Berry v. Berry ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-700
Filed: 16 January 2018
Pitt County, No. 12 CVD 267
JOHN EDWARD BERRY, Plaintiff,
v.
ASHLEIGH ANDREWS BERRY, Defendant.
Appeal by plaintiff from order entered 23 February 2017 by Judge Lee F.
Teague in Pitt County District Court. Heard in the Court of Appeals 13 December
2017.
Ward and Smith, P.A., by John M. Martin, for plaintiff-appellant.
Van Der Have Family Law, by Leslie G. Van Der Have, for defendant-appellee.
TYSON, Judge.
John Berry (“Plaintiff” or “Mr. Berry”) appeals from an order assigning
primary physical custody of his two children to their mother, Ashleigh Berry
(“Defendant” or “Ms. Berry”). Plaintiff has failed to show the trial court abused its
discretion in assigning Defendant primary physical custody. We affirm the trial
court’s order.
I. Background
Mr. Berry and Ms. Berry were married 22 October 2005. They are parents of
two children, C.B., born in 2008, and H.B, born in 2011. The parties separated on 28
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January 2012. Mr. Berry filed a complaint on 31 January 2012, which sought
temporary and permanent custody, and a motion for an ex parte temporary custody
order to “maintain[] the status quo living arrangements” of the children throughout
the hearing process. Ms. Berry had removed the children from the marital home and
taken them to her parents’ home. The motion for ex parte temporary custody was
heard on 3 February 2012, and a temporary custody order was entered on 7 March
2012. The court granted temporary physical custody of the children to Ms. Berry,
and secondary physical custody and unsupervised daytime visitation to Mr. Berry.
On 21 May 2012, C.B. allegedly told Ms. Berry his father had “put an x-ray in
his hiney.” Ms. Berry took C.B. to the pediatrician, who found no physical indication
of any abuse. Ms. Berry filed a report with Pitt County Department of Social Services
(“DSS”) on 25 May 2012, and DSS determined her allegations did not justify further
investigation.
At the temporary custody hearing on 29 May 2012, Ms. Berry presented her
concerns about Mr. Berry sleeping with or staying in the same room as the children,
presented allegations about Mr. Berry’s pornography usage, and re-asserted her
allegations concerning C.B.’s “x-ray incident.” The temporary order for child custody
and child support was read aloud in court and entered on 24 October 2012. This order
maintained the previous custody arrangements, allowed Mr. Berry overnight
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visitation, but specifically decreed neither parent should sleep in the same room as
the children.
Mr. and Ms. Berry continued negotiations for permanent custody throughout
2012 and into 2013. A judgment granting absolute divorce between Mr. Berry and
Ms. Berry was entered on 25 April 2013.
Mr. Berry met his current wife, Jodie Berry (“Jodie”) in January 2013. Ms.
Berry became upset after Jodie was included in some of the children’s activities.
Custody negotiations stalled at the end of July 2013.
Ms. Berry alleged she witnessed an incident of “sexualized behavior” between
the children in the bathtub on 31 July 2013. She stated the children told her it was
something “Daddy likes for them to do.” On 1 August 2013, Ms. Berry met with Julie
Gill of Tedi Bear Children’s Advocacy Center (“TBCAC”). Ms. Gill reported their
conversations to DSS on 2 August 2013, and DSS accepted the report for immediate
investigation. The investigator interviewed C.B., Mr. Berry, and Ms. Berry on 2
August 2013.
The DSS investigator scheduled forensic interviews and medical examinations
for the children at TBCAC on 6 August 2013. Neither the interviews nor the exams
revealed any inappropriate sexual contact or evidence of sexual abuse. TBCAC
recommended DSS approve a Child and Family Evaluation (“CFE”).
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The CFE was conducted between 13 September 2013 and 12 October 2013.
After extensive interviews, the CFE concluded:
(a) [C.B.] was tremendously inconsistent in his versions of
events including the “x-ray allegations”;
...
(c) [a]lthough Ms. Berry had expressed concerns about Mr.
Berry’s level of attachment to [C.B.] and his prior use of
pornography, Mr. Berry’s level of attachment to [C.B.] was
not extraordinary given the high conflict custody matter
and his prior use of pornography was within normal limits;
...
(e) Ms. Berry demonstrated significant issues of control
during the CFE process.
The CFE recommended:
(a) [t]he children should be placed in therapy immediately;
(b) [t]he parents no longer question the children regarding
any allegations;
(c) [b]oth parents attend and receive training in effective
co-parenting/cooperative co-parenting from an expert and
that the expert/coordinator continue to provide training;
and,
(d) [a] custody evaluation should be conducted.
After receiving the CFE, DSS determined the abuse allegations could not be
substantiated. In a letter dated 21 October 2013, DSS informed Mr. Berry and Ms.
Berry of their determination, and recommended co-parenting training for both
parents, a custody evaluation, and therapy for the children.
Mr. Berry contacted Ms. Berry by email on 28 October 2013, stating his
agreement with DSS’ recommendations, but Ms. Berry only agreed to place C.B. in
therapy. Ms. Berry met with Brooke Bleau on 25 November 2013, to seek therapy for
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C.B.. Mr. Berry acquiesced, and C.B. began bi-weekly sessions with Ms. Bleau on 4
December 2013. Mr. Berry and Jodie, his current wife, became engaged in late
December 2013.
On 3 January 2014, Ms. Bleau recommended Dr. Anne Mauldin as a parenting
coordinator for Mr. Berry and Ms. Berry. Mr. Berry met with Dr. Mauldin on 16
January 2014, and Dr. Mauldin conducted a phone interview with Ms. Berry on 17
January 2014. Ms. Berry indicated that if she and Mr. Berry could not agree on
parenting decisions, then she would make the decisions. Mr. Berry filed a motion to
appoint a parenting coordinator and a motion for a custody evaluation on 21 January
2014.
Ms. Berry voluntarily agreed to engage in limited parenting coordination.
After two months, Dr. Mauldin indicated the parties had not reached an agreement
about Mr. Berry’s upcoming wedding weekend, but remained open to further sessions,
if either party identified co-parenting issues.
Ms. Berry did not raise any allegations of sexual abuse with Ms. Bleau from
point of intake until 4 February 2014. At that session, and every session thereafter,
Ms. Berry expressed concerns about alleged inappropriate sexual contact between
C.B. and Mr. Berry during Mr. Berry’s custodial visits. Ms. Bleau informed Ms. Berry
on 27 March 2014 that she would not make a report to DSS absent a complaint from
C.B. At the next weekly session, C.B. told Ms. Bleau his father had touched his
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private parts. On 23 April 2014, Ms. Bleau initiated contact with DSS concerning the
allegations of sexual abuse. No report was filed due to lack of information.
Mr. Berry’s motions for a parenting coordinator and a custody evaluation were
heard on 15 May 2014. Ms. Bleau testified that in her opinion, C.B. felt safe and
stable in Mr. Berry’s home, and he did not exhibit any indicators attributable to
abuse. The trial court found “it was unlikely that either child was being sexually
abused by Mr. Berry.” The trial court allowed the motion for custody evaluation, but
left the existing custody order in place.
On 21 May 2014, Ms. Berry expressed her dissatisfaction with Ms. Bleau. Ms.
Berry continued to raise concerns of inappropriate sexual contact occurring during
visits with Mr. Berry. C.B. told Ms. Bleau his father was “no longer touching his butt,
just touching his peepee.” Ms. Bleau made a report to DSS on 17 July 2014. DSS
indicated it would not accept the report on 22 July 2014.
Ms. Berry sent a letter to Ms. Bleau on 6 August 2014, discontinuing therapy
services. Ms. Berry did not find or agree to another therapist for C.B.
On 21 November 2014, the court appointed Dr. Cynthia Sortisio to conduct the
custody evaluation. Dr. Sortisio conducted home visits with both Mr. Berry and Ms.
Berry on 13 March 2015, after which Ms. Berry complained hers was “not fair.”
After H.B. allegedly told Ms. Berry that his father had put his finger into his
rectum, Ms. Berry had a conference with her therapist and attorney on 26 March
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2015. Ms. Berry’s therapist filed a report with DSS. DSS accepted this report for
investigation. The DSS social worker conducted unannounced interviews with H.B.
and C.B. at their schools.
In his interview, C.B. stated “his mother makes him tell lies and things that
are not true about his father.” H.B. also denied his father ever touching his butt,
putting his finger in his butt, or doing anything “bad” to him.
Dr. Sortisio concluded her custody evaluation on 20 December 2015, while the
DSS investigation was ongoing. Her evaluation concluded: (1) both parents needed
the assistance of a parenting coordinator; (2) the children should be placed in therapy;
(3) neither parent should initiate or discuss any conversation about inappropriate
touching, and if either child initiates any such conversation, it should be referred to
their therapist; (4) Ms. Berry’s desire to exercise control has interfered with Mr.
Berry’s ability to co-parent the children; and, (5) primary custody of the children
should be placed with Mr. Berry, if Ms. Berry is unable to set aside her focus on the
abuse allegations and accept the recommendations on shared parenting.
DSS used Dr. Sortisio’s report as part of its investigation. In its final report
on the allegations dated 7 March 2016, DSS substantiated emotional abuse and
injurious environment charges against Ms. Berry, but found no support that either
child had been sexually abused by Mr. Berry. The trial court did not include this
report in its findings of fact.
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On 27 January 2016, Mr. Berry filed a motion to modify the temporary custody
order, and sought primary legal and physical custody of the children. A permanent
custody trial was held in district court 8 August through 12 August 2016. In an order
dated 13 October 2016, the court granted the parties joint legal custody of the
children. Ms. Berry was granted primary physical custody and Mr. Berry was
granted secondary physical custody. The court also appointed a parenting
coordinator.
On 26 October 2016, Ms. Berry filed motions under Rules 52, 59, and 60 of the
North Carolina Rules of Civil Procedure seeking relief from the 13 October orders.
Mr. Berry filed a Rule 52(b) motion to amend the 13 October custody order on the
same day, specifically seeking to include the final report from the last DSS
investigation. The trial court heard post-trial motions, and entered an order
modifying custody on 23 February 2017. The modified custody order granted in part
and denied in part the parties’ post-trial motions, and made minor changes to the
custody arrangement. Mr. Berry timely filed notice of appeal on 24 March 2017.
II. Jurisdiction
Jurisdiction lies with this Court as an appeal from a final judgment under N.C.
Gen. Stat. § 7A-27(b)(2) (2017).
III. Issues
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Mr. Berry argues the trial court erred by: (1) granting primary physical custody
to Ms. Berry and denying primary physical custody to him; (2) including findings of
fact numbered 173 and 174, as they are not supported by any competent evidence; (3)
concluding the custody order is in the best interests of the children; (4) denying Mr.
Berry’s Rule 52(b) motion to include in its findings of fact the disposition of the 2015-
16 DSS investigation; (5) disregarding the court-appointed expert’s recommendations
on primary physical custody; (6) including findings of fact 119, 120 and 128, as they
are mere recitations of trial testimony; and, (7) ordering Mr. Berry to submit to a
sexual abuse assessment and to install pornography filters on his computer.
IV. Standard of Review
When this Court reviews child custody orders from a bench trial, we must
“ascertain (1) whether the challenged findings of fact are supported by substantial
evidence; (2) whether the trial court’s findings of fact support its conclusions of law;
and (3) whether the trial court abused its discretion in fashioning the custody and
visitation order.” Peters v. Pennington, 210 N.C. App. 1, 12, 707 S.E.2d 724, 733
(2011). “[T]he trial court’s findings of fact are conclusive on appeal if supported by
substantial evidence, even if there is sufficient evidence to support contrary findings.”
Id. at 12-13, 707 S.E.2d at 733. “Whether those findings of fact support the trial
court’s conclusions of law is reviewable de novo. Carpenter v. Carpenter, 225 N.C.
App. 269, 270, 737 S.E.2d 783, 785 (2013).
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“Broad discretion is given to the trial court in its fact-finding duties and in
making ultimate custody determinations.” O’Connor v. Zelinske, 193 N.C. App. 683,
687, 668 S.E.2d 615, 617 (2008). “The evidence upon which the trial court relies must
be substantial evidence and be such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Everette v. Collins, 176 N.C. App. 168,
170, 625 S.E.2d 796, 798 (2006). “A trial court may be reversed for abuse of discretion
only upon a showing that its actions are manifestly unsupported by reason . . . . [and]
that [its decision] was so arbitrary that it could not have been the result of a reasoned
decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
V. Custody Order
A. Findings of Fact
Mr. Berry argues the trial court erred by including findings of fact 173 and 174,
as they are unsupported by competent evidence. We disagree.
“Where no exception is taken to a finding of fact by the trial court, the finding
is presumed to be supported by competent evidence and is binding on appeal.”
Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
These two contested findings of fact include:
173. The parties are fit and proper for the custodial roles
assigned to them in the decretal section of this Order.
174. It is in the minor children’s individual and collective
best interests that their legal and physical custody be
awarded as set forth below.
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The district court’s thirty-eight page order also includes other numerous and
uncontested findings of fact, including: (1) Ms. Berry’s role as the children’s primary
caregiver throughout their lives since birth; (2) her involvement in their education
and extracurricular activities; (3) the appropriateness of her home; (4) the fact Ms.
Berry is “a good parent” and is very close and bonded with her children; (5) Ms.
Berry’s progress in therapy to manage her anxiety and stressors in a positive manner;
and, (6) her use of therapy to seek advice on co-parenting and proper responses to her
children’s behaviors.
This substantial evidence provides support for the trial court to find and
conclude, in its discretion, that each parent is “fit and proper” for their assigned roles
and the resulting custody order is in the best interests of the children. Mr. Berry’s
arguments concerning these two findings of fact fail to show any abuse of the trial
court’s discretion that would allow us to set aside or reverse the trial court’s
conclusions. These arguments are overruled.
Mr. Berry also argues three findings of fact, numbers 119, 120, and 128, are
not actual findings, but mere recitations of trial testimony. Beyond raising this issue,
Mr. Berry provides no support for this argument. However, “[presuming], arguendo,
that those findings of fact were only [recitations], the record [evidence and the order]
still contain[] findings of fact, not challenged by defendant or already determined to
be supported by competent evidence by this Court, to support the trial court’s ‘best
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interest’ determination.” Hall v. Hall, 188 N.C. App. 527, 532, 655 S.E.2d 901, 905
(2008). Mr. Berry’s arguments concerning those three findings of fact do not show
any abuse of the trial court’s findings or reversible error in its conclusions. These
arguments are overruled.
B. Conclusions of Law
Mr. Berry argues the trial court erroneously ignored competent evidence
contrary to the ultimate conclusion, disregarded the recommendations of its court-
appointed expert, and no competent evidence supports the trial court assigning
primary custody to Ms. Berry.
Within the 170 uncontested findings of fact, sufficient evidence supports the
trial court continuing primary physical custody of the children with Ms. Berry. While
some of the findings of fact clearly show Ms. Berry’s less positive traits and negative
behaviors, as the finder of fact “it is within the trial court’s discretion to determine
the weight and credibility that should be given to all evidence that is presented during
the trial.” Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994).
In the same manner, the trial court, as finder of fact, retains discretion over
“the weight and credibility” to accord to expert witnesses’ opinions and conclusions.
See id. The trial court’s order included Dr. Sortisio’s findings, including her ultimate
recommendation in favor of Mr. Berry, among its own findings of fact, but it was
under no obligation to assign any or greater weight to Dr. Sortisio’s findings, or to
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regard or hold them to be binding and conclusive of the ultimate issue. See In re
K.G.W., __ N.C. App. __, __, 791 S.E.2d 540, 542 (2016).
Nothing Mr. Berry argues indicates the trial court disregarded its appointed
expert’s findings; it merely exercised its appropriate role as the ultimate fact finder
in weighing the evidence presented before it. See Riley v. Ken Wilson Ford, Inc., 109
N.C. App. 163, 168, 426 S.E.2d 717, 720 (1993) (“When the trial judge sits as trier of
fact [he or] she has the duty to determine the credibility of the witnesses and weigh
the evidence[.]”).
It is unnecessary to address Mr. Berry’s argument asserting the trial court
ignored competent evidence. Long ago, our Supreme Court stated: “[t]he trial court
must itself determine what pertinent facts are actually established by the evidence
before it, and it is not for an appellate court to determine de novo the weight and
credibility to be given to evidence disclosed by the record on appeal.” Coble v. Coble,
300 N.C. 708, 712-13, 268 S.E.2d 185, 189 (1980) (emphasis supplied).
Uncontested facts, binding upon appeal, exist to support the trial court’s
ultimate conclusion to continue and award Ms. Berry with primary physical custody,
expressly subject to the conditions set forth in the order. These uncontested findings
are sufficient to uphold the trial court’s conclusion, even in the face of evidence and
findings of fact that would support a contrary conclusion. See Peters, 210 N.C. App.
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at 12-13, 707 S.E.2d at 733. Mr. Berry’s arguments concerning the uncontested
findings and factually supported conclusions of law are overruled.
C. Unsupported Arguments
Mr. Berry argues the trial court erred in denying his Rule 52(b) motion and by
requiring him to undergo a sexual abuse assessment and follow recommended
treatment and to install software to block “inappropriate and harmful material” on
his electronic devices. Outside these bare assertions, Mr. Berry does not provide any
support for either argument, other than to assert the trial court was biased against
him and showed a preference for maternal primary custody.
In the absence of any recusal motions or hearing, or anything other than his
disagreement with the trial court’s exercise of discretion and conclusions, we decline
to address and dismiss them. See N.C. R. App. P. 28 (declining to address arguments
on appeal which are not supported by case law or other authority).
VI. Conclusion
The trial court exercises and retains wide discretion in adjudicating conflicting
evidence, in fact-finding, and in crafting custody orders. O’Connor, 193 N.C. App. at
687, 668 S.E.2d at 617. The trial court’s findings of fact are supported by substantial
and competent evidence. Even though some findings may be mere recitations of
testimony or would support contrary conclusions, sufficient findings exist to support
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the trial court’s exercise of discretion and its conclusions to award continued primary
custody to Ms. Berry. See Peters, 210 N.C. App. at 12, 707 S.E.2d at 733.
Plaintiff has failed to show the trial court abused its discretion in its
adjudications and determinations of the credibility or weight of the evidence
presented. Plaintiff has also failed to show reversible error in his challenges to the
competent evidence underlying the uncontested findings of fact to support the trial
court’s conclusions in the custody order. “[I]t is not for an appellate court to determine
de novo the weight and credibility to be given to evidence disclosed by the record on
appeal.” Coble, 300 N.C. at 712-13, 268 S.E.2d at 189.
We dismiss any unsupported arguments. The trial court’s custody order is
affirmed. It is so ordered.
AFFIRMED.
Judges HUNTER and DAVIS concur.
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