Bobbitt v. Eizenga

768 S.E.2d 200 (Table)

Timothy Scott BOBBITT, by Sasha DeeAnn Bobbitt, his attorney-in-fact, Plaintiff

v.Kellie Lynn EIZENGA, Defendant

v.Herman Bobbitt and Ellie Jones Bobbitt, Interveners.

No. COA14–586.

Court of Appeals of North Carolina.

Dec. 31, 2014.

Dummit Fradin, by Barbara E. Cini, for Plaintiff.

Parker & Parker, by Julie A. Parker, for Defendant (no brief filed).

ERVIN, Judge.

Plaintiff Timothy Scott Bobbitt appeals from an order awarding custody of the parties' daughter to Defendant Kellie Lynn Eizenga and denying his request for supervised visitation with his daughter that was entered on remand following a prior decision by this Court. On appeal, Plaintiff argues that the trial court erred by failing to conduct a new proceeding on remand from this Court's earlier decision, that the trial court's findings of fact lack sufficient evidentiary support, that the trial court's findings of fact do not support its conclusions of law with respect to the issues of both custody and visitation, and that the trial court abused its discretion by denying Plaintiff's request for the establishment of a visitation arrangement involving his minor child. After careful consideration of Plaintiff's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be vacated and that this case should be remanded to the Davie County District Court for further proceedings not inconsistent with this opinion.

I. Factual Background

Plaintiff and Defendant are the biological parents of a minor child whom we will call Laura.¹ On 27 October 2009, Plaintiff pled guilty to the attempted statutory rape of Defendant arising from an incident in which Laura was conceived and was sentenced to a term of 94 to 122 months imprisonment. Plaintiff is currently being held in the custody of the North Carolina Department of Public Safety for the purpose of serving that sentence.

On 12 January 2010, Plaintiff instituted an action seeking joint legal custody of Laura and the establishment of an arrangement under which he could visit with Laura. On 3 March 2010, Defendant filed a motion to dismiss Plaintiff's complaint. On 7 June 2010, Plaintiff's parents, Herman and Ellie Bobbitt, filed a motion to intervene in the child custody action. On 27 August 2010, Judge B. Carlton Terry entered an order granting Defendant's dismissal motion. Plaintiff noted an appeal to this Court from Judge Terry's order. On 6 September 2011, this Court filed an opinion reversing Judge Terry's order and remanding this case to the Davie County District Court for a hearing on the merits.

After a hearing held at the 12 December 2011 civil session of Davie County District Court, the trial court entered an order concluding that, even though Plaintiff was a fit and proper person to exercise visitation, custody should be awarded to Defendant and that Laura's best interests would not be served by authorizing the establishment of a visitation arrangement with Plaintiff during his period of incarceration on the grounds that correctional facilities do not provide suitable environments for visitation between a parent and a minor child. Plaintiff noted an appeal to this Court from the trial court's order. On 16 October 2012, this Court filed an opinion vacating the trial court's order and remanding this case to the Davie County District Court for the entry of a new order containing appropriate findings of fact and conclusions of law.

On 27 January 2014, the trial court entered an order on remand in which it concluded, in pertinent part, that custody of Laura should be awarded to Defendant, that Plaintiff had abandoned his constitutionally protected parental rights regarding the minor child, and that Laura's best interests would be served by denying Plaintiff's request for the establishment of a visitation arrangement. Once again, Plaintiff noted an appeal to this Court from the trial court's order.

II. Substantive Legal Analysis

In his brief, Plaintiff contends that the trial court erred by failing to make sufficient findings of fact to support its conclusions that custody of Laura should be awarded to Defendant, that Plaintiff had abandoned his constitutionally protected parental rights relating to Laura, and that the establishment of visitation involving Plaintiff and Laura would not be in Laura's best interest. Plaintiff's argument has merit.

A. Standard of Review

“In a child custody case, the trial court's findings of fact are conclusive on appeal if supported by substantial evidence, even if there is sufficient evidence to support contrary findings,” Peters v. Pennington,210 N.C.App. 1, 12–13, 707 S.E.2d 724, 733 (2011), with substantial evidence consisting of “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ “ Id.at 13, 707 S.E.2d at 733 (quoting State v. Smith,300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980) ).² “In addition to evaluating whether a trial court's findings of fact are supported by substantial evidence, this Court must determine if the trial court's factual findings support its conclusions of law.” Shipman v. Shipman,357 N.C. 471, 475, 586 S.E.2d 250, 254 (2003). A trial court's conclusions of law ... are reviewable de novo. Shear v. Stevens Bldg. Co.,107 N.C.App. 154, 160, 418 S.E.2d 841, 845 (1992). For that reason, the extent to which the trial court's findings of fact are sufficient to support its conclusions of law is subject to de novoreview. Carpenter v. Carpenter,––– N.C.App. ––––, ––––, 737 S.E.2d 783, 785 (2013) (citing Hall v. Hall,188 S.E.2d 527, 530, 655 S .E.2d 901, 904 (2008) ). On the other hand, a trial court's substantive custody decision will not be reversed on appeal absent a clear showing that an abuse of discretion has occurred. Pulliam v. Smith,348 N.C. 616, 624–25, 501 S.E.2d 898, 902 (1998). We will now review Plaintiff's challenges to the trial court's decision in light of the applicable standard of review.

B. Relevant Legal Principles

According to N.C. Gen.Stat. § 50–13.2, a court “shall award the custody of [a minor] child to such person, agency, organization or institution as will best promote the interest and welfare of the child.” N.C. Gen.Stat. § 50–13.2(a). An order “awarding permanent custody must contain findings of fact in support of the required conclusion of law that custody has been awarded to the person who will best promote the interest and welfare of the child.” McRoy v.. Hodges,160 N.C.App. 381, 386, 585 S.E.2d 441, 445 (2003) ; N.C. Gen.Stat. § 50–13.2(a). “[A] custody order is fatally defective where it fails to make detailed findings of fact from which an appellate court can determine that the order is in the best interest of the child[.]”Dixon v. Dixon,67 N.C.App. 73, 76–77, 312 S.E.2d 669, 672 (1984). “Before a trial court can de [prive] parents of their visitation rights, the trial court must first make a written finding of fact that: (1) the parent being denied the right to visitation is unfit; or (2) visitation would not be in the child's best interests.” Maxwell v. Maxwell,212 N.C.App. 614, 622, 713 S.E.2d 489, 495 (2011) ; see also Respess v. Respess,––– N.C.App. ––––, ––––, 754 S.E.2d 691, 696 (2014) (stating that, “if a trial court does not grant reasonable visitation to a parent, its order must include a finding eitherthat the parent is ‘an unfit person to visit the child’ orthat visitation with the parent is ‘not in the best interest of the child’ ”).

C. Analysis of the Trial Court's Order

1. Custody Decision

As an initial matter, Plaintiff argues that the trial court erred by awarding custody of Laura to Defendant. More specifically, Plaintiff contends that the trial court's findings of fact fail to establish that Defendant is a fit and proper person to have custody of Laura and that Laura's best interests would be served by an award of custody in favor of Defendant. Plaintiff's argument has merit.

“[C]ustody orders are routinely vacated where the ‘findings of fact’ consist of mere conclusory statements that the party being awarded custody is a fit and proper person to have custody and that it will be in the best interest of the child to award custody to that person.” Dixon,67 N.C.App. at 76–77, 312 S.E.2d at 672 (citations omitted). For that reason, “the findings in a custody order ‘bearing on the party's fitness to have care, custody, and control of the child and the findings as to the best interests of the child must resolve all questions raised by the evidence pertaining thereto.’ “ Id.at 78, 312 S.E.2d at 672 (quoting In re Kowalzek,37 N.C.App. 364, 370, 246 S.E.2d 45, 48 (1978) ).

In addressing Defendant's fitness as a parent and the extent to which an award of custody in favor of Defendant would be in Laura's best interests, the trial court found that:

9. The Defendant is in good health and is a fit and proper person to have the care, custody and control of the minor child. The Defendant has been the primary caretaker of the minor child at all times since the child's birth. The minor child has resided with the Defendant in Davie County at all times since her birth. At the time of the minor child's birth, the Defendant herself was a minor and resided with her own mother, the minor child's maternal grandmother.

....

21. The Defendant has denied the Interveners visits and contact with the minor child and has prohibited Defendant's mother from allowing the Interveners contact with the minor child.

22. The Defendant has been less than truthful, and the Court has counseled the Defendant concerning the penalties of perjury as a result of the numerous untruths contained in Defendant's testimony.

The trial court's custody-related findings establish little more than that Laura has resided with Defendant since her birth, that Defendant has been Laura's primary caretaker, and that Defendant's conduct has, in certain respects, been less than exemplary. To the extent that the trial court's findings shed any light on Defend...