Davis v. Davis

• Decision Date: 17 September 2013
• Docket Number: No. COA13–113.,COA13–113.
• Citation: 748 S.E.2d 594
• Parties: Robin E. DAVIS, Plaintiff. v. Charles D. DAVIS, III, Defendant.
• Court: North Carolina Court of Appeals

748 S.E.2d 594

Robin E. DAVIS, Plaintiff.

v.Charles D. DAVIS, III, Defendant.

No. COA13–113.

Court of Appeals of North Carolina.

Sept. 17, 2013.

Appeal by defendant from Order entered 13 May 2012 by Judge Stephen V. Higdon in District Court, Union County. Heard in the Court of Appeals 15 August 2013.

Stepp Lehnhardt Law Group, P.C. by Donna B. Stepp, Monroe and Mallory A. Willink, for plaintiff-appellee.

Krusch & Sellers, P.A., Charlotte by Rebecca K. Watts, for defendant-appellant.

STROUD, Judge.

Charles D. Davis, III (“defendant”) appeals from an order granting two motions in the cause brought by plaintiff Robin E. Davis (“plaintiff”), denying his motion to modify custody, and denying his motion to hold plaintiff in contempt of court. For the following reasons, we vacate in part and affirm in part.

I. Background

Plaintiff and defendant were married 12 December 1993, separated 13 August 2001, and divorced sometime in 2003.¹ The couple had two children—Mary, born 6 July 1995, and Sarah, born 29 November 1996.² After protracted custody litigation following the parties' separation, on 20 October 2003 Judge Lisa Thacker of the Union County District Court entered an order providing for joint legal custody of Mary and Sarah (“the 2003 order”). Plaintiff was granted primary custody of the children, and defendant was granted visitation on alternate weekends. Holidays, birthdays, and summers were split evenly. A special provision was added to accommodate defendant's National Guard schedule, providing for make-up visitation whenever drill weekends fell during defendant's regularly-scheduled visitation. Since the entry of the 2003 order, the parties have been embroiled in continual litigation over custody of their two daughters.

Their latest dispute, the subject of this appeal, was precipitated by an altercation between defendant and daughter Mary on 18 January 2009. On that evening, Mary and Sarah were at defendant's house during their regularly-scheduled weekend visitation. Defendant and Mary got into a heated argument when Defendant informed Mary that they had an additional day of visitation that weekend, but Mary believed that she and Sarah were supposed to return to Plaintiff's home that day. Mary demanded that defendant “show me the order” to prove that he had the additional day of visitation, and defendant physically disciplined Mary “in an inappropriate manner”—as described in further detail below.

As a result of the incident, a report was filed with the Union County Department of Social Services (DSS), and plaintiff, concerned for the safety of her daughters, unilaterally and without benefit of any court order cut off defendant's weekend visitation. Her concerns were amplified by past allegations of domestic violence involving plaintiff and defendant, as well as a separate domestic violence incident involving defendant and another previous wife. Plaintiff demanded defendant obtain anger management counseling before she would agree to resume defendant's visitation. In the meantime, plaintiff permitted her daughters to visit their father only on the condition that other family members were present.

In February, March, and April of 2009, several e-mails and letters were exchanged between the parties and their respective attorneys, apparently in an attempt to resolve the issue out of court, but neither party took any formal legal action. Plaintiff never pressed charges against defendant for assaulting Mary, never sought a domestic violence protective order under or moved for temporary custody under N.C. Gen.Stat. §§ 50B–3(a)(4) or 50–13.5(d)(2), (3) (2009) in response to the January incident. On 17 April 2009, DSS concluded its investigation, finding that any claims of child abuse arising from the incident were unsubstantiated.

On 8 May 2009 plaintiff filed a motion in the cause, asking the court to order defendant to attend anger management counseling as a result of the January incident and to formally suspend his visitation until further notice. On the same day, she filed what was styled as a “motion in the cause for modification/clarification of a prior custody order.” Her motion asked the court to clarify certain “ambiguities” in the holiday and birthday provisions of the 2003 order and provide more guidance on how to schedule make-up visitation when defendant was away on drill weekend. Plaintiff alleged the parties' disagreements in interpreting the order had risen to the level of “a substantial and material change in circumstances affecting the best interest and general welfare of the minor children.”

On 3 June 2009 defendant responded with a motion to modify custody, arguing he should be awarded primary custody because plaintiff had suspended his visitation in violation of the 2003 order, made false claims of abuse, and actively “instill[ed] alienation of the minor children from the Defendant/Father.” Defendant amended this motion on 17 August 2009, but made nearly identical claims. The next day, 18 August 2009, defendant filed a motion to hold plaintiff in contempt for denying defendant's visitation in violation of the 2003 order. The district court entered a show cause order the same day, ordering plaintiff's appearance in court. At that time, it had been eight months since defendant had had any of his court-ordered visitation with his daughters.

These matters were first set for hearing on 22 September 2009 and then continued to 21 October 2009. On 19 May 2010, the trial court granted a motion for peremptory setting for 21 May 2010, which the parties had consented to because “certain witnesses live outside of the State of North Carolina and need to make work and travel arrangements in advance. In addition, this matter has been continued several times and Defendant and the minor children in this matter are in need of a resolution as soon as possible.” The record does not reveal why the peremptory setting for 21 May 2010 did not result in a hearing, ³ but it did not, and nearly a year later, on 30 March 2011, defendant filed a Motion for Change of Venue,⁴ asking that the case be transferred to Mecklenburg County due to his inability to have a hearing in Union County, alleging that 7. This matter has been scheduled by this Court at least five (5) times. The latest setting was for Monday, March 21, 2011. Over the objection of the Defendant/Father, this Court granted another motion to continue this matter filed by the Plaintiff/Mother. The basis of the request was so the Plaintiff/Mother could take the minor child to a pageant.[[ ⁵

8. Defendant/Father contends that he cannot get a hearing, let alone a fair hearing before this tribunal, and therefore respectfully requests this Court to transfer the venue of this matter out of Union County to Mecklenburg County.

9. Otherwise, the Defendant/Father will continue to have no visitation with the minor children and the poisonous ways of the Plaintiff/Mother will forever preclude a reconciliation with the minor children.

The long-awaited hearing finally started on 8 August 2011: 2 years, 6 months, and 21 days after the incident for which plaintiff unilaterally stopped defendant's visitation. Three days of hearing were held in August and the final day was on 20 September 2011. On 11 August 2011, defendant voluntarily dismissed his motion for change of venue.

Eight months after the conclusion of the hearing, or 3 years, 3 months, and 22 days after the incident, on 10 May 2012, the trial court finally entered an order disposing of the parties' various motions.⁶ The trial court denied defendant's motion to modify custody; denied defendant's motion for contempt; appended several “clarifications” to the 2003 order's visitation provisions; and ordered defendant to attend anger management counseling. Defendant filed written notice of appeal on 4 June 2012.

II. Analysis

On appeal, defendant argues that (1) the trial court abused its discretion by modifying the 2003 order and ordering defendant to attend anger management counseling without expressly finding a substantial change in circumstances that affected the children's welfare; and (2) the trial court erred in failing to find plaintiff in contempt for her violations of the custody order. Because the trial court's findings are insufficient to support its modification of the custody order, we vacate those modifications. We affirm the trial court's denial of defendant's motion for contempt.

A. Standard of Review

“[T]he presiding judge, who has the unique opportunity of seeing and hearing the parties, witnesses and evidence at trial, is vested with broad discretion in cases concerning the custody of children.” In re Custody of Peal, 305 N.C. 640, 645, 290 S.E.2d 664, 667 (1982) (citations omitted). On review of a trial court's order in such matters,

the appellate courts must examine the trial court's findings of fact to determine whether they are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.... [S]hould 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.... [T]his Court must [then] determine if the trial court's factual findings support its conclusions of law ... If we determine that the trial court has properly concluded that the facts show that a substantial change of circumstances has affected the welfare of the minor child[ren] and that modification was in the [children's] best interests, we will defer to the trial court's judgment and not disturb its decision to modify an existing custody agreement.

Shipman v. Shipman, 357 N.C. 471, 474–75, 586 S.E.2d 250, 253–54 (2003) (citations and quotation marks omitted).

B. Modifying the 2003 Custody Order

This Court has consistently held that “the trial court commit[s] reversible error by modifying child...