Routten v. Routten , 262 N.C. App. 436 ( 2018 )


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  •               IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA17-1360
    Filed: 20 November 2018
    Wake County, No. 14 CVD 10295
    JOHN TYLER ROUTTEN, Plaintiff,
    v.
    KELLY GEORGENE ROUTTEN, Defendant.
    Appeal by defendant from orders entered by Judge Michael Denning in Wake
    County District Court. Heard in the Court of Appeals 20 September 2018.
    Jill Schnabel Jackson for plaintiff-appellee.
    R. Daniel Gibson for defendant-appellant.
    TYSON, Judge.
    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.
    I. Background
    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:
    2. Defendant shall take whatever steps are necessary to
    obtain a complete neuropsychological evaluation no later
    than June 15, 2016. . . .
    3. Defendant shall notify Plaintiff’s counsel in writing no
    later than May 15, 2016, of the name and address of the
    provider who shall perform the neuropsychological
    evaluation of Defendant.
    4.   Any      written   report   resulting   from    the
    neuropsychological evaluation shall be produced to
    Plaintiff’s counsel no later than ten (10) days prior to
    August 4th, 2016. . . .
    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:
    17. The subpoenas issued by Defendant seek the
    production of documents related to child custody issues.
    Child custody has been fully litigated and there are no
    hearings scheduled (or motions pending) that relate to
    child custody.
    18. Defendant is representing herself pro se and appears
    to be using the subpoena process through the clerk’s office
    to (improperly) attempt to continue litigating a claim that
    has been fully and finally litigated.
    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.
    II. Jurisdiction
    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).
    III. Standard of Review
    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)). “[T]he trial court’s findings of fact
    are conclusive on appeal if supported by substantial evidence, even if there is
    sufficient evidence to support contrary findings. ‘Substantial evidence is such
    relevant evidence as a reasonable mind might accept as adequate to support a
    conclusion.’ ” 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).
    IV. Issues
    On appeal, Defendant contends: (1) the trial court abused its discretion by
    ordering Defendant to submit to a neuropsychological evaluation; (2) the trial court
    abused its discretion by delegating its authority to determine Defendant’s visitation
    rights to Plaintiff; (3) the trial court infringed Defendant’s constitutionally protected
    parental rights by awarding sole custody and visitation rights to Plaintiff; (4) the trial
    court violated N.C. Gen. Stat. § 50-13.2(e)(3) (2017) by only granting Defendant
    telephone visitation; (5) the trial court entered numerous findings not supported by
    competent evidence; (6) the trial court infringed Defendant’s procedural due process
    rights; (7) the trial court abused its discretion in calculating the amount of alimony;
    (8) the trial court abused its discretion in denying her claim for attorney’s fees; and
    (9) the trial court abused its discretion with respect to her originally filed Rule 59
    motion and three contempt motions at a hearing on 1 March 2017.
    V. Analysis
    A. Neuropsychological Evaluation
    Defendant argues the trial court exceeded its authority under Rule 35 of the
    North Carolina Rules of Civil Procedure by ordering her to submit to a
    neuropsychological evaluation by a non-physician. Rule 35 states that a court “may
    order [a] party to submit to a physical or mental examination by a physician” when
    that party’s physical or mental condition is in controversy. N.C. Gen. Stat. § 1A-1,
    Rule 35 (2017). In Defendant’s pro se briefs, she does not refer to a specific order she
    asserts was erroneously entered. In Defendant’s supplemental pro bono brief, she
    specifically argues the trial court erred, or abused its discretion, by entering an order
    on 3 October 2014 requiring her to submit to an examination by a neuropsychologist.
    The trial court’s 3 October 2014 order required both parties to submit to
    psychological,   not   neuropsychological,   evaluations    by    Dr.   Kuzyszyn-Jones.
    Defendant did not include the 3 October 2014 order in her notice of appeal listing the
    various orders of the trial court she appealed from. “Proper notice of appeal is a
    jurisdiction requirement that may not be waived.” Chee v. Estes, 
    117 N.C. App. 450
    ,
    452, 
    451 S.E.2d 349
    , 350 (1994). “[T]he appellate court obtains jurisdiction only over
    the ruling specifically designated in the notice of appeal as the ones from which the
    appeal is being taken.” 
    Id. Defendant’s arguments
    concerning the requirement of the
    3 October 2014 order to obtain a psychological evaluation by Dr. Kuzyszyn-Jones are
    waived and dismissed. See id.; N.C. R. App. P. 3(d).
    B. Father’s Discretion over Visitation
    Defendant also argues the trial court violated the statute and abused its
    discretion by granting Plaintiff the sole authority to “permit custodial time between
    the children and Defendant” in the Amended Order. Under N.C. Gen. Stat. § 50-
    13.1(a), “custody” includes “custody or visitation or both.” N.C. Gen. Stat. § 50-13.1(a)
    (2017).
    The trial court’s Amended Order concluded “It is not in the children’s best
    interests to have visitation with Defendant.” The Amended Order then provides:
    2. Physical Custody. The minor children shall reside with
    Plaintiff. Plaintiff may permit custodial time between the
    children and Defendant within his sole discretion, taking
    into account the recommendations of [Hanna’s] counselor
    as to frequency, location, duration, and any other
    restrictions deemed appropriate by the counselor for
    permitting visitation between [Hanna] and [Defendant].
    (Emphasis supplied).
    Defendant cites In re Stancil, 
    10 N.C. App. 545
    , 
    179 S.E.2d 844
    (1971), in
    support of her argument. Stancil involved a custody dispute between a child’s mother
    and the paternal grandmother. 
    Id. at 546-47,
    179 S.E.2d at 845-46. In the trial court’s
    custody award to the grandmother, it granted the grandmother “the right to
    determine the times, places and conditions under which she could visit with [the
    child].” 
    Id. at 550,
    179 S.E.2d at 848. This Court stated:
    When the question of visitation rights of a parent arises,
    the court should determine from the evidence presented
    whether the parent by some conduct has forfeited the right
    or whether the exercise of the right would be detrimental
    to the best interest and welfare of the child. If the court
    finds that the parent has by conduct forfeited the right or
    if the court finds that the exercise of the right would be
    detrimental to the best interest and welfare of the child, the
    court may, in its discretion, deny a parent the right of
    visitation with, or access to, his or her child; but the court
    may not delegate this authority to the custodian.
    
    Id. at 552,
    179 S.E.2d at 849 (emphasis supplied). Here, although the trial court had
    determined, without finding Defendant had forfeited her parental visitation rights,
    that it was “not in the children’s best interests to have visitation with Defendant.”
    The trial court contradicted its finding and conclusion, the above rule stated in
    Stancil, and delegated its judicial authority to Plaintiff to determine Defendant’s
    visitation.   As with the trial court in Stancil, the trial court delegated the
    determination of Defendant’s visitation with her children to Plaintiff, at “his sole
    discretion.”   The trial court erred and abused its discretion by delegating the
    determination of Defendant’s visitation rights with her children to Plaintiff. 
    Id. The trial
    court cannot delegate its judicial authority to award or deny Defendant’s
    visitation rights to Plaintiff or a third-party. See id.; Brewington v. Serrato, 77 N.C.
    App. 726, 733, 
    336 S.E.2d 444
    , 449 (1985) (“[T]he award of visitation rights is a
    judicial function, which the trial court may not delegate to a third-party” (internal
    quotation marks and citation omitted)).
    The decretal portion of the Amended Order is vacated and the matter
    remanded for the trial court to determine an appropriate custodial and visitation
    schedule consistent with this Court’s opinion in Stancil. See Stancil, 10 N.C. App. at
    
    552, 179 S.E.2d at 849
    .
    C. Electronic Visitation
    Defendant also argues the trial court abused its discretion by allowing her only
    electronic “visitation,” specifically, two telephone calls per week with the children.
    Defendant raises her electronic visitation arguments for the first time on appeal.
    Based upon our holding to vacate the custodial and visitation schedule from the
    Amended Order and remand for additional findings and conclusions, it is unnecessary
    to address the merits of Defendant’s arguments concerning electronic visitation.
    However, the trial court is instructed on remand that: “electronic
    communication with a minor child may be used to supplement visitation with the
    child. Electronic communication may not be used as a replacement or substitution
    for custody or visitation.” N.C. Gen. Stat. § 50-13.2(e) (2017) (emphasis supplied).
    “Electronic communication” is defined as “contact, other than face-to-face
    contact, facilitated by electronic means, such as by telephone, electronic mail, instant
    messaging, video teleconferencing, wired or wireless technologies by Internet, or
    other medium of communication.” 
    Id. If on
    remand, the trial court does not determine
    Defendant is unfit or engaged in conduct inconsistent with her parental rights, the
    trial court may only order electronic visitation as a supplement to Defendant’s
    visitation rights and not as a replacement for Defendant’s visitation rights. See id.;
    In re T.R.T., 
    225 N.C. App. 567
    , 573-74, 
    737 S.E.2d 823
    , 828 (2013).
    D. Constitutionally Protected Status as Parent
    Defendant contends the trial court violated her constitutionally protected
    interest as parent by awarding sole legal and physical custody of the children to
    Plaintiff without making a finding that she was unfit or had acted inconsistently with
    her constitutionally protected status as parent. We agree.
    The Amended Order purported to deny Defendant all custody and visitation
    with her children, effectively terminating her parental rights.
    The Supreme Court of North Carolina held in Owenby v. Young, that:
    [T]he Due Process Clause of the Fourteenth Amendment
    ensures that the government does not impermissibly
    infringe upon a natural parent’s paramount right to
    custody solely to obtain a better result for the child. [Adams
    v. Tessener, 
    354 N.C. 57
    , 62, 
    550 S.E.2d 499
    , 503 (2001)
    (citing Troxel v. Granville, 
    530 U.S. 57
    , 72-73, 
    147 L. Ed. 2d
    49, 61 (2000))]. Until, and unless, the movant
    establishes by clear and convincing evidence that a natural
    parent’s behavior, viewed cumulatively, has been
    inconsistent with his or her protected status, the “best
    interest of the child” test is simply not implicated. In other
    words, the trial court may employ the “best interest of the
    child” test only when the movant first shows, by clear and
    convincing evidence, that the natural parent has forfeited
    his or her constitutionally protected status.
    
    357 N.C. 142
    , 148, 
    579 S.E.2d 264
    , 268 (2003). Our Supreme Court also recognized
    in Price v. Howard, that:
    A natural parent’s constitutionally protected paramount
    interest in the companionship, custody, care, and control of
    his or her child is a counterpart of the parental
    responsibilities the parent has assumed and is based on a
    presumption that he or she will act in the best interest of
    the child.
    
    346 N.C. 68
    , 79, 
    484 S.E.2d 528
    , 534 (1997) (citations omitted).           Each parent’s
    constitutional rights are equal and individually protected. See id.; Quilloin v. Walcott,
    
    434 U.S. 246
    , 255, 
    54 L. Ed. 2d 511
    , 519 (1978) (“We have recognized on numerous
    occasions that the relationship between parent and child is constitutionally
    protected.”).
    Before denying a parent all custodial and visitation rights with his or her
    children, the trial court: (1) must first make a written finding that the parent was
    unfit or had engaged in conduct inconsistent with his protected status as a parent,
    before applying the best interests of the child test; and (2) make these findings based
    upon clear, cogent, and convincing evidence. Moore v. Moore, 
    160 N.C. App. 569
    , 573-
    74, 
    584 S.E.2d 74
    , 76 (2003); see Petersen v. Rogers, 
    337 N.C. 397
    , 403-404, 
    445 S.E.2d 901
    , 905 (1994) (“[A]bsent a finding that parents (i) are unfit or (ii) have neglected
    the welfare of their children, the constitutionally-protected paramount right of
    parents to custody, care, and control of their children must prevail.”).
    Based upon the trial court’s failure to find Defendant is either unfit or has
    acted inconsistently with her constitutionally protected status as a parent, we vacate
    the trial court’s conclusions of law and custody portions of its order. If on remand,
    the trial court purports to deny Defendant all custody and visitation or contact with
    her children, the trial court must make the constitutionally required findings based
    upon clear, cogent, and convincing evidence. 
    Owenby, 357 N.C. at 148
    , 579 S.E.2d at
    268; 
    Moore, 160 N.C. App. at 573-74
    , 584 S.E.2d at 76.
    The dissenting opinion claims this holding “diverges from established
    precedent” and “recognizes a new constitutional right” citing Respess v. Respess, 
    232 N.C. App. 611
    , 
    754 S.E.2d 691
    (2014).        However, the dissenting opinion either
    overlooks or disregards the precedents set by the Supreme Court of the United States,
    the Supreme Court of North Carolina, and this Court, including In re Civil Penalty,
    
    324 N.C. 373
    , 
    379 S.E.2d 30
    (1989).
    E. In re Civil Penalty
    The Supreme Court of North Carolina issued a decision in Lanier, Comr. of
    Insurance v. Vines, 
    274 N.C. 486
    , 
    164 S.E.2d 161
    (1968). Subsequently, this Court
    interpreted the holding of Lanier in N.C. Private Protective Servs. Bd. v. Gray, Inc.,
    
    87 N.C. App. 143
    , 
    360 S.E.2d 135
    (1987). A later decision from this Court found Gray
    had “contradict[ed] the express language, rationale and result of Lanier,” and refused
    to follow that decision. In re Civil Penalty, 
    92 N.C. App. 1
    , 13-14, 
    373 S.E.2d 572
    , 579
    (1988). Upon review, the Supreme Court concluded “that the effect of the majority’s
    decision . . . was to overrule Gray,” and rejected this Court’s attempt to do so. In re
    Civil 
    Penalty, 324 N.C. at 384
    , 379 S.E.2d at 37. “Where a panel of the Court of
    Appeals has decided the same issue, albeit in a different case, a subsequent panel of
    the same court is bound by that precedent, unless it has been overturned by a higher
    court.” 
    Id. This sequence
    of events in In re Civil Penalty is precisely what happened after
    this Court’s unanimous decision in Moore. The Supreme Court issued a decision in
    Owenby, holding that “[u]ntil, and unless, the movant establishes by clear and
    convincing evidence that a natural parent’s behavior, viewed cumulatively, has been
    inconsistent with his or her protected status, the ‘best interest of the child’ test is
    simply not implicated.” 
    Owenby, 357 N.C. at 148
    , 579 S.E.2d at 268. The Court’s
    unanimous decision in Moore, applied that precise result, holding: “[o]nce conduct
    that is inconsistent with a parent’s protected status is proven, the ‘best interest of the
    child’ test is 
    applied.” 160 N.C. App. at 573
    , 587 S.E.2d at 76. No further appellate
    review of Moore occurred.
    As occurred In re Civil Penalty, “[s]everal pages of the [Respess] opinion were
    devoted to a detailed rejection of the [Moore] panel’s interpretation of [Owenby].” In
    re Civil 
    Penalty, 324 N.C. at 383-84
    , 379 S.E.2d at 36. The panel in Respess violated
    our Supreme Court’s holding of In re Civil Penalty when it refused to follow the
    unanimous binding ten-year precedent set forth in Moore. See In re Civil 
    Penalty, 324 N.C. at 384
    , 379 S.E.2d at 37; 
    Respess, 232 N.C. App. at 624-25
    , 754 S.E.2d at 700-
    01.
    Further, numerous other precedential cases, also decided prior to Respess,
    have cited to Moore for the holding at issue, contrary to the assertion in the dissenting
    opinion. See, e.g., Woodring v. Woodring, 
    227 N.C. App. 638
    , 644, 
    745 S.E.2d 13
    , 19
    (2013) (“In the absence of extraordinary circumstances, a parent should not be denied
    the right of visitation.” (quoting Moore, 160 N.C. App. at 
    573, 587 S.E.2d at 76
    ));
    Maxwell v. Maxwell, 
    212 N.C. App. 614
    , 622-23, 
    713 S.E.2d 489
    , 495 (2011) (“we
    reverse and remand this matter for further findings of fact as to Plaintiff’s fitness as
    a parent or the best interest of the minor children” (citing 
    Moore, 160 N.C. App. at 574
    , 587 S.E.2d at 77)); Slawek v. Slawek, No. COA09-1682, 
    2010 WL 3220668
    , at *6
    n.4 (N.C. Ct. App. Aug. 17, 2010) (unpublished) (“To declare a parent unfit for
    visitation, there must be ‘clear, cogent, and convincing evidence.’ ” (quoting Moore,
    160 N.C. App. at 
    573, 587 S.E.2d at 76
    )); Mooney v. Mooney, No. COA08-998, 
    2009 WL 1383395
    , at *5 (N.C. Ct. App. May 19, 2009) (unpublished) (“A trial court may
    only deny visitation under the ‘best interest’ prong of N.C.G.S. § 50-13.5(i) ‘[o]nce
    conduct that is inconsistent with a parent’s protected status is proven.’ ” (quoting
    Moore, 160 N.C. App. at 
    573, 587 S.E.2d at 76
    )); In re E.T., No. COA05-752, 
    2006 WL 389731
    , at *3 (N.C. Ct. App. Feb. 21, 2006) (unpublished) (“The trial judge, prior to
    denying a parent the right of reasonable visitation, shall make a written finding of
    fact that the parent being denied visitation rights is an unfit person to visit the child
    or that such visitation rights are not in the best interest of the child.” (quoting 
    Moore, 160 N.C. App. at 572
    , 587 S.E.2d at 76)); In re M.C., No. COA03-661, 
    2004 WL 2152188
    , at *4 (N.C. Ct. App. Sep. 21, 2004) (unpublished) (“The trial court is
    required to make a finding that a natural parent is unfit before denying custody to
    that parent.” (citing Moore, 
    160 N.C. App. 569
    , 
    587 S.E.2d 74
    )); David N. v. Jason N.,
    
    164 N.C. App. 687
    , 690, 
    596 S.E.2d 266
    , 268 (2004) (“The trial court is required to
    make a finding that a natural parent is unfit before denying custody to that parent.”
    (citing Moore, 
    160 N.C. App. 569
    , 
    587 S.E.2d 74
    )), rev’d on other grounds, 
    359 N.C. 303
    , 
    608 S.E.2d 751
    (2005).
    In Peters v. Pennington, this Court cited Moore, as follows:
    In Moore, this Court stated that the prohibition of all
    contact with a natural parent’s child was analogous to a
    termination of parental rights. The Court reasoned that,
    in order to sustain a ‘total prohibition of visitation or
    contact’ based on the unfitness prong of N.C. Gen. Stat. §
    50-13.5(i), the trial court must find unfitness based on the
    clear, cogent, and convincing evidentiary standard that is
    applicable in termination of parental rights 
    cases. 210 N.C. App. at 19
    , 707 S.E.2d at 737 (emphasis in original) (citing Moore, 160 N.C.
    App at 
    573-74, 587 S.E.2d at 76-77
    )).
    Our Supreme Court has not overturned any of this Court’s published opinions
    listed above, including Moore, which protect the “constitutionally-protected
    paramount right” of each individual parent over the care, custody, and control of their
    children. See 
    Petersen, 337 N.C. at 403-404
    , 445 S.E.2d at 905. The dissenting opinion
    does not address or distinguish any of these binding precedents upon this Court.
    Were we to disregard each parent’s individually protected constitutional right,
    the following scenario may arise: an unmarried couple conceives a child. The couple
    becomes estranged before the child is born, and the father never knows the mother
    was pregnant. Years later, after the child is born, the father learns of his child’s
    existence and seeks to have a relationship with the child. The father files an action
    to seek custody or visitation with his child. Under Respess, the trial court could then
    deny the father any custody or visitation solely using the “best interests” test, without
    any findings of the father’s unfitness or actions inconsistent with his parental status.
    The application of the “best interests” test under this scenario, without findings of
    unfitness or actions inconsistent, would be wholly incompatible with our precedents,
    which have recognized: “A natural parent’s constitutionally protected paramount
    interest in the companionship, custody, care, and control of his or her child[.]” 
    Price, 346 N.C. at 79
    , 484 S.E.2d at 534; see 
    Quilloin, 434 U.S. at 255
    , 54 L. Ed. 2d at 519
    (“the relationship between parent and child is constitutionally protected”); 
    Owenby, 357 N.C. at 148
    , 579 S.E.2d at 268; 
    Moore, 160 N.C. App. at 574
    , 587 S.E.2d at 77.
    The dissenting opinion, and Respess, assert this Court’s holding in Moore was
    in conflict with Owenby. Citing the precedents of the Supreme Court of the United
    States and the Supreme Court of North Carolina, this Court unanimously stated in
    Moore:
    It is presumed that fit parents act in the best interest of
    their children. 
    Troxel, 530 U.S. at 69
    , 
    147 L. Ed. 2d
    at 59.
    A parent’s right to a relationship with his child is
    constitutionally protected. See Quilloin v. Walcott, 
    434 U.S. 246
    , 255, 
    54 L. Ed. 2d 511
    , 519 (1978). Once conduct that
    is inconsistent with a parent’s protected status is proven,
    the “best interest of the child” test is applied. Price v.
    Howard, 
    346 N.C. 68
    , 79, 
    484 S.E.2d 528
    , 534 (1997).
    Moore, 160 N.C. App. at 
    573, 587 S.E.2d at 76
    .
    This Court’s application of the rule regarding each parent’s constitutionally
    protected individual relationship of custody or visitation with her child in this case
    and in Moore is fully consistent with binding precedents and with our Supreme
    Court’s holding in Owenby. “[T]he trial court may employ the ‘best interest of the
    child’ test only when the movant first shows, by clear and convincing evidence, that
    the natural parent has forfeited his or her constitutionally protected status.” 
    Owenby, 357 N.C. at 148
    , 579 S.E.2d at 268.
    This opinion fully quotes and is consistent with the holding in Owenby and
    does not “conspicuously omit[]” any binding language therein, contrary to the
    dissenting opinion’s assertion. See 
    id. F. Trial
    Court’s Findings of Fact
    Defendant argues the Amended Order contains numerous findings of fact
    which are not supported by competent evidence, and the findings of fact do not
    support the trial court’s conclusions of law.
    “Our trial courts are vested with broad discretion in child custody matters.”
    Shipman v. Shipman, 
    357 N.C. 471
    , 474, 
    586 S.E.2d 250
    , 253 (2003) (citation
    omitted). Where substantial evidence in the record supports the trial court’s findings
    of fact, those findings are conclusive on appeal, even if record evidence might sustain
    findings to the contrary. 
    Id. at 475,
    586 S.E.2d at 254 (citation omitted).
    Here, the trial court made fifty-two findings of fact in its Amended Order.
    Defendant challenges over twenty of the findings of fact made by the trial court
    concerning Defendant’s behavior, Defendant’s misleading statements to Plaintiff’s
    counsel and the trial court regarding her neuropsychological evaluation, Defendant’s
    health, Defendant’s relationship with Plaintiff, Defendant’s relationship with the
    children, and the best interests of the children.
    After careful review of the whole record, we conclude the trial court’s findings
    of fact are based upon competent evidence in the record, including the testimony of
    the Plaintiff; the parties’ former neighbors, Jennifer and Jared Ober; Dr. Kuzyszyn-
    Jones; Defendant’s neurologist, Dr. Mark Skeen; and Defendant’s own testimony
    from the September 2015 hearing and the 4 August 2016 hearing. Defendant’s
    arguments are overruled.
    Defendant also argues the trial court’s conclusions of law are not supported by
    the findings of fact. Based upon our holding to vacate the trial court’s conclusions of
    law for the reasons stated above in sections B and D, it is unnecessary to address
    these arguments.
    G. Denial of Procedural Due Process Rights
    Defendant also argues the trial court infringed her constitutional rights to
    procedural due process by conducting a temporary custody review on 5 April 2016 to
    determine the status of Defendant’s obligation to complete the neuropsychological
    evaluation. This custody review was conducted in the trial judge’s chambers, and not
    in open court.
    Both Plaintiff’s counsel and Defendant’s counsel were present for this
    temporary custody review. The trial court did not enter an order based upon this
    temporary custody review that altered the custody arrangement specified in the 21
    December 2015 temporary custody and child support order. Following the 5 April
    2016 custody review hearing, the trial court entered an order setting specific
    guidelines for when Defendant should complete the neuropsychological evaluation
    ordered by the trial court on 21 December 2015. As a result of the temporary custody
    review on 5 April 2016, the trial court only ordered that the permanent custody
    review hearing take place on 4 August 2016 and reiterated Defendant’s obligation
    under the 5 December 2015 order to obtain a neuropsychological evaluation.
    Defendant’s trial counsel offered no objection to the trial court holding the in-
    chambers custody review meeting. “A contention not raised in the trial court may not
    be raised for the first time on appeal.” Creasman v. Creasman, 
    152 N.C. App. 119
    ,
    123, 
    566 S.E.2d 725
    , 728 (2002) (citations omitted).
    Defendant also did not raise her procedural due process arguments in her
    amended Rule 59 and Rule 60 motions to set aside the trial court’s permanent custody
    order. 
    Id. (“We note
    that defendant did not raise this issue in his motion to set aside
    the judgment. The record does not reflect a ruling on this issue by the trial court”);
    N.C. R. App. P. 10(a)(1). These arguments are waived and dismissed.
    H. Domestic Violence
    Defendant also contends the trial court failed to consider evidence of domestic
    violence perpetrated by Plaintiff in making its custody determination in the Amended
    Order. N.C. Gen. Stat. § 50-13.2(a) (2017) provides, in relevant part:
    An order for custody of a minor child entered pursuant to
    this section shall award the custody of such child to such
    person . . . as will best promote the interest and welfare of
    the child. In making the determination, the court shall
    consider all relevant factors including acts of domestic
    violence between the parties, the safety of the child, and
    the safety of either party from domestic violence by the
    other party.
    The Amended Order indicates it did consider Defendant’s allegations of
    domestic violence by Plaintiff. Finding of fact 24 states:
    There was significant conflict between the parties during
    their marriage, which culminated in physical altercations
    between the parties on more than one occasion. Defendant
    testified at length about these altercations during the
    September 2015 trial and described herself as a victim of
    domestic violence, but Plaintiff introduced a recording into
    evidence at the September 2015 trial in which Defendant
    can be heard laughing and attempting to goad Plaintiff into
    a physical altercation. There were two incidents in July of
    2014 (shortly before the parties separated) during which
    Plaintiff attempted to retreat from Defendant during an
    argument by locking himself in another room but
    Defendant forced her way into the room. Furthermore,
    Defendant’s medical records (as introduced into evidence
    by Defendant and/or made available to Plaintiff’s counsel
    for cross-examination purposes at the September 2015
    trial) are inconsistent with her testimony about the alleged
    altercations.
    This finding of fact was supported by substantial competent evidence of
    Plaintiff’s testimony and the audio recording referenced therein, which was admitted
    into evidence. Additionally, finding of fact 24 in the Amended Order is the same as
    finding of fact 22 in the initial permanent custody order. Defendant did not raise the
    issue of the trial court’s purported failure to consider domestic violence in her
    amended Rule 59 and 60 motions. Defendant had a full opportunity to assert the
    trial court failed to consider domestic violence at the 1 March 2017 hearing on her
    Rule 59 and 60 motions, but failed to do so. See 
    Creasman 152 N.C. App. at 123
    , 566
    S.E.2d at 728; N.C. R. App. P. 10(a)(1). Defendant may disagree with the weight and
    credibility the trial court gave the evidence, but the record clearly establishes the
    trial court considered the allegations of domestic violence in determining custody
    pursuant to N.C. Gen. Stat. § 50-13.2(a). Defendant’s argument is overruled.
    I. Alimony and Attorney’s Fees
    Defendant next argues the trial court abused its discretion with regard to the
    Alimony and Attorney Fee Order entered by the trial court on 9 December 2016, the
    same day the trial court entered its initial permanent custody order. Defendant
    argues the trial court erred by awarding her alimony for a duration calculated from
    the parties’ date of separation and not from the parties’ date of divorce. “Decisions
    concerning the amount and duration of alimony are entrusted to the trial court’s
    discretion and will not be disturbed absent a showing that the trial court has abused
    such discretion.” Robinson v. Robinson, 
    210 N.C. App. 319
    , 326, 
    707 S.E.2d 785
    , 791
    (2011).
    The trial court is required to consider the sixteen factors enumerated in N.C.
    Gen. Stat. § 50-16.3A(b) in deciding to award alimony. N.C. Gen. Stat. § 50-16.3A(c)
    (“[T]he court shall make a specific finding of fact on each of the factors in subsection
    (b) of this section if evidence is offered on that factor.”). “[T]he award of . . . attorney’s
    fees in matters of child custody and support, as well as alimony . . . is within the
    discretion of the trial court.” McKinney v. McKinney, 
    228 N.C. App. 300
    , 307, 
    745 S.E.2d 356
    , 361 (2013).
    Here, the trial court made several specific and unchallenged findings of fact
    with reference to attorney’s fees and the required statutory factors for determining
    alimony. Defendant does not challenge any of these findings of fact or argue that
    these findings are not supported by competent evidence in the record. Defendant has
    failed to show the trial court abused its discretion in calculating the amount of
    alimony awarded or by denying Defendant’s claim for attorney’s fees. Defendant’s
    arguments are overruled.
    J. 1 March 2017 Hearing
    Defendant attempts to argue the trial court erred with respect to actions taken
    by her own attorney at a hearing on 1 March 2017. This hearing was held on several
    motions filed by Defendant. After the trial court entered its original permanent child
    custody order and its order on alimony and attorney’s fees on 9 December 2016,
    Defendant subsequently filed a pro se Rule 59 motion on 16 December and a pro se
    Rule 60 motion on 19 December.
    Defendant obtained new counsel, who then filed amended Rule 59 and Rule 60
    motions on 20 February 2017. These motions were heard by the trial court on 1
    March 2017, in addition to three pro se contempt motions Defendant had previously
    filed.
    At the outset of the 1 March 2017 hearing, Defendant’s counsel stated to the
    trial court that the contempt motions “are right now being written up in a voluntarily
    dismissal to be dismissed with prejudice as of today.” The trial court then proceeded
    to hear Defendant’s amended Rule 59 and Rule 60 motions. The trial court granted
    Defendant’s Rule 59 motion and later entered the Amended Order on 6 March 2017.
    Defendant appears to argue the trial court should have considered her original
    pro se Rule 59 motion instead of the amended motion filed by her attorney. Defendant
    asserts her contempt motions should not have been dismissed on 1 March 2017.
    These motions were voluntarily dismissed by Defendant’s own counsel and not by the
    trial court. Defendant was present for the 1 March 2017 hearing and did not voice
    any disagreement to the trial court over her counsel’s voluntary dismissal of the
    contempt motions.      Defendant cites no authority to support these arguments.
    Defendant fails to establish any error on the trial court’s part with respect to the Rule
    59 motion and the voluntary dismissal of her contempt motions. These arguments
    are dismissed.
    VI. Conclusion
    The trial court erred and abused its discretion by delegating its authority to
    determine Defendant’s visitation rights to Plaintiff and by effectively terminating
    Defendant’s parental rights without first making a finding of unfitness or acts
    inconsistent with her constitutionally protected status by clear, cogent, and
    convincing evidence, and violated the statute by limiting her access to her children to
    telephone calls only. 
    Owenby, 357 N.C. at 148
    , 579 S.E.2d at 268; Moore, 160 N.C.
    App. at 
    573-74, 584 S.E.2d at 76
    ; N.C. Gen. Stat. § 50-13.2(e).
    Defendant has failed to show the trial court abused its discretion in calculating
    the amount of alimony, or in denying her claim for attorney’s fees. Defendant has
    failed to preserve her arguments concerning the trial court’s ordering of a
    neuropsychological evaluation and the trial court’s purported violations of her
    procedural due process rights. Defendant’s remaining arguments are overruled and
    dismissed for failures to object and preserve.
    The Alimony Order and Attorney Fees Order are affirmed. The trial court’s
    conclusions of law and decretal portions of its Amended Order are vacated and
    remanded for further proceedings as consistent with this opinion. It is so ordered.
    AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
    Judge BERGER concurs with separate opinion.
    Judge INMAN concurs in part, dissents in part, with separate opinion.
    No. COA17-1360 – Routten v. Routten
    BERGER, Judge, concurring.
    I fully concur in the majority opinion, but write separately to address a trend
    in this Court’s jurisprudence that has troubling implications.
    In the last few years, this Court increasingly has overruled precedent on the
    ground that a case, although published and otherwise controlling, itself failed to
    follow an even earlier Court of Appeals or Supreme Court case.1
    At first glance, this approach might seem appropriate. After all, In re Civil
    Penalty tells us that one panel cannot overrule another on the same issue. 
    324 N.C. 373
    , 384, 
    379 S.E.2d 30
    , 36-37 (1989). If it appears a second panel did precisely that
    by refusing to follow the precedent set by the first panel, should the third panel faced
    with the issue not ignore the second and follow the first? But, what if a fourth panel
    comes along and concludes that the second panel properly distinguished or limited
    the first panel? That fourth panel could refuse to follow the third panel on the ground
    that it improperly overruled the second.
    This may sound more like a law school hypothetical than a real-world problem,
    but it is very real. As the case before us here demonstrates, this Court can be trapped
    1 Here are a few examples: State v. Alonzo, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___, No.
    COA17-1186, 
    2018 WL 3977546
    , at *2 (Aug. 21, 2018), temporary stay allowed, ___ N.C. ___, 
    817 S.E.2d 733
    (2018); State v. Jones, ___ N.C. App. ___, ___, 
    802 S.E.2d 518
    , 523 (2017); State v. Mostafavi, ___
    N.C. App. ___, ___, 
    802 S.E.2d 508
    , 513 (2017), rev’d, 
    370 N.C. 681
    , 
    811 S.E.2d 138
    (2018); State v.
    Meadows, ___ N.C. App. ___, ___, 
    806 S.E.2d 682
    , 693-94 (2017), disc. review allowed, ___ N.C. ___,
    
    812 S.E.2d 847
    (2018); In re D.E.P., ___ N.C. App. ___, ___, 
    796 S.E.2d 509
    , 514 (2017).
    ROUTTEN V. ROUTTEN
    BERGER, J., concurring
    in a chaotic loop as different panels disagree, not only on the interpretation of the
    law, but also on what law appropriately controls the issue.
    This problem is compounded by the reality that we are an intermediate
    appellate court that sits in panels. Ordinarily, the doctrine of stare decisis will
    prevent appellate courts from casually tossing away precedent decided just a few
    years (or even months) earlier.2 But that precedential effect is much weaker when a
    court sits in panels where the judges considering the issue were not necessarily
    involved in the earlier decision. As the dissent notes in footnote 4, we make mistakes.
    One solution to this problem is for this Court to write opinions following our
    precedent, notwithstanding that panel’s view of the weaknesses and errors within the
    current state of the law. In such an opinion, that panel could explain why the
    precedent is incorrect and make a direct request for the Supreme Court to use their
    power of discretionary review to announce the correct rule.
    2  “The judicial policy of stare decisis is followed by the courts of this state.” Musi v. Town of
    Shallotte, 
    200 N.C. App. 379
    , 383, 
    684 S.E.2d 892
    , 896 (2009) (citation omitted). “Stare decisis is the
    preferred course because it promotes the evenhanded, predictable, and consistent development of legal
    principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity
    of the judicial process.” Janus v. Am. Fed’n of State, Cnty., & Mun. Employees, Council 31, ___ U.S.
    ___, ___, 
    201 L. Ed. 2d 924
    , 954-55 (2018) (citing Payne v. Tennessee, 
    501 U.S. 808
    , 827 (1991)).
    “[A]ntiquity has never been a reason for this Court to overrule its own prior case law or that
    of the North Carolina Supreme Court; indeed, this Court does not have authority to do so.” Strickland
    v. City of Raleigh, 
    204 N.C. App. 176
    , 181, 
    693 S.E.2d 214
    , 217 (2010) (citation omitted). “When this
    Court is presented with identical facts and issues, we are bound to reach the same conclusions as prior
    panels of this court.” Smith v. City of Fayetteville, 
    220 N.C. App. 249
    , 253, 
    725 S.E.2d 405
    , 409 (2012)
    (citation omitted).
    2
    ROUTTEN V. ROUTTEN
    BERGER, J., concurring
    But many judges on this Court view this approach as unrealistic.3                           The
    Supreme Court hears cases on discretionary review primarily because they involve
    matters of “significant public interest” or “major significance to the jurisprudence of
    the State.” N.C. Gen. Stat. § 7A-31. Though our frequent intramural disputes over
    In re Civil Penalty seem significant to us, the underlying legal issues often are
    narrow, are of no public interest, and affect only minor or isolated issues within our
    jurisprudence.       At a high court that hears only seventy or eighty cases on
    discretionary review each year, these simply won’t make the cut.
    There is another option. This Court now has the power to sit en banc. See N.C.
    Gen. Stat. § 7A-16. When the Supreme Court issued procedural rules for our en banc
    review, it instructed that we may sit en banc “to secure or maintain uniformity of the
    court’s decisions.” N.C. R. App. P. 31.1(a)(1). This suggests that our Supreme Court
    anticipated we would use our authority to sit en banc to address these minor conflicts
    in our case law and resolve them ourselves. And, of course, if this Court sitting en
    banc gets it wrong, an opinion explaining the conflicting cases and the detailed
    reasons underlying our interpretation of them would issue from this Court, producing
    3  Nevertheless, it is “an established rule to abide by former precedents, stare decisis, where
    the same points come up again in litigation, as well to keep the scale of justice even and steady, and
    not liable to waver with every new judge’s opinion, as also because, the law in that case being solemnly
    declared and determined what before was uncertain, and perhaps indifferent, is now become a
    permanent rule, which it is not in the breast of any subsequent judge to alter or swerve from according
    to his private sentiments; he being sworn to determine, not according to his private judgment, but
    according to the known laws and customs of the land, – not delegated to pronounce a new law, but to
    maintain and expound the old one – jus dicere et non jus dare [to declare the law, not to make the
    law].” McGill v. Town of Lumberton, 
    218 N.C. 586
    , 591, 
    11 S.E.2d 873
    , 876 (1940) (citation omitted).
    3
    ROUTTEN V. ROUTTEN
    BERGER, J., concurring
    an excellent vehicle by which the Supreme Court can grant review and announce the
    correct rule.
    Unfortunately, we have yet to sit en banc. To date, there have been 61 petitions
    filed requesting this Court to hear cases en banc, and we have declined to hear every
    single one. Perhaps some of my fellow judges on this Court are skeptical of whether
    the Supreme Court wants us to resolve our own conflicts. Some may be convinced
    that this resolution is not ours, but the business of our higher court. Others may
    have different motives. Whatever the reasons we have declined to sit en banc may
    be, legitimate or otherwise, encouragement and accountability from the appellate bar
    would be beneficial. Of course, if the Supreme Court believes this Court should
    resolve our conflicts en banc, it would be helpful for that Court to say so.
    4
    No. COA17-1360 – Routten v. Routten
    INMAN, Judge, concurring in part and dissenting in part.
    I concur in the majority opinion affirming the Alimony Order and Attorney
    Fees Order. I respectfully dissent from the majority opinion vacating the trial court’s
    conclusions of law regarding custody and its decree awarding full custody to Plaintiff.
    The majority’s holding in this respect is precluded by established precedent of the
    North Carolina Supreme Court and this Court and threatens to upend the stability
    of decisions by our trial courts in child custody disputes between parents.
    The trial court’s Amended Order denying Defendant custody and visitation
    complied with Section 50-13.5 of the North Carolina General Statutes, which
    provides:
    In any case in which an award of child custody is made in
    a district court, the trial judge, prior to denying a parent
    the right of reasonable visitation, shall make a written
    finding of fact that the parent being denied visitation rights
    is an unfit person to visit the child or that such visitation
    rights are not in the best interest of the child.
    N.C. Gen. Stat. § 50-13.5(i) (2018) (emphasis added). “Where a statute contains two
    clauses which prescribe its applicability and clauses are connected by the disjunctive
    ‘or’, application of the statute is not limited to cases falling within both clauses but
    applies to cases falling within either one of them.” Grassy Creek Neighborhood All.,
    Inc. v. City of Winston-Salem, 
    142 N.C. App. 290
    , 297, 
    542 S.E.2d 296
    , 301 (2001)
    (internal quotation marks and citations omitted). Ultimately the trial court found
    ROUTTEN V. ROUTTEN
    Inman, J., concurring in part, dissenting in part
    that “[i]t is not in the children’s best interests to have visitation with Defendant.”
    Given this finding, pursuant to N.C. Gen. Stat. § 50-13.5(i), the trial court had the
    authority to suspend Defendant’s visitation with the children without finding that
    Defendant was a person unfit to visit them.
    The trial court’s express finding that visitation with Defendant was not in the
    children’s best interest followed several other findings by the trial court of
    Defendant’s harmful interactions with her children, including: (1) Defendant’s
    behavior necessitated that her daughter have a safety plan while in her custody; (2)
    Defendant engaged in physical and verbal altercations with her daughter; (3)
    Defendant was trespassed from her son’s preschool as a result of her behavior there;
    (4) she had difficulty controlling her son’s behavior; (5) she removed her son from
    preschool contrary to the school’s recommendation and without Plaintiff’s knowledge
    or consent; and (6) her daughter’s emotional distress was caused by spending time
    with Defendant. Each of these findings was supported by competent evidence.
    The majority does not hold that the trial court erred in its findings of fact
    regarding Defendant’s harmful interactions with the children. The majority does not
    hold that the trial court erred in finding that visitation with Defendant was not in
    the children’s best interest.    Rather, the majority holds that Defendant has a
    constitutional right to visitation with her children which has been violated by the
    trial court and remands the matter for “constitutionally required findings based upon
    2
    ROUTTEN V. ROUTTEN
    Inman, J., concurring in part, dissenting in part
    clear, cogent, and convincing evidence.” In support of today’s holding, the majority
    relies on Moore v. Moore, 
    160 N.C. App. 569
    , 
    587 S.E.2d 74
    (2003), a decision
    disavowed by this Court—and one directly contrary to controlling North Carolina
    Supreme Court precedent—which held that when resolving a custody dispute
    between two parents, a trial court cannot suspend one parent’s visitation rights
    absent a finding that either the parent is unfit or engaged in conduct that is
    inconsistent with his or her protected status. Id. at 
    573, 587 S.E.2d at 76
    .
    Moore held that in a custody dispute between a child’s natural or adoptive
    parents, “absent a finding that parents (i) are unfit or (ii) have neglected the welfare
    of their children, the constitutionally-protected paramount right of parents to
    custody, care, and control of their children must prevail.” Id. at 
    572, 587 S.E.2d at 76
    (internal quotation marks and citation omitted). As support for this holding,
    Moore quoted Petersen v. Rogers, 
    337 N.C. 397
    , 403-04, 
    445 S.E.2d 901
    , 905 (1994),
    which established a constitutionally-based presumption favoring a parent in a
    custody dispute with a non-parent (the “Petersen presumption”).4 But unlike Moore,
    Petersen involved a custody conflict between parents and 
    non-parents. 337 N.C. at 4
      Petersen quoted the holding in Stanley v. Illinois, 
    405 U.S. 645
    , 
    31 L. Ed. 2d 551
    (1972), that “
    ‘[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose
    primary function and freedom include preparation for obligations the state can neither supply nor
    hinder.’ 
    337 N.C. at 400-01
    , 445 S.E.2d at 903 (emphasis omitted) (quoting 
    Stanley, 405 U.S. at 651
    ,
    31 L.Ed.2d at 559). Relying on Stanley, the Petersen Court noted that a natural parent has a
    “constitutionally-protected paramount right to custody, care, and control of their child.” 
    Id. at 400,
    445
    S.E.2d at 903.
    3
    ROUTTEN V. ROUTTEN
    Inman, J., concurring in part, dissenting in part
    
    399, 445 S.E.2d at 902
    . Moore did not acknowledge that factual distinction or provide
    any analysis to support extending the Petersen holding to a dispute between two
    parents. Nor did Moore acknowledge controlling Supreme Court precedent expressly
    holding that Petersen does not apply to custody disputes between two parents, such
    as the case we decide today.
    Significantly, after Petersen was decided and a few months prior to Moore, the
    North Carolina Supreme Court, in a child custody dispute between a father and
    maternal grandmother, explained the distinction between proceedings involving (1)
    a parent versus a non-parent, and (2) a parent versus the other parent:
    We acknowledged the importance of [a parent’s] liberty
    interest nearly a decade ago when this Court [in Petersen]
    held: absent a finding that parents (i) are unfit or (ii) have
    neglected the welfare of their children, the constitutionally
    protected paramount right of parents to custody, care, and
    control of their children must prevail. The protected
    liberty interest complements the responsibilities the
    parent has assumed and is based on a presumption that he
    or she will act in the best interest of the child. The
    justification for the paramount status is eviscerated when
    a parent’s conduct is inconsistent with the presumption or
    when a parent fails to shoulder the responsibilities that are
    attendant to rearing a child. Therefore, unless a natural
    parent’s conduct has been inconsistent with his or her
    constitutionally protected status, application of the “best
    interest of the child” standard in a custody dispute with a
    nonparent offends the Due Process Clause of the United
    States Constitution. Furthermore, the protected right is
    irrelevant in a custody proceeding between two natural
    parents, whether biological or adoptive, or between two
    parties who are not natural parents. In such instances, the
    trial court must determine custody using the “best interest
    4
    ROUTTEN V. ROUTTEN
    Inman, J., concurring in part, dissenting in part
    of the child” test.
    Owenby v. Young, 
    357 N.C. 142
    , 145, 
    579 S.E.2d 264
    , 266-67 (2003) (internal
    quotation marks and citations omitted) (emphasis added).                       Moore failed to cite
    Owenby, much less attempt to distinguish its holding that a parent’s constitutional
    right is irrelevant in a custody dispute with the other parent. Moore was not pursued
    further on appeal, so its conflict with Owenby was not reviewed by the Supreme
    Court.5
    The error of Moore was ultimately noted a decade later, in a unanimous
    decision written by a judge who had concurred in Moore. In Respess v. Respess, 
    232 N.C. App. 611
    , 
    754 S.E.2d 691
    (2014), that judge, writing for a unanimous panel,
    concluded that “the standard articulated in Moore directly conflicts with prior
    holdings of . . . our Supreme Court and therefore does not control our decision in the
    instant case.” Id. at 
    624-25, 754 S.E.2d at 700
    -01. Respess explained that prior to
    Moore, precedent consistently held:
    (1) the standard in a custody dispute between a child’s
    parents is the best interest of the child; (2) the applicable
    burden of proof is the preponderance of the evidence; (3)
    5   Although Moore was not appealed, our Supreme Court passed on the opportunity to ratify or
    adopt the holding of Moore two years later in In re T. K., D.K., T. K., & J. K., 
    171 N.C. App. 35
    , 
    613 S.E.2d 739
    , aff’d 
    360 N.C. 163
    , 
    622 S.E.2d 494
    (2005). That appeal followed a split decision by this
    Court. The dissent in In re T.K. asserted—as the majority holds here—that a trial court’s order
    awarding visitation to the father was in error because, pursuant to Moore, the trial court did not make
    findings that the mother’s “conduct was inconsistent with her protected status as a parent,” or, by
    clear and convincing evidence, that the mother was “unfit as a parent.” 
    Id. at 44,
    613 S.E.2d at 744
    (Tyson, J., dissenting). On review, the Supreme Court affirmed the majority opinion per curiam. In
    re T. K., 
    360 N.C. 163
    , 
    622 S.E.2d 494
    .
    5
    ROUTTEN V. ROUTTEN
    Inman, J., concurring in part, dissenting in part
    the principles that govern a custody dispute between a
    parent and a non-parent are irrelevant to a custody action
    between parents; and (4) a trial court complies with N.C.
    Gen. Stat. § 50–13.5(i) if it makes the finding set out in the
    statute.
    
    Id. at 627,
    754 S.E.2d at 702. Respess acknowledged our Supreme Court’s holding in
    In re Appeal of Civil Penalty, 
    324 N.C. 373
    , 384, 
    379 S.E.2d 30
    , 36 (1989), that a panel
    of this Court is bound by a prior decision by another panel of this Court deciding the
    same issue, but held that rule of decision did not apply to bind the panel to follow
    Moore, because “this Court has no authority to reverse existing Supreme Court
    precedent.” 
    Respess, 232 N.C. App. at 625
    , 754 S.E.2d at 701. Respess was never
    appealed and, until our Supreme Court tells us otherwise, Respess remains good law
    on both points.
    Today’s majority opinion quotes a portion of the opinion in Owenby, but
    conspicuously omits the Supreme Court’s key holding directly controlling in this case,
    that a constitutional analysis “is irrelevant in a custody proceeding between two
    natural parents” and that “[i]n such instances, the trial court must determine custody
    using the ‘best interest of the child’ test.” 
    Owenby, 357 N.C. at 145
    , 579 S.E.2d at
    267; see also 
    Respess, 232 N.C. App. at 626
    , 754 S.E.2d at 701-02 (“Moore’s holding
    that the Petersen presumption applies to a trial court’s decision to deny visitation
    rights to a non-custodial parent [in a dispute with the custodial parent] contradicts
    our Supreme Court’s holding [in Owenby] that Petersen is ‘irrelevant’ to a dispute
    6
    ROUTTEN V. ROUTTEN
    Inman, J., concurring in part, dissenting in part
    between parents and that in such instances, the trial court must determine custody
    using the ‘best interest of the child’ test.” (internal quotation marks, citation, and
    brackets omitted)).
    The majority also fails to distinguish the facts of this case from Respess, or to
    address the effect of Owenby on Moore’s precedential value. The majority’s holding
    today deviates from years of consistent precedent and confuses an otherwise settled
    area of law affecting families across our state.6
    The majority asserts that Respess violated the North Carolina Supreme Court’s
    holding in In re Appeal of Civil Penalty that one panel of this Court is bound by a
    previous panel’s decision on the same issue. But the majority fails to acknowledge
    that Respess explicitly held that In re Civil Penalty did not require this Court to
    repeat the holding in Moore that was contrary to controlling precedent by our
    Supreme Court. See 
    Respess, 232 N.C. App. at 629
    , 654 S.E.2d at 703.
    Earlier this year, in a unanimous opinion, this Court expressly adopted the
    holding in Respess which interpreted and distinguished In re Civil Penalty to disavow
    6 As noted by the majority, until it was disavowed by Respess as violating controlling precedent,
    Moore was cited in subsequent decisions by this Court for its holding directly contrary to Owenby. But
    see Everette v. Collins, 
    176 N.C. App. 168
    , 173-74, 
    625 S.E.2d 796
    , 799-800 (2006) (distinguishing
    disputes between parents and non-parents, involving the “constitutionally protected status afforded
    parents,” and disputes between only parents, applying the “best interest of the child” determination
    without constitutional analysis). But none of the decisions citing Moore for that holding acknowledged
    the conflict. Since Respess, Moore has been cited by this Court for its holding that a trial court’s
    findings of fact must resolve factual issues rather than merely reciting witness testimony, but it has
    not been cited in a majority decision for the proposition disavowed in Respess. See State v. Robinson,
    __ N.C. App. __, __,
    805 S.E.2d 309
    , 317 (2017); Lueallen v. Lueallen, __ N.C. App. __, __, 
    790 S.E.2d 690
    , 698 (2016); Kelly v. Kelly, 
    228 N.C. App. 600
    , 610, 
    747 S.E.2d 268
    , 278 (2013).
    7
    ROUTTEN V. ROUTTEN
    Inman, J., concurring in part, dissenting in part
    Moore. See Martinez v. Wake Cty. Bd. of Educ., __ N. C. App. __, __, 
    813 S.E.2d 659
    ,
    667 (2018) (discussing Respess at length and holding that “it is clear that where a
    prior ruling of this Court is in conflict with binding Supreme Court precedent, we
    must follow the decision of the Supreme Court rather than that of our own Court”).
    Today’s decision cannot be harmonized with Respess or Martinez.
    The jurisprudential history of In re Civil Penalty, contrasted with the history
    of Moore, Respess, and today’s decision, demonstrates the majority’s error in this case.
    In re Civil Penalty arose from a conflict regarding the precedent established by the
    North Carolina Supreme Court in State ex rel. Lanier v. Vines, 
    274 N.C. 486
    , 490, 
    164 S.E.2d 161
    , 163 (1968). Lanier held that a statute allowing the Commissioner of
    Insurance to impose a monetary penalty of up to $25,000 for violations of
    administrative regulations improperly delegated power vested exclusively in the
    judiciary by Art. IV, § 3, of the North Carolina Constitution. 
    Id. at 497,
    164 S.E.2d
    at 168. Almost twenty years later, in North Carolina Private Protective Services
    Board v. Gray, Inc., 
    87 N.C. App. 143
    , 
    360 S.E.2d 135
    (1987), this Court rejected a
    constitutional challenge to a statute authorizing the North Carolina Private
    Protective Services Board to impose monetary penalties of up to $2,000 for violations
    of agency regulations. 
    Id. at 147,
    360 S.E.2d at 138. Gray held that “[t]his case is
    readily distinguishable from the situation in Lanier.” 
    Id. at 147,
    360 S.E.2d at 138.
    8
    ROUTTEN V. ROUTTEN
    Inman, J., concurring in part, dissenting in part
    One year later, in In re Civil Penalty, 
    92 N.C. App. 1
    , 
    373 S.E.2d 572
    (1989), in
    a split decision, this Court addressed the constitutionality of a statute authorizing
    the Department of Natural Resources to assess an administrative penalty against
    individuals who violated the Sedimentation Pollution Act. 
    Id. at 3,
    373 S.E.2d at 573.
    The majority opinion concluded that this Court was bound by the decision in Lanier,
    and not by Gray, reasoning that the “rationale [in Gray] directly contradicts the
    rationale and result of Lanier.” 
    Id. at 16,
    373 S.E.2d at 581. The dissent asserted
    that the majority’s failure to follow Gray’s interpretation of Lanier “unjustifiably
    overrule[d]” Gray, which “was correctly decided and should have governed the court’s
    decision in the case before us.” 
    Id. at 21,
    373 S.E.2d at 583 (Becton, J., dissenting).
    On review, the North Carolina Supreme Court agreed with the dissent and concluded
    that “the effect of the majority’s decision here was to overrule Gray. This it may not
    do.” In re Civil 
    Penalty, 324 N.C. at 384
    , 379 S.E.2d at 37. The Supreme Court went
    on to explain, in a holding quoted by this Court in dozens of decisions over the past
    quarter century, that, “[w]here a panel of the Court of Appeals has decided the same
    issue, albeit in a different case, a subsequent panel of the same court is bound by that
    precedent, unless it has been overturned by a higher court.” Id. at 
    384, 379 S.E.2d at 37
    .
    Unlike this Court’s decision in Gray, which addressed and distinguished the
    North Carolina Supreme Court’s decision in Lanier, this Court’s decision in Moore
    9
    ROUTTEN V. ROUTTEN
    Inman, J., concurring in part, dissenting in part
    utterly failed to acknowledge the Supreme Court’s decision in Owenby.7 A citation to
    Owenby is nowhere to be found in Moore. The assertion by the majority today that
    Moore applied the holding of Owenby misrepresents the reported decision.
    Unlike Moore, Respess cited Owenby, discussed it at length, and characterized
    the Supreme Court’s statement that the Petersen presumption is “irrelevant in a
    custody proceeding between two natural parents” as a “holding” in Owenby. 
    Respess, 232 N.C. App. at 625
    -26, 754 S.E.2d at 701-02. As Respess has not been overturned
    by a higher court, we are thus bound by its interpretation of Owenby, and must
    conclude that the language ignored by the majority in today’s decision is a holding by
    our Supreme Court. See In re Civil 
    Penalty, 324 N.C. at 384
    , 379 S.E.2d at 37. And
    it is directly controlling here.         This Court’s holding in Moore must yield to the
    Supreme Court’s holding in Owenby. We do not have the “authority to overrule
    decisions of the Supreme Court of North Carolina and [have a] responsibility to follow
    those decisions, until otherwise ordered by the Supreme Court.” Cannon v. Miller,
    
    313 N.C. 324
    , 324, 
    327 S.E.2d 888
    , 888 (1985).
    7  I do not suggest that the panel in Moore deliberately ignored Owenby. The Supreme Court
    issued its decision in Owenby in May 2003; Moore was heard in this Court just three months later, in
    August 2003. Given the typical lapse of months between the submission of briefs and hearing before
    this Court in most cases, it is likely that Owenby was decided by the Supreme Court after briefing in
    Moore was completed, and that neither counsel nor the panel deciding Moore realized that binding
    precedent intervened. Such an error reflects not defiance or judicial recklessness but merely the very
    human occurrence of overlooking a new precedent when deciding one among a tremendous volume of
    cases heard by panels of this Court. By contrast, today’s majority violates precedent specifically called
    to its attention.
    10
    ROUTTEN V. ROUTTEN
    Inman, J., concurring in part, dissenting in part
    The rule of decision established by In re Civil Penalty applies when two panels
    of this Court issue conflicting decisions on the same issue without distinguishing the
    facts or applicable law, passing each other like ships in the night. But In re Civil
    Penalty does not bind a panel of this Court to a decision by a prior panel that conflicts
    with Supreme Court precedent. The conflict between a decision by this Court and
    one by our Supreme Court is more akin to a row boat passing an ocean liner. It is
    resolved not by In re Civil Penalty but by stare decisis.
    “A primary goal of adjudicatory proceedings is the uniform application of law.
    In furtherance of this objective, courts generally consider themselves bound by prior
    precedent, i.e., the doctrine of stare decisis.” Bacon v. Lee, 
    353 N.C. 696
    , 712, 
    549 S.E.2d 840
    , 851-52 (2001). The doctrine of stare decisis “is a maxim to be held forever
    sacred.” Commonwealth v. Coxe, 
    4 U.S. 170
    , 
    1 L. Ed. 786
    , 4 Dall. 170, 192 (Pa. 1800).
    Because it is so fundamental to our jurisprudence, the doctrine is generally applied
    without comment and is described at length only in dissenting opinions. “Adhering
    to this fixed standard ensures that we remain true to the rule of law, the consistent
    interpretation and application of the law.” State ex. rel. McCrory v. Berger, 
    368 N.C. 633
    , 651, 
    781 S.E.2d 248
    , 260 (2016) (Newby, J., concurring in part and dissenting in
    part). “[T]here must be some uniformity in judicial decisions . . . or else the law itself,
    the very chart by which we are sailing, will become as unstable and uncertain as the
    11
    ROUTTEN V. ROUTTEN
    Inman, J., concurring in part, dissenting in part
    shifting sands of the sea[.]” State v. Bell, 
    184 N.C. 701
    , 720, 
    115 S.E. 190
    , 199 (1922)
    (Stacy, J., dissenting).
    This Court in Respess correctly held that it was not bound by In re Civil Penalty
    to follow Moore’s holding—which plainly diverged from Supreme Court precedent.
    And, as Respess distinguished In re Civil Penalty and explained why it did not apply—
    i.e., that it did not bind the panel to Moore—we are bound by that interpretation,
    ironically pursuant to In re Civil Penalty. Stated differently, the majority charts the
    same wayward course that previously led this Court to run aground even though our
    Supreme Court has built us a lighthouse in In re Civil Penalty; just as Gray
    constituted a binding           interpretation of        Lanier,    Respess provided binding
    interpretations of Owenby8 and In re Civil Penalty. We are bound by Respess unless
    and until it is disavowed by our Supreme Court.
    The majority opinion today vacates the conclusions of law and custody portions
    of the Amended Order based on the trial court’s failure to include findings only
    deemed necessary in Moore. Today’s decision, like the decision in Moore, conflicts
    with binding precedent and the plain language of N.C. Gen. Stat. § 50-13.5(i), the
    governing statute. Because the dispute is exclusively between the children’s parents,
    the trial court properly applied the “best interest of the child” test. See Adams v.
    8 As 
    recounted supra
    , there is nothing in Moore to indicate it was interpreting or applying
    Owenby, let alone that it was cognizant of the decision. Thus, Respess was not bound by any
    interpretation of Owenby in Moore, as none appears therein.
    12
    ROUTTEN V. ROUTTEN
    Inman, J., concurring in part, dissenting in part
    Tessener, 
    354 N.C. 57
    , 61, 
    550 S.E.2d 499
    , 502 (2001) (“In a custody proceeding
    between two natural parents (including biological or adoptive parents), or between
    two parties who are not natural parents, the trial court must determine custody based
    on the ‘best interest of the child’ test.”).
    The majority today also asserts—again citing Moore—that the “Amended
    Order purported to deny Defendant all custody and visitation with her children,
    effectively terminating her parental rights.” A loss of visitation or custody in a
    Chapter 50 proceeding between two parents is fundamentally different from the
    termination of parental rights, which can only be accomplished in a proceeding
    pursuant to Chapter 7B.          “Our jurisprudence has long recognized significant
    differences between a child custody order, which is subject to modification upon a
    showing of changed circumstances, and orders for adoption or for termination of
    parental rights, which are permanent.” 
    Respess, 232 N.C. App. at 626
    , 754 S.E.2d at
    702 (citations omitted). Among other things, the standard of proof prescribed by
    Chapter 50 for custody disputes between parents is a preponderance of the evidence;
    by contrast, the standard of proof prescribed by Chapter 7B for termination of
    parental rights is clear and convincing evidence. N.C. Gen. Stat. § 7B-1110(b) (2018);
    Speagle v. Seitz, 
    354 N.C. 525
    , 533, 
    557 S.E.2d 83
    , 88 (2001).
    13
    ROUTTEN V. ROUTTEN
    Inman, J., concurring in part, dissenting in part
    For the foregoing reasons, I respectfully dissent from the majority opinion
    regarding the award of child custody and would affirm the Amended Order’s
    conclusions of law and decree regarding custody.
    Because I dissent from the majority opinion vacating the trial court’s decree
    suspending Defendant’s right to visitation with her children, I disagree with the
    majority’s holding that the trial court erred by delegating to Plaintiff the sole
    discretion to allow, or deny, telephone contact between Defendant and their children.
    That is, if Defendant has no right to visitation, the trial court’s delegation of
    discretion to Plaintiff is mere surplusage, albeit admittedly confusing. Assuming
    arguendo that the trial court erred in this portion of its decree, it was surplusage that
    does not require appellate review.
    In sum, I concur in the majority opinion affirming the Alimony Order and
    Attorney Fees Order. I respectfully dissent from the majority opinion vacating the
    trial court’s conclusions of law and its decree awarding full custody to Plaintiff.
    14