Huml v. Huml

• Decision Date: 19 March 2019
• Docket Number: No. COA18-484,COA18-484
• Citation: 826 S.E.2d 532,264 N.C.App. 376
• Parties: April J. HUML, Plaintiff, v. Kevin C. HUML, Defendant.
• Court: North Carolina Court of Appeals

264 N.C.App. 376

826 S.E.2d 532

April J. HUML, Plaintiff,

v.Kevin C. HUML, Defendant.

No. COA18-484

Court of Appeals of North Carolina.

Filed: March 19, 2019

Marshall & Taylor, PLLC, Raleigh, by Travis R. Taylor, for plaintiff-appellee.

Schiller & Schiller, PLLC, by Jaime L. Williams, for defendant-appellant.

STROUD, Judge.

Defendant-father appeals from a permanent custody order which grants sole custody of the parties’ daughter to plaintiff-mother and eliminates his visitation privileges. The trial court made extensive findings of fact regarding the many reasons it determined in its discretion that continuing visitation is not in the child's best interest. The order on appeal is the last in a series of orders in which the trial court used every possible method to help and encourage Father to address his mental health and domestic violence problems and provided visitation with various conditions to protect the child. All of these attempts have failed because Father has consistently refused to take advantage of any opportunity ordered by the trial court to allow Father to resume visitation. Father has repeatedly failed to participate in counseling as ordered, to take medication as prescribed, to comply with the trial court's orders regarding public visitation and with the rules governing supervised visitation, and to protect the child from exposure to domestic violence in his relationship with his current wife. We affirm.

I. Background

Mother and Father were married in February of 2006 and are the parents of Susan,¹ who was born in September of 2006. The parties separated in 2008 and later divorced. Since the parties separated in 2008, the trial court entered several orders regarding custody and visitation. The trial court entered a temporary custody order in January of 2009, when Susan was two years old. The trial court found that Susan was having difficulty transitioning between the parties’ homes and noted that Mother had consulted a child psychologist, but Father had not participated. The trial court found Father had been "overly emotional" when dropping Susan off at day care, making it difficult for her to transition. In addition, Susan's regular pediatrician had refused to see her because of an incident in the office with Father. Susan had some significant chronic health problems, so continuity of her medical care was particularly important. The trial court also found that Father had been "unable to appropriately control his anger and other emotions" in front of Susan. The temporary order required Father to have a psychological evaluation with Dr. Reid Whiteside and to comply with any recommendations, including taking medication as prescribed.

After the psychological evaluation was done, the trial court entered a permanent custody order by consent on 5 October 2009 which gave Mother and Father joint legal custody of Susan; Mother had primary physical custody, and Father had about six overnight visits in every two week period. Father was required to follow Dr. Whiteside's recommendations, including treatment with his personal therapist for at least two years and thereafter unless he was released from therapy. Father was ordered to continue to take his medication as prescribed and to continue to participate in family therapy. The consent order also provided for appointment of a parenting coordinator who was also a psychologist or psychiatrist to monitor any psychological issues relating to the parties’ co-parenting; Dr. Alan Bloom was appointed.

On 31 July 2015, Mother filed a motion to modify custody based upon a substantial change in circumstances; she alleged, in part, that Father had willfully ignored the requirements of the consent order; refused to communicate with her; interfered with her custodial time; failed to provide proper care and supervision of the child; slept in the same bed with the child on a regular basis; failed to follow instructions from the child's physicians and dietician; and that he had been arrested for assault on a female on 1 June 2015. Mother also requested appointment of another parenting coordinator as Dr. Bloom's term had expired.

Before the motion for modification was heard, on 4 October 2015, Father's girlfriend, whom he later married, Karen Huml, contacted Mother and told her she "was in fear of" Father. Karen did not want Father to know she had contacted Mother, and she informed Mother of domestic violence in Father's home while Susan was present. On 7 October 2015, Mother filed a motion for emergency custody based upon the information that Susan had been uncontrollably crying when exposed to domestic violence in Father's home. The trial court entered an emergency custody order and set a return hearing for 12 October 2015. The emergency order limited Father's visitation to three hours, two days a week, in a public place such as a museum or mall, until a return hearing scheduled for 12 October 2015. Mother subpoenaed Karen for the 12 October 2015 hearing, and both she and Father requested a continuance, so the return hearing was set for 23 October 2015. On 23 October, Father did not appear for the hearing on time, and the trial court had resolved the matter before he arrived. The trial court entered a temporary order with the same visitation as in the emergency order.

On Thanksgiving night, 2015, Karen again contacted Mother "with photo attachments and messages that [Father] had injured" her. A few days later, Mother asked Father about the incident; he did not deny it, but Karen then said that Father had not injured her.

Father continued to bring Karen to his public visits with Susan, despite the domestic violence between them. On 10 December 2015, Father and Karen got married, but Mother did not learn of the marriage until she "received an anonymous email" on Christmas Eve. Mother allowed Susan to go to Father's home to open gifts on 26 December 2015. That night, back at her Mother's home, Susan wet the bed, although she had not had this problem in several years.

In January of 2016, Father " ‘weaned’ himself off his medication" because he felt " ‘it takes away my life-I'll take the little ups and downs.’ " On 3 April 2016, Father informed Mother that Karen had texted him "photographs of her forearms sliced up." Father called the police, and they discovered Karen was intoxicated. Karen made claims to the police that Father "was sexually inappropriate while in the presence of" Susan; she was then placed under a mental commitment. Hearing on Mother's pending motion to modify custody was scheduled for the next day, 4 April 2016.

At calendar call on 4 April 2016, Father informed the trial court he would be seeking a domestic violence protective order ("DVPO") against Karen. With the consent of the parties, the trial court entered a temporary custody consent order; this order appointed Dr. Cynthia Sortisio as a reunification therapist for Father and Susan; appointed a new parenting coordinator, Helen O'Shaunessy; and set up a three-tiered plan for gradually increasing Father's visitation. Father was also required to have another psychological evaluation; to comply with all recommendations, including any prescribed medication; and to continue attending and to complete the DOSE domestic violence program.²

Father did not comply with the temporary custody consent order and never moved past the first tier of visitation, so his visits continued to be public. Further, Father did not timely pay the parenting coordinator; failed to engage in any of the required therapy for over a year; and did not timely complete the parenting classes. Father also did not obtain a DVPO against Karen, but instead allowed her to "facetime" with Susan from his car during his public visits. In January 2017, Father completed the psychological evaluation ordered in April 2016.

In August of 2016, Mother hired an investigator because she was concerned that Father was not complying with the terms of the order regarding public visitation. The investigator confirmed that Father was removing Susan from the public locations where he was supposed to be visiting with Susan. Mother informed the reunification therapist and parenting coordinator, who notified Father this was not appropriate.

On 8 September 2016, Father was arrested again for assault on a female, against Karen. Karen sent the parenting coordinator voice recordings she claimed were of Father "making threats to kill" Mother. Karen also sent text messages she claimed were from Father threatening Judge Denning, the judge who entered the temporary custody consent order. The parenting coordinator informed the police of the threats, and they advised Mother to leave home and stay at an undisclosed location, which she and Susan did for about a week. On 21 November 2016, Mother also got an ex parte DVPO which extended into a permanent DVPO by consent. Judge Denning recused because of the threats, and a new family court judge was assigned. Because of safety concerns, neither the parenting coordinator nor Susan's therapist would meet with Father alone.

Because of the DVPO, Father could no longer exercise his public visits, and on 19 May 2017, Father began supervised visitation with Susan at Time Together. After Susan visited with Father, she "became withdrawn, cried uncontrollably, began to experience stomach pains, showed signed of anxiety and stress," to the extent that she missed school on 22 May 2017. At the June visit at Time Together, staff had to redirect Father for whispering to Susan. Susan again experienced extreme emotional distress after this visit. On 15 June 2017, Mother filed a motion to suspend Father's visitation.

The hearing on modification of custody was held on 19 July and 20 July 2017, and on 17 November of 2017, the trial court entered an "ORDER MODIFYING PERMANENT CUSTODY AND CHILD SUPPORT ORDER[;]" the order at issue on appeal. The trial court made extensive and detailed findings of fact, just a few of which we have summarized above. The trial court...