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Berry v. Berry

Court of Appeals of North Carolina

January 16, 2018

JOHN EDWARD BERRY, Plaintiff,
v.
ASHLEIGH ANDREWS BERRY, Defendant.

          Heard in the Court of Appeals 13 December 2017.

         Appeal by plaintiff from order entered 23 February 2017 by Judge Lee F. Teague in Pitt County No. 12 CVD 267 District Court.

          Ward and Smith, P.A., by John M. Martin, for plaintiff-appellant.

          Van Der Have Family Law, by Leslie G. Van Der Have, for defendant-appellee.

          TYSON, Judge.

         John Berry ("Plaintiff" or "Mr. Berry") appeals from an order assigning primary physical custody of his two children to their mother, Ashleigh Berry ("Defendant" or "Ms. Berry"). Plaintiff has failed to show the trial court abused its discretion in assigning Defendant primary physical custody. We affirm the trial court's order.

         I. Background

         Mr. Berry and Ms. Berry were married 22 October 2005. They are parents of two children, C.B., born in 2008, and H.B, born in 2011. The parties separated on 28 January 2012. Mr. Berry filed a complaint on 31 January 2012, which sought temporary and permanent custody, and a motion for an ex parte temporary custody order to "maintain[] the status quo living arrangements" of the children throughout the hearing process. Ms. Berry had removed the children from the marital home and taken them to her parents' home. The motion for ex parte temporary custody was heard on 3 February 2012, and a temporary custody order was entered on 7 March 2012. The court granted temporary physical custody of the children to Ms. Berry, and secondary physical custody and unsupervised daytime visitation to Mr. Berry.

         On 21 May 2012, C.B. allegedly told Ms. Berry his father had "put an x-ray in his hiney." Ms. Berry took C.B. to the pediatrician, who found no physical indication of any abuse. Ms. Berry filed a report with Pitt County Department of Social Services ("DSS") on 25 May 2012, and DSS determined her allegations did not justify further investigation.

         At the temporary custody hearing on 29 May 2012, Ms. Berry presented her concerns about Mr. Berry sleeping with or staying in the same room as the children, presented allegations about Mr. Berry's pornography usage, and re-asserted her allegations concerning C.B.'s "x-ray incident." The temporary order for child custody and child support was read aloud in court and entered on 24 October 2012. This order maintained the previous custody arrangements, allowed Mr. Berry overnight visitation, but specifically decreed neither parent should sleep in the same room as the children.

         Mr. and Ms. Berry continued negotiations for permanent custody throughout 2012 and into 2013. A judgment granting absolute divorce between Mr. Berry and Ms. Berry was entered on 25 April 2013.

         Mr. Berry met his current wife, Jodie Berry ("Jodie") in January 2013. Ms. Berry became upset after Jodie was included in some of the children's activities. Custody negotiations stalled at the end of July 2013.

         Ms. Berry alleged she witnessed an incident of "sexualized behavior" between the children in the bathtub on 31 July 2013. She stated the children told her it was something "Daddy likes for them to do." On 1 August 2013, Ms. Berry met with Julie Gill of Tedi Bear Children's Advocacy Center ("TBCAC"). Ms. Gill reported their conversations to DSS on 2 August 2013, and DSS accepted the report for immediate investigation. The investigator interviewed C.B., Mr. Berry, and Ms. Berry on 2 August 2013.

         The DSS investigator scheduled forensic interviews and medical examinations for the children at TBCAC on 6 August 2013. Neither the interviews nor the exams revealed any inappropriate sexual contact or evidence of sexual abuse. TBCAC recommended DSS approve a Child and Family Evaluation ("CFE").

         The CFE was conducted between 13 September 2013 and 12 October 2013. After extensive interviews, the CFE concluded:

(a) [C.B.] was tremendously inconsistent in his versions of events including the "x-ray allegations";
. . .
(c) [a]lthough Ms. Berry had expressed concerns about Mr.Berry's level of attachment to [C.B.] and his prior use of pornography, Mr. Berry's level of attachment to [C.B.] was not extraordinary given the high conflict custody matter and his prior use of pornography was within normal limits;
. . .
(e) Ms. Berry demonstrated significant issues of control during ...

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