Heard in the Court of Appeals 11 December 2013.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal by defendant from order entered 16 October 2012 by Judge Christopher B. McLendon
in Beaufort County District Court.
Pritchett & Burch, PLLC, Windsor, by Lloyd C. Smith, Jr., Lloyd C. Smith, III, and R. Gray Jernigan for plaintiff-appellee.
Ward and Smith, P.A., Winterville, by John M. Martin, for defendant-appellant.
The trial court did not err by denying visitation with the minor children to defendant. The trial court did not err by ordering that plaintiff was entitled to child support or by imputing income to defendant. The order of the trial court is remanded for additional findings on the amount of income to be imputed to defendant and the amount of retroactive child support. The trial court did not err by transferring a vehicle to plaintiff as part of defendant's child support arrearage without calculating the value of the vehicle. The trial court's award of attorney's fees to plaintiff included the findings of fact required by N.C. Gen.Stat. § 50-13.6, and the trial court did not err in calculating a reasonable amount of attorney's fees. However, we remand this issue to the trial court for findings as to plaintiff's reasonable expenses as they pertain to her ability to pay for counsel.
I. Factual and Procedural Background
Plaintiff Alana Respess and defendant Todd Respess were married on 22 August 1986, separated in 2006, and were divorced on 15 June 2009. They have four children: Jessica, born in 1987; Amanda, born 1993; Allysa, born 1998; and Noah, born in 2002. In 2005 defendant admitted to plaintiff that he had engaged in inappropriate sexual activity with Jessica, and on 3 May 2007 defendant pled guilty to five felony counts of indecent liberties with a child. In Case No. 05 CRS 54090, he was sentenced to 16 to 24 months imprisonment, suspended for 36 months of supervised probation on condition that he register as a sex offender, submit to electronic monitoring, have only supervised visitation with his children, and serve a four month active sentence. This sentence was completed in December 2009. In Case No. 07 CRS 1209, defendant pled guilty to four additional counts of indecent liberties, and
was sentenced to consecutive terms of 16 to 24 months imprisonment, with the first to begin at the expiration of the active sentence in 05 CRS 54090. The four sentences were suspended on the same terms as in 05 CRS 54090, with the sentences to expire on 28 August 2011, 27 April 2013, 27 December 2015, and 26 April 2017.
On 7 May 2007 plaintiff filed a complaint seeking temporary and permanent custody of the three minor children (Jessica reached majority in 2005). Plaintiff alleged that defendant had violated the conditions established by the Beaufort County DSS for visitation and that he was not " a fit and proper person" to have custody of the children. In his answer, defendant counterclaimed, seeking custody, child support, and attorney's fees. In her reply, plaintiff requested that defendant be denied all contact with the minor children. On 21 May 2008 plaintiff filed a complaint for divorce, child support, equitable distribution, and attorney's fees. In his answer, defendant denied the material allegations of plaintiff's complaint and counterclaimed for child support, equitable distribution, and attorney's fees. Plaintiff filed a reply on 25 August 2008. The parties were granted a divorce on 15 June 2009.
On 16 October 2012 the trial court entered an order on the issues of child custody, child support, visitation, and the attorney's fees associated with litigation of these issues. At that time only Alyssa and Noah were minors. The provisions of the court's order concerning custody, visitation, and prospective child support apply only to those two children. The court made findings concerning defendant's sexual abuse of Jessica and his subsequent behavior towards her and his other children, and concluded that it would be " totally inappropriate" and detrimental to the best interests of the children for defendant to have " visitation or custodial relationships of any type" with the minor children. The trial court also made findings concerning the effect of defendant's sexual abuse upon his employment situation, and found that it was appropriate for the court to impute an income of approximately $50,000 a year to defendant, an amount that was about half of his previous annual earnings. The trial court concluded that plaintiff was entitled to retroactive and prospective child support, and to attorney's fees.
II. Denial of Visitation to Defendant
In his first argument, defendant contends that the trial court committed reversible error by denying him visitation with the minor children. We disagree.
A. Standard of Review
" Under our standard of review in custody proceedings, ‘ the trial court's findings of fact are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary.’ Whether those findings of fact support the trial court's conclusions of law is reviewable de novo. " Mason v. Dwinnell, 190 N.C.App. 209, 221, 660 S.E.2d 58, 66 (2008) (quoting Owenby v. Young, 357 N.C. 142, 147, 579 S.E.2d 264, 268 (2003) (other citation omitted)). " A trial court's unchallenged findings of fact are ‘ presumed to be supported by competent evidence and [are] binding on appeal.’ If the trial court's uncontested findings of fact support its conclusions of law, we must affirm the trial court's order." Mussa v. Palmer-Mussa, 366 N.C. 185, 191, 731 S.E.2d 404, 409 (2012) (quoting Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (other citation omitted)).
Defendant argues, based on the holding of Moore v. Moore, 160 N.C.App. 569, 587 S.E.2d 74 (2003), that the trial court did not comply with the provisions of N.C. Gen.Stat. § 50-13. 5(i), and contends the trial court's finding that it was not in the children's best interests to have visitation with him was not supported by its other findings.
Under N.C. Gen.Stat. § 50-13.1(a) " the word ‘ custody’ shall be deemed to include custody or visitation or both." It is
long-established that a trial court's determination of child custody, including visitation, must be guided by the best interests of the child:
[W]e apprehend the true rule to be that the court's primary concern is the furtherance of the welfare and best interests of the child and its placement in the home environment that will be most conducive to the full development of its physical, mental, and moral faculties. All other factors, including visitorial rights of the other applicant, will be deferred or subordinated to these considerations[.]
Griffith v. Griffith, 240 N.C. 271, 275, 81 S.E.2d 918, 921 (1954). This standard is incorporated in N.C. Gen.Stat. § 50-13.2(a), which directs the trial court to " award the custody of [a] child to such person ... as will best promote the interest and welfare of the child."
It is also well-established that " the applicable standard of proof in child custody cases is by a preponderance, or greater weight, of the evidence." Speagle v. Seitz, 354 N.C. 525, 533, 557 S.E.2d 83, 88 (2001) (citing Jones v. All American Life Ins. Co., 312 N.C. 725, 733, 325 S.E.2d 237, 241 (1985)).
Although courts seldom deny visitation rights to a noncustodial parent, a trial court may do so if it is in the best interests of the child:
[T]he welfare of a child is always to be treated as the paramount consideration[.] ... Courts are generally reluctant to deny all visitation rights to the divorced parent of a child of tender age, but it is generally agreed that visitation rights should not be permitted to jeopardize a child's welfare.
Swicegood v. Swicegood, 270 N.C. 278, 282, 154 S.E.2d 324, 327 (1967) (citing Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133 (1953)). See also, In re Custody of Stancil, 10 N.C.App. 545, 551, 179 S.E.2d 844, 848-49 (1971) (" ‘ The rule is well established in all jurisdictions that the right of access to one's child should not be denied unless the court is convinced such visitations are detrimental to the best interests of the child.’ " ) (quoting Willey v. Willey, 253 Iowa 1294, 1302, 115 N.W.2d 833, 838 (1962)). This principle is codified in N.C. Gen.Stat. § 50-13.5(i), which provides that:
In any case in which an award of child custody is made in a district court, 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. (emphasis added).
The statutory language is straightforward and unambiguous and requires that if a trial court does not grant reasonable visitation to a parent, its order must include a finding either that the parent is " an unfit person to visit the child" or that visitation with the parent is " not in the best interest of the child." Although our Supreme Court has not issued an opinion discussing this statute, during the past 30 years this Court has issued numerous opinions applying N.C. Gen.Stat. § 50-13.5(i). For example, in King v. Demo, 40 N.C.App. 661, 666-667, 253 S.E.2d 616, 620 (1979), we stated that:
Unless the child's welfare would be jeopardized, courts should be generally reluctant to deny all visitation rights to the divorced parent of a child of tender age. Moreover, G.S. 50-13.5(i) provides [that] ... " prior to denying a parent the right of reasonable visitation, [the trial court] 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."
(citing Swicegood, and Stancil ). And, in Johnson v. Johnson, 45 N.C.App. 644, 647, 263 S.E.2d 822, 824 (1980), we held that:
In awarding visitation privileges the court should be controlled by the same principle which governs the award of primary custody, that is, that the best interest and welfare of the child is the paramount consideration.... G.S. 50-13.5(i) provides that " [i]n any case in which an award of child custody is made in a district court, 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."
(citing Swicegood ). During the 33 years since Johnson was decided, we have consistently followed both its application of the best interests standard to disputes between parents regarding child custody and visitation, and its acceptance of the plain language of N.C. Gen.Stat. § 50-13.5(i). See, e.g., Correll v. Allen, 94 N.C.App. 464, 471, 380 S.E.2d 580, 584 (1989) ( " Visitations may be denied if visitation is not in the child's best interest." ) (citation omitted); Raynor v. Odom, 124 N.C.App. 724, 733, 478 S.E.2d 655, 660 (1996) (" G.S.50-13.5(i) requires 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 interests of the child.’ " ); and Maxwell v. Maxwell, 212 N.C.App. 614, 622, 713 S.E.2d 489, 495 (2011) (" Our General Assembly has provided that: ‘ ... prior to denying a parent the right of reasonable visitation, [the trial court] 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. Gen.Stat. § 50-13.5(i) (2009)" ). Thus, " it is generally agreed that visitation rights should not be permitted to jeopardize a child's welfare." Swicegood, 270 N.C. at 282, 154 S.E.2d at 327.
In the present case, the trial court found, as required by N.C. Gen.Stat. § 50-13.5(i), that it would not be in the children's best interests to have any visitation with defendant. This ultimate finding of fact was supported by numerous evidentiary findings of fact, including the following:
12. The Court had the opportunity to observe the demeanor of each of the witnesses called by the parties and to hear their testimony.
13. The Court formed opinions as to the veracity of each witness having had the occasion to observe said witnesses and to hear their testimony.
14. On August 4, 2005 ... the Defendant ... confessed to [plaintiff] that he had engaged in inappropriate sexual behavior with Jessica Respess....
17. In 2007, the Plaintiff ... move[ed] to Kansas[.].
30. After the revelations of August 4, 2005 to the Plaintiff by the Defendant, [law enforcement authorities] ... began a criminal investigation of the Defendant[.]
31. On August 18, 2005, the Defendant made a voluntary statement to Investigators ... regarding his voluntary sexual acts with his minor daughter, Jessica.
32. Said voluntary statement, which was ... acknowledged to be true and accurate during his testimony by the Defendant is incorporated herein[.]
34. In March of 2002 ... Defendant slept in the same bed with Jessica who ... [was] 14 years of age.... Between February 2003 and August 2004, the Defendant touched Jessica on her bare breasts many times, kissed Jessica's breasts on occasion, and rubbed Jessica's vaginal area numerous times. The Defendant estimates that he put his finger inside of Jessica's vagina and kissed her breasts on at least ten occasions.
35. Between August 2004 and August 18, 2005, the Defendant touched Jessica's breast more than ten times, rubbed her vaginal area ten to twelve times, inserted his finger inside of Jessica's vaginal area ten or twelve times, and kissed her bare breasts three or more times.
36. The Defendant allowed or caused Jessica to have an orgasm while riding straddled on top of him a number of times.
37. The Defendant was charged with multiple sex offenses and indecedent liberties with a minor child in October of 2005 in Beaufort County.
43. The Defendant was ordered by the Department of Social Services as conditions
of being able to visit with his children not to be alone with the children out of the presence of the Plaintiff, not to kiss the children on the lips, not to allow them to sit on his lap ... [and] not to otherwise engage any type of physical touching or activity that could be determined to be sexual grooming. During the year of 2006, the Defendant ... engaged in these prohibited activities.
45. Amanda Respess, who is now 18 years of age but is still in high school, testified as did her younger sister, Allysa. Both of these individuals gave forthright testimony which is highly creditable.
47. Based upon the testimony of Amanda Respess and Allysa Respess, which the Court finds to be creditable, the Court determines that the Defendant engaged in the following behaviors:
A. Would rub their chest to awaken them in the morning, although, they were of an age to have developed breasts.
B. Would rub lotion on their backs and their naked buttocks under the pretense of making ...