MacLagan v. Klein

• Citation: 123 N.C.App. 557,473 S.E.2d 778
• Decision Date: 20 August 1996
• Docket Number: No. COA95-732,COA95-732
• Parties: Pamela Sue MacLAGAN, Appellant/Cross-Appellee, v. Maury D. KLEIN, Appellee/Cross-Appellant.
• Court: North Carolina Court of Appeals

Page 778

473 S.E.2d 778

123 N.C.App. 557

Pamela Sue MacLAGAN, Appellant/Cross-Appellee, v. Maury D. KLEIN, Appellee/Cross-Appellant.

No. COA95-732.

Court of Appeals of North Carolina.

Aug. 20, 1996.

Donna Ambler Davis, P.C., Chapel Hill by Donna Ambler Davis, for plaintiff-appellant/cross-appellee.

Northen, Blue, Rooks, Thibaut, Anderson & Woods, L.L.P., Chapel Hill by Charles T.L. Anderson and Carol J. Holcomb, for defendant-appellee/cross-appellant.

JOHN C. MARTIN, Judge.

Plaintiff-mother and defendant-father appeal from an order awarding them joint custody of their minor child, Ashley Danien Klein, who was born on 29 June 1988. The parties have never been married to each other, but cohabitated for over two years, and defendant has legitimated the child. The relevant portions of the protracted and acrimonious procedural history of the case are summarized below.

On 11 May 1992, after a custody evaluation was completed by a Dr. John Looney, Director of the Division of Child and Adolescent Psychiatry at Duke University, the trial court entered a consent order in which it found and concluded, inter alia, that both parents are fit and proper persons to have custody of the minor child, but that it was in Ashley's best interest for plaintiff-mother to have custody. The court then: (1) awarded custody to plaintiff; (2) ordered that plaintiff consult with defendant with respect to all major decisions involving the child's education and health reasonably in advance of such decisions, and if the parties could not reach an agreement, they were to seek the advice of the child's therapist, Dr. Barbara Hawk, who would attempt to facilitate an agreement; and (3) provided for a visitation schedule for defendant with Ashley including approximately five days out of every two weeks, periods of summer and other visitation, and Jewish holidays. Defendant, who is Jewish, and plaintiff, who is not Jewish, had agreed prior to Ashley's birth that their child would be reared in the Jewish faith.

After the consent order was issued, plaintiff unilaterally terminated Ashley's therapy with Dr. Hawk, stating in a letter dated 17 July 1992 that she felt it best for all concerned, and especially for Ashley, that the child see another therapist. On 3 August 1992, defendant filed a motion seeking, inter alia, that he be awarded custody of Ashley due to a substantial change in circumstances adversely affecting the child. The specific grounds alleged by defendant were plaintiff's: termination of Ashley's therapy with Dr. Hawk; announced intention to relocate to impair defendant's visitation with Ashley; refusal to cooperate with defendant in parenting and particularly in raising Ashley in the Jewish faith; and inability to separate her personal conflicts with defendant from the exercise of judgment as to Ashley's best interests.

While defendant's motion was pending, plaintiff took a job as a teacher in the Bertie County School System and relocated with the child from Chapel Hill, North Carolina to Edenton, North Carolina. By letter sent 23 August 1992, plaintiff advised defendant that she and Ashley were relocating, and that defendant's pick-up for visitation should be exercised in Edenton, North Carolina. Plaintiff moved, with Ashley, to Edenton on the following day, 24 August 1992. Plaintiff subsequently testified that her relationship with defendant had no bearing on where she searched for a job, and that she would have been happy to have been able to acquire a job that did not require her and Ashley to relocate. After August 1992, defendant drove to and from Edenton each week to exercise his visitation with Ashley.

At a hearing on defendant's motion for change of custody, Dr. Looney testified that, in his opinion, plaintiff's behavior since the court's 11 May 1992 consent order demonstrated her inability to separate her conflict with defendant from what is in the best interest of the child, and that Ashley's interest would now best be served by defendant having custody. However, on 5 March 1993, the trial court found and concluded that plaintiff's move to Edenton was done in good faith for economic reasons and not for the purpose of thwarting or interfering with defendant's visitation with Ashley or Ashley's religious training, that Ashley's best interests were served by plaintiff retaining custody, but that the move to Edenton constituted a sufficient change in circumstances to modify the visitation schedule. The trial court denied defendant's motion for change of custody, but modified the previous order with respect to visitation.

On 27 May 1993, plaintiff filed a motion to amend the visitation schedule, alleging that the current schedule interrupted Ashley's kindergarten attendance. In response, defendant asserted that he had, based upon the recommendation of Ashley's therapist, made arrangements to rent a residence in Edenton so that the existing visitation schedule would not interrupt Ashley's school schedule or attendance. Defendant also alleged that plaintiff had failed and refused to consult with him regarding Ashley's school enrollment and was in violation of the prior consent order. He also contended that by enrolling Ashley in a "year round" school, plaintiff had jeopardized defendant's planned period of summer visitation.

By order dated 24 August 1993, the trial court concluded that plaintiff had not carried her burden of proving that Ashley's attendance of kindergarten from both her mother's home and her father's leased residence in Edenton, and visits with her father to Chapel Hill, would adversely affect her. The court made a minor modification as to the time and place of visitation exchanges, and ordered the parties to meet with Paula Browder, Ashley's therapist, to monitor their conflict and develop co-parenting skills.

Between the fall of 1992 and summer of 1993, Ashley occasionally attended a Methodist church in Edenton with her grandmother and sometimes with her mother. Subsequent to the summer of 1993, Ashley's participation in events at the church increased and included regular attendance of Sunday School, a weekly fellowship/choir program, and Vacation Bible School in the early summer of 1994.

On 5 May 1994, defendant filed another motion in the cause alleging a substantial change in circumstances and requesting a modification of the trial court's prior custody award. Defendant based his motion on the following grounds: plaintiff's initiation of active religious worship with Ashley at a Christian church and the resulting conflict in Ashley's mind about her personal and religious identity; Ashley being teased as "a Jew" at her school and the lack of other Jewish children or a Jewish community in Edenton; a conflict between Ashley's school attendance in Edenton and the celebration of Jewish holidays with her synagogue in Durham; and plaintiff's failure to act so as to reduce the difficulty and stress related to Ashley's visitation with defendant and transfers between plaintiff and defendant.

At hearings on the motion conducted in July and August 1994, the evidence included testimony by Paula Browder that Ashley was suffering from increased anxiety, confusion, and stress over the past year due to travel between two households, her parents' inability to communicate with each other, and from having to operate in two unrelated worlds and communities. Ms. Browder further testified that, in her opinion, the increased stress was the cause of headaches and stomachaches of which Ashley had complained, and that plaintiff's incorporation of Ashley into church activities was creating confusion as to Ashley's self-concept and self-identity. Ms. Browder stated that Ashley had talked about worries about pleasing both parents each of whom wanted her to be of their own religious faith, and that Ashley expressed a need to be loyal to both and be Jewish when she was with her father and Christian when she was with her mother. Ms. Browder also stated that Ashley had told her at different times that she wished she could build a synagogue for her father and a church for her mother. Ms. Browder further testified that it was her observation that plaintiff has a pattern of obstructing Ashley's relationship with defendant, that she felt plaintiff was undermining Ashley's training in Judaism, that plaintiff was often unilaterally making decisions for Ashley rather than co-parenting with defendant, and that, because of a lack of co-parenting, defendant does not cooperate when activities about which he was not consulted are planned for Ashley during his visitation time with her. As a result, Ashley feels that her father does not support her activities and is not interested in what she wants to do.

In addition, Ms. Browder stated that defendant "may be pushing Ashley too hard about remembering she's Jewish now that Christianity has been introduced," and that it would be best for Ashley if she were raised in one faith. As to Ashley being "teased" by other children about being Jewish, Ms. Browder stated that Ashley had mentioned this in therapy sessions, that plaintiff had stated that she knew of only one incident when this occurred, and that plaintiff was not happy about the incident and had checked into it. Ms. Browder also interpreted a tape of a telephone conversation between Ashley and defendant and expressed her opinion that plaintiff had interfered with and distracted Ashley from talking to her father by carrying on a one-sided conversation with Ashley while she was on the phone. She further stated that, in her opinion, Ashley was put in an awkward position of having to relay messages between her parents because plaintiff refused to get on the phone when defendant asked to speak to plaintiff, and that Ashley feels her parents cannot directly communicate with each other. The court also heard testimony from defendant that he experienced interference or a lack of cooperation from plaintiff on about half of the occasions...