Isom v. Duncan

• Decision Date: 07 September 2021
• Docket Number: No. COA20-320,COA20-320
• Citation: 864 S.E.2d 831
• Parties: Daniel S. ISOM, Plaintiff, v. Janee A. DUNCAN, Defendant.
• Court: North Carolina Court of Appeals

864 S.E.2d 831

Daniel S. ISOM, Plaintiff,

v.Janee A. DUNCAN, Defendant.

No. COA20-320

Court of Appeals of North Carolina.

Filed September 7, 2021

Tharrington Smith, L.L.P., Raleigh, by Steve Mansbery, for plaintiff-appellee.

Anné C. Wright, Boone, for defendant-appellant.

MURPHY, Judge.

¶ 1 We review custody orders to ensure the findings of fact are supported by substantial evidence, and the conclusions of law are supported by the findings of fact. When a finding of fact is unchallenged, it is binding on appeal. Here, the trial court did not err in concluding that prohibiting the mother from exercising visitation with the minor child is in the minor child's best interests because this conclusion is supported by the findings of fact that are supported by substantial evidence in the Record.

BACKGROUND

¶ 2 The minor child, Paula,¹ was born on 28 January 2011 to Mother Defendant-Appellant Janee A. Duncan ("Mother") and Father Plaintiff-Appellee Daniel S. Isom ("Father"). Father and Mother were involved in a romantic relationship before Paula's birth while they were college students in Tennessee but were never married. The couple broke up before Paula was born. Father did not meet Paula until September 2016, when she was five-and-a-half years old, due to Mother hiding Paula from Father and intentionally evading court orders.

¶ 3 The parties’ custody battle began in January 2012, when the Hamilton County Superior Court in Indiana ("Indiana Court") entered its Order Establishing Paternity, Parenting Time, Custody and Support ("January 2012 Order"). The Indiana Court awarded joint legal custody of Paula to Mother and Father and ordered physical custody to be with Mother. Father was awarded parenting time with Paula pursuant to Indiana Parenting Time Guidelines. When Mother refused to grant Father visitation time with Paula, the Indiana Court entered an order on 5 March 2012 requiring Mother to appear and show cause for her failure to comply with the January 2012 Order. On 31 May 2012, Mother failed to appear at the show cause hearing and, as a result, the Indiana Court issued a Court Order of Contempt and Writ of Body Attachment ("May 2012 Order").

¶ 4 For approximately the next four years, Father and his family searched for Mother and Paula and were unsuccessful in locating their whereabouts. Father filed a verified emergency motion for physical custody and motion to appoint a guardian ad litem, which the Indiana Court granted in an order filed 6 September 2016 ("Indiana September 2016 Order"). In the Indiana September 2016 Order, Father was immediately granted temporary physical custody of Paula. Around the same time Father was granted temporary physical custody of Paula, Mother fled with Paula to Ohio, where she stayed with an acquaintance, Jessica Webb. Mother told Webb she "needed a place to stay because the [S]heriff in Hamilton County, Indiana came to her house looking for her and [Paula]." After witnessing Mother's behaviors, such as using a "burner phone," researching fake passports, and making Paula use fake names in public, Webb became seriously concerned for Paula's welfare and decided to contact authorities in Indiana and Ohio.

¶ 5 On 22 September 2016, the Ohio Court of Common Pleas in Washington County filed an order ("Ohio September 2016 Order") finding Mother "appears to be a flight risk" and ordering temporary custody of Paula to the Washington County (Ohio) Children Services Board ("Ohio CPS").² Father, having moved back to North Carolina, filed a lawsuit in Wilkes County District Court on 13 October 2016 for custody of Paula and, on the same day, the trial court entered a Temporary Order ("October 2016 Order") awarding Father temporary sole legal and physical custody of Paula, subject to Ohio CPS completing an investigation.

¶ 6 On 31 January 2017, the trial court filed an Interim Order ("January 2017 Order") awarding Father temporary legal and physical custody of Paula and awarding Mother limited supervised visitation for four hours on the second weekend of every month and scheduled phone and video calls with Paula. On 13 October 2017, Mother's visitation was adjusted to a minimum of one hour per week in the trial court's Temporary Custody Order ("October 2017 Order"), which found:

[Mother's] actions show that she willfully and intentionally kept [Paula] from [Father]. [Mother] willfully and intentionally attempted to avoid the jurisdiction of the Indiana Courts. [Mother's] explanations for missing Court, moving, not receiving notices, discrepancies in affidavits and testimony and using false names are wholly unbelievable. Her actions were a conscious effort to keep [Father] from [Paula] and were without excuse. [Mother] ignored the authority of the Courts in Indiana. She moved to Ohio in an attempt to avoid the Court. She had [Paula] use false names to help avoid the Court. [The trial court] has no assurances that [Mother] would follow the Orders of [the trial court] if given unsupervised visitations. [Mother] argues that she has submitted to [the trial court's] jurisdiction and realizes that if she left the State in violation of an Order of [the trial court] that she could be charged with a felony and arrested. However, the Court in Indiana issued at least two separate orders for her arrest and she avoided law enforcement and the Court for 5 years.

¶ 7 Beginning in February 2017, Mother participated in supervised visits with Paula at SonShine Child Care Center, Incorporated ("SonShine Child Care") and Our House in Wilkesboro. A visitation supervisor indicated that while most visits with Mother and Paula were "appropriate," Mother violated the Our House guidelines by pulling out a camera phone and taking a photograph of a bruise on Paula. Similarly, there was an incident on 31 July 2018 at SonShine Child Care where Mother violated the facility guidelines when she let an off-duty police officer into the facility despite warnings from the staff. In August 2018, Father filed a motion to suspend or terminate Mother's visitation.

¶ 8 The trial court filed an Order on 28 May 2019 ("May 2019 Order"). The May 2019 Order decreed "[Father] shall have and exercise the sole legal and physical, custody, care and control of [Paula]"; "[Mother] shall not have any visitation with [Paula], but she shall be entitled to have phone call or Facetime video call contact with [Paula] one time per week each Saturday for 10 minutes [and] ... a similar call for the same time on each Christmas, Thanksgiving, Easter and birthday of [Paula]." Mother timely appealed from the May 2019 Order.

ANALYSIS

¶ 9 The ultimate issue on appeal is whether the trial court erred in denying visitation between Mother and Paula. "It is a long-standing rule that the trial court is vested with broad discretion in cases involving child custody[,]" Pulliam v. Smith , 348 N.C. 616, 624, 501 S.E.2d 898, 902 (1998), and therefore, "[w]e review an order denying visitation for abuse of discretion." In re J.R.S., 258 N.C. App. 612, 616, 813 S.E.2d 283, 286 (2018). The reason for an abuse of discretion standard of review is because the trial court "has the opportunity to see the parties in person and to hear the witnesses .... The trial court can detect tenors, tones, and flavors that are lost in the bare printed record read months later by appellate judges." Scoggin v. Scoggin , 250 N.C. App. 115, 118, 791 S.E.2d 524, 527 (2016) (marks omitted). The trial court's decision will be "reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason." White v. White , 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).

¶ 10 Further, "[i]n a child custody case, the trial court's findings of fact are conclusive on appeal if supported by substantial evidence, even if there is sufficient evidence to support contrary findings." Peters v. Pennington , 210 N.C. App. 1, 12-13, 707 S.E.2d 724, 733 (2011). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Mitchell v. Mitchell , 199 N.C. App. 392, 405, 681 S.E.2d 520, 529 (2009). "Unchallenged findings of fact are binding on appeal. Whether the trial court's findings of fact support its conclusions of law is reviewable de novo. If the trial court's uncontested findings of fact support its conclusions of law, we must affirm the trial court's order." Scoggin , 250 N.C. App. at 118, 791 S.E.2d at 526 (marks omitted).

¶ 11 Mother's ultimate argument on appeal is "[t]he trial court erred in denying visitation between [Paula] and her mother." We disagree with Mother's contentions, especially in light of Finding of Fact 36.

A. Challenged Findings of Fact

¶ 12 On appeal, Mother challenges Findings of Fact 6, 15, 22, 23, 25, 27, 37, 38, and 39, as well as Conclusion of Law 4. Specifically, Mother contends Findings of Fact 23, 25, and 27 are not supported by the evidence in the Record. Mother also mentions Findings of Fact 15, 22, 37, and 38 in her brief, but does not argue these findings are unsupported by the evidence.

1. Findings of Fact Challenged as Unsupported by the Evidence

¶ 13 Finding of Fact 23 states:

23. Once [Paula] was safely returned to the care of [Father] in North Carolina, [Mother] did not initially exercise visits. Eventually, supervised visitation was set up through SonShine Child Care and Our House in Wilkesboro as described in the Temporary and Interim Orders in this cause. Visits at both locations became problematic due to [Mother's] behavior and complaints at each location. Neither facility will agree to supervise visits any longer in this case.

Mother only challenges the first sentence of Finding of Fact 23–"[o]nce [Paula] was safely returned to the care of [Father] in North Carolina, [Mother] did not initially exercise visits." Mother argues she "had no visitation rights to exercise until the entry of the trial court's [January 2017 Order] on 31 January 2017 as the trial court's [October 2016 Order] did not...