Turner v. Oakley ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-266
No. COA21-274
Filed 19 April 2022
Randolph County, No. 19 CVD 1606
BRIAN R. TURNER, Plaintiff,
v.
LINDSEY OAKLEY (now LEGGE), Defendant.
Appeal by Plaintiff from orders entered 31 July 2020 and 17 August 2020 by
Judge Lee W. Gavin in Randolph County District Court. Heard in the Court of
Appeals 25 January 2022.
Lake Tillery Law, by Brooke M. Crump, for Plaintiff-Appellant.
Cathy R. Stroupe for Defendant-Appellee.
COLLINS, Judge.
¶1 This appeal stems from Plaintiff’s August 2018 motion to modify custody of the
parties’ son, Matthew.1 Plaintiff argues that the trial court lacked jurisdiction to
enter an order modifying custody, made a finding of fact not supported by substantial
evidence, failed to find a nexus between the substantial change in circumstances and
Matthew’s welfare, failed to make sufficient findings concerning evidence of child
1 We use a pseudonym to protect the identity of the minor.
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abuse, and abused its discretion. After careful review, we affirm.
I. Background
¶2 The parties are the parents of Matthew, a minor child born in March 2010.
The parties were never married.
¶3 On 15 April 2013, Plaintiff filed a complaint in Rockingham County District
Court seeking primary custody of Matthew. On 26 November 2013, the district court
entered an order granting primary custody to Defendant and secondary custody to
Plaintiff (“2013 Custody Order”). This order awarded the parties physical custody of
Matthew as follows: Plaintiff had physical custody on “all weekends that [Defendant]
must work”; Defendant had physical custody the weekend immediately following; and
Plaintiff had physical custody “for the next two successive weekends immediately
following[.]” The 2013 Custody Order also included a holiday schedule granting each
party physical custody “for as close to equal time [as] is practical,” and a provision
permitting each party custody for vacation purposes upon advance notice.
¶4 On 10 August 2018, Plaintiff filed an Ex Parte Motion for Emergency Custody
and Modification of Prior Order on Custody (“Custody Motion”) seeking temporary
and permanent custody of Matthew. Plaintiff alleged there had been a substantial
and material change in circumstances affecting Matthew’s welfare since the entry of
the 2013 Custody Order as follows:
a. Since the school year ended, [Matthew] has primarily
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resided with Plaintiff.
b. On March 29, 2018, Defendant called Plaintiff in a rage
and said that she couldn’t do anything for [Matthew]
while screaming at [Matthew] to go live with
[D]efendant if that’s what [Matthew] wanted.
c. [Matthew] has expressed concern that Defendant does
not have time for him during the school week due to
her busy schedule in the evenings including going to
work and school, whereas she has enrolled in school on
four different occasions.
d. Defendant has not been keeping up with [Matthew’s]
homework and has trouble communicating with
teachers.
e. Defendant currently has [Matthew] in therapy due to
the strained relationship between Defendant and
[Matthew].
f. The current visitation schedule is not in the best
interest of [Matthew] due to Defendant’s current
mental state, Defendant’s threats to [Matthew], and
Defendant’s strained relationship with [Matthew].
g. Plaintiff has married and [Matthew] has a strong
familial bond with both Plaintiff and Plaintiff’s wife.
h. Modifying the schedule to give specific visitation times
for Defendant’s visitations, and giving Plaintiff
primary custody, will promote consistency and
stability for [Matthew], which is in the best interests of
[Matthew].
¶5 The trial court granted Plaintiff emergency full custody of Matthew by an ex
parte order. Following a hearing on 29 August 2018, the trial court entered an order
on 14 December 2018 granting Plaintiff “temporary primary physical and legal
custody” of Matthew and awarding Defendant “supervised visitation at a time,
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location, frequency, and duration mutually agreed upon by the parties” (“Initial
Emergency Custody Order”).
¶6 Defendant moved the court on 11 January 2019 to establish a visitation
schedule (“Visitation Motion”). Defendant alleged that Plaintiff had “systematically
denied” her requests for visitation under the Initial Emergency Custody Order and
refused to communicate with Defendant.
¶7 On 8 February 2019, the trial court entered a Temporary Memorandum of
Judgment/Order (“First Memorandum Order”) incorporating the parties’ agreement
to permit Defendant certain supervised visitation with Matthew in person and by
phone. On 5 March 2019, the trial court entered a Temporary Order adjusting the
time at which Defendant was to have telephone visitation with Matthew.
¶8 The trial court entered an additional Temporary Memorandum of
Judgment/Order on 5 April 2019 (“Second Memorandum Order”), containing another
agreement by the parties to permit Defendant supervised visitation with Matthew in
person and by phone. The Second Memorandum Order also provided that “[t]his
matter is temporary in nature, entered without prejudice to either party” and ordered
the case be transferred to Randolph County District Court. On 9 May 2019, the
Rockingham County District Court entered a Temporary Order containing the same
terms as the Second Memorandum Order.
¶9 Defendant responded to Plaintiff’s Custody Motion on 9 May 2019. The
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Randolph County District Court received the case file on 16 July 2019 and noticed a
hearing on Plaintiff’s Custody Motion. The trial court heard Plaintiff’s motion on
8 November 2019, 18 February 2020, and 7 July 2020.
¶ 10 On 31 July 2020, the trial court entered a Temporary Order directing Plaintiff
to bring Matthew to Defendant’s home that evening, pending entry of a final order
(“July 2020 Temporary Order”). Plaintiff filed a notice of appeal from the July 2020
Temporary Order.2
¶ 11 The trial court entered a Custody Order on 17 August 2020 (“August 2020
Custody Order”) which included the following pertinent findings of fact:
5. That a Court Order which included provisions for child
custody of [Matthew] was entered on or about November
26, 2013, in Rockingham County, North Carolina District
Court . . . . In said Order, Defendant was granted primary
custody, control, and tuition of [Matthew], with Plaintiff
exercising certain visitation. . . .
6. That thereafter, Defendant relocated to Guilford
County, North Carolina and continued to be the primary
caregiver of [Matthew].
7. That Defendant’s brother died unexpectedly in an
automobile accident in 2017. Defendant and her brother
were very close and Defendant had a hard time dealing
with his death.
8. That on August 8, 2018, Defendant was to pick up
[Matthew] following summer visitation with Plaintiff.
Defendant was under continued stress from dealing with
2 Plaintiff raised no arguments concerning the July 2020 Temporary Order in his brief.
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her brother’s death and was dealing with anxiety and
depression. She had suffered panic attacks for the two
weeks prior to August 8, 2018. Defendant had concerns
about her ability to care for [Matthew], and out of that
concern, Defendant asked Plaintiff’s wife to keep
[Matthew]. Plaintiff’s wife testified that Defendant had
developed a trust with Plaintiff’s wife and Plaintiff’s wife
agreed to keep [Matthew].
9. That after speaking with Plaintiff’s wife on August 8,
2018, Defendant voluntarily committed herself at Wesley
Long Hospital, Greensboro, North Carolina. Contrary to
the testimony of Plaintiff’s wife that they did not learn of
the hospitalization until the next week, the Defendant’s
husband informed the Plaintiff on August 9th of
Defendant’s hospitalization. Defendant was released from
Wesley Long Hospital on August 16, 2018.
10. That on August 10, 2018, Plaintiff obtained an ex parte
custody Order in Rockingham County District Court. A
return hearing was held on August 29, 2018. At the
hearing, the Court entered [the Initial Emergency Custody
Order] granting Plaintiff temporary custody and allowing
Defendant supervised visitation to be mutually agreed
upon by the parties.
11. Following the August 29, 2018 hearing Defendant was
in a state of shock at losing custody of [Matthew]. She was
assessed by Dr. Alexander Eksir (“Dr. Eksir”), a board-
certified licensed psychiatrist, who diagnosed her with a
severe episode of depression with psychotic symptoms.
Defendant voluntarily admitted herself to Moses Cone
Hospital on August 31, 2018 and was discharged on
September 5, 2018. Upon her discharge, Defendant was
stable and substantially improved.
12. That Defendant has followed up with Dr. Eksir who
described Defendant as a model patient. Dr. Eksir testified
that Defendant suffered a major depressive disorder that
is in remission. Dr. Eksir described Defendant as cured.
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He testified that she is down to earth, involved and
engaged with no impairment. He has no concerns that
Defendant is a danger to herself or anyone else. She had
no problem with the birth of her second child. Dr. Eksir
has no concern about children being in Defendant’s care.
13. That notwithstanding the fact that the [Initial
Emergency Custody Order] provided for Defendant to have
supervised visitation with [Matthew], Plaintiff allowed
Defendant to have unsupervised visits with [Matthew]
during Thanksgiving 2018 and at Defendant’s home for
Christmas 2018. These visits went very well.
14. That Defendant asked Plaintiff many times for
expanded visits and a visitation schedule which Plaintiff
refused. That Plaintiff filed [the Visitation Motion] on
January 11, 2019 asking the (Rockingham County, North
Carolina) Court to set a visitation schedule. The parties
were in Court on February 8, 2019 but the Court was
unable to conduct a full hearing on Defendant’s motion.
The parties reached [the First Memorandum Order] for a
supervised visitation schedule, under which Defendant
was to have supervised visitation every Friday and
Saturday in Guilford County, North Carolina.
15. That Defendant noticed the matter back on for a review
of the [Initial Emergency Custody Order] in Rockingham
County District Court and the matter was set for hearing
on April 5, 2019.
16. That the parties returned to (Rockingham County,
North Carolina) Court on April 5, 2019 for the Court to
conduct a hearing and review of the[Initial Emergency
Custody Order]. Again, the Court was unable to conduct a
full hearing on said review and an oral motion was made
to change venue to Randolph County, North Carolina since
neither party now lived in Rockingham County, North
Carolina. [The Second Memorandum Order] was entered
under which, after two (2) Saturday visitations, Defendant
was to exercise supervised visitation every Sunday from
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1:00 p.m. to 5:00 p.m. at Freedom Park, Liberty, Randolph
County, North Carolina. The (oral) change of venue was
then granted and the matter was transferred to Randolph
County, North Carolina.
17. That since April 5, 2019, except for very limited
exceptions, Plaintiff has only allowed Defendant
supervised visitation with [Matthew] at Freedom Park, no
matter the weather or the fact that Defendant had given
birth to another child, and that child should not be in the
open elements for four hours.
18. That Plaintiff’s main complaint regarding the
visitation between Defendant and [Matthew] was that the
half-siblings were competitive with each other during said
visitation, and that Defendant should only be the person
visiting with [Matthew], despite the fact that [Matthew]
had a step-father and half-siblings that only saw him 4
hours each week. That despite repeated requests from
Defendant, the Plaintiff refuses to allow any expanded
visitation between Defendant and [Matthew] and no good
cause has been shown for such refusal.
19. That the paternal grandmother, who supervised most
of the visits between Defendant and [Matthew], testified
that the visits went very well, that [Matthew] is very
bonded to the Defendant, that he loves his mother, and that
the only concern she expressed was that [Matthew] would
not get “one-on-one” attention because there are other
children in Defendant’s home.
20. That Defendant remains gainfully employed with
Moses Cone Hospital and that her work schedule allows
her to be home all but 5-7 days per month.
¶ 12 Based upon the foregoing findings of fact, the trial court concluded that “since
the entry of the [2013 Custody Order] there has been a substantial change of
circumstances that affect[s] the general welfare of” Matthew. The trial court further
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concluded that “it is in the best interest of [Matthew] that the [2013 Custody Order]
be modified and that the parties shall have joint legal custody of” Matthew and it “is
in the best interest, safety and general welfare of [Matthew that his] primary care,
custody and control be placed with the Defendant, with Plaintiff exercising certain
visitation with [Matthew] as more fully stated in the decretal portion of this Order.”
The trial court granted the parties joint legal custody and Defendant primary
physical custody. The trial court awarded Plaintiff visitation with Matthew as
follows: (1) three weekends of each month, from 5 p.m. Friday until 7 p.m. Sunday;
(2) a 30-day period during the school summer recess; (3) Father’s Day, a portion of
Matthew’s birthday, and every other Christmas, Thanksgiving, and Easter holiday;
and (4) other periods as the parties agree. Plaintiff gave notice of appeal from the
August 2020 Custody Order.
II. Discussion
A. Trial Court’s Jurisdiction to Enter the August 2020 Custody Order
¶ 13 Plaintiff argues that the trial court lacked jurisdiction to enter the August 2020
Custody Order. Though Plaintiff did not raise this argument before the trial court,
the issue of subject matter jurisdiction may be raised for the first time on appeal. In
re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006). We review this issue de
novo. McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010).
¶ 14 An existing order “for custody of a minor child may be modified or vacated at
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any time, upon motion in the cause and a showing of changed circumstances by either
party or anyone interested.” N.C. Gen. Stat. § 50-13.7(a) (2020). “[T]he jurisdiction
of the court entering [a child custody] decree continues as long as the minor child
whose custody is the subject of the decree remains within its jurisdiction.” Stanback
v. Stanback, 287 N.C. 448, 456, 215 S.E.2d 30, 36 (1975) (citations omitted).
¶ 15 Plaintiff asserts that the trial court was deprived of jurisdiction to enter the
August 2020 Custody Order because his Custody Motion was no longer pending.
Plaintiff contends that the trial court “overlooked the fact that multiple orders had
been entered since Plaintiff filed” his Custody Motion.
¶ 16 Contrary to Plaintiff’s assertion, until the August 2020 Custody Order, none of
the trial court’s orders finally resolved Plaintiff’s claim for permanent custody in his
Custody Motion. The 10 August 2018 ex parte order granted “emergency full custody”
to Plaintiff and set the matter for a review hearing. The Initial Emergency Custody
Order granted Plaintiff only “temporary primary physical and legal custody,” with
Defendant’s visitation to be “mutually agreed upon by the parties.” Following
Defendant’s Visitation Motion, the trial court entered the First Memorandum Order
which set a schedule of visitation between Defendant and Matthew. The subsequent
5 March 2019 Temporary Order merely adjusted the time at which Defendant was to
have telephone visitation with Matthew. This order noted that it embodied only a
“temporary agreement as to custody and visitation, pending further hearing and/or
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disposition by the Court.” The Second Memorandum Order set a new schedule of in-
person and telephonic visits between Defendant and Matthew and expressly specified
that it was “temporary in nature, entered without prejudice to either party.” The
9 May 2019 Temporary Order contained these same terms. Defendant filed a
response to Plaintiff’s Custody Motion on 9 May 2019 and the trial court listed
Plaintiff’s Custody Motion as one of the matters for hearing on three consecutive
notices of hearing. At the beginning of the 8 November 2019 hearing, Counsel for
Plaintiff answered affirmatively when the trial court inquired, “So you have a motion
to modify, correct?”
¶ 17 Moreover, even if Plaintiff’s Custody Motion was no longer technically pending,
“the absence of a motion to modify . . . does not divest the district court of jurisdiction
to act under the purview of” the modification provision in N.C. Gen. Stat. § 50-13.7(a).
Catawba Cnty. ex rel. Rackley v. Loggins, 370 N.C. 83, 94, 804 S.E.2d 474, 482 (2017).
“A primary purpose of a requirement to file a motion in order to modify” is to “make
the court aware of important new facts unknown to the court at the time of the prior
custody decree.” Id. at 96, 804 S.E.2d at 483 (quotation marks and citation omitted).
Where the conduct of the parties satisfies this purpose, no motion is required.
Summerville v. Summerville, 259 N.C. App. 228, 241, 814 S.E.2d 887, 897 (2018). In
the present case the parties amply apprised the trial court of new facts unknown at
the time of the 2013 Custody Order: Plaintiff filed the Custody Motion, Defendant
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filed a response, and the parties appeared for multiple hearings during which the
trial court heard testimony.
¶ 18 The trial court was not deprived of jurisdiction to modify custody of Matthew
and the August 2020 Custody Order is not void for lack of jurisdiction.
B. Substantive Challenges to the August 2020 Custody Order
¶ 19 Plaintiff also raises several substantive challenges to the August 2020 Custody
Order. A “trial court’s examination of whether to modify an existing child custody
order is twofold.” Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253
(2003).
The trial court must determine whether there was a
change in circumstances and then must examine whether
such a change affected the minor child. If . . . the trial court
determines that there has been a substantial change in
circumstances and that the change affected the welfare of
the child, the court must then examine whether a change
in custody is in the child’s best interests. If the trial court
concludes that modification is in the child’s best interests,
only then may the court order a modification of the original
custody order.
Id.¶ 20 “In a child custody case, the 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.” Peters v. Pennington, 210 N.C. App. 1, 12-13, 707 S.E.2d
724, 733 (2011) (citation omitted). “Substantial evidence is such relevant evidence as
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a reasonable mind might accept as adequate to support a conclusion.” Id. at 13, 707
S.E.2d at 733 (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)).
We review a trial court’s decision in a child custody case for an abuse of discretion.
Id. An abuse of discretion occurs only where “the court’s decision is manifestly
unsupported by reason or is so arbitrary that it could not have been the result of a
reasoned decision.” Barton v. Sutton, 152 N.C. App. 706, 710, 568 S.E.2d 264, 266
(2002) (quotation marks and citation omitted).
1. Finding Concerning Dr. Eksir’s Testimony
¶ 21 Plaintiff challenges the trial court’s finding that “Dr. Eksir described
Defendant as cured.”
¶ 22 Dr. Eksir testified that when Defendant was discharged in the fall of 2018, her
condition was not yet resolved but was stable and “substantially improved.” Dr. Eksir
explained that at a follow-up appointment, Defendant’s condition was sufficiently
improved to taper her off of some of the medication she had been prescribed during
her hospitalization. Dr. Eksir testified that Defendant’s major depressive disorder
was in remission and defined “remission” as the point
when medication that’s provided or whatever treatment
has provided full reconstitution of a person’s mood such
that they’re able to function and behave and act and are
existing without any ongoing symptoms of their psychiatric
illness. It’s essentially like, you know, cured so to speak.
According to Dr. Eksir, Defendant maintained stability after her discharge from the
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hospital and her prognosis was “excellent.” Dr. Eksir’s testimony concerning
Defendant’s improvement is substantial evidence in support of the trial court’s
finding that Dr. Eksir “described Defendant as cured.”
¶ 23 Plaintiff emphasizes that none of the medical records read at the hearing state
that Defendant was “cured” and contends that “it is common knowledge that if you
have to take medicine for something, then you are not ‘cured.’” These arguments are
misplaced because the trial court only found that Dr. Eksir “described Defendant as
cured,” a finding sufficiently supported by Dr. Eksir’s testimony.
¶ 24 Without challenging any specific finding, Plaintiff also contends that the trial
court gave “far too much weight” to Dr. Eksir’s testimony concerning Defendant’s
current mental status. Plaintiff suggests that Dr. Eksir’s testimony warranted less
weight “considering that Dr. Eksir only sees the Defendant approximately every three
months.” This argument is unavailing because
[a] trial judge passes upon the credibility of the witnesses
and the weight to be given their testimony and the
reasonable inferences to be drawn therefrom. Issues of
witness credibility are to be resolved by the trial judge. It
is clear beyond the need for multiple citation that the trial
judge, sitting without a jury, has discretion as finder of fact
with respect to the weight and credibility that attaches to
the evidence. . . . [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.
Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994) (quotation marks,
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brackets, and citations omitted). Plaintiff’s argument is overruled.
2. Nexus Between Change in Circumstances and Matthew’s Welfare
¶ 25 Plaintiff also argues that the trial court erred by failing to find a nexus between
the substantial change in circumstances and Matthew’s welfare and by failing to
examine whether modification was in Matthew’s best interests. We disagree.
¶ 26 “Unless the effect of the [substantial change in circumstances] on the children
is ‘self-evident,’ the trial court must find sufficient evidence of a nexus between the
change in circumstances and the welfare of the children.” Stephens v. Stephens, 213
N.C. App. 495, 499, 715 S.E.2d 168, 172 (2011) (citing Shipman, 357 N.C. at 478, 586
S.E.2d at 255-56).
¶ 27 The trial court made findings concerning Defendant’s mental health
difficulties, her improvement upon hospitalization and treatment, her successful
visitation with Matthew, and her continued employment and flexible work schedule.
The trial court’s findings3 show that Defendant’s mental health crisis initially
affected not only her ability to care for herself, but her ability to care for Matthew.
The findings further show that Defendant improved following hospitalization and
3 In his principal brief, Plaintiff challenges only the trial court’s finding that “Dr. Eksir
described Defendant as cured.” The remaining unchallenged findings of fact are binding on
appeal, Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991), regardless of
Plaintiff’s belated attempt to challenge multiple additional findings in his reply brief, see
McLean v. Spaulding, 273 N.C. App. 434, 441, 849 S.E.2d 73, 79 (2020) (“Under Rule 28(b)(6)
of the North Carolina Rules of Appellate Procedure, where a party fails to assert a claim in
its principal brief, it abandons that issue and cannot revive the issue via reply brief.”).
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treatment and consequently has been able to exercise successful visitation with
Matthew. Based upon these findings, the trial court concluded that there had been a
substantial change in circumstances that affected Matthew’s welfare since entry of
the 2013 Custody Order. The trial court then concluded that it was in Matthew’s best
interests to modify the 2013 Custody Order to award joint custody to the parties, with
primary custody to Defendant.
¶ 28 The trial court complied with its duty to determine whether there was a
substantial change in circumstances, whether that change in circumstances affected
Matthew’s welfare, and whether modification of custody was in Matthew’s best
interests, Shipman, 357 N.C. at 474, 586 S.E.2d at 253, and its findings reflect
“sufficient evidence of a nexus between the change in circumstances and the welfare
of” Matthew, Stephens, 213 N.C. App. at 499, 715 S.E.2d at 172.
3. Evidence of Child Abuse
¶ 29 Plaintiff next argues that the trial court failed to make written findings
concerning “allegations of child abuse” and “expert testimony . . . presented regarding
the psychological abuse of” Matthew.
¶ 30 When determining the best interests of a child, the trial court
shall consider all relevant factors including acts of
domestic violence between the parties, the safety of the
child, and the safety of either party from domestic violence
by the other party. An order for custody must include
written findings of fact that reflect the consideration of
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each of these factors and that support the determination of
what is in the best interest of the child.
N.C. Gen. Stat. § 50-13.2(a) (2020). “Any evidence of child abuse is of the utmost
concern in determining whether granting custody to a particular party will best
promote the interest and welfare of the child,” and the trial court is obligated “to
resolve any evidence of [abuse] in its findings of fact.” Dixon v. Dixon, 67 N.C. App.
73, 78-79, 312 S.E.2d 669, 673 (1984).
¶ 31 In Scott v. Scott, the defendant argued that the trial court erred by failing to
make detailed findings regarding child abuse. 157 N.C. App. 382, 387, 579 S.E.2d
431, 435 (2003). There was evidence that the plaintiff spanked the child, but there
was “also evidence that the spanking did not inflict serious injury.” Id. Additionally,
the defendant “made no attempt to seek medical attention for the [c]hild, and there
was no evidence that the spanking left more than temporary red marks.” Id. This
Court held that this evidence did not obligate the trial court to make specific findings
concerning abuse. Id. (citing N.C. Gen. Stat. § 7B-101).
¶ 32 Here, though Plaintiff did not allege abuse in his Custody Motion, Plaintiff
contends he introduced evidence of physical and psychological abuse. However, as in
Scott, Plaintiff has not introduced evidence that the isolated incidents of spanking or
yelling he identified either “created serious emotional damage to [Matthew] . . .
evidenced by [Matthew’s] severe anxiety, depression, withdrawal, or aggressive
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behavior toward himself or others,” N.C. Gen. Stat. § 7B-101(1)(e) (2020), or evidence
of any “serious physical injury” or “substantial risk of serious physical injury,” N.C.
Gen. Stat. § 7B-101(1)(a), (b) (2020). Nor was there evidence that Plaintiff sought
treatment for Matthew. To the contrary, Plaintiff testified that he did not have
Matthew in therapy and he never thought Matthew needed to see a psychiatrist.
Plaintiff points to Dr. Eksir’s testimony, but Dr. Eksir merely gave a general
definition of emotional abuse and confirmed that emotional abuse can occur in a
parent-child relationship. The evidence presented at the hearing did not require the
trial court to make specific written findings concerning abuse.
4. Abuse of Discretion
¶ 33 Plaintiff argues that the trial court abused its discretion by not granting
primary custody to Plaintiff. Plaintiff also contends that there are “no reasons
supporting Plaintiff having even less visitation time with [Matthew] than he did prior
to the two years he had exclusive care, custody and control of [Matthew].” We
disagree.
¶ 34 Both the 2013 Custody Order and the August 2020 Custody Order granted the
parties joint custody and awarded primary custody to Defendant. The 2013 Custody
Order awarded Plaintiff physical custody of Matthew from 5 p.m. Thursday to 5 p.m.
Sunday on “all weekends that [Defendant] must work,” Defendant would have
physical custody the following weekend, and Plaintiff would again “exercise
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secondary physical custody of his son for the next two successive weekends[.]” The
August 2020 Custody Order awarded Plaintiff visitation on the first, second, and
fourth weekend of each month from 5 p.m. Friday to 7 p.m. Sunday. Each order
permitted Plaintiff to have vacation time with Matthew upon written notice and
established holiday visitation schedules providing for approximately equal visitation
between the parties.
¶ 35 The trial court’s decision to adopt the custody arrangement in the August 2020
Custody Order was not “manifestly unsupported by reason” or “so arbitrary that it
could not have been the result of a reasoned decision.” Barton, 152 N.C. App. at 710,
568 S.E.2d at 266 (quotation marks and citation omitted). The trial court’s findings
of fact reflect that Defendant experienced a mental health crisis in 2018 which
adversely affected her ability to care for Matthew. Defendant took steps to address
her mental health issues, including undergoing two voluntary commitments and
engaging in extensive psychiatric treatment, upon which she significantly improved.
Defendant subsequently had successful visitation with Matthew and remained
gainfully employed.
¶ 36 The trial court’s findings also reflect that Plaintiff had ongoing difficulties in
co-parenting Matthew. The Initial Emergency Custody Order provided that
“Defendant shall have supervised visitation at a time, location, frequency, and
duration mutually agreed upon by the parties.” The trial court found, however, that
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“Defendant asked Plaintiff many times for expanded visits and a visitation schedule
which Plaintiff refused.” The trial court further found that after entry of the Second
Memorandum Order, “except for very limited exceptions, Plaintiff . . . only allowed
Defendant supervised visitation with Matthew [outdoors] at Freedom Park, no
matter the weather or the fact that Defendant had given birth to another child, and
that child should not be in the open elements for four hours.” The trial court also
found that Plaintiff’s “main complaint regarding the visitation between Defendant
and [Matthew] was that the half-siblings were competitive with each other” and
Plaintiff desired for Defendant to be the only person visiting with Matthew, “despite
the fact that [Matthew] had a step-father and half-siblings that only saw him 4 hours
each week.”
¶ 37 In light of these findings, the trial court did not abuse its discretion by entering
the August 2020 Custody Order.4
III. Conclusion
¶ 38 The trial court had jurisdiction to modify the 2013 Custody Order, did not fail
to find a nexus between the change in circumstances and Matthew’s welfare, did not
4 Plaintiff notes that in the August 2020 Custody Order, the trial court stated that “it
is in the best interest and general welfare of [Matthew] that the Order entered on August 29,
2018, be modified as hereinbelow memorialized.” No order was entered in this case on that
date. However, where the trial court otherwise consistently referred to modification of the
2013 Custody Order, this singular erroneous reference does not demonstrate that the trial
court abused its discretion.
TURNER V. OAKLEY
2022-NCCOA-266
Opinion of the Court
fail to address evidence of abuse, and did not abuse its discretion. We thus affirm the
August 2020 Custody Order.
AFFIRMED.
Judges GORE and JACKSON concur.