Routten v. Routten
| Decision Date | 20 November 2018 |
| Docket Number | No. COA17-1360,COA17-1360 |
| Citation | 822 S.E.2d 436,262 N.C.App. 436 |
| Court | North Carolina Court of Appeals |
| Parties | John Tyler ROUTTEN, Plaintiff, v. Kelly Georgene ROUTTEN, Defendant. |
Jill Schnabel Jackson, Raleigh, for plaintiff-appellee.
R. Daniel Gibson, for defendant-appellant.
Kelly Georgene Routten ("Defendant") appeals from orders entered on 4 April 2017 and several other interim and temporary orders. We affirm in part, vacate in part, and remand.
John Tyler Routten ("Plaintiff") and Defendant were married on 23 March 2002 and separated from each other on 26 July 2014. Their union produced two children, a daughter and a son. The daughter, "Hanna," was born 2 June 2004. The son, "Billy," was born 17 July 2012.
On 21 July 2014, Plaintiff allegedly assaulted Defendant by pushing her onto the floor of their home. Defendant was granted an ex parte domestic violence protective order ("DVPO") against Plaintiff and was granted temporary custody of the parties' children on 25 July 2014. On 4 August 2014, Plaintiff filed a complaint ("the Complaint") against Defendant for child custody, equitable distribution, and a motion for psychiatric evaluation and psychological testing.
On 13 August 2014, Defendant voluntarily dismissed the DVPO. That same day the parties entered into a memorandum of judgment/order, which established a temporary custody schedule for the children and a temporary child support and post-separation support arrangement. Defendant purportedly did not receive a copy of the Complaint until after she had dismissed the DVPO and signed the memorandum of judgment/order. Defendant filed her answer to the Complaint on 6 October 2014 and asserted several counterclaims, including claims for alimony, child custody, child support, and attorney's fees. The parties participated in mediation and the trial court entered an equitable distribution order by consent of the parties on 29 April 2015.
On 21 September 2015, trial began on the parties' claims for permanent child custody, permanent child support, and Defendant's counterclaims for alimony and attorney's fees. At the conclusion of the trial on 24 September, the trial judge indicated Defendant needed to submit to a neuropsychological evaluation before he could decide permanent child custody.
On 21 December 2015, the trial court entered a custody and child support order, which established a temporary custody arrangement and ordered Defendant to "take whatever steps are necessary to obtain a complete neuropsychological evaluation no later than June 15, 2016." The 21 December 2015 order also provided that "[t]his case shall be set for a 3-hour custody review hearing on April 5, 2016" and "for a 6.5-hour subsequent hearing for review of custody and entry of final/permanent orders in July or August of 2016, once those calendars are available for scheduling trial dates." On 5 April 2016, the trial court conducted an in-chambers conference with the parties' counsel to determine the status of Defendant's neuropsychological evaluation.
On 27 April 2016, the trial court entered an order scheduling a three-hour hearing on 4 August 2018 to hear evidence relating to Defendant's neuropsychological evaluation and evidence relating to the best interests of the children. The 27 April 2016 order also decreed:
On 29 July 2016, Defendant filed a motion for a continuance and protective order in which she alleged that she had complied with the trial court's prior orders to obtain a neuropsychological evaluation. Defendant's 29 July 2016 motion was mailed to Plaintiff's counsel five days prior to the scheduled 4 August 2016 final custody hearing. The motion did not contain the date the neuropsychological evaluation was performed or the name and address of the provider who had performed the evaluation.
The final custody hearing took place on 4 August 2016. At the outset of the hearing, Defendant's trial counsel disclosed for the first time that Duke Clinical Neuropsychology Service had performed a neuropsychological evaluation of Defendant on 21 April 2016. During the hearing, Defendant admitted: (1) she had not disclosed to Plaintiff's counsel the 21 April 2016 evaluation by Duke prior to the 4 August 2016 hearing; (2) she had notified Plaintiff's counsel that Pinehurst Neuropsychology, not Duke, would perform the evaluation; and (3) she had filed motions in June and July 2016 suggesting that a neuropsychological evaluation had not yet been performed.
At the conclusion of the hearing, the trial court transferred sole physical custody of the children to Plaintiff pursuant to a memorandum of order/judgment until a complete permanent custody order could be drafted and entered. The trial court entered a permanent child custody order on 9 December 2016 and an order for alimony and attorney's fees. On 9 and 13 December 2016, Defendant filed pro se motions for a new trial and relief from judgment pursuant to Rules 59 and 60 of the North Carolina Rules of Civil Procedure.
Following a series of subpoenas filed by Defendant following the trial court's final custody hearing on 4 August 2016, Plaintiff filed a motion for a temporary restraining order and preliminary injunction on 13 December 2016. Plaintiff's motion asserted, in part:
The trial court granted Plaintiff a temporary restraining order on 13 December 2016. The trial court conducted a hearing on Plaintiff's preliminary injunction motion on 3 January 2017. At the hearing, the trial court ordered Defendant to calendar her pending Rule 59 and 60 motions within ten days for the next available court dates. Defendant calendared the hearing for the Rule 59 and 60 motions for 1 March 2017. On 25 January 2017, the trial court entered an order granting Plaintiff's preliminary injunction. The trial court's order decreed, in relevant part: "Defendant is hereby restrained and prohibited from requesting issuance of a subpoena in this action by the Wake County Clerk of Superior Court or by any court personnel other than the assigned family court judge."
On 20 February 2017, Defendant filed amended Rule 59 and Rule 60 motions. The trial court concluded Defendant was entitled to the entry of a new order containing additional findings of fact and conclusions of law. On 6 March 2017, the trial court entered an amended permanent child custody order ("the Amended Order"). The Amended Order, in part, granted Plaintiff sole legal custody and physical custody, denied Defendant visitation with the children, but allowed Plaintiff to "permit custodial time between the children and Defendant within his sole discretion" and allowed Defendant two telephone calls per week with the children.
Defendant appeals the trial court's Amended Order and several other "related interim or temporary orders and ancillary orders."
We note Defendant initially chose to prosecute her appeal pro se . This Court provided the opportunity for this case to be included in the North Carolina Appellate Pro Bono Program. Following this Court's inquiry, Defendant accepted representation by a pro bono attorney under this Program. Upon Defendant's acceptance of pro bono representation, this Court ordered the parties to file supplemental briefs by order dated 23 August 2018.
Jurisdiction lies in this Court over an appeal of a final judgment regarding child custody in a civil district court action pursuant to N.C. Gen. Stat. §§ 7A-27(b)(2) (2017) and 50-19.1 (2017).
In a child custody case, the standard of review is "whether there was competent evidence to support the trial court's findings of fact[.]" Barker v. Barker , 228 N.C. App. 362, 364, 745 S.E.2d 910, 912 (2013) (quoting Shear v. Stevens Bldg. Co. , 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992) ). Peters v. Pennington , 210 N.C. App. 1, 12-13, 707 S.E.2d 724, 733 (2011) (quoting State v. Smith , 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) ) (citations omitted). "Whether [the trial court's] findings of fact support [its] conclusions of law is reviewable de novo ." Hall v. Hall , 188 N.C. App. 527, 530, 655 S.E.2d 901, 904 (2008) (alteration in original) (citation omitted).
"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." Davis v. Kelly , 147 N.C. App. 102, 106, 554 S.E.2d 402, 405 (2001) (citation omitted).
On appeal, Defendant contends: (1) the trial court abused its discretion by ordering Defendant to submit to a neuropsychological evaluation; (2) the...
To continue reading
Request your trial
-
Huml v. Huml
...first note that after briefs in this case were filed and the case was heard, this Court issued an opinion, Routten v. Routten , ––– N.C. App. ––––, 822 S.E.2d 436 (2018) (COA17-1360), which appears to establish a different standard for denial of visitation to a parent than prescribed by wel......
-
In re J.N.
...based presumption," Routten v. Routten , 374 N.C. 571, 576, 843 S.E.2d 154 (quoting Routten v. Routten , 262 N.C. App. 436, 459, 822 S.E.2d 436 (2018) (Inman, J., concurring in part)), cert. denied , ––– U.S. ––––, 141 S. Ct. 958, 208 L.Ed.2d 495 (2020), reh'g denied , ––– U.S. ––––, 141 S.......
-
Routten v. Routten
...custodial parent, to exercise discretion in allowing visitation between defendant and the children. See generally Routten v. Routten , 262 N.C. App. 436, 822 S.E.2d 436 (2018).In determining these two issues, the Court of Appeals majority agreed with defendant's contention that "the trial c......
- Rea v. Rea