An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling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. COA14-661
NORTH CAROLINA COURT OF APPEALS
Filed: 7 April 2015
DANIEL VAN ANTWERP,
Plaintiff
v. Pitt County
No. 12 CVD 596
EMILY BILOBRAN,
Defendant
Appeal by plaintiff from order entered 4 September 2013 by
Judge Joseph A. Blick, Jr. in Pitt County District Court. Heard
in the Court of Appeals 4 November 2014.
W. Gregory Duke, for plaintiff-appellant.
Teresa DeLoatch Bryant, for defendant-appellee.
CALABRIA, Judge.
Plaintiff Daniel Van Antwerp (“plaintiff”) appeals from an
amended order entered 4 September 2013 that supersedes and replaces
the order entered on 12 August 2013 granting Emily Bilobran
(“defendant”) (collectively with plaintiff, “the parties”) primary
physical custody of the parties’ minor child. Although defendant
resides in North Carolina and plaintiff resides in Maryland, the
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parties share joint legal custody. Plaintiff was awarded secondary
physical custody and visitation. We affirm.
I. Background
The parties have known each other since they were teenagers.
After the parties discovered defendant was pregnant with the minor
child (“Jason”)1, they planned to get married, but never did. The
parties are the biological parents of Jason, born in April 2009.
Plaintiff was present for Jason’s birth, and although the parties
previously separated, they resided together until October 2011,
when they finally separated. Arguments between the parties
resulted in physical altercations, cross-warrants, and a domestic
violence protective order (“DVPO”)2. The DVPO and both cross-
warrants were eventually dismissed.
On 5 March 2012, plaintiff filed a complaint and later an
amendment to his complaint in Pitt County District Court,
requesting that the court grant the parties joint legal and
physical custody of Jason. After defendant filed an answer and
counterclaim on 11 October 2012, the trial court entered an order
granting the parties temporary joint legal custody, with defendant
having primary physical custody and plaintiff having secondary
1
A pseudonym used to protect the identity of the juvenile and for
ease of reading.
2
Neither the DVPO nor the cross-warrants are included in the
record on appeal.
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physical custody, and delineated the terms of visitation.
After a hearing, the trial court entered an order on 13 August
2013 regarding permanent child custody that was amended on 4
September 2013. The amended order superseded and replaced the 13
August 2013 order. The trial court made several findings regarding
the parties’ contentious relationship as well as their differing
parenting techniques and lack of co-parenting. The trial court
also found that both parties had medical issues and past legal
issues: plaintiff had felony weapons violations while he was a
student at Calvin College in Michigan, while defendant was
previously charged with possession of marijuana and shoplifting.
The trial court concluded that both parties were fit and proper
persons to have the general care, custody, and control of Jason,
and that Jason’s best interests would be served if the parties
were granted joint legal custody. The trial court granted the
parties permanent joint legal custody of Jason, with defendant
having primary physical custody and plaintiff exercising secondary
physical custody. The trial court also ordered a detailed
visitation schedule, since defendant resides in Greenville, North
Carolina, and plaintiff resides in Severna Park, Maryland.
Plaintiff appeals.
On appeal, plaintiff argues that several of the trial court’s
findings of fact are unsupported by competent evidence, and that
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the trial court abused its discretion in granting defendant primary
physical custody. We disagree.
II. Standard of Review
“In a child custody case, the trial court’s findings of fact
are conclusive on appeal if supported by substantial evidence,
even if there is sufficient evidence to support contrary findings.
Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Carpenter
v. Carpenter, ___ N.C. App. ___, ___, 737 S.E.2d 783, 785 (2013)
(citation omitted). “Whether those findings of fact support the
trial court’s conclusions of law is reviewable de novo.” Id.
“Absent an abuse of discretion, the trial court’s decision in
matters of child custody should not be upset on appeal.” Everette
v. Collins, 176 N.C. App. 168, 171, 625 S.E.2d 796, 798 (2006).
III. Challenged Findings of Fact
As an initial matter, the trial court’s recording equipment
malfunctioned at the hearing during defendant’s testimony. Both
parties submitted their proposed narration of the evidence that
was lost. The trial court reviewed the narrations and settled the
record in accordance with its own narration pursuant to Rule 11.
See N.C.R. App. P. 11(c) (“The functions of the judge in the
settlement of the record on appeal are to . . . settle narrations
of proceedings[.]”). Plaintiff argues that the trial court’s
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narration of defendant’s testimony contains many inaccuracies.
Specifically, plaintiff contends that the trial court “accepted
much of what Defendant testified to notwithstanding her multiple
misrepresentations of fact[.]” However, plaintiff’s argument
apparently challenges the truthfulness of defendant’s testimony
rather than the accuracy of the trial court’s narration.
Additionally, plaintiff provides no authority to this Court to
support his argument. Therefore, any argument plaintiff presents
regarding the narration of defendant’s testimony is deemed
abandoned. See N.C.R. App. P. 28(b)(6) (“Issues not presented in
a party’s brief, or in support of which no reason or argument is
stated, will be taken as abandoned.”).
Plaintiff argues that the trial court made several findings
of fact that are unsupported by competent evidence in the record.
Plaintiff first contends that the trial court erred in finding of
fact number 8, finding that he quit high school halfway through
his junior year and completed his high school education through
the University of Nebraska Independent High School Studies
program. However, plaintiff testified on cross-examination that
he was enrolled in a high school in Maryland until halfway through
his junior year, when he left that school to participate in several
“mission trips,” including one in which he served on medical health
teams in Lima, Peru. The trial court also found that plaintiff
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completed his high school education through the University of
Nebraska Independent High School Studies program, which is
undisputed. Therefore, this finding is supported by competent
evidence.
Another finding that plaintiff contends is unsupported by the
evidence is finding of fact 15B, that “Plaintiff’s exact
whereabouts [were] kept hidden from the Defendant for
approximately a month” when he travelled to California is
unsupported by the evidence. Defendant testified at the hearing
that plaintiff called her during a layover while travelling to
California. However, plaintiff concedes that friend Hilary Rose
Keil testified at the hearing that defendant made several
unsuccessful attempts to contact plaintiff after he left, and did
not know plaintiff was in California until one month later.
Therefore, this finding is supported by the evidence.
Plaintiff also challenges finding of fact number 15K, which
states that his “patent and utter disregard for what appears to be
well-grounded fears and concerns of the Defendant border on
irresponsibility inconsistent with co-parenting” and that
plaintiff left live rounds of ammunition within Jason’s reach.
Defendant testified to her concerns regarding plaintiff’s use and
carrying of loaded firearms around Jason. Specifically, defendant
testified that she was concerned when plaintiff carried Jason
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directly above the holstered firearm on plaintiff’s hip, and that
there had been instances when she witnessed Jason playing with
partially disassembled firearms. According to defendant, when she
addressed her concerns with plaintiff, plaintiff responded that
his child had a right to play with guns. Plaintiff also concedes
that defendant presented evidence that she returned home on one
occasion to find Jason chewing on a bullet. The trial court
recognized plaintiff’s “right to bear arms as guaranteed by both
the Constitutions of the United States and the State of North
Carolina,” but ultimately found that plaintiff’s disregard for
defendant’s concerns and lack of compromise was inconsistent with
co-parenting. While this particular finding focuses on the point
of contention between the parties regarding plaintiff’s firearms,
other uncontested findings also indicate that the parties face
serious issues with co-parenting, including findings that
plaintiff was not supportive when defendant was breastfeeding
Jason, and that the parties disagreed regarding Jason’s care and
maintenance and proper disciplinary techniques. Therefore, this
finding is supported by competent evidence.
Plaintiff finally contends that the trial court’s finding of
fact number 16 regarding the lack of communication between the
parties is not only unsupported by the evidence, but erroneous
because communication was prohibited while there was a DVPO in
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place. Plaintiff testified at the hearing that he did not respond
to defendant’s numerous telephone calls and messages while the
DVPO was in effect. However, plaintiff fails to consider that the
trial court heard evidence regarding the parties’ communication
both before and after the October 2011 incident that resulted in
the DVPO, including defendant’s testimony that she had great
difficulty communicating with plaintiff regarding Jason’s medical
expenses. Plaintiff also concedes that he failed to return
defendant’s attempts to contact him on at least two separate
occasions when he was either working or travelling outside the
United States. Therefore, this finding is also supported by the
evidence.
Although plaintiff contends otherwise, the extensive
testimony presented by both parties at the hearing provides
substantial evidence supporting the trial court’s findings.
Plaintiff does not contest any other findings of fact; therefore
the remaining findings are conclusive on appeal. Carpenter, ___
N.C. App. at ___, 737 S.E.2d at 785 (citation omitted).
IV. Abuse of Discretion
Plaintiff also argues that the trial court abused its
discretion in granting plaintiff primary physical custody. We
disagree.
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In child custody actions, the trial court “shall award the
custody of such child to such person . . . as will best promote
the interest and welfare of the child.” N.C. Gen. Stat. § 50-13.2
(a) (2013). “When the trial court finds that both parties are fit
and proper to have custody, but determines that it is in the best
interest of the child for one parent to have primary physical
custody . . . such determination will be upheld if it is supported
by competent evidence.” Hall v. Hall, 188 N.C. App. 527, 530, 655
S.E.2d 901, 904 (2008).
In the instant case, Jason has lived in North Carolina with
defendant for his entire life. After making extensive findings
based upon the evidence presented at the hearing, many of which
are undisputed on appeal, the trial court concluded that “[b]oth
parties are fit and proper persons to have the general care,
custody and control of the minor child.” The trial court further
concluded that Jason’s best interests “will be served if the
parties are granted joint legal custody of the minor child, with
the Defendant exercising[] primary physical custody and the
Plaintiff exercising secondary custody and visitation[.]”
Plaintiff’s argument appears to be a “request that we reweigh
the evidence and reach a different conclusion on the facts than
that deemed appropriate by the trial court.” Dixon v. Gordon, ___
N.C. App. ___, ___, 734 S.E.2d 299, 304 (2012) (citation omitted).
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“Accordingly, we are simply not permitted to act in accordance
with [plaintiff’s] request under the applicable standard of
review.” Id. (citation and quotation marks omitted). Therefore,
we hold that the trial court did not abuse its discretion in
awarding the parties joint legal custody and granting defendant
primary physical custody of Jason.
V. Conclusion
The trial court’s findings were supported by competent
evidence. We decline to reweigh the evidence, and find that the
trial court did not abuse its discretion in awarding the parties
joint legal custody, granting defendant primary physical custody,
and granting plaintiff secondary custody and visitation of the
parties’ minor child. Therefore, we affirm the order of the trial
court.
Affirmed.
Judges STROUD and McCULLOUGH concur.
Report per Rule 30(e).