BERNARD McGEE,Jr.
v
.
Rutherford County
No. 00 CVD 686
PAMELA McGEE (SHARPE)
No brief for plaintiff-appellee.
Dameron, Burgin & Parker, by Phillip T. Jackson, and
Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C.,
by David B. Goldstein, pro hac vice, for defendant-
appellant.
STEELMAN, Judge.
The parties were married on 14 February 1990, separated on 22
April 2000, and divorced on 24 August 2004. There are three
children of the marriage, Bethany, Kerrie and Benjamin. The
children, respectively, were 15, 13 and 10 at the time of this
appeal. The parties began attending Word of Faith Fellowship
Church (“Word of Faith”, “WOFF”, or “the church”) in 1993, along
with their girls. Benjamin also attended the church after his
birth. Word of Faith practices a form of prayer called “blasting”
prayer. In an order involving the parties entered 8 December 2000,
Judge C. Randy Pool described blasting prayer as follows: This Court finds that blasting is a high
pitched, shrill, piercing, non-verbal scream.
The purpose of blasting was described by
witnesses for both the Plaintiff and Defendant
as for use in driving out devils. Children
are said by WOFF authority figures, staff and
school personnel to be “given to the control
of devils” which necessitates blasting.
Blasting has been and is used on children from
birth and will occur from within 1 foot of a
child. Frequently, more than one person
engages in blasting at one time. Children are
blasted repeatedly for hours. Children and
adults are sometimes physically restrained
while being subjected to blasting.
Plaintiff filed a complaint seeking custody of the three
children and equitable distribution on 5 July 2000, claiming that
defendant was not a “fit and proper person to have legal custody
of” the children. Defendant filed an answer and counterclaim 13
September 2000, requesting custody of the children, and alleging
plaintiff was unfit to have legal custody of the children. This
matter was initially heard before Judge Pool in Rutherford County
District Court, and he rendered his order on 8 December 2000.
Judge Pool found, inter alia, that certain practices of Word of
Faith, including blasting prayer, had “an adverse effect on the
health, safety and welfare of children[,]” and “pose a potential
harm . . . .” The trial court granted joint legal custody of the
children to the parties, and established a custody schedule. Judge
Pool further ordered: “Neither parent shall allow the children to
be permitted to engage in blasting (or loud prayer), or the
gesturing identified on the video tape exhibit, by either parent.”
By motion to show cause filed 7 October 2004, plaintiff
alleged that defendant was in violation of multiple provisions ofJudge Pool's order, including the ban on blasting prayer; moved for
defendant to be adjudged in contempt of court; and requested that
he be awarded custody of the children. By motion filed 10 December
2004, defendant moved the trial court to modify the 8 December 2000
order to allow that the children “may participate fully in their
religious practices and religious worship.” Defendant based her
motion on substantial change of circumstances since the entry of
Judge Pool's order.
Judge Powell entered judgment in the matter on 15 April 2005.
The parties reached a voluntary agreement with respect to many
custody issues. Judge Powell found that defendant had complied
with Rutherford County Department of Social Services' requests for
the children to undergo physical and psychological examinations,
and that the September 2001 written evaluation reports by the
Department of Social Services' recommended doctors, Dr. Ann Crummie
and Dr. Bob Crummie, “stated that no harm was found and that the
children did not show any unusual pathology.” Following these
reports, defendant began permitting the children to participate in
blasting prayer. The children continued to participate in blasting
prayer until plaintiff complained to Department of Social Services
in January of 2003 about these practices.
Department of Social Services conducted an investigation that
was closed on 19 December 2003 with no finding of abuse, neglect or
dependency. Department of Social Services workers, and Drs. Ann
and Bob Crummie, testified that “they had observed no severe
depression, anxiety, withdrawal, or aggressive behavior on the partof the children; that the children were polite, well-mannered,
cooperative, and open with them.” Judge Powell was personally
impressed by the “demeanor, poise and manners” of Bethany and
Kerrie, and noted that Benjamin “appears to be a very pleasant and
well-mannered young man.” Judge Powell further found that the
children had consistently expressed their wishes to be allowed to
participate in blasting prayer.
Judge Powell determined, however, that he was bound by the
prior order entered by Judge Pool, and therefore declined to
consider any change of circumstances other than the age and
maturity of the children in deciding whether to permit them to
engage in blasting prayer. Based on this criteria, Judge Powell
determined that the two girls had reached sufficient age and
maturity to decide for themselves whether to engage in blasting
prayer, but determined that Benjamin had not. Judge Powell ruled
that the “order of Judge Pool concerning Benjamin is unchanged in
its restrictions.” From this judgment defendant appeals.
In defendant's first argument, she contends that the trial
court erred in failing to consider all evidence of changed
circumstances in its judgment denying modification of Judge Pool's
order with respect to Benjamin. We agree.
Judge Powell found as fact that “[a]lthough the prior order of
December, 2000 was a temporary order, because it had been followed
for such a long period of time [with no further hearings on the
matter] it has become a non-temporary order.” This finding is not
challenged on appeal. Because Judge Powell found Judge Pool'sorder to be a final order, he concluded:
“The court believes that
the only issue to be decided in regard to these religious practices
is whether the minor children have reached an age of sufficient
maturity to make such a decision for themselves.”
However:
The entry of an Order in a custody matter does
not finally determine the rights of parties as
to the custody, care and control of a child,
and when a substantial change of condition
affecting the child's welfare is properly
established, the Court may modify prior
custody decrees. However, the modification of
a custody decree must be supported by findings
of fact based on competent evidence that there
has been a substantial change of circumstances
affecting the welfare of the child, and the
party moving for such modification assumes the
burden of showing such change of
circumstances.
Blackley v. Blackley, 285 N.C. 358, 362, 204 S.E.2d 678, 681
(1974). “Changed conditions will always justify inquiry by the
courts in the interest and welfare of the children, and decrees may
be entered as often as the facts justify.'” In re Bowen, 7 N.C.
App. 236, 241, 172 S.E.2d 62, 65 (1970). When hearing a motion
alleging a substantial change of circumstances warranting
modification of a custody order,
courts must consider and weigh all evidence of
changed circumstances which affect or will
affect the best interests of the child, both
changed circumstances which will have salutary
effects upon the child and those which will
have adverse effects upon the child. In
appropriate cases, either may support a
modification of custody on the ground of a
change in circumstances.
Pulliam v. Smith, 348 N.C. 616, 619, 501 S.E.2d 898, 899 (1998).
“. . . the welfare of the child at the time
the contest comes on for hearing is the
controlling consideration. . . . It may bewell to observe . . . that the law is
realistic and takes cognizance of the ever
changing conditions of fortune and society.
While a decree making a judicial award of the
custody of a child determines the present
rights of the parties to the contest, it is
not permanent in its nature, and may be
modified by the court in the future as
subsequent events and the welfare of the child
may require. . . .”
Shepherd v. Shepherd, 273 N.C. 71, 74, 159 S.E.2d 357, 360 (1968)
(citation omitted).
In the instant case, it is clear that the trial court did not
consider all evidence of changed circumstances when determining
whether to modify the provisions of the custody order. The trial
court erroneously believed it was limited to consideration of
whether the minor children had achieved sufficient age and maturity
to make their own religious decisions. Though Judge Powell found
that the older girls were of sufficient age and maturity to make
the choice to engage in blasting prayer, concerning Benjamin he
found: “The court is not persuaded that Benjamin has reached
[sufficient maturity to make his own religious decisions], although
he appears to be a very pleasant and well-mannered young man.” For
this reason, and this reason alone, the trial court declined to
modify the custody order as it pertained to Benjamin.
Judge Powell made numerous findings of fact, including
that
Department of Social Services had initiated an investigation of the
minor children in December of 2000; that Department of Social
Services had recommended physical and psychological evaluations of
the children, and that defendant had complied with these requests;
that the children obtained psychological counseling pursuant tothese evaluations; that the counselors, Drs. Robert and Ann
Crummie, found “no harm was found and that the children did not
show any unusual pathology”; that Department of Social Services
closed its file on the children with no findings of abuse, neglect
or dependency in December of 2001; that following the close of the
Department of Social Services' file, defendant resumed allowing the
children to participate in blasting prayer, which continued until
approximately January of 2005; that Department of Social Services
initiated a second investigation in February of 2003 upon learning
that the children were participating in blasting prayer, and that
the file was again closed with no finding of abuse, neglect or
dependency in December of 2003; that all the children testified
that they enjoyed blasting prayer, and wished to be allowed to
participate in it; that Drs. Robert and Ann Crummie and two
Department of Social Services workers testified that they had
observed “no severe depression, anxiety, withdrawal, or aggressive
behavior on the part of the children; that the children were
polite, well-mannered, cooperative, and open with them”; and that
Judge Powell observed the children to be “responsive, open and
credible in their testimony.”
By the terms of Judge Powell's order, he did not consider any
of this evidence in making his determination whether there existed
a substantial change in circumstances warranting modification of
Benjamin's custody order. The trial court was, upon petition of
defendant, required to consider all evidence of changed
circumstances prior to ruling on modification of the custodyrestrictions.
Pulliam, 348 N.C. at 619, 501 S.E.2d at 899.
Because
the trial court failed to consider all relevant evidence of changed
circumstances, we must reverse the judgment as it pertains to
Benjamin's right to participate in blasting prayer. We remand with
instruction to the trial court to consider all relevant evidence of
changed circumstances in making its ruling on this issue.
We further note a puzzling inconsistency in Judge Powell's
order. He asserts that he is bound by Judge Pool's determination
that “blasting prayer” had “an adverse effect on the health, safety
and welfare” of the children. However, because of their ages, he
allowed the two older children to participate in this detrimental
practice. The welfare of the child is the “polar star” for the
trial court's decisions in such cases. The “'expressed wish of a
child of discretion is . . . never controlling upon the court,
since the court must yield in all cases to what it considers to be
for the child's best interests, regardless of the child's personal
preference.'” Bost v. Van Nortwick, 117 N.C. App. 1, 22, 449 S.E.2d
911, 923 (1994) (citations omitted). If the practice of “blasting
prayer” is in fact detrimental to the children, then the trial
court should not have allowed the minor children to participate in
this activity, regardless of their age or consent.
In light of our holding above, we do not address defendant's
second argument on appeal. See State v. Lambert, 146 N.C. App. 360,
368, 553 S.E.2d 71, 77 (2001). Further, defendant's arguments on
appeal were limited to the trial court's determination that
Benjamin may not participate in blasting prayer. Defendant has notargued on appeal that the judgment was in any other manner
erroneous. Therefore, defendant has abandoned her right to appeal
any additional issues related to the judgment, and the judgment is
otherwise affirmed.
Strader v. Sunstates Corp., 129 N.C. App. 562,
567-68, 500 S.E.2d 752, 755 (1998).
Because respondent has not argued her other assignments of
error in her brief, they are deemed abandoned. N.C. R. App. P.
Rule 28(b)(6) (2005).
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).
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