Hassell v. Hassell
| Decision Date | 16 June 2015 |
| Docket Number | No. COA14–862.,COA14–862. |
| Citation | 775 S.E.2d 695 (Table) |
| Parties | Gregory H. HASSELL, Plaintiff, v. Jan Slade Godwin HASSELL, Defendant. |
| Court | North Carolina Court of Appeals |
Gregory H. Hassell, pro se, plaintiff-appellant.
Legal Aid of North Carolina, Inc., by Sandy L. Lee, Ayanda D. Meachem, Celia Pistolis, and Gina Reyman, for defendant-appellee.
Plaintiff Gregory H. Hassell appeals from orders relating to child custody, child support, equitable distribution, and alimony. On appeal, we agree with plaintiff's argument that the trial court erred in concluding that his 401K account was partially marital property. Because the record does not indicate that defendant met her burden of showing that the 401K account was marital property, and plaintiff has met his burden showing that the account is separate property, we reverse and remand the equitable distribution order. We also reverse and remand the child support and alimony orders to correct what appear to be clerical errors in the findings.
Facts
Plaintiff and defendant were married on 23 October 1999. On 4 March 2004, plaintiff and defendant had a son, Blaine. Blaine is the only son born of the marriage, although defendant has an older son, Brandon, from a prior marriage. On 22 June 2012, the parties separated. That same day, defendant filed a complaint and motion for a domestic violence protective order.
As a result of that complaint, on 28 June 2012, defendant and plaintiff entered into a consent civil restraining order pursuant to Rule 65 of the Rules of Civil Procedure. The restraining order prohibited plaintiff from directly contacting, assaulting, threatening, or abusing defendant. It also provided that plaintiff was entitled to supervised visitation with Blaine for eight hours every weekend, and it required plaintiff to pay $150.00 per month in support to defendant, as well as defendant's monthly household expenses, which included mortgage payments on the marital residence, utilities, insurance premiums, medical bills, cell phone bills, and credit card bills. On 20 July 2012, defendant filed a motion seeking an order holding plaintiff in contempt for alleged violations of the civil consent restraining order.
On 27 July 2012, plaintiff filed a complaint seeking divorce from bed and board, relief from child custody and child support, and equitable distribution. Defendant counterclaimed for alimony. On 25 October 2012, the trial court entered two orders, one addressing the issue of temporary custody of Blaine, and the other dismissing defendant's contempt motion. In both orders, the trial court found that despite entering into a consent civil restraining order, plaintiff continued to drive through defendant's neighborhood without justification, causing defendant stress and fear. The trial court further noted in the orders that, as a result of the temporary custody hearing, plaintiff was put “on notice” that defendant considered plaintiff's presence in her neighborhood to be “stressful and harassing.” In the custody order, the trial court awarded temporary custody to defendant and granted plaintiff eight hours of unsupervised visitation every weekend.
At some point, plaintiff filed a motion to modify temporary custody, temporary child support, and post-separation support. On 5 April 2013, the trial court entered an order finding that a psychological evaluation for Blaine, which was prepared by Dr. Raymond E. Webster, was relevant to issues in this case, but it also ordered that the report remain confidential and under seal and that “[b]oth parties are prohibited from disclosing the contents of this report to anyone other than their attorneys, any mental health professional or expert witness anticipated to be called to testify[.]”
At a hearing on the motion to modify custody, child support, and post-separation support, the trial court received into evidence Dr. Webster's evaluation. The trial court's order on this motion to modify, entered 25 April 2013, stated that the “evaluation finds both parents to be capable of parenting the child and does not support a need for continued supervision of contact between Plaintiff and his minor child.” The order required plaintiff to pay defendant $511.00 per month in child support and $725.00 per month in post-separation support.
On 2 July 2013, plaintiff filed a petition for bankruptcy under Chapter 13. On 29 and 30 October 2013, the trial court held a hearing on child custody, child support, equitable distribution, and alimony. On 15 January 2014 defendant moved for relief from the automatic stay provided under 11 U.S.C. § 362. On 24 February 2014, defendant was granted relief from the automatic stay, and the Bankruptcy Court allowed “an Order distributing the marital property of Movant and Petitioner [to be] adjudged, decreed, and enforced” with respect to plaintiff's equitable distribution claim.
On 7 April 2014, the trial court entered orders for permanent child custody, permanent child support, equitable distribution, and alimony. In the child custody order, the trial court made findings including the following facts. Before Blaine was born, defendant worked as a teacher's aide. Since Blaine's birth, defendant has been his primary caretaker. Until the parties' separation, defendant stayed home with Blaine and was not employed outside the home except for temporary part time work. Subsequent to defendant's complaint and motion for a domestic violence protective order and entry of the consent civil restraining order, defendant was granted temporary custody of Blaine on 25 October 2012, and plaintiff was granted supervised visitation for eight hours each weekend.
Since the separation, Blaine has lived primarily with defendant. Defendant has childcare available for Blaine, attends parent-teacher conferences, and enjoys an “appropriate, affectionate relationship” with Blaine. Defendant provides “patient and consistent help with reading” for Blaine, and she is “patient, attentive, and nurturing” toward him. Continuity in custodial care during the school year is important for Blaine's academic progress. While living with defendant, Blaine does well academically and socially and lives in a neighborhood in which he has friends with whom he plays and socializes. He is “happy, well-adjusted,” and “thriving in the care of the Defendant.” Defendant has an older son from another marriage, Brandon, with whom Blaine is very close.
The trial court noted that Dr. Webster's report “found both parents to be capable of parenting the child” and that plaintiff is a fit and proper parent. However, the trial court also found, in finding of fact 10, that plaintiff
has a controlling personality. Even after he was prohibited from harassing Mom in ... [ ]the Domestic Violence Complaint file[ ], he drove through her neighborhood and took other actions to cause her to feel that he was watching her and her movements. He gave his child (a then eight year old) a smart phone for Christmas. Smart phones are expensive to buy, costing several hundred dollars. His explanation for giving this age child such an expensive phone and incurring a significant monthly expense for its service contract, all of the time while the parties were under severe financial distress, was that the child wanted one because his older brother had one. The Court finds this explanation to be one of convenience. Unbeknownst to Mom, Dad had spy wear [sic] attached to the phone so that he could record, by audio and video, events going on in her house. He did so without her knowledge or consent. When this was discovered by Mom's older son Dad gave as his explanation that he was not trying to spy on Mom but was just trying to vicariously enjoy the child's excitement in opening Christmas presents. This explanation is untrue. The recording time for audio and video, on that phone extended for several weeks.... At the April 4 hearing in his opening statement Dad stated “I understand today from her attorney that she's got a job.” Later as a part of the hearing, it became clear that Dad knew much earlier that she had gotten employment and specifically where she would be working. It appears clear that Dad has continued to attempt to follow Mom's activities, to learn what she does, when she does it, and with whom she associates by asking the child for this information. These actions are detrimental to the child's best interests.
The trial court determined that it was in the best interest of the child for defendant to have custody of Blaine. It, therefore, awarded permanent custody to defendant and set forth a visitation schedule for plaintiff.
In the child support order, the trial court found that plaintiff's gross monthly income was $4,382.28, including on-call time and overtime pay, and it found no reason to deviate from the child support guidelines. Based on the guidelines and plaintiff's income, the trial court awarded $597.00 per month in child support to defendant. In the alimony order, the trial court awarded $480.00 per month in alimony to defendant based on the same $4,382.28 gross monthly income figure. The alimony order provided that The trial court ordered that the alimony award extend for 102 months, beginning 1 July 2014.
With regard to the equitable distribution order, the trial court in pertinent part classified a 401K retirement account in plaintiff's name as partially marital property. The trial court awarded defendant the marital residence, and plaintiff was awarded a distributive award from defendant in the amount of $11,767.70. Plaintiff was ordered to execute a quitclaim deed to defendant for all of his interest in the marital residence within 40 days of the entry of the equitable distribution order.
Plaintiff gave timely notice of appeal from those orders. On 29 April 2014, plaintiff...
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