Anderson v. Lackey

• Court: North Carolina Court of Appeals
• Writing for the Court: TIMMONS-GOODSON.
• Citation: Anderson v. Lackey, 163 N.C. App. 246, 593 S.E.2d 87 (N.C. App. 2004)
• Decision Date: 16 March 2004
• Docket Number: No. COA02-1650.,COA02-1650.
• Parties: Andrea ANDERSON, Plaintiff, v. John Eston LACKEY, III, and Barbara Lackey as Guardian Ad Litem for John Eston Lackey, III, Defendants.

593 S.E.2d 87

163 NC App. 246

Andrea ANDERSON, Plaintiff, v. John Eston LACKEY, III, and Barbara Lackey as Guardian Ad Litem for John Eston Lackey, III, Defendants.

No. COA02-1650.

Court of Appeals of North Carolina.

March 16, 2004.

Andrea Anderson, Rock Hill, for plaintiff-appellant.

Michael Schmidt, Laurinburg, for minor child-appellant.

No brief filed for defendant-appellee.

TIMMONS-GOODSON, Judge.

Andrea Anderson ("plaintiff") appeals from an order of the trial court granting unsupervised visitation by John Lackey ("defendant") with his minor child, John Colby Lackey ("Colby"). For the reasons stated herein, we affirm the order of the trial court.

The pertinent facts of the instant appeal are as follows: Plaintiff and defendant were married on or about 6 July 1985. Colby was born of the union on 19 March 1988. Plaintiff and defendant separated on or about 28 April 1991, following a horseback-riding accident that caused serious head injuries to defendant.

On 21 August 1991, defendant was declared incompetent by the Clerk of Superior Court for Mecklenburg County and plaintiff was appointed as guardian of defendant's estate. Defendant's mother was substituted as guardian of defendant's estate in November 1991. On 27 January 1992, defendant's competency was partially restored by the court. In June 1992, plaintiff filed a complaint against defendant for custody of Colby, child support, alimony, and equitable distribution of marital assets. Defendant filed an Answer and Counterclaim seeking visitation with Colby, a divorce from bed and board, and equitable distribution of marital assets. On 23 December 1992, plaintiff and defendant entered into a Consent Order whereby defendant agreed to pay child support and the parties agreed to mediate issues of child custody and visitation.

The trial court entered an Order Adopting Parenting Agreement on 18 June 1993, which incorporated a temporary parenting agreement between the parties stating that "the [parties] will work together cooperatively to insure that adequate time is provided for Colby and [defendant]." The parties revised their agreement two times thereafter, providing for altered supervised visitation schedules between defendant and Colby. The last revision included the statement that defendant "is interested in moving to unsupervised time with Colby, [and that] the [parties] have agreed that any changes to this schedule will be at the recommendation of [a therapist] who has been working with Colby."

On 11 February 1997, plaintiff moved to modify the order for child support because of change of circumstances. On 9 April 1997, defendant moved to establish a specific schedule for regular, frequent, and unsupervised visitation with Colby and to order psychological evaluations of both parties and Colby. On 2 December 1997, the trial court ordered the evaluation of the parties and Colby and found as fact that defendant had not been permitted to visit with Colby at the agreed upon times listed in the 12 September 1995 consent order and that although defendant desired unsupervised visits with Colby, defendant had been told that Colby was afraid of him. Defendant therefore requested psychological evaluations as to what visitation was in Colby's best interests.

On 6 January 1999, the trial court entered a Consent Order On Custody And Visitation. The parties requested the entry of this order, which was entered into freely and voluntarily. The Consent Order On Custody and Visitation provided defendant with supervised visitation at the Family Center/Connections Program ("Program") facility which could be increased at the direction of the Program. The 6 January 1999 order further allowed that visitation could become unsupervised if the Program, guardian ad litem, and the parties agreed. If any party did not agree to unsupervised visitation, the Court could review the matter. Prior to any unsupervised visitation, defendant was to supply proof to the Program and the guardian ad litem that he was physically and mentally able to care for Colby. The Consent Order On Custody And Visitation included a date of review of the order to "determine whether the custody and visitation issues need[ed] to be revised in any way."

The trial court entered a 30 October 2000 order which found that the 6 January 1999 Consent Order had not been implemented as required by the Court. The trial court included additional provisions that Colby was to attend all scheduled visits with defendant and that plaintiff was to ensure that Colby attended the scheduled visitations with defendant. The trial court reviewed this matter on 30 January 2001 and found that the visitation and additional provisions of the 30 October 2000 order continued to be in Colby's best interests.

Defendant filed a Motion For Contempt And Motion For Judicial Assistance on 20 December 2001, requesting that the court hold plaintiff in contempt for her failure to comply with the provisions of the prior orders entered in this matter. After a hearing, the trial court entered an order titled "Order Setting Visitation and Closing the Case" on 18 April 2002. The court made the following uncontested findings of fact therein:

1. This case has been pending since June 1999.... [Plaintiff's] complaint for custody... does not allege any type of physical abuse of herself or Colby. It does allege indignities.... The court has never heard evidence about these allegations, or found any of them to be true.

....

5.... Counsel is referred to the court's order of December 15, 1998, and especially to its findings regarding mother's noncooperation with the [psychologists], and later with aspects of Dr. Pleas Geyer's evaluations....

6. Since November 1998, Dr. Geyer has stressed the importance of Colby having contact with his father, for Colby's benefit.... The consent order, entered in January 1999, provided, inter alia, for visitation on alternate weeks at Connections....

7. In February 2000 the case was scheduled for another hearing. By consent order, the parties reserved the right to challenge private school expenses, as had happened in previous orders.

8. Dr. Warren's September 14, 2000 letter to the court is instructive.... [Plaintiff's] lack of cooperation, and delays; its statement, "Clearly the current plan is not working"; and its report, based on Irv Edelstein's information, that "Irv did not perceive Colby to be fearful of contact with her[sic] father" and "Colby was adamant that he would no longer have anything to do with [defendant], and would not participate today, or in any future sessions we may schedule."

. . . .

13. [Defendant] has at all times cooperated fully with the court'[sic] directives.

....

16. [Plaintiff] and Colby continue to believe that [defendant] molested Colby at some point in the distant past. The court has never found this to be true, nor does the court find it to be true now. [Plaintiff] and Colby also believe that Colby should have no contact with [defendant].... The court is not convinced that any therapist would [change plaintiff's views on these subjects], and therefore sees no point in continuing to monitor [plaintiff's] therapy.

....

18. The court agrees with Dr. Geyer that Colby will benefit by [plaintiff] taking an ambivalent stance in favor of normal visits [with defendant] ...

The trial court thereafter concluded that it was in Colby's best interest to have unsupervised visits with defendant and ordered same. From this order, plaintiff appeals.

Plaintiff argues that the trial court erred by (1) issuing an order where the findings of fact are not supported by competent evidence and do not support the court's conclusions of law; (2) modifying a prior custody order without finding a substantial change in circumstances; (3) issuing an order without proper notice to the parties; and, (4) issuing an order based on the court's bias against plaintiff.

In her first assignment of error, plaintiff argues that the April 2002 order included findings of fact not based on competent evidence and conclusions of law unsupported by the findings of fact. While plaintiff asserts in her brief that the first, fourth, sixth, eighth, tenth, fifteenth, sixteenth, and eighteenth findings of fact are not supported by competent evidence in the record, she has failed to assign error to said findings in the record. Thus, plaintiff has not properly preserved these arguments for appellate review. "The scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal." N.C. R.App. P. 10(a) (2003). Plaintiff's arguments as to these findings of fact are overruled.

"When reviewing a trial court's decision to grant or deny a motion for the modification of an existing child custody order, the appellate courts must examine the trial court's findings of fact to determine whether they are supported by substantial evidence." Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003). Substantial evidence has been defined as "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. at 474, 586 S.E.2d at 253 (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)).

Our trial courts are vested with broad discretion in child custody matters. This discretion is based upon the trial courts' opportunity to see the parties; to hear the witnesses; and to "`detect tenors, tones, and flavors that are lost in the bare printed record read months later by appellate judges.'" Accordingly, should we conclude that there is substantial evidence in the record to support the trial court's findings of fact, such findings are conclusive on appeal, even if record evidence "`might sustain findings to the contrary.'"

Id. at 474-75, 586 S.E.2d at 253-54 (internal citations omitted).

Plaintiff argues that finding of fact number 17 is not supported by competent evidence in the record. Finding of fact number 17 asserts the following:

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