1. Appeal and Error_assignments of error_arguments deemed abandoned
Violations of the assignment of error requirements of the Rules of Appellate Procedure
resulted in arguments being dismissed or deemed abandoned.
2. Child Support, Custody, and Visitation_custody_change_interference with
visitation and non-custodial relationship
The decision to change child custody from plaintiff to defendant was supported by
findings of fact, which were supported by the evidence, that plaintiff had interfered with
defendant's visitation and with the child's relationship with defendant and his new wife.
Interference with visitation which has a negative impact on the welfare of the child can constitute
a substantial change of circumstances.
3. Child Support, Custody, and Visitation_custody_best interest of child_contempt
finding
A finding of contempt was sufficient to support the conclusion that a change of custody
would be in the best interest of the child where plaintiff provided the basic physical needs of the
child but exposed the child to emotional harm and caused the deterioration of the child's
relationship with his father.
Janet Pittman Reed for plaintiff-appellant.
No brief filed for defendant-appellee.
EAGLES, Chief Judge.
Plaintiff Patricia Jordan appeals from an order modifying a
previous custody order regarding her son Patrick. Plaintiff argues
that the trial court erred in finding a substantial change in
circumstances justifying its custody modification; that
insufficient evidence supported the trial court's ruling that a
change of custody would serve the best interest of the child; andthat insufficient evidence supported the trial court's conclusion
that plaintiff was in contempt for violating the previous custody
order. After careful consideration, we affirm in part and dismiss
plaintiff's appeal in part.
The evidence tended to show the following. Defendant is
Patrick's biological father, Dennis C. Jordan. When plaintiff and
defendant divorced in 1995, plaintiff was awarded primary physical
custody of Patrick. An order entered on 17 February 1998 awarded
defendant significant periods of visitation with his son at
defendant's home in Oklahoma. By another order on 16 May 2000, the
trial court found plaintiff in contempt for violating the
provisions of the 1998 custody order. The 16 May 2000 order also
modified the visitation allowed by the 1998 custody order.
Patrick traveled to Oklahoma to spend his 2001 summer vacation
with defendant as scheduled under the court orders. After Patrick
went to Oklahoma for the summer, plaintiff enrolled him in a
private school that had an earlier starting date for classes than
the public school he had previously attended. Plaintiff testified
that defendant's wife Rhonda called plaintiff on 16 or 19 July 2001
to determine when Patrick should return to North Carolina to start
school. Plaintiff notified defendant and Rhonda that Patrick
should return to North Carolina earlier than had been originally
planned. Defendant and Rhonda exchanged Patrick's airplane ticket
so that he could fly back on 3 August instead of 6 August.
Plaintiff testified that Patrick called her from Oklahoma and said
that he was scared to fly alone to North Carolina. Defendant and
Rhonda testified that plaintiff would not finalize her plansregarding who was going to meet Patrick at the airport. Patrick
was not able to fly from Oklahoma unaccompanied because of his
youth and the fact that the airline was unable to confirm who would
meet him at the Raleigh-Durham airport. Plaintiff's sister Dorothy
Zimmer testified that she went to the Raleigh-Durham airport on 3
August to meet Patrick for plaintiff, but Patrick did not arrive on
the anticipated flight.
Patrick returned from Oklahoma when he was accompanied on the
flight by Rhonda Jordan on 7 August 2001. Patrick was sent home
from school on 8 August with a note from the school nurse, stating
that Patrick was suffering from a severe case of poison ivy.
Defendant testified that he bought Patrick a “four-wheeler”
immediately before Patrick returned to North Carolina. Defendant
was not aware that Patrick had a poison ivy rash before he left,
but stated that Patrick probably was exposed to poison ivy in the
woods while riding the “four-wheeler.”
The Thanksgiving 2001 visitation also caused a dispute.
Plaintiff and defendant communicated through their attorneys in
order to make the flight arrangements for Patrick to go to
Oklahoma. Plaintiff stated that she did not receive airline
tickets from defendant for the planned flight to Oklahoma on 21
November 2001 until 28 November 2001. Defendant stated that
plaintiff would not cooperate with his attempts to make travel
plans for Patrick and refused to accept delivery of the plane
tickets.
The parties agreed that Patrick could fly to Oklahoma during
his Christmas vacation since Patrick did not visit defendant atThanksgiving. Patrick told defendant over the telephone that he
hated defendant and did not want to visit him. Plaintiff and
defendant again experienced difficulty agreeing upon Patrick's
travel arrangements. Defendant flew to Wilmington, North Carolina,
in order to accompany Patrick back to Oklahoma. Plaintiff and
Patrick arrived over an hour late to meet defendant at the airport.
Plaintiff accompanied Patrick into the airport, but did not bring
any luggage into the airport terminal. Plaintiff said that Patrick
was so upset that she left his luggage in the car. Plaintiff had
a video camera with her inside the airport terminal, but defendant
testified that plaintiff never turned it on. Patrick had a temper
tantrum at the airport and refused to fly to Oklahoma with his
father. Patrick did not board the plane and did not have
visitation with defendant over the Christmas vacation period.
After the Christmas vacation incident, defendant filed a
motion for contempt and requested modification of the custody
order. Plaintiff had filed a motion for contempt against defendant
in August 2001. All motions were heard on 28 January 2002.
Defendant testified that he had not been able to communicate with
his son by telephone on Wednesday and Sunday nights as directed in
the 2000 custody order. According to defendant's telephone
records, he succeeded in contacting Patrick on only forty-five
percent of the scheduled nights from March to December 2000,
despite his repeated attempts. In 2001, defendant was able to
contact Patrick only thirty-six percent of the time scheduled, with
the majority of calls being unanswered and no phone calls returned. The trial court entered an order modifying the custody
arrangement on 8 March 2002. Plaintiff was required to pay $1250,
which represented the expenses defendant incurred while trying to
arrange the failed visitation attempt in December 2001. Plaintiff
was also ordered not to communicate with the child until Patrick
had been evaluated by a psychiatrist. In addition, plaintiff was
ordered to seek anger management counseling. The trial court found
that plaintiff had willfully interfered with defendant's telephone
visitation with Patrick and that plaintiff tried to alienate
Patrick from defendant and his wife Rhonda. The trial court found
that plaintiff's actions and feelings of malice toward defendant
had emotionally harmed Patrick. The trial court awarded primary
custody of the child to defendant. The trial court held that the
issue of plaintiff's visitation rights would be determined at a
later hearing. Plaintiff appeals.
[1] As a preliminary matter, we note that plaintiff has
violated Rules 9(b)(4), 26(g), 28(b)(4), 28(b)(6) and 28(j) of the
North Carolina Rules of Appellate Procedure in preparing the record
on appeal and her brief. See N.C. R. App. P. 9(b)(4), N.C. R. App.
P. 26(g), N.C. R. App. P. 28(b)(4), N.C. R. App. P. 28(b)(6) and
N.C. R. App. P. 28(j). Plaintiff failed to comply with our
Court's rules regarding the font size and spacing of her brief and
the preparation and arrangement of the record on appeal. In her
brief, plaintiff fails to cite an assignment of error to support
her third argument. As a sanction, we dismiss plaintiff's third
argument in its totality. Plaintiff's remaining arguments on appeal do not correspond
to the assignment of error cited in her brief. Six of plaintiff's
assignments of error are not argued in her brief and are therefore
deemed abandoned. Plaintiff cites her fourth assignment of error
as the basis for her first and second arguments, which states: “The
Plaintiff contends that the finding of Contempt was insufficient to
base the change of custody to the Defendant without an inquiry into
the best interests of the minor child.” The North Carolina Rules
of Appellate Procedure clearly state that “the scope of review on
appeal is confined to a consideration of those assignments of error
set out in the record on appeal in accordance with this Rule 10.”
N.C. R. App. P. 10(a). Therefore, all arguments presented in
plaintiff's brief that are inconsistent with her fourth assignment
of error are deemed abandoned on appeal.
[2] Plaintiff argues that the trial court's findings of fact
which supported its decision to hold plaintiff in contempt of court
were insufficient to support its conclusion that a substantial
change in circumstances had occurred. We disagree.
An interested party must file a motion in the cause and show
a change in circumstances before a child custody order may be
modified. See G.S. § 50-13.7(a)(2001). Whether a change of
circumstances affecting the welfare of the child has or has not
occurred is a conclusion of law. See Benedict v. Coe, 117 N.C.
App. 369, 377, 451 S.E.2d 320, 325 (1994). “The decision of the
trial judge regarding custody will not be upset on appeal absent a
clear showing of abuse of discretion, provided that the decision is
based on proper findings of fact supported by competent evidence.” Woncik v. Woncik, 82 N.C. App. 244, 247, 346 S.E.2d 277, 279
(1986)(citing Comer v. Comer, 61 N.C. App. 324, 300 S.E.2d 457
(1983)).
Here, the trial court found, in pertinent part:
b. The testimony from Defendant and Rhonda
Jordan is that their relationship with the
minor child has deteriorated since March 13,
2000. The Court finds that this deterioration
in their relationship with the minor child has
been a result of the Plaintiff's willful
failure and refusal to comply with the terms
of the previous orders of this Court, and as a
result of Plaintiff discouraging the child
from continuing a relationship with the
Defendant and Rhonda Jordan, and as a result
of Plaintiff discouraging the child from
visiting Defendant and Rhonda Jordan.
c. The Court finds that the Plaintiff's words
and actions, as hereinbefore set forth, have
emotionally harmed the minor child and have
damaged the child's relationship with
Defendant and Rhonda Jordan.
d. That the Plaintiff has properly provided
for the child's education, his nurturing and
his physical health; however, her continued
disruption and hampering of Defendant's
visitation of his son and her continuing
denigrating attitude and actions towards
Defendant since March 2000 have adversely
affected the child's relationship with his
father and step-mother. The Plaintiff has
failed to isolate the child from the problems
between the parties, and the child's
relationship with Defendant and Rhonda Jordan
has deteriorated.
This Court has held that “[b]ecause the welfare of the child is the
paramount concern in custody cases, interference with visitation of
the noncustodial parent which has a negative impact on the welfare
of the child can constitute a substantial change of circumstances
sufficient to warrant a change of custody.” Woncik v. Woncik, 82
N.C. App. 244, 249, 346 S.E.2d 277, 280 (1986)(internal citationomitted). Here, the trial court's findings were adequately
supported by the evidence. Both parties testified that plaintiff
allowed Patrick to view electronic mail messages that were sent by
defendant to plaintiff. Defendant also presented evidence that he
had not been able to place telephone calls to Patrick as part of
his visitation schedule. Accordingly, we overrule this assignment
of error.
[3] Plaintiff also argues that the finding of contempt was not
sufficient to support the trial court's conclusion that a change of
custody would serve the best interest of the child. We disagree.
“In making the best interest decision, the trial court is
vested with broad discretion and can be reversed only upon a
showing of abuse of discretion.” Ramirez-Barker v. Barker, 107
N.C. App. 71, 79, 418 S.E.2d 675, 680 (1992)(citing In re Peal, 305
N.C. 640, 290 S.E.2d 664 (1982)), overruled on other grounds,
Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998). “A trial
court may be reversed for abuse of discretion only upon a showing
that its actions are manifestly unsupported by reason.” White v.
White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). Here, the
trial court concluded that a change of custody was in the child's
best interest after it found that plaintiff, although able to
provide basic physical needs for the child, had exposed the child
to emotional harm and caused the deterioration of the child's
relationship with his father. It cannot be said that the trial
court's decision to award primary custody of Patrick to defendant
was “manifestly unsupported by reason.” This assignment of error
is overruled. For the reasons stated, we affirm the trial court's order
modifying custody and dismiss plaintiff's appeal in part.
Affirmed in part; dismissed in part.
Judges MARTIN and LEVINSON concur.
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