Hall v. Hall ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-921
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
JUSTIN MORGAN HALL,
Plaintiff
v. Catawba County
No. 11 CVD 2481
STACY MARIE HALL,
Defendant.
____________________________________
JUSTIN MORGAN HALL,
Plaintiff,
v.
STACY MARIE HALL, Catawba County
Defendant, No. 11 CVD 2482
And
BRIAN COFFEY,
Defendant.
Appeal by defendant from order entered 21 December 2012 by
Judge Robert A. Mullinax, Jr. in Catawba County District Court.
Heard in the Court of Appeals 20 February 2014.
Wesley E. Starnes for plaintiff-appellee.
Crowe & Davis, P.A., by H. Kent Crowe, for defendant-
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appellant.
DAVIS, Judge.
Stacy Marie Hall (“Defendant”) appeals from the trial
court’s 21 December 2012 order granting Justin Morgan Hall
(“Plaintiff”) primary physical and legal custody of her minor
children “Luke” and “Nathan.”1 On appeal, she argues that the
trial court erred by (1) failing to apply the appropriate legal
standard in determining that Defendant had acted in a manner
inconsistent with her constitutionally-protected status as a
parent of Luke; and (2) making inadequate findings of fact to
support its conclusion that awarding primary custody to
Plaintiff was in the children’s best interests. After careful
review, we vacate the trial court’s order and remand for further
proceedings.
Factual Background
Plaintiff and Defendant were married in January of 2007 and
separated in June of 2011. During their marriage, the parties
had one child together, Nathan, who was born in 2007. Defendant
also has a child from a previous relationship with Brian Coffey
(“Mr. Coffey”), Luke, born in 2005.
1
Pseudonyms are used throughout the opinion to protect the
privacy of the minor children.
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Following their separation, Plaintiff filed a complaint in
Catawba County District Court on 12 August 2011 seeking primary
custody of Nathan, child support, equitable distribution, and
attorneys’ fees. Plaintiff also sought emergency custody of
Nathan, alleging that (1) Defendant had moved to Ohio to live
with her boyfriend, leaving both minor children in Plaintiff’s
care; (2) Defendant had then threatened to take the children to
Ohio; and (3) Plaintiff was concerned that Defendant would flee
to Ohio with the children in an attempt to elude the
jurisdiction of North Carolina’s courts. The trial court
granted temporary emergency custody of Nathan to Plaintiff.
Also on 12 August 2011, Plaintiff filed a separate
complaint against Defendant and Mr. Coffey seeking emergency
custody, temporary and permanent custody, and child support for
Luke. Plaintiff was granted temporary emergency custody of
Luke. On 18 August 2011, Mr. Coffey filed an answer denying
Plaintiff’s allegations that Mr. Coffey had not made significant
efforts to contact or establish a relationship with Luke and
requesting that the trial court award custody “to the person or
persons legally entitled and whom the court concludes will act
in the best interest of [Luke].”
On 14 October 2011, the trial court entered a temporary
custody order regarding Luke which continued primary physical
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custody with Plaintiff and established a visitation schedule for
Defendant and Mr. Coffey. In that order, the trial court
concluded that Defendant and Mr. Coffey had “acted
inconsistently with their constitutionally protected status and
thereby waived their status as the biological parents of the
minor child, [Luke].” On 17 October 2011, the trial court
entered a temporary custody order continuing primary physical
custody of Nathan with Plaintiff and establishing a visitation
schedule for Defendant.
On 3 January 2012, Defendant filed answers and
counterclaims seeking custody of Luke and Nathan. On 17 July
2012, Defendant filed motions (1) alleging that Plaintiff had
violated the trial court’s temporary custody orders by taking
the minor children out of state to Myrtle Beach, South Carolina
and by consuming alcohol in the children’s presence; and (2)
requesting that the trial court hold him in contempt.
The parties’ respective claims for child custody and
support and Defendant’s motion for contempt came on for hearing
on 18 September 2012. On 21 December 2012, the trial court
entered an order (1) concluding that Defendant and Mr. Coffey
had “acted in a manner inconsistent with their constitutionally
protected status as parents of the minor children”; (2) granting
primary physical and legal custody of Luke and Nathan to
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Plaintiff; (3) establishing a summer and holiday visitation
schedule for Defendant with both children; (4) establishing a
visitation schedule for Mr. Coffey with Luke; and (5) holding
Plaintiff in contempt for violating the temporary custody orders
and ordering him to pay $250.00. Defendant gave timely notice
of appeal to this Court.
Analysis
Initially, we note that Defendant failed to serve Mr.
Coffey with copies of her brief and the record on appeal until
well after the time requirements set forth in the Appellate
Rules of Procedure. Plaintiff contends that these violations
require dismissal of her appeal as to Luke, Mr. Coffey’s
biological son.
It is well established that a violation of the
jurisdictional rules governing the taking of an appeal requires
this Court to dismiss the appeal. See Dogwood Dev. & Mgmt. Co.
v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365
(2008) (“A jurisdictional default . . . precludes the appellate
court from acting in any manner other than to dismiss the
appeal.”). However, the violations in the present case were
nonjurisdictional and, consequently, do not mandate our
dismissal of this appeal.
Here, Defendant served Mr. Coffey with her notice of appeal
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in accordance with Rule 3 of the North Carolina Rules of
Appellate Procedure, thereby apprising him of the appeal,
affording him the opportunity to participate, and conferring
jurisdiction upon this Court. See Bailey v. State, 353 N.C.
142, 156, 540 S.E.2d 313, 322 (2000) (“In order to confer
jurisdiction on the state’s appellate courts, appellants of
lower court orders must comply with the requirements of Rule 3
of the North Carolina Rules of Appellate Procedure.”).
Defendant’s subsequent failure to timely serve Mr. Coffey with
the record on appeal and her brief — although a violation of the
Appellate Rules — does not compel us to dismiss the appeal. See
Henlajon, Inc. v. Branch Highways, Inc., 149 N.C. App. 329, 333,
560 S.E.2d 598, 602 (2002) (explaining that rule governing
timing of service of documents on other parties is not
jurisdictional and “does not automatically mandate dismissal”).
Because we conclude that Defendant’s violation has not
frustrated the adversarial process and does not impede our
review of this appeal, we proceed to address the merits of the
case. See Dogwood, 362 N.C. at 200, 657 S.E.2d at 366-67
(stating that appellate court may consider “whether and to what
extent the noncompliance [with the Appellate Rules] impairs the
court’s task of review and whether and to what extent review on
the merits would frustrate the adversarial process” when
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determining if there was a substantial failure or gross
violation of the appellate rules).
I. Defendant’s Constitutionally-Protected Status as Parent
A legal parent enjoys a “constitutionally protected
paramount interest in the companionship, custody, care, and
control of his or her child.” Price v. Howard, 346 N.C. 68, 79,
484 S.E.2d 528, 534 (1997). As such, in a custody dispute
between a legal parent and a non-parent, the best interests
standard applies only if the trial court first finds by clear
and convincing evidence that the legal parent’s conduct has been
inconsistent with his or her constitutionally-protected status.
Best v. Gallup, 215 N.C. App. 483, 490, 715 S.E.2d 597, 601
(2011), appeal dismissed and disc. review denied, ___ N.C. ___,
724 S.E.2d 505 (2012). Defendant contends that in the present
case, it is not clear whether the trial court applied the
appropriate “clear and convincing evidence” standard when it
concluded that Defendant had acted inconsistently with her
constitutionally-protected status as a parent when determining
custody of Luke. We agree.
In Bennett v. Hawkes, 170 N.C. App. 426, 613 S.E.2d 40
(2005), the trial court awarded primary physical custody of the
child to her paternal grandparents. In its order, the trial
court concluded as a matter of law that the child’s mother and
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father “have acted inconsistently with their constitutionally
protected status as parents” and that “[t]he best interest of
the minor child will be served by residing primarily with the
[paternal grandparents].” Id. at 427-28, 613 S.E.2d at 41. On
appeal, this Court held that remand was required because it was
unclear which standard the trial court had applied when
considering whether the appellant-mother had acted
inconsistently with her parental status. Id. at 429, 613 S.E.2d
at 42. We explained that the trial court’s failure to
articulate the standard it applied was “critical” because “while
the general standard of proof in child custody cases is by a
preponderance of the evidence, . . . where the natural parent’s
constitutionally protected status is at issue, the standard of
proof is clear and convincing evidence.” Id.
As in Bennett, we cannot determine in the present case
which standard the trial court employed when considering
Defendant’s constitutionally-protected status as Luke’s parent.
Neither the permanent custody order entered on 21 December 2012
nor the temporary order entered on 14 October 2011 articulated
the standard of proof the trial court used when concluding that
Defendant had acted inconsistently with her constitutionally-
protected status as Luke’s parent. As such, on remand, the
trial court is directed to utilize the “clear and convincing
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evidence” standard in evaluating whether Defendant has acted
inconsistently with her constitutionally-protected status as a
parent.
II. Sufficiency of the Findings of Fact
Defendant also argues on appeal that the trial court’s
findings of fact are insufficient to support its ultimate
conclusion that awarding primary physical and legal custody of
both Luke and Nathan to Plaintiff was in the children’s best
interests. It is well established that when entering a custody
order, the trial court must make sufficient findings of fact to
support its conclusions of law. Peters v. Pennington, 210 N.C.
App. 1, 13, 707 S.E.2d 724, 733 (2011); see N.C. Gen. Stat. §
50-13.2(a) (2013) (“An order for custody must include findings
of fact which support the determination of what is in the best
interest of the child.”). “The determination of what will best
promote the interest and welfare of the child, that is, what is
in the best interest of the child, is a conclusion of law, and
this conclusion must be supported by findings of fact as to the
characteristics of the parties competing for custody.” Hunt v.
Hunt, 112 N.C. App. 722, 728, 436 S.E.2d 856, 860 (1993)
(internal citation and quotation marks omitted). This Court
reviews whether the trial court’s findings adequately support
its ultimate conclusions de novo on appeal. Carpenter v.
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Carpenter, ___ N.C. App. ___, ___, 737 S.E.2d 783, 785 (2013).
Here, the custody order gave primary physical and legal
custody of both children to Plaintiff. Consequently, in order
to support this custody arrangement for Nathan, the court was
required to make findings demonstrating that the award of
primary custody to Plaintiff was in Nathan’s best interests.
See Everette v. Collins, 176 N.C. App. 168, 173, 625 S.E.2d 796,
799 (2006) (“In a custody dispute between two natural parents
‘the best interest of the child’ test must be applied.”).
However, because Plaintiff is not Luke’s biological father,
in order to support its decision to grant Plaintiff primary
custody of Luke, the trial court was required to make adequate
findings supporting a determination both that (1) Defendant had
acted in a manner inconsistent with her constitutionally-
protected status as Luke’s biological parent; and (2) placing
primary custody of Luke with Plaintiff was in Luke’s best
interests. See Davis v. Swan, 206 N.C. App. 521, 525, 697
S.E.2d 473, 476-77 (2010) (“[T]he best interests of the child
standard applies in a custody dispute between a legal parent and
a non-parent when clear and convincing evidence demonstrates
that the legal parent’s conduct has been inconsistent with his
or her constitutionally protected status.”), disc. review
denied, ___ N.C. ___, 706 S.E.2d 239 (2011).
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Findings adequate to support the legal conclusion that
awarding custody to a particular party will be in the best
interests of the child should address the characteristics of the
competing parties and “may concern physical, mental, or
financial fitness or any other factors brought out by the
evidence and relevant to the issue of the welfare of the child.”
Hall v. Hall, 188 N.C. App. 527, 532, 655 S.E.2d 901, 905 (2008)
(citation and quotation marks omitted). These findings must be
more than conclusory statements or recitations of the evidence;
instead, they must resolve the issues in dispute and bear upon
the parties’ respective fitness to care for the child.
Carpenter, ___ N.C. App. at ___, 737 S.E.2d at 787.
A custody order is fatally defective where
it fails to make detailed findings of fact
from which an appellate court can determine
that the order is in the best interest of
the child, and custody orders are routinely
vacated where the “findings of fact” consist
of mere conclusory statements that the party
being awarded custody is a fit and proper
person to have custody and that it will be
in the best interest of the child to award
custody to that person. A custody order
will also be vacated where the findings of
fact are too meager to support the award.
Id. (citation and brackets omitted).
Here, in concluding that Plaintiff should be awarded
primary physical and legal custody of Luke and Nathan, the trial
court made the following pertinent findings of fact:
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1. The minor child, [Luke], . . . is the
biological child of Stacy Hall and Brian
Coffey.
2. The minor child [Luke] is in the 2nd
grade at Jenkins Elementary School.
3. During the 2011-2012 academic school
year, [Luke’s] teacher was Ms. Perez in the
first grade.
4. Mr. Hall picked [Luke] up from Jenkins
and dropped him off [at] Jenkins; he was a
“room parent” whereby he volunteered at the
school, assigning various other parents to
volunteer in the classroom. He attended
field trips, parent-teacher association
events and meetings, provided snacks and
materials for the class.
5. According to Ms. Perez’ testimony, Mr.
Hall performed his duties as “room parent”
exceptionally and was the single most-
involved parent in the first grade class for
2011-2012 at Jenkins Elementary School.
6. The minor child, [Luke], presented with
no consistent behavioral problems, although
he did disrupt class some in the beginning
of the year. He did so by exhibiting
behavior such as bringing a bug into the
classroom via his pants’ pocket, talking in
line, and playing and talking during carpet
time. As evidenced by his mid-year behavior
chart, his behavior improved considerably as
the year progressed. Ms. Perez has never
met Brian Coffey; she has met Ms. Stacy Hall
once, in the cafeteria, when she came to
have lunch with [Luke]. Ms. Perez conducted
either three (3) or four (4) parent-teacher
conferences with Mr. Hall, two of which Ms.
Perez initiated and two of which, Mr. Hall
initiated. In the 2011-2012 academic year,
the minor child [Luke] was tardy on an
unexcused basis 25 times, an amount which is
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unacceptable and excessive.
7. [Luke’s] current teacher is a Ms. Mary
Rose Grimes who teaches the second grade at
Jenkins Elementary School, and has for
approximately the last 12 years. According
to [Luke’s] progress report, he has had an
excellent start to the second grade. Mr.
Hall has again, agreed to be [Luke’s] “room
parent,” again volunteering and agreeing to
assist with events such as the Walk-a-Thon.
Ms. Grimes has met both Mr. Coffey and Ms.
Hall at the “sneak preview” which took place
the day before school started. Ms. Grimes
also received an electronic mail
communication from Mr. Coffey, asking how
the minor child [Luke] was doing. Jenkins
Elementary School is a school of
distinction. The minor child [Luke] is an
active participant in the mileage club which
meets on Fridays and encourages the children
to get out and exercise. In the year 2012,
he has logged 42.2 miles.
8. The minor child, [Nathan], . . . is a
product of the marriage between Mr. and Ms.
Hall. The minor child is enrolled in
Kindergarten at Jenkins, and his teacher is
Ms. Karen Taylor. She has assisted the
minor child, [Nathan], in learning his
numbers and letters, and learning to write
his name. Mr. Justin Hall volunteers
approximately one (1) time per week in the
minor child’s classroom. Ms. Taylor met Ms.
Hall at a “sneak preview” event similar to
the one conducted by Ms. Grimes; she has
received an e-mail request from Ms. Hall to
receive e-mail updates on [Nathan’s]
progress. She has received several e-mails
from Ms. Hall referencing the minor child,
[Nathan]. [Nathan] has had his frog moved
one time for talking on the carpet.
. . . .
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10. . . . . Justin Hall is employed at ICM
Distribution. In 2011, he made $59,000.
His earnings are 100% commission based. His
work requires extensive travel, Monday
through Thursday, to places such as
Greensboro, Winston-Salem, Boone,
Fayetteville; Knoxville, Tennessee; and
Blacksburg, Virginia area. His travel
requires that he spend 10-11 nights per year
away from home. He makes bi-annual trips in
January and June to the Outer Banks. He is
off Friday, Saturday, and Sunday.
. . . .
12. Mr. Hall has donated school supplies to
both of his minor children’s classes. He is
the head coach of [Luke’s] basketball team
at the Hickory Rec Department, a 5 and 6-
year old league. Games were in November and
December 2011 on Tuesdays and Thursdays
every week for six (6) weeks. He had no
assistance, and 6-8 people were on the team
known as the Hickory Tigers. The minor
child [Luke] is in Pack 1 of the Tiger
Scouts which meets at Corinth Reformed
Church. There are 6-7 Scouts in his troop
which meets once per week on Mondays at 6:30
p.m. The meetings began six (6) weeks after
school started in the 2012 academic school
year. [Luke] has only missed 2-3 Tiger
Scout meetings. Mr. Hall is the Associate
Den Leader, David Ohler is the Den Leader.
The minor child [Luke] played machine-
pitched baseball from April through the end
of May 2012 at the St. Stephens Optimist
Club. Mr. Hall was the volunteer Assistant
Manager. Mr. Coffey came to half the games.
Mr. Hall purchased uniforms and equipment
and was present for all practices and games.
. . . .
14. Mr. Hall attends LakeView Baptist Church
and with the help of his mother, sees to it
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that [Luke] attends Sunday School, church,
and is involved in the Youth Choir. Both
[Nathan] and [Luke] participated in the 2011
children’s Christmas play, with [Nathan]
playing the role of a shepherd.
15. The minor child, [Nathan], plays soccer
for the BlackHawks; Mr. Hall is an assistant
coach. Games were held in January and
February 2012. The minor children typically
spend every other Saturday night with Mr.
Hall’s parents and a weekend night once per
month with a member of Ms. Hall’s family.
16. Ms. Hall has exercised considerable,
additional visitation time than that
contemplated by the Temporary Order of
Custody entered in August 2011. Those
visits have included two (2) consecutive
overnights.
17. Ms. Hall has provided Mr. Hall with zero
dollars and zero cents for the support and
maintenance of the minor children since the
entry of the Temporary Order of Child
Custody, although she has purchased [a]
substantial amount of clothing including
shorts and shoes; food and snacks for the
minor children. On June 29, Ms. Hall took
the minor children to Ocean Isle Beach,
North Carolina for a 2-night vacation. Mr.
Hall did not go, and had no objection to Ms.
Hall’s request. Simultaneously, the Hall
family was vacationing in Horry County,
South Carolina. Ms. Hall took the children
from Ocean Isle Beach, North Carolina, to
Myrtle Beach, South Carolina. The minor
children stayed at the beach with the Halls;
3-4 days after the beginning of the Hall
family vacation, Ms. Stephanie Adams, a
former girlfriend of Mr. Hall, arrived.
They dated for approximately 5½ months. She
has three (3) children, ages 7, 3, and 10½
months. The children have three (3)
separate fathers, one of whom is deceased.
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Ms. Adams stayed overnight for two (2)
nights at the Hall family 4-bedroom vacation
rental home.
18. Mr. Hall explains the minor child
[Luke’s] excessive tardies as a result of
his disturbing tendency to oversleep. His
former bedtime was between midnight and 2:30
a.m. His testimony is that he has
alleviated the problem by going to bed
around 11:00 p.m. His efforts as a father
to the minor child [Nathan] and as a father
figure to the minor child [Luke] are
admirable, although his failure to have the
minor child [Luke] at school on time has
denied the minor child access to the Pledge
of Allegiance, reading time, and most
importantly to the lesson that no one likes
to be kept waiting. Mr. Hall has taken the
minor children camping at the Bear Den near
Asheville, North Carolina and in Jefferson,
in the extreme northwest corner of North
Carolina. He has facilitated friendships
between [Nathan] and a boy named James and
between [Luke] and boys named Cole and
Kelly.
19. December 12-17, 2011, Ms. Hall stayed
with Mr. Hall to facilitate additional time
to spend with her minor children. On
December 15, Ms. Hall allowed the minor
children to miss school to visit with her.
She has participated in watching ballgames
and taking the minor children to and from
school when she is in Catawba County, North
Carolina. She uses her uncle Ronnie’s
residence as well as Mr. Hall’s residence as
well as motels to facilitate her visits.
20. On approximately three (3) occasions,
the Halls had difficulty with the minor
child [Luke’s] conclusion of visits with his
mother.
21. Mr. Hall socializes with male and female
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patrons at a karaoke/sports bar known as
Crawdaddy’s. His favorite karaoke song is
“Rebel Yell,” by Billy Idol. He has a
friend named “Rainbow” whom he met at
Crawdaddy’s. In late January, he engaged in
a sexual relationship with a Ms. Laurel
Hendrix in his home while the minor children
were at their paternal grandparents’
residence.
22. In September 2011, the minor children
visited Horry County, South Carolina. Ms.
Hall was contacted, and provided no
resistance. The trips to South Carolina,
although a minimal violation of the Order,
are, in fact, violations of the Order; the
violations are willful and Ms. Hall’s either
implicit or explicit consent to the
violations is not a lawful excuse.
23. The minor children attended summer camp
and Bible school at LakeView Baptist Church,
and are “lively young men,” according to Ms.
Walker, their Sunday School teacher. Mr.
Hall served as a Sunday School teacher and
volunteered at the children’s church once
every two (2) to three (3) weeks. Ms. Stacy
Hall stayed with Mr. Justin Hall September
13- September 17, 2012, again to facilitate
time with the minor children.
24. Ms. Donna Hall, the minor child
[Nathan’s] paternal grandmother, is employed
at Hickory High School as a registered nurse
and as a health science teacher. She picks
up both boys after school at approximately
3:10 p.m. some two (2) to three (3) times
per week. She keeps the boys some two (2)
to three (3) times per week until Mr. Hall
returns from work. She lives with her
husband in a 3-bedroom home. She took the
kids to Broadway at the Beach located in
Myrtle Beach, South Carolina. Her husband
is a program manager for a phone company,
and he works out of the home. Both Ms.
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Donna Hall and her husband assist Mr. Justin
Hall with expenses required to maintain the
minor children. Ms. Donna Hall attended
[Luke’s] first grade spring program,
“Pizza/Bingo Fundraiser” at Jenkins
Elementary School. She makes Sunday lunch
for the boys after church and attends the
boys’ various athletic events. She and the
minor children’s maternal grandmother, Anita
McKinney, have an excellent working
relationship which consists of weekly
contact and acknowledge that the boys love
them both. Involvement of both grandmothers
is necessitated, as it is in many
circumstances, specifically when a mother
moves to Ohio to live with her boyfriend.
25. Mr. Justin Hall and Ms. Stephanie Adams
consumed wine at the beach while the minor
children were in their physical possession,
again a direct violation of the Temporary
Order of Child Custody; no lawful excuse was
provided and the violation was willful.
. . . .
28. Ms. Stacy Hall is 27 years old, and
resides in Pickering, Ohio, some 18 miles
from Columbus. She moved to Ohio in July
2011 initially residing in New Albany, Ohio;
in September 2011 she moved to Pickerington.
From August 2011 until December 2011 she was
a staffing member for a home health care
service. From January through June 2012 she
worked at Buckeye Home Care from 9:00 a.m.
until 4:00 p.m. She made $15.00 per hour
and was a patient services director. She
worked for Mr. Earl Bruce, who is best-known
as the head football coach at Ohio State
University. He had the unenviable task of
replacing legendary Coach Woody Hayes, which
he did successfully, winning four (4) Big
Ten championships in a 7-year period. Coach
Bruce, unfortunately down-sized his company,
resulting in Ms. Hall’s current
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unemployment.
29. She receives unemployment checks in the
amount of $178.00 per week. She paints
apartment walls and puts up curtains for a
customer, and makes approximately $300 per
month. She is on track to graduate from
Limestone College with a liberal arts degree
via an online program in the Spring of 2013.
She receives FAFSA (Federal Student Aid) to
help with tuition costs. Prior to attending
Limestone College, she attended Catawba
Valley Community College in an attempt to
become a Certified Nurse’s Assistant (CNA).
The Court has received no information as to
bad faith or underemployment on her part and
declines to impute any income to Ms. Hall.
30. Ms. Hall is involved in a romantic
relationship with Mr. Justin Coolbaugh with
whom she moved to Ohio in June 2011. He is
the planning leader at Ensource, a natural
gas company; he has no children. They share
a 4-bedroom 2½ bathroom home that he owns,
and which is located some six (6) hours and
forty five minutes from Catawba County,
North Carolina. The residence is valued at
approximately $235,000.00. Initially, Ms.
Hall moved into a townhome in New Albany to
which she still has access. Mr. Coolbaugh
and Ms. Hall are engaged to be married and
have set a date of April 6, 2013.
31. She has dutifully and faithfully
exercised her every-other Saturday
visitation as contemplated by the Temporary
Child Custody Order. She either stays at
Mr. Hall’s home, a hotel, or Uncle Ronnie’s.
She filled out information to enroll the
minor children at Jenkins Elementary School
for the 2012-2013 academic school year. She
has made efforts to be involved in the minor
children’s academic and extra-curricular
activities, which efforts are made much more
difficult by her decision to follow Mr.
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Coolbaugh to central Ohio, some 6 hours and
45 minutes away from the only home that the
boys have ever known.
32. She took the minor children to Tweetsie
and hiking. She has heard the minor
children use profanity. In September 2011
Mr. Coolbaugh and Mr. Hall exchanged
pleasantries in the presence of the minor
child. In March 2012, Mr. Hall and Mr.
Coolbaugh again exchanged pleasantries at
[Nathan’s] soccer trophy presentation. Ms.
Hall provided birthday gifts and packages
for [Nathan] at a party at Glenn Hilton
Park, and took [Luke] fishing and had a
cookout at Uncle Ronnie’s for his birthday.
She made birthday bags for [Nathan’s] class
that consisted of candies and dollar coins
purchased at Party City.
33. The minor children would attend Colgate
Elementary School which is located 1.2 miles
from her current residence in central Ohio.
She lives in a neighborhood with two (2)
playgrounds and lots of kids. She is
friends with people who have children. The
Court has received no evidence of any other
family members of [Nathan] or [Luke]
residing in central Ohio; neither child has
ever been to central Ohio. While in Ohio,
Ms. Hall volunteered at the Nationwide
Children’s Hospital, Neo-Natal unit. Her
current residence is located on Button Hush
Lane. She proposes Ms. Missy Lee as
alternative child caregiver should she (Ms.
Hall) have to work or study. She became
engaged to Mr. Coolbaugh on June 10, 2012.
No one from Ms. Hall’s family has visited
her residence since moving to Ohio.
34. Ms. Hall has spent in excess of $10,000
in travel expenses and assisting Mr. Hall in
providing for the necessities for the minor
children since the entry of the Temporary
Order. Ms. Hall’s father lives in Bristol,
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Tennessee. Ms. Hall’s father has not been
to her residence in Ohio.
35. Both Halls have cursed in front of the
minor children. Their curse words have
included [“s—t”] and [“f— you.”]
36. On November 2, 2012, Ms. Hall opted out
of a possible visitation with the minor
children to eat dinner with cousin; John, at
the establishment Mr. Hall made famous, also
known as Crawdaddy’s. Mr. Danny Hendrix,
previously mentioned, paternal grandfather
of the minor child, works some 50 hours a
week. His work commitments as a truck
driver make it difficult for him to have
consistent visitation time with the minor
children.
. . . .
38. Justin Morgan Hall is a fit and proper
person to exercise care, custody and control
of the minor children, [Luke and Nathan],
with the Defendant, Stacy Hall, and the
Defendant, Brian Coffey, fit and proper
people to exercise visitation as set forth
more fully herein.
These findings primarily consist of a mere recitation of
facts in evidence and fail to (1) actually resolve the parties’
disputes as to their respective fitness to exercise care,
custody, and control of Nathan and Luke; and (2) sufficiently
explain why awarding primary custody to Plaintiff is in the
minor children’s best interests. See In re H.J.A., ___ N.C.
App. ___, ___, 735 S.E.2d 359, 363 (2012) (“The trial court must
. . . find the ultimate facts essential to support the
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conclusions of law. Evidentiary facts are those subsidiary
facts required to prove the ultimate facts. Ultimate facts are
the final resulting effect reached by processes of logical
reasoning from the evidentiary facts.” (citations and quotation
marks omitted)); Carpenter, ___ N.C. App. at ___, 737 S.E.2d at
790 (remanding for additional findings where trial court’s order
failed to “explain why awarding primary custody of [the minor
child] to defendant is in [the minor child’s] best interest”).
Here, the primary issues raised by the parties revolved
around (1) Plaintiff’s various violations of the temporary
custody orders; (2) Plaintiff’s fondness for socializing on the
weekends and frequenting a drinking establishment/karaoke bar
called Crawdaddy’s; (3) Plaintiff’s failure to ensure Luke’s
arrival at school on time; (4) Defendant’s decision in June of
2011 to leave the children in Plaintiff’s care and move to Ohio
to be with her now-fiancé Justin Coolbaugh; and (5) Defendant’s
desire for the minor children to live primarily with her in
Ohio. While the trial court entered findings on these issues,
it did not actually resolve the parties’ disputes by making
ultimate factual findings specifically indicating how these
matters related to or impacted the children’s welfare. See
Dixon v. Dixon, 67 N.C. App. 73, 78, 312 S.E.2d 669, 672 (1984)
(“[T]he findings in a custody order bearing on the party’s
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fitness to have care, custody, and control of the child and the
findings as to the best interests of the child must resolve all
questions raised by the evidence pertaining thereto.”).
In Carpenter, our Court reviewed a custody order which —
like the order from which Defendant currently appeals —
contained findings that merely recited the evidence presented
and “fail[ed] to resolve the primary issues raised by the
evidence which bear directly upon the child’s welfare.”
Carpenter, ___ N.C. App. at ___, 737 S.E.2d at 787. In that
case, the disputed issues concerning the child’s welfare were
the “defendant’s allegations of excessive alcohol consumption by
[the] plaintiff, conflicts in the parties’ parenting styles, and
[the child’s] resulting anxiety.” Id. at ___, 737 S.E.2d at
787. While the trial court made some findings addressing the
disputed issues, these findings failed to explain the impact
these matters had on the minor child’s welfare. See id. at ___,
737 S.E.2d at 789 (“The order addresses other disputed issues .
. . without relating the findings to [the child’s] needs or best
interest. It is difficult to discern the meaning of some of the
findings, or at least how the findings relate to the child’s
welfare.”). Consequently, we remanded the matter to the trial
court so that it could make additional findings of fact
resolving the disputed issues and explaining why the custody
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arrangement was in the best interests of the child. Id. at ___,
737 S.E.2d at 790.
We believe that the same course of action is appropriate
here. In this case, the trial court’s findings acknowledged the
above-referenced issues by making findings of fact addressing
Plaintiff’s violation of the temporary custody orders, his
frequenting of Crawdaddy’s, and his failure to get Luke to
school on time. The trial court also made findings addressing
the difficulty and added expense Defendant has faced in
exercising her visitation because of the distance between Ohio
and Catawba County, the increased involvement of the parties’
mothers in caring for the children due to Plaintiff’s move to
Ohio, and the school the children would attend if they were to
reside in Ohio with Plaintiff. Absent from the trial court’s
findings, however, is any explanation of how these issues affect
the welfare and best interests of Luke and Nathan.
In addition, for reasons more fully explained above, the
trial court’s findings and conclusions regarding Defendant’s
constitutionally-protected status as Luke’s biological parent
are insufficient as they do not adequately facilitate effective
appellate review. As such, we conclude that remanding this
action is appropriate so that the trial court can enter
appropriate findings of fact resolving these issues and
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explaining why the custody arrangement it ultimately orders is
in the children’s best interests.
Plaintiff contends that the trial court’s findings of fact
were sufficient to support the award of primary custody of the
children to him, particularly in light of the fact that the
parties stipulated to the trial court’s ability to take judicial
notice of the temporary custody orders that were entered in
October of 2011 and incorporate those findings and conclusions
into the permanent custody order “as if more fully stated forth
herein.” See Davis v. McMillian, 152 N.C. App. 53, 57-58, 567
S.E.2d 159, 161-62 (2002) (explaining that trial court may take
judicial notice of findings from prior custody order regarding
child); Raynor v. Odom, 124 N.C. App. 724, 728, 478 S.E.2d 655,
657 (1996) (“No decisions in North Carolina specifically
indicate that it is improper for a trial court to use orders
from temporary hearings . . . in the same case to support
permanent custody orders. This Court has found that it is not
improper for a trial court to take judicial notice of earlier
proceedings in the same cause.”).
Taking judicial notice of the temporary custody orders does
not, however, cure the deficiencies noted above in the trial
court’s 21 December 2012 order. This is so because the
additional findings contained in the earlier orders do not
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resolve the above-referenced issues or address the 13-month
period between the hearing on temporary custody and the hearing
on permanent custody.
Because there is sufficient evidence in the record upon
which appropriate findings of fact to support a custody
determination may be made, the trial court need not hold a new
trial or take additional evidence on remand. Rather, based on
the evidence presented at trial, the trial court must make
additional findings (1) resolving the parties’ disputes
regarding the children’s welfare; and (2) explaining why its
ultimate custody determination is in Luke’s and Nathan’s best
interests. See Carpenter, ___ N.C. App. at ___, n. 4, 737
S.E.2d at 790, n. 4 (concluding that new trial was unnecessary
where record contained sufficient evidence to make findings
supporting custody determination and trial court “simply failed
to make those findings”).
Conclusion
For the reasons stated above, we vacate the trial court’s
custody order and remand for further proceedings consistent with
this opinion.
VACATED AND REMANDED.
Judges CALABRIA AND STROUD concur.
Report per Rule 30(e).
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