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McMillan v. McMillan

Court of Appeals of North Carolina

October 1, 2019


          Heard in the Court of Appeals 5 June 2019.

          Appeal by Plaintiff from an Order entered 28 March 2018 by Judge George A. Bedsworth in Forsyth County District Court No. 10 CVD 9037.

          Morrow Porter Vermitsky & Taylor, PLLC, by John C. Vermitsky, for Plaintiff-Appellant.

          Metcalf & Beal, LLP, by Christopher L. Beal, for Defendant-Appellee.

          HAMPSON, JUDGE.

         Factual and Procedural Background

         Douglass Hoyt McMillan (Plaintiff) appeals from an Order awarding Shelly Diane McMillan (Defendant) legal custody and primary physical custody of the parties' minor child and granting Plaintiff secondary legal custody. The Record before us tends to show the following:

         Even prior to the minor child's birth, the parties in this case had a tumultuous relationship fueled by alcohol and substance abuse. As the trial court would later summarize: "Their courtship was marked by relapses, hospitalizations, domestic violence and extremely careless behavior." On 6 October 2010, two days after the parties' minor child was born, the parties engaged in a domestic violence incident resulting in the two-day old minor child being dropped on the floor and hitting her head.

         As a result, on 8 October 2010, the Forsyth County Department of Social Services (DSS) initiated a Juvenile Abuse/Neglect/Dependency action in Forsyth County District Court (the Neglect Proceeding) due to reports from hospital staff of the parties arguing and concerns about releasing the child to a hostile environment.[1]The parties separated on 10 October 2010. On 2 March 2011, the minor child was adjudicated to be a neglected juvenile and placed in the custody of her maternal grandparents.

         On 15 December 2010, before the Neglect Adjudication and while the Neglect Proceeding was still pending, Plaintiff initiated this action by filing a Complaint in Forsyth County District Court seeking exclusive legal and physical custody of the parties' minor child (the Child Custody Action). Following the Neglect Adjudication, on 9 November 2011, the Child Custody Action was administratively removed from the active court calendar and ordered closed by the Forsyth County District Court on the basis "it appears that the case is no longer an active lawsuit and that trial will not likely be necessary."

         On 18 April 2012, in the Neglect Proceeding, the Forsyth County District Court entered a Juvenile Order[2] following a statutory periodic review hearing under then N.C. Gen. Stat. § 7B-906[3] on the status of the minor child. The Juvenile Order found DSS now recommended legal custody of the minor child be returned to the parties, with the parties having joint custody of the child, and that the case be converted to a civil child custody proceeding. The Guardian ad Litem for the minor child recommended the same thing. The Juvenile Order contains findings reciting the efforts of DSS to eliminate the need for foster placement of the minor child and reunify her with her parents, and a finding those efforts were reasonable.

         The Juvenile Order found "that return of [the minor child] to the joint custody of her parents would be in the best interest of the child." In addition, the Juvenile Order found: "On this date, the Court has entered an order pursuant to N.C. G.S. 50-13.1, 50-13, 50-13.5 and 50-13.7, as provided in G.S. 7B-911, awarding joint custody of the child" to Plaintiff and Defendant.

The Juvenile Order further found:
22. The parties understand that any Motion to enforce or modify the terms of the civil custody order will be in Civil, not Juvenile Court and may be referred to mediation; that no party is entitled to court-appointed counsel in that action; that the Guardian ad Litem and Attorney Advocate have no responsibilities in that action; that the Juvenile Court will have jurisdiction to consider matters relating to the child only if a new Petition is filed; and that the [DSS] has no custodial or other rights or responsibilities with respect to the child, although Plaintiff may contact DSS for assistance that may be available on a voluntary basis.
23. The Court finds pursuant to N.C. G.S. 7B-911 that [Plaintiff and Defendant] are fit and proper to have sole custody of [the minor child] and such custody would be in the best interest of the [minor child].

         Consequently, the Juvenile Order decreed the parties were to have joint legal custody of the minor child, including authorization of necessary medical care for the child, and "the Court terminates juvenile court jurisdiction and there shall be no further scheduled Court reviews." Despite the Juvenile Order's recitation that a civil child custody order was being entered the same day, the Record does not reflect that any such order was entered in the Child Custody Action or in any newly initiated civil child custody action. Indeed, the parties appear to agree that no such written order was actually entered.[4] In any event, no further proceedings took place in the Neglect Proceeding.

         Almost two years later, on 16 April 2014, Plaintiff filed a Motion in the Cause in the Child Custody Action seeking permanent, exclusive legal and physical custody of the parties' minor child, as well as ex parte emergency and temporary custody of the child and child support. The Motion in the Cause alleged following the termination of the Neglect Proceeding, the parties had operated on an alternating 4-3-4-3 custody schedule from June 2012 until April 2014. The Motion in the Cause further alleged that earlier in April 2014, Plaintiff observed Defendant to be highly intoxicated during child custody exchanges and determined Defendant had relapsed; on 10 April 2014, Defendant had checked herself into an alcohol treatment program; and Plaintiff refused to return the child to her for the child's protection.

         The same day, 16 April 2014, Plaintiff obtained an ex parte order granting him temporary legal and exclusive physical custody of the child. On 20 June 2014, Defendant filed a Response to Plaintiff's Motion in the Cause countering, inter alia, that while she "may have an occasional problem with alcohol," Plaintiff was a "recovering crack addict" "diagnosed with several personality disorders," including Narcissism and Anti-Social disorders, and who was "obsessively jealous of the Defendant's parents being involved" with the child. Between 2014 and 2016, the parties operated under a series of Memoranda of Judgment/Orders providing temporary custody, which, generally speaking, provided Defendant greater custodial time with the minor child. The last of these Memoranda, entered on 29 November 2016 with the consent of the parties, granted temporary primary physical custody to Defendant.

         The case finally came on for trial over several dates in July and August 2017 on the parties' respective claims for child custody. On 28 March 2018, the trial court entered its Order in the Child Custody Action, awarding Defendant legal and primary physical custody and granting Plaintiff secondary custody every other weekend and one weeknight, with a birthday, holiday, and summer visitation schedule. The trial court left open the remaining issues of child support and attorneys' fees in hopes the parties might reach some agreement. Plaintiff filed his Notice of Appeal on 9 April 2018.

         Appellate ...

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