother. Mother first argued the trial court failed to make findings of fact required under N.C.G.S. § 50-91(b) in making its determination. The sole conclusion of law addressing the motion for appointment of parenting coordinator is “The Motion for Appointment of a Parenting Coordinator was filed in retaliation in bad faith,” but bad faith is the basis for the Rule 11 sanctions. Thus, the trial court both denied the motion for appointment of parenting coordinator and granted sanctions based upon Mother’s “bad faith” in filing her motion. The Order is therefore a hybrid of an order imposing Rule 11 sanctions and an order denying appointment of a parenting coordinator, but based on the trial court’s conclusion of law, it is predominantly an order ruling on Father’s motion for sanctions under Rule 11.

The trial court did not find, as Father’s motion for sanctions alleged, that in filing the Motion for appointment of parenting coordinator Mother or her counsel had failed to “comply with the rules,” intentionally deceived the Court, or “willfully falsif[ied] information on the Calendar Request.” Instead, the findings addressed only mother’s “bad faith.” There were also no findings indicating that Mother’s Motion for appointment of parenting coordinator was filed “to gain some temporary tactical advantage, to cause unnecessary expense or delay, or to advance some other improper motive.” The trial court’s order relied heavily on the use of the words in Mother’s motion that she “wishes to reciprocate” in response to Father’s motions for contempt against her. Although this was perhaps a poor choice of words for the motion, the Motion clearly states the factual and legal basis for appointment of parenting coordinator, and there was no real dispute about either. But the trial court’s order did not directly address the motion for parenting coordinator; it focused primarily on the motion for sanctions against Mother for filing the motion. The order did not include any findings or conclusion of law that the case is or is not a “high conflict” case or about the best interest of the child or how the ongoing conflict between the parties affects (or does not affect) the child. Instead, the trial court focused on the Rule 11 sanction issue and Mother’s motivation, or at least one element of her motivation, for filing the motion for parenting coordinator: that she filed the motion in response, or retaliation, to Father’s several pending motions, and the trial court’s conclusion of law supporting both sanctions and the denial of the motion for parenting coordinator was Mother’s “bad faith.”

The trial court found that although “parenting coordinators are able to assist in a lot of cases, the Court does not believe it will assist in this case, due to the primary source of conflict being the allegations of failure to follow the Order.” However, in many cases addressing the appointment of a parenting coordinator, the parties’ failures to follow orders or allegations of failures to follow orders create the “excessive litigation” that is part of the definition of a “high conflict” case. Holding a party in contempt may assist in resolving some of the conflict in a high conflict case, but if a mere contempt order were sufficient to quell years of conflict in “high conflict” cases, there would rarely be a basis for appointment of a parenting coordinator in any case. And in this case, prior contempt orders had not yet ended the conflict between the parties. Of more concern for the purposes of § 50-91, the trial court made no findings about the best interests of the child but simply denied the motion to appoint a parenting coordinator and sanctioned Mother for filing the motion, despite making findings about the conflicts between the parties. Finally, the trial court made no findings related to the parties’ financial abilities to pay for a parenting coordinator, although Mother stated at the hearing that she was willing and able to pay for the parenting coordinator.

The trial court made findings of fact, and these findings tend to support the appointment of a parenting coordinator, not the denial of the motion, and the trial court seemingly denied the motion as a part of the sanction under Rule 11. Finally, there was evidence presented by Mother at trial that she would be able to afford a parenting coordinator.

Vacated and remanded.

Riggan v. Andrews (Lawyers’ Weekly No. 011-099-25, 26 pp.) (John Arrowood, J.) Appealed from Wake County District Court (Julie L. Bell, J.) No brief filed on behalf of Richard T. Riggan, Jr., pro se plaintiff-appellee; Law Offices of Stephanie J. Brown, by Stephanie J. Brown, for defendant-appellant. North Carolina Court of Appeals