Appeal by defendant from orders entered 24 May 2000 by Judge
Albert A. Corbett, Jr. in Johnston County District Court. Heard in
the Court of Appeals 6 November 2001.
No brief for plaintiff-appellee.
Mitchell, Brewer, Richardson, Adams, Burns & Boughman, by
Ronnie M. Mitchell, for defendant-appellant.
CAMPBELL, Judge.
Kelly Myers (“Defendant”) appeals from the trial court's
orders awarding custody of Stephen Austin Myers (“Austin”) and
Lorianna Leigh Myers (“Leigh”) to Stephen Haywood Myers
(“Plaintiff”). Austin and Leigh are the two minor children born
during the marriage of Plaintiff and Defendant.
Plaintiff and Defendant were married on 4 June 1995 and
separated on 15 October 1999. Austin was born on 15 August 1995
and is not the biological son of Plaintiff. However, Austin was
named for Plaintiff, Plaintiff's name appears on Austin's birth
certificate, and Plaintiff is the only father figure Austin hasever known. Leigh was born on 8 January 1997 and is the biological
daughter of the parties.
On 13 January 2000, Plaintiff filed the instant action seeking
custody of Leigh. In his verified complaint, Plaintiff admitted
that Austin, although born during Plaintiff's marriage with
Defendant, is not his biological son “in that the Defendant was
pregnant prior to the marriage and the meeting of the parties.” At
the outset of the custody hearing, Plaintiff made an oral motion to
amend his complaint to seek custody of Austin. The record shows
that counsel for Defendant informed the trial court that Defendant
had filed a counterclaim seeking custody of both Austin and Leigh.
(See footnote 1)
As a result, the trial court allowed Plaintiff's motion to amend
his complaint and held a hearing on the custody of both children.
At the conclusion of the hearing, the trial court entered two
orders, one for each child, containing identical findings of fact
related to the parties' conduct before and after their separation,
and relevant to the parties' individual fitness to provide proper
care for Austin and Leigh. As to the custody of Leigh, the trial
court made the following conclusion of law:
Plaintiff is a fit and proper person to have
the care, custody, and control of the minor
child, Lorianna Leigh Myers, born January 8,
1997.
As to the custody of Austin, the trial court made the following
conclusions of law: 3. Plaintiff is a fit and proper person to
have the care, custody and control of the
minor child, Stephen Austin Myers, born August
15, 1995.
4. Defendant is unfit to have the care,
custody and control of the minor child,
Stephen Austin Myers.
5. Defendant has not acted in the best
interest of the minor child.
6. Defendant no longer enjoys a paramount
status as a parent because of her failure to
act in the best interest of the minor child.
Based on its findings and conclusions, the trial court awarded
custody of both minor children to Plaintiff.
Defendant assigns error to the trial court's grant of
Plaintiff's oral motion to amend his complaint to seek custody of
Austin. Defendant also assigns error to the trial court's findings
of fact and conclusions of law. Having reviewed the record,
transcript, and Defendant's brief, we conclude that the trial
court's order granting custody of Austin to Plaintiff should be
reversed. We further conclude that the trial court's order
granting custody of Leigh to Plaintiff should be vacated and the
case remanded for a determination by the trial court, based on the
evidence presented at the hearing and the findings of fact
contained in the trial court's order, as to whether granting
custody to Plaintiff will best promote the interest and welfare of
Leigh.
“In a child custody case, the trial court's findings of fact
are binding on this Court if they are supported by competent
evidence, and its conclusions of law must be supported by itsfindings of fact.” Cantrell v. Wishon, 141 N.C. App. 340, 342, 540
S.E.2d 804, 805 (2000). Further, “the findings and conclusions of
the trial court must comport with our case law regarding child
custody matters.” Id. at 342, 540 S.E.2d at 806. This standard of
review guides our examination of Defendant's arguments on appeal.
Custody of Leigh
Defendant's only assignment of error to the trial court's
award of custody of Leigh to Plaintiff is that the trial court's
findings of fact and conclusions of law do not support its custody
determination. We agree.
In a custody dispute, custody is to be given “to such person,
agency, organization or institution as will best promote the
interest and welfare of the child.” N.C. Gen. Stat. § 50-
13.2(a)(2000). “In a custody proceeding between two natural
parents (including [both] 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.”
Adams v. Tessener, 354 N.C. 57, 61, 550 S.E.2d 499, 502
(2001) (citing
Price v. Howard, 346 N.C. 68, 72, 484 S.E.2d 528,
530 (1997)). “Before awarding custody of a child to a particular
party, the trial court
must conclude as a matter of law that the
award of custody to that particular party 'will best promote the
interest and welfare of the child.'”
Steele v. Steele, 36 N.C.
App. 601, 604, 244 S.E.2d 466, 468 (1978) (quoting N.C.G.S. § 50-
13.2(a)) (emphasis added). “The judgment of the trial court should
contain findings of fact which sustain the [necessary] conclusionof law that custody of the child is awarded to the person who will
best promote the interest and welfare of the child.”
Green v.
Green, 54 N.C. App. 571, 572, 284 S.E.2d 171, 173 (1981). “These
findings 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.”
Steele, 36 N.C. App. at 604, 244
S.E.2d at 468.
Review of the record shows that the trial court's order
contains numerous findings of fact which are relevant to the issue
of the best interest and welfare of Leigh. However, the trial
court failed to make the necessary ultimate conclusion that
awarding custody to Plaintiff will best promote the interest and
welfare of Leigh. Therefore, we remand for a determination, based
on the hearing from which the trial court's original order was
drawn, whether granting custody to Plaintiff will best promote the
interest and welfare of Leigh.
(See footnote 2)
Custody of Austin
Defendant brings forward two assignments of error to the trial
court's award of custody of Austin to Plaintiff. Defendant first
contends that the trial court erred in allowing Plaintiff to amend
his complaint to seek custody of Austin and by not treating thecustody order as to Austin as a temporary custody order. We
disagree.
The record shows that at the outset of the custody hearing the
trial court inquired as to how many children were at issue.
Defendant's counsel informed the court that Plaintiff had only
asked for custody of Leigh. Plaintiff's counsel responded that
Defendant had filed a counterclaim seeking custody of both
children, and that Plaintiff wished to amend his complaint to seek
custody of both children. Defendant's counsel confirmed that
Defendant had filed a counterclaim seeking custody of both
children. Based on Defendant's counterclaim, the trial court
determined that custody of both Austin and Leigh was at issue.
Defendant did not object to the trial court's determination at that
time.
At the conclusion of the hearing, Defendant requested that the
trial court treat the hearing as one for temporary custody as to
Austin, and that Defendant have an opportunity to file responsive
pleadings directed toward the oral amendment to Plaintiff's
complaint. The trial court denied Defendant's request and directed
that orders be drafted reflecting the trial court's grant of
custody of both children to Plaintiff.
We conclude that the trial court acted properly in denying
Defendant's objection to Plaintiff's oral amendment and in refusing
to treat the custody order as to Austin as a temporary custody
order. Having filed a counterclaim seeking custody of both
children, and having failed to object to Plaintiff's oral amendmentwhen it was allowed at the outset of the hearing, Defendant waived
any objection to the trial court's decision to place the custody of
both children at issue in the hearing. Thus, the trial court did
not err in determining the custody rights as to both children.
Defendant further argues that the trial court's order granting
custody of Austin to Plaintiff is not sufficient to support the
removal of custody from a natural parent to a third party who is
not a natural parent. We agree.
Initially, we need to determine whether Plaintiff is in fact
Austin's biological father for purposes of the instant custody
proceeding. As to this issue, the trial court made the following
findings of fact:
26. Defendant testified that Plaintiff was not
the biological father of the minor child,
Stephen Austin Myers, although he was named
after the Plaintiff, Plaintiff's name was on
the child's birth certificate, and in all
respects Plaintiff has treated the child as
his own. Defendant testified that Plaintiff
had been the child's father but that he was
not the biological father.
27. Plaintiff is the only father figure which
the minor child, Austin, has ever known.
In addition, the trial court concluded, as a matter of law, that
“[t]here is a presumption that the Plaintiff is the father of the
minor child, Stephen Austin Myers.”
However, in his verified complaint, Plaintiff admitted that
Austin is not his biological child. “It is well settled that
parties are bound by admissions and allegations within their
pleadings unless withdrawn, amended or otherwise altered pursuant
to N.C.R. Civ. P. 15.”
Webster Enterprises, Inc. v. SelectiveInsurance Co., 125 N.C. App. 36, 41, 479 S.E.2d 243, 247 (1997).
Such judicial admissions have “the same effect as a jury finding
and [are] conclusive upon the parties and the trial judge.”
Buie
v. High Point Associates Ltd. Partnership, 119 N.C. App. 155, 158,
458 S.E.2d 212, 215 (1995). “It naturally follows [that] the
pleader cannot take a position contrary to its judicial admission.”
Webster Enterprises, 125 N.C. App. at 41, 243 S.E.2d at 247
(citing
Rollins v. Miller Roofing Co., 55 N.C. App. 158, 161-62,
284 S.E.2d 697, 700 (1981)).
Having admitted in his verified complaint that Austin is not
his biological child, Plaintiff was precluded from taking a
position contrary to this judicial admission. Consequently, under
Webster Enterprises and
Buie, the fact that Austin is not the
biological child of Plaintiff was conclusively established unless
Plaintiff withdrew, amended, or otherwise altered his judicial
admission. The record shows that Plaintiff failed to amend his
complaint, either by leave of court or by written consent of
Defendant, as permitted under N.C. R. Civ. P. 15. Therefore, we
conclude that the trial court erred in concluding, as a matter of
law, that Plaintiff was the presumptive father of Austin. Thus,
the dispute between Plaintiff and Defendant as to the custody of
Austin is governed by the law applicable to custody disputes
between parents and nonparents.
(See footnote 3)
In
Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994),
our Supreme Court emphasized this State's long-standing tradition
of protecting “the paramount right of parents to custody, care, and
nurture of their children . . . .”
Id. at 402, 445 S.E.2d at 904.
Petersen explicitly rejected the notion that a nonparent merely had
to overcome a “higher evidentiary standard” in order to obtain
child custody in a dispute with a natural parent, as well as the
argument that “the welfare of the child is paramount to all common
law preferential rights of the parents.”
Id. at 403, 445 S.E.2d at
905;
see also Seyboth v. Seyboth, ___ N.C. App. ___, ___ S.E.2d ___
(COA00-1160, filed 6 November 2001). In the end, the
Petersen
Court held “that 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 403-04,
445 S.E.2d at 905.
In
Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997), our
Supreme Court recognized, as the United States Supreme Court had
recognized, that protection of a parent's interest in the custody
of his or her children is not absolute.
Id. at 76, 484 S.E.2d at
533;
see also Lehr v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614
(1983). In light of this recognition, the Court in
Price set forth
the following test for determining when a parent loses his or her
protected status and the “best interest of the child” analysis is
triggered: 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. Therefore,
the parent may no longer enjoy a paramount
status if his or her conduct is inconsistent
with this presumption or if he or she fails to
shoulder the responsibilities that are
attendant to rearing a child. If a natural
parent's conduct has not 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 would offend the Due Process
Clause. However, conduct inconsistent with
the parent's protected status, which need not
rise to the statutory level warranting
termination of parental rights,
see N.C.G.S. §
7A-289.32 (1995), would result in application
of the “best interest of the child” test
without offending the Due Process Clause.
Unfitness, neglect, and abandonment clearly
constitute conduct inconsistent with the
protected status parents may enjoy. Other
types of conduct, which must be viewed on a
case-by-case basis, can also rise to this
level so as to be inconsistent with the
protected status of natural parents. Where
such conduct is properly found by the trier of
fact, based on evidence in the record, custody
should be determined by the “best interest of
the child” test mandated by statute.
Price, 346 N.C. at 79, 484 S.E.2d at 534-35 (citations omitted);
see also Adams, 354 N.C. at 61-62, 550 S.E.2d at 502 (2001).
In
Adams, the Supreme Court summarized the meaning of
Petersen
and
Price as follows:
Petersen and
Price, when read together,
protect a natural parent's paramount
constitutional right to custody and control of
his or her children. The Due Process Clause
ensures that the government cannot
unconstitutionally infringe upon a parent's
paramount right to custody solely to obtain a
better result for the child.
See Troxel, 530U.S. at 72-73, 147 L. Ed. 2d at 61 (“the Due
Process Clause does not permit a [s]tate to
infringe on the fundamental right of parents
to make child rearing decisions simply because
a state judge believes a 'better' decision
could be made”). As a result, the government
may take a child away from his or her natural
parent only upon a showing that the parent is
unfit to have custody,
see Jolly v. Queen, 264
N.C. 711, 715-16, 142 S.E.2d 592, 596 (1965),
or where the parent's conduct is inconsistent
with his or her constitutionally protected
status,
Price, 346 N.C. at 84, 484 S.E.2d at
537.
See also 3 Suzanne Reynolds,
Lee's North
Carolina Family Law § 224 (5th ed. 2000)
(minor child should not be placed “in the
hands of a third person except upon convincing
proof that the parent is an unfit person to
have custody of the child or for some other
extraordinary fact or circumstance.”).
Adams, 354 N.C. at 62, 550 S.E.2d at 503 (2001). The Supreme Court
recently reaffirmed its
Price and
Adams holdings in
Speagle v.
Seitz, ___ N.C. ___, ___ S.E.2d ___ (No. 32PA01, filed 18 December
2001).
Turning to the case
sub judice, “we first note that in custody
cases, the trial court sees the parties in person and listens to
all the witnesses,”
Id. at 63, 550 S.E.2d at 503, allowing the
trial court to “detect tenors, tones and flavors that are lost in
the bare printed record read months later by appellate judges.”
Newsome v. Newsome, 42 N.C. App. 416, 426, 256 S.E.2d 849, 855
(1979),
quoted in Pulliam v. Smith, 348 N.C. 616, 625, 501 S.E.2d
898, 903 (1998)
. “Accordingly, the trial court's findings of fact
are conclusive on appeal if there is competent evidence to support
them, even though the evidence might sustain findings to the
contrary.”
Adams, 354 N.C. at 63, 500 S.E.2d at 503 (citations
omitted). We also note that when the trial court awards custody to a
nonparent, the natural parent's love must yield to another to serve
the child's best interests.
Id. Nonetheless,
parents
normally love their children and
desire not only what is best for them, but
also a deep and meaningful relationship with
them. Therefore, the decision to remove a
child from the custody of a natural parent
must not be lightly undertaken. Accordingly,
a trial court's determination that a parent's
conduct is inconsistent with his or her
constitutionally protected status must be
supported by clear and convincing evidence.
Id. (emphasis in original).
In the instant case, the trial court specifically concluded
that “Defendant is unfit to have the care, custody and control of
the minor child, Stephen Austin Myers.” The trial court further
concluded that “Defendant has not acted in the best interest of the
minor child [Austin],” and “Defendant no longer enjoys a paramount
status as a parent because of her failure to act in the best
interest of the minor child [Austin].” In support of its
determination that Defendant's conduct has been inconsistent with
her constitutionally protected interest in the custody of Austin,
the trial court made the following findings of fact:
11. Defendant has not been able to maintain
stable employment, having had eleven (11) jobs
since 1995. Defendant's income from previous
employment has been around $7.00 per hour,
with day care expenses being provided free of
charge.
12. Defendant remained in the marital
residence for approximately [two-and-one-half]
months after the separation of the parties.
She testified that she moved to Raeford in
Hoke County because she was unable to pay her
expenses in Johnston County, in spite of thefact that Defendant was giving her
approximately $600 per month. Her stated
reason for moving to Raeford was that there
were better employment opportunities in the
area. Defendant's income is approximately the
same with her new employment after moving to
Hoke County as it was in Johnston County;
however, her lease payments are approximately
$200.00 per month higher in Hoke County than
they were in Johnston County and she has day
care expenses.
13. Defendant has a boyfriend, Buck, who is
employed with the U.S. Army; however, she
denies that he is living with her or helping
with financial obligations. Defendant
testified that her parents are the ones
assisting her financially. They are residing
in Knightdale, and have resided in Knightdale
for several years and continue to do so. In
spite of Defendant's testimony that she has a
good relationship with her parents and they
assist her greatly financially, she chose to
relocate in the opposite direction from their
residence. Defendant's parents were not
present for the hearing.
14. During the marriage, [Defendant] took out
criminal assault charges on the [Plaintiff],
resulting in Plaintiff's being incarcerated
for forty-eight (48) hours. Defendant
testified that she was made to drop them in
order to get back the child, Austin.
Certified records from the Johnston County
Clerk of Court show that the matter was tried,
and the Court found that the action was
frivolous and that the prosecuting witness
(i.e, the Defendant) was ordered to pay all
costs of Court.
. . . .
16. Defendant works at Darryl's in
Fayetteville and testified that she works
straight hours 8:00 a.m. until 4:00 p.m. as a
cook; however, Plaintiff has called Defendant
on numerous occasions and at times a male
voice would answer the phone late at night and
say that Defendant was at work and that the
children were with a sitter.
17. [Defendant] had told [Plaintiff] that
when her boyfriend, Buck, moved to Arizona,
she would be moving with him and taking the
minor children with her. This move would
occur within the next six (6) months.
18. Defendant has no relatives or anyone to
assist her with the children in Hoke County.
19. Defendant's current income is $7.50 per
hour.
20. Prior to the Defendant's move to Hoke
County, she would travel to and from
Fayetteville with the minor children late at
night, justifying her action by telling
Plaintiff that it was okay because the
children were asleep.
21. On a cold day in January, 2000, Defendant
brought the child, Lorianna Leigh, to the
Plaintiff with only a thin shirt, pants, dress
slippers with no socks, and no underpants.
22. Defendant constantly uses foul language
around and to the minor children, such as “f--
k you.”
23. Plaintiff has talked to the Defendant on
the telephone when the minor children were
with her since the separation of the parties
when he could tell she had been drinking.
24. Plaintiff discovered many beer bottles in
a trash incinerator at the Johnston County
residence of the Defendant after she moved to
Hoke County. Plaintiff is not a user of
alcoholic beverages.
. . . .
28. Defendant has allowed Austin, age four
(4), to babysit for other younger children in
the past.
. . . .
32. Since the separation of the parties,
Defendant has refused to allow the Plaintiff
to have time with Austin. Plaintiff has
continually asked Defendant to allow him time
to spend with Austin; however, Defendant hasrefused even after the minor child requested
to stay with the Plaintiff. Defendant gave no
explanation for her refusal to allow Austin
and the Plaintiff to spend time together.
. . . .
34. During the first eighteen (18) months of
Austin's life, he lived with Plaintiff's
parents. Plaintiff would go see the child
every day; however, Defendant would only see
the child every three (3) or four (4) days,
even though she lived next door to the
Plaintiff's parents.
35. Since the separation of the parties,
Plaintiff's parents have asked Defendant on
numerous occasions to visit with Austin. She
has refused to allow Austin to visit with them
in spite of the significant relationship which
exists between them. . . .
. . . .
Defendant makes a general assertion that the trial court's
findings of fact are not supported by competent evidence. However,
Defendant does not specifically assign error to any of the trial
court's findings of fact that relate to Defendant's conduct in
raising her children and tend to support the trial court's
determination that Defendant's conduct has been inconsistent with
her constitutionally protected status. Thus, we conclude that the
trial court's findings of fact are supported by clear and
convincing evidence. We must therefore determine whether the trial
court's findings support its legal conclusion that Defendant's
conduct has been inconsistent with her constitutionally protected
interest in the custody of Austin.
The trial court found that Defendant has a history of being
unable to maintain stable employment, that Defendant's monthlyexpenses are greater since she moved from Johnston County to Hoke
County, and that “Defendant has no relative or anyone to assist
here with the children in Hoke County.” The trial court further
found that Defendant uses improper language around the minor
children, that Plaintiff testified that Defendant drinks around the
minor children, and that Defendant has a history of traveling with
the children late at night, or leaving the children with a
babysitter late at night. In addition, the trial court found as
fact one instance when Defendant did not have Leigh properly
clothed on a cold day.
While the trial court's findings of fact demonstrate that
Defendant is perhaps not the best of parents, this appears to be
due in large part to Defendant's socioeconomic status. However, we
agree with Defendant that her “socioeconomic status is irrelevant
to a fitness determination” in a custody proceeding.
Raynor v.
Odom, 124 N.C. App. 724, 731, 478 S.E.2d 655, 659 (1996) (citing
Jolly v. Queen, 264 N.C. 711, 713-14, 142 S.E.2d 592, 595 (1965)).
While many of the trial court's findings of fact shed negative
light on Defendant's ability to adequately care and provide for
Austin's welfare, when viewed cumulatively, they do not support its
conclusion that Defendant's conduct has been inconsistent with her
protected status as to the custody of Austin. Therefore, we
conclude that the evidence of record does not constitute clear and
convincing proof that Defendant's conduct has been inconsistent
with her constitutionally protected right to custody of Austin.
Accordingly, the trial court erred in awarding primary physicalcustody of Austin to Plaintiff, and the trial court's order is
reversed.
In summary, we vacate the trial court's award of custody of
Leigh to Plaintiff, and remand for further proceedings consistent
with this opinion, and we reverse the trial court's award of
primary physical custody of Austin to Plaintiff.
Reversed in part, vacated and remanded in part.
Judges GREENE and McCULLOUGH concur.
Report per Rule 30(e).
Footnote: 1