Roberts v. Roberts

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1210
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
LAURA H. ROBERTS (now Huckabee),
Plaintiff

Durham County
v.
No. 09 CVD 0307

JOHN B. ROBERTS,
Defendant

Appeal by defendant from order entered 2 July 2013 by Judge

James T. Hill in Durham County District Court. Heard in the

Court of Appeals 18 February 2014.

Brock & Meece, P.A., by Paul B. Brock, for Plaintiff.

Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for
Defendant.

ERVIN, Judge.

Defendant John B. Roberts appeals from an order denying his

motion for the restoration of his visitation and custody rights

and granting Plaintiff Laura H. Roberts’ motion that Defendant

be held in contempt. On appeal, Defendant argues that the trial

court erred by permanently ending his visitation with his minor

children and by holding him in contempt of court for having

filed an independent civil action in the Orange County Superior
 -2-
Court. After careful consideration of Defendant’s challenges to

the trial court’s order in light of the record and the

applicable law, we conclude that Defendant’s appeal from the

trial court’s contempt decision is not properly before us and

that the trial court’s visitation decision should be affirmed.

I. Factual Background

Plaintiff and Defendant were married on 8 August 1998,

separated on or about 30 December 2008, and were granted an

absolute divorce on 17 February 2010. The parties are the

parents of two minor children, Martin and Wendy.1

On 20 March 2009, Plaintiff filed a complaint in Durham

County District Court asserting, among other things, claims for

custody and support against Defendant. Defendant filed an

answer and counterclaim on 5 May 2009 in which he sought, among

other relief, joint custody of the children. In a memorandum of

judgment filed on 11 May 2009, which was confirmed by a consent

order entered on 20 May 2009, Plaintiff and Defendant were

awarded joint custody of the children on a temporary basis, with

the children to reside with Plaintiff, to spend alternate

weekends with Defendant, to have overnight visits with Defendant

on alternate Wednesdays, and to spend designated vacation

periods with Defendant.
1
“Martin” and “Wendy” are pseudonyms which will be used for
ease of reading and to protect the children’s privacy.
 -3-
On 2 July 2009 and 28 October 2009, respectively, Plaintiff

filed motions to have a psychological evaluation of Defendant

performed and a motion to have Defendant held in contempt and

for temporary custody of the children. On 29 October 2009, an

order appointing Dr. Conrad Fulkerson to evaluate Defendant’s

mental status was entered. After completing his evaluation, Dr.

Fulkerson opined that Defendant suffered from Type I Bipolar

Disorder; that Defendant had a substance abuse disorder that

was, at that time, in remission; and that he had a diagnosable

personality disorder. Although Dr. Fulkerson acknowledged that

an assessment of Defendant’s capacity to co-parent his children

exceeded the scope of his assignment, he believed that

Defendant’s relationship with Plaintiff appeared to be

sufficiently dysfunctional to raise concerns about the

children’s welfare. According to Dr. Fulkerson, “more extensive

treatment, including adequate and very careful monitoring of

medication treatment, would be necessary” given Defendant’s

diagnosis.

On 21 January 2010, a consent order providing that the

parties would continue to have joint legal custody of the

children, with Plaintiff having primary physical custody and

Defendant having the right to visit with the children every

other weekend, overnight or at dinner on alternate Wednesday
 -4-
nights, and during specified vacation periods, was entered. In

addition, the consent order provided that Defendant’s ability to

visit with the children was dependent upon his compliance with

Dr. Fulkerson’s mental health treatment recommendations and a

requirement that Defendant participate in regular psychiatric

treatment and provide Plaintiff with quarterly written

verification that he was in compliance with this requirement.

Finally, the consent order provided that:

Neither party shall discuss with the minor
children the content of the children’s
discussions with [their therapist,] Ms.
[Teresa] McInerney, nor shall either party
instruct the minor children as to what they
should discuss with or tell Ms. McInerney.
Interference with the minor children’s
therapy with Ms. McInerney shall constitute
grounds for modification of this Court’s
order regarding the minor children. Neither
party shall attempt or condone any attempt,
either directly or indirectly, to estrange
either child from the other party, or to
impair the natural love and affection
between the parent and children.

On 19 August 2010, a consent order providing that Defendant’s

treating psychiatrist should send a letter to Plaintiff’s

attorney on a quarterly basis identifying the dates upon which

Defendant attended his mandatory therapy sessions and providing

updated information concerning the progress that Defendant was

making in therapy and the extent of his compliance with random

drug testing was entered.
 -5-
On 28 October 2010, Plaintiff filed a motion seeking to

have Defendant held in contempt, to modify the existing

visitation arrangement, and to restrict Defendant’s access to

the children pending the provision of assurances that Defendant

did not pose a danger to the children, with this request being

predicated on an assertion that Defendant had repeatedly

attempted to interfere with the therapy being provided to the

children and had attempted to intimidate Ms. McInerney. After a

hearing held on 31 January 2011, the trial court entered an

order on 2 February 2011 finding Defendant in contempt based

upon his treatment of Ms. McInerney and his conduct in making

disparaging remarks to the children about Plaintiff. In the 2

February 2011 order, the trial court modified the existing

visitation arrangement by requiring that Defendant’s visitation

with the children be supervised by one or both of his parents.

Defendant’s visitation rights remained contingent upon his

compliance with the requirements set forth in previous orders,

including the requirement that Defendant not make any

disparaging remarks to the children concerning Plaintiff or

interfere with the children’s therapy.

On 17 February 2011, Plaintiff filed a motion seeking the

entry of an emergency order suspending Defendant’s visitation

based upon a letter from his psychiatrist which indicated that
 -6-
Defendant had not received treatment since November 2010. In

addition, Plaintiff alleged that Defendant’s parents had not

been present during Defendant’s visits with the children, that

Defendant had been making allegations against Plaintiff to the

children, that Defendant had been acting in an erratic and

otherwise troublesome manner, and that the children’s best

interests would not be served by allowing them to be in

Defendant’s presence when he was not receiving mental health

treatment. On that same day, Judge Hill entered an ex parte

order suspending Defendant’s visitation pending a hearing to be

held on 28 February 2011.

After the 28 February 2011 hearing, during which Ms.

McInerney provided information to the trial court in chambers,

the trial court entered an order on 1 March 2011 finding as fact

that the children’s best interests would be served by remaining

in therapy with Ms. McInerney and ordering that the relief

granted in the 17 February 2011 ex parte order remain in effect.

After a hearing held on 9 March 2011, the trial court entered an

order finding that Defendant was in contempt based upon his

failure to pay past due child support and certain fees that were

owing for Ms. McInerney’s services and ordering Defendant to

refrain from contacting the minor children “except as authorized

by the children’s therapist, the Plaintiff’s family, . . . or
 -7-
the Plaintiff’s counsel.” On 15 June 2011, the trial court

entered an order providing that Defendant be incarcerated in the

Durham County jail for a period not to exceed 90 days based upon

his failure to comply with the 9 March 2011 order.

On 23 March 2012, Defendant filed a motion seeking to have

the trial court disqualified from further participation in this

case based upon allegations that the trial court was biased

against him. On the same date, Defendant filed a motion seeking

to have his visitation and custody rights restored on the

grounds that he had become compliant with the trial court’s

orders and that the best interests of the children would be

served by resuming visitation.

On 25 April 2012, Plaintiff filed a response to Defendant’s

disqualification motion. After holding a hearing with respect

to the issues raised by Defendant’s disqualification motion on 1

May 2012, Judge Doretta Walker entered an order denying

Defendant’s motion on 3 January 2013.

After Plaintiff filed a response to Defendant’s motion for

the restoration of his visitation rights, a hearing concerning

that subject was held before the trial court on 19 July 2012.

At the hearing, Plaintiff presented the report from Dr.

Fulkerson while Defendant presented the testimony of Dr. Mark

Moffett, who stated that Defendant had been his patient for
 -8-
approximately one year and that, in his opinion, Defendant had

an adjustment disorder with disturbances of mood and anxiety or

depression characteristic of a narcissistic personality

disorder. Dr. Moffett saw no evidence that Defendant was

currently using drugs or abusing alcohol or that Defendant

suffered from a bipolar disorder, although he could not

completely rule out the possibility that Defendant suffered from

such a disorder. Finally, Dr. Moffett testified that, while he

had seen no evidence that Defendant posed a danger to his

children, he could not formulate an opinion concerning the

extent to which Defendant could safely be in his children’s

presence and that long term psychotherapy would be Defendant’s

optimal treatment option.

At the 19 June 2012 hearing, Defendant testified that his

communications with his children had been limited to phone calls

initiated by his children and monitored by Plaintiff, that he

wanted to visit with the children, and that, as far as he knew,

the children wanted to visit with him. Defendant denied that he

currently used alcohol to excess and claimed that he had never

physically harmed the children or abused them in any way. At

the conclusion of Defendant’s testimony, Plaintiff moved to

dismiss Defendant’s motion for insufficiency of the evidence to

support an award of the relief that Defendant had requested.
 -9-
On 16 August 2012, the trial court entered an order

granting Plaintiff’s motion to dismiss Defendant’s motion. In

its order, the trial court found as fact that Defendant had

failed to remain in regular treatment with a psychiatrist on an

ongoing basis given that he not seen his psychiatrist since

March 2012; that Defendant had failed to submit to random drug

testing under psychiatric supervision; and that Defendant had

failed to verify in writing that he was actively involved in,

and compliant with, the required psychiatric treatment.

On 7 February 2013, Defendant filed another motion seeking

the restoration of his custody and visitation rights.

Defendant’s motion was accompanied by seven verifications

relating to the psychiatric treatment that Defendant had

received from Dr. Moffett and evidence that Defendant had

submitted to medically supervised drug tests. In his motion,

Defendant stated that he had been in regular treatment with his

psychiatrist, that he had provided the required written

verification of his active participation in psychiatric

treatment, and that he had been submitting to random drug tests.

According to Defendant, this evidence supported a determination

that there had been a substantial change in circumstances

sufficient to justify restoration of Defendant’s custody and

visitation rights.
 -10-
On 27 March 2013, Plaintiff filed a motion seeking to have

Defendant held in contempt based on allegations that Defendant

had interfered with the children’s therapy by filing a separate

civil action against Ms. McInerney in the Orange County Superior

Court in which he asserted claims for infliction of emotional

distress, conspiracy, and interference with familial rights.

Although the Orange County action against Ms. McInerney was

dismissed, Ms. McInerney had incurred substantial legal fees in

the course of defending herself against Defendant’s claims.

A hearing was held on 1-2 May 2013 for the purpose of

considering Defendant’s motion for the restoration of his

custody and visitation rights and Plaintiff’s motion to have

Defendant held in contempt. At the hearing, Ms. McInerney

testified that Defendant had been instructing the children to

refrain from trusting or talking to her and that Martin was

distressed by false statements that Defendant had made to him.

According to Ms. McInerney, the children were thriving, doing

well academically, and had an appropriate set of friendships and

stated that, in her clinical opinion, the children’s best

interests would be served by leaving the existing visitation

schedule unchanged.

Defendant, on the other hand, testified that he had never

physically harmed the children and that he had tried in every
 -11-
possible way to comply with the trial court’s orders. Defendant

promised to refrain from making negative comments about

Plaintiff in the presence of the children or recording anything

said by the children or any other party. Finally, Defendant

promised to comply with any order that the trial court might

enter in order to ensure that he had the ability to visit with

his children.

With the consent of the parties, the trial court

interviewed Martin in chambers in Ms. McInerney’s presence.

Although Martin expressed love for both of his parents, he

indicated that he did not believe that it would be beneficial

for him to see Defendant. Martin stated that he had nightmares

about Defendant, that Defendant made negative comments about

Plaintiff during their conversations, and that he did not want

to see Defendant.

Similarly, the trial court heard testimony from Ms.

McInerney concerning Defendant’s last communication with Wendy,

which took the form of a phone conversation that Ms. McInerney

monitored. During that conversation, Defendant made negative

statements about Wendy’s school, stated that she was a “bad

reader,” and implied that her alleged academic deficiencies

stemmed from sadness over her inability to see Defendant. As a
 -12-
result of the fact that this phone conversation had been very

upsetting, Wendy had not requested to speak to Defendant again.

On 2 July 2013, the trial court entered an order denying

Defendant’s motion for restoration of his custody and visitation

rights and granting Plaintiff’s contempt motion. Defendant

noted an appeal to this Court from the 2 July 2013 order and

orders that the trial court had previously entered on 16 August

2012, 19 July 2012, and 17 February 2011. On 7 October 2013,

the trial court entered an order dismissing all of Defendant’s

appeals except the one that he had noted from the 2 July 2013

order on the grounds that those appeals been taken in an

untimely manner.

II. Substantive Legal Analysis

A. Request for Certiorari Review of Earlier Orders

As an initial matter, we must consider Defendant’s request

that this Court review his challenges to the 17 February 2011,

19 July 2012, and 16 August 2012 orders utilizing our certiorari

jurisdiction. However, Defendant has not advanced any challenge

to the 19 July 2012 or 16 August 2012 orders in his brief. In

addition, although Defendant alludes to the 17 February 2011, 1

March 2011, and 9 March 2011 orders in his brief, he has not

cited any authority in support of his apparent contention that

he should receive relief from these orders on appeal. Finally,
 -13-
Defendant has failed to offer any explanation for his failure to

note an appeal from any of these orders in a timely manner. As

a result, in spite of the fact that this Court has the

authority, in the exercise of it discretion, to issue a writ of

certiorari where a defendant’s “right to prosecute an appeal has

been lost by failure to take timely action,” N.C. R. App. P.

21(a), we elect to refrain from exercising that authority given

Defendant’s unexplained delay in failing to challenge the

validity of those orders on appeal and his failure to provide

any compelling basis for believing that those orders are

affected by any error of law. As a result, the only order

properly before this Court on appeal is the 2 July 2013 order.

B. Challenges to the 2 July 2013 Order

1. Contempt Decision

In his first challenge to the trial court’s order,

Defendant contends that the trial court erred by holding

Defendant in contempt on the grounds that he filed a separate

civil action against Ms. McInerney in Orange County Superior

Court. More specifically, Defendant argues that the trial court

erred in the course of holding him in contempt given that the

trial court lacked the authority to order him to pay attorney’s

fees in a contempt proceeding, that the underlying order that

Defendant was alleged to have violated was unclear, that the
 -14-
trial court failed to provide Defendant with required procedural

protections, and that sanctioning Defendant for filing a

separate civil action violated his constitutional right to have

access to the courts. Defendant’s appeal from the trial court’s

contempt decision is not properly before us.

Contempt may be either civil or criminal in nature, Watson

v. Watson, 187 N.C. App. 55, 61, 652 S.E.2d 310, 315 (2007),

disc. review denied, 362 N.C. 373, 662 S.E.2d 551 (2008), with

the distinction between criminal and civil contempt having been

described as “hazy at best.” O’Briant v. O’Briant, 313 N.C.

432, 434, 329 S.E.2d 370, 372 (1985). “‘A major factor in

determining whether contempt is criminal or civil is the purpose

for which the power is exercised.’” Watson, 187 N.C. App. at

61, 652 S.E.2d at 315 (quoting Bishop v. Bishop, 90 N.C. App.

499, 503, 369 S.E.2d 106, 108 (1988)). “Criminal contempt is

administered as punishment for acts already committed that have

impeded the administration of justice in some way[,]” Brower v.

Brower, 70 N.C. App. 131, 133, 318 S.E.2d 542, 544 (1984), while

the purpose of civil contempt is to coerce compliance with a

court order. Scott v. Scott, 157 N.C. App. 382, 393, 579 S.E.2d

431, 438 (2003). In the event that “a party may avoid the

contempt sentence or fine by performing the acts required in the

court order, the contempt is best characterized as civil.”
 -15-
Watson, 187 N.C. App. at 61, 652 S.E.2d at 315. While civil

contempt orders entered in the District Court are properly

appealed from the District Court to this Court, criminal

contempt orders entered in the District Court are properly

appealed from the District Court to the Superior Court. N.C.

Gen. Stat. § 5A-17; N.C. Gen. Stat. § 5A-24; Hancock v. Hancock,

122 N.C. App. 518, 522, 471 S.E.2d 415, 418 (1996).

Although the parties to this case disagree about the proper

resolution of many issues, they do agree that the trial court’s

contempt order constituted an exercise of the trial court’s

criminal, rather than civil, contempt authority. As we have

already noted, the contempt order that Defendant seeks to

challenge on appeal found Defendant in contempt for interfering

with the therapy that Ms. McInerney was providing to the

children by filing a separate civil action against her in the

Orange County Superior Court. As a result, the trial court’s

contempt order sanctioned Defendant for an “act[] already

committed that [] impeded the administration of justice in some

way.” Brower, 70 N.C. App. at 133, 318 S.E.2d at 544. In

addition, the contempt order at issue here did not contain any

provision describing the manner in which Defendant could purge

himself of the contempt, a component that should be contained in

all civil contempt orders. N.C. Gen. Stat. § 5A-23(e). Thus,
 -16-
since the trial court’s order involved the imposition of

sanctions for criminal contempt and since any appeal from the

trial court’s contempt order should have been taken from the

District Court to the Superior Court rather than to this Court,

Defendant’s challenge to the trial court’s contempt order is not

properly before us. Hancock, 122 N.C. App. at 522, 471 S.E.2d

at 418. As a result, we have no authority to disturb the trial

court’s contempt order and will refrain from doing so.

2. Visitation Decision

Secondly, Defendant contends that the trial court erred by

denying his motion for restoration of his custody and visitation

rights. More specifically, Defendant argues that the trial

court’s decision amounted to a complete termination of his

fundamental right to parent his children in the absence of a

finding that Defendant was an unfit parent and that Defendant

had made the required showing that a change in circumstances

sufficient to support the restoration of his visitation rights

had occurred. We do not find Defendant’s arguments persuasive.

a. Standard of Review

“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
 -17-
evidence,” Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d

250, 253 (2003), with substantial evidence being “such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id. at 474, 586 S.E.2d at 253. “In

addition to evaluating whether a trial court’s findings of fact

are supported by substantial evidence, this Court must determine

if the trial court’s factual findings support its conclusions of

law.” Id. at 475, 586 S.E.2d at 254. “[T]he trial court is

vested with broad discretion in cases involving child custody,”

so that its decision will not be reversed on appeal absent a

clear showing of abuse of discretion. Pulliam v. Smith, 348

N.C. 616, 624–25, 501 S.E.2d 898, 902 (1998). “The same

standards that apply to changes in custody determinations are

also applied to changes in visitation determinations.” Simmons

v. Arriola, 160 N.C. App. 671, 674, 586 S.E.2d 809, 811 (2003)

(citing Clark v. Clark, 294 N.C. 554, 575-76, 243 S.E.2d 129,

142 (1978)); N.C. Gen. Stat. § 50–13.1(a) (stating that,

“[u]nless a contrary intent is clear, the word ‘custody’ shall

be deemed to include custody or visitation or both”). We will

now review Defendant’s challenges to the trial court’s

visitation decision in light of the applicable standard of

review.

b. Relevant Legal Principles
 -18-
A person seeking to obtain the modification of an existing

custody or visitation order must make a “motion in the cause and

a showing of changed circumstances by either party or anyone

interested[.]” N.C. Gen. Stat. § 50–13.7(a). “[B]efore a trial

court may modify an existing custody order the trial court must

determine that a substantial change of circumstances has

occurred and that the change has affected the children’s

welfare.” Davis v. Davis, __ N.C. App. __, __, 748 S.E.2d 594,

600 (2013). In such a modification proceeding, “the moving

party has the burden of proving a ‘nexus’ between the changed

circumstances and the welfare of the child in order for the

trial court to determine that a child [custody] order may be

modified.” Warner v. Brickhouse, 189 N.C. App. 445, 454, 658

S.E.2d 313, 319 (2008). “If the trial court concludes either

that a substantial change has not occurred or that a substantial

change did occur but that it did not affect the minor child’s

welfare, the court’s examination ends, and no modification can

be ordered.” Shipman, 357 N.C. at 474, 586 S.E.2d at 253.

c. Analysis of Visitation Decision

In the course of denying Defendant’s request for the

restoration of his visitation rights, the trial court made the

following findings of fact:

13. This Court finds as a fact that no
substantial and material change
 -19-
affecting the welfare of the minor
children has occurred since the entry
of the last Order.

14. The Court interviewed [Martin] in
chambers, with the consent of the
parents, with Ms. McInerney present.
[Martin] is of a suitable age and
discretion to speak to the court about
his custodial arrangement. [Martin]
loves both of his parents, but he
expressed to the Court that he has no
desire to see the Defendant.

15. This Court finds as a fact that the
Defendant has made negative comments
about the Plaintiff and her family in
the presence of [Martin]. [Martin]
shared some of these comments with the
Court.

16. This Court finds as a fact that the
Defendant, when the minor children were
in his custody, would go outside of the
house in the middle of the night to go
outside in the yard to talk on the
phone, leaving the children unattended
in the house.

17. This Court finds as a fact that
[Martin] has had nightmares about his
father coming to get him.

18. The Defendant’s last contact with the
minor children was with [Wendy] in the
fall of 2012. Said phone call was
monitored by Ms. McInerney and [Wendy]
was in good spirits prior to the phone
call. During the phone conversation,
the Defendant made negative statements
about [Wendy’s] school and her
attending the Hill Center. He implied
that she was not able to be a good
student when she was sad about not
being able to see her father.
[Wendy’s] attendance at the Hill Center
 -20-
is in the minor child’s best interest
and the conversation was very upsetting
to the child, especially when the
Defendant stated that she was a “bad
reader.” [Wendy] has not requested to
speak to her father since this
conversation occurred.

19. The Plaintiff and her family have a
good relationship with the minor
children and the Court commends the
Plaintiff and her family for their care
of the children. Both children are
doing well in school and are well-
adjusted, active children.

20. Pursuant to this Court’s Order entered
February 2, 2011, which states in
relevant part, “This Court will
reconsider Defendant’s visitation
schedule at such time that the Court
can hear from the minor children’s
court-appointed therapist, Teresa M.
McInerney, LCSW upon proper notice to
the parties,” Ms. McInerney was asked
her professional opinion. Ms.
McInerney testified and this Court
finds as a fact that changing the
visitation schedule was not in the
minor children’s best interest.

21. The Defendant’s conduct, words, and
actions have inflicted tremendous harm
on the minor children. The fact that
the children have been so well adjusted
and are thriving is a positive
reflection on the efforts of the
Plaintiff, her family, and Ms.
McInerney.

Based upon these findings of fact, the trial court concluded as

a matter of law that the prior orders suspending Defendant’s
 -21-
visitation with the children should remain in effect subject to

further order of the Court.

A careful review of the record establishes that each of the

relevant findings of fact has adequate evidentiary support. The

trial court’s findings were supported by testimony from Ms.

McInerney, who stated that a change in the existing visitation

schedule would not be in the children’s best interest; by

Martin’s statement that he had no desire to see Defendant and

has had nightmares about Defendant coming to get him; and by the

evidence concerning Defendant’s last conversation with Wendy,

during which she became very upset and after which she requested

that she not be allowed to speak with Defendant again. In

addition, the undisputed record evidence showed that the

children have been doing well both academically and socially.

As a result, we hold that the trial court’s findings of fact

have adequate evidentiary support and support the trial court’s

conclusion of law to the effect that no substantial change in

circumstances affecting the children’s welfare had occurred

since the entry of the last visitation order and that no change

in the existing visitation arrangements should be made.

In seeking to persuade us to reach a different result,

Defendant contends that the trial court should have found a

substantial change in circumstances based upon Defendant’s
 -22-
testimony that he no longer abused drugs and alcohol, that he

was seeking treatment for his mental health issues, and that he

had promised to comply with any protective rules that the trial

court deemed appropriate. In support of this argument,

Defendant cites this Court’s decision in Simpson v. Simpson, 149

N.C. App. 440, 562 S.E.2d 447 (2002), for the proposition that

overcoming a drug dependency can support a substantial change in

circumstances. In Simpson, however, the defendant adduced

evidence that the substantial changes that had occurred in his

life had served to benefit his child “emotionally, physically,

intellectually, and medically,” Simpson, 149 N.C. App. at 446,

562 S.E.2d at 450, while Defendant has made no such showing in

this case. As a result of the fact that the trial court has the

ultimate responsibility for performing the factfinding function,

the fact that “the moving party has the burden of proving a

‘nexus’ between the changed circumstances and the welfare of the

child,” Warner, 189 N.C. App. at 454, 658 S.E.2d at 319, and the

fact that Defendant has failed to adduce evidence demonstrating

the existence of the required “nexus,” we hold that the trial

court did not err by failing to modify the existing visitation

arrangement in light of Defendant’s claim to have overcome his

earlier drug and alcohol problems.2

2
In addition, Defendant argues that he should be absolved
 -23-
In addition, Defendant contends that the trial court’s

order was tantamount to a complete termination of the parental

relationship between Defendant and his children and that such a

result would be improper in the absence of a determination,

which the trial court did not make, that Defendant was unfit to

parent his children. In support of this contention, Defendant

vigorously asserts that, under the existing visitation

arrangement, all of the contacts that he is allowed to initiate

with the children must be facilitated by Ms. McInerney, who had

refused to do anything to assist in that process. We are not,

however, persuaded by Defendant’s characterization of the trial

court’s order given the court’s continuing ability to modify the

existing visitation arrangement in the future in the event that

Defendant is able to make the required showing that a

substantial change in circumstances affecting the children’s

welfare has occurred. Warner, 189 N.C. App. at 454, 658 S.E.2d

at 319. For that reason, the fact that the trial court did not

find that Defendant was an unfit parent has no bearing on the

from the responsibility for showing the existence of a
substantial change in circumstances affecting the children’s
welfare given that the trial court’s earlier visitation orders
were affected with legal error despite the fact that those
orders were not appealed in a timely fashion and remained in
effect at the time of the hearing held with respect to
Defendant’s second modification motion. Defendant has not,
however, cited any support for this proposition, and we know of
none.
 -24-
validity of its decision to deny Defendant’s request for

modification of the existing visitation arrangement. As a

result, since none of Defendant’s challenges to the trial

court’s visitation decision have merit, that portion of the 2

July 2013 order must be affirmed.

III. Conclusion

Thus, for the reasons set forth above, we conclude that

Defendant’s challenge to the trial court’s contempt decision is

not properly before us and that none of Defendant’s challenges

to the trial court’s visitation decision have merit. As a

result, the trial court’s order should be, and hereby is,

affirmed.

AFFIRMED.

Judges McGEE and STEELMAN concur.

Report per Rule 30(e).