Diehl v. Diehl

• Decision Date: 06 June 2006
• Docket Number: No. COA05-416.,COA05-416.
• Citation: 630 S.E.2d 25
• Parties: Wallace John DIEHL, Plaintiff, v. Jane Hall DIEHL, Defendant.
• Court: North Carolina Court of Appeals

630 S.E.2d 25

Wallace John DIEHL, Plaintiff, v. Jane Hall DIEHL, Defendant.

No. COA05-416.

Court of Appeals of North Carolina.

June 6, 2006.

Appeal by plaintiff and cross-appeal by defendant from order entered 27 September 2004, nunc pro tunc 29 April 2004, by Judge Alonzo Coleman in Orange County District Court. Heard in the Court of Appeals 16 November 2005.

Lewis, Anderson, Phillips, Greene & Hinkle, PLLC, by Susan H. Lewis, Chapel Hill, for plaintiff.

Burton & Ellis, PLLC, by Alyscia G. Ellis, Durham, for defendant.

GEER, Judge.

Plaintiff Wallace John Diehl appeals from a child custody and support order, arguing primarily that the trial court erred (1) by awarding the parties joint legal custody while simultaneously granting defendant Jane Hall Diehl "primary decision making authority," and (2) by making insufficient findings to justify its child support order. Defendant Jane Hall Diehl has cross-appealed from the trial court's denial of her request for attorneys' fees. We hold that the trial court's ruling regarding joint legal custody as well as its findings of fact regarding child support and attorneys' fees are insufficient and, therefore, we remand for further proceedings.

Facts

The Diehls were married in 1986 and separated in 1997. During their marriage, the couple had three children: Michael, born in 1989; Benjamin, born in 1991; and John, born in 1993. On 14 July 1998, Mr. Diehl filed a complaint for absolute divorce and joint legal custody of the minor children. Ms. Diehl filed an answer and counterclaim on 6 October 1998, seeking temporary and permanent custody and support of the minor children. The couple was granted a divorce on 21 December 1998.

Through 13 October 2000, the parties executed multiple temporary agreements that settled all claims between them relating to their divorce except for prospective child support and child custody. With respect to temporary child support, the 13 October 2000 agreement required that Mr. Diehl pay $2,547.00 per month until a final order or agreement of the parties was obtained. Additionally, the agreement provided that any future permanent child support order or agreement would relate back to September 2000.

The issues of permanent child support and child custody were heard by the trial court on 27 and 29 April 2004. On 27 September 2004, the court entered an order granting primary physical custody to Ms. Diehl. With respect to legal custody, the court ordered the following:

The parties shall share permanent joint legal custody of the minor children with [Ms. Diehl] having primary decision making authority. If a particular decision will have a substantial financial effect on [Mr. Diehl] either party may petition the Court to make the decision, if necessary.

Regarding child support, the trial court made findings as to each party's monthly gross income for 2000 through 2003, as well as to the lump sum monthly amount necessary to meet the needs of the children in each of these years. Based on these findings, the trial court ordered Mr. Diehl to begin making permanent child support payments in the amount of $4,500.00 per month and to pay $66,960.00 in back child support for the period from September 2000 through April 2003. The court also ordered that the parties pay their own costs, apparently denying Ms. Diehl's request for attorneys' fees. Both parties timely appealed to this Court.

Custody

A. Primary Decision-Making Authority

Mr. Diehl first argues that the trial court erred by awarding Ms. Diehl "primary decision making authority," a concept not formally recognized in statutes or case law, after it had already awarded joint legal custody to both parties. The decision of a trial court as to child custody should not be upset on appeal absent a showing that the trial court abused its discretion. Evans v. Evans, 169 N.C.App. 358, 360, 610 S.E.2d 264, 267 (2005). Nevertheless, "the findings and conclusions of the trial court must comport with our case law regarding child custody matters." Cantrell v. Wishon, 141 N.C.App. 340, 342, 540 S.E.2d 804, 806 (2000).

Although not defined in the North Carolina General Statutes, our case law employs the term "legal custody" to refer generally to the right and responsibility to make decisions with important and long-term implications for a child's best interest and welfare. See Patterson v. Taylor, 140 N.C.App. 91, 96, 535 S.E.2d 374, 378 (2000) (Legal custody refers to the right to make decisions regarding "the child's education, health care, religious training, and the like."); 3 Suzanne Reynolds, Lee's North Carolina Family Law § 13.2b, at 13-16 (5th ed. 2002) (Legal custody includes "the rights and obligations associated with making major decisions affecting the child's life."). This comports with the understanding of legal custody that has been adopted in other states. See, e.g., In re Paternity of Joe, 486 N.E.2d 1052, 1057 (Ind.Ct. App.1985) (noting "legal custody" provided mother with right and responsibility to determine such things as the child's "education, health care, and religious training" (internal quotation marks omitted)); Taylor v. Taylor, 306 Md. 290, 296, 508 A.2d 964, 967 (1986) ("Legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child's life and welfare."). See also, e.g., Ga.Code Ann. § 19-9-6 (2004) ("`Joint legal custody' means both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, health care, and religious training. . . ."); Ind.Code § 31-9-2-67 (2003) ("`Joint legal custody', . . . means that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care, and religious training.").

Here, although the trial court awarded the parties joint legal custody, the court went on to award "primary decision making authority" on all issues to Ms. Diehl unless "a particular decision will have a substantial financial effect on [Mr. Diehl]. . . ." In the event of a substantial financial effect, however, the order still does not provide Mr. Diehl with any decision-making authority, but rather states that the parties may "petition the Court to make the decision. . . ." Thus, the trial court simultaneously awarded both parties joint legal custody, but stripped Mr. Diehl of all decision-making authority beyond the right to petition the court to make decisions that significantly impact his finances. We conclude that this approach suggests an award of "sole legal custody" to Ms. Diehl, as opposed to an award of joint legal custody to the parties. See Reynolds, supra § 13.2b, at 13-16 ("If one custodian has the right to make all major decisions for the child, that person has sole `legal custody.'").

This Court has acknowledged that the General Assembly's choice to leave "joint legal custody" undefined implies a legislative intent to allow a trial court "substantial latitude in fashioning a `joint [legal] custody' arrangement." Patterson, 140 N.C.App. at 96, 535 S.E.2d at 378. This grant of latitude refers to a trial court's discretion to distribute certain decision-making authority that would normally fall within the ambit of joint legal custody to one party rather than another based upon the specifics of the case. See, e.g., MacLagan v. Klein, 123 N.C.App. 557, 565, 473 S.E.2d 778, 784 (1996) (awarding parties joint legal custody, but granting father exclusive control over child's religious upbringing), overruled on other grounds by Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998). A trial court's decision to exercise this discretion must, however, be accompanied by sufficient findings of fact to show that such a decision was warranted. See id. at 564, 501 S.E.2d 898, 473 S.E.2d at 784 (finding that parties had agreed to raise child in father's Jewish faith, that the child had been so raised since birth and derived considerable mental well-being therefrom, and that the mother had recently begun pressuring the child to become Christian).

In the present case, the trial court found that "[t]he parties are currently unable to effectively communicate regarding the needs of the minor children." As Mr. Diehl did not assign error to this finding, it is binding on appeal. Holland v. Holland, 169 N.C.App. 564, 569, 610 S.E.2d 231, 235 (2005). Moreover, the trial court also found that since the parties' separation: the children have resided only with Ms. Diehl, and Mr. Diehl has exercised only sporadic visitation; Mr. Diehl has had very little participation in the children's educational and extra-curricular activities; Ms. Diehl has occasionally found it difficult to enroll the children in activities or obtain services for the children when Mr. Diehl's consent was required, as his consent is sometimes difficult to obtain; and when John's school recommended he be evaluated to determine whether he suffered from any learning disabilities, Mr. Diehl refused to consent to the evaluation unless it would be completely covered by insurance. These findings are supported by competent evidence in the record and are, therefore, also binding on appeal. See Evans, 169 N.C.App. at 360, 610 S.E.2d at 267.

These findings, however, predominantly address the trial court's reasons for awarding Ms. Diehl primary physical custody of the children. See Reynolds, supra § 13.2c, at 13-16 ("[D]ecisions exercised with physical custody involve the child's routine, not matters with long-range consequences. . . ."). Given the trial court's determination that "[b]oth parties are fit and proper to have joint legal custody of the minor children," only the court's findings regarding the parties' difficulty communicating and Ms. Diehl's occasional troubles obtaining Mr. Diehl's consent could be...