{ "id": 4160841, "name": "DAVID LEE JACKSON, Plaintiff v. DEBORAH SAULS JACKSON, (now DEBORAH LOUISE SAULS), Defendant", "name_abbreviation": "Jackson v. Jackson", "decision_date": "2008-09-02", "docket_number": "No. COA07-1182", "first_page": "455", "last_page": "467", "citations": [ { "type": "official", "cite": "192 N.C. App. 455" } ], "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": "616 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633562 ], "year": 2005, "pin_cites": [ { "page": "352", "parenthetical": "citing Lemons v. Old Hickory Council, Boy Scouts, Inc., 322 N.C. 271, 275, 367 S.E.2d 655, 657 (1988)" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0349-01" ] }, { "cite": "354 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "548", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 187", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169734 ], "year": 1987, "pin_cites": [ { "page": "199-200", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0187-01" ] }, { "cite": "544 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "26-27", "parenthetical": "citations omitted" }, { "page": "27" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 664", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9443038 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "668", "parenthetical": "citations omitted" }, { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0664-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-91", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "346 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "279" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 244", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358601 ], "year": 1986, "pin_cites": [ { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0244-01" ] }, { "cite": "532 S.E.2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "561", "parenthetical": "\"The effect of Rule 15(b) is to allow amendment by implied consent to change the legal theory of the cause of action so long as the opposing party has not been prejudiced in presenting his case, i.e., where he had a fair opportunity to defend his case.\"" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 76", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9495850 ], "year": 2000, "pin_cites": [ { "page": "78", "parenthetical": "\"The effect of Rule 15(b) is to allow amendment by implied consent to change the legal theory of the cause of action so long as the opposing party has not been prejudiced in presenting his case, i.e., where he had a fair opportunity to defend his case.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0076-01" ] }, { "cite": "268 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "570" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549107 ], "year": 1980, "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0082-01" ] }, { "cite": "290 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571060 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0446-01" ] }, { "cite": "215 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "786" } ], "opinion_index": 0 }, { "cite": "288 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564852 ], "year": 1975, "pin_cites": [ { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0071-01" ] }, { "cite": "331 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "242", "parenthetical": "quoting Eudy v. Eudy, 288 N.C. 71, 76, 215 S.E.2d 782, 786 (1975), overruled on other grounds by Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982)" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 365", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525969 ], "year": 1985, "pin_cites": [ { "page": "375", "parenthetical": "quoting Eudy v. Eudy, 288 N.C. 71, 76, 215 S.E.2d 782, 786 (1975), overruled on other grounds by Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0365-01" ] }, { "cite": "331 S.E.2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "197", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 530", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526279 ], "year": 1985, "pin_cites": [ { "page": "533", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0530-01" ] }, { "cite": "187 S.E.2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "725" } ], "opinion_index": 0 }, { "cite": "281 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573719 ], "year": 1972, "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0048-01" ] }, { "cite": "367 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "657" } ], "opinion_index": 0 }, { "cite": "322 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516033 ], "year": 1988, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0271-01" ] }, { "cite": "172 N.C. App. 281", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8319556 ], "year": 2005, "pin_cites": [ { "page": "285", "parenthetical": "citing Lemons v. Old Hickory Council, Boy Scouts, Inc., 322 N.C. 271, 275, 367 S.E.2d 655, 657 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0281-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "421 S.E.2d 795", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "799", "parenthetical": "\"The trial court may modify custody only upon motion by either party or 'anyone interested.' N.C.G.S. \u00a7 50-13.7 (1987). The trial court may not sua sponte enter an order modifying a previously entered custody decree.\"" }, { "page": "799", "parenthetical": "internal citation and quotations omitted" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 695", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527921 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "703", "parenthetical": "\"The trial court may modify custody only upon motion by either party or 'anyone interested.' N.C.G.S. \u00a7 50-13.7 (1987). The trial court may not sua sponte enter an order modifying a previously entered custody decree.\"" }, { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0695-01" ] } ], "analysis": { "cardinality": 888, "char_count": 27312, "ocr_confidence": 0.742, "pagerank": { "raw": 9.100773451459937e-08, "percentile": 0.5059833604198546 }, "sha256": "35d1d177b4461c2bf889eb3996a69a77bf698460a8b0def57fade6e64577d673", "simhash": "1:0ffbc7ae674b0d4d", "word_count": 4459 }, "last_updated": "2023-07-14T14:54:33.452279+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ARROWOOD concur." ], "parties": [ "DAVID LEE JACKSON, Plaintiff v. DEBORAH SAULS JACKSON, (now DEBORAH LOUISE SAULS), Defendant" ], "opinions": [ { "text": "BRYANT, Judge.\nPlaintiff David Jackson appeals from an Order Re Contempt (Contempt Order) entered 16 February 2007, an order for attorney\u2019s fees entered 28 March 2007, an order appointing parenting coordinator entered 14 May 2007, and an order allowing Defendant Deborah Jackson\u2019s motion to amend the Contempt Order (Amended Order) entered 19 June 2007.\nPlaintiff and defendant married 9 October 1988 and are the parents of a minor child born 7 December 2001. On 3 September 2002, plaintiff filed for joint custody of the minor child. On 19 November 2002, a trial court granted the parties a judgment for absolute divorce. On 12 December 2002, the trial court entered a consent order awarding plaintiff and defendant joint custody of the minor child \u2014 with defendant having primary custody, care, and control and plaintiff having secondary custody. Plaintiff had custody every other weekend and every other Wednesday.\nThe trial court also decreed that the parties were entitled to reasonable telephone contact and ordered the parties to confer with each other concerning decisions about the schooling, discipline, religion, health, and well-being of the child. Each parent was to notify the other immediately of any medical emergency related to the child.\nOn 15 November 2005 and 11 January 2006, plaintiff filed motions for order to show cause and order of contempt. On 24 April 2006, the trial court entered an order decreeing that defendant was in willful civil contempt of the 12 December 2002 court order, but continued prayer for judgment. On 6 July 2006 and 27 September 2006, plaintiff filed a third and fourth motion for order to show cause and order of contempt. Defendant filed a motion to dismiss, motion for more definite statement, motion for sanctions, and a response to plaintiff\u2019s fourth motion for order to show cause.\nOn 16 February 2007, the trial court entered a Contempt Order decreeing:\n3. Plaintiff\u2019s third motion for contempt is denied and the Defendant is not guilty of criminal contempt as alleged in the Third Motion.\n4. Defendant is not guilty of criminal contempt as alleged in the [plaintiff\u2019s] Fourth Motion, except that the Defendant is guilty of criminal contempt with respect to the Custody Order for her failure to allow the Plaintiff reasonable telephone access with the minor child. The Defendant is sentenced to 30 days in the Johnston County Jail. This sentence is indefinitely suspended pursuant to the conditions set forth below which shall apply to both Plaintiff and Defendant[.]\nI. The Court, on its own motion, appoints a parenting coordinator. .. . Failure either to comply with the directions of the parenting coordinator or to pay his/her fees in a timely fashion shall be punishable by contempt.\n5.To the extent that the terms and conditions of the Custody Order have not been modified by the above modifications, the Custody Order remains in full force and effect.\nOn 26 February 2007, pursuant to North Carolina Civil Procedure Rule 59, plaintiff filed motions to amend and stay the Contempt Order. Plaintiff argued \u201c[t]he inclusion of any provision in the Contempt Order that modifies the terms of the Custody Order, . . . must be removed\u201d and \u201cthe appointment of a parenting coordinator improperly modifies the Custody Order and exceeds the relief allowed . . . .\u201d\nOn 6 March 2007, defendant filed a motion to amend the pleadings pursuant to Rule 15(b). Defendant asked that the pleadings be amended to address the issue of modification of the Custody Order to bring it in accord with the trial court\u2019s Contempt Order, as well as the appointment of a parenting coordinator.\nOn 28 March 2007, pursuant to defendant\u2019s motion for sanctions against plaintiff, the trial court issued an order for attorney\u2019s fees, finding as fact and concluding as a matter of law that \u201cthe award of attorney\u2019s fees as a sanction against the Plaintiff pursuant to Rule 11 of the Rules of Civil Procedure with respect to the filing of the Plaintiff\u2019s fourth motion for contempt is appropriate . . . .\u201d The trial court ordered that plaintiff pay defendant\u2019s attorneys $3,000.\nOn 19 June 2007, the trial court entered an order which allowed defendant\u2019s motion to amend the pleadings pursuant to Civil Procedure Rule 15(b) and plaintiff\u2019s motion to modify the contempt order pursuant to Rule 59 but denied plaintiff\u2019s motion to Stay and Reconsider the Contempt order. In modifying its Contempt Order, the trial court made the following additional findings of fact:\n(i) The parties do not relate well one to another and the conflict between the Plaintiff and the Defendant has increased .... The conflict between the Plaintiff and the Defendant is negatively impacting [the minor child].\n(ii) The Plaintiff is gainfully employed as a Certified Public Accountant.\n(iii) The Defendant is gainfully employed with the State Employees Credit Union.\nand the following conclusions of law:\n(i) This is a high-conflict case. The parties are able to pay for a Parenting Coordinator and the appointment of a parenting Coordinator is in [the minor child\u2019s] best interest as set forth in G.S. 50-91(b).\n(ii) The best interests of [the minor child] require that the Custody Order previously entered by this Court in 2002 and 2006 be modified as set forth in the Order of the Court filed February 16, 2007.\nThe trial court re-captioned the Contempt Order as \u201cOrder Modifying Custody Order and for Contempt, and for the Appointment of a Parenting Coordinator.\u201d Plaintiff appeals from the Contempt Order and all subsequent related orders.\nOn appeal, plaintiff raises the following three issues: whether the trial court erred in (I) modifying child custody, (II) appointing a par-exiting coordinator, and (III) imposing sanctions in the form of an attorney\u2019s fee award on plaintiff.\nWe first respond to defendant\u2019s question whether plaintiff\u2019s appeal is properly before this Court. Defendant argues the Contempt Order and the Amended Order from which plaintiff has given notice of appeal are orders regarding defendant\u2019s criminal contempt and from those orders plaintiff has no right to appeal. Plaintiff, however, asserts that he appeals from only those provisions that impermissibly modify custody without the required motion for modification by any interested party, or that exceed the trial court\u2019s authority.\nUnder North Carolina General Statutes, section 7A-27(c), \u201c[f]rom any final judgment of a district court in a civil action appeal lies of right directly to the Court of Appeals,\u201d N.C. Gen. Stat. \u00a7 7A-27 (c) (2007), and \u201c[f]rom any interlocutory order or judgment of a superior court or district court in a civil action or proceeding which (1) [a]ffects a substantial right,\u201d N.C.G.S. \u00a7 7A-27 (d)(1) (2007).\nWe note for the record that while the contempt order addresses criminal contempt it does so within the court\u2019s civil jurisdiction over a dispute in a case bearing the identification File Number 02-CVD-2605. We further note the court\u2019s action seems to confuse the purposes of modification and contempt. See Kennedy v. Kennedy, 107 N.C. App. 695, 703, 421 S.E.2d 795, 799 (1992) (\u201cThe trial court may modify custody only upon motion by either party or \u2018anyone interested.\u2019 N.C.G.S. \u00a7 50-13.7 (1987). The trial court may not sua sponte enter an order modifying a previously entered custody decree.\u201d). See also 3 Suzanne Reynolds, Lee\u2019s North Carolina Family Law \u00a7 13.52 (5th ed. 2002) (when a custody order is violated \u201cordinarily the proper response is a finding of contempt, not modification\u201d) (citation omitted). Therefore, we hold that as to those aspects of the Contempt Order that plaintiff argues impermissibly modify custody or exceed the trial court\u2019s authority, plaintiff has a right to appeal to this Court.\nI\nPlaintiff asserts the trial court committed reversible error by modifying child custody absent a pending motion to modify custody and absent any finding of substantial change of circumstances affecting the welfare of the child. We agree.\nUnder North Carolina General Statutes, section 50-13.7(a), \u201can order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.\u201d N.C. Gen. Stat. \u00a7 50-13.7(a) (2007). \u201cThe trial court may modify custody only upon motion by either party or anyone interested. The trial court may not sua sponte enter an order modifying a previously entered custody decree.\u201d Kennedy, 107 N.C. App. at 703, 421 S.E.2d at 799 (internal citation and quotations omitted).\nHere, neither plaintiff nor defendant had a pending motion to modify custody provisions at the time the trial court entered the Contempt Order. But, on 16 February 2007, the trial court entered the Contempt Order in which it found defendant in criminal contempt and modified the following child custody provisions established by the 12 December 2002 consent order:\n6. Plaintiff and defendant shall confer with each other concerning decisions about the schooling, discipline, religion, health and well-being of the child.\nThe trial court also imposed the following new custody provisions:\nC. When Defendant has the minor child, she may schedule activ- ' ities for the minor child as she desires; . . . Plaintiff may not attend such activities without Defendant\u2019s consent;\nE. Defendant is not required to confer with Plaintiff regarding medical decisions made by Defendant regarding the minor child while the child is in her custody ....\nH. Plaintiff and Defendant shall not speak at exchanges. If the parties desire to communicate information to the other party concerning the minor child, they will communicate in writing.\nThus, we agree with plaintiff that provisions in the Contempt Order impermissibly modify custody. However, the record also indicates that after 16 February 2007 both plaintiff and defendant filed motions to amend the pleadings, and therein each addressed issues regarding modification of custody.\nPlaintiff, on 25 February 2007, filed a motion to amend the pleadings pursuant to Civil Procedure Rule 59 and a motion to stay 'the trial court\u2019s Contempt Order. Therein plaintiff alleged that the Contempt Order improperly modified the Custody Order and further asserted that \u201c[t]he inclusion of any provision in the Contempt Order that modifies the terms of the Custody Order . . . must be removed from the Contempt Order pursuant to Rule 59(a)(1), (a)(7), (a)(8), and (a)(9).\u201d\nDefendant, on 8 March 2007, filed a motion to amend the pleadings pursuant to Rule 15(b). Defendant asked that the pleadings be amended to conform to the evidence presented at the hearing, address the issue of modification of the custody order, and rename the order \u201cOrder Modifying Custody Order and for Contempt and for the Appointment of a Parenting Coordinator.\u201d\nOn 19 June 2007, the trial court entered an order allowing both plaintiff\u2019s motion to amend the Contempt Order pursuant to Rule 59 and defendant\u2019s motion to amend pleadings pursuant to Rule 15(b). The trial court then amended the Contempt Order to make the following additional findings:\n(i) Based upon the facts of this case, the parties do not communicate with one another. The lack of communication between the parties relates to [the minor child\u2019s] activities, doctors visits and other issues. The parties do not relate well one to another and the conflict between the Plaintiff and the Defendant has increased since the entry of this Court\u2019s Order entered following a hearing in January 2006. The conflict between the Plaintiff and the Defendant is negatively impacting [the minor child],\n(ii) The Plaintiff is gainfully employed as a Certified Public Accountant.\n(iii) The Defendant is gainfully employed with the State Employees\u2019 Credit Union.\nand the following conclusions:\n(i) This is a high conflict case. The parties are able to pay for a Parenting Coordinator and the appointment of a Parenting Coordinator is in [the minor child\u2019s] best interest....\n(ii) The best interest of [the minor child] require that the Custody Order previously entered by this Court in 2002 and 2006 be modified as set forth in the Order of this Court filed February 16, 2007.\nThe trial court re-captioned the Contempt Order \u201cOrder Modifying Custody Order and for Contempt, and for the Appointment of a Parenting Coordinator.\u201d\nWe acknowledge the liberal application of our Rules of Civil Procedure and the discretion afforded trial judges. \u201c[W]hen construing the Rules of Civil Procedure technicalities and form are to be disregarded in favor of the merits of the case[] and that liberality is the canon of construction.\u201d Excel Staffing Serv., Inc. v. HP Reidsville, Inc., 172 N.C. App. 281, 285, 616 S.E.2d 349, 352 (2005) (citing Lemons v. Old Hickory Council, Boy Scouts, Inc., 322 N.C. 271, 275, 367 S.E.2d 655, 657 (1988)) (internal quotations omitted). The Rules of Civil Procedure \u201cprovid[e] for and encourag[e] liberal amendments to conform pleadings and evidence . . . after entry of judgment under Rules 15(b), 59 and 60.\u201d Roberts v. William N. & Kate B. Reynolds Memorial Park, 281 N.C. 48, 56, 187 S.E.2d 721, 725 (1972). \u201cDiscretion in allowing amendment of pleadings is vested in the trial judge and his ruling will not be disturbed on appeal absent a showing of prejudice to the opposing party.\u201d Goodrich v. Rice, 75 N.C. App. 530, 533, 331 S.E.2d 195, 197 (1985) (citation omitted). However, notwithstanding such discretion and despite the broad remedial purposes of these provisions, Rule 15(b) and Rule 59 do not permit judgment by ambush. Paris v. Michael Kreitz, Jr., P.A., 75 N.C. App. 365, 375, 331 S.E.2d 234, 242 (1985) (quoting Eudy v. Eudy, 288 N.C. 71, 76, 215 S.E.2d 782, 786 (1975), overruled on other grounds by Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982)) (remaining citation omitted).\nOur Supreme Court has held that an amendment under Rule 15(b) \u201cis appropriate only where sufficient evidence has been presented at trial without objection to raise an issue not originally pleaded and where the parties understood, or reasonably should have understood, that the introduction of such evidence was directed to an issue not embraced by the pleadings.\u201d W & H Graphics, Inc. v. Hamby, 48 N.C. App. 82, 86, 268 S.E.2d 567, 570 (1980); see also Yancey v. Lea, 139 N.C. App. 76, 78, 532 S.E.2d 560, 561 (2000) (\u201cThe effect of Rule 15(b) is to allow amendment by implied consent to change the legal theory of the cause of action so long as the opposing party has not been prejudiced in presenting his case, i.e., where he had a fair opportunity to defend his case.\u201d) (citation and internal quotations omitted) (emphasis added). Under Rule 59, where a trial court opens an order, makes additional findings of fact and conclusions of law, and enters an amended order, the reasoning must be the same.\nHere, the record indicates that the trial court held a hearing on 19 December 2006 to address plaintiffs third and fourth motions for order to show cause and order of contempt and defendant\u2019s motion to dismiss, motion for a more definite statement, and motion for sanctions and attorney\u2019s fees with respect to plaintiff\u2019s fourth motion for order to show cause and order of contempt. The record gives no indication either party understood or reasonably should have understood the evidence presented or the arguments made to be grounds for the modification of custody made by the trial court when it entered its Contempt Order. Furthermore, pursuant to subsequent motions to modify, the trial court entered an Amended Order amending its Contempt Order, but \u201c[did] not elect to take any new evidence . . . .\u201d\nDespite re-captioning the Contempt Order \u201cOrder Modifying Custody Order and for Contempt, and for the Appointment of a Parenting Coordinator\u201d the trial court effectively denied both parties an opportunity to submit evidence or present arguments regarding custody modification. Furthermore, the trial court\u2019s order does not include findings of fact or conclusions of law regarding a substantial change in circumstances affecting the welfare of the minor child, only a best interest conclusion.\nWhen the court modifies custody or visitation because of violations of a visitation order, it must be careful not to confuse the purposes of modification and contempt. The court modifies custody or visitation because substantial changes in circumstances have made a different disposition in the best interest of the child. A custodian should not violate the visitation order, but if he or she does, then ordinarily the proper response is a finding of contempt, not modification. Woncik v. Woncik, 82 N.C. App. 244, 248, 346 S.E.2d 277, 279 (1986).\nReynolds, supra. Therefore, we hold the trial court abused its discretion in modifying child custody provisions absent proper notice to the parties and without affording the parties an opportunity to address the issue of custody modification. Accordingly, we vacate those provisions set out in the Contempt Order and the Amended Order which impermissibly modify prior custody orders.\nII\nNext, plaintiff questions whether the trial court committed reversible error in appointing a parenting coordinator. Plaintiff argues the trial court failed to make adequate findings of fact to support the appointment of a parenting coordinator on its own motion. We disagree.\nUnder North Carolina General Statute section 50-91(b),\n[t]he court may appoint a parenting coordinator without the consent of the parties upon entry of a custody order other than an ex parte order, or upon entry of a parenting plan only if the court also makes specific findings that the action is a high-conflict case, that the appointment of the parenting coordinator is in the best interests of any minor child in the case, and that the parties are able to pay for the cost of the parenting coordinator.\nN.C. Gen. Stat. \u00a7 50-91(b) (2007).\nHere, in the Contempt Order, the trial court, on its own motion, appointed a parenting coordinator and stated \u201c[t]he parties shall follow the directions of the parenting coordinator with respect to issues addressed to the parenting coordinator. Failure either to comply with the directions of the parenting coordinator or to pay his/her fees in a timely fashion shall be punishable by contempt.\u201d In response, plaintiff filed a motion to amend the judgment under Rule 59(a)(1), (a)(7), (a)(8), and (a)(9).\nUnder Rule 59(a), \u201c[o]n a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conelusions of law or make new findings and conclusions, and direct the entry of a new judgment.\u201d N.C. R. Civ. P. 59(a) (2007) (emphasis added). Without taking any new evidence, the trial court made the following additional findings of fact:\n(i) Based upon the facts of this case, the parties do not communicate with one another. The lack of communication between the parties relates to [the minor child\u2019s] activities, doctors\u2019 visits and other issues. The parties do not relate well one to another and the conflict between the Plaintiff and the Defendant has increased since the entry of this Court\u2019s Order entered following a hearing in January 2006. The conflict between the Plaintiff and the Defendant is negatively impacting [the minor child].\n(ii) The Plaintiff is gainfully employed as a Certified Public Accountant.\n(iii) The Defendant is gainfully employed with the State Employees\u2019 Credit Union.\nOn these findings, the trial court concluded \u201c[t]his case is a high-conflict case. The parties are able to pay for a Parenting Coordinator and the appointment of a Parenting Coordinator is in [the minor child\u2019s] best interest as set forth in G.S. 50-91(b).\u201d\nWe hold the trial court has satisfied the criteria for sua sponte appointing a parenting coordinator as set forth under N.C.G.S. \u00a7 50-91(b). Accordingly, plaintiffs assignment of error is overruled.\nHI\nLast, plaintiff questions whether the trial court committed reversible error by sanctioning plaintiff in the form of an attorney\u2019s fee award to defendant. We affirm the trial court.\n\u201cThe trial court\u2019s decision whether or not to impose Rule 11 sanctions is reviewable de novo. In general, an order imposing or denying sanctions must be supported by findings of fact and conclusions of law.\u201d Golds v. Cent. Express, Inc., 142 N.C. App. 664, 668, 544 S.E.2d 23, 26-27 (2001) (citations omitted) (emphasis removed).\nPursuant to North Carolina Civil Procedure Rule 11,\n[t]he signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.\nN.C. R. Civ. P. 11(a) (2007). \u201cIn other words, Rule 11 provides that a pleading must contain the following to avoid the imposition of sanctions: (1) legal sufficiency; (2) factual sufficiency; and (3) a proper purpose.\u201d Golds, 142 N.C. App. at 668, 544 S.E.2d at 27.\nOn plaintiffs third motion for order to show cause and order of contempt, the trial court found defendant not guilty with respect to the allegations of criminal contempt. In plaintiffs fourth motion for order to show cause and order of contempt, plaintiff alleged that defendant violated the custody order by:\nA. Enrolling the minor child in swimming lessons without discussing with the Plaintiff or notifying him of the time and place of the lessons so that he could attend and talk with the child about how the lessons were going.\nB. On July 29, 2006, changing the pickup location from Defendant\u2019s house to Defendant\u2019s neighbor\u2019s house, without first talking about it with Plaintiff and having the parties agree to it in writing.\nC. By failing to timely advise and consult with Plaintiff regarding the child\u2019s strep throat and impetigo that caused the child to miss two days of school.\nD. By failing to timely advise and consult with Plaintiff regarding the child\u2019s sickness on August 23 and 24, 2006, that caused the child to repeatedly throw up.\nE. By failing to notify Plaintiff of the child\u2019s medical appointment(s).\nF. By refusing to speak with Plaintiff at exchanges.\nG. By refusing to answer or timely return Plaintiff\u2019s calls to the minor child when the child is with Defendant.\nThe trial court found that allegations A through F should not have been filed because they do not rise to the level of contemptible actions.\nWe agree with the trial court\u2019s finding that plaintiff\u2019s allegations did not rise to the level of legal sufficiency needed to allege criminal contempt of court. We therefore hold the trial court was within its discretion to award defendant attorney\u2019s fees for defending the action. Accordingly, plaintiff\u2019s assignment of error is overruled. The trial court\u2019s orders of 28 March and 14 May 2007 are affirmed. The trial court\u2019s orders of 16 February and 19 July 2007 are vacated in part.\nAffirmed in part; vacated in part.\nChief Judge MARTIN and Judge ARROWOOD concur.\n. We note that had plaintiff appealed from the trial court\u2019s finding of criminal contempt, his appeal would have been dismissed.\n. Pursuant to Rule 59, \u201c[o]n a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.\u201d N.C. R. Civ. P. 59(a) (2007).\n. Amendments to conform to the evidence. \u2014 \u201cWhen issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, either before or after judgment.... If evidence is objected to at the trial on the ground that it is not within the issues raised by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.\u201d N.C. R. Civ. P. 15(b) (2007).\n. \u201cThis Court and our Supreme Court have consistently held that a trial court\u2019s order under Rule 59 is not to be disturbed absent an affirmative showing of manifest abuse of discretion by the judge or a substantial miscarriage of justice.\u201d Branch Banking & Trust Co. v. Home Federal Sav. & Loan Ass\u2019n, 85 N.C. App. 187, 199-200, 354 S.E.2d 541, 548 (1987) (citations omitted).", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Sandlin & Davidian, P.A., by Deborah Sandlin and Lisa Kamarchik, for plaintiff-appellant.", "Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for defendant-appellee." ], "corrections": "", "head_matter": "DAVID LEE JACKSON, Plaintiff v. DEBORAH SAULS JACKSON, (now DEBORAH LOUISE SAULS), Defendant\nNo. COA07-1182\n(Filed 2 September 2008)\n1. Child Support, Custody, and Visitation\u2014 contempt order\u2014 custody modified \u2014 appeal\nPlaintiff had the right to appeal those portions of a contempt order that he argued impermissibly modified child custody or exceeded the court\u2019s authority, but an appeal from the criminal contempt finding would have been dismissed.\n2. Child Support, Custody, and Visitation\u2014 custody \u2014 modification \u2014 no pending motion \u2014 subsequent amendment of pleadings insufficient \u2014 no best interest finding\nThe trial court abused its discretion by modifying child custody absent a pending motion to modify custody. Although the parties subsequently filed motions to amend the pleadings, the record does not indicate that either party understood or reasonably should have understood the evidence or arguments to be grounds for modifying custody. Furthermore, the court\u2019s order includes only a best interest conclusion without findings or conclusions about a substantial change of circumstances affecting the child.\n3. Child Support, Custody, and Visitation\u2014 parenting coordinator \u2014 sua sponte appointment\nThe trial court satisfied the criteria for sua sponte appointing a parenting coordinator where the court made findings and concluded that the custody case was high-conflict, that the parents could pay for the coordinator, and that the appointment was in the child\u2019s best interest.\n4. Child Support, Custody, and Visitation\u2014 custody \u2014 contempt proceeding \u2014 Rule 11 sanctions\nThe trial court did not abuse its discretion by awarding defendant attorney fees as a Rule 11 sanction in a contempt proceeding arising from a child custody proceeding. Plaintiffs allegations did not rise to the level of legal sufficiency needed to allege criminal contempt of court.\nAppeal by plaintiff from orders entered 16 February 2007, 28 March 2007, 14 May 2007, and 19 June 2007 by Chief Judge Albert A. Corbett, Jr. in Johnston County District Court. Heard in the Court of Appeals 14 April 2008.\nSandlin & Davidian, P.A., by Deborah Sandlin and Lisa Kamarchik, for plaintiff-appellant.\nWyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for defendant-appellee." }, "file_name": "0455-01", "first_page_order": 483, "last_page_order": 495 }