Conroy v. Conroy

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KARIN A. CONROY, Plaintiff, v. MARK. W. CONROY, Defendant

No. COA23-136

Court of Appeals of North Carolina

November 7, 2023

Heard in the Court of Appeals 4 October 2023.

Appeal by plaintiff from judgment entered 25 May 2022 by Judge Karen D. McCallum in Mecklenburg County District Court. No 16CVD20214

Plumides, Romano &Johnson, PC, by Richard B. Johnson, for the plaintiffappellant.

James McElroy & Diehl, P.A., by Preston O. Odom, III, Jonathan D. Feit, Kristin J. Rempe, and Caroline D. Weyandt, for the defendant-appellee.

TYSON Judge.

Karin Conroy ("Mother") appeals from an order modifying the custody of Mother's and Mark Conroy's ("Father") four children. We affirm.

I. Background

Mother and Father were married on 4 October 2003. Mother and Father are parents of four children: Christopher, born on 25 September 2006; Kathryn ("Kate"), born on 11 August 2008; Daniel, born on 27 December 2009; and Michael, born on 5 February 2012.

Mother and Father legally separated on 7 March 2015. A Judgment of Absolute Divorce was entered on 16 July 2018. On 18 June 2019, the district court entered a Permanent Child Custody Order ("2019 Custody Order").

The 2019 Custody Order found the following facts regarding Mother's behaviors and her relationship with Father:

11. Plaintiff/Mother has a concerning history of fractured relationships, particularly with members of her family and Defendant/Father's family. Between 2001, when the parties met, and the parties' date of separation, Plaintiff/Mother was often angry with at least one of her family members or close friends.

12. In demonstrating said anger, the cause of which was often unknown to others, Plaintiff/Mother refused to speak to the person with whom she was angry, sometimes for months and sometimes for years. Once the minor children were born, Plaintiff/Mother often did not allow the person with whom she was angry to interact with the minor children, despite Defendant/Father's requests for her to do so.

16. As of March 2018, Plaintiff/Mother's inappropriate behaviors had not improved. Among other concerning behaviors, Plaintiff/Mother routinely disparaged Defendant/Father directly to and in the presence of the minor children; acted in other ways designed to undermine his role as the minor children's father; unreasonably interfered with Defendant/Father's parenting time; and, in making decisions that impacted the minor children, repeatedly failed to put the minor children's best interests first, but instead often prioritized being disagreeable with Defendant/Father and creating and/or furthering difficult and/or less than ideal circumstances for Defendant/Father, often at times the minor children were in his care.

17. In March 2018, and in an effort to spend more time with the minor children and have a greater opportunity to combat Plaintiff/Mother's inappropriate behaviors, Defendant/Father informed Plaintiff/Mother that he wished to extend his alternating Sunday overnight through Monday morning. He has routinely done so since March 2018.

18. Since March 2018, Plaintiff/Mother has repeatedly withheld the minor children from Defendant/Father, sometimes for days and once for Defendant/Father's entire custodial weekend. ...

23. Plaintiff/Mother dislikes Defendant/Father's family and is not supportive of the minor children's relationships with Defendant/Father's family. Plaintiff/Mother has disparaged Defendant/Father's parents in the presence of the minor children, refuses to speak to Defendant/Father's parents at the minor children's activities (at times they are there), and accuses Defendant/Father of relying on his parents for help with caring for the minor children. The Court does not find that Defendant/Father's parents serve primarily as caregivers when visiting Defendant/Father and the minor children, but instead come to Charlotte to spend quality time with their son and grandchildren.

The 2019 Custody Order granted Mother and Father joint legal custody of the minor children. During the school year, Mother and Father shared parenting time with the children on a nine to five schedule, meaning the children spent nine days out of every two weeks with Mother and five days with Father. During the summer, custody between Mother and Father alternated on a weekly basis, and each parent was allowed to plan two continuous weeks of vacation with the children. School-year breaks and holidays, including Memorial Day Weekend, Labor Day, Halloween, Thanksgiving, Christmas, and Winter Break, were evenly divided between Mother and Father and set on an alternating basis, with Spring Break and Easter being the exception. Father was granted custody of the children for the duration of spring break every year, and Mother was awarded Easter weekend beginning in the afternoon on Good Friday.

Mother was represented by attorney Tiyesha DeCosta ("DeCosta") for the hearings held on 12 and 17 November 2020 regarding her claims for equitable distribution, child support, and attorney's fees. Mother was previously represented by attorneys Gena Morris and Caroline Mitchell, and later by attorney Steve Ockerman, before seeking DeCosta's representation.

Almost two years after the 2019 Custody Order was entered, the Honorable Karen D. McCallum ("Judge McCallum") entered an Order and Judgment on 3 March 2021 regarding Mother's and Father's equitable distribution, child support, and attorney's fees claims. After entry of the 2021 Order, Mother was displeased, as "she believed that Defendant/Father [had] 'won' the equitable distribution and child support trial."

A month after Judge McCallum entered the order, Mother filed a Motion for Emergency Custody, Motion for Modification of Custody, and Motion for Attorney's Fees on 6 April 2021. Mother asserted Father had physically abused Daniel, and she moved for temporary sole custody of all four children and primary physical custody on a permanent basis.

In the same week Mother filed her motion to modify custody, she left a note in Father's mailbox stating, "HAS LEAVING YOUR FAMILY BEEN WORTH IT?" She also reported Father's alleged abuse to Department of Social Services ("DSS"), which was the third time Mother had alleged abuse and reported Father to DSS.

Father responded to Mother's Motion for Emergency Custody and also filed a Motion to Modify Custody, Motion for Temporary Parenting Arrangement, Motion for Sanctions, Motion to Strike, and Motion for Contempt on 14 April 2021. Father's motion referenced Mother's decision to report unsubstantiated allegations concerning him to DSS, leaving a threatening note in his mailbox, and threatening Father by promising "the litigation 'will never end' and that she will 'never stop trying to ruin' Defendant/Father."

A hearing regarding Mother's Motion for Emergency Custody was held on 15 April 2021. Mother, Father, Daniel, Mother's neighbor, and a Child Protective Services ("CPS") investigative social worker testified. Judge McCallum denied Mother's Motion for Emergency Custody on 21 October 2021.

Judge McCallum found Mother's testimony "completely uncredible[,]" because: (1) it appeared Mother had coached Daniel and Michael; (2) the other children had "purportedly slept through the entire incident, which is not believable if Defendant/Father w[as] really punching Dan[iel] 'repeatedly' in the nose, head, and neck"; (3) Mother admitted she had "encouraged" Daniel to get inside the car with Father after the alleged incident; (4) Mother did not check on the child at school following the alleged incident; (5) Mother did not report the incident to the school or the police; (6) Mother failed to take Daniel to receive any medical treatment; and, (7) Mother had waited four days to report the alleged abuse to DSS. Judge McCallum also noted and found Mother's three prior allegations of Father's actions to DSS each came "on the eve of an important court date[,]" and each of the prior reports were "unsubstantiated."

In the months following the emergency custody hearing, Mother filed many motions, which delayed hearings on some of her motions and Father's motions. Mother filed a Motion to Recuse Judge McCallum on 29 April 2021 ("First Motion to Recuse"). Mother asserted she could not receive a fair and impartial hearing, citing Judge McCallum's purported facial expressions and remarks she had made during the 15 April 2021 hearing concerning Mother's improper retrieval of documents from DSS, and Mother's unlawful ex parte emails to Judge McCallum.

A hearing on Father's claim of contempt was originally scheduled for 2 June 2021. The trial court continued Father's motion for contempt, reasoning Mother's First Motion to Recuse needed resolution before proceeding on any of the other pending motions and issues before the Court. Mother voluntarily dismissed her First Motion to Recuse without prejudice and filed a second Motion to Recuse ("Second Motion to Recuse") at approximately 2:15 p.m. on 2 June 2021, the date of the hearing. The hearing was scheduled to begin at 4:00 p.m. At 4:01 p.m., DeCosta emailed Judge McCallum and Father's attorney, Jonathan Feit ("Feit") a copy of the voluntary dismissal and the Second Motion to Recuse.

DeCosta sought a continuance of the 2 June 2021 hearing in light of dismissal of her Second Motion to Recuse. Father waived prior notice, and Judge McCallum denied Mother's request for continuance. At the hearing, DeCosta explained she had filed the Second Motion to Recuse because Judge McCallum had issued an order for DeCosta to show cause in an unrelated matter, and she believed this order to show cause demonstrated Judge McCallum's "animus" and "bias" towards her as counsel.

Judge McCallum denied Mother's Second Motion to Recuse because "neither the allegations made nor the...