Fecteau v. Spierer

858 S.E.2d 123

Eamon Albert FECTEAU, Plaintiff, v. Elizabeth SPIERER, Defendant, v. Larry Spierer, and Pearl Josephine Spierer, Intervenors.

No. COA20-532

Court of Appeals of North Carolina.

Filed April 20, 2021

Wesley E. Starnes, PC, by Wesley E. Starnes, for Intervenors-Appellants.

Helton, Cody, & Associates, PLLC, by Blair E. Cody, III, Hickory, for Plaintiff-Appellee.

No brief filed for Defendant.

CARPENTER, Judge.

¶ 1 Larry Spierer and Pearl Josephine Spierer ("Intervenors"), maternal grandparents to minor child R.F., appeal from a custody modification order, which granted primary physical and legal custody to Eamon Albert Fecteau ("Plaintiff"), R.F.’s father; secondary physical custody and visitation to Intervenors; and supervised visitation to Elizabeth Spierer ("Defendant"), R.F.’s mother. We find no abuse of discretion by the trial court in entering the modification order; therefore, we affirm.

I. Factual & Procedural Background

¶ 2 The uncontroverted evidence presented at trial tends to show the following: Plaintiff and Defendant married on 10 May 2014 and separated on 4 July 2015. Plaintiff and Defendant share one child together, R.F., who was born on 16 July 2013—prior to the parties’ marriage. Defendant has two other children by two different fathers; she has custody of her youngest daughter while Intervenors have custody of her oldest child, a son. On 31 October 2016, Plaintiff filed a complaint for custody, equitable distribution, and absolute divorce. On 21 November 2016, Intervenors filed a motion to intervene on the issue of custody in the pending matter. On 2 February 2017, the trial court entered an order allowing the intervention. On the same day, Intervenors filed an answer and a counterclaim for child custody.

¶ 3 Following a hearing, the trial court entered a temporary custody order granting Intervenors "custody, care and control of [R.F.] until further order of the Court." On 19 July 2017, the trial court entered a consent order based on a memorandum of order filed on 19 July 2017, granting primary physical and legal custody of R.F. to Intervenors and secondary physical custody to Plaintiff. On 26 March 2018, Plaintiff filed a motion for modification of child custody, and then filed an amended motion to modify child custody on 5 March 2019. Plaintiff sought primary physical custody and joint legal custody with Defendant. In his amended motion, he alleged there had a been a substantial change of circumstances affecting the child's well-being and the modification was in the best interest of the minor child.

¶ 4 On 13 March 2019 and 17 July 2019, hearings were held before the presiding judge, the Honorable Sherri W. Elliott. On 20 December 2019, Judge Elliott entered a modification order in which she granted primary physical custody of R.F. to Plaintiff, secondary custody and visitation to Intervenors, and visitation to Defendant under the supervision of Intervenors. On 16 January 2020, Intervenors filed a timely written notice of appeal from the modification order.

II. Jurisdiction

¶ 5 We first address Intervenors’ improper citation to N.C. Gen. Stat. § 7A-27 (2019) in their statement of the grounds for appellate review. They rely on subsection (c) of Chapter 7A, Section 27 as authority for their appeal of this case. However, N.C. Gen. Stat. § 7A-27(c) was repealed effective 23 August 2013; therefore, Intervenors have not provided an adequate "citation of the statute ... permitting appellate review" pursuant to the North Carolina Rules of Civil Procedure. N.C. R. App. P. 28(b)(4).

¶ 6 Our Supreme Court has confirmed that "compliance with the Rules is required"; however, it has also clarified that not every violation of the Rules warrants automatic dismissal—particularly when the "violations do not impede comprehension of the issues or frustrate the appellate process." State v. Hart , 361 N.C. 309, 311, 313, 644 S.E.2d 201, 202–03 (2007) (citations and quotations omitted); see State v. Burke , 185 N.C. App. 115, 118, 648 S.E.2d 256, 258 (2007) (allowing appellate review despite the appellant's minor violation of Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure for citing to the transcripts rather than the record in referring to assignments of error). Furthermore, Rule 2 allows for the Court's suspension or variation of the appellate rules in cases pending in the Court so as "[t]o prevent manifest injustice to a party ...." N.C. R. App. P. 2.

¶ 7 Here, Intervenors incorrectly cite to the repealed subsection (c) of N.C. Gen. Stat. § 7a-27 rather than N.C. Gen. Stat. § 7a-27(b)(2). Considering that this error is minor, and Intervenors’ intent to cite to the subsection allowing an appeal of right from a final judgment of a district court opinion is apparent, an automatic dismissal of this case is not proper. Furthermore, the error does not interfere with the Court's comprehension of the issues of the case or frustrate the appellate process; therefore, we allow the appeal. See Hart , 361 N.C. at 311, 313, 644 S.E.2d at 202–03.

III. Issues

¶ 8 The issues on appeal are whether: (1) the trial court erred by finding as fact in its modification order that the initial custody order had lacked findings of fact with respect to whether Plaintiff or Defendant are unfit or have acted inconsistently with their constitutionally-protected right as parents; (2) the trial court's findings of fact and conclusions of law are sufficient to support its order modifying child custody based on a substantial change in circumstances affecting the welfare of the child.

IV. Analysis

¶ 9 On appeal, Intervenors contend that the trial court erred in modifying the 19 July 2017 consent order because (1) it improperly "consider[ed] the lack of a prior finding of fact" regarding Plaintiff's and Defendant's constitutionally-protected status as parents and (2) entered the modification to the consent order where the "competent evidence does not support a finding of fact or conclusion of law that there was a substantial change of circumstances affecting the welfare of the minor child ...." We disagree.

A. Standard of Review

¶ 10 "It is a long-standing rule that the trial court is vested with broad discretion in cases involving child custody." Pulliam v. Smith , 348 N.C. 616, 624, 501 S.E.2d 898, 902 (1998) (citation omitted). Accordingly, we review the trial court's determination of a motion to modify custody for an abuse of discretion. Id. at 625, 501 S.E.2d at 902.

When reviewing a trial court's decision to grant or deny a motion for the modification of an existing child custody order, the appellate courts must examine the trial court's findings of fact to determine whether they are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

....

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. With regard to the trial court's conclusions of law, our case law indicates that the trial court must determine whether there has been a substantial change in circumstances and whether that change affected the minor child. Upon concluding that such a change affects the child's welfare, the trial court must then decide whether a modification of custody was in the child's best interest. If we determine that the trial court has properly concluded that the facts show that a substantial change of circumstances has affected the welfare of the minor child and that modification was in the child's best interests, we will defer to the trial court's judgment and not disturb its discretion to modify an existing custody agreement.

Shipman v. Shipman , 357 N.C. 471, 474–75, 586 S.E.2d 250, 253–54 (2003) (citations and quotations omitted).

B. Absence of Findings of Fact in Initial Custody Order

¶ 11 In their first argument, Intervenors contend that the trial court erred by considering the absence of findings of fact in the initial custody order regarding whether Plaintiff and Defendant are unfit or have acted in a manner inconsistent with their constitutionally-protected right as parents to custody, care, and control of their minor child. In doing so, Intervenors essentially argue that the trial court failed to follow the precedent established in Bivens v. Cottle , 120 N.C. App. 467, 469, 462 S.E.2d 829, 831 (1995), which held that the Petersen presumption in favor of a natural parent does not apply to a custody modification proceeding. In contrast, Plaintiff asserts that since the trial court did not make any "findings of fact [ ]or conclusions of law that the evidence, as it relates to either parents’ constitutionally protected status, was [based on] clear, cogent and convincing evidence," the trial court "did not improperly consider" such an absence of findings in the initial order. After careful review of the record, we conclude that findings of fact 99, 100, and 101 are unnecessary for our review of the modification order in the case sub judice ; therefore, we do not reach the merits of the parties’ arguments with respect to these findings.

¶ 12 In Petersen v. Rogers , this Court held that "absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally-protected paramount rights of parents to custody, care, and control of their children must prevail" over non-natural parents. 337 N.C. 397, 403–04, 445 S.E.2d 901, 905 (1994). Subsequently, Bivens v. Cottle limited the Petersen standard to only initial custody proceedings and rejected its application to custody modification orders. Bivens , 120 N.C. App. at 469, 462 S.E.2d at 831 ; see also Lambert v. Riddick , 120 N.C. App. 480, 482–83, 462 S.E.2d 835, 836 (1995). To modify custody orders, a party must follow the statutory requirements set forth in N.C. Gen. Stat. §...