JOSHUA D. PAYNICH, Plaintiff,
HOLLY B. VESTAL,  Defendant.
in the Court of Appeals 1 October 2019.
by Defendant from order entered 13 August 2018 by Judge
Andrea F. Dray in Buncombe County District Court No. 12 CVD
Siemens Family Law Group, by Jim Siemens, for
Michael E. Casterline for Defendant-Appellant.
Holly B. Vestal appeals the trial court's 13 August 2018
child custody modification order allowing her certain
visitation with her child and denying her access to the
child's school, medical, and counseling records.
Defendant argues that the trial court erred in awarding her
unreasonable visitation without finding her unfit, and erred
in denying her access to the child's records. We affirm
the order for visitation and reverse the order denying her
access to the child's records.
Procedural History and Factual Background
Joshua D. Paynich and Defendant Holly B. Vestal were married
in 1997. Their daughter was born in March 2011, and the
parties separated a year later. In June 2012, Plaintiff filed
a complaint for child custody, seeking joint custody.
Defendant filed an answer and counterclaim, seeking primary
custody. The parties divorced in May 2013. The trial court
found this case to be one of high conflict, and appointed
Linda Shamblin, PhD, to act as parenting coordinator on 23
September 2013. The parties shared custody of the child until
18 June 2014, when the trial court entered an emergency
custody order, placing sole care, custody, and control of the
child with Plaintiff. On 16 September 2014, the Court entered
an order for a parenting capacity evaluation. Pursuant to
this order, Defendant was awarded supervised visitation.
Smith Goodrum, PhD, was appointed to conduct the parenting
custody hearing on 15 January 2015, the trial court entered a
child custody order on 30 January 2015, finding and
concluding that Plaintiff is a fit parent; Defendant is
"not presently fit to parent, except under supervised
conditions[;]" awarding Plaintiff sole care, custody,
and control of the child; and awarding Defendant four hours
of supervised visitation with the child two times per week,
as well as opportunities for supervised visits on special
days. Defendant was ordered to undergo additional mental
health evaluation and engage in therapy two times per week.
Both parents were allowed access to the child's medical,
dental, and educational records.
2016, pursuant to a motion to modify custody filed by
Defendant, the court conducted another custody hearing. The
court found a substantial change of circumstances in that
Defendant appeared to be parenting appropriately within the
confines of periodic supervised visitation; Ms. Georgia
Pressman, MA, LPC, was providing therapy for the child and
should "be in a position to report to the parenting
coordinator if the Defendant's visitation with the minor
child is compromising the minor child's proper
development[;]" and the child was then five years old.
The trial court maintained the child's sole care,
custody, and control with Plaintiff. Defendant was allowed
unsupervised visits with the child on Tuesdays from 3 p.m. to
7 p.m., and every other Saturday from 10 a.m. to 6 p.m.
Beginning in January 2017, absent a contrary recommendation
from Ms. Pressman, Defendant could also have unsupervised
visits on alternate Thursdays from 3 p.m. to 7 p.m. Defendant
could request additional daytime visits on special occasions
through the parenting coordinator. Defendant was also allowed
to request supervised, extended visits of up to five
overnights during the Thanksgiving and Christmas holidays.
January 2018, Defendant filed an amended motion to modify
custody. The hearing on Defendant's motion was conducted
over four days in June 2018. On 13 August 2018, the trial
court entered a child custody modification order. The trial
court made numerous findings of fact, including that
"Defendant's conduct and the minor child's
deterioration since entry of the August 11, 2016 Order are
causally related, and constitute substantial changes of
circumstance adversely and substantially affecting and
pertaining to the minor child." The trial court
continued sole care, custody, and control of the child with
Plaintiff. The trial court concluded that the child's
visitation with Defendant should be restructured. Defendant
was allowed unsupervised, overnight visitation with the child
on alternate weekends from 11 a.m. on Saturday to 3 p.m. on
Sunday. The court ordered that holidays would continue to be
shared as set out in the August 2016 order, which allowed
Defendant unsupervised, daytime visits on special days, such
as the child's birthday and Mother's Day, and during
school recesses for Thanksgiving and Christmas, but required
Defendant to request such visits from the parenting
coordinator at least three weeks in advance. Extended holiday
visits of up to five overnights would still require that
Defendant be supervised.
order denied Defendant access to the child's school,
medical, and counseling records. It further denied her the
right to attend school events and performances; to
participate in making medical decisions involving the child;
and to participate in the child's counseling, unless
requested by the child's treatment provider. From the 13
August 2018 order, Defendant appeals.
first argues that the trial court erred by denying her
reasonable visitation without finding that she was an unfit
person to have reasonable visitation, thus violating the
mandate of N.C. Gen. Stat. § 50-13.5(i).
guiding principle to be used by the court in a custody
hearing is the welfare of the child or children
involved." Brooks v. Brooks, 12 N.C.App. 626,
630, 184 S.E.2d 417, 420 (1971). "While this guiding
principle is clear, decision in particular cases is often
difficult and necessarily a wide discretion is vested in the
trial [court]." Id. The trial court "has
the opportunity to see the parties in person and to hear the
witnesses, and [its] decision ought not to be upset on appeal
absent a clear showing of abuse of discretion."
Id. (citation omitted). An abuse of discretion
"is shown only when the court's decision is
manifestly unsupported by reason or is so arbitrary that it
could not have been the result of a reasoned decision."
Barton v. Sutton, 152 N.C.App. 706, 710, 568 S.E.2d
264, 266 (2002) (internal quotation marks and citation
noncustodial parent's right of visitation is a natural
and legal right which should not be denied 'unless the
parent has by conduct forfeited the right or unless the
exercise of the right would be detrimental to the best
interest and welfare of the child.'" Johnson v.
Johnson, 45 N.C.App. 644, 646-47, 263 S.E.2d 822, 824
(1980) (quoting In re Custody of Stancil, 10
N.C.App. 545, 551, 179 S.E.2d 844, 849 (1971)). "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." Johnson,
45 N.C.App. at 647, 263 S.E.2d at 824 (citation omitted).
a trial court's discretionary authority is not
unfettered." Hinkle v. Hartsell, 131 N.C.App.
833, 838, 509 S.E.2d 455, 459 (1998). N.C. Gen. Stat. §
50-13.5(i) provides, "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." N.C. Gen. Stat. §
50-13.5(i) (2018). Thus, before the trial court may
completely deprive a custodial parent of visitation, the
statute requires a specific finding either (1) that the
parent is an unfit person to visit the child or (2) that such
visitation rights are not in the best interest of the child.
Johnson, 45 N.C.App. at 647, 263 S.E.2d at 824
(citing King v. Demo, 40 N.C.App. 661, 253 S.E.2d
616 (1979)). This Court in Johnson "construe[d]
the statute to require a similar finding when the right
of reasonable visitation is denied. Thus, where
severe restrictions are placed on the right, there should be
some finding of fact, supported by competent evidence in the
record, warranting such restrictions." Johnson,
45 N.C.App. at 647, 263 S.E.2d at 824.
Court has consistently held that limiting a parent to
supervised visitation is a severe restriction which
effectively denies a parent the right to reasonable
visitation, and thus requires a finding of fact supporting
such restriction. See Hinkle, 131 N.C.App. at
838-39, 509 S.E.2d at 459 (defendant awarded only supervised
visitation every other Saturday and Sunday from 9:00 a.m. to
3:00 p.m., and specified times on holidays, and "the
trial court's findings [were] insufficient to support
these severe restrictions on defendant's visitation
rights"); Brewington v. Serrato, 77 N.C.App.
726, 733, 336 S.E.2d 444, 449 (1985) (defendant awarded
visitation privileges in North Carolina at plaintiffs home
with others present; these "severe restrictions"
were supported by the trial court's findings of fact);
Johnson, 45 N.C.App. at 647, 263 S.E.2d at 824
(respondent awarded only supervised visitation one weekend a
month and the trial court failed to make sufficient finding
to support such restriction); Holmberg v. Holmberg,
No. COA19-52, 2019 WL 4453850, at *3 ( N.C. Ct. App. Sept.
17, 2019) (unpublished) (plaintiff awarded only occasional
supervised visitation and the trial court's findings
failed to satisfy the statutory mandate).
case, Defendant was allowed unsupervised, overnight visits
every other weekend from Saturday at 11 a.m. to Sunday at 3
p.m. She was also allowed unsupervised, daytime visits on
special days, such as the child's birthday and
Mother's Day, and during school recesses for Thanksgiving
and Christmas. Defendant was additionally allowed supervised,
extended visits of up to five overnights during school
recesses for Thanksgiving and Christmas. Although
Defendant's extended overnight visits during school
recesses for Thanksgiving and Christmas must be supervised,
the vast majority of her time with the child is unsupervised.
argues that absent a finding that Defendant is unfit,
"she should be receiving far more time with her
daughter, even if the time is confined to weekends[, ]"
and "it is unreasonable and unlawful, under Johnson
v. Johnson, . . . to require supervision of any of
[Defendant's] visits with her daughter." However, we
conclude that the parameters placed on Defendant's
visitation are not the type of "severe
restrictions" our case law has determined effectively
deny the right of reasonable visitation. Accordingly, N.C.
Gen. Stat. § 50-13.5(i)'s mandate, as interpreted by
Johnson, is not applicable here, and the trial court
did not err by entering the visitation order without finding
that Defendant was an unfit person to have reasonable
also argues that the supervised visitation ordered during
Defendant's extended visits with the child is unsupported
by the findings or the evidence. Defendant argues,
"Having concluded that regular, unsupervised overnight
weekend visits with [Defendant] are beneficial to the minor
child, it is irrational for the trial court to require
extended holiday visits - visits which are limited to five
nights, by the previous order - to be supervised."
trial court made the following relevant findings of fact:
11. The Court received testimony from Georgia Pressman, the
minor child's therapist. . . . With respect to Ms.
Pressman's testimony, the Court finds[:]
a. Ms. Pressman's therapy with the minor child began in
June of 2015 and has continued until recently.
b. The minor child was 4 years old when therapy began. Ms.
Pressman described that at the beginning of therapy, the
minor child was "integrated" which the Court takes
to mean developing appropriately.
c. Ms. Pressman has seen, over the course of her treatment of
the minor child, a gradual decline in the minor child's
well-being. . . .
. . . .
g. The minor child commenced Kindergarten and commenced
unsupervised visits with the Defendant in August of 2016. The
Plaintiff shared with Ms. Pressman that the minor child was
pushing limits and behaving aggressively following
unsupervised contact with the Defendant. The Court finds the
Plaintiffs report credible.
. . . .
l. On December 16, 2016, the Plaintiff advised Ms. Pressman
that the minor child was soiling her underpants several times
a day, since visitation with the Defendant over the 2016
Thanksgiving holiday. Prior to the holiday, these accidents
were happening only 1-2 times per month. The Court finds the
Plaintiffs report to Ms. Pressman to be credible.
. . . .
o. On August 2, 2017, the minor child met with Ms. Pressman
after an extended visit with the Defendant and maternal
grandparents. In private session, Ms. Pressman noted the
minor child's dollhouse play was aggressive and Ms.
Pressman noted that ...