An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1148

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

R. SCOTT BEST,

Plaintiff,

v. Wake County

No. 10 CVD 1893

AMBER L. GALLUP,

Defendant.

Appeal by defendant from order entered 26 November 2012 by 

Judge Lori Christian in Wake County District Court. Heard in 

the Court of Appeals 19 February 2014.

No brief, for plaintiff-appellee. 

Appellate Defender Staples Hughes, by Assistant Appellate 

Defender Joyce L. Terres, for defendant-appellant. 

HUNTER, Robert C., Judge.

Amber L. Gallup (“defendant”) appeals from an order of 

contempt entered in a child custody dispute between herself and 

R. Scott Best (“plaintiff”).1 On appeal, defendant argues that 

the trial court erred by: (1) concluding that defendant was 

being held in both civil and criminal contempt; (2) holding 

 

1 Plaintiff did not file an appellee brief. 
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defendant in contempt without competent evidence to support the 

trial court’s findings of fact and without findings of fact to 

support the conclusions of law; and (3) ordering purge 

conditions that are contrary to law and impermissibly vague. 

After careful review, we affirm the trial court’s order in 

part but reverse the award of attorneys’ fees.

Background

Defendant and plaintiff were formerly involved in a 

romantic relationship and provided parental care to defendant’s 

niece, “Valerie.”2 Plaintiff had no biological or legal 

relationship with Valerie. In 2008, defendant legally adopted 

Valerie, and the parties planned to marry upon plaintiff’s 

return from a contract position in Iraq. While plaintiff was in 

Iraq, defendant informed him that she was ending their 

relationship. However, from December 2008 to September 2009, 

the parties continued to function as a family unit in some ways. 

It was not until plaintiff’s return in September 2009 from his 

second contract position in Iraq that defendant informed 

plaintiff that she no longer wanted Valerie to call him “Daddy” 

and that defendant intended no further familial relationship to 

exist between Valerie and plaintiff. 

 

2 Valerie is a pseudonym used to protect the identity of the 

minor. 
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Since September 2009, plaintiff and defendant have been 

engaged in contentious litigation regarding which party was to 

have custody over Valerie. Throughout the process of the 

litigation, the trial court has entered the following orders: 

(1) an order dismissing plaintiff’s motion for temporary 

custody, which was reversed by this Court in Best v. Gallup, 215 

N.C. App. 483, 715 S.E.2d 597 (2011), disc. rev. denied, 365 

N.C. 559, 724 S.E.2d 505 (2012), and remanded for a custodial 

schedule, as this Court ruled it was in the child’s best 

interest to have visitation with plaintiff; (2) an order entered 

19 September 2011 requiring defendant to surrender her passport 

to plaintiff’s attorney and enjoining the parties from removing 

Valerie from the jurisdiction of North Carolina; (3) a temporary 

order entered 7 October 2011 requiring plaintiff to purchase 

health insurance for Valerie and schedule therapist appointments 

for her; (4) an order for temporary custody and visitation 

entered 9 November 2011 setting out a visitation schedule for 

plaintiff with Valerie and requiring defendant to cooperate with 

plaintiff’s attempts at seeking therapy for Valerie; (5) an ex 

parte order for emergency custody entered 9 December 2011 

placing Valerie in temporary physical and legal custody of 

plaintiff due to defendant’s attempts to illegally purchase a 
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passport and transport Valerie out of the jurisdiction of the 

state; (6) a full order for emergency custody entered 1 February 

2012 nunc pro tunc 14 December 2011, placing physical and legal 

custody of Valerie with plaintiff and granting defendant 

visitation rights; and (7) an order for temporary custody 

entered 17 April 2012 nunc pro tunc 14 February 2012 (“the 17

April order”) granting defendant temporary primary physical 

custody and plaintiff temporary secondary physical visitation 

over Valerie, with plaintiff retaining the right to make all 

decisions regarding the child’s therapist. The 17 April order 

further ordered that “[d]efendant shall ensure that the minor 

child attends every therapy session”; “defendant shall not allow 

the minor child to be present where people are saying derogatory 

things about plaintiff”; “defendant shall to [sic] control the 

environment and people surrounding the minor child”; and 

“plaintiff and defendant shall foster a feeling of affection 

between the minor child and the other party, and neither party 

shall do or say anything the reasonable effect of which would be 

to estrange the minor child from the other party or to impair 

the child’s high regard for the other party[.]” 

On 8 June 2012, plaintiff filed a motion for order to show 

cause and motion for attorneys’ fees. Plaintiff argued that 
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defendant willfully violated provisions of the 17 April order 

by: (1) interfering with phone calls between plaintiff and 

Valerie; (2) interfering with the relationship between plaintiff 

and Valerie; (3) interfering with scheduled visitations; and (4) 

failing to ensure that Valerie attended every therapy session. 

After a hearing held 17 September 2012, the trial court entered 

an order holding defendant in continuing civil contempt, setting 

out sixteen conditions that must be completed to purge the 

contempt, and ordering defendant to pay plaintiff’s reasonable 

attorneys’ fees incurred in relation to the contempt hearing. 

Defendant filed timely notice of appeal from this order. 

Discussion

I. Conclusion as to Criminal Contempt

Defendant’s first argument on appeal is that the trial 

court erred by concluding that she was in both civil and 

criminal contempt. We hold that the trial court ordered civil, 

not criminal, contempt, and we will not disturb the order on 

this ground.

In contempt proceedings, the trial court’s findings of fact 

are conclusive on appeal if they are supported by competent 

evidence, and its conclusions of law are reviewed de novo. 

Hartsell v. Hartsell, 99 N.C. App. 380, 385, 393 S.E.2d 570, 573 
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(1990); Tucker v. Tucker, 197 N.C. App. 592, 594, 679 S.E.2d 

141, 143 (2009). 

There are two kinds of contempt — civil and criminal. 

O’Briant v. O’Briant, 313 N.C. 432, 434, 329 S.E.2d 370, 372 

(1985). “A major factor in determining whether contempt is 

civil or criminal is the purpose for which the power is 

exercised.” Id.

Criminal contempt is generally applied where 

the judgment is in punishment of an act 

already accomplished, tending to interfere 

with the administration of justice. Civil 

contempt is a term applied where the 

proceeding is had to preserve the rights of 

private parties and to compel obedience to 

orders and decrees made for the benefit of 

such parties.

Id. (citation and quotation marks omitted). Pursuant to N.C. 

Gen. Stat. § 5A-21(c), “[a] person who is found in civil 

contempt under this Article shall not, for the same conduct, be 

found in criminal contempt under Article 1 of this Chapter.” 

Defendant argues that because the trial court concluded 

that she was “being held in criminal contempt” while 

simultaneously ordering that she be held in continuing civil 

contempt, the trial court erred by holding defendant in both 

civil and criminal contempt for the same conduct in violation of 

section 5A-21(c). This Court has previously rejected 
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defendant’s argument in Hancock v. Hancock, 122 N.C. App. 518,

522, 471 S.E.2d 415, 418 (1996), where the trial court’s 

contempt order stated that the plaintiff was in “willful, 

criminal contempt,” but the character of relief indicated that 

the plaintiff was actually being held in civil contempt. This 

Court held that “the character of the relief is dispositive of 

the distinction between criminal and civil contempt, and where 

the relief is imprisonment, but the contemnor may avoid or 

terminate imprisonment by performing an act required by the 

court, then the contempt is civil in nature.” Id. Thus, even 

though the trial court specifically concluded that it was 

holding the plaintiff in criminal contempt, this Court held that 

the contempt was civil, and not criminal, in nature, and 

therefore did not disturb the order based on the trial court’s 

mistaken conclusion. Id. 

Here, like the contemnor in Hancock, defendant may avoid 

her sentence of thirty days imprisonment by meeting the purge 

conditions included in the trial court’s contempt order. 

Because “the character of the relief is dispositive of the 

distinction between criminal and civil contempt,” we hold that 

the contempt order is actually civil in nature, and therefore 

the trial court did not improperly hold defendant in criminal 
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contempt, despite its legal conclusion to the contrary. 

Hancock, 122 N.C. App. at 522, 471 S.E.2d at 418.

II. Findings of Fact and Conclusions of Law

Defendant next argues that the trial court’s findings of 

fact are not supported by competent evidence, and the findings 

of fact do not support the trial court’s conclusion that all of 

the statutory elements of civil contempt were met. We disagree. 

“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.” Clark v. Clark, 294 

N.C. 554, 571, 243 S.E.2d 129, 139 (1978). “When a trial court 

sits as the trier of fact, the court's findings and judgment 

will not be disturbed on the theory that the evidence does not 

support the findings of fact if there is any evidence to support 

the judgment, even though there may be evidence to the 

contrary.” Atlantic Veneer Corp. v. Robbins, 133 N.C. App. 594, 

599, 516 S.E.2d 169, 173 (1999). “The trial court's conclusions 

of law drawn from the findings of fact are reviewable de novo.” 

Tucker, 197 N.C. App. at 594, 679 S.E.2d at 143.
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Pursuant to N.C. Gen. Stat. § 5A-21 (2013), failure to 

comply with an order of a trial court amounts to continuing 

civil contempt so long as:

(1) The order remains in force;

(2) The purpose of the order may still be 

served by compliance with the order;

(2a) The noncompliance by the person to whom 

the order is directed is willful; and 

(3) The person to whom the order is directed 

is able to comply with the order or is able 

to take reasonable measures that would 

enable the person to comply with the order.

At a show cause hearing, the trial court is the finder of fact, 

and it must enter a finding for or against the alleged contemnor 

on each of the elements set out in section 5A-21. N.C. Gen. 

Stat. § 5A-23(e), (f) (2013). 

We hold that the trial court here properly entered findings 

as to each element of section 5A-21, and each of the trial 

court’s findings are supported by competent evidence. 

First, after listing all of the previous orders that it had 

entered in this case, concluding with the 17 April order that 

plaintiff claimed defendant had failed to obey, the trial court 

found as fact that “[a]t all times relevant to this hearing 

these orders were still in full force and effect and the purpose 

of these orders may still be served by compliance with its [sic] 
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terms.” The 17 April order was the last substantive order 

entered before the trial court held defendant in contempt. In 

that order, the trial court included the provision that “[a]ll 

other orders are to remain in effect herein except as they are 

changed with the entry of this order.” Thus, the trial court 

entered findings of fact as to the first two elements of section 

5A-21, and there is competent evidence in the record to support 

the trial court’s finding that its previous orders, specifically 

including the 17 April order, were in full force and effect and 

that their purposes could still be served by compliance. 

Second, defendant argues that there is no competent 

evidence to support the trial court’s finding that defendant’s 

noncompliance with the 17 April order was willful. We disagree. 

“Willfulness in a contempt action requires 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’).” Hancock, 122 N.C. 

App. at 525, 471 S.E.2d at 419. The trial court found as fact 

that:

[S]ince the entry of the [17 April order], 

[d]efendant has willfully violated [the 17 

April order] by:

a. Interfering with the phone calls between 

Plaintiff and minor child;
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b. Failing to foster a feeling of affection 

between the minor child and the Plaintiff;

c. Failing to control the environment and 

people surrounding the minor child, 

specifically Defendant’s boyfriend Mr. Brian 

Kiddy;

d. Interfered with Plaintiff’s scheduled 

visitation;

e. Failing to ensure that the minor child 

attends every therapy session. 

These findings are supported by the following evidence: (1) 

defendant testified at the hearing on plaintiff’s motion to show 

cause that she was in control of the phone that the parties had 

purchased for the purpose of the court-ordered phone calls 

between plaintiff and Valerie; (2) plaintiff testified that 

“more than half of the calls” that he made to Valerie went 

unanswered; (3) even though he gave defendant notice in advance, 

the phone call that plaintiff made on Valerie’s birthday went 

unanswered; (4) due to the unanswered calls, plaintiff could not 

speak with Valerie twice a week as was ordered by the trial 

court; (5) plaintiff testified that Valerie’s demeanor would 

change considerably after spending time with defendant and that

she would say things like “You’ve been mean to me and my mommy” 

with “hostility in her voice” even though she is a “normal kid” 

when staying with plaintiff; (6) when he went to Valerie’s 
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therapist’s office to pick Valerie up after a scheduled 

appointment, plaintiff saw defendant’s boyfriend Brian Kiddy 

(“Kiddy”) videotaping Valerie and directing her to read to 

plaintiff a pre-typed list of reasons why she “didn’t want to 

go” with plaintiff; (7) Kiddy said “[Valerie] is a prisoner in 

your home” in Valerie’s presence at the doctor’s office; (8) in 

the sixth-month span between Valerie’s return to defendant’s 

home and the hearing, plaintiff had one weekend visitation with 

Valerie; and (9) defendant failed to bring Valerie to a 

scheduled counseling appointment, and plaintiff was forced to 

pay the cancellation fee for the missed visit. Thus, the trial 

court had plenary evidence before it to find as fact that 

defendant willfully violated the 17 April order. Given the 

deference this Court affords the trial court’s findings of fact, 

McAulliffe v. Wilson, 41 N.C. App. 117, 120–21, 254 S.E.2d 547, 

550 (1979), we affirm these findings as supported by competent 

evidence. 

Finally, defendant argues that the trial court failed to 

find as fact that she “is able to comply with the order or is 

able to take reasonable measures that would enable [her] to 

comply with the order.” N.C. Gen. Stat. § 5A-21(a)(3). 

Defendant argues that because the contempt order merely states 
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that she “had” the means and ability to comply with the previous 

court orders, the trial court failed to meet its statutory 

burden of showing that she currently has such an ability. 

However, the trial court clearly stated that “[d]efendant is 

able to comply with the [17 April order].” Although this is 

included in the trial court’s conclusions of law, it is more 

appropriately deemed a finding of fact, as it does not involve 

application of legal principles. See Wiseman Mortuary, Inc. v. 

Burrell, 185 N.C. App. 693, 697, 649 S.E.2d 439, 442 (2007). 

Because the trial court entered findings of fact as to each 

element of section 5A-21 and each finding is supported by 

competent evidence, we affirm the trial court’s conclusion that 

defendant violated the 17 April order and thus was properly held 

in continuing civil contempt. 

III. Purge Conditions

Defendant’s final argument on appeal is that the trial 

court erred by ordering purge conditions that are either 

unsupported by law or unrelated to compliance with the 17 April 

order. We agree in part and reverse the award of attorneys’ 

fees. 

Pursuant to N.C. Gen. Stat. § 5A-23(e), “[i]f civil 

contempt is found, the judicial official must enter an order 
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finding the facts constituting contempt and specifying the act 

which the contemnor must take to purge himself or herself of the 

contempt.” “The court’s conditions under which defendant can 

purge herself of contempt cannot be vague such that it is 

impossible for defendant to purge herself of contempt, and a 

contemnor cannot be required to pay compensatory damages.” 

Watson v. Watson, 187 N.C. App. 55, 65, 652 S.E.2d 310, 317 

(2007) (citation omitted). 

Defendant first argues that the purge conditions do not 

specify when the purge ends and are so vague that it would be 

impossible to purge herself of contempt. Defendant cites to 

cases where this Court has reversed “impermissibly vague” 

conditions. For example, in Scott v. Scott, 157 N.C. App. 382, 

579 S.E.2d 431 (2003), this Court held that the trial court’s 

order requiring the defendant to purge contempt “by not 

interfering with the plaintiff’s custody of the minor children 

and [] by not threatening, abusing, harassing or interfering 

with the plaintiff or the plaintiff’s custody of the minor” was 

“impermissibly vague” because the conditions did not “clearly 

specify what the defendant can and cannot do . . . in order to 

purge [himself] of the civil contempt.” Scott, 157 N.C. App. at 

393-94, 579 S.E.2d at 438-39 (citations and quotation marks 
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omitted). Here, each of the trial court’s purge conditions 

listed a specific action that was either required or prohibited 

in order for defendant to purge herself of contempt. For 

example, the trial court ordered defendant to obey all previous 

court orders, ensure that phone calls between plaintiff and 

Valerie take place on Wednesdays and Fridays at 7:00 p.m., pay 

for all of Valerie’s missed therapy sessions, and ensure that 

she attends three therapy sessions with plaintiff in a timely 

manner. Thus, we conclude that the trial court did not err by 

entering impermissibly vague purge conditions, because defendant 

can take specific action as specified in the trial court’s order 

to purge herself of contempt.

Next, defendant contends that the purge conditions 

improperly modified the previous custody award. Defendant 

relies on Kennedy v. Kennedy, 107 N.C. App. 695, 703, 421 S.E.2d 

795, 799 (1992), where this Court vacated a contempt order that 

changed custody of a child from joint custody to sole custody 

without the proper motion to modify custody required by N.C. 

Gen. Stat. § 50-13.7 (2013). Here, the trial court did not 

modify custody via the purge conditions. Primary custody 

remained with defendant both before and after the contempt 

order. Rather, the contempt order altered the previous orders’
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phone call requirements between Valerie and plaintiff and set 

out more specific times for those calls, among other things 

unrelated to custody. Because the trial court did not modify

custody, Kennedy is inapposite, and defendant’s argument is 

overruled. 

Defendant also argues that the trial court was not 

authorized to require payment of missed therapy appointments as 

a purge condition. This Court has established that when relief 

imposed in a contempt order is remedial rather than punitive, it 

is civil in nature and allowable in a civil contempt order. See 

Bishop v. Bishop, 90 N.C. App. 499, 504, 369 S.E.2d 106, 108-09 

(1988) (citation omitted). “If the relief provided is a fine, 

it is remedial when it is paid to the complainant, and punitive 

when it is paid to the court[.]” Id. Accordingly, since 

defendant was ordered to repay the cancellation fee to plaintiff 

that was incurred as a result of defendant’s failure to ensure 

Valerie attended all therapy sessions, in contravention of a 

previous court order, we hold that this was a permissible 

remedial remedy. 

Finally, defendant argues that the trial court erroneously 

ordered defendant to pay attorneys’ fees as a purge condition. 

We agree. A trial court may not award attorneys’ fees unless 
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specifically authorized by statute. United Artists Records, 

Inc. v. Eastern Tape Corp., 18 N.C. App. 183, 187, 196 S.E.2d 

598, 601-02, cert. denied, 283 N.C. 666, 197 S.E.2d 880 (1973). 

This Court has previously held that attorneys’ fees may be 

awarded under N.C. Gen. Stat. § 50-13.6 to parties who 

successfully pursue a motion for contempt in child support and 

custody actions. Wiggins v. Bright, 198 N.C. App. 692, 695, 679 

S.E.2d 874, 876 (2009). However, the trial court is required to 

enter two findings of fact before awarding attorneys’ fees in 

such cases: (1) the party to whom the attorneys’ fees are 

awarded is acting in good faith, and (2) that party has 

insufficient means to defray the expense of the suit. Id. at 

696, 679 S.E.2d at 876. Here, the trial court made a factual 

finding that plaintiff was acting in good faith, but failed to 

enter a finding that he could not defray the expense of the 

suit. Therefore, because the trial court failed to enter the 

requisite findings of fact to support its award of attorneys’ 

fees, we reverse that portion of the contempt order.

Conclusion

For the foregoing reasons, we affirm the trial court’s 

order holding defendant in civil contempt and specifying 

conditions that would allow defendant to purge this contempt, 
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but we reverse the trial court’s award of attorneys’ fees 

because it failed to enter the required findings of fact to 

support the award. 

AFFIRMED IN PART; REVERSED IN PART.

Judges GEER and McCULLOUGH concur.

Report per Rule 30(e).