Opinion
No. COA12–1512.
2013-06-18
Harold Wayne DELANCEY, Jr., Plaintiff–Appellant, v. Tabetha Apple DELANCEY, Defendant–Appellee.
Samuel S. Spagnola for Plaintiff–Appellant. No brief for Defendant–Appellee.
Appeal by Plaintiff from order entered 17 July 2012 by Judge Frederick B. Wilkins, Jr. in District Court, Rockingham County. Heard in the Court of Appeals 23 April 2013. Samuel S. Spagnola for Plaintiff–Appellant. No brief for Defendant–Appellee.
McGEE, Judge.
Harold Wayne Delancey, Jr. (Plaintiff) and Tabetha Apple Delancey (Defendant) married on 11 May 2002, and had a son (the son) born on 2 August 2006. Plaintiff and Defendant separated on 3 August 2010. Plaintiff is a fire inspector with the Greensboro Fire Department, and works a schedule whereby he will work twenty-four hours straight, from 8:00 a.m. to 8:00 a.m., followed by forty-eight hours off from work. Defendant works for the United Way of Rockingham County on Monday to Friday from 8:00 a.m. to 5:00 p.m. Plaintiff filed the complaint in this action on 8 March 2011. Relevant to this appeal, Plaintiff's complaint contained a claim for custody of the son. Defendant answered, and a hearing to determine custody of the son was conducted on 26 January 2012. The trial court entered an order on 13 February 2012, which it amended by order entered 15 February 2012 (together, the custody order), granting primary custody to Defendant, and providing Plaintiff with visitation amounting to slightly less than one out of every four days. The trial court provided Plaintiff and Defendant with an option to take up to eight straight vacation days with the child annually, but did not schedule any specific holiday time for either party.
Plaintiff filed a motion on 21 February 2012 to amend the custody order to include both specific holiday visitation scheduling and to correct certain findings of fact Plaintiff believed were erroneous. The trial court heard Plaintiff's motion to amend on 29 June 2012, and entered an order denying Plaintiff's motion on 17 July 2012. Plaintiff appeals.
I.
The issues on appeal are (1) whether the trial court erred in failing to provide a specific holiday visitation schedule, and (2) whether the trial court erred in making certain findings of fact.
II.
This Court reviews child custody orders for abuse of discretion:
[T]he trial court has broad discretion in matters of child custody and visitation. The general rule is thus stated ...:
The guiding principle to be used by the court in a custody hearing is the welfare of the child or children involved. While this guiding principle is clear, decision in particular cases is often difficult and necessarily a wide discretion is vested in the trial judge. He has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion.
Falls v. Falls, 52 N.C.App. 203, 209, 278 S.E.2d 546, 551 (1981) (citations omitted).
III.
In Plaintiff's first argument, he contends that the trial court abused its discretion by denying Plaintiff “holiday visitation and [limiting] his summer vacation visitation to eight days.” We agree in part.
A noncustodial parent's right of visitation is a natural and legal right which should not be denied “unless the parent has by conduct forfeited the right or unless the exercise of the right would be detrimental to the best interest and welfare of the child.” In awarding visitation privileges the court should be controlled by the same principle which governs the award of primary custody, that is, that the best interest and welfare of the child is the paramount consideration. The purpose of the award should not be to punish or reward a parent by withholding or granting the right of visitation.
....
Clearly, the statute requires an appropriate finding of fact before the trial judge may completely deprive a noncustodial parent of the right of visitation. However, we construe the statute to require a similar finding when the right of reasonable visitation is denied. Thus, where severe restrictions are placed on the right, there should be some finding of fact, supported by competent evidence in the record, warranting such restrictions.
Johnson v. Johnson, 45 N.C.App. 644, 646–47, 263 S.E.2d 822, 824 (1980) (citations omitted).
In the present case, Plaintiff testified that his schedule as a fireman is twenty-four straight hours of work followed by forty-eight straight hours off of work. Plaintiff was asked by his attorney what visitation schedule he would like in the following colloquy:
I would get him for two days, [Defendant] would have him for four days, then I would have him for two days again.
Q. And that would just repeat?
A. Yes, sir.
Q. So you'd have a total of ten days a month?
A. Yes, sir.
Q. [Defendant would] have him 20?
A. Yes.
Q. There'd be some holidays and that kind of thing and vacation, but other than that, the standard schedule would be four days with [Defendant], two days with you, four days with [Defendant], two days with you?
A. Correct.
In the custody order, the trial court provided for the following visitation schedule:
Custody, control, and tuition of Caleb Isaiah Delancey, born August 2, 2006, both physical and legal, shall be, and hereby is vested in Tabetha Apple Delancey subject however to reasonable visitation by and with Harold W. Delancey, Jr. as follows:
1. Commencing Saturday, March 3, 2012 at 9:00 a.m. and concluding by 8:00 a.m. on Monday, March 5, 2012, and for a like period of time each and every third Saturday thereafter;
2. Commencing February 17, 2012 at 6:00 p.m. and concluding by 8:00 p.m. on Saturday, February 18, 2012 and for a like period of time every alternate third Friday thereafter;
3. Commencing Monday, February 20, 2012 at 6:00 p.m. and concluding by 8:00 a.m. Wednesday, February 22, 2012, and for a like period of time each and every third Monday thereafter; and
4. Annually, either party may upon the giving of advance notice to the other in writing of at least thirty (30) days, schedule a family vacation which would include eight (8) overnight periods during which the above visitation schedule would be suspended, however the above schedule would resume upon the conclusion of these family vacations[.]
No specific provisions were included in the custody order apportioning holidays between Plaintiff and Defendant. According to the custody order, the parent with whom the son would spend any particular holiday would be whichever parent happened to have the son on that day according to the schedule as laid out above. Plaintiff filed a “Motion to Amend Judgment” on 21 February 2012, in part on the following basis: “The custody order does not provide a schedule for holiday visitation.” At the hearing on Plaintiff's motion to amend, the following discussion occurred between Plaintiff's counsel and the trial court:
There's three things in this motion. The first one is really the biggest one, Your Honor. The order that was entered by the Court made no provisions at all for holiday visitation with the parties, no Christmas, no Easter, or anything. We had vacation and regular visitation, but there was no holiday visitation at all in the order.
THE COURT: It was my understanding whenever we went through the evidence with your client on this that he was on a work schedule with the fire department that didn't take holidays into effect. His shift was when his shift was and was-he could look at it now and tell in perpetuity which days he would have off. Some of those days may fall on holidays, some of those may not, but I understood that—that's part of the problem of being a fireman and working that type of shift. Was I wrong?
[Plaintiff's counsel]: Well, no, you're not wrong as to what the testimony was, but that doesn't preclude him having time off or being able to take time off voluntarily, and we didn't put any evidence on, on that because, quite frankly, I've never had to put on evidence as to when a person's holiday visitation goes into effect because it can change from year to year whether you're a fireman or whether you work at the bank.
THE COURT: It's not often I have cases presented where I'm told that the schedule is what it is and that the holidays don't factor in, that firemen work that type of schedule. It's that type of schedule. That's just the way the schedule is.
[Plaintiff's counsel]: And I understand, again, Your Honor, that the evidence is what it is, but again, I don't know that-that in order for him to have holiday visitation, there would be a requirement that he's off 24 hours a day because that's not the case with anybody, whether they're a fireman or not, and again, I just assumed it was an oversight by the Court.
We didn't get to review the order and say, “Hey. Wait a minute,” before it was entered, and I just have never had a situation where there was no holiday visitation entered unless there was some—some evidence that made it that that wasn't possible.
And so he has no holiday visitation at all, and we would just simply ask the Court to take that into consideration and amend the judgment, which is certainly within the Court's ability to do, to provide a fair holiday visitation schedule. And then if he's—you know, needs to take time off or make arrangements during that time for—in order to exercise that, then he should have the ability to do that just like anybody else. I mean people work all the time when their kids are out of school during the holidays and they still have holiday visitation schedules. Maybe they get grandma or someone else to watch the kid while they're at work, and I don't see why that would be any different in [Plaintiff]'s case.
And I would just simply ask the Court to reconsider that and enter an order that-a standard order of some kind or let me and [Defendant's counsel] see what we can propose to the Court that would be a standard order.
By order filed 17 July 2012, nunc pro tunc 29 June 2012, the trial court denied Plaintiff's motion to amend. The trial court included the following findings of fact supporting its denial with respect to holiday visitation:
4. The Court notes that the Motion to Amend Judgment filed by [ ][P] laintiff herein is not verified and is not supported by any Affidavit.
5. Further, neither [ ][P]laintiff nor [ ][D]efendant offered any evidence at this hearing, but simply provided arguments of counsel to support their positions in regards to the Motion to Amend Judgment.
6. [ ][P]laintiff complains that the Court did not enter a schedule for holiday visitation, however, the Court reiterated its position at this hearing that the plaintiff testified that his work schedule was such that he worked one day on and two days off and that this schedule rotated constantly through out the year. [ ][P]laintiff also testified at the earlier hearing that this schedule did not change at any time during the calendar year. The Court accepted [ ][P]laintiff's testimony at the earlier hearing and determined that [ ][P]laintiff did not enjoy the flexibility of time off for holidays due to the fact that he testified that his schedule was locked in and did not change at any time.
7. [ ][P]laintiff offered no testimony that would lead the Court to believe that his work schedule changed in any regard due to any holidays during the calendar year.
The trial court concluded that it had jurisdiction and that Plaintiff's motion to amend was timely filed. The trial court further concluded: “There has been no evidence offered to support [ ][P]laintiff's argument that the [custody order] ... should be amended.”
“The welfare of the child is the ‘polar star’ which guides the court's discretion in custody determinations.” Evans v. Evans, 138 N.C.App. 135, 141, 530 S.E.2d 576, 580 (2000) (citation omitted). “ ‘[T]he court's primary concern is the furtherance of the welfare and best interests of the child [.]’ “ Id. (citation omitted). “Visitation privileges are but a lesser degree of custody .” Clark v. Clark, 294 N.C. 554, 575–76, 243 S.E.2d 129, 142 (1978).
The weight of authority seems to be and we hold that a parent's right of visitation with his or her child is a natural and legal right and that when awarding custody of a child to another, the court should not deny a parent's right of visitation at appropriate times unless the parent has by conduct forfeited the right or unless the exercise of the right would be detrimental to the best interest and welfare of the child. The court should not assign the granting of this privilege of visitation to the discretion of the party awarded custody of the child.
....
When the question of visitation rights of a parent arises, the court should determine from the evidence presented whether the parent by some conduct has forfeited the right or whether the exercise of the right would be detrimental to the best interest and welfare of the child. .... [I]f the court does not find that the parent has by conduct forfeited the right of visitation and does not find that the exercise of the right would be detrimental to the best interest and welfare of the child, the court should safeguard the parent's visitation rights by a provision in the order defining and establishing the time, place and conditions under which such visitation rights may be exercised. In doing so, the court must be controlled by the principle that the best interest and welfare of the child is the paramount consideration in determining the visitation rights, as well as in determining the right to custody, and that neither of these rights should be permitted to jeopardize the best interest and welfare of the child.
In re Custody of Stancil, 10 N.C.App. 545, 551–52, 179 S.E.2d 844, 849 (1971) (citations omitted).
In the present case, the trial court seemed to believe that Plaintiff's schedule could never accommodate holiday vacation time. However, Plaintiff argued in both the 26 January 2012 hearing and the 29 June 2012 hearing that he wanted the trial court to determine an equitable holiday visitation schedule, and that Plaintiff could work with his schedule, either by finding help to watch the son on days Plaintiff had to work, by taking vacation time, or by making arrangements with his co-workers to switch shifts. Plaintiff testified that, when needed, he altered his work schedule so that he could attend the son's basketball games. At the 26 January 2012 hearing, Defendant suggested that Plaintiff get visitation six days each month, including three Tuesdays a month. Plaintiff's attorney then had the following colloquy with Defendant:
Q. He's only available on two Tuesdays each month.
A. Okay.
Q. So if you wanted to give him three Tuesdays, at least one of those wouldn't be feasible, correct?
A. I mean, if he wanted to change his work schedule, he has plenty of time.
Q. I'm sorry?
A. If he needed to change his work schedule, he has plenty of time. He has people trade-they trade all the time at work.
Most relevantly, the trial court itself seemed to acknowledge Plaintiff's ability to work vacation around his schedule, or his schedule around vacation, as it provided the following in the custody order: “Annually, either party may upon the giving of advance notice to the other in writing of at least thirty (30) days, schedule a family vacation which would include eight (8) overnight periods during which the above visitation schedule would be suspended[.]”
In spite of this evidence, the trial court denied Plaintiff's motion to amend based upon the following reasoning: “The Court accepted [ ][P]laintiff's testimony at the earlier hearing and determined that [ ][P]laintiff did not enjoy the flexibility of time off for holidays due to the fact that he testified that his schedule was locked in and did not change at any time.” The evidence at the 26 January 2012 hearing did not support the finding that Plaintiff did not have the flexibility to accommodate taking holiday vacation time to be with the son, and the 17 July 2012 order denying Plaintiff's motion to amend focused entirely on Plaintiff's conduct and testimony, and did not address the best interests of the son. Determinations of visitation for the son must be made with his best interests as the guiding principle. Because the 17 July 2012 order did not indicate that the best interests of the son was the guiding principle in denying Plaintiff's request for scheduled holiday visitation, we reverse and remand for further action. The trial court should support whatever visitation schedule it decides upon with findings of fact, in turn supported by competent evidence, showing how the best interests of the son are served by that schedule. See Lamond v. Mahoney, 159 N.C.App. 400, 407–08, 583 S.E.2d 656, 661 (2003) (remanding for findings of fact related to vacation schedule). Upon remand, the trial court shall also revisit the amount of summer vacation time granted to Plaintiff and Defendant, and support its ruling on that issue with findings of fact. Id.
IV.
In Plaintiff's second argument, he contends the trial court abused its discretion in finding that Plaintiff was “involved in adulterous extra-marital affairs” and was also involved in an “affair” with one woman “while he was simultaneously living with” another.
While we find the trial court's characterization of Plaintiff's relationships in the custody order is at times misleading, indicating involvement greater than the facts at the hearing warranted, Plaintiff does not show how any error in this regard has prejudiced him. Plaintiff's sole argument of prejudice is that the trial court's characterization of Plaintiff's relationships with his girlfriends “unfairly maligns Plaintiff in a public record.” Plaintiff cites to no authority, and makes no argument, that this constitutes prejudice actionable on appeal. Failure to argue prejudice, and cite authority in support of that argument, constitutes a violation of N.C.R.App. P. 28(b)(6) and constitutes abandonment of any such argument. Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 367 (2008). We hold that this argument has been abandoned.
Furthermore, the trial court concluded that “[e]ach of the parties is a fit and proper person to exercise custody, control, and tuition of their child, and each possesses the ability to attend to and care for his emotions, educational, and physical needs.” The contested findings of fact were irrelevant to the trial court's ruling, as it found Plaintiff to be a fit and proper person to have custody, and did not impose any relevant restrictions on visitation (such as mandating supervised visitation). While we do not condone unnecessary findings related to a parent's character, no actionable prejudice resulted from these findings of fact.
Reversed and remanded in part, affirmed in part. Judges STEPHENS and HUNTER, JR. concur.
Report per Rule 30(e).