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Paynich v. Vestal

Court of Appeals of North Carolina

January 7, 2020

JOSHUA D. PAYNICH, Plaintiff,
v.
HOLLY B. VESTAL, [1] Defendant.

          Heard in the Court of Appeals 1 October 2019.

          Appeal by Defendant from order entered 13 August 2018 by Judge Andrea F. Dray in Buncombe County District Court No. 12 CVD 2858.

          Siemens Family Law Group, by Jim Siemens, for Plaintiff-Appellee.

          Michael E. Casterline for Defendant-Appellant.

          COLLINS, JUDGE.

         Defendant 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.

         I. Procedural History and Factual Background

         Plaintiff 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 capacity evaluation.

         After a 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.

         In 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.

          In 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.

         The 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.

         II. Discussion

         A. Visitation

         Defendant 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).

         "The 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 omitted).

         "A 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).

         "However, 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.

         This 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).

         In this 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.

         Defendant 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 visitation.

         Defendant 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."

         The 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 ...

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