Knowles v. Bennett ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-1340
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
CANDANCE KNOWLES (ARNETT),
Plaintiff,
v. Union County
No. 08 CVD 3735
JOHN PAUL BENNETT, SR.,
Defendant.
Appeal by defendant from order entered 9 April 2013 by
Judge Joseph J. Williams, from orders entered 19 March 2012,
9 August 2012, and 8 November 2012 by Judge Stephen V. Higdon,
and from order entered 17 April 2012 by Judge N. Hunt Gwyn, all
in Union County District Court. Heard in the Court of Appeals
7 April 2014.
Law Office of Shawna Collins, by Carrie L. Quick, for
plaintiff–appellee.
John P. Bennett, Sr., pro se, for defendant–appellant.
MARTIN, Chief Judge.
Defendant father appeals from an order awarding sole
-2-
custody of minor child R.H.B. to plaintiff1 mother, and awarding
father specified afternoons of supervised visitation and
overnight weekend visitations in father’s home only if his other
daughter from a previous relationship is not in the home. We
affirm.
Our recitation of the facts and procedural history is
limited to those deemed relevant to the issues before us on
appeal. The evidence in the record tended to show that father
and mother were married in 2003, divorced in 2007, and that the
minor child, R.H.B., was born to the marriage in 2004. In
September 2008, father and mother entered into a Child Custody
Agreement, which established that they would share joint custody
of R.H.B., vested the minor child’s primary physical custody in
mother, and set forth father’s visitation schedule and monthly
child support obligations. In February 2009, the trial court
entered an order which decreed that all matters of child custody
were resolved by the parties’ September 2008 Child Custody
Agreement, and that this Agreement was to be incorporated as an
order of the trial court.
In September 2010, father moved to reduce the amount of his
1
Although the record reflects plaintiff’s name as “Candace Hanes
Knowles,” “Candace Knowles (now Arnett),” and “Candace H.
Arnett,” the appellation representing this party in our caption
matches that of the trial court’s 9 April 2013 order, which
identifies this party as “Candance Knowles (Arnett).”
-3-
court-ordered-by-agreement child support obligation on the
grounds that his income had decreased because M.M.B., his then-
seventeen-year-old daughter from a previous relationship, was
living with him and required ongoing outpatient and in-hospital
medical treatment for her diagnoses of severe schizoaffective
disorder and post-traumatic stress syndrome. In December 2010,
after attending court-ordered mediation to resolve subsequent
issues related to custody or visitation, the parties entered
into a Parenting Agreement, which was also entered as an order
of the trial court. Among the “Special Parenting Arrangements”
set forth in the Parenting Agreement was the provision that
“[b]oth parents agree that [R.H.B.] will not be left in the
primary care of her sister, [M.M.B.]”
In March 2012, mother filed a motion to modify father’s
visitation and moved for an ex parte suspension of his
visitation until the matter could be heard. Mother alleged
that, two days before filing the motion, she learned that
father’s daughter, M.M.B., was “recently arrested” for
“felon[ious] assault inflicting serious bodily injury with
aggravated physical force,” which the record indicates was
related to an incident from 2009 when an employee of a medical
facility for the North Carolina Department of Correction was
allegedly the victim of a “[b]rutal [a]ssault” that “includ[ed]
-4-
[s]trangulation.” Mother also alleged in her motion that
M.M.B.’s mental health disorders “cause[d] significant and
drastic unprovoked reactions from [M.M.B.,] such as jumping out
of moving vehicles, running out of the residence at night,
suicidal thoughts, and paranoia regarding those that attempt to
take care of her.” Mother also alleged that: because M.M.B.’s
“mental health issues are so significant[, father] . . . has
been unable to work and has provided 24 hour care for her since
at least January of 2011”; M.M.B. left father’s residence after
dark and father “chas[ed] his older daughter while the minor
child, [R.H.B.,] was following behind with no shoes and with
little to no supervision from [father]”; and R.H.B.’s teachers
have indicated that R.H.B. “appears exhausted and extremely
tired on the days that [father] returns the minor child to
school” and “has incurred several tardies this school year on
the days [father] returns her to school because [father] is
late.” Mother further alleged that R.H.B. “now makes little
indication to [mother] of anything regarding [father’s] home and
the minor child’s well-being at [father’s] home due to fear of
her being in trouble with [father] or [father] being upset with
her.” As a consequence of these and other allegations, mother
asserted that there had been a substantial change in
circumstances since the entry of the prior child custody and
-5-
visitation orders warranting a modification of custody and
visitation, and moved the trial court to enter an ex parte order
suspending father’s visitation pending a hearing on the matter.
One week later, on 19 March 2012, the court entered an ex
parte order suspending father’s visitation with R.H.B. pending a
hearing. In June 2012, father moved to rescind the ex parte
order and moved to dismiss mother’s motion to modify visitation.
On 22 February 2013, father moved to exclude all of mother’s
witnesses from the hearing on this matter due to mother’s
purported failure or refusal to timely serve a list of such
witnesses upon father in contravention of N.C.G.S. § 1A-1,
Rule 26 and local district court rules. The motion was denied
on 25 February 2013.
On 9 April 2013, the trial court considered the motion
regarding the ex parte order suspending father’s visitation and
the motion to modify custody and visitation. After making
extensive findings of fact——many of which concern M.M.B.’s
mental health issues and various incidents of violence and other
disruptive or erratic behaviors related to those issues and
disorders——the trial court concluded that there had been a
substantial change in circumstances affecting the welfare of the
minor child, R.H.B., since the entry of the last orders
concerning child custody and visitation. The court awarded
-6-
mother sole custody of the minor child and awarded father
limited supervised visitation with the minor child, and ordered
that such visitation “may be expanded to include overnight
weekend visitations” “[s]hould [M.M.B.] not be in the father’s
home,” but that, “as long as [M.M.B.] remains in [father’s]
home[,] overnight visitations will not take place.” Finally,
the court found that, on the day the ex parte order was issued,
“there was no emergency custody situation that existed whereby
the child was being physically assaulted or sexually abused,”
and father “had not removed the child from the [S]tate with an
intent to avoid the [c]ourt’s jurisdiction”; thus, the court
determined that the 19 March 2012 ex parte order “was improperly
entered and should not be extended.” Father appeals from the
9 April 2013 order modifying custody and visitation, as well as
from the ex parte order that had suspended his visitation, from
an order for Eastover Psychological and Psychiatric Group, P.A.
to produce any and all medical records concerning and associated
with M.M.B., from an order compelling the production of medical
records specifically for 2012 from Eastover Psychological and
Psychiatric Group, P.A. concerning and associated with M.M.B.,
and from an order denying father’s motion for a protective order
of these same medical records.
_________________________
-7-
Father first contends the trial court erred by denying his
motion to exclude all of mother’s witnesses at the hearing due
to father’s allegation that mother’s counsel purportedly failed
or refused to timely serve a list of such witnesses upon him in
contravention of local district court rules. “It is a general
rule that orders regarding matters of discovery are within the
discretion of the trial court and will not be upset on appeal
absent a showing of abuse of discretion.” Hudson v. Hudson,
34 N.C. App. 144, 145, 237 S.E.2d 479, 480, disc. review denied,
293 N.C. 589, 239 S.E.2d 264 (1977); see also White v. White,
312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (“A ruling
committed to a trial court’s discretion is to be accorded great
deference and will be upset only upon a showing that it was so
arbitrary that it could not have been the result of a reasoned
decision.”).
Father asserts, without any legal support, that he is
entitled to a new trial because he suffered “substantial and
irreparable prejudice” as a result of the court’s denial of his
motion to exclude all of mother’s witnesses. He argues that
opposing counsel’s failure to provide a copy of mother’s witness
list was contrary to Rule 18.4 of Judicial District 20B’s Family
Court and General Civil Court Rules (“the Rules”). Rule 18.4
provides: “Attendance at Pretrial Conferences are mandatory for
-8-
all attorneys of record and all parties. The purpose of a
pretrial conference [includes] . . . to finalize proposed
witness lists.” Loc. Rules for Dist. Ct., N.C. Jud. Dist. 20B,
Fam. Ct. & Gen. Civ. Ct. Rules, R. 18.4 (effective Sept. 1,
2012). “[F]ailure of the opposing party to cooperate with
providing the appropriate information/documents to complete the
order may result in the imposition of sanctions.” Id. The
Rules also provide that “[t]he Case Coordinator and the Judge
shall schedule . . . pretrial conferences as necessary to comply
with these [R]ules.” Loc. Rules for Dist. Ct., N.C. Jud.
Dist. 20B, Fam. Ct. & Gen. Civ. Ct. Rules, R. 18.1 (effective
Sept. 1, 2012). Our review of the record shows that no such
pretrial conference was scheduled by the court or by a case
coordinator, even though father asserts that he met with
mother’s counsel “in what [father] considered a pretrial
conference.”
Instead, the record shows that, during a 22 October 2012
hearing, father asked the court for “any sort of pretrial
meeting or anything like that to determine who [mother is] going
to call for witnesses,” to which the court responded: “You can
communicate with [mother’s counsel], but I don’t know there’s
any requirements for those matters as far as——at this stage as
far as pretrial conference, getting each other a list of
-9-
witnesses.” After this hearing, father stepped out of the
courtroom and spoke to mother’s counsel, during which time
father asserts he asked counsel for a copy of mother’s witness
list. Although father suggests, without support, that he
“considered [this conversation] a pretrial conference” that
would invoke the requirements and obligations of Local
Rule 18.4, because the record does not show that father
requested this information in accordance with the procedures set
forth by any local rule or statutory provision, we cannot agree
with his contention that the trial court’s decision to deny his
motion to exclude mother’s witnesses was a prejudicial error in
contravention to law. Rather, the record shows that mother’s
counsel stated the following in open court:
I told him I didn’t have a problem providing
that information as long as he used the
proper procedures [in accordance with
N.C.G.S. § 1A-1, Rule 26] and
(unintelligible) accordingly. I explained
to him that there were rules to do that and
it was for him to issue those to [mother] so
that she could comply. We never received
that information.
Consequently, after determining that father’s motion was “not
requested in the proper manner to put it before the court and
would be an issue,” the court denied father’s motion. Because
father has not presented argument to establish that the trial
court’s decision to deny father’s motion to exclude mother’s
-10-
witnesses “was so arbitrary that it could not have been the
result of a reasoned decision,” see White, 312 N.C. at 777,
324 S.E.2d at 833, we decline to consider this issue further.
Father next contends the trial court erred by concluding
that there has been a substantial change in circumstances
affecting the welfare of the minor child. In cases involving
child custody, which matters “expressly include visitation
rights,” Browning v. Helff, 136 N.C. App. 420, 423, 524 S.E.2d
95, 97 (2000), “the trial court is vested with broad
discretion.” Id. “The decision of the trial court should not
be upset on appeal absent a clear showing of abuse of
discretion.” Id. “As in most child custody proceedings, a
trial court’s principal objective is to measure whether a change
in custody will serve to promote the child’s best interests.”
Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253
(2003). “Therefore, if the trial court does indeed determine
that a substantial change in circumstances affects the welfare
of the child, it may only modify the existing custody order if
it further concludes that a change in custody is in the child’s
best interests.” Id.When “facts pertinent to [a] custody issue were not
disclosed to the court at the time the original custody decree
was rendered, courts have held that a prior decree is not res
-11-
judicata as to those facts not before the court.” Newsome v.
Newsome, 42 N.C. App. 416, 425, 256 S.E.2d 849, 854 (1979).
“[W]here facts affecting a child’s welfare existed at the time
of the entry of a custody decree but were not disclosed to the
court, . . . these facts may be considered in a subsequent
custody determination.” Id.; see also Woodring v. Woodring,
__ N.C. App. __, __, 745 S.E.2d 13, 20 (2013) (“[W]hen
evaluating whether there has been a substantial change in
circumstances, courts may only consider events which occurred
after the entry of the previous order, unless the events were
previously undisclosed to the court.” (emphasis added)).
A close examination of father’s argument with respect to
this issue on appeal reveals that he challenges only one of the
trial court’s seventy-five findings of fact. However, even
without this challenged finding of fact, father concedes that,
“yes[,] you can draw that conclusion[——that there has been a
substantial change in circumstances——]from the finding of facts
[sic] that were entered.” Instead, it appears that father
argues that the court’s conclusion that there has been a
substantial change in circumstances affecting the welfare of the
minor child was in error because “most were facts know [sic] for
years” by mother. However, as we recognized above, when
considering whether there has been a substantial change in
-12-
circumstances affecting the welfare of the child, a court may
consider events which occurred after the entry of a previous
custody order when such events were previously undisclosed to
the court. See Woodring, __ N.C. App. at __, 745 S.E.2d at 20.
Here, father has not demonstrated that the events that are the
subject of the extensive findings of fact in the court’s 9 April
2013 order were disclosed to the court before it entered its
December 2010 order, which incorporated the parties’ Parenting
Agreement to modify child custody and visitation with respect to
the minor child, R.H.B. Thus, he has not shown that the court
erred or abused its discretion by considering these events in
concluding that there has been a substantial change in
circumstances affecting the welfare of the minor child, and we
overrule this issue on appeal.
Finally, father contends the trial court erred by declining
to consider his N.C.G.S. § 1A-1, Rule 60(b) motion, filed with
the trial court in June 2013, in which he prayed that the court
vacate the orders from which he had appealed to this Court two
months prior. The record indicates that the trial court
declined to consider father’s June 2013 Rule 60(b) motion
because the court concluded that it had been divested of
jurisdiction to hear the motion upon father’s filing of a notice
of appeal for the present appeal.
-13-
“The trial court does not have jurisdiction . . . to rule
on motions pursuant to Rule 60(b) where such motion is made
after the notice of appeal has been given.” York v. Taylor,
79 N.C. App. 653, 655, 339 S.E.2d 830, 831 (1986); see also
Wiggins v. Bunch, 280 N.C. 106, 111, 184 S.E.2d 879, 881 (1971)
(“[T]he general rule is that when an appeal is taken from the
district court the latter court is divested of jurisdiction,
except to take action in aid of the appeal, until the case is
remanded to it by the appellate court.” (emphasis added)
(internal quotation marks omitted)). “As a general rule, an
appellate court’s jurisdiction trumps that of the trial court
when one party files a notice of appeal unless the case has been
remanded from the appellate court for further determination in
the trial court.” Hall v. Cohen, 177 N.C. App. 456, 458,
628 S.E.2d 469, 471 (2006) (emphasis added), appeal after
remand, 186 N.C. App. 132, 650 S.E.2d 67 (2007) (unpublished);
see also Wiggins, 280 N.C. at 111, 184 S.E.2d at 881 (“[D]uring
the pendency of an appeal it is generally held that the district
court is without power . . . to vacate, alter or amend the
judgment under Rule 60(b), whether the 60(b) motion is made
prior to or after the appeal is taken, except with permission of
the appellate court.” (emphasis added) (internal quotation marks
omitted)). “Upon the appellate court’s notification of a
-14-
Rule 60(b) motion filed with the trial court, this Court will
remand the matter to the trial court so the . . . court may hold
an evidentiary hearing and indicate ‘how it [is] inclined to
rule on the motion were the appeal not pending.’” Hall,
177 N.C. App. at 458, 628 S.E.2d at 471 (alteration in original)
(quoting Bell v. Martin, 43 N.C. App. 134, 142, 258 S.E.2d 403,
409 (1979), rev’d on other grounds, 299 N.C. 715, 264 S.E.2d 101(1980)).
In the present case, father failed to notify this Court
that he had filed a Rule 60(b) motion with the trial court and
has not sought remand. Accordingly, the trial court correctly
determined that it lacked jurisdiction to consider father’s
Rule 60(b) motion after notice of appeal had been filed, and we
overrule this issue on appeal. See also Alekman v. Ashley’s
Lawn Care & Landscaping, Inc., 185 N.C. App. 158, slip op. at 11
(2007) (unpublished) (“Here, plaintiffs filed a notice of appeal
. . ., yet plaintiffs failed to notify this Court of their
Rule 60(b) motion . . . . Thus, the trial court had no
jurisdiction to hear a Rule 60(b) motion after notice of appeal
has been filed. Plaintiffs failed to properly notice their
Rule 60 motion for hearing. This assignment of error is
overruled.” (citations omitted)).
Because father’s remaining issue on appeal concerns an
-15-
argument that was not presented to the trial court for
consideration during the proceedings, we decline to consider it
for the first time on appeal.
Affirmed.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).