KARAN ANN HICKS,
Plaintiff,
v
.
ANDREW SCOTT ALFORD,
Defendant.
Jerry D. Jordan for plaintiff appellant.
Metcalf & Beal, L.L.P., by Christopher L. Beal, for defendant
appellee.
TIMMONS-GOODSON, Judge.
Karan Ann Hicks (“plaintiff”) appeals from an order of the
trial court granting Andrew Scott Alford (“defendant”) custody of
the minor child of plaintiff and defendant. For the reasons stated
herein, we affirm the order of the trial court.
Plaintiff and defendant are the natural parents of Jenny Lynne
Hicks (“the minor child”), who was born 2 October 1998. Plaintiff
and defendant never married. On 2 July 1999, a consent order was
filed in Forsyth County District Court awarding joint legal custody
of the minor child to both parents. The order granted plaintiff
primary physical custody and provided defendant visitation rights.
On 10 July 2000, defendant filed a motion for change of
custody, alleging that plaintiff and certain members of her family
had interfered with defendant's visitation rights to such extentthat a change in custody was warranted. On 12 September 2000, the
trial court concluded that plaintiff's actions in denying defendant
visitation constituted a substantial change in circumstances and
entered an order granting sole custody of the minor child to
defendant. Plaintiff appealed to this Court, which vacated the
order of the trial court on the grounds that the order did not
contain the requisite findings of fact as to how the change of
circumstances affected the welfare of the minor child. On remand,
after hearing arguments of counsel and reviewing the evidence
presented at the previous hearing, the trial court made the
following pertinent findings of fact:
6. On June 27, 1999, the Defendant, with his
parents and fiancée, attempted to exercise
visitation and went to the Plaintiff's
residence to pick up the said minor child.
That the Plaintiff and her family surrounded
the Defendant's car shouting obscenities and
threats to the Defendant and his family.
7. That the Defendant attempted to exercise
visitation on July 24, 1999, and on July 31,
1999, which was arbitrarily denied by the
Plaintiff herein.
8. On August 6, 1999 and August 7, 1999,
Defendant attempted to exercise visitation
with the minor child, which was unsuccessful.
9. On or about August 13, 1999, the
Defendant returned a phone call from
Plaintiff. Plaintiff's father answered the
phone and commenced at least a thirty minute
diatribe against the Defendant. Said diatribe
contained at least three hundred and fifty
expletives, including threats against the
Defendant, and statements that the Defendant
should give up his parental rights. Further,
Plaintiff's father informed the Defendant that
he, “hated your 'f_____ a.'” Further,
Plaintiff's father told the Defendant, “I'll
fight you to hell and back, you g__ d___ backstabbing m____ f_____” and statements, “this
kid is going to hate your a___,” and informed
the Defendant he was not the child's father.
Defendant never responded to Plaintiff's
father during this conversation.
10. In July 1999, Defendant filed a Motion
for Contempt against the Plaintiff for his
failure to have visitation. In an Order dated
November 11, 1999, the Honorable Laurie
Hutchens found the Plaintiff in contempt and
ordered that maternal grandfather “Buddy
Hicks” not to be present at the exchanges.
Judge Hutchens found that the Plaintiff could
purge herself of contempt by allowing the
specified visitation.
11. The Defendant attempted visitation on
October 16, 1999, and was refused by the
Plaintiff. Plaintiff's father was present, in
violation of the Court Order. On October 29,
1999, the Defendant attempted to talk with the
Plaintiff in a telephone conversation and was
verbally abused in language similar to that
used by the maternal grandfather on August 13,
1999.
12. The Defendant attempted visitation on
January 15, 2000. On January 13, 2000, the
Defendant attempted to call the Plaintiff and
the Plaintiff would not cooperate and would
not return the Defendant's phone calls. That
said phone calls were made in an attempt to
exercise visitation.
13. Plaintiff, Plaintiff's mother and
Plaintiff's father have all made demands on
the Defendant for him to give up his parental
rights with respect to said minor child.
14. On May 19, 2000, Defendant met the
Plaintiff at the minor child's orthopedic
doctor's office located in Winston-Salem.
Plaintiff did invite the Defendant to attend
said doctor's appointment, and gave the
Defendant the time of the appointment.
However, while the Defendant was at the
doctor's office, the Plaintiff refused to
cooperate with the Defendant in filling out
medical records regarding the minor child.
15. On June 4, 2000, the Defendant attemptedto return the minor child after visitation and
went to a church parking lot next to
Plaintiff's residence. Plaintiff's father was
present, and Plaintiff assaulted Defendant's
fiancée and Plaintiff's father assaulted the
Defendant in the presence of the minor child.
16. On June 5, 2000, the Defendant attempted
to call the Plaintiff at her employment and
ask how the minor daughter was after the
previous day's incident. Plaintiff slammed
the phone down without responding. Defendant
was not belligerent in his conversation with
the Plaintiff.
17. The Plaintiff filed a 50B Domestic
Violence action in Stokes County and obtained
an Ex Parte Order not allowing the Defendant
to come near her residence. As a result, the
Defendant lost his one-week vacation period
with the minor child beginning on July 1, 2000
and ending on July 9, 2000. The Ex Parte
Order was dissolved and the 50B Domestic
Violence Order was not allowed.
18. The Plaintiff testified that if Defendant
was late for visitation, she would not wait
for him. Defendant lives approximately two
hours from the Plaintiff and has to travel
Interstate 85 North from Charlotte to Highway
52 North near Davidson County. He encounters
traffic delays and sometimes does not get out
of work until 5:00 or 6:00 p.m. The Plaintiff
refused to cooperate with Defendant in his
attempts to exercise his visitation.
19. The Defendant requested the Plaintiff's
new telephone number. Plaintiff admitted on
the stand that she would not give her new
telephone number to the Defendant, thus
denying him any contact with her.
20. The Plaintiff has had the means and
ability to comply with [the consent order] and
Judge Hutchens' Order, but she has failed to
do so, and that said failure is willful.
21. Since the last Order, there have been
serious acts of hostility and animosity on a
consistent basis by Plaintiff and her family
directed to the Defendant. That it is not in
the best interest of the minor child for hercustody to remain with the Plaintiff.
22. That it is in the best interest of the
minor child to develop a relationship with
both parents. That the actions of the mother
and her parents have interfered with the
father developing a relationship with the
child which is not in the best interest of the
minor child and will continue to adversely
affect the welfare of said minor child, if
allowed to continue.
Based on the foregoing findings of fact, the trial court concluded,
inter alia,
4. That there has been a substantial and
material change of circumstances by virtue of
the hostility and animosity by Plaintiff and
her family to the Defendant herein, and it is
in the best interest of the minor child that
the custody be changed and the Defendant
granted custody of the minor child subject to
visitation as allowed hereinafter.
5. That it is in the best interest of the
minor child to develop a relationship with
both parents. That the actions of the mother
and her parents have interfered with the
father developing a relationship with the
child which is not in the best interest of the
minor child and will continue to adversely
affect the welfare of said minor child, if
allowed to continue.
Having so concluded, the trial court entered an order awarding
defendant sole legal custody and control of the minor child, and
granting visitation rights to plaintiff. From this order,
plaintiff appeals.
______________________________________________________
Plaintiff argues that the trial court erred in failing to
require additional testimony on remand as to how the substantial
change of circumstances affected the minor child, and further
contends that, as there was no additional evidence submitted onremand, there was no evidence to support the trial court's findings
of fact and conclusions of law in its order granting custody to
defendant. For the reasons stated hereafter, we affirm the order
of the trial court.
Plaintiff asserts that, by failing to require additional
evidence on remand as to what effect, if any, the substantial
change in circumstances had on the minor child, the trial court
disregarded this Court's previous opinion and entered a custody
order sua sponte. We disagree.
In this Court's previous opinion, we remanded the case to the
trial court “for a determination of whether the substantial change
in circumstances affected the welfare of the minor child.”
Contrary to plaintiff's assertions, the opinion did not
specifically order the trial court to hold a new hearing or receive
new evidence. Nor did the Court conclude that the record was
devoid of evidence regarding the effect of the change of
circumstances on the minor child. Rather, the order was vacated
and the matter remanded because the order “lack[ed] the requisite
findings of fact as to how the change in circumstances affected the
welfare of the minor child.” Whether on remand for additional
findings a trial court receives new evidence or relies on previous
evidence submitted is a matter within the discretion of the trial
court. See Hendricks v. Sanks, 143 N.C. App. 544, 549, 545 S.E.2d
779, 782 (2001) (stating that, on remand, “[i]t is left in the
trial court's discretion whether the taking of additional evidence
is necessary”); Heath v. Heath, 132 N.C. App. 36, 38, 509 S.E.2d804, 805 (1999) (noting that, on remand, the trial court must rely
upon the existing record, but may also in its sole discretion
receive such further evidence and further argument from the parties
as it deems necessary and appropriate to comply with this Court's
opinion). Plaintiff cites no authority to the contrary, and we
have discovered none. It was therefore within the trial court's
discretion to determine whether additional evidence was necessary
regarding what effect the substantial change in circumstances had
on the minor child. On remand, the trial court heard additional
arguments by counsel and reviewed the evidence presented at the
previous hearing, but determined that new evidence was unnecessary.
We detect no abuse of discretion by the trial court in its
determination, and we therefore overrule plaintiff's assignment of
error.
Plaintiff further argues that there was insufficient evidence
to support the trial court's findings concerning the effect of the
substantial change in circumstances on the minor child. Plaintiff
failed to include in her appeal a transcript of the evidence
presented to the trial court. Nor was a transcript of the evidence
included in plaintiff's previous appeal of this matter to the
Court. “If the appellant intends to urge on appeal that a finding
or conclusion of the trial court is unsupported by the evidence or
is contrary to the evidence, the appellant shall file with the
record on appeal a transcript of all evidence relevant to such
finding or conclusion.” N.C.R. App. P. 7(a)(1) (2003). Similarly,
Rule 9 of the North Carolina Rules of Appellate Procedure requiresthe appellant to include in the record on appeal “so much of the
evidence . . . as is necessary for an understanding of all errors
assigned.” N.C.R. App. P. 9(a)(1)(e) (2003). It is the duty of
the appellant to ensure that the record is complete. See State v.
Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983). “An
appellate court is not required to, and should not, assume error by
the trial judge when none appears on the record before the
appellate court.” State v. Williams, 274 N.C. 328, 333, 163 S.E.2d
353, 357 (1968). Without the transcript, we are unable to review
plaintiff's argument that the trial court erred in making findings
of fact that are unsupported by the evidence. See Pharr v. Worley,
125 N.C. App. 136, 139, 479 S.E.2d 32, 34 (1997) (concluding that,
where the appellant failed to include relevant portions of the
transcript on appeal, the Court would not engage in speculation as
to potential error by the trial court). We therefore overrule this
assignment of error.
By her final argument, plaintiff asserts that the trial
court's findings are insufficient to support a modification of
custody. We disagree.
Where interference by one parent with the visitation
privileges of the other parent “becomes so pervasive as to harm the
child's close relationship with the noncustodial parent, there can
be a conclusion drawn that the actions of the custodial parent show
a disregard for the best interests of the child, warranting a
change of custody.” Woncik v. Woncik, 82 N.C. App. 244, 248, 346
S.E.2d 277, 279 (1986); see also Shipman v. Shipman, __ N.C. App.__, 573 S.E.2d 755, 758 (2002) (concluding that change of custody
was warranted where denial of visitation rights was one of the
factors constituting a substantial change of circumstances
affecting the child).
In the instant case, the trial court made numerous findings of
fact detailing plaintiff's pervasive and harmful interference with
defendant's visitation rights, as well as violent actions by
plaintiff and her family directed at defendant in the presence of
the minor child. The trial court found that plaintiff's consistent
and willful refusal to allow defendant to exercise his visitation
rights had “interfered with the father developing a relationship
with the child which is not in the best interest of the minor child
and will continue to adversely affect the welfare of said minor
child, if allowed to continue.” In Woncik, the Court affirmed a
change of custody where there was pervasive interference with the
father's visitation rights, as well as “conduct undertaken
deliberately to belittle the [father] in the mind of his child.”
Woncik, 82 N.C. App. at 249, 346 S.E.2d at 280. Here, plaintiff's
actions have prevented defendant from developing a relationship
with his daughter, resulting in an adverse effect on the welfare of
the minor child. We conclude that the trial court's findings
properly support its conclusion that a change of custody was
warranted, and we therefore overrule this assignment of error.
The order of the trial court is hereby
Affirmed.
Judges TYSON and LEVINSON concur.
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