Wellons v. White

748 S.E.2d 709, 229 N.C. App. 164, 2013 WL 4441654, 2013 N.C. App. LEXIS 884
CourtCourt of Appeals of North Carolina
DecidedAugust 20, 2013
DocketNo. COA 12-1205
StatusPublished
Cited by22 cases

This text of 748 S.E.2d 709 (Wellons v. White) 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
Wellons v. White, 748 S.E.2d 709, 229 N.C. App. 164, 2013 WL 4441654, 2013 N.C. App. LEXIS 884 (N.C. Ct. App. 2013).

Opinion

HUNTER, JR., Robert N., Judge.

[165]*165William Zachary White (“Mr. White”) appeals a trial court order: (i) denying his motion to dismiss; (ii) holding him in civil contempt; (iii) granting grandparent visitation; and (iv) rejecting his constitutional challenge. Upon review, we affirm in part, dismiss in part, and reverse as to contempt.

I. Facts & Procedural History

On 24 July 2003, Mr. White and Frances Leanne Wellons (“Ms. Wellons”) married. Mr. White served as a Marine Corps Lance Corporal. On 4 April 2005, the couple had a son (“the child”). Given Mr. White’s active military service, the child lived with Ms. Wellons in Alamance County immediately after his birth. In June 2005, Ms. Wellons and the child moved to New Hanover County to live with Ms. Wellons’ parents, John Wellons and Bobbie Wellons (the “Grandparents”).1

On 13 December 2005, Mr. White and Ms. Wellons divorced. Mr. White’s mother acted as his attorney-in-fact for the divorce proceedings because Mr. White was serving in Iraq. After the divorce, the child continued to live with Ms. Wellons at the Grandparents’ New Hanover County home.

A. 4 April 2006 Child Custody Order

On 27 January 2006, Ms. Wellons filed a complaint against Mr. White in New Hanover County District Court seeking sole custody and child support. The complaint noted that Mr. White still served in Iraq. A few weeks after Ms. Wellons filed the complaint, Mr. White returned to the United States and lived at the barracks of Camp Lejeune in Jacksonville.

On 4 April 2006, the district court entered an order granting Ms. Wellons and Mr. White “joint legal custody of the minor child.” Since Mr. White still lived in the Marine Corps barracks, the district court determined he had no “suitable residence to have visits with the child overnight.”2 Therefore, the district court gave Ms. Wellons primary custody. Because Mr. White planned to leave the Marine Corps in December 2006, the district court allowed Mr. White to gain increased custody when he “has set up a residence suitable to care for the minor child.” The district court also ordered Mr. White to pay $820 per month in child support. Lastly, the district court determined the order resolved all pending [166]*166issues between the parties. After this order, the child continued to live with Ms. Wellons at the Grandparents’ home in New Hanover County.

B. 30 November 2006 Temporary Child Custody Order

On 3 August 2006, the Grandparents filed a motion to intervene, seeking “temporary custody of the minor child.” See N.C. Gen. Stat. § 50-13.1(a) (2011) (“Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child.”).

The Grandparents first argued they already had defacto custody of the child because he had resided at their home since June 2005. The Grandparents further contended “neither [Ms. Wellons] nor [Mr. White] are fit and proper persons to have the primary care of the minor child.” Specifically, they alleged: (i) Ms. Wellons was currently receiving inpatient treatment for mental illness; (ii) Mr. White “ha[d] not yet exercised visitation alone with the minor child without the aid or assistance of either his mother or girlfriend since the entry of the April 2006 Custody Order;” (iii) Mr. White cannot provide a “stable home environment” for the child; and (iv) Mr. White willfully withheld custody from Ms. Wellons.

On 9 August 2006, Mr. White moved to dismiss the Grandparents’ motion because they failed to allege sufficient facts supporting their claim. See N.C. R. Civ. P. 12(b)(6). Mr. White also argued he never acted inconsistently with his constitutionally-protected parental status.

Although a hearing was held in August 2006, the district court did not enter a written temporary child custody order until 30 November 2006. The order stated the Grandparents “have been allowed to intervene in this action pursuant to Rule 24 of the North Carolina Rules of Civil Procedure.”3

The order also granted Mr. White primary custody and suspended his monthly child support payments. Still, it granted Ms. Wellons visitation every other weekend at the Grandparents’ New Hanover County home. The order elaborated that if Ms. Wellons did not exercise weekend visitation, the Grandparents could still exercise visitation every other weekend at their home. The order required Mr. White, Ms. Wellons, and the Grandparents to select an exchange “point equidistant between the residences of the parties.”

[167]*167After this order, the child first lived with Mr. White and his new girlfriend Christina Ross (“Ms. Ross”) in Jacksonville.4 The record does not indicate whether Mr. White still lived in the Marine Corps barracks at this time. Mr. White left the Marine Corps on 9 December 2006 and moved to Greensboro with Ms. Ross and the child.

C. 15 December 2006 Consent Custody Order

On 14 December 2006, Ms. Wellons filed a motion for emergency custody because the previous orders did not establish a holiday visitation schedule. Ms. Wellons argued that given her animosity with Mr. White’s girlfriend, the parties would not otherwise agree to a holiday schedule.

This hostility arose from an incident on 10 December 2006. Ms. Wellons still lived with her parents and exercised visitation at the Grandparents’ home. On 10 December 2006, Mr. White sent Ms. Ross to pick up the child at a scheduled custody exchange. Ms. Wellons arrived late to the exchange because the child had napped longer than expected.5 When Ms. Wellons got to the exchange place, Ms. Ross yelled at Ms. Wellons for her tardiness. The conflict escalated, and Ms. Wellons asked a gas station attendant to call 911.

On 15 December 2006, the district court granted Ms. Wellons and the Grandparents extended holiday visitation. The district court also required Ms. Ross not to attend any more custody exchanges. Finally, the district court again retained ongoing jurisdiction over the case.

D. 28 December 2007 Child Custody Order

On 6 March 2007, Mr. White filed a motion in the cause and a showing of changed circumstances seeking sole custody and child support from Ms. Wellons.6 See N.C. Gen. Stat. § 5043.7(a) (2011). On 21 May 2007, Ms. Wellons filed a reply asking the court to: (i) dismiss and deny Mr. White’s request; (ii) return primary custody to her; (iii) reinstate Mr. White’s child support obligations; and (iv) grant her attorneys’ fees. The matter came [168]*168on for hearing during the 13 September, 14 September, and 2 November 2007 Family Court Sessions of New Hanover County District Court. On 28 December 2007, the district court issued a custody order superseding all previous orders. The order made the following factual findings.

Since the 30 November 2006 order, Ms. Wellons had lived at her parents’ home in New Hanover County. She did not pay rent or utilities. For 26 days from 12 July 2006 to 7 August 2006, Ms. Wellons was involuntarily committed by her parents for mental illness at The Oaks at New Hanover Regional Medical Center.

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Cite This Page — Counsel Stack

Bluebook (online)
748 S.E.2d 709, 229 N.C. App. 164, 2013 WL 4441654, 2013 N.C. App. LEXIS 884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wellons-v-white-ncctapp-2013.