Slawek v Slawek v Maitland

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA09-1682 NORTH CAROLINA COURT OF APPEALS Filed: 17 August 2010 MYRA MIZE SLAWEK, Plaintiff (deceased), v. Henderson County No. 00 CVD 598 CHRISTOPHER TODD SLAWEK, Defendant, v. MARY ANN MAITLAND, Intervenor. Appeal by Intervenor from orders entered 2 June 2009 by Judge David K. Fox in Henderson County District Court. Heard in the Court of Appeals 9 June 2010. Prince, Youngblood & Massagee, PLLC, by Sharon B. Alexander, for Defendant-Appellee. Dameron, Burgin, Parker & Jackson, Jackson, for Intervenor-Appellant. P.A., by Phillip T. STEPHENS, Judge. I. Procedural History and Factual Background This appeal is part of a long chain of custody litigation involving Plaintiff Myra Mize Slawek ( Mother ), the mother of the minor children Curt and Jessica1 (collectively, the Children ), 1 Pseudonyms are used to refer to the minor children. -2Defendant Christopher Todd Slawek ( Father ), the father of the Children, and Intervenor Mary Ann Maitland ( Grandmother ), the maternal grandmother of the Children. On 19 April 2000, Mother filed a complaint against Father seeking custody of the Children. On 25 April 2000, the trial court issued an ex parte order granting Mother temporary custody of the Children. On 9 May 2000, the court issued an ex parte order finding Mother unfit due to her drug abuse and granting Father temporary custody of the Children. On 2 June 2000, the court found both Mother and Father fit and awarded Mother and Father temporary joint custody of the Children. On 23 February 2001, the court entered a permanent custody order granting Father and Mother joint custody of the Children, with Father designated the primary custodian. On 16 May 2001, the court issued an ex parte order granting Father temporary custody of the Children due to Mother s abuse of illegal drugs. On 21 June 2001, Grandmother filed a motion to intervene to gain custody of the Children alleging that neither Father nor Mother were fit parents. On 4 September 2001, a consent order was entered granting Grandmother s motion to intervene. From November 2001 to January 2003, a series of temporary orders were issued granting Grandmother visitation rights to the Children. On 28 January 2003, the court entered a permanent custody order awarding Father sole custody of the Children and Grandmother visitation rights. In 2003, Mother died in a car accident. Between 20 January 2005 and 23 January 2009, Grandmother filed numerous motions seeking to have Father held in contempt for -3allegedly refusing to allow her visitation with the Children. She also filed numerous motions seeking to modify the custody order to award her sole custody of the Children. In response, Father filed motions to limit Grandmother s visitation and, on 8 October 2008, Father filed a motion seeking to terminate Grandmother s visitation rights. It appears that many of these motions were never calendared for hearing or ruled upon by the trial court. On 18 February 2009, Father moved to dismiss Grandmother s motions to modify custody. Following a hearing, by order entered 2 June 2009, the trial court dismissed Grandmother s motions to modify the 28 January 2003 custody order because as a matter of law[,] . . . [Grandmother] does not have the right . . . to seek the care, custody and control of the subject minor children. The trial court heard arguments on Father s motions to modify and Grandmother s motions for contempt on seven days between 2 November 2008 and 27 April 2009. On 2 June 2009, the court entered a separate order finding Grandmother unfit for visitation and, thus, revoking her visitation rights to the Children. The order also held Father in contempt for refusing to permit Grandmother s previous visitation. From these orders, Grandmother appeals. II. Discussion A. Modification of the Custody Order Grandmother first argues that the trial court erred in modifying the 28 January 2003 custody order because the trial court failed to conclude that there has been a substantial change of -4circumstances affecting the welfare of the Children since the entry of that order. We disagree. When reviewing a trial court s decision to grant or deny a motion for the modification of an existing child custody order, the appellate courts must examine the trial court s findings of fact to determine whether they are supported by substantial evidence. Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003). If supported by substantial evidence, the trial court s findings are conclusive on appeal, despite the existence of evidence that might support contrary findings. 625, 501 S.E.2d 898, 903 (1998). Pulliam v. Smith, 348 N.C. 616, Furthermore, findings of fact which are not challenged on appeal are binding on appeal. v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Koufman The trial court s conclusions of law are, however, reviewed de novo. v. Scott, 157 N.C. App. 382, 385, 579 S.E.2d 431, 433 (2003). Scott The trial court is vested with broad discretion in cases involving child custody, Pulliam, 348 N.C. at 624, 501 S.E.2d at 902, and its decision to modify an existing custody order will not be reversed on appeal absent a clear showing of abuse of discretion. Karger v. Wood, 174 N.C. App. 703, 705, 622 S.E.2d 197, 200 (2005). N.C. Gen. Stat. § 50-13.7(a) provides that an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested. Gen. Stat. § 50-13.7(a) (2009). N.C. Changed circumstances has been defined as a substantial change of circumstances which either -5adversely or beneficially affects the welfare of the children involved in the custody dispute. S.E.2d at 899. order assumes Pulliam, 348 N.C. at 619, 501 The party moving for modification of a custody the burden of showing a substantial circumstances affecting the welfare of the child. change of Blackley v. Blackley, 285 N.C. 358, 362, 204 S.E.2d 678, 681 (1974). In determining whether modification of a custody order is warranted, the trial court must determine whether there has been a substantial change in circumstances affecting the welfare of the child involved, and, if so, whether modification of custody is in the child s best interest. Shipman, 357 N.C. at 474, 586 S.E.2d at 253. In this case, the trial court made the following findings of fact relevant to whether there has been a substantial change of circumstances: 9. That by Order dated 28 January, 2003 [Father], having been found by [the trial judge]2 to be a fit and proper person to exercise the office, was granted permanent exclusive legal and physical care, custody, and control of his two minor children . . . . Visitation was established for [Grandmother]. . . . . . . . 12. . . . That from prior to the 2001 date [Grandmother] first formally sought to intervene in this matter, [Grandmother] has pursued gandering to herself the exclusive legal and physical care, 2 The trial judge who presided over the case and issued the 28 January 2003 custody order was different from the trial judge who presided over the case and issued the 2 June 2009 orders on appeal. -6custody, and control of these, her two minor grandchildren. She has relentlessly hewn to this purpose over the intervening eight long years, comporting her actions to this settled intention. In her ongoing efforts to achieve her goal[,] she has alienated [Father] . . . and she has systematically alienated the objects of her quest [-] her grandchildren [, causing] these minors profound and waxing discomfort and chronic insecurity. [Grandmother] has evidenced this, her fixity of purpose, by various acts and omissions including, but not limited to the following: . . . . D. That [the trial judge] went on in her January, 2003 Order to observe [Grandmother] and [Father] do not communicate well with one another regarding any issue, particularly the minor children. That this Court finds that this is a circumstance that has only grown worse. E. That [the trial judge] found as fact in her January, 2003 Order in this matter that [Father] and [Grandmother] do not trust one another. This Court finds from the facts adduced in this hearing that the word trust and the names [Grandmother] and [Father] in the same sentence now constitute an oxymoron of metaphysical dimensions. F. [The trial judge] found in 2003 that [Grandmother] hired a private detective to observe [Father] during the trial of this matter. This Court finds [Grandmother] returned again to this usually arid recourse in recent months. Although [Grandmother] maintained in Court that her only purposes in this matter have been positive and affirmative . . . the presence of [Grandmother s] detectives lurking about . . . negatively impacted [the Children s] delicate sense of security and repose and made these -7children ever more mistrustful of [Grandmother], personally. G. That [Grandmother] criticized, in various ways, [Father s] general character and decisions regarding the said children[,] [the trial judge] found as fact in her 2003 order. This Court finds that this indulgence of [Grandmother s] has grown worse. . . . [Grandmother] has contributed mightily to what she, herself, testified to: that ever since (the [C]hildren) could form a thought they were aware of the tension between [Father] and h e r s elf. [Grandmother s] detestation of [Father ] . . . colours [sic] her actions and her thinking and has permeated with poison her relationship with her grandchildren, children who are well-aware of this antipathy toward their father which in turn compromises their sense of security and is a chief cause of the divers[e] negative reactions to [Grandmother] evidenced by these children, negative reactions which [Grandmother] professes puzzle her. H. That the [C]hildren . . . have found comfort and solace in the Roman Catholic faith, a faith to which [Father] nominally adheres. The [C]hildren attend Immaculata parochial school where worship is a part of the curriculum and they attend Mass regularly. . . . That [Grandmother] is a firmly committed member of The Church of God of Abrahamic Faith. . . . That [Grandmother] regularly takes [the Children] to her church when she has them over [on] the Sabbath and insists upon catechizing them in the doctrines of her faith [.] In these sessions, [Grandmother] . . . attempts to convert them to her way of thinking as being the correct way of -8thinking. [Grandmother] has suggested the children be re-baptized in her church. This religious dissonance causes the [C]hildren ongoing, profound distress and directly erodes the sense of security they have found in their Catholic faith. These particular children especially do not need, and have expressed to their therapist that they do not want, to be subjected to a contest for their hearts and minds fought with competing religious doctrines. [Curt] especially testified that he resents [Grandmother s] imposing upon the [C]hildren [a] doctrine kind of opposite of the Catholic faith to which he adheres . . . . This also directly subverts [Father s] paramount parental role in establishing the terms of his family s worship. I. [The Children] know [Grandmother] has on several occasions petitioned the Court to have them ripped-away from the home they ve grown to love and to have them placed permanently with her. The last visits at [Grandmother s] home in 2008 were intensely painful to these maturing young people, knowing as they did this lawsuit was active and that their smiling Grandmother . . . was striving even then to remove them from the home and people they cherish. This made both children, especially [Jessica], who routinely weeps just entering the place, profoundly anxious and insecure. The [C]hildren discussed between themselves means of terminating visitations with [Grandmother]. [Curt] suggested they run away from home rather than visit [while Jessica] observed that would never work and countered with the proposal they adopted after the disastrous August, 2008 visit: the -9[C]hildren staged sit-down strikes in the back seat of the vehicle taking them to [Grandmother s]; they refused to get out at her house voluntarily. [Curt] testified believably that [Father] has by divers[e] means attempted to induce them to visit [Grandmother], including asserting that he, [Father], might go to jail if they didn t. . . . L. That [Grandmother] has been tone deaf to the waxing anxiety of her grandchildren, a condition to which she, herself, is the chief contributor. These children have suffered the tragic loss of their mother, due initially to [Mother s] protracted drug-induced instability and then to the permanency of death. Overlapping with this loss, [the Children] have endured the ensuing years of tension between [Grandmother] and [Father], a state of war existing for the past eight years, as [Grandmother] acknowledges. In recent years, [the Children] have found the comfort, security, and repose they desperately need in the home their [Father] has made for them with his current wife, Kelly. . . . [Grandmother] constitutes the chief threat to the evolving security these children have in their family. . . . As Dr. Jeanne Cummings, licensed clinical psychologist, testified, this extended eight years of litigation, renewed time after time by [Grandmother,] alone can be stressful on these children. . . . . An apogee of this mistrustful, misunderstood relationship came late last summer. Then the [C]hildren s therapist early in August, 2008 circulated an unfortunate letter concerning the [C]hildren s mounting -10anxiety anent [Grandmother.] The 22 August 2008 visit the [C]hildren had at [Grandmother s] house . . . was almost a parody of bad grandmothering. The Court was able to see and hear this painful episode as the audio/visual recording of it was played in Court. The [C]hildren were met at [Grandmother s] door by . . . the cold eye of the video camera. All are self[-]conscious and tense. Sensitive [Jessica] weeps. [Grandmother], after stilted greetings and conversations (and a repositioning of the camera)[,] sat both down, faced them, leaned forward, and [proceeded] to interrogate these miserable children with the therapist s letter. Interrogate is [Grandmother s] word for this awkward conversation, and it fits. [Curt] did what [Curt] does: he buttoned-up within himself and let [Jessica] do most of the talking for both. Time and again [Jessica], a ten-year-old child, repeated the mantra: what the children want in their relationship with [Grandmother] is to visit when they, themselves, choose and to have a normal life[;] they loath living under her ongoing threat to rip them from their home, among other things. [Grandmother] was obtusely oblivious to the validity of this poignant plea. . . . 14. That this Judge over the past several years he has been involved in this case has . . . attempted to reconcile [Father] and [the Children] to [Grandmother] with Court-ordered rights of visitation. As a matter of fact, the relationship between [Father] and [the Children] on the one hand and [Grandmother] on the other has only worsened after eight full years of experimentation. A famous definition of insanity is: doing the same thing again and yet again and expecting different results. For this eight long years the Court has been attempting to maintain -11[Grandmother s] rights whilst, concurrently, the [C]hildren s welfare, the chief concern of the Court, has suffered. To further experiment with these [C]hildren has become simply cruel. These findings of fact have not been challenged by Grandmother. Accordingly, they are binding upon this Court. at 97, 408 S.E.2d at 731. Koufman, 330 N.C. Based in part on these findings, the trial court concluded, inter alia: 6. That [Grandmother] is no longer a fit and proper person to exercise Court-ordered visitation with the [Children], nor such other Court-ordered rights relating to these [Children] . . . . 7 . . . The history over eight years of [Grandmother s] exercise of Court-ordered involvement with her grandchildren has directly and proximately resulted in everescalating misery for the minor children . . . . For the Court to continue to experiment with visitation would be to fecklessly and cruelly inflict yet more pain and anguish upon [the Children] who have begged the court and have begged [Grandmother] to have one fundamental gift: normal lives . [sic] Normal lives for these children is a happy circumstance, the Court concludes regretfully, that must have as a condition precedent the removal of [Grandmother] as an artificial imposition in the [Children s] lives. The trial court thus confirm[ed] [Father] as sole legal and physical custodian of the Children and dissolved and revoked absolutely Grandmother s visitation rights. Grandmother does not argue that these facts do not support a conclusion that a substantial change of circumstances existed. Instead, Grandmother argues that the trial court erred in modifying the custody order without making a finding or conclusion -12specifically stating that there had been a substantial change of circumstances affecting the welfare of the Children. However, the trial court need not use the term substantial change of circumstances for a substantial change of circumstances to exist and to be documented in the court s order. See Raynor v. Odom, 124 N.C. App. 724, 733, 478 S.E.2d 655, 661 (1996) (holding that a finding of unfitness of the custodial parent or party satisfies the statutory requirement that the trial court find a change in circumstances in order to modify a prior custody determination). In this case, the unchallenged findings of fact evidence a substantial change of circumstances and wholly support the legal conclusions that Grandmother was unfit and must be removed from the Children s lives in order for them to have normal lives[.] These properly supported conclusions, in turn, satisfy the statutory requirement of finding a change in circumstances pursuant to [N.C. Gen. Stat. §§] 50-13.7 and 50-13.5. 478 S.E.2d at 661. Raynor, 124 N.C. App. at 733, Moreover, we note that Grandmother does not challenge the trial court s findings and conclusions that it was in the Children s best interests for Grandmother not to have courtordered rights of visitation. Accordingly, the trial court did not err in modifying the 21 December 2005 custody order. Grandmother s argument is overruled. B. Finding of Unfitness Grandmother next argues that the trial court erred in finding her unfit to exercise visitation with the Children. Specifically, Grandmother argues that the relevant findings of fact do not -13support the trial court s conclusion3 that Grandmother was not a fit and proper person for court-ordered visitation. We disagree. Contrary to Grandmother s contention, grandparents do not have a constitutionally protected right to a relationship with their grandchildren,4 and a grandparent s visitation rights are ordered as the court, in its discretion, deems appropriate. N.C. Gen. Stat. § 50-13.2(b1) (2007). [Although] Courts are not insensitive to the yearning of grandparents and other relatives for the company of children in their families . . .[,] such cannot be translated into a legal right without a showing that it is dictated by the needs and welfare of the child. Acker v. Barnes, 33 N.C. App. 750, 752, 236 S.E.2d 715, 716 (citation and quotation marks omitted), cert. denied, 293 N.C. 360, 238 S.E.2d 149 (1977). The welfare of the child is the paramount consideration which must guide the Court in exercising [its] discretion. child in Thus, the [trial court s] concern is to place the development an faculties. environment of his which physical, Blackley, 285 N.C. will best mental, at 362, promote moral and 204 S.E.2d the full spiritual at 681. Therefore, it is the best interests of the child, and not the best interests of the grandparent, that is the polar star in this case 3 The trial court based its conclusion on findings of fact numbers six, 11, 12, and 14. 4 To declare a parent unfit for visitation, there must be clear, cogent, and convincing evidence. Moore v. Moore, 160 N.C. App. 569, 573, 587 S.E.2d 74, 76 (2003). Parents have a heightened standard for unfitness because they have a constitutionally protected right to a relationship with their child. Id. -14. . . . Hill v. Newman, 131 N.C. App. 793, 799, 509 S.E.2d 226, 231 (1998). In addition to the relevant findings of fact cited supra, the trial court made the following finding of fact: 11. That, by her Motion filed in this matter 20 January, 2005, [Grandmother] again formally memorialized her goal of taking legal and physical custody of [Father s] children away from [Father] and repositing those offices in herself, a goal earlier set out in her 2001 Motion to I n t erve n e , aforementioned. Subsequently, Maitland filed for full custody of the [C]hildren again in pleadings filed in this matter 21 May, 2007, again 16 October, 2008, and yet again 16 December, 2008. That in the eight years since her first pleading in this matter, the goal of [Grandmother] to take exclusive custody of [the Children] has remained ongoing, that she has acted in accordance with it in her relationship with [Father] and [the Children], and that it has and does colour [sic] negatively the [C]hildren s relationship with her and negatively impacts the [C]hildren s sense of security in their own home and repose in their familial relationships, coming to a crisis in 2008, as more fully set-out below. Grandmother does not argue that the findings of fact are not supported by the evidence,5 and accordingly, they are conclusive on appeal. Koufman, 330 N.C. at 97, 408 S.E.2d at 731. Grandmother s argument is that these findings do not support the trial court s conclusion that Grandmother was no longer a fit and proper person 5 Although Grandmother asserts in section heading II.B. that the findings of fact are not supported by the evidence presented, Grandmother fails to argue this contention in her brief. This argument is, thus, deemed abandoned. N.C. R. App. P. 28(a). -15to exercise Court-ordered visitation with the minor children. We disagree. These findings of fact evidence Grandmother s escalating misconduct and the increasingly detrimental effect her conduct has had on the Children. Finding of fact 11 describes the constant litigation perpetuated by Grandmother that has kept the Children in a resulting state of turmoil and insecurity. Based on the testimony of a licensed clinical psychologist, the court found that the years of litigation, renewed time after time by [Grandmother], including filing for sole custody of the Children four times since the entry of the last order, has been stressful on the Children. Such conduct destroy[s] the paramount aim of the court, that is, that the welfare of the child be promoted and subserved. Clark v. Clark, 294 N.C. 554, 576, 243 S.E.2d 129, 142 (1978). Moreover, through Grandmother s continuing efforts to gain custody of the Children, she has systematically alienated them, and caused profound and waxing discomfort and chronic insecurity. These problematic circumstances have worsened over the years. Additionally, Grandmother s and Father s inability to communicate regarding any issue, particularly the minor children[,] has only grown worse[,] as has Grandmother s and Father s inability to trust each other. The tension between Grandmother and Father has increased to such a degree as to cause negative reactions in the Children. Grandmother, however, was puzzled by their reactions -16and took no positive action to determine the cause of the reactions. Grandmother s criticism of Father s character and decisions regarding his children has grown worse to the point of poisoning her relationship with the Children and compromising their sense of security. The Children s visits with their Grandmother have become a profound source of anxiety and insecurity over the recent years. Attempting to avoid these visits, the Children have resorted to stag[ing] sit-down strikes in Father s vehicle, refusing to enter Grandmother s home voluntarily. The Children s recent visits with Grandmother were intensely painful for the Children, who were distraught over Grandmother s attempts to remove them from their Father s home. The findings reflect that the Children s therapist was so concerned about the Children s anxiety related to their visits with Grandmother that she gave Father a letter explaining the source of their anxiety. Grandmother s response to the letter was to interrogate the Children in front of a video camera regarding what the therapist had written. On the video, Jessica repeatedly told Grandmother that she and her brother want to visit when they, themselves, choose to and have a normal life. Grandmother s recent hiring of a private detective to snoop around the home of Father and the Children negatively impacted the Children s delicate sense of security and repose, making the Children ever more mistrustful of [Grandmother], personally. -17Additionally, Grandmother has been tone deaf and obtusely oblivious to the desires and needs of the Children, putting her own desires above theirs. Grandmother s attempts to catechize the Children to the doctrines of her faith has led to religious dissonance [that] causes the [C]hildren ongoing, profound distress and directly erodes the sense of security they have found in their Catholic faith. Grandmother s Like her continuous attempts to gain custody, attempted imposition of her religion onto the Children was not done with the best interest of the Children in mind, but rather as part of Grandmother s self-serving endeavors. The trial court found that as a result of the realities [of] the Court-created rights of [Grandmother], the [C]hildren are now suffering profoundly and the [C]hildren s best interest[s] have taken second place to shoring-up an unworkable relationship between [Grandmother] and [Father] and as long as [Grandmother] remains a Party to this action[, the Children] perceive her to be a threat to their well-being. These findings vividly illustrate an intensely hostile environment created by Grandmother since the entry of the 2003 order, an escalation of Grandmother s detrimental actions in furtherance of her self-centered pursuit of custody of the Children for her disregard own for personal the satisfaction, Children s and dramatically resulting from Grandmother s actions. Grandmother s increasing total anxiety Accordingly, based on these findings, we conclude that the trial court did not abuse its discretion in finding and concluding that Grandmother was not a -18 fit and proper person to exercise visitation with the Children. Grandmother s argument is thus overruled. C. Dismissal of Custody Claim By Grandmother s final argument, she contends that the trial court erred in dismissing her motion for custody of the Children. However, as custody of the Children was properly before and considered by the court upon Father s motions for modification of the custody order, we need not address Grandmother s argument. We conclude there was no prejudicial error resulting from the trial court s dismissal of her motions. For the foregoing reasons, the orders of the trial court are affirmed. AFFIRMED. Judges STEELMAN and Judge HUNTER, JR. concur. Report Per Rule 30(e).

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