Thomas v. Thomas

NO. COA13-655
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
JOEL W. THOMAS,
Plaintiff,
v. Wake County
No. 10 CVD 17772
HERLENE THOMAS,
Defendant.
Appeal by defendant from order entered 17 December 2012 by
Judge Debra S. Sasser in Wake County District Court. Heard in
the Court of Appeals 6 January 2014.
Gailor, Hunt, Jenkins, Davis, & Taylor, P.L.L.C., by Cathy
C. Hunt and Jonathan S. Melton, for plaintiff-appellee.
Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and
Tobias S. Hampson, for defendant-appellant.
McCULLOUGH, Judge.
Defendant Herlene Thomas seeks review of a child custody
order, granting plaintiff Joel W. Thomas and defendant joint
legal custody, granting plaintiff primary physical custody, and
granting defendant secondary physical custody of their minor
child. For the reasons stated herein, we affirm the order of
the trial court.
I. Background
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Plaintiff Joel W. Thomas and defendant Herlene Thomas were
married on 31 August 2001 and divorced on 31 July 2007. One
child was born of their marriage in 2004 (hereinafter “minor
child”).
The parties’ first custody order was entered in California
on 27 April 2006 (“the 2006 Order”) and a second, supplementary
order was entered in California on 18 July 2007 (“the 2007
Order”). Both orders were registered in North Carolina on 21
October 2010 and 19 May 2011, respectively.
On 14 July 2011, plaintiff filed a “Motion to Modify
Custody Order, Motion for Psychological Evaluation and Motion
for Custody Evaluation Pursuant to N.C. Gen. Stat. § 50-13.1 et
seq.; Rule 35.” Plaintiff alleged that since the entry of the
2006 Order, defendant had “refused to facilitate the minor
child’s visitation with Plaintiff,” resulting in a substantial
change in circumstances affecting the best interest and welfare
of the minor child. Furthermore, plaintiff alleged that
“[d]efendant has shown an unwillingness to take reasonable
measures to foster a feeling of affection between the minor
child and Plaintiff and not to estrange the child from Plaintiff
or impair the [minor] child’s regard for Plaintiff.”
On 10 October 2011, the trial court entered an “Order For
Custody Evaluation And Clarification of Existing Child Custody
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Order.” The trial court found that “[g]iven the currently [SIC]
level of acrimony between the parties, the Court finds that a
good cause exists for ordering a custody evaluation.”
On 14 November 2011, defendant filed a “Motion to Modify
Custody; Motion for Contempt; Motion in the Cause for Attorney’s
Fees; Motion to Appoint Parenting Coordinator.” Defendant
argued that since the 2006 Order, a substantial change in
circumstances affecting the welfare of the minor child had
occurred and that modification of custody served the minor
child’s best interest. Defendant alleged, inter alia, that
plaintiff fails to communicate with defendant in a collaborative
way that promotes the best interest of the minor child,
plaintiff makes false or empty promises to the minor child,
plaintiff and his current wife demean and disparage defendant in
the presence of the minor child, and that the terms of the 2006
Order and the 2007 Order were “vague, ambiguous, confusing, and
did not serve the minor child’s best interest[.]”
Following a hearing held from 11 until 17 October 2012 on
each party’s motion to modify custody and several other motions
filed by both parties, the trial court entered a custody order
on 17 December 2012. The custody order included 226 findings of
fact. The trial court concluded that there had been a
substantial change in circumstances affecting the minor child,
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warranting a modification of the 2006 and 2007 Orders. The
trial court further concluded that it would be in the best
interest of the minor child and would best promote the interest
and general welfare of the minor child if the parties had joint
legal custody, with plaintiff “having final decision making
authority if the parties are unable to timely agree as to a
decision, and with [p]laintiff exercising primary physical
custody of the minor child, and with [d]efendant exercising
secondary physical custody[.]”
Defendant appeals.
II. Standard of Review
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. Substantial evidence is
such relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion. Unchallenged findings of fact
are binding on appeal. The trial court’s
conclusions of law must be supported by
adequate findings of fact.
Peters v. Pennington, 210 N.C. App. 1, 12-13, 707 S.E.2d 724,
733 (2011) (citations omitted).
“The trial court is vested with broad discretion in child
custody cases, and thus, the trial court’s order should not be
set aside absent an abuse of discretion.” Dixon v. Gordon, __
N.C. App. __, __, 734 S.E.2d 299, 304 (2012) (citation omitted).
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III. Discussion
Defendant presents the following issues on appeal: whether
the trial court (A) failed to make sufficient findings of fact
to support its conclusion of law that a substantial change in
circumstances had occurred; (B) erred in concluding that it was
in the best interest of the minor child to modify custody; and
(C) erred in denying the motion to appoint a parenting
coordinator.
A. Substantial Change in Circumstances
Defendant argues that the trial court erred by failing to
make sufficient findings of fact to support its conclusion of
law that there had been substantial change in circumstances
affecting the minor child, thereby warranting a modification of
the 2006 and 2007 California custody orders. Specifically,
defendant contends that (i) the parties’ stipulation to a
substantial change in circumstances was invalid and ineffective,
and (ii) the trial court failed to make specific findings about
what circumstances had changed and what effect, if any, such
changed circumstances had on the minor child. We address each
argument in turn.
i. Stipulation as to “Substantial Change in Circumstances”
Defendant argues that the trial court erred by making the
following finding of fact: “[t]he parties stipulate that there
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has been a substantial change of circumstances since entry of
the California Orders for custody on April 27, 2006 and July 18,
2007.”
At the beginning of the hearing, the following exchange
occurred:
THE COURT: All right. Thank you. Um, before
we get started, since each party has a
Motion to Modified [sic] Custody on the
calendar, are you interested in just having
a stipulation that there has been a
substantial change in circumstances that
would warrant a modification, such that I
can focus my energies on best interests as
opposed to, um, keeping tabs on whether
there’s evidence of a substantial change?
[Plaintiff:] We would stipulate to that,
Your Honor.
[Defendant:] Uh, yes, Your Honor, I think
it’s clear.
THE COURT: All right. All right. And I’m
certain we’ll identify what those changes
are.
It is well established that a “determination of whether
changed circumstances exist is a conclusion of law.” Head v.
Mosier, 197 N.C. App. 328, 334, 677 S.E.2d 191, 196 (2009)
(citing Brooker v. Brooker, 133 N.C. App. 285, 289, 515 S.E.2d
234, 237 (1999)). Our Court has held that “[s]tipulations as
to questions of law are generally held invalid and ineffective,
and not binding upon the courts, either trial or appellate.” In
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re A.K.D., __ N.C. App. __, __, 745 S.E.2d 7, 9 (2013) (citation
omitted).
Based on the foregoing, we agree with defendant’s
contention that the parties’ stipulation as to a substantial
change in circumstances was invalid and ineffective.
ii. Findings to Support a Substantial Change in Circumstances
Next, defendant argues that the trial court failed to make
sufficient findings of fact to support its conclusion that
“[t]here has been a substantial change in circumstances
affecting the minor child which warrants a modification of the
2006 and 2007 California Custody Orders.” We are not persuaded
by defendant’s arguments.
“It is well established in this jurisdiction that a trial
court may order a modification of an existing child custody
order between two natural parents if the party moving for
modification shows that a ‘substantial change of circumstances
affecting the welfare of the child’ warrants a change in
custody.” Shipman v. Shipman, 357 N.C. 471, 473, 586 S.E.2d
250, 253 (2003) (citations omitted). The modification of a
custody decree must be supported by findings of fact reflecting
the fulfillment of this burden. See Tucker v. Tucker, 288 N.C.
81, 87, 216 S.E.2d 1, 5 (1975). “[T]he evidence must demonstrate
a connection between the substantial change in circumstances and
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the welfare of the child, and flowing from that prerequisite is
the requirement that the trial court make findings of fact
regarding that connection.” Shipman, 357 N.C. at 478, 586
S.E.2d at 255 (citation omitted).
In determining whether a substantial change
in circumstances has occurred[, c]ourts must
consider and weigh all evidence of changed
circumstances which effect or will affect
the best interests of the child, both
changed circumstances which will have
salutary effects upon a child and those
which will have adverse effects upon the
child.
Hibshman v. Hibshman, 212 N.C. App. 113, 121, 710 S.E.2d 438,
443 (2011) (citations and quotation marks omitted).
In the present case, the primary disputed issues regarding
the minor child’s welfare were plaintiff’s allegation that
defendant was refusing to facilitate the minor child’s
visitation with plaintiff, plaintiff’s allegation that defendant
was unwilling to take reasonable measures to foster a feeling of
affection between the minor child and plaintiff, defendant’s
allegation that plaintiff failed to communicate with defendant
in a collaborative way, defendant’s allegations that plaintiff
makes empty promises to the minor child and makes disparaging
comments about defendant in the presence of the minor child, and
defendant’s allegation that the terms of the 2006 Order and the
2007 Order were confusing and ambiguous. Upon a review of the
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226 unchallenged findings of fact made by the trial court, which
are binding on appeal, we find that the trial court sufficiently
resolved the issues at hand and demonstrated the existence of a
substantial change in circumstances and its effect on the minor
child, with those findings including the following:
78. For the most part, from 2006 until
2010, Defendant consulted with
Plaintiff and kept Plaintiff informed
about education and healthcare issues.
Plaintiff did not question Defendant’s
decisions as to these issues, and he
deferred to her about decisions in
these areas.
79. However, after Plaintiff married
Katrina [in November 2009], Defendant’s
ability to emotionally divorce herself
from Plaintiff became a barrier in
Plaintiff’s attempts to communicate
with [the minor child]. For the first
few months following Plaintiff’s
marriage to Katrina, Plaintiff could
not get in touch with [the minor
child].
80. While the parties’ relationship had
been dysfunctional for years,
Defendant’s refusal to follow through
on the Christmas 2009 visit with
Plaintiff and Plaintiff’s marriage to
Katrina marked the beginning of a
pattern of disruption in Plaintiff and
the minor child’s relationship.
. . . .
105. Following Social Services involvement
with the family [in 2011], Defendant
engaged in a pattern of vindictive
behavior with Plaintiff.
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106. On February 4, 2011, Defendant was
willfully hours late in having [the
minor child] available for pick-up, and
her communication with Plaintiff about
this was spiteful and vindictive. Due
to Defendant’s purposeful tardiness to
the custody exchange, Plaintiff was
unable to exercise visitation with the
minor child.
107. On March 18, 2011, Plaintiff let
Defendant know that he would be about
20 minutes late for a pick-up, but
Defendant did not have [the minor
child] there for a late pickup.
Although Defendant told Plaintiff that
she took [the minor child] to church,
this was not true. Again, due to
Defendant’s behavior Plaintiff was
unable to exercise visitation with the
minor child.
. . . .
110. Defendant has called Katrina a “b**ch”
in front of [the minor child] . . . .
Defendant lets her negative feelings
toward Katrina interfere with [the
minor child’s] relationship with
Plaintiff and Katrina. . . .
. . . .
112. Defendant has created the situation for
a hostile relationship between [the
minor child] and Katrina.
. . . .
121. By the terms of the 2011 [Order for
Custody Evaluation and Clarification of
Existing Child Custody Order], the
Court sought to reduce conflict between
the parties, especially conflict in
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front of the minor child.
. . . .
126. Despite the “clarifying” North Carolina
custody order, Defendant continued to
interfere with Plaintiff’s custodial
time with [the minor child] throughout
2012.
. . . .
137. Defendant has put a premium on the
minor child’s activities to the
detriment of Plaintiff’s relationship
with the minor child. Defendant has
used things such as a “pumpkin picking”
trip at school as an excuse to limit
Plaintiff’s visitation with [the minor
child]. She has conditioned visits,
requiring Plaintiff to agree to take
[the minor child] to work with him
during a visit instead of [the minor
child] being allowed to stay at
Plaintiff’s home with Katrina. . . .
. . . .
150. Defendant’s interference with [the
minor child’s] contact with Plaintiff
is having a detrimental impact on [the
minor child] evidenced by the
difficulties at custodial exchanges.
. . . .
155. Defendant either intentionally ignores
the plain language of a Court Order or
she is not capable of understanding
plain language in a Court Order.
. . . .
196. [The minor child] can be very
manipulative. He has likely developed
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this personality trait as a response to
the intense negative emotions that his
mother feels toward his father and that
his father feels toward his mother. He
does not feel that he can express love
for a parent except directly to that
parent.
. . . .
199. Defendant has, either intentionally or
inadvertently, engaged in conduct that
is alienating [the minor child] from
Plaintiff. . . .
. . . .
215. Defendant’s feelings of hurt and anger
toward Plaintiff interfere with her
ability to effectively co-parent with
Plaintiff. The level of acrimony
between the parties has interfered in
their ability to co-parent [the minor
child].
These numerous findings illustrate the fact that since the
entry of the 2006 Order and the 2007 Order, plaintiff’s marriage
to Katrina in 2009 has marked the beginning of a “pattern of
disruptive behavior” by defendant involving the relationship
between plaintiff and the minor child, significantly interfering
with the parties’ ability to co-parent, and detrimentally
affecting the welfare of the minor child.
Accordingly, we hold that although the trial court’s
finding of fact regarding the parties’ stipulation to a
substantial change in circumstances was invalid and ineffective,
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the trial court’s findings of fact were adequate to support its
conclusion of law that a substantial change in circumstances
affecting the minor child warranted a modification of the 2006
Order and the 2007 Order.
B. Best Interest of the Minor Child
Next, defendant challenges the trial court’s conclusion of
law number 6:
6. It is in the best interest of the minor
child, and would best promote the
interest and general welfare of the minor
child, that the parties have joint legal
custody, with Plaintiff having final
decision making authority if the parties
are unable to timely agree as to a
decision, and with Plaintiff exercising
primary physical custody of the minor
child, and with Defendant exercising
secondary physical custody with the minor
child as set out hereinafter with more
specificity.
Specifically, defendant argues that the foregoing conclusion of
law is not supported by the findings of fact. We disagree.
Once the trial court concludes that there has been a
substantial change in circumstances affecting the minor child
“it may modify the order if the alteration is in the best
interests of the child.” Peters, 210 N.C. App. at 13, 707
S.E.2d at 734.
[A] custody order is fatally defective where
it fails to make detailed findings of fact
from which an appellate court can determine
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that the order is in the best interest of
the child, and custody orders are routinely
vacated where the "findings of fact" consist
of mere conclusory statements that the party
being awarded custody is a fit and proper
person to have custody and that it will be
in the best interest of the child to award
custody to that person. A custody order
will also be vacated where the findings of
fact are too meager to support the award.
Carpenter v. Carpenter, __ N.C. App. __, __, 737 S.E.2d 783, 787
(2013) (citing Dixon v. Dixon, 67 N.C. App. 73, 76-77, 312
S.E.2d 669, 672 (1984) (citations omitted)). Findings of fact
“may concern physical, mental, or financial fitness or any other
factors brought out by the evidence and relevant to the issue of
the welfare of the child.” Steele v. Steele, 36 N.C. App. 601,
604, 244 S.E.2d 466, 468 (1978).
After thoroughly reviewing the trial court’s 17 December
2012 Custody Order, we observe that the following pertinent
findings of fact allow our Court to determine whether a change
in custody is in the best interest of the minor child, and
adequately support the trial court’s conclusion of law number 6:
111. It would be in [the minor child’s] best
interest for Plaintiff, Defendant, and
Katrina to positively co-parent [the
minor child].
. . . .
150. Defendant’s interference with [the
minor child’s] contact with Plaintiff
is having a detrimental impact on [the
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minor child] as evidenced by the
difficulties at custodial exchanges.
. . . .
154. Defendant is in need of therapy to
address deep seated, long-term
unresolved issues arising from her
relationship with Plaintiff and her
failure to emotionally divorce herself
from this relationship, and it is in
[the minor child’s] best interest for
Defendant to engage in such therapy.
. . . .
181. It would not be in [the minor child’s]
best interest for either parent to exit
[the minor child’s] life. However,
neither is maintaining the status quo
in [minor child’s] best interest.
182. If [the minor child] were to live
primarily with Plaintiff, [the minor
child] would be moving to Suffolk,
Virginia, where Plaintiff has lived
since 2010. Plaintiff is established
in this community and has an
appropriate home for [the minor child].
[The minor child] is comfortable in
this home. . . .
. . . .
184. If [the minor child] were to live
primarily with Plaintiff, Katrina would
assist with [the minor child’s] care if
Plaintiff was away for his military
duties. Plaintiff’s parents are also in
close proximity to Plaintiff.
. . . .
188. Plaintiff would likely facilitate an
ongoing relationship between [the minor
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child] and Defendant, but the extent of
Plaintiff’s efforts would depend on
whether Defendant was engaged in
therapy.
. . . .
204. Plaintiff is the parent most likely to
encourage and support a relationship
between [minor child] and the other
parent.
. . . .
207. If [the minor child] is left in
Defendant’s primary care, it is
unlikely that the dynamics between
Plaintiff and Defendant, between
Defendant and Katrina, or between
Plaintiff and [the minor child] will
change, and it is possible that
Plaintiff, in an effort to shield [the
minor child] from the conflict, will
sever his ties to [the minor child],
which would likely be devastating to
[the minor child’s] emotional
development. . . .
. . . .
216. Given the parties’ dysfunctional
relationship history and the current
level of conflict between the parties,
unless one parent is given final
decision making authority on important
issues, joint legal custody is not in
[the minor child’s] best interest in
light of the risk of delay in making
timely decisions[.]
Thus, we hold that the trial court’s conclusion number 6 is
based on findings that clearly illustrate that it would be in
the best interest of the minor child for the parties to
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successfully co-parent and that plaintiff is the party most
likely to facilitate a relationship between the minor child and
the other parent based on defendant’s past interference with the
minor child and plaintiff’s relationship. Accordingly, we
uphold the conclusion of the trial court.
C. Motion to Appoint a Parenting Coordinator
In her last argument, defendant argues that the trial court
erred by failing to appoint a parenting coordinator.
Defendant’s argument is based on the assumption that the trial
court “had the responsibility to require the parties to produce
evidence of their ability to pay a parenting coordinator if that
would be in the best interests of the child.” We disagree.
On 14 November 2011, defendant filed a motion to appoint a
parenting coordinator arguing that the current custody action
constituted a “high conflict” case pursuant to N.C. Gen. Stat. §
50-90(1), which defines a high-conflict case as:
[a] child custody action involving minor
children brought under Article 1 of this
Chapter where the parties demonstrate an
ongoing pattern of any of the following:
a. Excessive litigation.
b. Anger and distrust.
c. Verbal abuse.
d. Physical aggression or threats of
physical aggression.
e. Difficultly communicating about and
cooperating in the care of the minor
children.
f. Conditions that in the discretion of the
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court warrant the appointment of a
parenting coordinator.
N.C. Gen. Stat. § 50-90(1) (2013). Pursuant to section 50-91 of
the North Carolina General Statutes, a parenting coordinator may
be appointed only if
the [trial] court . . . makes specific
findings [1] that the action is a high-
conflict case, [2] that the appointment of
the parenting coordinator is in the best
interests of any minor child in the case,
and [3] that the parties are able to pay for
the cost of the parenting coordinator.
N.C. Gen. Stat. § 50-91(b) (2013).
On 17 December 2012, the trial court denied defendant’s
motion, finding the following: “[t]his is a high conflict
custody action. However, there was insufficient evidence
concerning the parties’ present ability to pay a parenting
coordinator.”
Our review reveals that N.C. Gen. Stat. § 50-91 governs
what findings must be made only if the trial court, in its
discretion, appoints a parenting coordinator. In the case
before us, the trial court did not appoint a parenting
coordinator and defendant does not cite to any authority, nor
can we find any, imposing an affirmative duty on the trial court
to require parties to produce evidence of their ability to pay
for a parenting coordinator if one is not appointed.
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Furthermore, unchallenged findings suggest that the parties
more than likely lacked the ability to pay for a coordinator.
Particularly, the trial court found that plaintiff had not been
able to pay his attorneys’ fees on his own and owed in excess of
$70,000.00 toward his attorneys’ fees. Defendant, unable to
afford paying her legal fees, received funds from a church in
excess of $90,000.00.
IV. Conclusion
Because we hold that the trial court made sufficient
findings of fact to support its conclusions of law that a
substantial change in circumstances had occurred, that
modification of custody was in the best interest of the minor
child, and that the trial court did not err by denying
defendant’s motion to appoint a parenting coordinator, we affirm
the 17 December 2012 Custody Order of the trial court.
Affirmed.
Chief Judge MARTIN and Judge ERVIN concur.