Jones v. Jones, COA21-105

• Docket Nº: No. COA21-105
• Citation: 865 S.E.2d 372
• Case Date: November 16, 2021
• Court: Court of Appeal of North Carolina (US)

865 S.E.2d 372 (Table)

Beth Mull JONES, Plaintiff
v.
Marc Anthony JONES, Defendant

No. COA21-105

Court of Appeals of North Carolina.

Filed November 16, 2021

Clemmons Family Law, by Kyla Sipprell, for plaintiff-appellant.

No brief was filed on behalf of defendant-appellee.

HAMPSON, Judge.

Factual and Procedural Background

¶ 1 Beth Mull Jones (Plaintiff) appeals from an Initial Child Custody Order granting joint legal and physical custody of the minor child to the parties. The Record before us tends to reflect the following:

¶ 2 Plaintiff and Marc Anthony Jones (Defendant) married on 3 July 2015 and separated on 23 December 2018. In May 2019, the parties reconciled their marriage but separated again on 18 October 2019. The parties have remained separated since that date. The parties have one minor child together—Rachel¹ . On 17 February 2020, Plaintiff filed a civil action seeking, among other things, child custody, child support, and equitable distribution. Plaintiff's Complaint included the following concerns: (1) Defendant's excessive consumption of alcohol; (2) Defendant's failure to maintain a suitable home for Rachel; (3) Rachel's safety while in Defendant's care; and (4) Rachel's defiant behavior. On 5 March 2020, Defendant filed his Answer and Counterclaim. Defendant's Counterclaim included claims for child custody, child support, and equitable distribution, among other things. In Plaintiff's Reply to Defendant's Counterclaims, Plaintiff expressed concern about the people Rachel is exposed to during Defendant's custodial time.

¶ 3 A permanent child custody trial began on 24 August 2020 and continued through 26 August 2020. At trial, the court heard testimony from both parties.

Plaintiff's Testimony

¶ 4 Plaintiff testified on 24 August 2020, since the parties’ separation in October 2019, the parties kept a "2-2-5-5" custody schedule. As such, Rachel is in Defendant's custody on Monday and Tuesday, with Plaintiff on Wednesday and Thursday, and the parties alternate Friday, Saturday, and Sunday. In January 2020, this schedule briefly ceased, and Rachel primarily stayed with Plaintiff while Defendant cared for his mother. Plaintiff explained, during this time, when Rachel stayed with her continually, Rachel's behavioral issues stopped. However, when the parties resumed the joint custody schedule—after Defendant returned from caring for his mother, the behavioral issues returned. Plaintiff testified she communicated to Defendant that the current 2-2-5-5 schedule "was not working."

¶ 5 Plaintiff also testified, in addition to her concerns for Rachel's behavioral issues, she is concerned about Defendant's alcohol consumption. Namely, Plaintiff expressed concern for Defendant's behavior in front of Rachel. Plaintiff testified she is requesting primary custody because she has "concerns about [Defendant] not putting [Rachel] first[.]" Plaintiff testified she does not believe Defendant's camper, where Defendant exercises his custodial time, "is a proper living environment for a three-year-old child." She testified, "there's a distinct smell in [Rachel's] clothes and ... hair when she comes back [from Defendant's camper] and I believe that there is some mold or mildew issues in [the camper]."

¶ 6 Plaintiff explained she is also concerned Defendant will not maintain a suitable learning environment or routine for Rachel. Further, Plaintiff testified she is concerned with the individuals Rachel is exposed to during Defendant's custodial time. According to Plaintiff, Defendant's best friend, Brian Nutter, has been accused of engaging in inappropriate, sexual behavior with a minor.

Defendant's Testimony

¶ 7 Defendant testified he believed the joint custody schedule is "working good" and Plaintiff agreed. Defendant explained, in January 2020, Plaintiff told him the 2-2-5-5 schedule was working, and she did not want to change it. Defendant testified he was "surprised" when Plaintiff filed a lawsuit for primary custody. When asked about his living arrangement, Defendant testified he does not plan to permanently live in his camper and has plans to build a house on "the farm," where he exercises his custodial time. Defendant testified he does not consume alcohol when Rachel is in his care. When asked about Rachel's behavioral issues, Defendant testified Rachel has hit him on one occasion.

¶ 8 According to Defendant's testimony, Plaintiff has used derogatory language in front of Rachel and calls her ex-husband "D H" which stands for "dick head." Defendant testified Plaintiff told him she thought "the sexual allegation issues against [Brian Nutter] were BS[.]" Defendant also testified he believes Plaintiff "denied [Rachel] the chance to say goodbye to her grandfather"—Defendant's father—by not attending his funeral.

Initial Child Custody Order

¶ 9 At the conclusion of trial, the court entered its Initial Child Custody Order on 1 September 2020, making the relevant Findings:

20. There is no evidence that [Defendant's] camper is in poor repair or that the heat or air-conditioning does not work. Photographs introduced show it to be clean inside and out. [Rachel] has her own room in the camper.

....

22. Plaintiff is concerned about Defendant's consumption of alcohol. Defendant consumes beer on a regular basis. Notably, since he transports [Rachel], Defendant has often driven after consuming alcohol. The Plaintiff, many times during the marriage felt compelled to ask the Defendant to stop drinking as he had too much. Plaintiff's family all describe [D]efendant as a heavy drinker, when he drinks. Though they all agree that he does not drive after doing so, Plaintiff drives.

a. On one particular occasion in October 2018, Defendant had been at The Farm. Plaintiff had a Commissioners’ meeting that night. When it was over, she went to pick up [Rachel] from her Parents’ home. She called and asked the Defendant if he was able to pick up the Plaintiff's two, older children from their father's home. Defendant agreed. One of Plaintiff's older daughters texted the Plaintiff that she needed to speak to her about the ride home. The girls felt that Defendant had consumed too much alcohol, that he was impaired, and that he had an open container of alcohol in the car from which he would drink as he was driving. When Plaintiff got home, she confronted [ ] Defendant. He denied that he had consumed too much and denied that there was an open beer in the car. But that, if there was an open can, he used it to spit his dip into. Plaintiff retrieved the can and poured out the little bit of liquid left in it. It was colored like a beer and did not contain any dip spit.

b. Defendant reacted to this incident and the Plaintiff's displeasure by refusing to drive the older girls

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