Nesbeth v. Flynn

• Decision Date: 07 December 2021
• Docket Number: COA20-404
• Court: North Carolina Court of Appeals
• Parties: KEVIN NESBETH, Plaintiff, v. SHANNON FLYNN, Defendant.

2021-NCCOA-678

KEVIN NESBETH, Plaintiff,
v.
SHANNON FLYNN, Defendant.

No. COA20-404

Court of Appeals of North Carolina

December 7, 2021

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 26 May 2021.

Appeal by Plaintiff from orders entered 11 and 20 of December 2019 and 6 January 2020 by Judge Christine Walczyk in Wake County District Court No. 17 CVD 9670.

Tharrington Smith, LLP, by Steve Mansbery, for Plaintiff-Appellant.

Moore Law Group, P.L.L.C., by Jillian Mack, for Defendant-Appellee.

WOOD, Judge.

¶ 1 On December 11, 2019, the trial court entered a Permanent Child Custody Order ("PCC Order") resolving custody of Kevin Nesbeth's ("Plaintiff") and Shannon Flynn's ("Defendant") minor children. On December 20, 2019, the trial court entered an Order Appointing Parenting Coordinator By Consent ("APC Order") and on January 6, 2020, the trial court entered an Order (Third-Party Therapist Motion) ("Therapist Order"). On appeal, Plaintiff appeals numerous facets of the PCC Order and petitions this court for a writ of certiorari to review the Therapist Order. We

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affirm the PCC Order of the trial court and deny Plaintiff's petition for a writ of certiorari.

I. Background

¶ 2 Plaintiff and Defendant (collectively, "the parties") began their relationship in 2001. The parties were never married but lived together and are the parents of three daughters (collectively, "the children"). Plaintiff moved to New York while Defendant and the children remained in North Carolina. During their relationship, the parties and the children traveled together as a family and resided in the same house whenever Plaintiff was in North Carolina. Defendant and Plaintiff ended their intimate relationship in 2015. Plaintiff then filed a child custody complaint against Defendant. A permanent custody order resulted from the action, granting Defendant the primary physical custody of the children and Plaintiff visitation rights with the children every other weekend. However, this custody order was ultimately set aside due to a procedural defect.

¶ 3 On August 7, 2017, Plaintiff initiated this present child custody suit, requesting shared legal and physical custody of the children. On September 15, 2017, Defendant filed a counterclaim requesting primary custody of the children. Thereafter, the parties entered into a Memorandum of Judgment which granted Defendant primary physical custody of the children and Plaintiff visitation rights and required reunification therapy with the children. On February 6, 2018, Plaintiff filed

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an Order to Show Cause and Motion for Contempt, alleging violations of the Memorandum of Judgment, followed by a Motion for Order Appointing Parenting Coordinator and For Order Designating Reunification Therapist on April 10, 2018. On July 8, 2018, the trial court found parts of the Memorandum of Judgment had been violated in regards to the children's phone calls and dinners with Plaintiff and held Defendant in civil contempt. Also on July 8, 2018, the parties' attorneys agreed to appoint Dr. Harris-Britt as the new reunification therapist. Defendant then complied with the July 2018 order, and the children called Plaintiff and attended dinner visits with Plaintiff. However, when the purge period ended, the children stopped visiting with Plaintiff. Meanwhile, Dr. Harris-Britt conducted several therapy sessions but ultimately suspended therapy "so that Plaintiff could work on his individual communication and behavior to better prepare himself for reunification therapy." Subsequently, Plaintiff revoked his consent for reunification therapy and, to date, neither Plaintiff nor the children are receiving reunification therapy.

¶ 4 In September 2018, both parties individually filed Motions For Order To Show Cause And Motions For Contempt. The trial court initially ordered both parties to appear and show cause why they should not be held in contempt but ultimately dismissed these orders. Prior to trial, Dr. Harris-Britt was subpoenaed to produce her entire file related to the case. Dr. Harris-Britt's attorney filed a Motion to Quash the subpoena which was addressed in open court on September 30, 2019, during

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which time the trial judge admitted she mistakenly believed Dr. Harris-Britt was the Parenting Coordinator, not the reunification therapist. The trial court judge granted the Motion to Quash, concluding it was "not in the best interest of the parties involved to release the records of the reunification therapist" and ordered the subpoenaed records to be destroyed. On January 2, 2020, the trial court entered the Therapist Order to memorialize what had occurred surrounding Dr. Harris-Britt's records.

¶ 5 On December 11, 2019, the trial court entered the PCC Order. In the PCC Order, the trial court judge made thirty-nine findings of fact and granted joint legal custody to Plaintiff and Defendant, with Defendant having the final decision making authority and final legal authority in regards to the children's extracurricular activities. Plaintiff was granted visitation rights with the children one weekend per month, holiday time, and two full weeks during summer vacation. Amongst other requirements, Plaintiff may not exit his vehicle when picking up the children from school, neither party may initiate phone calls with the children during the other parent's custodial time, Plaintiff may not attend the children's medical appointments, and the children may refuse to go with the Plaintiff for a custodial period. On December 20, 2019, the trial court entered the APC Order.

¶ 6 Plaintiff timely appealed the PCC order and APC Order seven days later. Afterwards, the trial court followed the PCC Order, with the Therapist Order on January 6, 2020 to resolve a dispute surrounding Dr. Harris-Britt's testimony.

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However, the Therapist Order was not served upon Plaintiff's counsel. Plaintiff now appeals to this Court 1) alleging the trial court erred in making findings of fact in the PCC Order, allowing an exhibit to be played for impeachment purposes, in making certain conclusions as a matter of law in the PCC Order, and ordering various decrees in the PCC Order; 2) contending Plaintiff's Fourteenth and First Amendment Rights under the United States Constitution were violated; 3) alleging various North Carolina statutes were violated; and 4) petitioning this Court through a writ of certiorari on June 5, 2021 to review the Therapist Order. We affirm the PCC Order of the trial court and deny Plaintiff's petition for writ of certiorari.

II. Discussion

A. The Permanent Custody Order's Findings of Fact

¶ 7 Plaintiff challenges several of the PCC Order's Findings of Fact. When reviewing the findings of fact made by a trial court judge, we look to see whether the "trial judge's underlying findings of fact are supported by competent evidence." State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (citation omitted). The trial court is in the ideal position to resolve any conflicting evidence because the judge "sees the witnesses, observes their demeanor as they testify and by reason of his more favorable position, he is given the responsibility of discovering the truth." State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601 (1971). This appellate Court is "much less favored because it sees only a cold, written record," Id., and as a result we

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"accord[] great deference to the trial court in this respect." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Thus, if the findings of fact are supported by competent evidence, then the findings of fact are binding on appeal. Williams, 362 N.C. at 632, 669 S.E.2d at 294.

1. Finding of Fact Number 17 is Supported by Competent Evidence

¶ 8 Plaintiff challenges the PCC Order Finding of Fact seventeen which states, "[a]s a result of this high conflict, at least one pediatrician has fired the family, and at least one reunification therapist has fired the family." At trial, the district court judge was presented with testimony from the family's pediatrician of thirteen years. The pediatrician stated the children were dismissed from the practice because Plaintiff was no longer consenting to the children's treatment, furthering,

it was clear that we did not have an appropriate relationship to take care of the kids.

There was no trust between the . . . Plaintiff and myself. . . . [A]nd he stated that he didn't consent and didn't agree with my treatment plan.

So that basically . . . prevents me from being able to treat the kids because those were my recommendations.

So the relationship was just . . . not viable at that point. Though Plaintiff argues the pediatrician did not fire the family but rather "[Plaintiff] revoked his consent for treatment," we are not required to conduct a de novo review of the evidence but only look to see if competent evidence supported the trial court's

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findings of fact. Williams, 362 N.C. at 632, 669 S.E.2d at 294 (citation omitted). Giving high deference to the trial court, the PCC Order's fact number seventeen was supported by competent evidence from the pediatrician's testimony and is binding on appeal.

2. Finding of Fact Number 19 is Supported by Competent Evidence

¶ 9 The trial court judge similarly did not err by finding fact number nineteen which states "[t]he parties are able to pay for the cost of the parenting coordinator." We first note the later APC Order contains a provision stating "the parties are able to pay for the cost of the Parenting Coordinator." Both Plaintiff and Defendant stipulated they were in agreement with the APC Order, absent one section that is not applicable to this issue....