Opinion
No. COA10-993
Filed 7 June 2011 This case not for publication
Appeal by plaintiff from orders entered 30 April 2009, 5 August 2009, and 10 August 2009 by Judge Nancy Black Norelli in Caldwell County District Court. Heard in the Court of Appeals 9 February 2011.
John Fletcher Church, pro se. Respess Jud, by W. Wallace Respess, Jr., and Marshall Hurley, PLLC, by Marshall Hurley for Defendant.
Caldwell County No. 01 CvD 1391.
Plaintiff John Fletcher Church appeals from an order entered 30 April 2009 awarding interim attorney's fees to Defendant Jean Marie Decker (formerly Church), an order entered 5 August 2009 finding Plaintiff in civil contempt for nonpayment of attorney's fees, and an order entered 10 August 2009 requiring Plaintiff to submit to a complete psychological evaluation by Dr. Debra Peters Moore. After careful consideration of Plaintiff's challenges to the trial court's orders in light of the record and the applicable law, we conclude that Plaintiff failed to note a timely appeal from the interim attorney's fees order and that the trial court did not err by holding Plaintiff in contempt. However, although the record contains ample support for the trial court's decision to require Plaintiff to undergo a psychological evaluation and to temporarily suspend his visitation with his children pending completion of that evaluation, the record contains no indication that Plaintiff was given an opportunity to be heard with respect to the selection of the individual responsible for conducting that examination. As a result, we affirm the 5 August 2009 orders holding Plaintiff in civil contempt, remand the 10 August 2009 order requiring Plaintiff to undergo a psychological evaluation with instructions that Plaintiff be given an opportunity to be heard with respect to the identity of the person responsible for performing the evaluation prior to the issuance of a modified order, and dismiss Plaintiff's appeal from the 30 April 2009 order awarding interim attorney's fees.
I. Factual Background
Plaintiff and Defendant were married on 23 December 1992, lived together as husband and wife until their separation on 31 August 2001, and were granted an absolute divorce on 22 November 2002. Two children were born of the parties' marriage: a son, who was born on 23 October 1993, and a daughter, who was born on 18 March 1998. Based upon an order entered on 22 November 2004, Plaintiff had primary physical custody of the children from 15 November 2004 until 27 August 2007.
On 27 August 2007, Defendant filed a motion seeking modification of the existing custody order. On the same date, Judge Gregory R. Hayes issued an emergency ex parte order granting Defendant legal and physical custody of the children, and ordering that Plaintiff have no contact with the children pending further judicial review. On 5 September 2007 and 14 September 2007, the trial court heard evidence in order to determine whether or not the 27 August 2009 emergency order should continue in effect. After considering that evidence, Judge J. Gary Dellinger entered a temporary custody order on 5 December 2007 granting legal custody and primary physical custody to Defendant, but significantly relaxing the restrictions on Plaintiff's contact with the minor children set out in the emergency order. On 17 December 2007, Plaintiff filed a motion to set aside or amend the temporary custody order, a motion which Plaintiff claims was denied by the trial court on 6 August 2008.
The issue of permanent custody came on for trial before the trial court on 30 March 2009. The trial court heard evidence concerning the issue of custody from 30 March 2009 through 3 April 2009, with further hearings being held on 7 April 2009 and 9 April 2009 for the purpose of addressing Defendant's motions for child support and attorney's fees. At the conclusion of the 9 April 2009 hearing, the trial court announced that it would enter an order granting joint legal custody to the parties and awarding primary physical custody to Defendant.
On 30 April 2009, the trial court entered three separate orders: (1) an interim attorney's fees order, (2) an interim child support order and (3) an order addressing child custody and visitation issues. The interim attorney's fees order contained the following findings of fact:
9. On April 9, 2009, the Court heard abbreviated evidence regarding child support and entered a child support order requiring the Plaintiff to pay child support to the Defendant.
10. From August 27, 2007, to April 9, 2009, the Plaintiff provided Blue Cross Blue Shield Insurance Coverage for the minor children but paid no child support.
11. The Plaintiff failed to provide child support which was adequate under the circumstances existing at the time of the institution of this action on August 27, 2007, through the date of this hearing.
12. The Plaintiff has at all times had the means and ability with which to provide support adequate for the minor children. However, he has taken no actions whatsoever to pay any support other than health insurance.
13. The Defendant has insufficient means with which to defray the expense of this suit.
14. The Defendant was an interested party acting in good faith at the time she filed the Motion to Modify Child Custody and Support on August 27, 2007.
15. The Defendant has incurred attorney[']s fees in excess of $25,000.00.
16. The Court has reviewed the affidavit of attorney[']s fees of the Defendant['s] [counsel], and finds that the fees set forth in the affidavit are reasonable from the experience of the Defendant['] s attorney and the experience required for the services rendered.
17. The Plaintiff asserts that he has retained the services of an attorney and requests that the court delay the entry of an order regarding attorney[']s fees until the three month hearing which is presently scheduled for the review of the terms of the Plaintiff[']s visitation in three months.
18. The Court finds that an interim payment of attorney!']s fees will serve the interest of justice and that a determination of the final award of attorney!'] s fees shall be made at the three month hearing following the entry of this Order.
Based on these findings of fact, the trial court concluded as a matter of law:
1. That the Defendant is entitled to an award of counsel fees pursuant to North Carolina General Statute Section 50-13.6.
2. That the Defendant was at all times on or after August 7, 2007, an interested party acting in good faith who had insufficient means with which to defray the expenses of this suit.
3. That the Plaintiff has the means and ability with which to defray a reasonable attorney[']s fee.
In light of these findings of fact and conclusions of law, the trial court ordered that:
1. The Plaintiff shall pay directly to [Defendant's attorney] the sum of $5,000.00 on or before May 9, 2009.
2. That the Plaintiff shall pay directly to [Defendant's attorney] an additional $5,000.00 within sixty (60) days of May 9, 2009.
3. Failure to comply with this Order shall constitute willful, civil contempt of Court.
4. This is an interim order of attorney!'] s fees. The Court shall make a final determination of attorney!']s fees at the three (3) month hearing scheduled for a review of visitation.
On 11 May 2009, Plaintiff filed a motion entitled "Motion to Stay Interim Attorney Fees; Motion to Set Aside/Amend Order for Interim Attorney[']s Fees; Motion for Protective Order Regarding Interim Attorney Fees." In June and July of 2009, Defendant filed a series of motions seeking the entry of orders requiring Plaintiff to show cause why he should not be held in contempt based upon his alleged failure to comply with the terms of the 30 April 2009 orders. The issues raised by these and other filings came on for hearing before the trial court on 5 August 2009.
On 5 August 2009, Plaintiff filed a "Reply to Motion for Show Cause Order of Contempt" and a "Motion to Reconsider Order of Interim Attorney[']s Fees Filed April 30, 2009," a document which Plaintiff now describes as a "supplemental Rule 59 and 60 motion to better present the arguments presented in the 11 May 2009 Rule 59/Rule 60 motion regarding attorney fees."
At the 5 August 2009 hearing, the trial court determined that Plaintiff had failed to make the first attorney's fee payment required by the interim attorney's fees order and informed Plaintiff that he must show cause for his noncompliance in order to avoid incarceration. Plaintiff claimed that he lacked the ability to make the required payment and argued that the "interim order is unlawful, and I don't think I should pay due to that." In response, the trial court reminded Plaintiff that it had previously determined that he had the ability to comply with the order and asked him to demonstrate that a change in circumstance had occurred between the date of the interim attorney's fees order and the date upon which the initial payment was due. In response, Plaintiff admitted that "there [had not been] a change." Following this exchange, the trial court held Plaintiff in contempt. Plaintiff was immediately taken into custody and held in the Caldwell County jail until payment was made. Later that day, 5 August 2009, the trial court entered two orders addressing the issue of whether Plaintiff should be held in contempt for failing to make the first payment required under the interim attorney's fees order, both of which reached an identical conclusion, but with the second of the two orders containing more detailed findings of fact and conclusions of law. In addition, the trial court orally announced that Plaintiff's "Motion to Stay Interim Attorney Fees; Motion to Set Aside/Amend Order for Interim Attorney[']s Fees; Motion for Protective Order Regarding Interim Attorney Fees" was denied. Finally, based upon Plaintiff's actions during the 5 August 2009 hearing, the trial court entered an order dated 10 August 2009 requiring Plaintiff to undergo a psychological evaluation to be administered by Dr. Debra Peters Moore and suspending Plaintiff's visitation with the minor children until "further order of [the] Court."
On 1 September 2009, Plaintiff filed a notice of appeal seeking review of the 30 April 2009 interim attorney's fees order, the 5 August 2009 orders holding Plaintiff in contempt for failing to make the first payment required under the interim attorney's fees order, and the 10 August 2009 order requiring him to undergo a psychological evaluation. On 28 April 2010, Judge J. Gary Dellinger entered an order dismissing Plaintiff's appeal on the grounds that, "[w]ith respect to the Plaintiff's purported Notice of Appeal of September 1, 2009, each of the four Orders for which Notice of Appeal was entered, were far more than 30 days from the date the Notice of Appeal was filed and should therefore be dismissed." Even so, Plaintiff has persisted in his efforts to perfect an appeal from the orders delineated in the 1 September 2009 notice of appeal. On 9 November 2010, Defendant filed a motion with the Court seeking the dismissal of Plaintiff's appeal and the imposition of sanctions. On 11 November 2010, Plaintiff responded to Defendant's motion.
According to a record on appeal in a related case, Defendant filed a motion seeking the dismissal of Plaintiff's appeal on 11 January 2010. After the entry of Judge Dellinger's order dismissing his appeal, Plaintiff noted an appeal to this Court from Judge Dellinger's order. The issues arising in that case are pending before us in that related case.
II. Legal Analysis A. Interim Attorney's Fees Order
On appeal, Plaintiff first challenges the 30 April 2009 Order of Interim Attorney[']s Fees. More specifically, Plaintiff argues that the trial court erred by awarding attorney's fees to Defendant pursuant to N.C. Gen. Stat. § 50-13.6 on the grounds that the trial court erroneously determined that Defendant had sufficient means to make payment, abused its discretion by finding that the amount of attorney's fees sought by Defendant was reasonable, and mistakenly found that Defendant acted in good faith. As a prerequisite for considering Plaintiff's substantive challenges to the interim attorney's fees order, we must first determine whether Plaintiff's appeal from the interim attorney's fees order is properly before this Court.
N.C.R. App. P. 3(c) provides, in pertinent part, that:
In civil actions and special proceedings, a party must file and serve a notice of appeal:
(1) within thirty days after entry of judgment if the party has been served with a copy of the judgment within the three day period prescribed by Rule 58 of the Rules of Civil Procedure; or
(2) within thirty days after service upon the party of a copy of the judgment if service was not made within that three day period; provided that
(3) if a timely motion is made by any party for relief under Rules 50(b), 52(b) or 59 of the Rules of Civil Procedure, the thirty day period for taking appeal is tolled as to all parties until entry of an order disposing of the motion and then runs as to each party from the date of entry of the order or its untimely service upon the party, as provided in subdivisions (1) and (2) of this subsection (c).
The provisions of N.C.R. App. P. 3(c) are jurisdictional in nature, so that, in the event that the appealing party has failed to comply with its requirements, this Court does not acquire jurisdiction over, and must dismiss, the appeal. Giannitrapani v. Duke University, 30 N.C. App. 667, 670, 228 S.E.2d 46, 48 (1976) (citing Teague v. Teague, 266 N.C. 320, 322, 146 S.E.2d 87, 88 (1966); Walter Corp. v. Gilliam, 260 N.C. 211, 212, 132 S.E.2d 313, 315 (1963); Aycock v. Richardson, 247 N.C. 233, 234, 100 S.E.2d 379, 380 (1957); and Dunn v. Highway Commission, 1 N.C. App. 116, 118, 160 S.E. 2d 113, 114 (1968)).
The record clearly establishes that the interim attorney's fees order was entered and served on 30 April 2009 and that Plaintiff noted his appeal from that order on 1 September 2009, a date well beyond the thirty day limit enunciated in N.C.R. App. P. 3(c). The parties disagree, however, concerning the effect, if any, of the Plaintiff's "Motion to Stay Interim Attorney Fees; Motion to Set Aside/Amend Order for Interim Attorney Fees; Motion for Protective Order Regarding Interim Attorney Fees" which was filed on 11 May 2009. According to Plaintiff, the 11 May 2009 motion constituted a timely motion filed pursuant to N.C. Gen. Stat. § 1A-1, Rule 59(e), which had the effect of tolling the time for filing a notice of appeal from the interim attorney's fees order in light of the provisions of N.C.R. App. P. 3(c)(3). We disagree.
According to our understanding of the record, the trial court orally denied the 11 May 2009 motion at the 5 August 2009 hearing, only 27 days prior to the filing of Plaintiff's notice of appeal. However, the trial court never entered a written order denying Plaintiff's motion. Subsequently, as the result of a petition that Plaintiff filed with this Court in a related case, we entered an order directing the Caldwell County District Court to enter a written order addressing Plaintiff's 11 May 2009 motion. As a result, Judge Dellinger entered a written order denying Plaintiff's 11 May 2009 motion on 28 April 2010. The validity of Judge Dellinger's decision to deny the 11 May 2009 motion is currently pending before this Court in a related case. However, given our decision that Plaintiff's motion did not have the effect of tolling the time for noting an appeal from the interim attorney's fees order, the ultimate disposition of that motion does not affect our analysis of the present appealability issue.
N.C. Gen. Stat. § 1A-1, Rule 59, provides, in pertinent part, that:
(a) Grounds. — A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds:
(1) Any irregularity by which any party was prevented from having a fair trial;
(2) Misconduct of the jury or prevailing party;
(3) Accident or surprise which ordinary prudence could not have guarded against;
(4) Newly discovered evidence material for the party making the motion which he could not, with reasonable diligence, have discovered and produced at the trial;
(5) Manifest disregard by the jury of the instructions of the court;
(6) Excessive or inadequate damages appearing to have been given under the influence of passion or prejudice;
(7) Insufficiency of the evidence to justify the verdict or that the verdict is contrary to law;
(8) Error in law occurring at the trial and objected to by the party making the motion, or
(9) Any other reason heretofore recognized as grounds for new trial.
. . . .
(e) Motion to alter or amend a judgment. — A motion to alter or amend the judgment under section (a) of this rule shall be served not later than 10 days after entry of the judgment.
N.C. Gen. Stat. § 1A-1, Rule 59(e) "governs motions to alter or amend a judgment, and such motions are limited to the [nine] grounds listed in [N.C. Gen. Stat. § 1A-1,] Rule 59(a)." N.C. Alliance for Transp. Reform, Inc. v. N.C. Dep't of Transp., 183 N.C. App. 466, 469, 645 S.E.2d 105, 108, disc. review denied, 361 N.C. 569, 650 S.E.2d 812 (2007). "[T]o qualify as a Rule 59 motion[,] . . . [a] motion must state the grounds therefor and the grounds stated must be among those listed in Rule 59(a)." Id. (citation quotation marks omitted). As a result, while "`failure to give the number of the rule under which a motion is made is not necessarily fatal, the grounds for the motion and the relief sought must be consistent with the Rules of Civil Procedure'" and the text of the motion "`must supply information revealing the basis of the motion.'" Id. at 469-70, 645 S.E.2d at 108 (quoting Gallbronner v. Mason, 101 N.C. App. 362, 366, 399 S.E.2d 139, 141, disc. review denied, 329 N.C. 268, 407 S.E.2d 835 (1991) and Smith v. Johnson, 125 N.C. App. 603, 606, 481 S.E.2d 415, 417, disc. review denied, 346 N.C. 283, 487 S.E.2d 554 (1997)); see also N.C. Gen. Stat. § 1A-1, Rule 7(b)(1) (requiring a motion to "state with particularity the grounds therefor"). In North Carolina Alliance for Transportation Reform, we concluded that a "Motion to Alter or Amend Order," ostensibly filed pursuant to N.C. Gen. Stat. § 1A-1, Rule 59(e), did not constitute a proper motion made pursuant to N.C. Gen. Stat. § 1A-1, Rule 59 because "petitioners did not make reference to any of [the Rule 59(a) grounds] . . . [or] use any of the language from the rule which would tend to give notice of their reliance on any of the foregoing grounds[,] . . . or reveal[] the basis of the motion in terms of the 59(a) grounds." N.C. Alliance for Transp. Reform, 183 N.C. App. at 469, 645 S.E.2d at 108 (internal citations and quotation marks omitted). Plaintiff's 11 May 2009 motion suffers from similar defects, given that it does not request relief on the basis of the grounds listed in N.C. Gen. Stat. § 1A-1, Rule 59 and essentially amounts to a challenge to the trial court's findings and conclusions predicated on the theory that the trial court should have found the facts on the basis of Plaintiff's contentions, rather than on the basis of Defendant's view of the case. At bottom, the 11 May 2009 motion is nothing more than a reiteration of arguments that Plaintiff had previously made in the hopes that the trial court would view them more favorably the second time around. A motion made pursuant to N.C. Gen. Stat. § 1A-1, Rule 59(e) cannot be used as a means to reargue matters already argued or to make arguments which were not made but could have been made, and thus, a motion that does so will not be treated as an N.C. Gen. Stat. § 1A-1, Rule 59(e) motion. Id. at 470, 645 S.E.2d at 108 (citation omitted). As a result, "[a]lthough a timely motion made pursuant to Rule 59 will toll the time for taking an appeal, when a party makes a motion pursuant to Rule 59 that is not a proper Rule 59 motion, the time for filing an appeal is not tolled." Id. (internal citations omitted). In light of the fact that the 11 May 2009 motion did not constitute a proper request for relief lodged pursuant to N.C. Gen. Stat. § 1A-1, Rule 59, Plaintiff failed to note an appeal from the interim attorney's fees order in a timely manner, necessitating a reaffirmation of Judge Dellinger's decision to dismiss that component of Plaintiff's appeal relating to the interim attorney's fees order.
As a result of the fact that Plaintiff's initial motion was not properly filed pursuant to N.C. Gen. Stat. § 1A-1, Rule 59, his subsequent "supplemental" filings made more than ten days after the entry of the interim attorney's fees order do not operate to toll the date by which Plaintiff was required to appeal the interim attorney's fees order either.
B. Civil Contempt Order
Secondly, Plaintiff contends that the trial court erred by holding him in contempt based upon his failure to pay $5,000 to Defendant's counsel on or before 9 May 2009 as required by the interim attorney's fees order. More specifically, Plaintiff argues that his failure to make the required payment to Defendant's counsel did not constitute a willful violation of the earlier order. We do not find Defendant's challenge to the trial court's order persuasive.
The record concerning the orders entered by the trial court addressing the issue of whether Plaintiff should be held in contempt for non-compliance with the child support and interim attorney's fees orders is less than clear. However, based on a close examination of the materials contained in the record, it appears to us that the trial court initially entered orders requiring the payment of interim attorney's fees in two installments and the payment of child support. Subsequently, Defendant obtained the issuance of three orders requesting that Plaintiff be required to show cause why he should not be held in contempt for failing to make required attorney's fee and child support payments. As we understand the record, both of the 5 August 2009 contempt orders which Plaintiff has challenged in this case relate to the Plaintiff's failure to make the first of the two payments required under the interim attorney's fees order, suggesting that the second of those two orders was simply intended as a more detailed replacement for the first. State v. Hill, 294 N.C. 320, 329, 240 S.E.2d 794, 801 (1978) (holding that, "until the expiration of the term the orders and judgments of the court are in fieri, and the judge has the power, in [her] discretion, to make such changes and modifications in them as [she] may deem wise and appropriate for the administration of justice") (citation omitted). According to the record filed with the Court in a related case, Plaintiff was subsequently held in contempt for failing to pay the second attorney's fee installment on 28 April 2010; however, that order is not before us in this case. We have been unable to ascertain from our examination of the records in any of the multitudinous appeals that Plaintiff has brought before this Court whether the issues raised by the show cause motion relating to the child support issue have ever been addressed. As a result, we will examine Defendant's challenge to the trial court's 5 August 2009 order on the assumption that it is properly understood as directed toward the more detailed, and therefore definitive, version of the trial court's order holding him in contempt for failing to make the first payment required under the interim attorney's fees order.
Despite the fact that Judge Dellinger appears to have included Plaintiff's appeal from the 5 August 2009 civil contempt orders in his order dismissing Plaintiff's appeal, we conclude that Plaintiff's notice was, in fact, timely filed. As a result, we will, in the interest of bringing this convoluted matter to a conclusion, consider Plaintiff's challenge to the trial court's contempt orders on the merits. As we have previously noted, Plaintiff has appealed Judge Dellinger's dismissal order, so that it would, at some point, have been necessary for us to reach this issue.
"`In contempt proceedings[,] the judge's findings of fact are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment.'" Hancock v. Hancock, 122 N.C. App. 518, 523, 471 S.E.2d 415, 418 (1996) (quoting Clark v. Clark, 294 N.C. 554, 571, 243 S.E.2d 129, 139 (1978)). "Although the statute governing civil contempt, N.C. Gen. Stat. § 5A-21[,] does not expressly require that a contemnor's conduct be willful, case law has interpreted the statute to require an element of willfulness." Id. (citing Smith v. Smith, 121 N.C. App. 334, 336, 465 S.E.2d 52, 53-54 (1996)). A finding of willfulness for purposes of a contempt proceeding may be supported by either "a positive action (a `purposeful and deliberate act') in violation of a court order or a stubborn refusal to obey a court order (acting `with knowledge and stubborn resistance')." Id. at 525, 471 S.E.2d at 419.
At the hearing held before the trial court on 5 August 2009, Plaintiff was provided ample opportunity to be heard with respect to the issue of whether he should be held in contempt. During that hearing, the following proceedings transpired:
[COURT]: So it is now your burden to show cause why you have not paid the first installment, the $5,000. But let me make it easy for you, sir. Did you bring that money today?
[PLAINTIFF]: No, ma'am.
[COURT]: Then you're going to have to show cause to me or you will be arrested . . . So you need to proceed quickly to tell me why in the world you have not paid [Defendant's counsel], including not bringing any money with you today. . . . Can you show any cause as to why you have not produced the $5,000 to make an initial interim payment for the attorney's fees owed to [Defendant's counsel]?
[PLAINTIFF]: Yes, Your Honor, I have.
[COURT]: And your cause would be?
[PLAINTIFF]: There's several causes. One, I don't have the ability to pay[.] I told you that at the onset that I didn't have it. It's in the record that I did not have that. Next of all, I think — I believe that the attorney fee order, interim order is unlawful, and I don't' think I should pay due to that, and if I could explain why I think it's unlawful.
. . . .
[COURT]: What's your evidence you wish to show to the Court that your means — now, I found earlier that you did have the means. So all I would entertain is if your situation somehow changed between my signing of the [30 April 2009 order for interim attorney's fees] and then the due date of that first installment which was May 9, which looks like that's about — what is that, nine, 12 days or so, 12 or 13 days. What changed in those 13 days?
[PLAINTIFF]: Could you repeat that? I didn't understand that.
[COURT]: Sir, on April 27 I found that you had the means and ability with which to defray a reasonable attorney's fee. . . . On May 9 that money was due, and you did not come up with the money on May 9. You were in contempt, sir, unless there was some dramatic change of circumstance between April 27 when I made the finding and May 9 when you were to make the first payment. Was there a change, sir?
[PLAINTIFF]: No, ma'am, there was not a change. The fact is, I didn't have it at the time when [the finding was made].
In its definitive order holding Plaintiff in contempt, the trial court made the following findings of fact, upon which it based its determination that Defendant was in willful violation of the interim attorney's fees order:
2. The Order of this Court of Interim Attorney[']s Fees provided that the Plaintiff was to pay the sum of $5,000.00 as interim attorney[']s fees on or before May 9, 2009, to [Defendant's counsel].
3. The Plaintiff failed to pay $5,000.00 on May 9, 2009, and as of the date of this hearing on August 5, 2009, the Plaintiff has continued to fail to pay the attorney[']s fees.
4. The Court gave the Plaintiff the opportunity to demonstrate why he should not be held in willful contempt.
5. The Court specifically finds from the statements of the Plaintiff that no material changes have occurred since the entry of this Court[']s Order. The Plaintiff has had the means and ability to comply and his failure to pay interim attorney[']s fees of $5,000.00 to [Defendant's counsel] is willful and without lawful justification or excuse.
After carefully reviewing the record, we conclude that the trial court's findings of fact were supported by competent evidence and that these findings provide an ample basis for the trial court's conclusion that Plaintiff had willfully and without lawful justification or excuse failed to make the initial payment required by the interim attorney's fees order. See Smith, 121 N.C. App. at 337, 465 S.E.2d at 54 (upholding a finding of contempt despite defendant's contention that "the court's conclusion that he was in willful contempt [was] unsupported by the evidence" when "the record demonstrated[d] that defendant had the capability to comply with the [] judgment"). At bottom, Plaintiff's challenge to the contempt order stems from his deeply-held belief that the trial court should not have entered the interim attorney's fees order in the first place. However, given Plaintiff's failure to note an appeal from that order in a timely manner, the lawfulness of the interim attorney's fees order is simply not before us at this time. See generally Williamson v. High Point, 214 N.C. 693, 695, 200 S.E. 388, 389 (1939) (explaining that, in contempt proceedings, "[t]he sole question before the Court [is] whether [the underlying order] has been violated"); Martin v. Martin, No. 10-662-1, 2010 N.C. App. LEXIS 155, at *5 (2010) (unpublished) (holding the defendant in civil contempt based on his failure to comply with a previous order requiring him to pay alimony and refusing to consider "the merits of the underlying order" despite defendant's attacking of such because no appeal of the underlying order was before the court). As a result, Plaintiff has not shown the presence of any error of law in the trial court's definitive order holding him in contempt for failing to make the first payment required by the interim attorney's fees order.
C. Psychological Evaluation Order
Finally, Plaintiff argues that the trial court erred by ordering him to undergo a complete psychological examination with Dr. Debra Peters Moore and suspending his visitation with the children until further order of the court. On appeal, Plaintiff contends that the trial court erred in several respects at the time that it entered the psychological evaluation order. Although we find that almost all of Plaintiff's arguments lack merit, we are troubled by the fact that Plaintiff was apparently never provided with any opportunity to be heard concerning the identity of the mental health professional assigned to conduct the examination and hold that the trial court erred by proceeding without hearing from Plaintiff with respect to that issue.
Once again, it appears that Judge Dellinger dismissed Plaintiff's appeal from the psychological evaluation order on timeliness grounds. However, since it appears that Plaintiff did, in fact, note his appeal from this order in a timely manner and since Plaintiff has challenged Judge Dellinger's dismissal order in a subsequent appeal, we will address Plaintiff's challenge to the psychological evaluation order on the merits.
Plaintiff claims that no psychological evaluation of any extent was warranted based on the facts before the trial court, and that the trial court's decision to order such an evaluation constituted a "ridiculous," "extreme," "gross . . . abuse of discretion." As a preliminary matter, a trial court undoubtedly has the authority to order a parent to undergo a psychological evaluation and suspend visitation pending the court's review of the results of the examination. In re A.R.D., ___ N.C. App. ___, ___, 694 S.E.2d 508, 512, aff'd per curiam, ___ N.C. ___, 704 S.E.2d 510 (2010). In addition, a trial court's decision to require such an evaluation as part of determining a parent's visitation rights must be examined on appeal using a deferential standard of review. Glesner v. Dembrosky, 73 N.C. App. 594, 598, 327 S.E.2d 60, 63 (1985) (stating that "[t]he decision of the trial judge, who sees and hears the witnesses and observes their demeanor, ought not to be upset on appeal absent a clear showing of abuse of that discretion") (citing King v. Demo, 40 N.C. App. 661, 668, 253 S.E.2d 616, 621 (1979)). After carefully reviewing the record, we conclude that the findings of fact set out in the psychological evaluation order have adequate evidentiary support and provide a sufficient basis for the trial court's decision to require a psychological evaluation of Plaintiff. Although we decline to provide a detailed discussion of those facts in this opinion in the interest of protecting the privacy of the parties and the children, the record contains ample justification for the trial court's determination that it was in "the best interest of the minor children . . . [to] suspend[] any visitation with the Plaintiff pending a complete psychological evaluation and a hearing to determine whether the best interests of the minor children will be served by reinstituting visitation with the Plaintiff."
On the other hand, the trial court apparently decided that the required mental health evaluation should be performed by Dr. Moore without providing Plaintiff with any opportunity to be heard concerning that issue. Teague, 266 N.C. at 323, 146 S.E.2d at 89 (holding that a litigant "was entitled to notice of the hearing and an opportunity to be heard before a judgment of willful contempt could be entered against him"); Coble v. Coble, 229 N.C. 81, 85, 47 S.E.2d 798, 800 (1948) (stating that the entry of an order when the defendant "was not served with notice and was not accorded an opportunity to be heard" "runs counter to the genius of a free people and will not be permitted") (citations omitted). Although we cannot agree with Plaintiff's contention that he should have the "exclusive authority to select the qualified medical professional who will [perform the evaluation,]" in light of the circumstances giving rise to the need for the required evaluation and the other information contained in the record, we conclude that Plaintiff should have been provided with an opportunity to be heard concerning the identity of the mental health professional assigned to perform the required evaluation and that the trial court erred by apparently failing to provide him with such an opportunity. As a result, while we affirm the trial court's decision to order Plaintiff to submit to the required mental health evaluation, we remand this case to the Caldwell County District Court for the limited purpose of conducting a further hearing at which Plaintiff is given an adequate opportunity to be heard with respect to the identity of the mental health professional responsible for conducting the required evaluation and the entry of a modified order identifying the individual responsible for performing that evaluation.
III. Conclusion
Thus, for the reasons set forth above we conclude that the trial court did not err by holding Plaintiff in contempt or by requiring Plaintiff to undergo a psychological evaluation as a precondition for the restoration of his visitation rights. In addition, we reaffirm the dismissal of Plaintiff's appeal from the interim attorney's fees order. Finally, we remand the psychological examination order to the Caldwell County District Court with instructions that Plaintiff be given an opportunity to be heard concerning the identity of the mental health professional responsible for conducting the required evaluation prior to the entry of a modified order identifying the individual responsible for conducting that evaluation.
Defendant's motion to dismiss Plaintiff's appeal is granted in part and denied in part as is discussed in more detail above. Defendant's motion requesting the imposition of sanctions against Plaintiff is denied without prejudice to her right to seek similar relief in subsequent cases in the event that Defendant deems such a request appropriate.
AFFIRMED IN PART; REMANDED IN PART; DISMISSED IN PART.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e)