Peeler v. Joseph

823 S.E.2d 155, 263 N.C. App. 198
CourtCourt of Appeals of North Carolina
DecidedDecember 18, 2018
DocketCOA18-488
StatusPublished
Cited by3 cases

This text of 823 S.E.2d 155 (Peeler v. Joseph) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peeler v. Joseph, 823 S.E.2d 155, 263 N.C. App. 198 (N.C. Ct. App. 2018).

Opinions

ARROWOOD, Judge.

*199Angela E. Joseph ("defendant") appeals from an order modifying custody of minor child ("J.J.") and granting sole legal and primary physical custody to Dexter D. Peeler ("plaintiff"). For the reasons stated herein, we affirm.

I. Background

Plaintiff and defendant engaged in a relationship that resulted in the birth of one minor child in April 2010. Plaintiff filed an action for custody of the minor child, J.J., on 9 December 2011. The matter came on for trial before the Honorable Charlotte Brown on 14 and 17 September 2012. Thereafter, the trial court entered a permanent custody order on 14 May 2013, which granted the parties joint legal custody, and awarded defendant primary physical custody.

Plaintiff filed a Rule 35 motion on 30 August 2013. The motion alleged J.J. had been diagnosed with chronic constipation, external hemorrhoid, and fecal impaction. It further alleged that due to defendant's "history of mistrust and/or disdain for [plaintiff] ... the parties are generally unable to be on one (1) accord as it relates to the care and treatment of the minor child." Plaintiffs' motions were heard before the Honorable Charlotte Brown on 22 November 2013. A hand-written order modifying custody was filed on 22 November 2013 and an identical typed order was filed 7 February 2014. Both orders ordered the parties to share physical custody on an alternating two week schedule, vested plaintiff with the right to make decisions regarding education, and vested defendant with the right to make decisions regarding health.

*200On 24 October 2016, plaintiff filed a Rule 35 and Rule 706 motion to request the trial court appoint an expert "to conduct an evaluation and/or oral challenge" of J.J., due to the parties' inability to "agree upon the appropriate medical care" of the minor child due to the parties' "impassable deadlock on whether the minor child has a dairy intolerance and/or food allergy." On 28 October 2016, plaintiff filed a motion to modify custody, alleging changed circumstances, including that the minor child had allergies, eczema, and hives and bumps, and again alleging the parties have reached a deadlock on whether the minor child has a dairy intolerance and/or food allergy. Defendant denied the allergies existed, even though a blood test taken since the 22 November 2013 and 7 February 2014 orders indicated the minor child has a milk allergy.

*158Plaintiff's motions were heard on 10 January 2017. The trial court appointed Dr. Akiba Green, D.C. ("Dr. Green") as the court's expert and ordered that he evaluate J.J. and "determine the existence of any and all food allergies and/or intolerances including, but not limited to, any and all delayed food allergies." Dr. Green evaluated J.J. and found J.J. "is allergic to cow's milk, egg white and wheat" and "has delayed reactions to dairy, gluten, tapioca, teff, and quinoa." Despite Dr. Green's findings, defendant continued to deny J.J.'s allergies exist.

On 3 November 2017, the trial court entered an order granting plaintiff's motion to modify custody and awarding plaintiff sole legal and primary physical custody of J.J., with defendant allowed visitation every other weekend, from Thursday after the child is released from school, afterschool and/or summer camp until Monday morning when school and/or summer camp resumes, and shared holiday visitation.

Defendant appeals.

II. Discussion

Defendant raises four arguments on appeal: (1) whether the trial court erred by concluding a substantial change in circumstances affecting the welfare of the child occurred since the entry of the 22 November 2013 and 21 February 2014 orders; (2) whether the trial court erred in finding defendant is in "absolute denial" of the minor child's medical problems; (3) whether the trial court erred by failing to admit a letter from a certified pediatric nurse practitioner into evidence; and (4) whether the trial court erred in concluding it is in the minor child's best interest for plaintiff to have sole legal and primary physical custody. We address each argument in turn.

*201A. Substantial Change in Circumstances

Defendant argues the trial court erred by concluding a substantial change in circumstances affecting the welfare of the child occurred since the entry of the 22 November 2013 and 21 February 2014 orders. We disagree.

"A trial court may order the modification of an existing child custody order if the court determines that there has been a substantial change of circumstances affecting the child's welfare and that modification is in the child's best interests." Spoon v. Spoon , 233 N.C. App. 38, 41, 755 S.E.2d 66, 69 (2014) (citation omitted). Our court reviews a trial court's decision to modify an existing custody order for: "(1) whether the trial court's findings of fact are supported by substantial evidence; and (2) whether those findings of fact support its conclusions of law." Id. (citation omitted). "[W]hether changed circumstances exist is a conclusion of law" that we review de novo . Thomas v. Thomas , 233 N.C. App. 736, 739, 757 S.E.2d 375, 379 (2014) (citation omitted).

"The reason behind the often stated requirement that there must be a change of circumstances before a custody decree can be modified is to prevent [r]elitigation of conduct and circumstances that antedate the prior custody order[,]" which "prevents the dissatisfied party from presenting those circumstances to another court in the hopes that different conclusions will be drawn." Newsome v. Newsome , 42 N.C. App. 416, 425, 256 S.E.2d 849, 854 (1979). Accordingly, "courts may only consider events which occurred after the entry of the previous order" when deciding whether a substantial change in circumstances occurred, and information previously disclosed to the court prior to the hearing on the motion to modify custody is res judicata with regard to a substantial change in circumstances determination. Woodring v. Woodring , 227 N.C. App. 638, 646,

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Cite This Page — Counsel Stack

Bluebook (online)
823 S.E.2d 155, 263 N.C. App. 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peeler-v-joseph-ncctapp-2018.