Phelps v. Phelps

• Decision Date: 29 July 1994
• Docket Number: No. 144PA93,144PA93
• Citation: 337 N.C. 344,446 S.E.2d 17
• Parties: , 34 A.L.R.5th 751 Jon (Jake) PHELPS v. Lisa B. PHELPS.
• Court: North Carolina Supreme Court

Page 17

446 S.E.2d 17

337 N.C. 344, 34 A.L.R.5th 751

Jon (Jake) PHELPS v. Lisa B. PHELPS.

No. 144PA93.

Supreme Court of North Carolina.

July 29, 1994.

James T. Bryan III, Chapel Hill, for plaintiff-appellee.

Glenn, Mills & Fisher, P.A. by William S. Mills, Durham, for defendant-appellant.

MEYER, Justice.

Jake Phelps (plaintiff) married Lisa Phelps (defendant) on 9 September 1984, and on 26 May 1986, a son, Joshua Bryan Blumenthal Phelps, was born of the marriage. Plaintiff and defendant separated on 9 September 1988 and, after the separation, agreed upon an informal custody arrangement until the filing of this action by plaintiff on 5 September 1989. Defendant responded to plaintiff's complaint with a request for sole custody of the child. Although plaintiff had originally requested that a joint custody arrangement be ordered by the court, during the hearing he specifically requested that he be granted sole custody of the child.

The case was heard in April of 1991. The evidence indicated that both parties, while loving, caring, and fit parents, had some problems. There was evidence that plaintiff had a drinking problem and that his lifestyle, which involved staying up late and constant entertaining, might not be an appropriate one in which to raise a child. There was evidence that defendant had committed acts of infidelity. Judge Hunt addressed these problems, as well as others, in the oral statement she made to the parties in the courtroom and in her written order. Her legal conclusion that sole custody of Joshua should be awarded to defendant, with extensive visitation rights given to plaintiff, was based in part upon the following findings of fact:

6. That both parties are college educated and both parties are employed. Jake Phelps works at Duke University as director of the student union, making a monthly gross income of $3,441.00 and that Lisa Phelps works as a research associate with Duke University with gross income of $1,375.00 per month.

7. Each of the parties [is] in apparent good health. Jake Phelps being 55 years old, and Lisa Phelps being 33 years old.

8. Each of the parents loves Joshua and shows this affection appropriately; that each parent is a fit and proper person to have custody of this child.

9. The Court has considered carefully the question of joint custody, in spite of the fact that neither party seeks joint custody. Because of serious disagreements between the parties concerning the child raising issues, the Court finds as a fact that the placement of Joshua Phelps in joint custody of his parents is not appropriate in this case and is not in his best interest. It is not in Joshua's best interest that he be switched back and forth between the parties' respective residences each week.

10. The plaintiff has a stable home, a good job, is well respected in the community where he lives and in the community where he works. He has in the past had a substantially inhibiting alcohol problem and pursuant to his recognition of that situation he now is abstaining from the use of alcohol completely.

11. Certain actions of Lisa Phelps, while married to the plaintiff, have caused the plaintiff such a deep hurt and resentment and anxiety and profound rage, that he is unable to overcome his grief and anger to cooperate in a reasonable fashion with the mother of his son to promote the best interest of his son.

12. The lifestyle of the plaintiff in this action[ ] reflects his station in life, his employment and his maturity. This lifestyle, while it may be appropriate to the plaintiff in this action, ... is a difficult lifestyle for a young child. Adjusting to the late hours, to the constant flow of guests, and the adult entertainment that is a solid part of plaintiff's home is not appropriate for the young child.

13. The defendant has a small apartment that does have a separate bedroom for Joshua. The defendant did commit certain acts of infidelity that have created a chasm between the parties that cannot be breached at this time. Nevertheless, the defendant has made every effort to cooperate with the father of her child to reduce the arguments and the violent verbal confrontations between the parties.

14. The defendant has made extraordinary efforts to involve her child with other children in her neighborhood and to take her child on regular visits to educational and recreational activities. There is some evidence that the actions of certain friends of the defendant may be distressing to the child and this stress has been communicated to the father of the child.

15. There is some evidence that the defendant has distressed her son with hints or misunderstandings that she would leave this area and live far away from Joshua's father. All of this is denied by the defendant, who stated to the Court that she liked where she lived, she liked her job and she wanted to stay in this area and has no plans to move from here.

16. There is a conflict between the parties concerning the religious training of Joshua Phelps. Both parties agree that Joshua comes from a mixed marriage of Christian and Jew and both parties agree that that common heritage should be preserved and encouraged in the education of this young child. The disagreement between the parties is reflected in that the defendant mother wants Joshua raised as a Jew with considerable education and understanding of his Christian heritage. The plaintiff father prefers that the child be raised as a child in a Judaeo-Christian [sic] religious training.

17. The parties have serious differences concerning the education of young Joshua. The plaintiff father wants Joshua to attend the Carolina Friends School in Chapel Hill. This school is a Quaker oriented and supported, multi-ethnic private school. It is a school that is fairly unstructured and looks to the individual child's needs rather than a program oriented system. The defendant mother is very interested in raising Joshua in the Durham County Public Schools because she feels that the system is more structured, that it is more racially balanced and that it will be able to deal with the special needs of her child more effectively should that need occur.

Additional facts will be addressed as necessary to the understanding of a particular issue.

Defendant first argues that the Court of Appeals erred in holding that a trial court is prohibited from considering the respective age of the parents in determining the custody of a child. The Court of Appeals stated in its opinion that it appeared "that age difference was one of the fundamental bases for the trial court's custody award" and that there is "no acceptable basis in law or reason for awarding custody simply to the youngest parent or party in a custody action." Phelps v. Phelps, 109 N.C.App. 242, 247, 426 S.E.2d 294, 297 (1993). We conclude that the Court of Appeals erred in determining that the trial court considered plaintiff's age as a "fundamental" basis for its decision and that the evidence does not support the Court of Appeals' decision that the trial court awarded custody to the defendant because she was the youngest parent.

At the conclusion of the custody hearing, Judge Hunt spent approximately eleven transcript pages explaining to the parties her decision to grant sole custody to defendant and factors that she had considered in reaching that decision. In the middle of this announcement, she made the following statement:

One of the reasons, Mr. Phelps, I had to look at, there is just no way--as my eye doctor told me the other day, you know, time is working on your eye, lady. He didn't say age. He said time. But I think you have to take that into consideration. This is a young child, and you are not a young man, and I think it is important that this child be raised in one home. And that that home has to be the one that is apparently going to last the longest.

Other than the brief mention of defendant's and plaintiff's respective ages in the eleven-page written order, the above oral statement is the only mention of age that Judge Hunt made during the lengthy oral and written explanations of her decision. We do not believe that, in light of all the other reasons given for her decision, the above brief references to the ages of the parties indicates that a "fundamental" basis of Judge Hunt's decision was plaintiff's age.

Nor do we conclude that Judge Hunt in fact "classified" plaintiff according to his age in violation of his equal protection rights. We note that while the Court of Appeals cited no authority for its decision that Judge Hunt's comment about age was impermissible, both parties have addressed this as a constitutional equal protection issue. However, "[t]he equal protection guarantee ... governs all governmental actions which classify individuals for different benefits or burdens under the law." John E. Nowak & Ronald D. Rotunda, Constitutional Law § 14.1, at 568 (4th ed. 1991) (emphasis added). "The equal protection clause of the Fourteenth Amendment prevents a state from making arbitrary classifications which result in invidious discrimination." State v. Tatum, 291 N.C. 73, 83, 229 S.E.2d 562, 568 (1976). Without some type of "classification" of an individual, there is no equal protection claim. See Zablocki v. Redhail, 434 U.S. 374, 391, 98 S.Ct. 673, 683-84, 54 L.Ed.2d 618, 634 (1978) (Stewart, J., concurring) ("The Equal Protection Clause deals not with substantive rights or freedoms but with invidiously discriminatory classifications.").

There are three ways to establish that an unconstitutional "classification," in violation of an individual's equal protection rights, has occurred. First, a statute may classify people for different treatment on its face. See Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664, 666 (1880). Second, a law or statute may classify people through its application, such as when governmental officials administer the law with different degrees of severity to different...