Sherrill v. Sherrill

853 S.E.2d 246

Jay Franklin SHERRILL, Plaintiff,

v.Linda Ann SHERRILL, Defendant.

No. COA19-429

Court of Appeals of North Carolina.

Filed: December 15, 2020

Hick McDonald Noecker LLP, Greensboro, by David W. McDonald, for plaintiff-appellee.

Fox Rothschild LLP, Raleigh, by Michelle D. Connell, for defendant-appellant.

STROUD, Judge.

Mother appeals from a permanent custody order granting sole legal and physical custody to Father, with no visitation for Mother. Because the trial court's findings of fact do not support its conclusion that Mother is not a fit and proper person to have custody or visitation of her minor child, we must reverse and remand for further proceedings and entry of a new order.

I. Background

Mother and Father married in November 2003 and in June 2004, Henry,¹ the parties’ only child, was born. After he was injured in an automobile accident in 2004, Father began sleeping separately from Mother in a different bedroom. Because of health issues earlier in life, Henry slept in the bed with Mother, and this continued until 2016. Both parties acknowledged the sleeping arrangements were a source of conflict in their marriage.

The parties separated in March 2017, when Mother left the parties’ marital home. Father and Henry continued to live in the marital home. After separation, Mother continued to take Henry to school each day. On 6 April 2017, Father filed a complaint for custody and child support. Father also filed an ex parte motion for temporary custody, based upon his allegation that Mother had told him "she will take the minor child from him and that he will never see the minor child again." The trial court granted the ex parte temporary custody order and set a hearing to determine whether to continue the temporary order. During the return hearing on the ex parte motion, Henry talked to the judge in his chambers, and for the first time, he disclosed Mother had improperly touched him on or about 26 November 2016. Based upon this disclosure, the incident was reported to DSS and law enforcement. The allegations were investigated twice by DSS and were unsubstantiated, and the District Attorney's Office declined to prosecute. On 17 May 2017, the trial court entered a temporary custody order which granted Father full legal and physical custody of Henry. Mother consented to pay child support.

The permanent custody trial was held on 20 March, 22 March, and 4 April 2018. At the beginning of the trial, the parties agreed to allow Henry to testify in chambers with only their counsel present. The permanent custody order was entered on 20 December 2018 and found relevant to the issue on appeal:

19. That the reported touching by [Mother] of the minor child occurred around Thanksgiving of 2016. The first report by the minor child of any alleged touching occurred at the hearing on April 18, 2017.

20. That [Mother] was the primary parent involved with the minor child and his medical, school, and extracurricular activities prior to [Father's] injury in 2014. [Father] admits he worked "long hours" with NASCAR until his injury when the minor child was ten years of age. [Mother] often took the minor child to educational and recreational events, including the North Carolina Transportation Museum, Carowinds, Discovery Place, Whitewater Park, Tiger World wildlife preserve, Harlem Globetrotters basketball games, Ringling Brothers Circus events, Carolina Panthers football games, Catawba College football games, Kannapolis Intimidators minor league baseball games, NASCAR Hall of Fame and races, monster truck shows, zoo, air shows, train excursions, museums, library, church, ball practice, go-kart race tracks, swimming pools and lakes, and more. [Mother's] Exhibits 11, 12, and 13 are incorporated by reference.

21. That [Mother] took the minor child to the large majority of his doctor and dental appointments.

22. That [Mother] attended the large majority of the minor child's basketball and baseball games for years. The maternal grandmother and uncle also attended many of the minor child's basketball and baseball games.

23. That [Mother] has maintained health insurance for years on the minor child.

24. That [Mother] pays Four Hundred Fourteen Dollars and Fifty Cents ($414.50) per month in child support for the minor child and is current in her child support obligation.

25. That [Mother] took the minor child to school every day prior to entry of the Temporary Custody Order signed on April 6, 2017 (filed April 7, 2017).

26. That since the entry of the Temporary Order on April 18, 2017, [Mother] has sent four or five letters to the minor child as well as a cell phone, clothes, gift cards, money, a wallet, and miscellaneous items. These letters and gifts have been sent over time, including the minor child's birthday and Christmas. [Mother]’s Exhibits 3 and 4 are incorporated by reference.

27. That on October 29, 2017, [Mother], after sharing her inability to talk to the minor child, sent an email to the minor child's teacher seeking help from a tutor for the minor child. [Mother's] Exhibit 5 is incorporated herein by reference.

28. That during the marriage [Mother] established a college fund for the minor child.

29. That prior to the parties’ separation, the minor child had a good relationship with the maternal grandparents and uncle, spending quality time with them on many occasions.

30. That [Mother] attended counseling post-separation with Jabez Family Outreach to address issues between her and the minor child.

31. That [Mother] has a suitable and appropriate three bedroom, two-bath home.

32. That on April 6, 2017, [Father] filed a Complaint for Custody and Child Support and an Ex Parte Motion for Temporary Custody to Maintain Status Quo.

33. That on April 6, 2018, an Ex Parte Custody Order was signed by The Honorable Kevin Eddinger (filed on April 7, 2018), which placed the immediate temporary ex parte legal and physical care, custody, and control of the minor child with [Father] and set the matter on for hearing on April 18, 2017.

34. That on April 18, 2017, [Mother] filed an Answer and Counterclaim for custody and child support.

35. That upon the call of the matter on April 18, 2017, for hearing on the Ex Parte Custody Order, the parties and their attorneys stipulated that the minor child could testify in chambers before the presiding judge, The Honorable Marshall Bickett.

36. That while testifying in chambers, with both attorneys present, the minor child disclosed that his mother, the [Mother] in this action, had touched him inappropriately.

37. That following the minor child's testimony, the parties and their attorneys signed a Temporary Memorandum of Judgment/Order which slated that [Father] shall have full legal and physical care, custody, and control of the minor child [Henry] and that given the circumstances of this case referral to custody mediation is not appropriate. That the Temporary Memorandum of Judgment/Order was filed on April 18, 2017 (formal Order filed May 17, 2017).

38. That the issues raised by the minor child's testimony were reported to law enforcement and to the Rowan County Department of Social Services.

39. That law enforcement conducted an investigation, and the Rowan County Department of Social Services conducted an investigation.

40. That in conjunction with the Rowan County Department of Social Services’ investigation, the minor child was referred to the Terrie Hess House Child Advocacy Center where he gave an interview and it was recommended that the minor child talk to a therapist to assist him in dealing with the [Mother] inappropriately touching him. That the basis for the referral to the therapist was that the minor child's mother had touched his penis.

....

43. That the Rowan County Department of Social Services conducted an investigation on the reported touching of the minor child. The case was not substantiated. A later complaint was lodged against [Mother] which was also not substantiated. [Mother's] Exhibits 1 and 2 are incorporated by reference.^[2]

44. That no juvenile neglect or abuse proceeding was initiated by the Rowan County Department of Social Services against the [Mother] on behalf of the minor child.

45. That following a complaint, the Rockwell Police Department conducted an investigation on the reported touching of the minor child. [Mother] made a voluntary statement to the police. The Rowan County District Attorney's Office was contacted and declined prosecution.

46. That no 50B was filed by [Father] on behalf of the minor child against [Mother].

47. That the parties were experiencing marital disharmony during the relevant time periods related to the reported touching of the minor child, including from Thanksgiving of 2016 until the hearing on April 18, 2017.

48. That the minor child was a "very sick baby" requiring the use of a nebulizer "50% to 60% of the time." The minor child began sleeping with [Mother] as an infant.

49. That prior to the parties’ separation [Father] and [Mother] slept in separate bedrooms, and [Mother] had the minor child sleep in the same bed with her regularly and frequently. [Mother] referred to this time as their "cuddle time," "snuggles," and "snuggle time."

50. That [Father] and [Mother] argued over the minor child sleeping in the same bed with [Mother] as [Father] objected to that arrangement.

51. That [Mother] admitted in her testimony that she touched the minor child's penis when he was in the bed with her.

52. That on the night of the touching, the minor child was wearing sweatpants.

53. That the [Mother] explained in her testimony that while touching the minor child's penis she thought she was petting a cat or a dog.

54. That the [Mother] told a neighbor, Mona Bisnette, that She had been accused of improperly touching the minor child; that she was mortified; and that she thought she was touching a dog.

55. That following the incident of [Mother] touching the minor child's penis, the minor child refused to sleep in the same bed with [Mother]. [Mother] started yelling at the

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