Deanes v. Deanes

• Decision Date: 07 January 2020
• Docket Number: No. COA19-120,COA19-120
• Citation: 837 S.E.2d 404,269 N.C. App. 151
• Court: North Carolina Court of Appeals
• Parties: Misty Jenkins DEANES, Plaintiff v. Kevin Michael DEANES, Defendant

269 N.C.App. 151

837 S.E.2d 404

Misty Jenkins DEANES, Plaintiff

v.Kevin Michael DEANES, Defendant

No. COA19-120

Court of Appeals of North Carolina.

Filed: January 7, 2020

Pritchett & Burch, PLLC, Windsor, by Lloyd C. Smith, Jr. and Lloyd C. Smith, III, for plaintiff-appellant.

Cordell Law, LLP, by Zach Underwood, for defendant-appellee.

HAMPSON, Judge.

Factual and Procedural Background

Misty Jenkins Deanes(now Gibbs)(Plaintiff) appeals from an Order modifying a previous child custody and support order and holding both parties in civil contempt.The Record tends to show the following:

Plaintiff and Kevin Michael Deanes(Defendant) married on 5 May 2007 and separated on 4 November 2011.The parties have two minor children from their marriage—Carter, born in 2006, and Bobby, born in 2010.¹On 16 March 2012, Plaintiff filed a civil action seeking child custody, child support, and attorney's fees.On 4 April 2012, Defendant filed his Answer and Counterclaim.Defendant's Counterclaim requested child custody, equitable distribution, and attorney's fees.

The trial court entered an Order of Child Custody and Child Support on 27 December 2012(2012 Order).The 2012 Order granted the parties joint legal custody and primary physical custody of the two minor children to Plaintiff.The 2012 Order provided Defendant with visitation supervised by his father and granted him "reasonable telephone communication with his minor children at reasonable times and for reasonable lengths with the same being between 7:00 o'clock p.m. and 8:00 o'clock p.m. every other weekday during the week."

Shortly after entry, the parties modified visitation under the 2012 Order as Defendant's father was unable to continue supervising.The parties presented conflicting evidence as to whether Defendant's now-wife agreed to supervise visitation in light of that change; however, the Record indicates the parties continued to operate under the framework of the 2012 Order with visitation being unsupervised until 26 November 2016.²On that evening, the two minor children were in Defendant's custody.Defendant, his new wife, and their combined four children—his wife's child from a previous marriage, his two children with Plaintiff, and the couples' biological daughter—were decorating for the holidays.Later that evening, Defendant's oldest son, Carter, remained awake after the other children went to bed.Around 10 p.m., Defendant and his wife left their residence to observe a neighbor's decorations.Defendant testified that he spoke with Carter before they left to make sure he was "agreeable to staying home alone with the other children for a short period of time."Defendant provided him with a cell phone so that he could contact Defendant if he became concerned.The duration of Defendant's absence is unclear from the Record; however, during that time Carter became worried and upset.Carter testified at trial he tried to reach Defendant but he could not unlock the cell phone he was given.He contacted Plaintiff from his own cell phone during Defendant's absence.In response to Carter's call, Plaintiff traveled through the night to Defendant's residence in Virginia.Around 4 a.m. the following morning, Plaintiff arrived at Defendant's residence and instructed her two children to leave Defendant's house without notifying Defendant.After the children were in Plaintiff's custody around 5 a.m., Plaintiff texted Defendant that she retrieved the children.

Defendant did not see his two minor children from the time Plaintiff retrieved them the morning of 27 November 2016 until the trial court's initial hearing on 11 June 2018.Defendant's phone records indicated that he called Plaintiff 225 times during that period, but he testified that he only spoke with his children five times from 27 November 2016 until the date of trial, 11 June 2018.On 9 November 2017, Defendant filed a Motion for Contempt and Motion for Modification of Custody.Plaintiff responded on 24 January 2018 and moved for modification of custody and child support as well as for Defendant to show cause why he should not be held in civil contempt.

On 13 November 2018, the trial court entered an Order for Modification of Custody, Child Support, and Contempt (2018 Order).In the 2018 Order, the trial court found a substantial change in circumstances that affected the minor children and accordingly determined it was in the children's best interests to make several modifications to the 2012 Order.The trial court granted Defendant's Motion to Modify Custody, Plaintiff's Motion to Modify Child Support, and both parties' contempt Motions.The trial court entered a split custody arrangement: Plaintiff retained primary physical custody of Carter and was awarded primary legal custody.The 2018 Order granted Defendant primary legal and physical custody of the younger child, Bobby.The trial court also found both parties willfully violated the 2012 Order, holding both parties in civil contempt.As a result of the modification of child custody, the trial court also modified Defendant's child support obligation.Plaintiff timely appealed from the 2018 Order.

Issues

Plaintiff presents three primary issues before this Court.(I)Plaintiff contends the trial court erred in modifying the parties' child custody arrangement in the 2012 Order by (1) finding a substantial change in circumstances that materially affected the minor children and (2) determining that a split custody arrangement was in the best interests of the children.Plaintiff next contends the trial court erred by (II) holding Plaintiff in civil contempt of the 2012 Order and (III) in calculating Defendant's child support obligation.

Analysis

I.Modification of Child Custody

A.Standard of Review

"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[.]"Shipman v. Shipman , 357 N.C. 471, 474, 586 S.E.2d 250, 253(2003)(citations and quotation marks omitted).The trial court examines whether to modify a child custody order in two parts.First, "[t]he trial court must determine whether there was a change in circumstances and then must examine whether such a change affected the minor child."Id."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."Id.Findings of fact supported by substantial evidence "are conclusive on appeal, even if record evidence might sustain findings to the contrary."Id. at 475, 586 S.E.2d at 254(citation and quotation marks omitted).We then "determine if the trial court's factual findings support its conclusions of law."Id.

Second, the trial court must "examine whether a change in custody is in the child's best interests."Id. at 474, 586 S.E.2d 253."As long as there is competent evidence to support the trial court's findings, its determination as to the child's best interests cannot be upset absent a manifest abuse of discretion."Stephens v. Stephens , 213 N.C App. 495, 503, 715 S.E.2d 168, 174(2011)(citation and quotation marks omitted))."Under an abuse of discretion standard, we must determine whether a decision is manifestly unsupported by reason, or so arbitrary that it could not have been the result of a reasoned decision."Id.

B.The 2018 Order

In the 2018 Order, the trial court determined that there was a substantial change in circumstances that affected the minor children and that it was in the best interests of the minor children to enter a split custody arrangement.Plaintiff challenges the trial court's determination a substantial change in circumstances existed affecting the minor children and that modification of child custody was in the children's best interests.First, we review the trial court's determination that a substantial change in circumstances affected the minor children to see if the Findings of Fact are supported by competent evidence.We then review the trial court's determination of the best interests of the minor children for abuse of discretion.

1.Substantial Change in Circumstances that Affected the Minor Children

Plaintiff challenges the 2018 Order's Findings that support its ruling a substantial change in circumstances affected the minor children and further contends the trial court erred because "the Court made no findings of fact as to how any alleged significant change of circumstances had affected the minor children.""Where the ‘effects of the substantial changes in circumstances on the minor child ... are self-evident,’ there is no need for evidence directly linking the change to the effect on the child."Lang v. Lang , 197 N.C. App. 746, 750, 678 S.E.2d 395, 398(2009)(quotingShipman , 357 N.C. at 479, 586 S.E.2d at 256 )(alteration in original).Moreover, "both changed circumstances which will have salutary effects upon the child and those which will have adverse effects upon the child[ ] ... may support a modification of custody on the ground of a change in circumstances."Pulliam v. Smith , 348 N.C. 616, 619, 501 S.E.2d 898, 899(1998).

Plaintiff challenges Finding of Fact 54, which determined a substantial change in circumstances existed because:

a. Six years have passed since the entry of the [2012] Order.

b. The children have grown from toddler/small children to elementary/middle-school aged children.

c. The Defendant is no longer exhibiting a drinking problem.

d. The Defendant enjoyed unsupervised visits with [Carter] and [Bobby] for years without incident ....

e. The Defendant has cared for his children that he shares with his current wife for years without incident.

f. Defendant has not been able to see or speak regularly by phone with

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