Hunt v. Long ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Appellate Procedure.
NO. COA13-1455
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
THOMAS LEWIS HUNT,
Plaintiff,
v. Columbus County
No. 12 CVD 1501
VELMA LONG,
Defendant
Appeal by defendant from order entered 10 September 2013 by
Judge Jerry A. Jolly in Columbus County District Court. Heard
in the Court of Appeals 3 June 2014.
No brief filed for plaintiff-appellee.
Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson,
for defendant-appellant.
HUNTER, Robert C., Judge.
Velma Long (“defendant”) appeals from an order granting
sole and exclusive custody of her grandson, L.J.1, with L.J.’s
biological father, Thomas Lewis Hunt (“plaintiff”). On appeal,
defendant argues that the trial court’s findings of fact do not
support its conclusion of law that plaintiff did not act
1
A pseudonym will be used to protect the identity and privacy of
the minor involved in this case.
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inconsistently with his constitutionally protected status as
L.J.’s natural parent, or in the alternative, that the trial
court failed to enter findings of fact or conclusions of law
addressing plaintiff’s fitness to be a parent.
After careful review, we reverse the trial court’s order
and remand for further proceedings.
Background
The following evidence was presented before the trial
court: Defendant’s daughter, Tanya, and plaintiff were involved
in a romantic relationship that resulted in the birth of L.J. in
June 2007. Tanya and L.J. lived with plaintiff in his home in
Chadbourn, North Carolina. Around April 2008, Tanya ended the
relationship with plaintiff and moved into defendant’s home with
L.J. A year later, Tanya and L.J. moved into a mobile home on
defendant’s property.
Defendant testified that she was L.J.’s primary caretaker
even though he lived with Tanya. She estimated that L.J. was
with her roughly seventy percent of the time due to Tanya’s work
obligations. When L.J. was an infant, defendant would bathe
him, feed him, change his diapers, and help potty train him.
L.J. required frequent trips to the doctor, during which
defendant would accompany him. Defendant also took a large role
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in helping to educate L.J. by enrolling him in school and paying
for his uniform, supplies, and transportation costs.
Throughout this time period, plaintiff would visit L.J. one
or two times per month. Conflicting testimony was presented
regarding how much plaintiff paid in child support; plaintiff
testified that he provided Tanya with $3,523.09 in support from
2010 to 2012, but the check stubs admitted into evidence as
proof of plaintiff’s payments amounted only to $1,545.00.
Plaintiff testified that he made repeated efforts to see L.J.,
but Tanya and defendant would ignore his phone calls.
Defendant testified that she thought plaintiff had an
alcohol problem, but plaintiff denied that allegation. However,
he admitted to being convicted of two DWIs and being charged
with a third, with his driver’s license being revoked after
being convicted of a DWI in 2008. Jeanne Suggs, defendant’s
niece and an acquaintance of plaintiff and Tanya, testified that
she frequently saw plaintiff drinking to excess, sometimes
beginning as early as ten o’clock in the morning. She also
described an instance where plaintiff drove under the influence
of alcohol after his license was revoked in 2008. Defendant
further testified that she stopped L.J. from going fishing with
plaintiff on one occasion because plaintiff had been drinking.
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Plaintiff testified that he did not think he had an alcohol
problem, but he admitted to drinking three or four beers after
work to relieve stress.
Tanya died in October 2012. Defendant testified that after
the funeral, she had a conversation with plaintiff in which he
intimated a desire to leave L.J. in defendant’s custody.
Plaintiff testified that he remembered having a conversation
with defendant at the funeral, and he admitted that he did not
ask defendant to give him custody of L.J. at that time.
In December 2012, plaintiff filed suit to establish
paternity and obtain full custody of L.J. After plaintiff’s
paternity was established, the trial court entered an order
giving him temporary physical custody over L.J., with visitation
rights for defendant. On 22 January 2013, defendant filed an
answer and counterclaim for full custody over L.J. After
conducting a hearing on 11 and 12 June 2013, the trial court
entered an order on 10 September 2013 awarding sole legal
custody to plaintiff and dismissing defendant’s counterclaim.
Defendant filed timely notice of appeal.
Discussion
I. Custody Award
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Defendant’s sole argument on appeal is that the trial court
erred by granting sole and exclusive legal custody over L.J. to
plaintiff. Because the trial court failed to enter findings of
fact and conclusions of law as to whether plaintiff was fit to
receive custody over L.J., we reverse the trial court’s order
and remand for further proceedings.
Under N.C. Gen. Stat. § 50-13.2(a) (2013), the trial court
generally must “award the custody of [a] child to such person,
agency, organization or institution as will best promote the
interest and welfare of the child.” See also Hedrick v.
Hedrick, 90 N.C. App. 151, 156, 368 S.E.2d 14, 17 (1988) (“The
best interests of the children are and have always been the
polar star in determining custody actions[.]”). However, a
parent has an “interest in the companionship, custody, care, and
control of [his or her children that] is protected by the United
States Constitution.” Price v. Howard, 346 N.C. 68, 73, 484
S.E.2d 528, 531 (1997). So long as a parent has this paramount
interest, a custody dispute between a parent and a nonparent may
not be determined by the “best interest of the child” test;
rather, the parent benefits from a presumption that he or she
will act in the best interest of the child. Price, 346 N.C. at
79, 484 S.E.2d at 534. However, “a natural parent may lose his
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constitutionally protected right to the control of his children
in one of two ways: (1) by a finding of unfitness of the natural
parent, or (2) where the natural parent’s conduct is
inconsistent with his or her constitutionally protected status.”
David N. v. Jason N., 359 N.C. 303, 307, 608 S.E.2d 751, 753
(2005). Because a finding of parental fitness does not preclude
a finding that a parent’s conduct is inconsistent with his or
her constitutionally protected status, David N., 359 N.C. at
307, 608 S.E.2d at 753, this test has been described as
“disjunctive” by our Courts, Mason v. Dwinnell, 190 N.C. App.
209, 222, 660 S.E.2d 58, 66 (2008).
Defendant specifically alleged in her counterclaim that
plaintiff was unfit to be a parent. At the hearing, significant
inquiry was made into defendant’s contention that plaintiff was
an alcoholic. Plaintiff admitted at the hearing that he had
been convicted on two DWI charges and had been charged with a
third. His driver’s license was revoked in 2008 as a result of
his second DWI, and as of the date of the hearing on 11 June
2013, he had not renewed his license. Plaintiff testified that
he drinks three or four beers after work to relieve stress, but
does not drink every day. Defendant and a number of witnesses
who took the stand on her behalf testified extensively as to
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various encounters they had with plaintiff during L.J.’s
lifetime where plaintiff appeared drunk, had passed out due to
excessive alcohol consumption, or had driven under the influence
of alcohol without a license.
Despite this evidence, the trial court failed to address
the alleged substance abuse issues or plaintiff’s fitness to be
a parent in its order. Rather, it concluded only that plaintiff
had not acted inconsistently with his constitutionally protected
status as L.J.’s natural parent and therefore declined to use
the “best interest of the child” test in its award of custody to
plaintiff. This Court has previously held that DWI convictions
and substance abuse are relevant considerations in determining
whether a parent is fit to have custody over a child. See
Raynor v. Odom, 124 N.C. App. 724, 731-32, 478 S.E.2d 655, 659-
60 (1996). We take no position as to whether the evidence
presented here was sufficient to support a finding of unfitness.
However, because unfitness is one avenue through which a
nonparent can reach the “best interest of the child” test in a
custody dispute with a natural parent, David N., 359 N.C. at
307, 608 S.E.2d at 753, this issue required determination by the
trial court. See Cunningham v. Cunningham, 171 N.C. App. 550,
558, 615 S.E.2d 675, 682 (2005) (“[T]he trial court must resolve
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all issues raised by relevant evidence that directly concern the
fitness of a party to have care, custody and control of a
child[.]”); Witherow v. Witherow, 99 N.C. App. 61, 63, 392
S.E.2d 627, 629 (1990) (“[T]he trial court need not make a
finding as to every fact which arises from the evidence; rather,
the court need only find those facts which are material to the
resolution of the dispute.”).
Conclusion
Because the trial court failed to address in its order
whether plaintiff was fit to have full care, custody, and
control over L.J., we reverse the trial court’s order and remand
for further proceedings.
REVERSED AND REMANDED.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).