Jacobs v. Dudley

• Citation: 863 S.E.2d 819 (Table)
• Decision Date: 19 October 2021
• Docket Number: No. COA21-120,COA21-120
• Parties: Tanikki L. JACOBS, Plaintiff, v. Andrew T. DUDLEY, Defendant.
• Court: Court of Appeal of North Carolina (US)

863 S.E.2d 819 (Table)

Tanikki L. JACOBS, Plaintiff,

v.Andrew T. DUDLEY, Defendant.

No. COA21-120

Court of Appeals of North Carolina.

Filed October 19, 2021

The Blain Law Firm, PC, by Sabrina Blain, for Plaintiff-Appellant.

Collins Family Law Group, by Rebecca K. Watts, for Defendant-Appellee.

CARPENTER, Judge.

¶ 1 Tanikki Jacobs ("Plaintiff"), mother of minor child N.J., appeals from a permanent child custody order (the "Permanent Custody Order"), which granted joint physical and legal custody to Andrew T. Dudley ("Defendant"), N.J.’s father. We hold the trial court erred in its entry of the Permanent Custody Order by not concluding the award of joint custody would best promote the interest and welfare of the child. Therefore, we vacate the order and remand the matter to the trial court for a proper custody determination.

I. Factual & Procedural Background

¶ 2 The record tends to show the following: Plaintiff and Defendant are residents of North Carolina and had been residents of North Carolina for six months preceding the institution of the action. Both parties are the natural and biological parents of N.J., their 10-month-old daughter, and were never married. Plaintiff filed a complaint for child custody on 18 June 2019. Defendant answered Plaintiff's complaint and made a counterclaim for custody of N.J. Defendant then filed a motion seeking a temporary parenting arrangement claiming Plaintiff was withholding the child from him and unreasonably restricting parenting time. On 14 October 2019, at a hearing addressing the temporary parenting agreement, the parties agreed to a resolution of custody and entered into a memorandum of judgment/order, which provided the parties with joint legal and physical custody. On 5 November 2019, an order memorializing the memorandum of judgment for temporary parenting arrangement order (the "Temporary Custody Order") was entered, which formalized the results of the hearing on 14 October 2019. On 12 and 13 August 2020, a hearing was held on the issues of permanent child custody and attorney's fees. As a result of the proceedings, the Permanent Custody Order was filed on 27 October 2020. Plaintiff gave timely notice of appeal following the entry of this order.

¶ 3 The trial court made the following pertinent findings of fact in the Permanent Custody Order:

12. The Court heard from the daycare[ ]worker, Ms. Laura Pate and Ms. Pate talked about how the child appeared when she was brought in by Mr. Dudley and pictures were shown of her clothing and how she is kept which is important to the Court.

13. The Court found Ms. Pate's testimony concerning. However, the Court also found it was concerning that she never talked to Father about her concerns[.]

14. The Court finds that the daycare worker and Mother failed to communicate concerns in the minor child's appearance to Father.

15. The Court heard testimony that Ms. Pate had concerns about the food provided for the child at school by Father, which was also concerning to the Court. However, again the Court also finds it concerning that she, nor mother, talked to [ ] Father about this concern.

16. The Court finds it disingenuous for the daycare worker and Mother to have had these concerns over hygiene and food selection for months and to have never brought it to Father's attention other than to spring it on him at this custody trial.

17. The Court also heard testimony by Ms. Pate and Mother on a third area of concern regarding the changes in the child's behavior while in Father's care.

18. Mother testified that the child is seeing a social worker because the child's behavior was problematic.

19. Ms. Pate testified that she never called Father when the child was sick. Due to her failure to communicate with Father on this issue and the above stated issues, the Court gave little weight to her testimony.

20. Ms. Pate testified that she never talked to Father about the child's behavior.

21. The Court found Ms. Pate negated her credibility with the Court by her failure to bring anything to Father's attention so that they could have been addressed.

22. It does not sit well with the Court that the daycare and Mother have had issues for the last eight (8) months with the child's cleanliness, hair, appearance, and food, but failed to say anything and waited to come to court and spring it here. How can someone do better if they don't know?

23. The Court does not have enough evidence about the child's change in behavior and whether her aggressiveness lately is a biproduct of her getting older and her age right now in life or whether there is something more.

24. The Court did not hear from the child's social worker.

25. In October of 2019, the parties started down a road of a 50/50 arrangement that is what the parties thought is best for the child at the time and while the Court has heard concerns at this hearing, the Court has not heard anything that should cause a deviation from the path the parties started on.

26. The Court finds it was improper for Mother to change the daycare without any input from Father especially when the first daycare was visited together and selected together. [These] last two actions by Mother of changing the daycare without Father's input leaves the Court to give him final decision-making authority over educational matters.

27. The Court finds that the parties should share joint legal custody with Mother having final decision-making with medical and religious issues and Father having final decision-making authority with educational issues.

¶ 4 Additionally, the trial court made the following pertinent conclusion of law in the Permanent Custody Order: "[t]he parties are [awarded] joint permanent physical and joint permanent legal custody of the minor child ...."

II. Jurisdiction

¶ 5 Jurisdiction lies in this Court over an appeal of a final judgment regarding child custody in a civil district court action pursuant to N.C. Gen. Stat. § 7A-27(b)(2) (2019).

III. Issues

¶ 6 The issues presented on appeal are whether: (1) the temporary custody order filed on 5 November 2019 became permanent as a matter of law before the trial proceedings began on 12 August 2020; (2) the trial court applied the correct standard to the modification of the 5 November 2019 order; (3) the trial court made sufficient findings of fact and conclusions of law to support its judgment; and (4) the trial court made sufficient findings of fact to support a joint custody and allocation of specific decision-making authority to each party.

IV. Analysis

A. Modification of Temporary Custody Order

¶ 7 As an initial matter, we consider whether the 5 November 2019 Temporary Custody Order became permanent by operation of law and whether the trial court applied the correct standard in modifying the Temporary Custody Order.

¶ 8 Plaintiff argues the trial court erroneously applied the "substantial change of circumstances" standard when modifying the 5 November 2019 Temporary Custody Order on the basis the order never became permanent. Plaintiff further maintains the trial court abused its discretion by "impos[ing] an improper burden on the parties" by applying the incorrect standard.

¶ 9 Defendant contends the Temporary Custody Order became permanent by operation of law because it resolved all issues between the parties, because the trial court treated it as permanent by considering whether there was a change in circumstances that warranted a modification of custody, and because "there is nothing in the record to indicate that anything happened with the case after the entry of the temporary order in October 2019 and the trial in August 2020."

¶ 10 After careful review, we agree with Plaintiff's argument to the extent she asserts the 5 November 2019 order was temporary. However, because the trial court failed to make the proper conclusions of law as required by N.C. Gen. Stat. § 50-13.2(a) (2019), as discussed in detail below, we need not reach the issue of whether an incorrect standard was utilized by the trial court.

The trial court's designation of an order as temporary or permanent does not control. Brewer v. Brewer , 139 N.C. App. 222, 228, 533 S.E.2d 541, 546 (2000). "[A]n order is temporary if either (1) it is entered without prejudice to either party[;] (2) it states a clear and specific reconvening time in the order and the time interval between the two hearings was reasonably brief; or (3) the order does not determine all the issues." Senner v. Senner , 161 N.C. App. 78, 81, 587 S.E.2d 675, 677 (2003). If the order does not meet any of these criteria, it is permanent. See id.

Peters v. Pennington , 210 N.C. App. 1, 13–14, 707 S.E.2d 724, 734 (2011). Although an order may be properly classified as a temporary order at the time of its entry, this Court has held that a temporary order can be converted by operation of law into a final order when neither party sets the matter for a hearing within a "reasonable time." LaValley v. LaValley , 151 N.C. App. 290, 292, 564 S.E.2d 913, 915 (2002).

¶ 11 In this case, it is clear by the temporal language contained in the Temporary Custody Order's title and terms that it was not permanent when entered on 5 November 2019. Although the order does not set a specific reconvening time, it does state it was entered without prejudice to the parties; thus, we conclude the 5 November 2019 Temporary Custody Order was in fact temporary when entered. See Senner, 161 N.C. App. at 81, 587 S.E.2d at 677. The record reveals there was an approximate ten-month period between the entry of the Temporary Custody Order and the date of hearing for permanent child custody. Since there is no indication from the record that either party unreasonably delayed calendaring the matter for hearing, we hold the Temporary Custody Order did not become permanent by operation of law. Thus, this Court will review the Permanent Custody Order, the subject of this appeal, as requiring a "best interest of the child" analysis without a showing of a "substantial change in circumstances." See ...