An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-852 NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
ELIZABETH TRICEBOCK, Plaintiff,
v. Mecklenburg County No. 11 CVD 1704 DIEZEL KRENTZ, Defendant.
Appeal by defendant from order entered 11 February 2013 by
Judge Gary L. Henderson in Mecklenburg County District Court.
Heard in the Court of Appeals 8 January 2014.
No brief filed on behalf of plaintiff-appellee.
Arnold & Smith, PLLC, by Matthew R. Arnold, for defendant- appellant.
GEER, Judge.
Defendant Diezel Krentz appeals from the trial court's
order awarding primary physical custody of his son to the
child's mother, plaintiff Elizabeth Tricebock, and denying
defendant's request for attorney's fees. With respect to
custody, we hold that the trial court's findings of fact are
supported by substantial evidence and that the findings, in -2- turn, support the trial court's conclusion that the child's best
interests are served by awarding primary physical custody to
plaintiff. We further hold, however, that the trial court
failed to make sufficient findings of fact to support its denial
of defendant's request for attorney's fees, and we accordingly
reverse the denial of attorney's fees and remand for further
findings of fact.
Facts
Plaintiff and defendant never married, but they dated for
several months and are the parents of a minor son born on 23
February 2009. The child has been in plaintiff's primary
physical custody since birth. Plaintiff filed a complaint for
custody on 26 January 2011, and on 7 March 2011, defendant filed
an answer, counterclaims for custody, modification of child
support, and attorney's fees. Defendant also made motions for
court-ordered drug testing, appointment of a guardian ad litem
("GAL") and custody advocate, and a temporary parenting
agreement.
The trial court entered a "Consent Temporary Parenting
Arrangement Order" on 26 April 2011 that, based on the consent
of the parties, awarded plaintiff primary physical custody,
awarded defendant "parenting time" "every week from Wednesday at
7:00 p.m. until Saturday at 7:00 p.m.," set custodial schedules -3- for holidays, and allowed both parties rights to access
information regarding and to participate in the child's
schooling, daycare, and medical treatment. Shortly after entry
of the April 2011 order, the parties consented to a modification
of the custody arrangement such that each parent had the child
for an entire weekend on a bi-weekly schedule, with defendant
still averaging a total of three nights per week with the child.
The trial court appointed two GALs and a custody advocate in an
order entered 7 June 2011.
Following a 9 January 2013 hearing, the trial court entered
an order for permanent child custody and attorney's fees on 11
February 2013. In its order, the court found that while
plaintiff had made bad decisions while pregnant with the child,
she had matured, no longer used illegal drugs, was steadily
employed, and lived with her serious boyfriend, Peter Figueroa,
who was a very positive influence on her. The court further
found that defendant's allegations of plaintiff's abuse and
neglect of the child, based on injuries the child received while
in plaintiff's care, were unfounded.
The court found that defendant had been married for over a
year but, given his wife's extended absence from the marital
home and defendant's "speculative" testimony regarding the state
of his marriage, the court was uncertain of the stability of -4- defendant's home environment. The court additionally questioned
defendant's financial stability given that his business had not
yet become profitable and defendant relied upon his parents to
meet his expenses. The court determined that both parents could
provide a suitable home for the child and were fit and proper to
have custody, but since it was in the child's best interests to
award primary physical custody to one party, the court awarded
primary custody to plaintiff. The court's custody determination
was based, in part, on the fact that the parties had previously
consented to plaintiff having primary physical custody.
In reaching its determination, the trial court disagreed
with the recommendation of the GALs, which the court found to be
based in part on defendant's "unsubstantiated" claims of
plaintiff's abuse and neglect of the child. The court further
awarded the parties joint legal custody, and ordered that
defendant have bi-weekly weekend visitation except in the
summer, when the parties were ordered to follow an alternating
two-week custodial schedule. The trial court denied defendant's
request for attorney's fees. Defendant timely appealed to this
Court.
Discussion
Defendant contends that the trial court erred in awarding
primary physical custody of the child to plaintiff. Our review -5- of the custody order in this case requires an inquiry into
whether the February 2013 order is an initial permanent custody
order or an order modifying a permanent custody order. This
inquiry, in turn, requires us to determine whether the April
2011 consent order was a permanent order or a temporary order.
"Custody orders may either be 'temporary' or 'permanent.'"
Woodring v. Woodring, ___ N.C. App. ___, ___, 745 S.E.2d 13, 17
(2013). A trial court's determination that a custody order is
temporary or permanent is "neither dispositive nor binding on an
appellate court." Id. at ___, 745 S.E.2d at 18. "Instead,
whether an order is temporary or permanent in nature is a
question of law, reviewed on appeal de novo." Smith v. Barbour,
195 N.C. App. 244, 249, 671 S.E.2d 578, 582 (2009).
"'A temporary order is not designed to remain in effect for
extensive periods of time or indefinitely . . . .'" Miller v.
Miller, 201 N.C. App. 577, 579, 686 S.E.2d 909, 911 (2009)
(quoting LaValley v. LaValley, 151 N.C. App. 290, 293 n.5, 564
S.E.2d 913, 915 n.5 (2002)). The purpose of a temporary order
is to "resolve the issue of a party's right to custody pending
the resolution of a claim for permanent custody." Brewer v.
Brewer, 139 N.C. App. 222, 228, 533 S.E.2d 541, 546 (2000).
"'[A]n order is temporary if either (1) it is entered without
prejudice to either party[;] (2) it states a clear and specific -6- reconvening time in the order and the time interval between the
two hearings was reasonably brief; or (3) the order does not
determine all the issues.'" Woodring, ___ N.C. App. at ___, 745
S.E.2d at 18 (quoting Peters v. Pennington, 210 N.C. App. 1, 13–
14, 707 S.E.2d 724, 734 (2011)).
Here, the April 2011 consent order is styled a "Consent
Temporary Parenting Arrangement Order." The order does not
state that it is entered without prejudice to the parties.
Although the order provides that it "shall be temporary in
nature" and "shall remain in effect until further order of the
Court," there is no date provided in the order for reconvening
the trial court. Accordingly, the order does not state "'a
clear and specific reconvening time.'" Id. at ___, 745 S.E.2d
at 18 (quoting Peters, 210 N.C. App. at 13–14, 707 S.E.2d at
734).
With respect to custody, the order awards primary physical
custody of the child to plaintiff and provides defendant with
ongoing visitation. However, the order makes no express
provision for legal custody. The order does not, therefore,
"'determine all the issues' by setting an ongoing visitation
schedule and determining primary and legal custody." Id. at
___, 745 S.E.2d at 19 (emphasis added) (quoting Peters, 210 N.C.
App. at 14, 707 S.E.2d at 734)). Since the order did not -7- resolve all legal custody issues, it was a temporary order when
entered.
"Temporary orders may, however, become permanent by
operation of time." Id. at ___, 745 S.E.2d at 18. "[W]here
neither party sets the matter for a hearing within a reasonable
time, the 'temporary' order is converted into a final order."
Senner v. Senner, 161 N.C. App. 78, 81, 587 S.E.2d 675, 677
(2003). This determination is made on a case-by-case basis.
Id.
In Woodring, this Court found that a custody order was
temporary since it did not address ongoing visitation and did
not explicitly address legal custody. ___ N.C. App. at ___, 745
S.E.2d at 18. The record showed that the permanent custody
hearing was set in "less than twelve months" from the entry of
the relevant temporary order. Id. at ___, 745 S.E.2d at 19.
The record further demonstrated that "the parties were before
the court at least three times in the intervening period between
the entry of the temporary order and the scheduled permanent
custody hearing." Id. at ___, 745 S.E.2d at 19. On those
facts, this Court held that the hearing was set within a
reasonable time and the temporary order did not convert into a
final order. Id. at ___, 745 S.E.2d at 19. -8- In this case, the trial court's 11 February 2013 permanent
custody order indicates that "[s]hortly after" entry of the
April 2011 temporary order, the parties agreed to modify the
visitation provisions of the temporary order so that each parent
had the child for a full weekend on a bi-weekly basis, and that
the parties maintained that schedule until the permanent custody
hearing. At the hearing, plaintiff testified that the
consensual modification to custody occurred in May or June 2011.
The trial court entered an order appointing GALs in this
case on 7 June 2011. After that order, the next filings in this
case included in the record are a 29 March 2012 filing by
plaintiff's counsel noting that counsel was appearing as counsel
of record, a 20 April 2012 motion for an order to appear and
show cause for civil contempt filed by defendant alleging
plaintiff violated the terms of the April 2011 consent order by
moving in with her boyfriend, and a 20 April 2012 order for
plaintiff to appear at a hearing on 2 May 2012 and show cause
why she should not be held in contempt based on defendant's
motion. There are no further orders on the show cause motion
and no indication in the record how that matter was resolved.
Other than those filings, there is nothing else indicating the
status of the case prior to the 9 January 2013 permanent custody
hearing. -9- The record does not indicate when one or both of the
parties requested that a permanent custody hearing be set. The
significant date for our determination is the date the hearing
was set, rather than the date of the hearing itself, since,
given "the crowded court calendars in many of the counties of
this State," "[a] party should not lose the benefit of a
temporary order if she is making every effort to have the case
tried but cannot get it heard because of the case backlog."
LaValley, 151 N.C. App. at 293 n.5, 564 S.E.2d at 915 n.5.
However, given the record before us, we know only that the
hearing was set at some point between the 26 April 2011 order
and the 13 January 2013 hearing, a period of between 20 and 21
months.
Although the length of time until the hearing was set may
have been longer here than in Woodring, we find Woodring
controlling given the activity of the parties in the interim,
the fact that the temporary order left issues unresolved, and
the fact that the record does not reveal the actual date on
which the hearing was set. With respect to the latter issue, it
is important that the trial court treated the April 2011 order
as a temporary order -- in both the April 2011 order and the
February 2013 order -- and "'[a]n appellate court is not
required to, and should not, assume error by the trial judge -10- when none appears on the record.'" Pharr v. Worley, 125 N.C.
App. 136, 139, 479 S.E.2d 32, 34 (1997) (quoting State v.
Williams, 274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968)).
We, therefore, conclude that the April 2011 order was a
temporary order when entered and that it was not converted into
a permanent order by the parties' failure to set a hearing
within a reasonable amount of time. See also Senner, 161 N.C.
App. at 81, 587 S.E.2d at 677 (holding delay of 20 months
reasonable and did not convert temporary order into permanent
order when parties were engaged in negotiations for a new
custody arrangement, those negotiations later broke down, and
one party then sought modification of temporary custody order).
In our review of the trial court's custody order, the
findings of fact are conclusive on appeal if there is
substantial evidence to support them, even if other evidence
might sustain findings to the contrary. Everette v. Collins,
176 N.C. App. 168, 170, 625 S.E.2d 796, 798 (2006). We review
the trial court's conclusions of law to determine if they are
supported by its findings of fact. Id. at 171, 625 S.E.2d at
798. We will not upset the trial court's decision with respect
to custody absent an abuse of discretion. Id. Since the April
2011 order was a temporary order, the applicable standard of
review for proposed "modifications" to that order in the court's -11- February 2013 order is the "'best interest of the child.'"
Simmons v. Arriola, 160 N.C. App. 671, 674, 586 S.E.2d 809, 811
(2003).
Defendant argues that the trial court abused its discretion
in determining that "[i]t is in the best interest of the minor
child to remain in [plaintiff's] primary physical custody, with
[defendant] having visitation as set forth" in the order. In
support of its determination, the trial court found that
plaintiff "has made some bad decisions in the past when she was
pregnant with the minor child, but she has shown great progress
in maturing and settling into her role as a mother"; that
plaintiff had not used cocaine for ten years, had not used
marijuana for two years, and had passed a court-ordered drug
test; that plaintiff has stable employment; that plaintiff lives
with her boyfriend, Mr. Figueroa, who has children himself and
who "appears to be very credible and a positive influence" on
plaintiff, and that their relationship is "far beyond mere
convenience or casual"; that although defendant testified to
several incidents involving injury to the child that defendant
characterized as abuse and neglect, "there was not any credible
evidence of abuse and neglect against [plaintiff], and
[defendant] offered no testimony or evidence from [the -12- Department of Social Services ("DSS")] to substantiate any
claims of abuse and neglect."
With respect to defendant, the trial court found it was
"uncertain of the stability of [defendant's] home environment
and the nature of his estranged wife's relationship with the
child" because defendant's wife had not been in his home for
about four months, defendant had moved to a new condo without
input from her, defendant's wife was not at the hearing and was
not pictured in any photographs presented by defendant of him
and the child, and defendant provided only "speculative
testimony regarding the state of his marriage." The court also
found that although defendant consistently paid child support,
received Social Security disability benefits and owned an
automotive garage, his business had not yet shown a profit and
defendant relied upon financial assistance from his parents to
pay his expenses, causing the court to "question the financial
stability of [defendant's] household." On the other hand, the
court found defendant "is a very positive role model in the
child's life and enjoys spending time with the minor child and
involving him in diverse and positive activities."
The court further found that both plaintiff and defendant
can provide a suitable home for the minor child; that both
parties seem to have a good loving relationship with the child; -13- that both parties "are fit and proper to exercise the care,
custody, and control over the minor child" as set out in the
order; and that "[i]f the parties lived closer together, th[e]
Court would have strongly considered a joint physical custody
schedule since the child appears to be cared for equally well at
either household." However, the court found, with the parties
living about an hour apart in travel time, and with the child
turning four soon and entering preschool in the upcoming fall,
"it appear[ed] necessary to decide between one of the households
for primary physical custody." Ultimately, since the parties
had already agreed to a consent order that placed primary
physical custody with plaintiff, the court found "no evidence
that rises to the level where the primary living arrangement
previously agreed upon by the parties should be disturbed."
Defendant, however, argues that the trial court abused its
discretion in its best interests determination since evidence
showed that plaintiff did not allow defendant to take the child
from her home for several months prior to entry of the April
2011 consent order, but did offer defendant visitation within
her home. It is true that a custodial parent's interference
with the visitation rights of one parent can be a factor in the
trial court's determination of the child's best interests.
Hicks v. Alford, 156 N.C. App. 384, 390, 576 S.E.2d 410, 414 -14- (2003) ("Where interference by one parent with the visitation
privileges of the other parent 'becomes so pervasive as to harm
the child's close relationship with the noncustodial parent,
there can be a conclusion drawn that the actions of the
custodial parent show a disregard for the best interests of the
child, warranting a change of custody.'" (quoting Woncik v.
Woncik, 82 N.C. App. 244, 248, 346 S.E.2d 277, 279 (1986))).
However, here, the trial court found that since entry of
the April 2011 consent order, plaintiff had allowed defendant
regular weekly visitation, pursuant to the order, for an average
of three nights a week. Given its findings, the decision
regarding the weight to be given evidence that plaintiff had
denied visitation outside of plaintiff's home for several months
prior to entry of the April 2011 order was within the court's
discretion.
Defendant also contends that the trial court abused its
discretion in awarding plaintiff primary physical custody
because, at the time of the hearing, plaintiff had been living
with Mr. Figueroa for almost a year in violation of the April
2011 consent order. While the court acknowledged that
plaintiff's living arrangement violated the order, it
nonetheless was "encouraged" by evidence that plaintiff's
relationship was "far beyond mere convenience or casual" and -15- that Mr. Figueroa was "very credible and a positive influence"
on plaintiff. Indeed, the court found, defendant's own
testimony "praised Mr. Figueroa's involvement with [plaintiff]
and the minor child, and [defendant] testified that he was
'thankful' for Mr. Figueroa's involvement with the minor child
and his positive influence in the minor child's life." Finally,
the court found that Mr. Figueroa pays child support for his own
children, is actively involved in their lives, and visits them
with "regular bi-weekly weekend visitation." Since Mr. Figueroa
was found by the court to be a positive influence on both
plaintiff and the child, we cannot conclude that the court
abused its discretion in awarding plaintiff custody of the child
in light of her violation of the prior court order by living
with Mr. Figueroa.
Defendant additionally argues that the trial court's
findings as to his relationship with his wife were irrelevant to
its best interests determination since the court found that
defendant could provide a suitable home and was a positive role
model for the child. In making its custody determination,
"'[t]he trial court must make a comparison between the two
applicants considering all factors that indicate which of the
two is best-fitted to give the child the home-life, care, and
supervision that will be most conducive to its well-being.'" -16- O'Connor v. Zelinske, 193 N.C. App. 683, 690-91, 668 S.E.2d 615,
619 (2008) (emphasis added) (quoting Evans v. Evans, 138 N.C.
App. 135, 142, 530 S.E.2d 576, 580 (2000)). Since the stability
of defendant's marriage and the nature of his wife's
relationship with the child is a factor affecting the well-being
of the child in defendant's home, the trial court properly
considered evidence regarding those matters.
We conclude that it was not unreasonable for the trial
court, upon finding that both parents have a good, loving
relationship with the child and can provide a suitable home for
the child, to determine that plaintiff should have primary
physical custody given the distance between the parties' homes
necessitating one parent to have primary physical custody and
the court's questions about the stability of defendant's home
environment and his financial status. This is particularly true
given the court's further reliance on the fact that the parties
had previously agreed for plaintiff to have primary physical
custody. See Dixon v. Gordon, ___ N.C. App. ___, ___, 734
S.E.2d 299, 303 (2012) (explaining that trial courts may
"consult" temporary parenting agreements in determining the best
interests of the child for custody determinations), disc. review
denied, 366 N.C. 604, 743 S.E.2d 191 (2013). Furthermore, that
the court disagreed with the children's GALs as to what -17- custodial arrangement was in the child's best interest does not
show an abuse of discretion in this case, especially since the
court found that the GALs' recommendation was based in part on
"unsubstantiated claims of abuse and neglect." Cf. In re
J.N.S., A.L.M., J.N.S., T.A.S., 207 N.C. App. 670, 679, 704
S.E.2d 511, 517 (2010) (explaining that, in dispositional phase
of abuse, neglect, and dependency proceeding, a trial court may
consider reports by GAL but may not broadly incorporate the
reports as court's findings of fact since court must
independently make findings).
Defendant also argues that the trial court erred in finding
as fact that although defendant testified to several incidents
involving injury to the child that defendant characterized as
abuse and neglect, "there was not any credible evidence of abuse
and neglect against [plaintiff], and [defendant] offered no
testimony or evidence from DSS to substantiate any claims of
abuse and neglect." Plaintiff's testimony denied the existence
of or provided harmless explanations for the instances of abuse
and neglect alleged by defendant. The trial court simply
believed plaintiff's testimony over defendant's evidence, and we
may not revisit that credibility determination. See Phelps v.
Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994) (observing,
in custody case, "it is within the trial court's discretion to -18- determine the weight and credibility that should be given to all
evidence that is presented").
Further, defendant's argument that defendant's allegations
were substantiated by defendant's testimony, an affidavit by
defendant's wife, and the recommendation of the GALs fails to
recognize that the trial court found that the allegations were
not substantiated by "testimony or evidence from DSS."
Defendant points to no evidence from DSS substantiating his
claims of abuse and neglect, and we have found none. The trial
court's finding is, therefore, supported by the evidence.
Defendant next challenges the trial court's finding of fact
that "a key basis for [the GALs'] recommendation were [sic]
unsubstantiated claims of abuse and neglect -- the majority of
which occurred prior to entry of" the April 2011 consent order.
First, defendant argues that the court erred in finding the
allegations of abuse and neglect were "a key basis" for the
GALs' recommendation since, in their closing argument, the GALs
stated that even without those allegations and the evidence
supporting them, their "recommendation would still be the same."
However, the GALs went on to argue to the court that the
allegations of abuse and neglect and the evidence supporting
them "amplif[ied]" their recommendation, and they discussed the
alleged abuse and neglect for a substantial portion of their -19- closing argument. Under these circumstances, the trial court
could properly infer that the allegations did, in fact, provide
a "key basis" for the GALs' recommendation.
Second, defendant argues that the trial court erred in
finding that the majority of the instances of alleged abuse and
neglect occurred prior to entry of the April 2011 consent order.
Although the evidence tended to show that the alleged instances
of abuse and neglect involving a scab on the child's forehead
and two black eyes occurred after entry of the April 2011 order,
defendant testified to numerous, weekly instances of severe
diaper rash, with one being so severe he reported it to DSS,
each occurring prior to entry of the order. Defendant's own
testimony, therefore, supported the court's finding that the
majority of instances of alleged abuse and neglect occurred
prior to entry of the April 2011 order.
Defendant also challenges the trial court's finding that
plaintiff "has made some bad decisions in the past when she was
pregnant with the minor child, but she has shown great progress
in maturing and settling into her role as a mother." This
finding is supported by plaintiff's testimony that although she
once smoked marijuana while pregnant with the child, she had not
used marijuana for two years and makes her child her priority.
Plaintiff's pastor similarly testified that plaintiff -20- "demonstrated impressive growth and maturity" in the two years
preceding the hearing. Although defendant points to other
evidence of plaintiff's drug or alcohol use and contends
plaintiff's testimony was "simply not credible," the trial
court's finding was supported by substantial evidence, and we
will not reweigh witness credibility.
Defendant further contests the trial court's finding that
plaintiff "can provide a suitable home for the minor child."
Plaintiff's pastor testified that he visited the home plaintiff
shared with her parents prior to February 2012 and found it to
be "[n]eat and clean and appropriate." Plaintiff also presented
photographs of her new home with Mr. Figueroa that supported the
trial court's finding that it was suitable.
Defendant nonetheless points to evidence that plaintiff's
home was dirty and without running water at times and that
because of rot around a back door, the home could not be locked.
Defendant further relies upon testimony that plaintiff once
asked defendant to take the child because the father of
plaintiff's other child had attacked plaintiff and vandalized
her home. We note that the evidence relied upon by defendant
all pertains to plaintiff's old home. In any event, whether
plaintiff's evidence regarding her living situation was more -21- credible than defendant's evidence was a question solely for the
trial court.
Defendant next challenges the trial court's concerns
regarding defendant's financial stability. Defendant does not,
however, challenge the court's findings that although defendant
had consistently paid child support, received Social Security
disability, and owned a business, his business had not yet shown
a profit and defendant relied upon financial assistance from his
parents to meet his expenses. Based on these uncontested
findings, the trial court could reasonably question defendant's
financial stability. Since the findings are not contested, we
will not reweigh evidence of defendant's financial status on
appeal.
In sum, we hold the trial court's determination that it was
in the child's best interests for plaintiff to have primary
physical custody was supported by the trial court's findings of
fact which, in turn, were supported by substantial evidence. We
further hold that the trial court did not abuse its discretion
in concluding that the child's best interests were served by
awarding primary physical custody to plaintiff.
Finally, defendant argues that the trial court failed to
make sufficient findings of fact to support its order denying
defendant's request for attorney's fees. N.C. Gen. Stat. § 50- -22- 13.6 (2013) provides in relevant part: "In an action or
proceeding for the custody or support, or both, of a minor
child, including a motion in the cause for the modification or
revocation of an existing order for custody or support, or both,
the court may in its discretion order payment of reasonable
attorney's fees to an interested party acting in good faith who
has insufficient means to defray the expense of the suit."
This Court has previously explained that when "an award of
attorney's fees is prayed for, but denied, the trial court must
provide adequate findings of fact for this Court to review its
decision." Gowing v. Gowing, 111 N.C. App. 613, 620, 432 S.E.2d
911, 915 (1993). Here, the trial court's only finding with
respect to attorney's fees states: "[Defendant's] claim for
attorney's fees should be denied." We cannot, based on this
conclusory finding, properly review the trial court's decision
to deny attorney's fees. See Spicer v. Spicer, 168 N.C. App.
283, 287, 607 S.E.2d 678, 682 (2005) (holding that even with
respect to discretionary decisions, the trial court must "make
sufficient findings of fact and conclusions of law to allow the
reviewing court to determine whether a judgment, and the legal
conclusions that underlie it, represent a correct application of
the law"). We, therefore, reverse the denial of defendant's -23- motion for attorney's fees and remand for further findings of
fact.
Affirmed in part; reversed and remanded in part.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).