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Cox v. Cox

Court of Appeals of North Carolina

December 16, 2014

DAVID COX, Plaintiff/Father
MICHELLE COX, Defendant/Mother
BETTY JO LAYNE, Intervenor/Paternal Grandmother

Heard in the Court of Appeals September 9, 2014

Arnold & Smith, PLLC, by Matthew R. Arnold and Kyle A. Frost, for plaintiff-appellee.

Church Watson Law, PLLC, by Kary C. Watson and Seth A. Glazer, for defendant-appellant.

Weaver, Bennett & Bland, P.A., by William G. Whittaker, for intervenor-appellee.

BRYANT, Judge. Chief Judge McGEE and Judge STROUD concur.


Page 309

Appeal by defendant from order entered 19 November 2013 by Judge Deborah P. Brown in Iredell County District Court, No. 12 CVD 1940.

Page 310

BRYANT, Judge.

Where defendant-mother raises a constitutional argument for the first time on appeal, we dismiss the argument. Where the trial court's findings of fact are adequately supported by the record, we uphold the findings of fact. Where the trial court's order includes language establishing what would amount to a preemptive modification to custody of the minor children, we remand for the trial court to strike the improper language from the order. And, where defendant-mother's argument of judicial bias was not raised before the trial court, we dismiss this argument on appeal.

On 14 August 2012, in Iredell County District Court, plaintiff-father David Cox filed a verified complaint for child custody and motion for an emergency ex parte custody order. The complaint named as defendant the children's mother, Michelle Cox. In his allegations, plaintiff-father stated that from December 2010 to 3 June 2012, he and defendant-mother resided in Mooresville, North Carolina with their two minor children. Plaintiff-father alleged that on 3 June 2012, defendant-mother and their two minor children (born in 2008 and 2009) flew to California under a pretext of attending a family wedding. Defendant-mother had been scheduled to return to North Carolina on 10 June but failed to do so. On 3 August 2012, plaintiff-father was served with defendant-mother's request for a domestic-violence restraining order and a petition for separation and request for child custody and visitation order.[1] In her request for a domestic violence restraining order, defendant-mother alleged that plaintiff-father struggled with thoughts of suicide. In his complaint, plaintiff-father acknowledged that he was under the treatment of a therapist and a psychiatrist, and he attended weekly group therapy sessions. However, plaintiff further asserted that he never told defendant-mother or either of the minor children he had thoughts of hurting them. Plaintiff-father sought a temporary order compelling defendant-mother to return the children to North Carolina. Defendant-mother filed a motion for ex parte temporary emergency custody relief as well as her answer, counterclaims, and a response to plaintiff-father's motion for an emergency ex parte custody order.

On 24 August 2012, the trial court entered a memorandum of judgment/order memorializing a temporary agreement between the parties wherein defendant-mother would have temporary custody of the minor children and plaintiff-father would have supervised visitation. A consent order regarding temporary child custody was entered 18 October 2012.

On 1 October 2012, the minor children's paternal grandmother Betty Jo Layne filed a motion for permission to intervene and for visitation. Intervenor-paternal grandmother requested that she be granted visitation with the minor children and that she be the minor children's day-care provider. On 3 January 2013, the trial court granted intervenor-grandmother's motion to intervene.

On 19 November 2013, following a hearing during which all parties were present and represented by counsel, the trial court entered an order on permanent child custody and grandparent visitation. The trial court concluded that both plaintiff-father and defendant-mother were fit and proper persons to share joint legal and physical custody and that the intervenor-grandmother had a substantial relationship with the minor children. The trial court awarded defendant-mother permanent primary joint custody and plaintiff-father secondary joint physical custody which he could exercise through visitation. If plaintiff-father could not exercise his parenting time, intervenor-grandmother could exercise time in his stead. Further, the trial court ordered that plaintiff-father's custodial schedule was to be dependent on his residing with intervenor-grandmother.

Defendant-mother appeals.

Page 311

On appeal, defendant raises the following issues: whether the trial court (I) violated defendant's due process rights; (II) entered an order establishing permanent custody and grandparent visitation not supported by adequate findings of fact; (III) erred in issuing an order waiving analysis for future modifications of the order; and (IV) abused its discretion in awarding joint custody to plaintiff.


Defendant first argues that the trial court violated her constitutional right to due process by failing to allow her a full opportunity to be heard at trial. Specifically, defendant contends the trial court failed to intervene when plaintiff's counsel effectively limited her testimony. We dismiss this argument.

Despite defendant's contention that she was denied her constitutional due process rights, we note that defendant did not raise such an objection or argument at trial. Defendant is raising her constitutional argument for the first time on appeal.

" A constitutional issue not raised at trial will generally not be considered for the first time on appeal. Furthermore, the courts of this State will avoid constitutional questions, even if properly presented, where a case may be resolved on other grounds." Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002) (per curiam) (citations omitted). Therefore, we will not address defendant's constitutional argument.

Defendant also contends the trial court failed to fulfill its statutory duty to control the presentation of evidence during trial in violation of our Rules of Civil Procedure, Rule 611.

Pursuant to our Rules of Civil Procedure, " [t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, . . . and (3) protect witnesses from harassment or undue embarrassment." N.C. Gen. Stat. § 8C-1, Rule 611(a) (2013). As noted previously, defendant failed to note an objection or preserve this argument before the trial court. See N.C. R. App. P. 10(a) (2014) (" In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." ); Reep v. Beck, 360 N.C. 34, 37, 619 S.E.2d 497, 499 (2005) (" This subsection of Rule 10 is directed to matters which occur at trial and upon which the trial court must be given an opportunity to rule in order to preserve the question for appeal. The purpose of the rule is to require a party to call the court's attention to a matter upon which he or she wants a ruling before he or she can assign error to the matter on appeal." (citation omitted)). Accordingly, because defendant's constitutional and statutory arguments were not properly preserved for our review, they are hereby dismissed.


Next, defendant argues that the trial court's 19 November 2013 permanent custody and visitation order is not supported by adequate findings of fact. We disagree.

In a child custody case, the trial court's findings of fact are conclusive on appeal if supported by substantial evidence, even if there is sufficient evidence to support contrary findings. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Unchallenged findings of fact are binding on ...

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