{ "id": 9082959, "name": "ELLEN CAMPEN (FEATHERSTONE), Plaintiff v. DOUGLAS FEATHERSTONE, Defendant", "name_abbreviation": "Campen v. Featherstone", "decision_date": "2002-06-18", "docket_number": "No. COA01-816", "first_page": "692", "last_page": "697", "citations": [ { "type": "official", "cite": "150 N.C. App. 692" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "235 Ga. App. 243", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 805529 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "245", "parenthetical": "citations omitted" }, { "page": "534", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ga-app/235/0243-01" ] }, { "cite": "515 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "133 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11218566 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/133/0221-01" ] }, { "cite": "243 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "139" }, { "page": "142", "parenthetical": "\"[visitation privileges are but a lesser degree of custody\"" } ], "opinion_index": 0 }, { "cite": "294 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574089 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "571" }, { "page": "575-76" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0554-01" ] }, { "cite": "150 N.C. App. 114", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080028 ], "year": 2002, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0114-01" ] }, { "cite": "493 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "290-91" }, { "page": "291" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 705", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11799982 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "709" }, { "page": "709" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0705-01" ] }, { "cite": "532 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "600", "parenthetical": "quoting Sharpe v. Nobles, 127 N.C. App. 705, 709, 493 S.E.2d 288, 290-91 (1997)" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 53", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9495808 ], "year": 2000, "pin_cites": [ { "page": "61-62", "parenthetical": "quoting Sharpe v. Nobles, 127 N.C. App. 705, 709, 493 S.E.2d 288, 290-91 (1997)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0053-01" ] } ], "analysis": { "cardinality": 518, "char_count": 12053, "ocr_confidence": 0.757, "pagerank": { "raw": 2.1968363238810405e-07, "percentile": 0.7746619590563002 }, "sha256": "defddb5907f19fb3ace39329e39b3665b2a769ee476d54fcb438fdca3ba8b6d9", "simhash": "1:02a9e2264646991a", "word_count": 1970 }, "last_updated": "2023-07-14T19:52:10.836930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and McCULLOUGH concur." ], "parties": [ "ELLEN CAMPEN (FEATHERSTONE), Plaintiff v. DOUGLAS FEATHERSTONE, Defendant" ], "opinions": [ { "text": "BIGGS, Judge.\nDefendant appeals from an order denying his motion requesting that plaintiff be held in contempt of a 1992 child custody order. For the reasons that follow, we affirm the trial court.\nPlaintiff and defendant, formerly married, were divorced in 1991. Three daughters were born of the marriage, and in 1992 an order was entered granting plaintiff sole custody of the children and allowing defendant visitation rights. A year later, in 1993, plaintiff filed a motion to modify the custody order, seeking revocation of defendant\u2019s visitation privileges. Her motion was granted on 8 June 1993, in an ex parte order. The trial court found that: (1) defendant had recently been charged with two counts of solicitation to commit murder of plaintiff and of her fianc\u00e9e, and two counts of solicitation to commit burglary of plaintiff\u2019s home and of her family\u2019s home; (2) defendant would likely be released on bail; and (3) \u201c[t]he defendant\u2019s disregard of and contempt for this Court\u2019s authority has been well documented in this cause.\u201d The trial court concluded that the welfare of plaintiff and of the children would be jeopardized and threatened if defendant were allowed visitation upon his release from custody, that circumstances justified entry of an ex parte order, and that the prior custody order should be modified. Accordingly, the trial court ordered that:\nThe prior orders affording the defendant visitation with the parties\u2019 minor daughters [are] hereby modified, and the defendant shall have no right of visitation with the daughters pending further order of this Court.\nIn the fall of 1993, defendant was acquitted of the criminal charges referenced in the 1993 ex parte order. From 1993 to 1999, plaintiff denied defendant all visitation with the minor children. In 1999, plaintiff allowed the oldest daughter to reside with defendant during her senior year of high school; however, plaintiff informed defendant that she would continue to comply with the 1993 order that revoked defendant\u2019s visitation privileges. In December, 2000, plaintiff denied visitation between defendant and the younger two girls during their Christmas vacation, and stated that her refusal was based upon the 1993 order.\nIn January, 2001, defendant filed a motion to have plaintiff held in contempt of the visitation provisions in the original 1992 custody order. A show cause order was issued on 4 January 2001. On 25 April 2001, the trial court entered an order holding that plaintiff was not in contempt of the custody order of 1992. The trial court concluded that:\n... The Plaintiff has not willfully disobeyed the provisions of that order [1992 custody order] given her reliance upon the June 8, 1993 ex parte order terminating the Defendant\u2019s rights of visitation pending further orders of the Court. The June 8, 1993 Order on its face purports to be a valid Order. Furthermore, this June 8, 1993 order has never been modified, vacated, appealed or otherwise changed.\nDefendant appeals from this order.\nCivil contempt is the \u201c[fjailure to comply with an order of a court. . . N.C.G.S. \u00a7 5A-21(a) (2001). Proceedings for civil contempt are \u201cinitiated by motion of an aggrieved party, . . .\u201d N.C.G.S. \u00a7 5A-23(al) (2001), and a contempt hearing is conducted upon the \u201corder of a judicial official directing the alleged contemnor to appear ... and show cause why he should not be held in civil contempt.\u201d N.C.G.S. \u00a7 5A-23(a) (2001). \u201c \u2018Although the statutes governing civil contempt do not expressly require willful conduct, . . . case law has interpreted the statutes to require an element of willfulness.\u2019 \u201d To establish contempt of a court order, \u201c \u2018the evidence must show that the person was guilty of \u2018knowledge and stubborn resistance\u2019 in order to support a finding of willful disobedience.\u2019 \u201d McKillop v. Onslow County, 139 N.C. App. 53, 61-62, 532 S.E.2d 594, 600 (2000) (quoting Sharpe v. Nobles, 127 N.C. App. 705, 709, 493 S.E.2d 288, 290-91 (1997)). \u201cWillfulness [is]: (1) an ability to comply with the court order; and (2) a deliberate and intentional failure to do so.\u201d Sowers v. Toliver, 150 N.C. App. 114, 118,-S.E.2d-,-(7 May 2002).\nOn appeal, \u201c[t]he standard of review for contempt proceedings is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law.\u201d Sharpe, 127 N.C. App. at 709, 493 S.E.2d at 291. Further, \u201cthe [trial] judge\u2019s findings of fact are conclusive ... [if] supported by any competent evidence and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment.\u201d Clark v. Clark, 294 N.C. 554, 571, 243 S.E.2d 129, 139 (1978).\nIn the instant case, defendant presents three arguments in support of his contention that the trial court erred in failing to hold plaintiff in contempt: (1) the ex parte order upon which plaintiff relied had expired; (2) the trial court improperly placed the burden on defendant to vacate, modify or otherwise appeal the order, and; (3) plaintiff had specific notice that the 1993 order upon which she relied had expired. We disagree with defendant\u2019s contentions.\nDefendant concedes that the trial court was authorized to enter the 1993 ex parte order revoking his visitation rights. See N.C.G.S. \u00a7 50-13.5 (d)(2) (2001). However, defendant urges this Court to apply to the ex parte order the provisions of N.C.G.S. \u00a7 1A-1, Rule 65 (2001), which establish that a temporary restraining order expires automatically after ten days. We decline to do so. The 1993 ex parte order is not a temporary restraining order issued pursuant to Rule 65, and we conclude that Rule 65 has no application here. Rather, the order is a temporary child custody order governed by N.C.G.S. \u00a7 50-13.5(d)(2) and (3) (2001). See Clark, 294 N.C. at 575-76, 243 S.E.2d at 142 (\u201c[visitation privileges are but a lesser degree of custody\u201d). Chapter 50 does not limit the duration of a temporary custody order to a specific length of time, such as ten days; nor does our case law establish a definite period of viability for temporary custody orders. See generally, Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61 (1999). We conclude, therefore, that the ex parte order did not expire automatically upon the passage of ten days.\nMoreover, even assuming, arguendo, that the ex parte order had expired, the trial court\u2019s order declining to hold plaintiff in contempt still would be proper. The trial court found that plaintiff had not willfully disobeyed the 1992 order, given that she was relying on the 8 June 1993 order which \u201con its face purports to be a valid order,\u201d and which clearly stated that defendant\u2019s visitation rights were suspended \u201cpending further order of the Court.\u201d Under these circumstances, plaintiff\u2019s reliance upon the 1993 order was justified, and the mere possibility, that a reviewing court might have vacated the 1993 order if defendant had appealed it, does not render plaintiff\u2019s reliance upon the 1993 order contemptuous. This assignment of error is overruled.\nDefendant next argues that the trial court incorrectly assigned to him the burden of seeking to alter the 1993 order. We conclude that this issue is not germane to the question of whether the trial court erred by declining to hold plaintiff in contempt. Irrespective of which party should appropriately be charged with the responsibility to seek modification of the ex parte order, or where the trial court placed this burden, it remains undisputed that neither party had sought to \u201cmodify, appeal, vacate, or otherwise change\u201d the ex parte order. The order thus remained facially valid, and plaintiff\u2019s reliance upon it defensible. \u201cA party is entitled to rely on the plain terms of a court order until such provisions are modified by the court. Even where the terms of a court order are determined to be violative of public policy and thus unenforceable, reliance on the original terms will not support a contempt action prior to a judicial adjudication of such unenforce-ability.\u201d Turman v. Boleman, 235 Ga. App. 243, 245, 510 S.E.2d 532, 534 (1998) (citations omitted). This assignment of error is overruled.\nFinally, defendant argues that plaintiff\u2019s willful defiance of the trial court\u2019s 1992 custody order is demonstrated by her continued reliance upon the 1993 ex parte order even after she \u201cwas informed\u201d that it was invalid. This argument is unavailing; the record establishes that the validity of the 1993 order has never been addressed by any court, and that it was defendant\u2019s attorney who \u201cinformed\u201d plaintiff that the order was invalid. The opinion of defendant\u2019s counsel, that the order had expired, does not constitute a ruling by the court on the issue, and would not require plaintiff to abandon her reliance on what the trial court found to be \u201can order that purports on its face to be valid.\u201d\nWe also reject as meritless defendant\u2019s argument that the trial court should have considered plaintiff\u2019s own alleged violation of the 1993 order, in allowing defendant\u2019s oldest daughter to live with him for a period of time, as evidence of her willful defiance of the 1992 custody order.\nWe conclude that the trial court\u2019s findings of fact are supported by the record, and that the findings support its conclusion that, by virtue of her reliance upon the 1993 ex parte order, plaintiff was not in contempt of the 1992 custody order. Further, although we recognize the importance of preserving a parent\u2019s right to visit with his child, in the case sub judice, visitation issues would more appropriately have been addressed through a motion to modify, vacate, or appeal the 1993 order. Accordingly, we affirm the trial court.\nAffirmed.\nJudges WYNN and McCULLOUGH concur.", "type": "majority", "author": "BIGGS, Judge." } ], "attorneys": [ "Howard, Stallings, From & Hutson, P.A., by Catherine C. McLamb, for plaintiff-appellee.", "Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for defendant-appellant." ], "corrections": "", "head_matter": "ELLEN CAMPEN (FEATHERSTONE), Plaintiff v. DOUGLAS FEATHERSTONE, Defendant\nNo. COA01-816\n(Filed 18 June 2002)\nChild Support, Custody, and Visitation; Contempt\u2014 temporary child custody order \u2014 willfulness\nThe trial court did not err by denying defendant father\u2019s motion requesting that plaintiff mother be held in civil contempt under N.C.G.S. \u00a7 5A-21(a) of a 1992 child custody order granting defendant visitation privileges because: (1) plaintiff relied on a 1993 ex parte order which is a temporary child custody order governed by N.C.G.S. \u00a7 50-13.5(d)(2) and (3), and Chapter 50 does not limit the duration of a temporary custody order to a specific length of time nor does our case law establish a definite period of viability for temporary custody orders; (2) even assuming arguendo that the ex parte order had expired, the trial court\u2019s order declining to hold plaintiff in contempt would still be proper since plaintiff had not willfully disobeyed the 1992 order given her reliance on the 1993 order which on its face purports to be a valid order and which clearly stated that defendant\u2019s visitation rights were suspended pending further order of the court; (3) irrespective of which party should appropriately be charged with the responsibility to seek modification of the ex parte order, or where the trial court placed this burden, it remains undisputed that neither party had sought to modify, appeal, vacate, or otherwise change the ex parte order; (4) the opinion of defendant\u2019s counsel that the order had expired does not constitute a ruling by the court on the issue and would not require plaintiff to abandon her reliance on what the trial court found to be an order that purports on its face to be valid; and (5) defendant\u2019s argument that the trial court should have considered plaintiff\u2019s own alleged violation of the 1993 order by allowing defendant\u2019s oldest daughter to live with him for a period of time is meritless as evidence of plaintiff\u2019s willful defiance of the 1992 custody order.\nAppeal by defendant from order entered 25 April 2001 by Judge William C. Lawton in Wake County District Court. Heard in the Court of Appeals 27 March 2002.\nHoward, Stallings, From & Hutson, P.A., by Catherine C. McLamb, for plaintiff-appellee.\nManning, Fulton & Skinner, P.A., by Michael S. Harrell, for defendant-appellant." }, "file_name": "0692-01", "first_page_order": 722, "last_page_order": 727 }