Peters v. Pennington

• Citation: 707 S.E.2d 724
• Decision Date: 01 March 2011
• Docket Number: No. COA10–91.,COA10–91.
• Parties: Marco PETERS, Plaintiffv.Lisa PENNINGTON, Defendant.
• Court: Court of Appeal of North Carolina (US)

707 S.E.2d 724

Marco PETERS, Plaintiff
v.
Lisa PENNINGTON, Defendant.

No. COA10–91.

Court of Appeals of North Carolina.

March 1, 2011.

[707 S.E.2d 728]

Appeals by Defendant and her trial counsel, Erica N. Burns, from five orders of the Mecklenburg District Court, Judge Rebecca T. Tin presiding: the first a 6 March 2009 order addressing permanent child custody; the second a 6 March 2009 summary order provided to the Charlotte Mecklenburg School System Legal Department; the third entered 14 April 2009 awarding a preliminary injunction; the fourth entered 20 May 2009 awarding permanent child support and attorney's fees; and the fifth entered 29 May 2009 denying Defendant's motion for a stay, a new trial, and to recuse Judge Tin, and also imposing sanctions against Ms. Burns. Heard in the Court of Appeals 14 September 2010.

Wyrick Robbins Yates & Ponton LLP, Raleigh, by K. Edward Greene and Tobias S. Hampson, for Appellant Lisa Pennington.

James McElroy & Diehl, Charlotte, by Preston O. Odom, III, Jonathan D. Feit, and Sarah M. Brady, for Appellee Marco Peters.Erica N. Burns, pro se Appellant.

HUNTER, JR., ROBERT N., Judge.

Defendant Lisa Pennington (“Dr. Pennington”) appeals a series of rulings by the district court awarding primary custody, child support, injunctive relief, and attorney's fees to her former husband, and the children's father, Plaintiff Marco Peters (“Dr. Peters”). These orders severely restricted Dr. Pennington's visitation rights with the children pending further court review. They also imposed support obligations, taxed costs, and taxed attorney's fees. Erica N. Burns, Dr. Pennington's trial counsel, appeals Rule 11 sanctions imposed against her individually, which were awarded by the court for filing post-hearing motions to stay the aforesaid orders, seeking a new trial, and seeking the recusal of the presiding judge. We affirm the district court in part, vacate in part, and remand for further proceedings.

I. Factual and Procedural Background

Dr. Lisa Pennington, a child psychologist, and Dr. Marco Peters, a chiropractor, were married in 1997. They had two sons, Dennis and Frank, who were eight and ten, respectively, when the Court heard this case.¹ After the parties separated in 2005, they entered into a separation agreement in which they agreed to share joint physical and legal custody of the children. Two months later, Dr. Peters filed a complaint seeking absolute divorce, which was awarded in February of 2006. The divorce decree did not incorporate the separation agreement.

[707 S.E.2d 729]

After the separation, the parties appear to have cooperated with each other regarding the joint custody of their children for approximately two years. A disagreement arose between the parents pertaining to medical care and educational issues. The parties mediated the dispute on 19 June 2007, resulting in a 31 July 2007 consent order. The consent order addressed three issues: medical care for Dennis's asthma, routine bedtimes for the children, and preparation for school. The consent order also contained a non-disparagement clause that prevented either party from making or allowing others to make disparaging comments about each other in the presence of the children.

The consent order acknowledged the parties' separation agreement in several places, including finding of fact 8:

[P]ursuant to the parties' agreement, they are exercising joint legal and physical custody of their minor children, and they have practiced this in accordance with the schedule worked out between them. The parties acknowledge that joint legal custody means advising the other party of all medications and treatment prescribed or given to the minor children from any source, including homeopathic and Chinese herbal medicine.

On 26 September 2007, Dr. Pennington filed her first motion for permanent custody and child support. She alleged Dr. Peters neglected to attend to the children's schoolwork, allowed them to bathe with other children living in his home, failed to deliver them to soccer practice, failed to administer medications to the children according to the consent order, and was late in making his required contributions for the children's support (specifically, his duty to pay for health insurance and uninsured health costs). On 1 November 2007, Dr. Peters denied these allegations and moved for dismissal. A mediated settlement conference conducted on 18 January 2008 did not resolve the dispute.

On 1 February 2008, Dr. Pennington filed a second motion to restrict Dr. Peter's visitation rights. She based her motion on allegations that Dr. Peters and his fiancée sexually and physically abused the children. On 1 February 2008 and 4 February 2008, based on this second motion, two ex parte orders were entered: the first temporarily suspending Dr. Peters' visitation rights until a hearing could be held and the second appointing M. Timothy Porterfield as guardian ad litem. On 11 February 2008, Dr. Peters denied the allegations, asked the trial court to appoint a guardian ad litem, and requested the restoration of his custodial rights.

A hearing was held on Dr. Pennington's second motion on 18 February 2008 before Judge Christy Mann. The resulting order restricted Dr. Peter's visitation to supervised visitation to be administered by the children's paternal grandparents, ordered the Mecklenburg County Department of Social Services (DSS) to conduct a child medical evaluation, ordered joint access to school and medical records, specified administration of asthma medication, and required cooperation with the guardian ad litem per N.C. Gen.Stat. § 7B–601(c). The order also contained the following restrictions with regard to the “communications regarding these proceedings”:

6 b). Neither mother nor father shall discuss with the children these, or any other, legal proceedings nor the legal case in anyway. If a child brings the subject up on his own, the parent (both mother, Lisa Pennington or father, Marco Peters) shall say, “... those are subjects to be discussed with Mr. Porterfield ...” and simply change the subject....

6 c). Neither mother nor father shall discuss with the children the sexual allegation in any way....

On 28 March 2008, Dr. Pennington filed a third motion with the court to restrict and clarify the role of the guardian ad litem in the proceedings and require that he make “evidence based decisions.” Dr. Pennington based this motion on alleged conversations with the minor children about “inappropriate” communications or touching of the children during Dr. Peters' supervised visitations and her subsequent report of these conversations to the DSS supervisor and the guardian ad litem. Dr. Pennington requested that the children have the expertise of a child psychologist rather than or in addition to the guardian ad litem to discuss the alleged

[707 S.E.2d 730]

abuse or inappropriate behavior of Dr. Peters. The motion also alleged that, prior to the entry of the order of 28 February 2008, Dr. Pennington had supplied the children with a therapist, Michael Tanis, but had terminated the therapy after the 28 February 2008 order was entered. Although Dr. Peters contends this motion was denied by the court in April, the record does not appear to contain an order to that effect.

On 22 July 2008, Dr. Peters filed a motion for temporary and full custody and to show cause why Dr. Pennington should not be held in contempt for violation of Judge Mann's 28 February 2008 order, which, among other things, prohibited the parties from discussing the subject matter of the litigation with the children. The motion also sought child support, attorney's fees, and a limitation on Dr. Pennington's visitation rights. The factual predicate for his motion was that Dr. Pennington's allegations had been investigated by appropriate authorities (including DSS, the Charlotte–Mecklenburg County Police Department, and the court sanctioned therapist) and found to lack credibility or factual support. Dr. Peters' motion contended Dr. Pennington's allegations of abuse coincide with his deepening involvement with his new fiancée. Furthermore, Dr. Peters alleged Dr. Pennington's conduct clearly violated Judge Mann's order not to discuss or have others discuss the events of sexual abuse with the children. Dr. Peters alleged Dr. Pennington's conduct in making unfounded allegations and discussing them with the children was injurious to the children and resulted in fecal incontinence, suicidal ideations, marked change in behavior, withdrawal from family members, and emotional distress. On 23 July 2008, DSS opened an investigation of Dr. Pennington based upon the father's allegations. On 25 July 2008, Dr. Peters' request for a temporary injunction was granted in part—Dr. Pennington was restrained from filing any additional complaints without the consent of the guardian ad litem and all records were to be given to the guardian ad litem.

A hearing on the motion was set for the week of 8 August 2008. Before the hearing, the parties received a written report from Dr. Pugh–Lilly (the DSS and guardian ad litem selected therapist for the child evaluation). In addition, Dr. Pennington presented her own extensive affidavit, together with supporting affidavits from Dr. Viola Vaughan–Eden and Dr. Seth Goldstein criticizing the professional work of Dr. Pugh–Lilly's examination of the children. There is no order in the record derived from this hearing. Dr. Peters changed counsel, and the case was eventually set for a two-week, complex domestic trial beginning on 2 February 2009. Ms. Burns, a member of the Pennsylvania Bar, was admitted pro hac vice to serve as an additional member of Dr. Pennington's trial counsel.

Due to complaints filed by the parties, investigations were conducted that paralleled these legal proceedings. The Charlotte–Mecklenburg County Police Department and DSS investigated Dr. Pennington's allegations of abuse, determined they were unfounded, and closed...