Andrews v. Parrish

• Citation: 763 S.E.2d 928 (Table)
• Decision Date: 05 August 2014
• Docket Number: No. COA13–1067.,COA13–1067.
• Parties: Mark W. ANDREWS, Plaintiff, v. Jennifer M. PARRISH, Defendant.
• Court: North Carolina Court of Appeals

763 S.E.2d 928 (Table)

Mark W. ANDREWS, Plaintiff

v.Jennifer M. PARRISH, Defendant.

No. COA13–1067.

Court of Appeals of North Carolina.

Aug. 5, 2014.

No brief filed on behalf of plaintiff-appellee.

Schiller & Schiller, PLLC, by David G. Schiller, for defendant-appellant.

GEER, Judge.

Defendant Jennifer M. Parrish appeals from the trial court's Permanent Custody Order, granting joint legal custody of the parties' minor child “Lisa” to defendant and plaintiff Mark W. Andrews and primary physical custody to plaintiff.¹ Defendant's arguments on appeal are founded almost entirely on defendant's contention that the trial court should have found her evidence more credible than that of plaintiff. Because we may not reweigh the evidence on appeal and the trial court's findings of fact are binding if supported by competent evidence, we affirm.

Facts

Plaintiff and defendant maintained a romantic relationship and briefly lived together in 2005, but never married. After their relationship ended, plaintiff moved to Texas for work-related reasons. Their daughter Lisa was born on 28 August 2006. Plaintiff was initially skeptical that Lisa was his daughter, but as soon as a paternity test established that he was the father, he consistently sought a relationship with Lisa, travelling from Texas to North Carolina to visit her.

Plaintiff filed for custody on 29 August 2008. On 13 January 2009, a temporary custody order was issued granting joint legal custody and primary physical custody to defendant, although the order provided a weekly visitation schedule for plaintiff. Six months later, in June 2009, defendant and Lisa moved to Ohio due to a death in defendant's family.

On 11 January 2010, when Lisa was three years old, a temporary custody order established a visitation schedule in which Lisa would spend alternative periods of four weeks with defendant in Ohio and four weeks with plaintiff in North Carolina. Defendant was subsequently held in contempt of that order, in an order entered 10 January 2011, for failing to return Lisa to plaintiff on 6 August 2010.

In November 2011, plaintiff contacted the Superintendent of Lisa's elementary school in Ohio to express concerns about Lisa's school attendance, her education, and transition issues. In response to those concerns, Lisa began seeing a therapist, Katie Niemezura. During a therapy session that took place at defendant's home in Ohio on 25 November 2011, Lisa told Ms. Niemezura that plaintiff had touched her genital area during bath time. Around the same time, defendant learned from the mother of another minor child that the two children had engaged in sexually inappropriate behavior with one another while playing dress up. Sally McHugh, a social worker from the Cuyahoga County Child Protection Services, interviewed Lisa on 29 November 2011 regarding the sexual abuse allegations and found her to be credible.

On 30 November 2011, an order was entered granting defendant's motion for an ex parte emergency temporary custody order based on allegations that plaintiff had sexually abused Lisa. An interim temporary custody order was entered 2 December 2011, and an emergency temporary custody order was entered 10 January 2012. The orders provided that Lisa would reside with plaintiff's mother when she returned to North Carolina and that she would not be left alone with plaintiff or with any males over the age of 10.

On 30 January 2012, Johnston County Department of Social Services (“Johnston County DSS”) filed a juvenile petition in Johnston County district court alleging that Lisa had been sexually abused by plaintiff. After numerous hearings, the district court entered a juvenile adjudication order on 13 June 2012 dismissing the petition. The order contained 48 findings of fact reciting the nature of the sexual abuse allegations and summarizing the testimony and evidence presented at the hearings.

Although the trial court found that “the evidence presented suggests that [Lisa] has age-inappropriate sexual knowledge and it hints strongly that she may have been sexually abused[,]” the court also found that the allegations of sexual abuse arose while Lisa was in the physical custody of defendant and after plaintiff filed a motion to have the custody schedule reviewed. In addition, the court found that Ohio DSS's conclusion that Lisa was more likely than not sexually abused was based on an investigation “which did not include any interviews of the Respondent Father, the father's family, the child's teacher in NC, or any other collaterals involved in the child's life in NC ....“

The Johnston County district court agreed with Dr. Robert Aiello's assessment that the four-week custody rotation was not in the best interest of Lisa and had caused her instability and emotional distress and expressed concern that the case had been pending in Wake County for more than four years without any permanent custodial schedule entered. Ultimately, the Johnston County district court found that “[n]otwithstanding the Court's concern that the custodial arrangements established in Wake County are not in the best interests of the child, based on the evidence presented the Court cannot find as a fact that there is clear, cogent, and convincing evidence that the child is abused or neglected and the Petition should be dismissed.”

The hearing on permanent custody was held in Wake County district court on 17 and 18 September 2012, and the court entered a Permanent Custody Order on 27 December 2012. Among its 107 findings of fact, the court found that defendant had failed to show by a greater weight of the evidence that plaintiff sexually abused the child and that both parents are fit and proper parents to exercise legal and physical custody of the minor. However, based in pertinent part upon its findings that Lisa “did extremely well while in school in North Carolina” and that “[i]n the event the minor child were to remain in the State of Ohio in the custody of the Defendant, the Defendant is not likely to promote a healthy and meaningful relationship between the minor child and the Plaintiff[,]” the court concluded that Lisa's best interests would be served by awarding joint legal custody and primary physical custody to plaintiff. Defendant timely appealed the Permanent Custody Order to this Court.

Discussion

Defendant challenges several of the trial court's findings of fact and argues that the trial court abused its discretion in awarding primary physical custody to plaintiff. Our standard of review is well established:

“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.”

Carpenter v. Carpenter,––– N.C.App. ––––, ––––, 737 S.E.2d 783, 785 (2013) (quoting Peters v. Pennington,210 N.C.App. 1, 13, 707 S.E.2d 724, 733 (2011) ).

This Court reviews de novo whether the findings of fact support the trial court's conclusions of law. Id.After reviewing the findings of fact and conclusions of law, we review the trial court's determination regarding the best interests of the child for abuse of discretion. Mason v. Dwinnell,190 N.C.App. 209, 230, 660 S.E.2d 58, 71 (2008).

Findings of Fact and Conclusions of Law

Defendant first argues, citing Long v. Long,160 N.C.App. 664, 588 S.E.2d 1 (2003), that the trial court's findings of fact 28, 31, 34, 37, 48, 60, 61, 62, 63, 83, and 90 are mere recitations of the evidence and are, therefore, inadequate.

“ ‘There are two kinds of facts: Ultimate facts, and evidentiary facts. Ultimate facts are the final facts required to establish the plaintiff's cause of action or the defendant's defense; and evidentiary facts are those subsidiary facts required to prove ultimate facts.... An ultimate fact is the final resulting effect which is reached by processes of logical reasoning from the evidentiary facts....” ’ Overcash v. N.C. Dep't of Env't & Natural Res.,179 N.C.App. 697, 707–08, 635 S.E.2d 442, 449 (2006) (quoting Smith v. Smith,336 N.C. 575, 579, 444 S.E.2d 420, 422–23 (1994) ). Recitations of the evidence may serve as evidentiary facts that lend support or provide context for a trial court's ultimate facts. Accordingly, “[t]here is nothing impermissible about describing testimony, so long as the court ultimately makes its own findings, resolving any material disputes.” In re C.L.C., K.T.R., A.M.R., E.A.R.,171 N.C.App. 438, 446, 615 S.E.2d 704, 708 (2005), aff'd per curiam,360 N.C. 475, 628 S.E.2d 760 (2006).

In Long,the findings were inadequate because the trial court, by merely reciting the testimony, did not resolve the conflicts in the evidence and actually find facts. 160 N.C.App. at 668, 588 S.E.2d at 3. That is not the case here.

Finding of fact 90 states:

90. When the Defendant's son was approximately eight (8) years old, there were allegations concerning the Defendant's son having sexually inappropriate behavior with a four (4) year old cousin. There has been evidence received concerning sexually inappropriate contact and/or play between the minor child herein and her friend, “Maria”, while in the Defendant's home. These allegations arose primarily through reports from the minor child, “Marie”. These allegations also arose in close connection to the scheduled review hearing in Wake County concerning the permanent schedule and concerning the minor child's school schedule for Kindergarten. The timing of these allegations and the nature of the reports coming from a minor child were reflected in the Court's assessment regarding the credibility and the accuracy of the reports concerning the sexually inappropriate contact between the minor child and “Maria”.

This finding appropriately recited certain allegations of...