Lamm v. Lamm

• Decision Date: 01 March 2011
• Docket Number: No. COA10–536.,COA10–536.
• Citation: 707 S.E.2d 685
• Parties: Kenneth R. LAMM, Plaintiff,v.Pamela R. LAMM, Defendant.
• Court: North Carolina Court of Appeals

707 S.E.2d 685

Kenneth R. LAMM, Plaintiff,

v.Pamela R. LAMM, Defendant.

No. COA10–536.

Court of Appeals of North Carolina.

March 1, 2011.

OPINION TEXT STARTS HERE

Appeal by defendant from order and judgment entered October 2009 by Judge C. Christopher Bean in Pasquotank County District Court. Heard in the Court of Appeals 17 November 2010.

Aldridge, Seawell & Spence, LLP, by W. Mark Spence, Mateo, for plaintiff.

Wyrick Robbins Yates & Ponton LLP, Raleigh, by K. Edward Greene, Tobias S. Hampson, and Edward Eldred, for defendant.

ELMORE, Judge.

Pamela R. Lamm (defendant) appeals an order and judgment modifying a child custody order and imposing Rule 11 sanctions on her. For the reasons set out below, we affirm.

I. Background

Kenneth R. Lamm (plaintiff) and defendant were married on 28 December 1985 and divorced on 19 May 2005. They had three children together during their marriage: Caroline, born in 1988, Samantha, born in 1992, and Cody, born in 2001.¹ When plaintiff left the marriage, he began a relationship with Janet Markham (Janet), who gave birth to Amy, plaintiff's child, in 2005. Plaintiff and Janet married on 27 May 2005.

Before the final divorce decree, the trial court appointed Dr. David A. Zoll, Ph.D., “to conduct an impartial evaluation of the parties and the parties' minor children.” Dr. Zoll concluded that, in order to safeguard the relationship between Cody and plaintiff, physical custody of Cody should be granted to plaintiff. In addition, he concluded that defendant should maintain custody of both Caroline and Samantha. Dr. Zoll went on to testify that he believed that defendant “lacked the ability to manage emotional distress” and that Cody may have viewed having a good relationship with his father as “traitorous” to his mother, with whom he was very close. Dr. Zoll noted that Cody had a “particularly strong attachment to his older sister, [Caroline].” He also testified that defendant, whether deliberately or not, was unable to refrain from expressing her anger regarding the separation and divorce in front of the children. According to Dr. Zoll, if Cody continued to live with defendant and his older sisters, and if their hostile and negative statements continued, then Cody's relationship with plaintiff would be “minimal or non-existent.”

After hearing all of the evidence, the trial court concluded that defendant “is the party who will better promote the interest and welfare of the ... minor children and should be awarded their custody subject to reasonable visitation privileges being granted to the Plaintiff with the minor child, [Cody].” The trial court also found that, “[i]f [Cody] continues to live with the defendant and his sisters, and, if their anger, hostile actions, and negative statements are not curtailed, [Cody's] relationship with the plaintiff will be minimal or non-existent.” Continuation of these actions, the court noted, could result in a change of custody. Then, in a child custody order dated 13 February 2006, the court granted defendant primary custody of the three children and awarded plaintiff visitation rights with Cody.

Cody has been under the care of Christian Psychotherapy Service since 2005. His first therapist was Traci Smith, a licensed clinical social worker, with whom he attended fifty-one sessions. Cody's therapists have been a “matter of contention and inflexibility” between the parties. Plaintiff has attempted to bring Cody to therapists in his hometown, Elizabeth City, but defendant has objected to each one, thereby preventing therapy. In July 2007, Janet stated that she believed that Traci Smith was biased in favor of defendant, and, for that reason, Traci Smith withdrew. Cody then began therapy with Dr. Barry Burijon, another therapist at Christian Psychotherapy Service. The trial court found that, “[a]ccording to Dr. Burijon[, Cody's] behavior is regressing, he has no emotional energy, he is sullen, withdrawn and mistrusting.” Plaintiff had expressed a lack of confidence in Dr. Burijon's ability to remain objective, and the trial court agreed that it was no longer possible for Dr. Burijon “to objectively and effectively engage in any meaningful family counseling.”

Beginning in 2006, Cody began to exhibit violent behavior when visiting plaintiff: he knocked down his half-sister, Amy, who was only one year old at the time; he drew a line across her throat; and he kicked the family puppy. Cody also made statements expressing a hatred towards his father and a desire to kill him. However, there was also evidence that indicated that Cody was neither withdrawn nor depressed during his visits with plaintiff.

Following Cody's violent outbursts and defendant's refusals to allow plaintiff to select a therapist he found suitable, plaintiff filed a motion to modify custody on 31 July 2007. On 24 January 2008, the trial court appointed Harold J. May, Ph.D., to perform an impartial custody evaluation of the parties and their minor children. The trial court found that, while Dr. May's findings were not specific findings about plaintiff and defendant, they did corroborate the court's own findings regarding the characteristics of the parties.

While the motion to modify was pending, defendant filed a motion for emergency child custody on 11 June 2009 (emergency custody motion), the day that plaintiff's five-week summer visitation was scheduled to begin. The emergency motion alleged that Cody was “exposed to a substantial risk of bodily injury or sexual abuse, and an immediate order curtailing Plaintiff's visitation is necessary pursuant to” N.C. Gen.Stat. § 50–13.5(d)(2) and (3). Specifically, defendant alleged that Cody had “returned from visitation at Plaintiff's house, on several occasions, with his rectal area red and raw. The child has refused to state how the area become red. The child does not have a red rectal area while in his mother's care.” The trial court granted an emergency custody order, pending a hearing scheduled for 26 June 2009. Pasquotank County Department of Social Services (DSS) performed an investigation based on defendant's allegations, and Kids First, a child advocacy agency, made an additional examination. The DSS interview included interviews with Cody and other family members as well as reviews of custody evaluations by both Dr. Zoll and Dr. May. The investigating social worker found the report to be unsubstantiated, and the therapists at Kids First found no evidence of sexual abuse. Based on these findings and other evidence offered during the 26 June 2009 hearing, the court dismissed the emergency custody order.

On 7 August 2009, the trial court ordered primary custody to be granted to plaintiff until a final decision could be made. On 1 October 2009, the trial court entered a judgment and order placing primary custody of Cody with plaintiff. In its order, the trial court found that defendant's emergency custody motion had been made “without basis in law or in fact and was interposed for [the] improper purpose” of “block[ing] Plaintiff's scheduled summer visitation.” Defendant now appeals.

II. Arguments

Defendant presents two arguments on appeal: (1) The trial court erred by modifying the custody order because its conclusions of law did not address whether the change in custody was in the child's best interest, and (2) the trial court erred by imposing Rule 11 sanctions on defendant. We address each argument in turn.

A. Modification of custody order

Our Supreme Court concisely set out the method by which we review modifications to existing child custody orders:

When reviewing a trial court's decision to grant or deny a motion for the modification of an existing child custody order, the appellate courts must examine the trial court's findings of fact to determine whether they are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

Our trial courts are vested with broad discretion in child custody matters. This discretion is based upon the trial courts' opportunity to see the parties; to hear the witnesses; and to detect tenors, tones, and flavors that are lost in the bare printed record read months later by appellate judges. Accordingly, should we conclude that there is substantial evidence in the record to support the trial court's findings of fact, such findings are conclusive on appeal, even if record evidence might sustain findings to the contrary.

In addition to evaluating whether a trial court's findings of fact are supported by substantial evidence, this Court must determine if the trial court's factual findings support its conclusions of law. With regard to the trial court's conclusions of law, our case law indicates that the trial court must determine whether there has been a substantial change in circumstances and whether that change affected the minor child. Upon concluding that such a change affects the child's welfare, the trial court must then decide whether a modification of custody was in the child's best interests. If we determine that the trial court has properly concluded that the facts show that a substantial change of circumstances has affected the welfare of the minor child and that modification was in the child's best interests, we will defer to the trial court's judgment and not disturb its decision to modify an existing custody agreement.

Shipman v. Shipman, 357 N.C. 471, 474–75, 586 S.E.2d 250, 253–54 (2003) (quotations and citations omitted).

Here, with respect to her argument that the trial court erred by modifying the existing custody order, plaintiff has challenged the trial court's first conclusion of law and findings of fact 7 and 21. We first address the adequacy of conclusion of law 1, which states: “That substantial changes in circumstances affecting the best interests of the minor child herein have occurred warranting a modification of the February 14, 2006[,] Child Custody Order herein.”

Plaintiff first argues...