Routten v. Routten

374 N.C. 571

843 S.E.2d 154

John Tyler ROUTTEN

v.Kelly Georgene ROUTTEN

No. 455A18

Supreme Court of North Carolina.

Filed June 5, 2020

Jackson Family Law, by Jill Schnabel Jackson, for plaintiff-appellant.

Stam Law Firm, Apex, by R. Daniel Gibson, for defendant-appellee.

MORGAN, Justice.

In this appeal involving a child custody dispute between two biological parents, we hold that a trial court may grant full custody to one parent and deny visitation to the other parent, so long as the trial court has entered a written finding of fact that such a custody award is in the best interests of the children, without the need to have determined that the parent who has been denied visitation is a person deemed by the trial court to be unfit to spend time with the children. We therefore reverse the majority decision of the Court of Appeals to the extent that it vacated the trial court's order regarding custody and the lower appellate court remanded the matter for further proceedings.

Factual Background and Procedural History

Plaintiff John Tyler Routten and defendant Kelly Georgene Routten were married on 23 March 2002 and became separated on 26 July 2014. This appeal focuses on the custodial arrangement for the two children who were born to the parties during the marriage: a daughter who was born on 2 June 2004 and a son who was born on 17 July 2012.

On 4 August 2014, plaintiff-father filed a complaint against defendant-mother for child custody and equitable distribution, along with a motion for defendant to submit to psychiatric evaluation and psychological testing. The parties entered into a consent order on 13 August 2014, in which they agreed to a temporary child custody schedule. After defendant filed her answer to plaintiff's complaint on 6 October 2014, asserting several counterclaims, the parties engaged in mediation.

On 24 September 2015, at the conclusion of the court proceeding on the parties’ claims for permanent child custody support, and on defendant's counterclaims for alimony and attorney fees, the trial court directed defendant to undergo a neuropsychological evaluation prior to a decision on permanent child custody. On 21 December 2015, the trial court entered a custody and child support order which established a temporary custody schedule, ordered defendant to "take whatever steps are necessary to obtain a complete neuropsychological evaluation no later than June 15, 2016," and scheduled a review hearing on 5 April 2016 and a "subsequent hearing for review of custody and entry of final/permanent orders in July or August of 2016." On 5 April 2016, the scheduled date for the review hearing set by the 21 December 2015 order, the trial court conducted an in-chambers conference on the status of the neuropsychological evaluation in which defendant had been ordered to participate. On 27 April 2016, the trial court entered an order scheduling a hearing on 4 August 2016 to address the results of defendant's neuropsychological evaluation and other matters relating to the best interests of the children. The trial court further directed defendant to obtain the neuropsychological evaluation no later than 15 June 2016 and to submit any resulting written report to plaintiff's counsel at least ten days before the scheduled 4 August 2016 hearing. On 29 July 2016, defendant moved for a continuance and a protective order, stating that she had complied with the orders to obtain a neuropsychological evaluation. She did not submit any written report resulting from the evaluation to plaintiff's counsel, as directed by the trial court's order of 27 April 2016.

At the final custody hearing on 4 August 2016, defendant admitted that although Duke Clinical Neuropsychology Service had performed a neuropsychological evaluation of defendant on 21 April 2016, she had not disclosed this fact to plaintiff prior to the 4 August 2016 hearing. Defendant further admitted that earlier she had informed plaintiff that Pinehurst Neuropsychology, rather than Duke, would perform the evaluation and had implied in the motions that she filed in the months of June and July of 2016 that her neuropsychological evaluation had not yet been performed. On 9 December 2016, the trial court entered a permanent child custody order awarding sole physical custody of the children to plaintiff. The trial court also entered an order for alimony and attorney fees.

Defendant subsequently filed pro se motions for a new trial and for relief from judgment pursuant to Rules 59 and 60 of the North Carolina Rules of Civil Procedure. She also obtained the issuance of numerous subpoenas on her own behalf. As a result of these filings, plaintiff sought and received a temporary restraining order on 13 December 2016. At the succeeding hearing on plaintiff's preliminary injunction motion on 3 January 2017, the trial court ordered defendant to calendar for hearing her Rule 59 and Rule 60 pro se motions within ten days. Defendant scheduled her motions to be heard on 1 March 2017; and on 20 February 2017, counsel filed amended Rule 59 and Rule 60 motions on her behalf. On 6 March 2017, the trial court entered an amended permanent child custody order which included additional findings of fact and conclusions of law. The amended permanent child custody order included provisions which granted sole legal custody and physical custody of the children to plaintiff, denied visitation by defendant, authorized plaintiff to "permit custodial time between the children and [d]efendant within his sole discretion," and allowed defendant to have telephone conversations with the children twice each week. On 4 April 2017, defendant filed a notice of appeal of the 6 March 2017 amended permanent child custody order "and all related interim or temporary orders and ancillary orders."

While defendant brought forward numerous arguments in her appeal to the Court of Appeals, there are two issues presented to us for resolution after the rendered decision of the lower appellate court: (1) whether the trial court erred in denying defendant's ability to have visitation with her children as the non-custodial parent without a determination that she was unfit to have visitation with them, and (2) whether the trial court erred in authorizing plaintiff, as the custodial parent, to exercise discretion in allowing visitation between defendant and the children. See generally Routten v. Routten , 262 N.C. App. 436, 822 S.E.2d 436 (2018).

In determining these two issues, the Court of Appeals majority agreed with defendant's contention that "the trial court violated her constitutionally protected interest as parent by awarding sole legal and physical custody of the children to Plaintiff without making a finding that she was unfit or had acted inconsistently with her constitutionally protected status as parent." Id. at 445, 822 S.E. 2d at 443. It also held that "[t]he trial court erred and abused its discretion by delegating its authority to determine Defendant's visitation rights." Id. at 444, 822 S.E. 2d at 442–443. On these issues, the dissenting Court of Appeals judge disagreed with the majority's view on the basis that the analysis was both in conflict with the precedent of this Court and was reached in reliance upon a prior Court of Appeals decision, Moore v. Moore , 160 N.C. App. 569, 587 S.E.2d 74 (2003), that had been expressly disavowed by an earlier panel of the Court of Appeals and therefore violated our directive in In re Civil Penalty , 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court."). Routten , 262 N.C. App. at 458–65, 822 S.E.2d at 451–55 (Inman, J., dissenting in part).

On 27 December 2018, defendant filed a notice of appeal in this Court on the basis of her contention that this case involved a substantial constitutional question and that this matter warranted the exercise of our discretionary review. Each of these filings was dismissed ex mero motu by this Court in orders entered on 14 August 2019. On 3 January 2019, plaintiff filed a notice of appeal as a matter of right based upon the Court of Appeals dissent.

Analysis

The resolution of the issue regarding the trial court's decision to deny visitation by defendant with the children without a determination that she was unfit to have visitation with them is governed by North Carolina General Statutes Section 50-13.5(i). As between two parents seeking custody and visitation of their children, the cited statutory provision states, in pertinent part, that

the trial judge, prior to denying a parent the right of reasonable visitation , shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child.

N.C.G.S. § 50-13.5(i) (2019) (emphasis added). A plain reading of this subsection reveals two points critical to the resolution of the issues in the matter here. First, this provision contemplates the authorized prospect of the denial to a parent of a right to visitation. Second, that such a denial is permitted upon a trial court's written finding of fact that the parent being denied visitation is deemed unfit to visit the child or that visitation would not be in the child's best interests. The unequivocal and clear meaning of the statute identifies two different circumstances in which a parent can be denied visitation, and the disjunctive term "or" in N.C.G.S. § 50-13.5(i) establishes that either of the circumstances is sufficient to justify the trial judge's decision to deny visitation. See, e.g. , Burgess v. Your House of Raleigh, Inc. , 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990) ("Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its...