Opinion
No. 07-552.
Filed April 15, 2008.
Mecklenburg County No. 99CVD11508NPP.
Appeal by plaintiff from orders entered 22 September 2006 by Judge Nathaniel P. Proctor in Mecklenburg County District Court. Heard in the Court of Appeals 14 November 2007.
Lucy R. McCarl, for plaintiff-appellant. The Children's Law Center, by Angelina M. Maletto, for Guardian ad Litem. No brief filed, for defendant-appellee.
Lynne [Barber] Daughtridge ("plaintiff") appeals two orders. One order denies her motion for change of custody and the other order suspends her visitation. We dismiss the appeal as interlocutory.
Plaintiff was formerly married to Joseph T. Barber ("defendant"; collectively, "the parties"). During the parties' marriage, three children were born: Eva Barber ("Eva"), born in January 1990, Joseph Benjamin Barber ("Ben"), born August 1992, and James Luke Barber ("Luke"), born November 1994 (collectively, "the children"). On 19 December 2001, the trial court ordered joint legal custody, granting plaintiff primary physical custody and defendant visitation. At the time of the original custody order the parties lived in Mecklenburg County. In 2004, plaintiff moved the children to Lenoir, North Carolina in Caldwell County. Defendant moved to Union County and filed a Motion to Modify the Custody Order.
On 5 December 2005, the Honorable Nathaniel P. Proctor ("Judge Proctor") in Mecklenburg County District Court, found all three children were terrific students and athletes despite turmoil related to the custody litigation. Specifically, plaintiff's relationship with Eva deteriorated. Both Eva and Ben shared a strong desire to live with their father. Luke did not express a preference for either parent. Judge Proctor's findings regarding the evidence presented by the parties included that defendant is capable of parenting three children. Plaintiff demonstrated that she will not promote visitation between defendant and the children, in disregard of defendant's rights and the children's best interests.
Based upon the findings of fact, Judge Proctor concluded circumstances substantially changed affecting the children and that the children's best interests would be served by modifying the order. "Father is the fit and proper person to have the primary care, custody and control of the . . . minor children, and it is in their best interests, and would promote their general welfare, for their physical care, custody and control to be granted to Father." "Mother is a fit and proper person to have visitation with the children . . . and it is in the children's best interest[s] that visitation be awarded to Mother." Based upon the findings of fact and conclusions of law, Judge Proctor modified the order and granted primary custody to defendant subject to plaintiff's right to visitation. Plaintiff's visitation included alternate weekends, school holidays preceding or following a scheduled weekend visit with plaintiff, Tuesday evenings from after school until 9 p.m., alternate weeks during the summer, holidays, and any other times that were mutually agreeable. Eva was not compelled to visit plaintiff due to strained relations between Eva and the plaintiff.
The same day that Judge Proctor modified the order, plaintiff filed a motion to vacate or modify the 5 December 2005 custody order and a motion for a new trial pursuant to Rules 59 and 60. Judge Proctor denied plaintiff's motions, but advised the parties that the court would modify custody upon a showing of changed circumstances.
On 1 May 2006, court personnel informed Judge Proctor that defendant had filed a pro se motion seeking to retrieve his sons from plaintiff's custody. On 23 April 2006, plaintiff had withdrawn her sons from school in Union County and moved them to her home in Caldwell County. Judge Proctor directed court personnel to contact the parties to appear for an emergency hearing. On 2 May 2006, both parties personally appeared. Defendant was pro se and plaintiff was represented by counsel. Judge Proctor repeated one of the findings from the 5 December 2005 order that prohibited both parties from involving law enforcement in any capacity. Therefore, defendant was powerless to use law enforcement to retrieve his sons on 23 April 2006 when plaintiff refused to return them.
In late April 2006, Ben and Luke mailed letters ("the letters") to Judge Proctor stating their preference to remain with the plaintiff. Judge Proctor entered an order appointing the Children's Law Center and a guardian ad litem for the children, ordering the parties to cooperate with the Children's Law Center, and ordering plaintiff to return Ben and Luke to the defendant. On 25 May 2006, the trial court entered an order appointing Sheila Passenant and Lisa Morris as guardians ad litem for the children and Annette Gross as a Children's Law Center Custody Advocate.
On 31 May 2006, plaintiff filed a Motion for Change of Custody based on a substantial change in circumstances. Plaintiff alleged in her motion, inter alia, Ben and Luke did not want to return to the defendant's house, one of Ben's teachers told plaintiff Ben was sad, defendant did not return plaintiff's phone calls, defendant brought the children late for visitation, Ben and Luke were afraid of defendant, defendant was unresponsive to her phone calls and the children's extracurricular activities conflicted with her scheduled visitation.
On 21 June 2006, the trial court entered an amended order appointing Sheila Passenant and Angelina Maletto ("Guardian Ad Litem") as guardians ad litem and Lisa Morris and Annette Gross as Children's Law Center Custody Advocates. On 3 July 2006, defendant filed an Answer, Counterclaim and Motion requesting that plaintiff's motion for change of custody be denied.
Because only Angelina Maletto signed the brief on appeal, we refer only to Angelina Maletto as the Guardian Ad litem.
On 8 August 2006, Judge Proctor heard plaintiff's motion for a change of custody. Judge Proctor heard testimony from Lisa Morris, plaintiff, defendant, plaintiff's boyfriend, and plaintiff's parents. Plaintiff and her parents testified Luke wished to stay with his mother. Defendant testified the children were thriving in school as well as extracurricular activities in Union County and had never expressed a desire to live with the plaintiff. Lisa Morris testified Ben and Luke told her their grandparents were in the room when they wrote the letters to the judge and the letters had been dictated to them. Plaintiff testified that she received numerous e-mails from defendant regarding the children's schedules. Defendant testified he only received two e-mails from plaintiff since December of 2005. Judge Proctor ordered the parties to bring the matter "back in front of me within thirty days, just if nothing else for the limited purpose of letting me adjudicate any scheduling disputes that the parties can see after talking together for the next few days."
On 13 September 2006, Judge Proctor presided over a hearing to review the visitation arrangement and visitation schedules. At this hearing, the Guardian Ad Litem asked the court to suspend plaintiff's visitation with Luke alleging changes that occurred in the last thirty days. Specifically, she alleged since the August hearings, plaintiff berated Luke for talking to the Custody Advocate, that she inappropriately discussed the case with the children, and she was uncooperative with the visitation schedule. On 22 September 2006, Judge Proctor entered an order denying plaintiff's motion for change of custody concluding that plaintiff did not demonstrate a substantial change in circumstances. Also on 22 September 2006, Judge Proctor suspended plaintiff's visitation with Luke. Judge Proctor also ordered that Ben was not compelled to visit plaintiff until relations between them normalized. From this order, and the order denying plaintiff's motion for a change of custody, plaintiff appeals.
I. Order Suspending Plaintiff's Visitation
Plaintiff argues the trial court erred when it entered an order suspending plaintiff's visitation because there was no pending issue before the court at the time. We disagree.
The Guardian Ad Litem contends that plaintiff's appeal should be dismissed because the order suspending mother's visitation was not a final order rendering plaintiff's appeal interlocutory. We agree and dismiss the appeal as interlocutory.
An interlocutory order is one made during the pendency of an action, which does not dispose of the case but leaves it for further action by the trial court to settle and determine the entire controversy. Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). Interlocutory orders are not generally appealable. Id. However, appeal is permitted if "there is an order or judgment which is final as to some but not all . . . claims or parties and the trial court certifies the case for appeal pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b). Second, an appeal is permitted if it affects a substantial right that will be lost if not reviewed immediately." Rowe v. Rowe, 131 N.C. App. 409, 410, 507 S.E.2d 317, 318 (1998) (internal citations omitted). Temporary custody orders do not affect a substantial right which an appellant would lose if the order is not reviewed before the final judgment. Dunlap v. Dunlap, 81 N.C. App. 675, 676, 344 S.E.2d 806, 807 (1986) (citing Heavner v. Heavner, 73 N.C. App. 331, 326 S.E.2d 78, disc. rev. denied, 313 N.C. 601, 330 S.E.2d 610 (1985)); see also Berkman v. Berkman, 106 N.C. App. 701, 417 S.E.2d 831 (1992) (temporary custody order does not affect a substantial right).
An order modifying custody or visitation is deemed temporary when a clear and specific recurring time is set out in the order and the time period between the order and the reconvening hearing is brief. Cox v. Cox, 133 N.C. App. 221, 233, 515 S.E.2d 61, 69 (1999); Simmons v. Arriola, 160 N.C. App. 671, 674-75, 586 S.E.2d 809, 811 (2003) ("An order is considered temporary only if it either (1) states a `clear and specific reconvening time' that is reasonably close in proximity to the date of the order; or (2) does not determine all the issues pertinent to the custody or visitation determination.").
Here, the order suspending visitation was a temporary order. The trial court suspended plaintiff's visitation with her two older children "[u]ntil relations between Mother and [her children] have normalized," and suspended Luke's visitation "until such time as Luke's therapist deems it appropriate for Luke to reinstate visitation with Mother." The order required plaintiff's counsel to coordinate with Counsel for Children's Rights and defendant "to set this matter for review." In addition, the trial court ordered the matter returned to him within thirty days. Thirty days is a clear and specific reconvening time and is reasonably close to the proximity of the order. Because of the temporary nature of the order suspending visitation, it is not a final order, and therefore not immediately appealable. The trial court did not certify the order as immediately appealable under N.C. Gen. Stat. § 1-A, Rule 54(b) and since temporary visitation orders do not affect a substantial right, we dismiss plaintiff's appeal.
II. Order Denying Plaintiff's Motion to Modify Custody
Plaintiff's final two arguments on appeal relate to the order denying plaintiff's motion to modify custody. Plaintiff contends the trial court abused its discretion by (1) relying on "incompetent hearsay evidence that was inherently unreliable"; and (2) the court's reliance on "obviously biased evidence tendered by the Guardian ad Litem could not have been the result of a reasoned decision." We disagree.
The Guardian Ad Litem also contends that the order denying plaintiff's motion to modify custody was interlocutory. We agree. At the time the order denying plaintiff's motion to modify custody was entered, the parties were due to return to court to resolve issues related to the visitation schedule. Since we conclude the order suspending visitation did not resolve all controversies between the parties, the order denying plaintiff's motion to modify custody similarly is not a final order and is not immediately appealable.
As a final matter, plaintiff assigns twenty-six errors on appeal and argues twenty-five. An assignment of error not argued is deemed abandoned pursuant to N.C.R. App. P. 28(b)(6) (2007).
Dismissed.
Judges STEPHENS and ARROWOOD concur.
Report per Rule 30(e).