Knowles v. Bennett

• Court: Court of Appeals of North Carolina
• Decided: June 3, 2014
• Docket: 13-1340
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e .

NO. COA13-1340 NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

CANDANCE KNOWLES (ARNETT), Plaintiff,

v. Union County No. 08 CVD 3735 JOHN PAUL BENNETT, SR., Defendant.

Appeal by defendant from order entered 9 April 2013 by

Judge Joseph J. Williams, from orders entered 19 March 2012,

9 August 2012, and 8 November 2012 by Judge Stephen V. Higdon,

and from order entered 17 April 2012 by Judge N. Hunt Gwyn, all

in Union County District Court. Heard in the Court of Appeals

7 April 2014.

Law Office of Shawna Collins, by Carrie L. Quick, for plaintiff–appellee.

John P. Bennett, Sr., pro se, for defendant–appellant.

MARTIN, Chief Judge.

Defendant father appeals from an order awarding sole -2- custody of minor child R.H.B. to plaintiff1 mother, and awarding

father specified afternoons of supervised visitation and

overnight weekend visitations in father’s home only if his other

daughter from a previous relationship is not in the home. We

affirm.

Our recitation of the facts and procedural history is

limited to those deemed relevant to the issues before us on

appeal. The evidence in the record tended to show that father

and mother were married in 2003, divorced in 2007, and that the

minor child, R.H.B., was born to the marriage in 2004. In

September 2008, father and mother entered into a Child Custody

Agreement, which established that they would share joint custody

of R.H.B., vested the minor child’s primary physical custody in

mother, and set forth father’s visitation schedule and monthly

child support obligations. In February 2009, the trial court

entered an order which decreed that all matters of child custody

were resolved by the parties’ September 2008 Child Custody

Agreement, and that this Agreement was to be incorporated as an

order of the trial court.

In September 2010, father moved to reduce the amount of his

1 Although the record reflects plaintiff’s name as “Candace Hanes Knowles,” “Candace Knowles (now Arnett),” and “Candace H. Arnett,” the appellation representing this party in our caption matches that of the trial court’s 9 April 2013 order, which identifies this party as “Candance Knowles (Arnett).” -3- court-ordered-by-agreement child support obligation on the

grounds that his income had decreased because M.M.B., his then-

seventeen-year-old daughter from a previous relationship, was

living with him and required ongoing outpatient and in-hospital

medical treatment for her diagnoses of severe schizoaffective

disorder and post-traumatic stress syndrome. In December 2010,

after attending court-ordered mediation to resolve subsequent

issues related to custody or visitation, the parties entered

into a Parenting Agreement, which was also entered as an order

of the trial court. Among the “Special Parenting Arrangements”

set forth in the Parenting Agreement was the provision that

“[b]oth parents agree that [R.H.B.] will not be left in the

primary care of her sister, [M.M.B.]”

In March 2012, mother filed a motion to modify father’s

visitation and moved for an ex parte suspension of his

visitation until the matter could be heard. Mother alleged

that, two days before filing the motion, she learned that

father’s daughter, M.M.B., was “recently arrested” for

“felon[ious] assault inflicting serious bodily injury with

aggravated physical force,” which the record indicates was

related to an incident from 2009 when an employee of a medical

facility for the North Carolina Department of Correction was

allegedly the victim of a “[b]rutal [a]ssault” that “includ[ed] -4- [s]trangulation.” Mother also alleged in her motion that

M.M.B.’s mental health disorders “cause[d] significant and

drastic unprovoked reactions from [M.M.B.,] such as jumping out

of moving vehicles, running out of the residence at night,

suicidal thoughts, and paranoia regarding those that attempt to

take care of her.” Mother also alleged that: because M.M.B.’s

“mental health issues are so significant[, father] . . . has

been unable to work and has provided 24 hour care for her since

at least January of 2011”; M.M.B. left father’s residence after

dark and father “chas[ed] his older daughter while the minor

child, [R.H.B.,] was following behind with no shoes and with

little to no supervision from [father]”; and R.H.B.’s teachers

have indicated that R.H.B. “appears exhausted and extremely

tired on the days that [father] returns the minor child to

school” and “has incurred several tardies this school year on

the days [father] returns her to school because [father] is

late.” Mother further alleged that R.H.B. “now makes little

indication to [mother] of anything regarding [father’s] home and

the minor child’s well-being at [father’s] home due to fear of

her being in trouble with [father] or [father] being upset with

her.” As a consequence of these and other allegations, mother

asserted that there had been a substantial change in

circumstances since the entry of the prior child custody and -5- visitation orders warranting a modification of custody and

visitation, and moved the trial court to enter an ex parte order

suspending father’s visitation pending a hearing on the matter.

One week later, on 19 March 2012, the court entered an ex

parte order suspending father’s visitation with R.H.B. pending a

hearing. In June 2012, father moved to rescind the ex parte

order and moved to dismiss mother’s motion to modify visitation.

On 22 February 2013, father moved to exclude all of mother’s

witnesses from the hearing on this matter due to mother’s

purported failure or refusal to timely serve a list of such

witnesses upon father in contravention of N.C.G.S. § 1A-1,

Rule 26 and local district court rules. The motion was denied

on 25 February 2013.

On 9 April 2013, the trial court considered the motion

regarding the ex parte order suspending father’s visitation and

the motion to modify custody and visitation. After making

extensive findings of fact——many of which concern M.M.B.’s

mental health issues and various incidents of violence and other

disruptive or erratic behaviors related to those issues and

disorders——the trial court concluded that there had been a

substantial change in circumstances affecting the welfare of the

minor child, R.H.B., since the entry of the last orders

concerning child custody and visitation. The court awarded -6- mother sole custody of the minor child and awarded father

limited supervised visitation with the minor child, and ordered

that such visitation “may be expanded to include overnight

weekend visitations” “[s]hould [M.M.B.] not be in the father’s

home,” but that, “as long as [M.M.B.] remains in [father’s]

home[,] overnight visitations will not take place.” Finally,

the court found that, on the day the ex parte order was issued,

“there was no emergency custody situation that existed whereby

the child was being physically assaulted or sexually abused,”

and father “had not removed the child from the [S]tate with an

intent to avoid the [c]ourt’s jurisdiction”; thus, the court

determined that the 19 March 2012 ex parte order “was improperly

entered and should not be extended.” Father appeals from the

9 April 2013 order modifying custody and visitation, as well as

from the ex parte order that had suspended his visitation, from

an order for Eastover Psychological and Psychiatric Group, P.A.

to produce any and all medical records concerning and associated

with M.M.B., from an order compelling the production of medical

records specifically for 2012 from Eastover Psychological and

Psychiatric Group, P.A. concerning and associated with M.M.B.,

and from an order denying father’s motion for a protective order

of these same medical records.

_________________________ -7- Father first contends the trial court erred by denying his

motion to exclude all of mother’s witnesses at the hearing due

to father’s allegation that mother’s counsel purportedly failed

or refused to timely serve a list of such witnesses upon him in

contravention of local district court rules. “It is a general

rule that orders regarding matters of discovery are within the

discretion of the trial court and will not be upset on appeal

absent a showing of abuse of discretion.” Hudson v. Hudson,

34 N.C. App. 144, 145, 237 S.E.2d 479, 480, disc. review denied,

293 N.C. 589, 239 S.E.2d 264 (1977); see also White v. White,

312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (“A ruling

committed to a trial court’s discretion is to be accorded great

deference and will be upset only upon a showing that it was so

arbitrary that it could not have been the result of a reasoned

decision.”).

Father asserts, without any legal support, that he is

entitled to a new trial because he suffered “substantial and

irreparable prejudice” as a result of the court’s denial of his

motion to exclude all of mother’s witnesses. He argues that

opposing counsel’s failure to provide a copy of mother’s witness

list was contrary to Rule 18.4 of Judicial District 20B’s Family

Court and General Civil Court Rules (“the Rules”). Rule 18.4

provides: “Attendance at Pretrial Conferences are mandatory for -8- all attorneys of record and all parties. The purpose of a

pretrial conference [includes] . . . to finalize proposed

witness lists.” Loc. Rules for Dist. Ct., N.C. Jud. Dist. 20B,

Fam. Ct. & Gen. Civ. Ct. Rules, R. 18.4 (effective Sept. 1,

2012). “[F]ailure of the opposing party to cooperate with

providing the appropriate information/documents to complete the

order may result in the imposition of sanctions.” Id. The

Rules also provide that “[t]he Case Coordinator and the Judge

shall schedule . . . pretrial conferences as necessary to comply

with these [R]ules.” Loc. Rules for Dist. Ct., N.C. Jud.

Dist. 20B, Fam. Ct. & Gen. Civ. Ct. Rules, R. 18.1 (effective

Sept. 1, 2012). Our review of the record shows that no such

pretrial conference was scheduled by the court or by a case

coordinator, even though father asserts that he met with

mother’s counsel “in what [father] considered a pretrial

conference.”

Instead, the record shows that, during a 22 October 2012

hearing, father asked the court for “any sort of pretrial

meeting or anything like that to determine who [mother is] going

to call for witnesses,” to which the court responded: “You can

communicate with [mother’s counsel], but I don’t know there’s

any requirements for those matters as far as——at this stage as

far as pretrial conference, getting each other a list of -9- witnesses.” After this hearing, father stepped out of the

courtroom and spoke to mother’s counsel, during which time

father asserts he asked counsel for a copy of mother’s witness

list. Although father suggests, without support, that he

“considered [this conversation] a pretrial conference” that

would invoke the requirements and obligations of Local

Rule 18.4, because the record does not show that father

requested this information in accordance with the procedures set

forth by any local rule or statutory provision, we cannot agree

with his contention that the trial court’s decision to deny his

motion to exclude mother’s witnesses was a prejudicial error in

contravention to law. Rather, the record shows that mother’s

counsel stated the following in open court:

I told him I didn’t have a problem providing that information as long as he used the proper procedures [in accordance with N.C.G.S. § 1A-1, Rule 26] and (unintelligible) accordingly. I explained to him that there were rules to do that and it was for him to issue those to [mother] so that she could comply. We never received that information.

Consequently, after determining that father’s motion was “not

requested in the proper manner to put it before the court and

would be an issue,” the court denied father’s motion. Because

father has not presented argument to establish that the trial

court’s decision to deny father’s motion to exclude mother’s -10- witnesses “was so arbitrary that it could not have been the

result of a reasoned decision,” see White, 312 N.C. at 777,

324 S.E.2d at 833, we decline to consider this issue further.

Father next contends the trial court erred by concluding

that there has been a substantial change in circumstances

affecting the welfare of the minor child. In cases involving

child custody, which matters “expressly include visitation

rights,” Browning v. Helff, 136 N.C. App. 420, 423, 524 S.E.2d

95, 97 (2000), “the trial court is vested with broad

discretion.” Id. “The decision of the trial court should not

be upset on appeal absent a clear showing of abuse of

discretion.” Id. “As in most child custody proceedings, a

trial court’s principal objective is to measure whether a change

in custody will serve to promote the child’s best interests.”

Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253

(2003). “Therefore, if the trial court does indeed determine

that a substantial change in circumstances affects the welfare

of the child, it may only modify the existing custody order if

it further concludes that a change in custody is in the child’s

best interests.” Id.

When “facts pertinent to [a] custody issue were not

disclosed to the court at the time the original custody decree

was rendered, courts have held that a prior decree is not res -11- judicata as to those facts not before the court.” Newsome v.

Newsome, 42 N.C. App. 416, 425, 256 S.E.2d 849, 854 (1979).

“[W]here facts affecting a child’s welfare existed at the time

of the entry of a custody decree but were not disclosed to the

court, . . . these facts may be considered in a subsequent

custody determination.” Id.; see also Woodring v. Woodring,

__ N.C. App. __, __, 745 S.E.2d 13, 20 (2013) (“[W]hen

evaluating whether there has been a substantial change in

circumstances, courts may only consider events which occurred

after the entry of the previous order, unless the events were

previously undisclosed to the court.” (emphasis added)).

A close examination of father’s argument with respect to

this issue on appeal reveals that he challenges only one of the

trial court’s seventy-five findings of fact. However, even

without this challenged finding of fact, father concedes that,

“yes[,] you can draw that conclusion[——that there has been a

substantial change in circumstances——]from the finding of facts

[sic] that were entered.” Instead, it appears that father

argues that the court’s conclusion that there has been a

substantial change in circumstances affecting the welfare of the

minor child was in error because “most were facts know [sic] for

years” by mother. However, as we recognized above, when

considering whether there has been a substantial change in -12- circumstances affecting the welfare of the child, a court may

consider events which occurred after the entry of a previous

custody order when such events were previously undisclosed to

the court. See Woodring, __ N.C. App. at __, 745 S.E.2d at 20.

Here, father has not demonstrated that the events that are the

subject of the extensive findings of fact in the court’s 9 April

2013 order were disclosed to the court before it entered its

December 2010 order, which incorporated the parties’ Parenting

Agreement to modify child custody and visitation with respect to

the minor child, R.H.B. Thus, he has not shown that the court

erred or abused its discretion by considering these events in

concluding that there has been a substantial change in

circumstances affecting the welfare of the minor child, and we

overrule this issue on appeal.

Finally, father contends the trial court erred by declining

to consider his N.C.G.S. § 1A-1, Rule 60(b) motion, filed with

the trial court in June 2013, in which he prayed that the court

vacate the orders from which he had appealed to this Court two

months prior. The record indicates that the trial court

declined to consider father’s June 2013 Rule 60(b) motion

because the court concluded that it had been divested of

jurisdiction to hear the motion upon father’s filing of a notice

of appeal for the present appeal. -13- “The trial court does not have jurisdiction . . . to rule

on motions pursuant to Rule 60(b) where such motion is made

after the notice of appeal has been given.” York v. Taylor,

79 N.C. App. 653, 655, 339 S.E.2d 830, 831 (1986); see also

Wiggins v. Bunch, 280 N.C. 106, 111, 184 S.E.2d 879, 881 (1971)

(“[T]he general rule is that when an appeal is taken from the

district court the latter court is divested of jurisdiction,

except to take action in aid of the appeal, until the case is

remanded to it by the appellate court.” (emphasis added)

(internal quotation marks omitted)). “As a general rule, an

appellate court’s jurisdiction trumps that of the trial court

when one party files a notice of appeal unless the case has been

remanded from the appellate court for further determination in

the trial court.” Hall v. Cohen, 177 N.C. App. 456, 458,

628 S.E.2d 469, 471 (2006) (emphasis added), appeal after

remand, 186 N.C. App. 132, 650 S.E.2d 67 (2007) (unpublished);

see also Wiggins, 280 N.C. at 111, 184 S.E.2d at 881 (“[D]uring

the pendency of an appeal it is generally held that the district

court is without power . . . to vacate, alter or amend the

judgment under Rule 60(b), whether the 60(b) motion is made

prior to or after the appeal is taken, except with permission of

the appellate court.” (emphasis added) (internal quotation marks

omitted)). “Upon the appellate court’s notification of a -14- Rule 60(b) motion filed with the trial court, this Court will

remand the matter to the trial court so the . . . court may hold

an evidentiary hearing and indicate ‘how it [is] inclined to

rule on the motion were the appeal not pending.’” Hall,

177 N.C. App. at 458, 628 S.E.2d at 471 (alteration in original)

(quoting Bell v. Martin, 43 N.C. App. 134, 142, 258 S.E.2d 403,

409 (1979), rev’d on other grounds, 299 N.C. 715, 264 S.E.2d 101

(1980)).

In the present case, father failed to notify this Court

that he had filed a Rule 60(b) motion with the trial court and

has not sought remand. Accordingly, the trial court correctly

determined that it lacked jurisdiction to consider father’s

Rule 60(b) motion after notice of appeal had been filed, and we

overrule this issue on appeal. See also Alekman v. Ashley’s

Lawn Care & Landscaping, Inc., 185 N.C. App. 158, slip op. at 11

(2007) (unpublished) (“Here, plaintiffs filed a notice of appeal

. . ., yet plaintiffs failed to notify this Court of their

Rule 60(b) motion . . . . Thus, the trial court had no

jurisdiction to hear a Rule 60(b) motion after notice of appeal

has been filed. Plaintiffs failed to properly notice their

Rule 60 motion for hearing. This assignment of error is

overruled.” (citations omitted)).

Because father’s remaining issue on appeal concerns an -15- argument that was not presented to the trial court for

consideration during the proceedings, we decline to consider it

for the first time on appeal.

Affirmed.

Judges McGEE and CALABRIA concur.

Report per Rule 30(e).