Mann v. Vaickus
| Decision Date | 04 April 2023 |
| Docket Number | COA22-20 |
| Parties | CLARENCE THEODORE MANN, Plaintiff, v. SHEREE VAICKUS, Defendant. |
| Court | North Carolina Court of Appeals |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 23 August 2022.
Appeal by Plaintiff from orders entered 1 April 2021 by Judge David K. Baker in Wake County District Court. No. 14 CVD 16153
Rik Lovett &Associates, by S. Thomas Currin, II, for Plaintiff-Appellant.
Jackson Family Law, by Jill Schnabel Jackson, for Defendant-Appellee.
Clarence Theodore Mann ("Plaintiff-Father") appeals from several orders entered on 1 April 2021, which modified physical and legal custody, child support, and adjudicated him in civil contempt of a prior child support order. After careful review, we remand for entry of a child custody order with findings of fact supporting its conclusions of law-without internal contradictions-and affirm the matter in all other respects.
Plaintiff-Father and Sheree Vaickus ("Defendant-Mother") were married on 11 August 2004 before divorcing on 30 January 2015. They have one child together, M.T.M.,[1] who is nearly thirteen years old. M.T.M. is significantly delayed in school due to severe hearing loss, which requires extensive intervention to meet her special health and educational needs, such as speech therapy, reading and remediation classes, hearing aids, audiology services, and additional pediatric medical care.
On 7 October 2015, three orders, which addressed custody, child support, and a specific performance issue, were entered and resolved all outstanding claims and motions in the divorce action. Thereafter, beginning on 8 September 2017, the parties filed several motions regarding custody and child support, which resulted in the entry of two consent orders resolving disputed issues as of 19 March 2019. By consent these orders: appointed a Parent Coordinator ("PC") for a one-year term; provided the parties would exercise joint legal custody with a tiebreaker provision; modified physical custody to give primary custody to Defendant-Mother during the school year and primary custody to Plaintiff-Father during the summer; and provided no base child support but set the parties' respective responsibilities for certain child-related expenses.
The litigation that is the subject of this appeal commenced 22 April 2019 when Plaintiff-Father filed a motion to replace the PC. On 4 December 2019, Defendant-Mother moved for modification of child custody, modification of child support, and civil contempt. The parties filed additional motions which are not directly relevant to our analysis. All motions came before the Honorable David K. Baker in Wake County District Court on 18, 19, and 22 February 2021.
The hearing resulted in five orders entered on 1 April 2021: (1) Child Custody Modification Order ("Child Custody Order"), which granted Defendant-Mother primary physical custody and primary legal custody with respect to health and education; (2) Order Appointing PC By Consent; (3) Child Support Modification Order ("Child Support Order"); (4) Contempt Order; and (5) Attorney Fees Order. On 7 April 2021, the trial court entered an Order Confirming Satisfaction of Purge Conditions Resolving Plaintiff's Civil Contempt ("Satisfaction Order"). The Satisfaction Order resolved Plaintiff-Father's civil contempt after he made certain payments totaling $11,723.50, comprised of $9,223.50 in child-related expenses and $2,500.00 in attorney's fees. Plaintiff-Father filed timely notice of appeal on 15 April 2021.
Four of the five orders entered 1 April 2021-excluding the interlocutory Contempt Order-are immediately appealable final judgments of a district court in a civil action, despite the interlocutory nature of the contempt issue. See N.C. Gen. Stat. § 7A-27(b)(2) (2021); see also N.C. Gen. Stat. § 50-19.1 (2021) ("Notwithstanding any other pending claims filed in the same action, a party may appeal from an order or judgment adjudicating a claim for . . . child custody [or] child support . . . if the order . . . would otherwise be a final order . . . but for the other pending claims in the same action."). Plaintiff-Father has met his burden on appeal of establishing the Contempt Order affects a substantial right; therefore, the Contempt Order is subject to immediate appeal per N.C. Gen. Stat. § 7A-27(b)(3)(a). See Guerrier v. Guerrier, 155 N.C.App. 154, 158, 574 S.E.2d 69, 71 (2002) ().
The issues before this Court are whether the trial court erred in: (1) modifying child custody; (2) modifying child support; and (3) adjudicating Plaintiff-Father in civil contempt for nonpayment of child-related expenses. We address each issue in turn.
First, Plaintiff-Father asserts the trial court erred by: issuing Finding of Fact 53 of the Child Custody Order ("Finding 53"), because it conflicts with the conclusion to modify custody and is binding on appeal; adopting a disproportionate number of Defendant-Mother's proposed findings and conclusions; and determining that M.T.M.'s best interests would be served by granting Defendant-Mother primary physical and legal custody with respect to education and healthcare decisions. After careful review, we agree with Plaintiff-Father's argument regarding Finding 53 and remand to the trial court for entry of a revised custody order.
"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) (citation omitted); see also In re Peal, 305 N.C. 640, 645, 290 S.E.2d 664, 667 (1982) (). "Absent an abuse of discretion, the trial court's decision in matters of child custody should not be upset on appeal." Everette v. Collins, 176 N.C.App. 168, 171, 625 S.E.2d 796, 798 (2006). "Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." In re A.M.C., 381 N.C. 719, 723, 874 S.E.2d 493, 496 (2022) (citation omitted).
"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." Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003) (citation omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). "Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal." Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
"In addition to evaluating whether a trial court's [challenged] findings of fact are supported by substantial evidence, this Court must determine if the trial court's factual findings support its conclusions of law." Shipman, 357 N.C. at 475, 586 S.E.2d at 254. "If the trial court's uncontested findings of fact support its conclusions of law, [this Court] must affirm the trial court's order." Respess v. Respess, 232 N.C.App. 611, 614, 754 S.E.2d 691, 695 (2014) (internal quotation omitted).
Plaintiff-Father argues Finding 53 is binding on appeal, and its final sentence does not support the conclusion of law to transfer primary legal and physical custody to Defendant-Mother. In response, Defendant-Mother cites a case regarding a scrivener's error in reducing a verbal agreement to writing, and asserts the trial court unintentionally omitted the word "not[,]" meaning Finding 53 should read "that were [not] in the best interests of the child." See Archer v. McClure, 166 N.C. 140, 141, 81 S.E. 1081, 1083 (1914). After careful review, we agree with Plaintiff-Father.
Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980). "A judgment will not be supported by findings of fact . . . which are actually antagonistic, inconsistent, or contradictory as to material matters." Spencer v. Spencer, 70 N.C.App. 159, 168, 319 S.E.2d 636, 643-44 (1984) (citing Lackey v. Hamlet City Bd. of Ed., 257 N.C. 78, 84, 125 S.E.2d 343, 347 (1962)).
Plaintiff-Father has not disputed the trial court's finding of fact or conclusion of law that a substantial change in circumstances occurred warranting a modification of child custody. See Pulliam, 348 N.C. at 619, 501 S.E.2d at 899. Accordingly, this conclusion and its factual basis are binding on appeal. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731. Furthermore, Defendant-Mother did not file a cross appeal contesting Finding 53, so it is likewise binding on appeal. See id. at 97, 408 S.E.2d at 731.
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