Wellons v. White

• Decision Date: 20 August 2013
• Docket Number: No. COA12–1205.,COA12–1205.
• Citation: 748 S.E.2d 709
• Court: North Carolina Court of Appeals
• Parties: Frances Leanne WELLONS, Plaintiff, v. William Zachary WHITE, Defendant, v. John F. Wellons, and wife, Bobbie B. Wellons, Intervenors.

748 S.E.2d 709

Frances Leanne WELLONS, Plaintiff,

v.William Zachary WHITE, Defendant,

v.John F. Wellons, and wife, Bobbie B. Wellons, Intervenors.

No. COA12–1205.

Court of Appeals of North Carolina.

Aug. 20, 2013.

Appeal by defendant from order entered 5 July 2012 by Judge Jeffrey Evan Noecker in New Hanover County District Court. Heard in the Court of Appeals 27 February 2013.

Rice Law, PLLC, Wilmington, by Richard Forest Kern and Mark Spencer Williams, for defendant-appellant.

J. Albert Clyburn for intervenors-appellees.

HUNTER, JR., ROBERT N., Judge.

William Zachary White (“Mr.White”) appeals a trial court order: (i) denying his motion to dismiss; (ii) holding him in civil contempt; (iii) granting grandparent visitation; and (iv) rejecting his constitutional challenge. Upon review, we affirm in part, dismiss in part, and reverse as to contempt.

I. Facts & Procedural History

On 24 July 2003, Mr. White and Frances Leanne Wellons (“Ms.Wellons”) married. Mr. White served as a Marine Corps Lance Corporal. On 4 April 2005, the couple had a son (“the child”). Given Mr. White's active military service, the child lived with Ms. Wellons in Alamance County immediately after his birth. In June 2005, Ms. Wellons and the child moved to New Hanover County to live with Ms. Wellons' parents, John Wellons and Bobbie Wellons (the “Grandparents”).¹

On 13 December 2005, Mr. White and Ms. Wellons divorced. Mr. White's mother acted as his attorney-in-fact for the divorce proceedings because Mr. White was serving in Iraq. After the divorce, the child continued to live with Ms. Wellons at the Grandparents' New Hanover County home.

A. 4 April 2006 Child Custody Order

On 27 January 2006, Ms. Wellons filed a complaint against Mr. White in New Hanover County District Court seeking sole custody and child support. The complaint noted that Mr. White still served in Iraq. A few weeks after Ms. Wellons filed the complaint, Mr. White returned to the United States and lived at the barracks of Camp Lejeune in Jacksonville.

On 4 April 2006, the district court entered an order granting Ms. Wellons and Mr. White “joint legal custody of the minor child.” Since Mr. White still lived in the Marine Corps barracks, the district court determined he had no “suitable residence to have visits with the child overnight.” ² Therefore, the district court gave Ms. Wellons primary custody. Because Mr. White planned to leave the Marine Corps in December 2006, the district court allowed Mr. White to gain increased custody when he “has set up a residence suitable to care for the minor child.” The district court also ordered Mr. White to pay $820 per month in child support. Lastly, the district court determined the order resolved all pending issues between the parties. After this order, the child continued to live with Ms. Wellons at the Grandparents' home in New Hanover County.

B. 30 November 2006 Temporary Child Custody Order

On 3 August 2006, the Grandparents filed a motion to intervene, seeking “temporary custody of the minor child.” SeeN.C. Gen.Stat. § 50–13.1(a) (2011) (“Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child.”).

The Grandparents first argued they already had de facto custody of the child because he had resided at their home since June 2005. The Grandparents further contended “neither [Ms. Wellons] nor [Mr. White] are fit and proper persons to have the primary care of the minor child.” Specifically, they alleged: (i) Ms. Wellons was currently receiving inpatient treatment for mental illness; (ii) Mr. White “ha[d] not yet exercised visitation alone with the minor child without the aid or assistance of either his mother or girlfriend since the entry of the April 2006 Custody Order;” (iii) Mr. White cannot provide a “stable home environment” for the child; and (iv) Mr. White willfully withheld custody from Ms. Wellons.

On 9 August 2006, Mr. White moved to dismiss the Grandparents' motion because they failed to allege sufficient facts supporting their claim. SeeN.C. R. Civ. P. 12(b)(6). Mr. White also argued he never acted inconsistently with his constitutionally-protected parental status.

Although a hearing was held in August 2006, the district court did not enter a written temporary child custody order until 30 November 2006. The order stated the Grandparents “have been allowed to intervene in this action pursuant to Rule 24 of the North Carolina Rules of Civil Procedure.” ³

The order also granted Mr. White primary custody and suspended his monthly child support payments. Still, it granted Ms. Wellons visitation every other weekend at the Grandparents' New Hanover County home. The order elaborated that if Ms. Wellons did not exercise weekend visitation, the Grandparents could still exercise visitation every other weekend at their home. The order required Mr. White, Ms. Wellons, and the Grandparents to select an exchange “point equidistant between the residences of the parties.”

After this order, the child first lived with Mr. White and his new girlfriend Christina Ross (“Ms.Ross”) in Jacksonville.⁴ The record does not indicate whether Mr. White still lived in the Marine Corps barracks at this time. Mr. White left the Marine Corps on 9 December 2006 and moved to Greensboro with Ms. Ross and the child.

C. 15 December 2006 Consent Custody Order

On 14 December 2006, Ms. Wellons filed a motion for emergency custody because the previous orders did not establish a holiday visitation schedule. Ms. Wellons argued that given her animosity with Mr. White's girlfriend, the parties would not otherwise agree to a holiday schedule.

This hostility arose from an incident on 10 December 2006. Ms. Wellons still lived with her parents and exercised visitation at the Grandparents' home. On 10 December 2006, Mr. White sent Ms. Ross to pick up the child at a scheduled custody exchange. Ms. Wellons arrived late to the exchange because the child had napped longer than expected.⁵ When Ms. Wellons got to the exchange place, Ms. Ross yelled at Ms. Wellons for her tardiness. The conflict escalated, and Ms. Wellons asked a gas station attendant to call 911.

On 15 December 2006, the district court granted Ms. Wellons and the Grandparents extended holiday visitation. The district court also required Ms. Ross not to attend any more custody exchanges. Finally, the district court again retained ongoing jurisdiction over the case.

D. 28 December 2007 Child Custody Order

On 6 March 2007, Mr. White filed a motion in the cause and a showing of changed circumstances seeking sole custody and child support from Ms. Wellons. ⁶SeeN.C. Gen.Stat. § 50–13.7(a) (2011). On 21 May 2007, Ms. Wellons filed a reply asking the court to: (i) dismiss and deny Mr. White's request; (ii) return primary custody to her; (iii) reinstate Mr. White's child support obligations; and (iv) grant her attorneys' fees. The matter came on for hearing during the 13 September, 14 September, and 2 November 2007 Family Court Sessions of New Hanover County District Court. On 28 December 2007, the district court issued a custody order superseding all previous orders. The order made the following factual findings.

Since the 30 November 2006 order, Ms. Wellons had lived at her parents' home in New Hanover County. She did not pay rent or utilities. For 26 days from 12 July 2006 to 7 August 2006, Ms. Wellons was involuntarily committed by her parents for mental illness at The Oaks at New Hanover Regional Medical Center. After her release, she did not take her medication or comply with recommended follow-up treatment. On 15 August 2006, she also tested positive for marijuana in a drug screen at a follow-up hospital visit.

Ms. Wellons was again involuntarily committed for nine days from 22 August 2006 to 31 August 2006 at Cherry Hospital in Goldsboro. During that time, Dr. Jerry Sloan, a psychologist at Cherry Hospital, diagnosed Ms. Wellons with “Bipolar 1 Disorder, single manic episode, severe, with psychotic features; Mixed Personality Disorder, antisocial and hysterical traits; and possibly a brief psychotic disorder.” Dr. Sloan determined “[Ms. Wellons] does not appreciate the full extent of her symptoms that caused her hospitalization.”

The district court also examined certain photographs Mr. White offered into evidence. These photographs, posted on various websites, showed Ms. Wellons at bars on dates when she had custody of the child. The record does not indicate whether the Grandparents supervised the child on these dates. Ms. Wellons contended the photographs were part of her job in nightlife marketing; however, the district court determined that “due to the number of pictures, the various activities that were depicted in the pictures, and the pictures being found at websites other than [her company's website],” Ms. Wellons' explanation was not credible.

The district court further noted that Ms. Wellons was convicted of DWI on 27 April 2006. Although the DMV revoked her driver's license after her DWI conviction, she continued to drive with the child as a passenger.

The district court then described how Mr. White lived with his girlfriend in a safe neighborhood where the child had his own bedroom. Mr. White had enrolled in Guilford Technical Community College and lived near his extended family. His family cared for the child while he was at school and work.⁷ The district court also mentioned that Ms. Ross had full-time employment.

At the 13 September 2007 hearing, the Grandparents dismissed their initial 3 August 2006 request for primary custody. Instead, they told the court they now only sought “grandparent visitation privileges with the minor child.” At the hearing, Mr. White, Ms. Wellons, and the Grandparents also stipulated that “a material change in circumstances had occurred as a result of the Plaintiff's involuntary commitments.”

Based on its factual findings, ...