Blum v Rhodes, (02-1091) 07/01/2003

Appeal by intervenors from order entered 15 March 2002 by Judge Regan A. Miller in Mecklenburg County District Court. Heard in the Court of Appeals 15 May 2003.

Weaver, Bennett & Bland, P.A., by William G. Whittaker, for defendant-appellee.

Deborah Blum and Shelley Blum, pro-se.

CALABRIA, Judge.

    Intervenors, Shelley and Deborah Blum (“the Blums” or “intervenors”), appeal the 15 March 2002 order granting custody of their grandson (“the child”) to his father, Christopher Lee Rhodes (“defendant”).
    The child was born to the Blums' daughter, Jennifer Erin Blum (“plaintiff”), and defendant on 17 April 1998. Ten days later, intervenor Shelley Blum, acting as attorney for his daughter, fileda complaint seeking custody for plaintiff and child support from defendant. Thereafter, defendant moved for a blood test and was determined to be the child's biological father. Plaintiff was awarded primary custody. Defendant was awarded visitation and was ordered to pay child support.
    In February 2000, the Blums filed a motion to intervene and a motion for an ex parte temporary custody order transferring primary custody of the child from their daughter to themselves. On 27 March 2000, the trial court entered a temporary order placing the child with intervenors but reiterated that defendant's visitation rights would remain in effect as previously ordered. On 6 April 2000, defendant filed a response to the motion to intervene and counterclaimed for joint custody. On 25 May 2000, plaintiff and intervenors signed a consent order in which plaintiff acknowledged it was in the child's best interests for permanent custody to be vested with her parents, the Blums. In November 2000, defendant filed a motion to amend his counterclaim, and asked the court to award him permanent custody. In the following months, defendant was found in contempt for failing to pay portions of the obligated child support.
    In October 2001, intervenors moved for summary judgment on the issue of whether defendant “by his actions, ha[d] lost his constitutionally protected status as a parent and entitlement to the presumption of custody absent a showing of unfitness.” The court declined to grant the motion but held it open for presentation by intervenors prior to or at the end of trial. Following a hearing on the merits on 29 November 2001, the court entered an order 15 March 2002 granting defendant custody of his son.
    Intervenors appeal. Intervenors assert the trial court erred by: (I) not granting their motion for summary judgment; (II) considering improper evidence; (III) by making findings of fact and conclusions of law which lack an evidentiary basis. We disagree, and affirm the order of the trial court.
I. Summary Judgment
    Intervenors assert the trial court improperly denied their motion for summary judgment. “It is well settled in North Carolina that the denial of a motion for summary judgment is not reviewable on appeal from a final judgment on the merits.” Crist v. Crist, 145 N.C. App. 418, 421, 550 S.E.2d 260, 263 (2001). Accordingly, we do not address this argument.
II. Consideration of Evidence
    Intervenors assert the trial court improperly overruled intervenors' objection and permitted defendant to introduce into evidence a compilation of videotapes showing his interactions with the child. Intervenors assert the compilation is a “duplicate” and admissible only pursuant to N.C. Gen. Stat. § 8C-1, Rule 1003 (2001). Intervenors' characterization of the videotapes as duplicates is misguided. “A 'duplicate' is a counterpart produced by. . . techniques which accurately reproduce the original.” N.C. Gen. Stat. § 8C-1, Rule 1001(4) (2001). In the case at bar, the videotape was not a reproduction of the original; it was acompilation of excerpts from videotapes of various family events. Accordingly, the trial court properly characterized the videotapes as summaries whose admissibility is governed by N.C. Gen. Stat. § 8C-1, Rule 1006 (2001). In interpreting this rule, our Court has noted: “summaries are admissible if they are an accurate summarization of the underlying materials involved. However, a 'summary' is properly excluded from evidence if it does not fairly represent the underlying document.” Coman v. Thomas Manufacturing Co., 105 N.C. App. 88, 91, 411 S.E.2d 626, 628 (1992) (internal citations omitted). As the trial court explained, the purpose of the admission of these tapes was as “demonstrative aides and [to] corroborat[e] testimony about [the paternal grandparents'] statements about the relationship between the child and the defendant. . . .” The tapes were not intended to corroborate any specific event. Accordingly, the editing in the instant case, focusing on the father-child relationship, was appropriate and does not raise concerns regarding the accuracy of the summary. Intervenors' assignment of error is overruled.
III. Findings of Fact and Conclusions of Law
A. Conclusions of Law - Burdens of Proof
    Intervenors assert the trial court erred by: (1) not requiring defendant prove a substantial change in circumstances occurred since the March 2000 temporary order was entered; and (2) requiring intervenors prove by clear and convincing evidence that defendant is an unfit parent or acted in a manner inconsistent with his parental status. “[T]he trial court's conclusions of law mustbe reviewed de novo.” McConnell v. McConnell, 151 N.C. App 622, 626, 566 S.E.2d 801, 804 (2002). Accordingly, we review the applicable burdens of proof under this standard.
    In order to modify custody, the movant must prove a substantial change in circumstances occurred since the entry of the most recent permanent custody order. Scott v. Scott, ___ N.C. App. ___, 579 S.E.2d 431 (2003). Following a temporary order, where neither party requests a calendaring of the matter for a hearing within a reasonable time, the temporary order is converted into a permanent order.   (See footnote 1) LaValley v. LaValley, 151 N.C. App. 290, 564 S.E.2d 913 (2002). Intervenors assert defendant failed to request a calendaring of the matter for a hearing within a reasonable time after the 27 March 2000 temporary custody order, and accordingly the temporary order became a final custody order. If intervenors were correct, defendant would have been required to prove a substantial change in circumstances occurred since the March 2000 order, rather than since the most recent permanent custody order in December 1999, before seeking modification of the order.
    The Court, in LaValley cautioned, “[w]hether a request for the calendaring of the matter is done within a reasonable period of time must be addressed on a case-by-case basis. In this case, wesimply hold that twenty-three months is not reasonable.” Id., 151 N.C. App. at 293 & n.6, 564 S.E.2d at 916 & n.6. In the case at bar, immediately following the entry of the temporary order, defendant moved for joint custody. Defendant asked that “[t]he child's physical residence should be with the Intervenors at this time due to necessity of Defendant and the child to have an acclimation period, and in order for Defendant to make alternative living arrangements which would include a separate room for [the child].” After six months, defendant moved for sole custody of his child alleging, “Intervenors have obstructed the minor child's visits with the Defendant. . . [have] demand[ed] the Defendant act and teach the minor child in their pattern. . . [and] are denying the Defendant's constitutional rights to raise his child as he sees fit.” Defendant consistently exercised his visitation rights and missed visitation with the minor child only due to illness, bad weather and a death in the family. The permanent custody hearing did not occur until November 2001, eighteen months after the entry of the temporary custody order transferring primary custody from plaintiff to intervenors.   (See footnote 2) During this time the parties prepared for trial, specifically, psychological evaluations were ordered and performed, and depositions were scheduled and taken. In the case at bar, the eighteen months between the entry of the temporarycustody order and the hearing on permanent custody was reasonable; therefore, the temporary order was not converted into a permanent order by inaction of the parties. Accordingly, we hold defendant did not need to prove a substantial change in circumstances occurred since the March 2000 temporary custody order was entered.     The trial court correctly required defendant to prove the change occurred since the December 1999 permanent custody order. The court specifically found “[t]here has been a substantial change of circumstances since the entry of the Court's prior custody order in that the evidence is clear and convincing that Plaintiff has abdicated her responsibilities as the parent of the minor child and is not a fit and proper person to have primary custody of the minor child at this time.”
    Intervenors next assert the trial court improperly determined Intervenors had the “burden of establishing by clear and convincing evidence that Defendant is either unfit or has acted in a manner inconsistent with his responsibilities as a parent.” Intervenors assert the appropriate burden was a preponderance of the evidence. However, our Supreme Court recently noted, “ a trial court's determination that a parent's conduct is inconsistent with his or her constitutionally protected status [or that a parent is unfit] must be supported by clear and convincing evidence.” Owenby v. Young, 357 N.C. 142, 147, 579 S.E.2d 264, 268 (2003) (citing Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499, 503 (2001)). Accordingly, we find no error of law where, as here, the trial court properly required each party to meet their burden of proof.B. Evidentiary Support for the Findings of Fact
    Intervenors assert there is not sufficient evidence to support the findings of fact contained in the 15 March 2002 order. Intervenors assigned error to twenty-nine of the forty-three findings of fact. Intervenors assert the findings of fact improperly misstate factual details, such as when intervenor Shelley Blum moved to Mitchell County, whether plaintiff lived with them “rent free” or paid nominal rent, and occasional erroneous references to the child by a different name. We note an order will not be disturbed for unsupported or immaterial findings “as long as other findings supported by competent evidence are sufficient to support the judgment.” Hyde v. Chesney Glen Homeowners Ass'n, 137 N.C. App. 605, 614, 529 S.E.2d 499, 505, rev'd on other grounds, 352 N.C. 665, 535 S.E.2d 355 (2000). Accordingly, although some of the findings in the order may be flawed, we address only those findings of fact necessary to support the order.
    In custody cases, because “'the trial judge has the opportunity to see and hear the parties and witnesses, the trial court has broad discretion and its findings of fact are accorded considerable deference on appeal.'” Westneat v. Westneat, 113 N.C. App. 247, 250, 437 S.E.2d 899, 900-01 (1994)(quoting Smithwick v. Frame, 62 N.C. App. 387, 392, 303 S.E.2d 217, 221 (1983)). Therefore, “'[s]o long as the trial judge's findings of fact are supported by competent evidence, they should not be upset on appeal.'” Id. Moreover, “the trial court's findings of fact are conclusive if there is evidence to support them, even though theevidence might sustain a finding to the contrary.” Raynor v. Odom, 124 N.C. App. 724, 729, 478 S.E.2d 655, 658 (1996). Considering the appropriate burdens of proof, the findings of fact relevant to this appeal concern the substantial change in circumstances and defendant's actions and fitness as a parent.
    First, regarding the contested findings of fact of the substantial change in circumstances, Intervenors assert “[t]here is no evidence that [plaintiff] has abdicated her responsibilities as a parent. . . .” However, it is uncontested that plaintiff did not testify and sought neither custody nor visitation at the November 2001 trial. Rather, in May 2000, plaintiff entered into a consent order and “join[ed] in Intervenors' claim for the child's permanent custody to be vested in Intervenors.” Accordingly, the trial court did not abuse its discretion as there was competent evidence to support its finding that a substantial change in circumstances had occurred and “[p]laintiff has abdicated her responsibilities as the parent of the minor child. . . .”
    Second, regarding the contested findings of fact of defendant's parental conduct, three essential findings of fact were contested as being unsupported by the evidence.
    The court found as fact:
        7.    Defendant consistently made weekly payments of child support until September 1999 when he switched to making the payments on a biweekly, then monthly basis. These changes in the payment schedule caused him to fall nearly three weeks behind in his child support payments by December 2, 1999.
Intervenors assert defendant was actually eight and one-half weeks behind, and defendant was held in contempt for willful failure to pay. However, the discrepancy in the number of weeks is apparently an error in calculation, with the Intervenors calculating the arrears until 31 December 1999 and the trial court's finding relying on the 2 December 1999 hearing date. Moreover, we note that, although the trial court made findings as to the reasons defendant failed to timely pay child support, the fact that he was found in contempt was not, as asserted by Intervenors, overruled by this trial court.
    Intervenors also assigned error to the following finding of fact:
        23.    As the result of a hearing on these motions [for Psychological Evaluation] on June 5, 2000, Defendant submitted to a psychological examination that was conducted by Dr. Jeanne Murrone. Defendant suffers from Attention Deficit and Hyperactivity Disorder (AD/HD) that was not sufficiently treated when he was a child. He also has a narcissistic personality disorder. Defendant is aware of the AD/HD and is concerned that [the child] may suffer from the same disorder and will need better treatment than he received as a child. The AD/HD and the personality disorder have not rendered Defendant unfit to be a parent to [the child] and do not substantially adversely effect his ability to care for the child in the future.

Intervenors assert Judge Miller improperly substituted his judgment for that of Dr. Murrone, and there is no evidence supporting this finding of fact. We disagree. Dr. Murrone testified she had two concerns regarding defendant's ability to parent: (1) that he wouldhave trouble multi-tasking since “a three-year-old will cause you to _ _ will challenge the best of people, let alone someone with an attention disorder[;]” and (2) that defendant would be defensive with respect to the child's schooling in light of his challenges functioning with AD/HD in school. Dr. Murrone made no comment as to defendant's relationship with the child but predicted that, if defendant continued to behave in accord with his past behavior, it was probable he would not adequately parent the child. Despite Intervenors' assertion to the contrary, Dr. Murrone's testimony does not require the trial court to find defendant unfit. Although Dr. Murrone predicted defendant would have challenges parenting the child due to his various disorders, she explained she couldn't make a determination of defendant's fitness since she was only qualified to “speak to the psychology and the psychological well-being of someone and what they bring to parenting. . . .” More importantly, Dr. Murrone made no indication that defendant's disorders would inevitably mean that he would be unable to parent effectively in the future. Accordingly, the trial court did not abuse its discretion in making this finding of fact since the finding is supported by competent evidence, although the evidence may have supported a contrary finding.
    Intervenors also assert the following finding of fact is unsupported by the evidence:
        33.    As contemplated by the Court's graduated visitation schedule, Defendant was allowed to bond with [the child] in a manner that was least traumatic to the child. During the visits at the home of Defendant's parents, Defendant playedgames with the child, read books, watched television including videos specifically obtained for the child, went to a nearby playground, made lunch for the child, changed his diapers and attempted to potty train the child. Defendant and his parents have taken the child to festivals, parks, movies and other events in the Charlotte area. After overnight visitations began Defendant was responsible for making all the child's meals and bathing and clothing the child. During the overnight stays, [the child] sleeps in a separate bed in Defendant's bedroom and has separate dresser space for his clothes. His toys are stored in various areas in the house and outside in the garage. Defendant's interactions with the child, as revealed by the testimony of his parents and videotapes, are appropriate, pose no danger to the child, and have established a healthy father-son relationship. [The child] has come to love and recognize Defendant as his father and Defendant has come to love and recognize [the child] as his son.

Intervenors assert the potty training was actually a bad episode wherein defendant attempted to teach the child to use the bathroom unilaterally without developing a consistent plan with Intervenors. Even assuming Intervenors' exception to the characterization of the potty training is proper, we cannot find on this basis alone the trial court erred, since the potty training is only one example of many concerning defendant's parenting of his child and no exception was made as to the remaining positive examples of their interactions.
C. Conclusions of Law
    Intervenors assert the conclusions of law are not supported by competent findings of fact. However, this assertion is based upon this Court determining the findings of fact are not supported bycompetent evidence. Since we find competent evidence supports the findings of fact, and the findings of fact support the conclusions of law, we overrule these assignments of error.
    We examined Intervenors' remaining assignments of error and find them to be without merit.
    Affirmed.
    Judges McGEE and TYSON concur.
    Report per Rule 30(e).

Footnote: 1