ELIZABETH TANDY LAFELL,
Plaintiff
v
.
Moore County
No. 01 CVD 327
ALAN SCOTT LAFELL,
Defendant
Richard Ducote & Associates, PLC, by Becki Truscott for
plaintiff-appellant.
Arthur M. Blue Law Office, P.A., by Arthur M. Blue for
defendant-appellee.
CALABRIA, Judge.
Elizabeth Tandy LaFell (“plaintiff”) appeals orders denying
her motion for entry of recusal, objection to remand proceedings,
motion for new trial or, alternatively, motion for consideration of
new evidence and orders holding her in contempt of court and
modifying child custody. We affirm.
On 11 and 12 September 2003, the trial court heard Alan Scott
LaFell's (“defendant”) motion to show cause and motion to modify
custody. The trial court entered an order on 3 November 2003 to
which plaintiff appealed to this Court. This Court reversed and
remanded for entry of a new order supported by appropriate findingsof fact. On 11 February 2005, the trial court filed an order with
the following pertinent findings of fact.
5. The parties were formerly married and are
now divorced.
6. The parties are the parents of three minor
children, [names redacted] ASL, Jr., born
April 1, 1994, RAL, born July 15, 1999 and
SBL, born July 15, 1999. Presently the custody
of the minor children is governed by a custody
order entered on August 14, 2002 and signed
October 7, 2002 by the Honorable Michael A.
Sabiston, District Court Judge.
7. The custody order provides that the
plaintiff and the defendant shall have joint
custody of the minor children with the
plaintiff having the primary physical custody
of the minor children and the defendant having
secondary custody of the minor children every
weekend from 5:00 PM Friday until 5:00 PM
Sunday. The custody order is incorporated
herein by reference. On February 13, 2003 the
undersigned district court judge heard...and
dismissed the defendant's Motion To Modify
Custody at the close of the defendant's
evidence because there had not been a
substantial change in circumstances
[a]ffecting the minor children.
8. During the weekend preceding the February
13, 2003 hearing the minor children had been
visiting in the home of the defendant and had
been returned to the plaintiff on February 9,
2003.
9. On February 10, 2003 the plaintiff took the
minor children RAL and SBL to a physician for
an examination because of concerns regarding
possible sexual abuse of the minor children.
10. The plaintiff did not testify in detail
regarding circumstances regarding possible
abuse of the minor children. At the February
13, 2003 hearing neither the plaintiff nor her
attorney asked the court for any type of
emergency modification of the custody order
because of any abuse of the minor children.
On February 15, 2003 the undersigned district
court judge was approached by Stephan Lapping
and Arthur Blue with Mr. Lapping requesting an
Emergency Ex Parte Order suspending the
Defendant's visitation with the minor children
because of alleged sexual abuse of RAL and
SBL. 11. On February 15, 2003 the undersigned
District Court Judge did not grant the
plaintiff's Motion for an Ex Parte Order
suspending visitation because of the fact that
the parties were both present in court the day
before and the plaintiff offered no evidence
at that time regarding the nature of any abuse
of the minor children and did not ask for any
modification of the defendant's visitation at
that time.
. . .
14. On February 9, 2003 when the minor
children returned from a visit from the
defendant's home the plaintiff testified that
[RAL's] vaginal area and her anus were
swollen. The plaintiff further testified that
RAL stated that [defendant] put his finger in
her anus again and again until it bled. The
plaintiff testified that RAL said that the
defendant did this to punish RAL because she
had made a mess. The plaintiff testified that
she saw no blood at that time. The court does
not find these matters to be a fact. The Court
includes the plaintiff's testimony here to
compare it to the facts found in paragraph
seventeen.
15. The plaintiff took SBL and RAL to Mint
Hill Family Practice on February 10, 2003
where RAL was seen by Doctor Michael Hoben.
Doctor Hoben's notes which were admitted into
evidence reflect that RAL told the plaintiff
“I got in trouble and Papa put his finger in
my butt until it bled.” The plaintiff further
stated that RAL told her that he had touched
her “pee pee area and that he put his finger
there too and it hurts to pee.” Doctor
Hoben's notes further reflected the plaintiff
reported the child seems to urinate without
difficulties. Dr. Hoben's notes further
stated that “according to [plaintiff], the
children refer to the paternal grandfather as
Papa.” Doctor Hoben's notes reflect that he
interviewed RAL and RAL said “Daddy put his
finger in my butt and blood came out” and “he
did it as an accident.” The court does not
find the statements by the minor child and the
plaintiff to be facts. The court does find as
a fact that these statements were made to
Doctor Hoben.
16. On March 28, 2003, one of the minor
children's babysitters reported to Doctor
Stewart that RAL's vaginal area was swollen.The court does find as a fact that the
babysitter reported this to Doctor Stewart.
The court finds as a fact that on March 28,
2003 RAL's tissue and vagina was pink and
normal appearing with no [bruising] or
laceration. The court further finds that on
March 28, 2003 RAL made an unprompted
statement that “my daddy didn't do it he
didn't put his finger in.” Doctor Stewart's
notes do not reflect that RAL's vaginal area
was swollen as described by the babysitter.
The court makes a finding that Doctor
Stewart's notes were made available to the
plaintiff. Doctor Hoben's notes regarding RAL
on February 10, 2003 did find some vaginal
irritation and Doctor Hoben focused on the
cause of the irritation as possible reaction
to the detergent (soap) exposure. The court
does find as a fact that on February 10th RAL
had some vaginal irritation. The court does
find as a fact that Doctor Hoben focused on
the cause of irritation as a possible reaction
to a detergent (soap) exposure. The court
further finds that these facts were included
in Doctor Hoben's notes which were made
available to the plaintiff.
17. Doctor Hoben's notes regarding RAL on
February 10, 2003 did not reflect any swelling
or bleeding of the anus and stated “anus is
patent without evidence of laceration, trauma,
irritation or ulceration discharge.” The
court finds as a fact that on February 10,
2003 RAL had no swelling or bleeding at the
anus and that her anus was patent without
evidence of laceration, trauma, irritation,
ulceration or discharge. The court further
finds as a fact that the above stated facts
regarding RAL were included in Doctor Hoben's
notes which were made available to the
plaintiff.
18. The plaintiff also had SBL examined on
February 10, 2003 by Doctor Hoben. At this
time the plaintiff reported to Doctor Hoben
that the child said that the paternal
grandfather had rubbed “my butt.” The minor
child denied that anyone had touched her
anywhere to Doctor Hoben. The court finds as a
fact that on February 10, 2003, SBL had no
evidence of trauma, laceration, ulceration
discharge of vaginal introitus. The court
further finds as a fact that on February 10,
2003 SBL's anus was patent without evidence oflaceration, trauma, irritation, ulceration or
discharge. The court further finds as a fact
that Doctor Hoben made notes on February 10,
2003 that SBL had no evidence of trauma,
laceration, ulceration or discharge of the
vaginal introitus and that SBL's anus was
patent without evidence of laceration, trauma,
irritation, ulceration or discharge and these
notes [were] made available to plaintiff.
19. The plaintiff reported what she perceived
as abuse to the Mecklenburg County Department
of Social Services on February 10, 2003.
20. This court has no evidence that any
juvenile petition was filed by Mecklenburg
County Department of Social Services alleging
that the minor children are abused, neglected
or dependent. Nor is there evidence that the
Mecklenburg Department of Social Services has
an active case involving the minor children.
21. On March 10, 2003 Margaret Gatlin, the
plaintiff's sister, took the minor children to
Mint Hill Family Practice where the children
were examined by Doctor Michael Hoben. Ms.
Gatlin provided Doctor Hoben with a written
statement that on March 10, 2003 SBL stated to
her that “daddy put his finger in my butt
again, and again, and again and it bled.” Ms.
Gatlin also said that SBL stated that Alisha,
(the Defendant's girlfriend) had put her
finger in SBL's “butt” as well. Ms Gatlin
also stated that Alisha said that it had
happened three times. Ms. Gatlin also stated
that RAL said that “Alisha put her finger in
my butt.” The court does not find as fact any
of the statements provided to Doctor Hoben.
However the court does find as a fact that
these statements were made to Doctor Hoben.
22. Doctor Hoben's examination of SBL on March
10, 2003 did not note any bleeding or cuts
regarding the child's anus. The court finds
as a fact that Doctor Hoben did not find
sufficient or physical evidence to suggest
abuse on March 10, 2003. The court further
finds as a fact that Doctor Hoben's reported
“I do not find sufficient physical evidence to
suggest abuse at this time” and that Doctor
Hoben's report was made available to the
plaintiff.
23. Doctor Hoben in his report of March 10,
2003 regarding SBL, says that SBL stated
“daddy punched me all over in the face and all
over.” Doctor Hoben asked SBL if that was alldaddy did and she replied “no he stuck his
finger in my butt three times.” SBL said that
it hurt and bled. The court does not find as a
fact any of the statements made by SBL to
Doctor Hoben. However the court does find as a
fact that these statements were made by SBL to
Doctor Hoben.
24. SBL stated that RAL had put her finger in
her, SBL's vaginal area.
25. During Doctor Hoben's examination of RAL
on March 10, 2003 RAL stated that “Daddy
punched me all over two times” and that daddy
“stuck his finger in my butt too.” The court
does not find as a fact that these statements
are true, however the court does find that
these statements were made to Doctor Hoben.
RAL did not report any bleeding. RAL's
examination on March 10, 2003 was a normal
physical exam and there was no significant
physical evidence to suggest abuse on that
date. Doctor Hoben's report, which was made
available to the plaintiff, indicated a normal
physical examination and further stated “I do
not find any significant physical evidence to
suggest abuse at this time.” Doctor Hoben
recommended to Ms. Gatlin that “the children
be evaluated by a child abuse specialist.”
26. The plaintiff took the minor children RAL
and SBL to Doctor William Stewart at Sandhills
Pediatrics in Southern Pines for an
examination on March 3, 2003. Doctor Stewart
examined RAL on March 3, 2003 and testified at
trial that there was no physical evidence of
abuse on the vaginal exam and that while there
was not a full exam of the anus his report
noted that in regard to the anus there was no
laxity or lesion noted. The court finds as a
fact that on March 3, 2003 there was no
physical evidence of abuse to RAL's vaginal
area. The court finds as a fact that on March
3, 2003 that in regard to RAL's anus there was
no laxity or lesion noted. On March 3, 2003
Doctor Stewart made a note of possible sexual
abuse. Doctor Stewart recommended that
visitation be suspended until a full
evaluation including a child mental health
evaluation could be accomplished. Doctor
Stewart examined RAL again on March 28, 2003.
RAL was brought to Doctor Stewart's office by
Melanie Cooper and Victoria Ford, who were
babysitters. On March 28, 2003 one of the
minor children's babysitters reported toDoctor Stewart that RAL's vaginal area was
swollen. The court does not find as a fact
that the vaginal area of RAL was swollen. The
court does find as a fact that the babysitter
reported this to Doctor Stewart. The Court
finds as a fact that on March 28, 2003 RAL's
tissue or vaginal was pink and normal
appearing with no bruise or laceration. The
court further finds on March 28, 2003 RAL made
an unprompted statement that “my daddy didn't
do it he didn't put his finger in.” Doctor
Stewart's notes do not reflect that RAL's
vaginal was swollen as described by the
babysitter. The court makes a finding that
Doctor Stewart's notes were made available to
the plaintiff.
27. Doctor Stewart examined SBL on March 28,
2003. During the examination Victoria Ford
one of the minor child's babysitters claimed
that SBL had scratches around her anus. The
court does not find that as a fact. However,
the court finds as a fact that Victoria Ford
made that statement to Doctor Stewart. The
court does find as a fact that on March 28,
2003 there was no bruising or swelling and no
anal lesion or laxity in regard to SBL. The
court finds as a fact that on March 28, 2003
that SBL had a normal physical examination and
there was no physical [sign] of abuse. The
court further finds as a fact that Doctor
Stewart's notes on the examination of SBL on
March 28, 2003 were made available to the
plaintiff.
28. Doctor Stewart's notes of March 28, 2003
reflect that SBL announced “daddy stuck his
finger in my butt.” Doctor Stewart's notes
also state “SBL says according to babysitter
that they are not suppose to tell.” The court
does not find that the statements made by SBL
are fact. The court does find that the
statements were made to Doctor Stewart.
. . .
37. The court takes notice, at the request of
the defendant's attorney, that [plaintiff], in
her complaint or any reply to the Defendant's
counterclaim for custody in this action raised
no issue regarding [defendant's] fitness and
no allegation of [defendant's] alleged use of
pornography or deviant sexual acts. The court
further notes that the parties entered into a
consent order which states that [defendant] is
a fit and proper person to have visitationwith the minor children.
38. By consent of all parties the LaFell
family including all of the minor children,
the parties, [plaintiff's] sister and the
babysitters engaged in a child mental health
evaluation at the UNC School of Medicine in
Chapel Hill.
39. During the course of the mental health
evaluation visitation was suspended by
agreement of the parties between the minor
children and [defendant]. Between March 2003
and September 2003 the defendant . . . was
allowed by agreement to have telephone contact
with the minor children. [Defendant]
attempted to call the minor children ninety
two (92) times between January 24, 2003 and
August 20, 2003. The vast majority of these
calls lasted only one to two minutes and only
on two occasions was [defendant] successful in
speaking with the minor children for more than
five minutes. The court finds as a fact that
the plaintiff . . . limited the defendant's .
. . telephone communications with the minor
children. The court finds as a fact that
beyond a reasonable doubt the plaintiff . . .
limited the defendant's . . . telephone
communication with the minor children. The
court finds as a fact that beyond a reasonable
doubt the plaintiff . . . has willfully and
knowingly violated paragraph 11 of Judge
Sabiston's Order filed October 10, 2002 which
orders as follows, “Each party agrees the
other party access to telephone communications
with the children and to in no way prohibit,
hinder, interfere with or discourage the
children from calling the party.”
40. As reflected in previous orders, the
plaintiff moved from Moore County to Charlotte
in the summer of 2002 and did not inform the
defendant of the move nor inform the defendant
of her residence or telephone number. The
court finds as a fact that during the summer
of 2003 the plaintiff moved to a new residence
in Mecklenburg County. The plaintiff did not
inform the Defendant of her move nor did she
provide him with a new telephone number. The
court finds beyond a reasonable doubt that the
plaintiff's actions in moving to a new
residence and not informing the defendant of
the whereabouts of the minor children or how
to locate the minor children, or how to
telephone the minor children was a willful andknowing violation of Judge Sabiston's Order
filed October 10, 2002. Specifically,
paragraph one, in which the Defendant has
joint custody of the minor children, and in
paragraph five, in which the Defendant is
allowed to telephone the minor children at
least twice a week and in paragraph nine, in
which the parties are to make every reasonable
effort to promote the love, affection and
respect that the children should have for each
of their parents and paragraph eleven, in
which each party agrees to allow the other
party access to telephone communication with
the minor children, and paragraph [twelve], in
which each party is obligated to consult with
the other regarding non-emergency medical,
dental and orthopaedic treatment for the minor
children and paragraph thirteen in which each
party is obligated to notify the other as to
all activities the children are involved with
and consult with one other about these
activities.
41. Nancy Berson, a clinical instructor at
the University [of] North Carolina Department
of Psychiatry, and Diana Meisburger, PHD with
the University [of] North Carolina Psychology
Department conducted the child mental health
evaluation and testified regarding their
report.
42. The University [of] North Carolina School
of Medicine report of child mental health
evaluation was accepted and entered into
evidence.
43. Doctor Meisburger and Ms. Berson concluded
that RAL and SBL have not been sexually
abused. Rather their statements and behavior
can likely be explained by the following: (a)
Over interviewing by multiple care givers and
professionals. (b) suggestive questioning
combined with their young age and
suggestibility. (c) Their need to prove their
loyalty to their mother. (d) An over focus on
health concerns (particularly their
genitalia).(e) Child care changes and
instability in [plaintiff's] household
composition.(f) The misinterpretation of
statements and behaviors that had other
explanations.(g) The dynamic of a high
conflict of divorce. The evaluators based
their conclusions on several factors included
in their report which is incorporated herein
by reference. Based upon the evidence receivedat the trial of this matter the court finds as
a fact the defendant, . . . has not sexually
abused the minor children.
44. During the course of the evaluation
process the evaluators interviewed SBL; SBL
stated that her father “didn't hurt me at
all[,]” “I really want to go back to daddy's.”
SBL then repeated that her daddy didn't hurt
her and denied that he had put a pin in “her
butt.” In a second interview, SBL was asked
what she had told the evaluator about daddy
last time. She replied “he didn't do
nothing”; she denied having told her mommy
that her daddy had touched her and hurt her
“butt.” Again SBL denied that her daddy broke
touching rules, denied he touched pee pees or
bottoms and denied she had problems with her
daddy.
45. In the evaluators' interview with RAL, RAL
stated that her mother worried that “daddy
hurt me if I go back there.” RAL was asked
how her daddy, Scott, bothered her, she
responded “I don't know.” She was asked what
he did that bothered her and she stated “I
just don't know.” RAL stated that her father
said bad things, but when asked, she did not
know what her daddy said that was bad. RAL was
asked if daddy bothered any parts of her body.
She nodded yes and pointed to her buttocks.
RAL indicated that her daddy had bothered her
pee pee spot and her “body” (buttocks). She
couldn't remember what her daddy had done to
bother those parts of her body. RAL denied
having fun with her daddy and did not want to
see him. RAL stated that her mother would say
“no no no” about [RAL's] seeing her father.
RAL denied knowing Alisha.
47. Ms. Berson interviewed ASL, Jr. During
the interview, ASL, Jr. told Ms. Berson that
the plaintiff told him that [defendant's]
parents did not love him and that [defendant]
was leaving the family for another woman. The
court finds beyond a reasonable doubt that the
plaintiff . . . has willfully and knowingly
violated paragraph nine of Judge Sabiston's
Order filed October 10, 2002 which orders as
follows, “The parties have further agreed that
neither of them should make any disparaging
remarks concerning the other in the presence
of the children, that they will each make
every reasonable effort to promote the love,
affection and respect that the children shouldhave for each of their parents.”
48. In July 2003 Ms. Berson told the Guardian
Ad Litem, Mr. Alley that she thought the
visitation with the minor children should
resume. The plaintiff . . . would not allow
the visitation to resume.
49. The court finds as a fact that the
maternal family members, including the
plaintiff . . . failed to acknowledge that
there were factors other than sexual abuse
that contributed to the onset of the minor
children's behavioral problems.
50. The court finds as a fact that [plaintiff]
disagrees with the University of North
Carolina School of Medicine's conclusion that
the children were not sexually abused. The
court finds as a fact that the plaintiff . . .
cannot even accept the possibility [emphasis
added] that the children were not abused. The
evaluation recommended that [plaintiff] and
her family must accept the possibility that
they have erred in their perspective and
interpretation regarding the issue of sexual
abuse. [T]he plaintiff testified that she
believes that the defendant molested the
children and she disagrees with the UNC
opinion that the children were not sexually
abused. When asked if she could accept the
possibility that the children were not abused,
[plaintiff] stated that someone would have to
convince her.
51. On July 31, 2003 the minor children SBL
and RAL were at UNC for part of the
evaluation. After the interview RAL and SBL
had an unannounced visitation with the
defendant. Neither SBL or RAL nor any member
of the plaintiff's family knew that
[defendant] would be there for a supervised
visit. RAL and SBL were happy to see their
father and were excited to visit with him. The
girls also had a good visit with [defendant's]
new wife, Alisha. ASL, Jr. also had a good
visit with the Defendant although he was
initially guarded. During this visit RAL and
SBL showed no fear of their father nor any
hesitation to be with him.
52. Although the plaintiff . . . had taken the
minor children to Carolina Medical Center for
sex abuse evaluation, [plaintiff] denied
having any knowledge of Mr. Ragsdale's
conclusion or report until early September of
2003. The court does not find this to be afact.
53. On March 14, 2003 RAL and SBL were
hospitalized in Charlotte. The defendant went
to the hospital to visit with the minor
children and was met by a security guard who
stated “If you cause trouble I will escort you
out.” [Defendant] had never seen the security
guard before nor had any contact with him.
[Defendant] presented a copy of his custody
order and stated that he wanted to visit with
the minor children. [Defendant] was allowed to
visit with his children for five minutes with
the security guard and a nurse present in the
room along with [plaintiff].
54. The plaintiff . . . testified that it was
hospital policy for the security guard to be
present during [defendant's] visitation. The
court does not find that to be a fact. The
court does find as a fact that the plaintiff .
. . insisted that the security guard remain in
the room during [defendant's] visitation.
55. [Plaintiff] is currently employed as a
nurse and she testified that she works three
days a week currently: Tuesday, Wednesday and
Sunday. That her shifts are for twelve hours
and that she has approximately one to one and
one-half hours commute each way. While she is
working, [plaintiff] employs various
babysitters to care for the children and
during some days the children are dropped at
the babysitters early in the morning and
[plaintiff] does not return until 10:OO P.M.
. . .
58. The defendant . . . has remarried and his
current wife is Alisha LaFell. [Defendant]
works 36 hours a week in 12 hour shifts.
Alisha works 2 days a week for 12 hours a
days. [Defendant] and Alisha's work schedules
may overlap occasionally. During this work
overlap, [defendant's] mother would care for
the minor children.
59. That [plaintiff] has a history and pattern
of interfering with the visitation between
[defendant] and the minor children.
[Plaintiff] has engaged in a pattern of
behaviors that have interfered with and
damaged the relationship between [defendant]
and the minor children and these actions have
harmed the children. [Plaintiff] has
previously been found in contempt of this
court by Judge Sabiston for failing to allow
[defendant] to visit and call the minorchildren. The court further finds as a fact
that [plaintiff's] behavior and actions
regarding the orders of this court providing
for the best interest of the minor children
will continue and [plaintiff] will do
everything in her power to prevent the
Defendant from exercising this court order of
custody, visitation and access to his
children. The court further finds that
[plaintiff's] behavior and actions regarding
false abuse allegations and denial of access
to the children pursuant to the court ordered
custody and visitation will continue to harm
the minor children. The plaintiff's behavior
and actions regarding the custody orders in
this case will further alienate the minor
children from the defendant and will
discourage the natural love and affection that
they have for the defendant.
60. That, with the consent of all parties,
this court appointed Robert L. Ally as
Guardian Ad Litem for the minor children due
to the evaluation at UNC and the need for an
impartial person to facilitate the travel and
appointments with UNC. Mr. Ally arranged
transportation for the children, spoke with
the children, attempted to arrange supervised
visits at the direction of the UNC Evaluators,
and observed them during the times he was with
them. Because of his involvement in the
matter, Mr. Ally was allowed to make a closing
argument and he presented a written report
which was admitted without objection. The
court reviewed the report but did not consider
the report in making any findings of fact or
conclusions in this matter.
61. That Arthur M. Blue has represented the
defendant in this matter and the court
incorporates the Affidavit of Arthur M. Blue
as to the expenses and time involved in the
representation of the defendant in this matter
since the filing of the Rule 59 Motion in
February, 2003. The court finds that Mr.
Arthur M. Blue has practiced law since August
of 1990 and devotes a substantial amount of
time to the practice of domestic law in Moore
County. The court further finds that an hourly
rate of $175.00 per hour for an attorney with
the experience of Arthur M. Blue is
reasonable.
62. [T]he defendant in this case brings these
motions as an interested party and . . . hasacted in good faith in bringing these motions
as evidenced by the court's findings that
[defendant] has not sexually abused the minor
children and that [plaintiff] has beyond
reasonable doubt willfully and knowingly
violated the court's orders in this matter.
The court further finds that [defendant] has
insufficient means to defray the expense of
this suit in that his savings account has been
depleted and after paying approximately six
thousand dollars for attorney fees, Guardian
Ad Litem fees and the University of North
Carolina School of Medicine the defendant
still owes a substantial sum of money in
attorney fees to Mr. Blue. [T]he plaintiff
has remained employed since previous orders
established her monthly income to be in excess
of $5,000.00 and there has been no evidence
that her income has decreased at the time of
this hearing. The plaintiff . . . has the
means and ability to compensate the defendant
for the attorney fees and cost awarded herein.
Based upon the above findings of fact, the court concluded the
following: a substantial change in circumstances occurred affecting
the welfare of the minor children; both defendant and plaintiff are
fit and proper persons to have the care, custody, and control of
the minor children; it is in the best interests of the minor
children that their primary physical custody be placed with
defendant; it is in the best interests of the minor children to
have regular visitation with plaintiff; and, plaintiff has beyond
a reasonable doubt willfully and knowingly violated the terms of
the preceding custody order filed 10 October 2002 and consequently,
is in criminal contempt of court. Plaintiff appeals.
I. Recusal:
Plaintiff first argues the trial court erred when it failed to
either grant her motion for recusal or to refer the matter for
hearing before another judge. Plaintiff contends she was “clearlyprejudiced” by the trial court's refusal to order its recusal. We
disagree.
“[A] judge should disqualify himself in a proceeding in which
his impartiality may reasonably be questioned.” North Carolina Code
of Judicial Conduct, Canon (3)(c)(1) (2005) (emphasis added). “When
a party requests such a recusal by the trial court, the party must
demonstrate objectively that grounds for disqualification actually
exist.” In re Faircloth, 153 N.C. App. 565, 570, 571 S.E.2d 65,
69 (2002) (citation and internal quotation marks omitted). Thus,
“[t]he requesting party has the burden of showing through
substantial evidence that the judge has such a personal bias,
prejudice or interest that he would be unable to rule impartially.”
Id. (emphasis added). Consequently,
[I]f there is sufficient force to the
allegations contained in a recusal motion to
proceed to find facts, or if a reasonable man
knowing all of the circumstances would have
doubts about the judge's ability to rule on the
motion to recuse in an impartial manner, the
trial judge should either recuse himself or
refer the recusal motion to another judge.
Id. (citations omitted).
In the instant case, plaintiff moved the court on 9 March 2004
for an emergency ex parte order for temporary custody regarding an
alleged Federal Bureau of Investigation's search of defendant's home
for child pornography. Plaintiff maintains Judge Gavin responded
to this evidence by stating this was simply “more of the same” and
that in the future it would be best for another judge to hear issues
in this case. Interpreting the comments from Judge Gavin to mean
he would recuse himself, plaintiff submitted an order of recusal on22 July 2004. This proposed order was not filed by plaintiff until
8 February 2005 and it was treated as a motion and denied three days
later. Other than the alleged conversations taking place between
plaintiff's counsel and Judge Gavin, plaintiff presented no other
evidence and certainly no “substantial evidence” to support her
motion for recusal. In fact, Judge Gavin expressly states in his
order denying plaintiff's motion for recusal he “has never and does
not believe that he could not engage in an unbiased review of the
ongoing facts in this case and it is not his intention to be recused
from this case.” Thus, in accordance with Faircloth, supra,
plaintiff, as the requesting party, failed to meet her burden to
illustrate substantial evidence that Judge Gavin had a personal
bias, interest or prejudice requiring him to recuse himself. This
assignment of error is overruled.
II. Motion for New Trial and Motion for Consideration of New
Evidence:
Plaintiff next argues the trial court abused its discretion by
denying plaintiff's motion for a new trial or, alternatively,
consideration of new evidence, regarding the best interests of the
children. We disagree. First, as to plaintiff's motion for a new
trial, “[a] trial judge's discretionary order made pursuant to Rule
59 for or against a new trial may be reversed only when an abuse of
discretion is clearly shown.” City of Charlotte v. Ertel, 170 N.C.
App. 346, 353, 612 S.E.2d 438, 444 (2005) (citation and internal
quotation marks omitted). Moreover, “[d]uring review, we accord
great faith and confidence in the ability of our trial judges tomake the right decision, fairly and without partiality, regarding
the necessity for new trial.” Id. (citation and internal quotation
marks omitted). In the instant case, however, though plaintiff
presents an argument and cited authority for her “consideration of
new evidence” contention, she fails to explicitly present any
argument referencing her motion for a new trial. Thus, this
argument is waived. See N.C. R. App. P. 28(b)(6) (2005) (stating
“[a]ssignments of error...in support of which no reason or argument
is stated or authority cited, will be taken as abandoned.”)
As to plaintiff's alternative motion for consideration of new
evidence, “[w]hether 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.” Hicks v.
Alford, 156 N.C. App. 384, 389, 576 S.E.2d 410, 413 (2003); see also
Hendricks v. Sanks, 143 N.C. App. 544, 549, 545 S.E.2d 779, 782
(2001) (this Court observed that on remand “[i]t is left in the
trial court's discretion whether the taking of additional evidence
is necessary.”)
This Court previously remanded this matter for the trial court
to make additional findings of fact, see LaFell v. LaFell, 168 N.C.
App. 240, 607 S.E.2d 56 (2005)
(See footnote 1)
(hereinafter LaFell I), and, in
doing so, stated “[a]s to all issues that are remanded, the trial
court has discretion to determine whether it will accept additional
evidence before entering its new order.” Id. at *13. In his orderdenying plaintiff's motion for consideration of new evidence, Judge
Gavin declared “[t]his [c]ourt, in the reasonable exercise of its
discretion and in accordance with LaFell I... makes the
determination that it will not receive new or additional evidence
before entering its new order and the [c]ourt in its discretion
relies upon the existing record and previous evidence submitted.”
Pursuant to Hicks, supra, it is within the trial court's discretion
to determine whether additional evidence is necessary regarding the
best interests of the children. On remand, the trial court reviewed
the existing record and evidence presented at the previous hearing
on 11 and 12 September 2003 and determined no new evidence was
necessary. We discern no abuse of discretion by the trial court in
its determination. This assignment of error is overruled.
III. Competent Evidence:
Plaintiff next argues the trial court erred in concluding SBL
and RAL had not been sexually abused and that plaintiff made “false
allegations” regarding the alleged sexual abuse because this
determination was not warranted by competent evidence. Plaintiff
contends the record contains substantial evidence SBL and RAL “are
likely being sexually abused.” We disagree.
“When the trial court is the trier of fact, the court is
empowered to assign weight to the evidence presented at the trial
as it deems appropriate.” In re Oghenekevebe, 123 N.C. App. 434,
439, 473 S.E.2d 393, 397 (1996). Here, because “the trial judge
acts as both judge and jury...[and] resolv[es] any conflicts in the
evidence[,] [i]f there is competent evidence to support the trialcourt's findings of fact and conclusions of law, the same are
binding on appeal even in the presence of evidence to the contrary.”
Id. 473 S.E.2d at 397-98 (emphasis added).
In the instant case, in finding of fact number 43 the trial
court states “based upon the evidence received at the trial of this
matter the court finds as a fact the defendant...has not sexually
abused the minor children.” The following competent evidence
substantiates the trial court's finding: Nancy Berson (“Berson”),
a clinical instructor at the University of North Carolina (“UNC”)
Department of Psychiatry, and Dr. Diana Meisburger (“Dr.
Meisburger”), with the UNC Psychology Department, both testified at
the 11-12 September 2003 trial regarding their mental health
evaluations of the minor children (“the report”). Berson testified
“[o]ur conclusion was we did not believe the [minor] children were
being sexually abused.” Berson further testified this conclusion
was “based on the review of the records...[and] interviews
with...family members...[and] the [minor] children.” In fact, when
Berson interviewed SBL regarding the allegations defendant sexually
abused her, SBL stated “[defendant] [di]d not hurt her and...she
missed [defendant] and...she wanted to go back to [defendant].” Dr.
Meisburger interviewed RAL and testified that when RAL was asked if
“anyone ever touched her pee-pee spot,” RAL responded “just my mom.”
Dr. Meisburger also confirmed the report written by herself and
Berson accurately reflected the conclusion SBL and RAL were not
sexually abused by defendant. In addition to the above testimony of both Berson and Dr.
Meisburger, the trial court's findings regarding SBL and RAL's
examinations performed by Dr. Michael Hoben and Dr. William Stewart
documenting “no evidence of trauma, laceration, ulceration or
discharge” and “no physical evidence of abuse on the vaginal exam”
constitute competent medical evidence supporting the trial court's
assertion plaintiff made “false allegations” regarding the alleged
sex abuse. Other than plaintiff and plaintiff's family members
assertions, there is no other evidence in the record to substantiate
plaintiff's claims. As competent medical and psychiatric evidence
supports the trial court finding that defendant did not sexually
abuse SBL and RAL and plaintiff made false allegations regarding
sexual abuse, this assignment of error is overruled.
IV. Substantial Change in Circumstances:
Plaintiff next argues the trial court erred in concluding a
substantial change in circumstances existed affecting the welfare
of the minor children. Plaintiff contends that conclusion is not
based on findings of fact supported by competent evidence. We
disagree.
“Our trial courts are vested with broad discretion in child
custody matters.” Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d
250, 253 (2003). “This discretion is based upon the trial courts'
opportunity to see the parties; to hear the witnesses; and to
'detect tenors, tones, and flavors that are lost in the bare printed
record read months later by appellate judges.'” Id. (quoting Surles
v. Surles, 113 N.C. App. 32, 37, 437 S.E.2d 661, 663 (1993)). Further, “[w]hen reviewing a trial court's decision to grant or deny
a motion for modification of an existing child custody order, the
appellate courts must examine the trial court's findings of fact to
determine whether they are supported by substantial evidence.” Id.
“Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” State v. Smith,
300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). Consequently,
“should we conclude that there is substantial evidence in the record
to support the trial court's findings of fact, such findings are
conclusive on appeal, even if record evidence 'might sustain
findings to the contrary.'” Shipman, 357 N.C. at 475, 586 S.E.2d
at 253-54 (emphasis added) (quoting Pulliam v. Smith, 348 N.C. 616,
625, 501 S.E.2d 898, 903 (1998)).
In the instant case, defendant testified he went to the
hospital to visit the minor children who were ill and security
guards warned he would be escorted out if he caused any trouble.
Further, defendant testified the security guard told him he could
see the minor children for five minutes in the security guard's
presence only or “you don't see em' at all.” With respect to
requiring defendant to have a security guard escort, plaintiff
stated “that's hospital protocol.” Defendant also testified he had
limited duration telephone contact with the minor children. Only
eight phone calls out of ninety-two made by defendant to the minor
children from 24 January 2003 through 20 August 2003 lasted longer
than two minutes. The trial court determined this was a direct
violation of Judge Sabiston's 10 October 2002 order requiring“[e]ach party...[to grant] the other access to telephone
communications with the children and in no way...hinder [or]
interfere with...the children from calling the party.” Finally,
plaintiff admitted she intentionally withheld visitation from
defendant. “[W]here...interference becomes so pervasive as to harm
the child's close relationship with [one parent], there can be a
conclusion drawn that the actions of the [other] 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) (emphasis added). Therefore, in accordance with
Shipman and Woncik, supra, there was substantial evidence in the
record plaintiff interfered with defendant's relationship with the
minor children to support the trial court's conclusion a substantial
change in circumstances occurred warranting a change in custody.
Thus, we overrule this assignment of error.
V. Best Interests of the Children and Fit and Proper Custodian:
Plaintiff next argues the trial court erred in concluding a
change in custody was in the best interests of the minor children
and that defendant was a fit and proper custodian. Plaintiff
contends that conclusion is not based on findings of fact supported
by competent evidence. 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.” Jordan v. Jordan, 162 N.C. App. 112, 118,
592 S.E.2d 1, 4 (2004) (citation omitted). Further, “[a] trial
court may be reversed for abuse of discretion only upon a showingthat its actions are manifestly unsupported by reason.” Id.
(quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833
(1985)). Here, the trial court concluded a change in custody was
in the minor children's best interests, in part, after determining
plaintiff has a pattern and history of interfering with visitation
between defendant and the minor children to the extent she will
prevent defendant from exercising his court ordered right to
custody, visitation and access. We cannot say the trial court has
abused its discretion in this determination. Lastly, because we
agree abundant competent evidence existed warranting a change in
custody and further, the trial court noted defendant and plaintiff
agreed in a prior consent order that defendant was a “fit and proper
person to have visitation with the minor children,” we concur with
the trial court's conclusion defendant was a fit and proper
custodian. This assignment of error is overruled.
VI. Reasonableness:
Plaintiff next argues the trial court abused its discretion by
failing to consider the “reasonableness” of plaintiff's beliefs and
actions regarding the alleged sexual abuse of her children. We
disagree. The trial court's findings of fact regarding no sexual
abuse are supported by competent evidence as illustrated through Dr.
Meisburger's and Berson's testimony. There is nothing in the record
demonstrating any lack of “reasonableness” by the trial court and
moreover, nothing to constitute an abuse of discretion. This
assignment of error is overruled.
VII. Contempt of Court: Plaintiff next argues the trial court erred by finding
plaintiff in contempt of court. Plaintiff contends the court
addressed the provisions she violated in the prior custody order,
but failed to address how those provisions were violated. We
disagree.
Contempt of court can arise through a party's “[w]illful
disobedience of, resistance to, or interference with a
court's...order[.]” N.C. Gen. Stat. § 5A-11(a)(3) (2005).
Importantly, “[i]f the person is found to be in contempt, the judge
must make findings of fact and enter judgment [where] [t]he facts
must be established beyond a reasonable doubt.” N.C. Gen. Stat. §
5A-15(f) (2005). This Court has found “'implicit in the statute the
requirement that the judicial official's findings should indicate
that [the reasonable doubt] standard was applied to his findings of
fact.'” State v. Ford, 164 N.C. App. 566, 569-70, 596 S.E.2d 846,
849 (2004) (emphasis in original) (quoting State v. Verbal, 41 N.C.
App. 306, 307, 254 S.E.2d 794, 795 (1979)).
In the instant case, in finding of fact number 40, the trial
court found beyond a reasonable doubt plaintiff willfully and
knowingly violated paragraphs one, five, nine, eleven, twelve, and
thirteen of Judge Sabiston's 10 October 2002 order. The provisions
plaintiff violated in the 10 October 2002 order include: defendant
had joint custody of the minor children (paragraph one); defendant
is permitted telephone contact at least twice per week (paragraph
five); both parties are expected to make reasonable efforts to
promote in the minor children love, affection, and respect for eachparent (paragraph nine); each party is expected to allow for access
to telephone communication with the minor children (paragraph
eleven); each party is obligated to consult with the other regarding
non-emergency medical, dental, and orthopaedic treatment for the
minor children (paragraph twelve); and each party is obligated to
notify the other as to all activities the minor children are
involved with and consult with the other about these activities
(paragraph thirteen). The following evidence from the 11-12
September 2003 trial supports the trial court's conclusion plaintiff
willfully and knowingly violated Judge Sabiston's prior order:
plaintiff admitted she failed to inform defendant she was moving
thus violating paragraphs one, five, nine, and eleven; plaintiff
admitted she failed to inform defendant ASL was out sick from school
thus violating paragraph twelve; plaintiff admitted she failed to
inform defendant ASL switched schools thus violating paragraph
thirteen; plaintiff admitted that when both SBL and RAL were sick
in the hospital, she attempted to limit their contact with defendant
to five minutes and required the presence of a security guard thus
violating paragraph nine; and, plaintiff admitted she later withheld
visitation from defendant. Because evidence exists to support the
trial court's finding that plaintiff was in contempt of court, this
assignment of error is overruled.
VIII. Attorney's Fees:
Plaintiff lastly argues the trial court erred by awarding
defendant attorney's fees. Plaintiff contends there is insufficient
evidence to support the court's determination defendant acted ingood faith and that she be held in contempt of court. Further,
plaintiff contends there is no evidence in the record to support the
court's finding she has the means to compensate defendant. We
disagree.
N.C. Gen. Stat. § 50-13.6 (2005) provides
[I]n an action or proceeding for the custody or
support, or both, of a minor child, including
a motion in the cause for the modification or
revocation of an existing order for custody or
support, or both, the court may in its
discretion order payment of reasonable
attorney's fees to an interested party acting
in good faith who has insufficient means to
defray the expense of the suit.
Our Supreme Court has interpreted this statutory language to require
“that before attorney's fees can be taxed in an action for
custody...the facts required by the statute--that the party seeking
the award is (1) an interested party acting in good faith, and (2)
has insufficient means to defray the expense of the suit--must be
both alleged and proved.” Taylor v. Taylor, 343 N.C. 50, 54, 468
S.E.2d 33, 35 (1996) (emphasis added).
In the instant case, the trial court found as fact that
defendant “br[ought] these motions as an interested party and...has
acted in good faith in bringing these motions as evidenced by the
court's finding...that plaintiff has beyond a reasonable doubt
willfully and knowingly violated the court's orders[.]” Further,
the court also found that defendant
has insufficient means to defray the expense of
this suit in that his savings account has been
depleted and after paying approximately six
thousand dollars for attorney fees, Guardian Ad
Litem fees and the University of North Carolina
School of Medicine the defendant still owes asubstantial sum of money in attorney fees to
Mr. Blue. Plaintiff, the plaintiff, has
remained employed since previous orders
established her monthly income to be in excess
of $5,000.00 and there has been no evidence
that her income has decreased at the time of
this hearing. The plaintiff...has the means and
ability to compensate the defendant for the
attorney fees and cost awarded herein.
First, we agree defendant acted in good faith because we previously
held plaintiff was correctly found to be in contempt of court.
Second, the trial court displayed competent evidence that defendant
lacked the monetary means to handle the cost of representation and
that plaintiff was equipped to do so. Consequently, and in
accordance with Taylor, supra, because defendant, as the party
seeking the attorney fee award, alleged and proved, and the trial
court subsequently found as fact, he was an interested party acting
in good faith and had insufficient means to defray the expense of
the suit, the trial court properly granted him attorney's fees.
This assignment of error is overruled.
Affirmed.
Judges BRYANT and JACKSON concur.
Report per Rule 30(e).
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