IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-834
Filed: 18 July 2017
Lincoln County, No. 08 CVD 1649
KRISTIE LEA WILLIAMS, Plaintiff,
v.
JAMES MARION CHANEY, Defendant.
Appeal by defendant from order entered 31 May 2016 by Judge Larry J. Wilson
in District Court, Lincoln County. Heard in the Court of Appeals 6 February 2017.
No brief filed on behalf of plaintiff-appellee.
James M. Chaney, Jr., pro se.
STROUD, Judge.
Blake1 is now almost 16 years old, and this custody battle has lasted most of
his life. The primary issue on appeal is whether the trial court should have ordered
continuation of reunification counseling efforts, where the trial court found that prior
reunification efforts have caused him “intense psychological stress” and that more
reunification counseling would “re-traumatize” the child. We remand for entry of an
order denying any modification to the prior custody order since no other result is
supported by the trial court’s unchallenged findings of fact.
1 We use a pseudonym to protect the identity of the minor child.
WILLIAMS V. CHANEY
Opinion of the Court
Defendant James Marion Chaney (“Father”) appeals from the trial court’s
order modifying an earlier permanent child custody order entered 10 October 2013.
On appeal, Father argues that the trial court erred by concluding there was a
substantial change in circumstances justifying a modification of the custody order
because the findings of fact do not support this conclusion. Because the trial court’s
ultimate modifications to the custody order are not supported by the court’s findings,
we vacate and remand to the trial court for entry of a new order.
Facts
This appeal arises in a long and highly contentious custody battle with four
prior appeals.2 We will briefly summarize the background of this case and then
primarily focus on the facts necessary to address the sole issue raised in the present
appeal. Father and plaintiff Kristie Lea Williams (“Mother”) were formerly married
and are now divorced. They had one child during the course of the marriage, Blake,
born in August 2001. Mother was given primary physical legal custody of Blake on
11 June 2002 in a Consent Order for Permanent Custody and Visitation, with Father
having secondary physical custody.
2 Williams v. Chaney, 212 N.C. App. 694, 718 S.E.2d 737, 2011 WL 2448950, 2011 N.C. App.
LEXIS 1246 (2011) (unpublished); Williams v. Chaney, 213 N.C. App. 425, 714 S.E.2d 275, 2011 WL
2848846, 2011 N.C. App. LEXIS 1543 (2011) (unpublished); Williams v. Chaney, __ N.C. App. __, 782
S.E.2d 122, 2016 WL 409901, 2016 N.C. App. LEXIS 124 (2016) (unpublished); Williams v. Chaney, __
N.C. App. __, 792 S.E.2d 207 (2016).
-2-
WILLIAMS V. CHANEY
Opinion of the Court
The trial court entered an Order for Temporary Modification of Child Custody
in January 2006 after Father filed a motion to modify, in which the court noted
examples of Mother’s inappropriate behavior in Blake’s presence. The trial court
concluded that a substantial change of circumstances had occurred justifying
modification of the custody order, granted Father temporary physical and legal
custody of Blake, and appointed a parenting coordinator. On 3 December 2007, the
trial court entered an order for permanent child custody which noted that the parties
consented to Father having primary physical custody of Blake. Mother was granted
secondary custody, and the order set forth a specific custodial schedule.
In 2009 and 2010, both parties filed several motions and the trial court entered
several orders, culminating in another order modifying the custodial schedule
entered on 18 August 2010; this order was affirmed in a prior appeal. See Williams,
213 N.C. App. 425, 714 S.E.2d 275, 2011 WL 2848846, 2011 N.C. App. LEXIS 1543.
The series of events leading up to this appeal actually started all the way back
in January 2011, when the trial court entered the order which suspended Mother’s
visitation entirely after finding that she had been evasive about her address.
Mother’s visitation was suspended until she appeared before the trial court and
presented satisfactory evidence of her living situation and her compliance with prior
orders to obtain counseling. Specifically, Mother could seek to have her visitation
rights reinstated if she provided satisfactory information to the trial court regarding
-3-
WILLIAMS V. CHANEY
Opinion of the Court
her residence address, living conditions, persons who lived with her, and
documentation that she was receiving psychological counseling as ordered in 2010.
Mother did not see Blake at all from November 2010 until 2013 other than at one
counseling session.
On 30 January 2013, after Mother requested a “Status Hearing,” the trial court
entered a permanent child custody order concluding that there had been a substantial
change in circumstances since prior custody orders entered in 2010. This order was
intended to assist in restoring Mother’s relationship with Blake, since she had been
absent from his life since 2010. The trial court found that
visitation and modification of custody is in the best
interests of the minor child in order for the child to
establish and maintain a relationship with his mother
however, the circumstances require a more limited
visitation schedule in order to provide stability and
predictability for the minor child in his primary home with
his father.
The court granted Mother limited but gradually increasing visitation with Blake
under a specific schedule that was laid out in the order and required counseling for
Mother and Blake.
Mother filed a “Motion for Contempt, Motion to Review and Enforce Order, and
Motion for Attorney’s Fees” on 17 April 2013. In her motion, Mother argued that
Father had “failed to adhere to the terms of the Court’s Order” on numerous occasions
and she asked for the trial court to hold Father in contempt. Mother also asked the
-4-
WILLIAMS V. CHANEY
Opinion of the Court
trial court to review the visitation provisions in the 30 January 2013 order and “if
necessary pronounce clarification, guidance and direction to the counselor as to the
appropriate role of the counselor in the reunification process.” On 23 April 2013,
Father filed his own motion to modify custody, asserting that Mother had acted
inappropriately in front of the minor child on multiple occasions. He asked that the
trial court modify visitation in accordance with the recommendations of the child’s
counselor and that the court allow Blake to decide if he wanted to visit with Mother.
A series of at least five temporary and supplemental orders followed in
response to the parties’ competing motions for modification filed in April 2013. Aside
from addressing various motions for contempt and other issues not directly relevant
to this appeal, these orders generally addressed issues regarding the ongoing
reunification counseling efforts and parenting coordinators. But on 10 October 2013,
the trial court entered the order which this Court’s prior opinion determined was the
most recent permanent order subject to modification. Some of the findings of fact
from this long and detailed order are instructive regarding the reunification efforts:
40. Although the court is disappointed Mr. Feasel [the
child’s counselor] refuses to work with the mother toward
reunification, the court respects his professional opinion
regarding the counseling provided for the child
individually and the parties in the joint counseling
sessions. The court understands his recommendations
were made considering the child’s mental health.
41. The mother was ordered to obtain counseling in
paragraph 2R of the August 17, 2010 Order of the court.
-5-
WILLIAMS V. CHANEY
Opinion of the Court
She was ordered again to comply with the order as a means
to reinstate her visitation in the Order Suspending
Visitation entered on December 17, 2010.
42. There have been two assigned parent coordinators
throughout the history of this case. Judge Foster made
findings about the most recent parent coordinators
concerns in her order dated August 17, 2010. Findings #40
and #41 refer to the mother’s need for “counseling or
therapy. This is necessary in order for the mother to gain
a better perspective on handling her emotions.”
43. Following the entry of Judge Foster’s court order in
January 2013, where the court relied on the opinion of
Counselor Connie Zmijewski, the mother sought some
individual counseling from the same therapist. Ms.
Zmijewski was also qualified as an expert in family
counseling. She testified she has counseled the mother
about her visits with the child and regarding parenting
issues. Ms. Zmijewski encouraged the mother to meet with
reunification counselor. She counseled the mother
approximately six times. This counseling was prior to
[Blake’s] reluctance to attend overnight visitation and
prior to the mother’s efforts to involve law enforcement to
obtain physical custody of the child.
44. The parties have been regularly engaged in litigation
since this case was transferred from Mecklenburg County.
The current Lincoln County file consists of ten separate
files and is approximately 14” thick. This court has
observed the behavior of the Plaintiff/Mother since 2009
over the course of at least four contested hearings, of which
three of those hearings lasted over three days.
45. The court is concerned that the mother has some type
of personality disorder preventing her from participating
in meaningful therapy to address her behavior and act in
the best interest of the child. The court is concerned the
mother does not have the capacity to accept any
responsibility for the present quality of the relationship
-6-
WILLIAMS V. CHANEY
Opinion of the Court
between herself and her son, as well as the capacity to
acknowledge or respect her son’s opinions and beliefs.
46. There has been a substantial change in circumstances
from the entry of the prior order in that the child “exhibits
emotions that mimic Post Traumatic Stress Disorder”.
(Defendant’s Exhibit #2) The child has experienced panic
attacks, nausea, fear and dread during the days prior to his
scheduled visitation.
The court found that Mother had failed to comply with the terms of the court’s
prior orders and ordered that Mother complete a psychological evaluation. The trial
court also suspended Mother’s visitation privileges with Blake except that she was
allowed to talk to him by telephone twice a week on Monday and Thursday evenings
and to attend one extracurricular activity a week of her choosing.
On 19 November 2013, after receiving the report from Mother’s psychological
evaluation, the trial court entered a supplemental order which noted that Mother was
not diagnosed with any mental or personality disorders. The November 2013 order
concluded that it would be in Blake’s best interest for Mother and Father to
participate in a “Child and Family Treatment Team” meeting with two therapists
who have a relationship with the family. The trial court ordered that all parties
participate in therapy for a minimum of four months and then the court would
“review the progress of the therapeutic treatment upon notice of either party.” The
trial court entered an additional order in Febraury 2014 amending the 19 November
2013 supplemental order to substitute a counselor for the Child and Family
-7-
WILLIAMS V. CHANEY
Opinion of the Court
Treatment Team meeting. On 10 September 2014, the trial court entered another
order following a hearing in May 2014 regarding the appointment of a replacement
counselor, allowing Mother to select a substitute counselor as her individual
counselor.
In February 2015, Mother filed a notice of hearing to “review” the trial court’s
19 November 2013 order as well as an order filed 10 September 2014 that was
initially entered on 20 May 2014 “regarding restoration of the mother/child
relationship[.]” After a hearing in March 2015, the trial court entered an order on 18
May 2015 suspending Mother’s visitation with Blake except for the two telephone
calls a week and one extracurricular activity a week. Mother appealed, and this
Court vacated the May 2015 order because it did not include any findings of fact to
support a permanent modification of custody or any conclusion that substantial
changes in circumstances had occurred and remanded the matter to the trial court
for entry of a new order. See Williams, __ N.C. App. __, 782 S.E.2d 122, 2016 WL
409901, 2016 N.C. App. LEXIS 124.
Following this Court’s opinion, without hearing any additional evidence, the
trial court entered a new order on 31 May 2016. The court made the following
relevant findings:
10. Following the entry of the Permanent Order of
January 30, 2013, the child began visiting his mother in
January and February, 2013. He expressed his concern
with some behaviors of his mother during the first few
-8-
WILLIAMS V. CHANEY
Opinion of the Court
visits which were concerning to the Court. In March, 2013,
as the visits were to progress to overnight, the minor child
started complaining about stomach pain or nausea several
days before the visits and he would not visit, or the child
just flat refused to go with [Mother], expressing fear.
During this time Justin Feasel, the child’s therapist, was
meeting with the child to address these issues.
11. Mr. Feasel testified that mother contacted him via
email on two occasions asking what he recommended for
her to do to help improve her relationship with her son. Mr.
Feasel recommended to the mother that she needed to go
slow with the reunification process.
12. Rather than following Mr. Feasel’s
recommendations the mother continued to force the child
to visit. The mother’s actions continued to impede her
relationship with the minor child.
13. Mr. Feasel testified and the Court finds persuasive
that since March, 2013 the minor child has experienced
fear, anxiety, shaking, an inability to sleep, nausea and
anger regarding reunification with his mother.
14. On March 15, 2013, Mr. Feasel wrote a letter
recommending that the child’s visitation with his mother
be limited to day visits.
15. Mr. Feasel had two joint sessions with [Blake] and
his mother to address the child’s concerns about visitation
with his mother. During these sessions the minor child felt
that his mother questioned and interrogated him. The
child was expecting an apology from his mother; however,
[Mother] provided explanations and these explanations
were not how the child had perceived the events.
16. During these sessions with the child the mother
showed an inability or an unwillingness to accept
responsibility, and this inability or unwillingness is an
impediment to her child forgiving her.
-9-
WILLIAMS V. CHANEY
Opinion of the Court
17. On April 17, 2013, [Mother] filed a motion for
contempt alleging the father interfered with the visitation
and stating the father should ensure the child exercise the
court ordered visitation. The father filed his motion to
modify custody on April 23, 2013, requesting relief from the
visitation Order based on the counselor’s recommendations
included in the March 15, 2013 letter.
18. It was during this time the parties exchanged emails
about visitation. The father took the child for the
exchange; however the child refused to get into his
mother’s car.
19. On June 23, 2013 the Mother contacted the Lincoln
County Sheriff Department to request assistance to enforce
the visitation included in the Order. This incident upset
the child to the point he was left shaking, crying, and afraid
he would be taken from his father.
20. On July 28, 2013, the mother contacted [the]
Mecklenburg County Sheriff Department for assistance at
the exchange. This incident traumatized the minor child.
21. This Court has previously found that the mother’s
demeanor and her statements have left her unable or
unwilling to consider the child’s feelings and emotions and
she is preoccupied with blaming the father, the counselor,
and at times the child.
22. The mother refuses to admit that any of her
behaviors have contributed to the status of her relationship
with the child.
23. Cyd McGee, family counselor, is an Intensive Family
Preservation specialist. She was authorized by the Court
to provide therapeutic services to [Mother] and minor child
in an attempt to reunify and begin visitation. Ms. McGee
met with [Mother] and the minor child for three sessions in
the Fall of 2014.
- 10 -
WILLIAMS V. CHANEY
Opinion of the Court
24. Ms. McGee testified and opined and the Court finds
persuasive that [Blake] is a child who has been
traumatized and did not want to participate in the family
sessions.
25. Ms. McGee testified and opined and the Court finds
persuasive that [Blake] felt he had been mistreated by his
mother. Specifically, [Blake] recalled the following events
that led to his beliefs of being mistreated:
a. His mother had thrown a water bottle at him;
b. During visits with his mother, [Mother] would
talk in a negative light about his father . . . in front
of the minor child; and
c. During visits with his mother, [Mother’s]
daughter would make negative comments about
[Blake’s] father.
26. Ms. McGee testified and opined and the Court finds
persuasive that the mother during these counseling
sessions was unable to emotionally acknowledge her son’s
feelings and at times would become defensive. The mother
was disconnected from the child’s feelings, and she did not
respond emotionally, physically, or on any level when the
child was expressing his feelings.
27. Ms. McGee testified that throughout the counseling
sessions between the mother and the child she observed the
child trembling, shaking, developing headaches, and
crying. Ms. McGee further testified that it was not in the
child’s best interest to continue with this reunification
process as it was re-traumatizing the child.
28. Ms. McGee testified and opined and the Court finds
persuasive that [Blake] is a typical 13 year old teenager
who is well-spoken and has stated that he does not want to
do this, that he feels forced to continue with the
reunification process and that the mother is unable to
provide for [Blake’s] emotional needs.
- 11 -
WILLIAMS V. CHANEY
Opinion of the Court
29. Ms. McGee concluded that any further counseling
sessions would re-traumatize the child.
30. Charlotte Roberts testified as [Mother’s] counselor
that the mother has been consistent with her therapy, the
purpose of which was to improve communication with her
son. However, [Mother] did not meet with Ms. Roberts
during the months of September and October, 2014, which
was during the time the family counseling sessions were
taking place.
31. Ms. Roberts testified that at no time has the mother
divulged or shared information regarding how the family
sessions were going. This is concerning to the Court in
light of the testimony of Ms. McGee that the reunification
process was failing.
32. According to Mr. Feasel, the reunification process
with Ms. McGee in the Fall of 2014 caused [Blake] further
intense psychological stress.
33. Mr. Feasel testified that [Blake’s] reactions and
fears were sincerely held, and not easily overcome.
34. Mr. Feasel testified that he would refuse to be part
of any further reunification counseling sessions between
[Mother] and minor child because of the harm he feared it
would cause the minor child. The effects of the joint
sessions as described by Ms. McGee support Mr. Feasel’s
conclusions. Mr. Feasel has been counseling [Blake] for
several years, and the Court finds his opinion as to
reunification to be well-grounded.
35. Since the January 30, 2013, Order the parties have
made two failed attempts of reunification. The child’s
negative emotional, physical and psychological reactions to
his mother since the entry of that Order have been fully
vetted and explored by his counselor and are well-
grounded. He is a happy and healthy 13-year-old child who
is thriving in his life, but for the mother-child relationship.
- 12 -
WILLIAMS V. CHANEY
Opinion of the Court
36. [Mother] is responsible for the fractured relationship
between herself and the minor child due to her actions with
and around the minor child.
37. There is no evidence before the court that limited
telephone contact with his mother or her attendance at his
activities have been harmful to the minor child; and
therefore the Court finds it is in the child’s best interest to
have limited telephone contact and to permit the mother’s
attendance at extracurricular activities as set forth below.
The trial court concluded:
2. There has been a substantial change of
circumstances affecting the welfare of the minor child since
the entry of the January 30, 2013 Order which have
affected the best interest and general welfare of the minor
child, and it is now in the best interests of the minor child
to modify visitation.
The court then ordered the same limited visitation as had been in place since 10
October 2013 -- two telephone calls and one extracurricular activity per week -- but
added a requirement that Father, within 30 days of the entry of the order, must select
a licensed psychologist or counselor to counsel with Blake, Mother, and as
appropriate, both of them, “to explore the issue of resuming visitation between
Mother and child, even on a limited basis.” Father timely appealed the 31 May 2016
order to this Court.
Discussion
Father’s sole argument on appeal is that the trial court erred by concluding
that a change in circumstances had occurred justifying a modification of custody and
- 13 -
WILLIAMS V. CHANEY
Opinion of the Court
then modifying the order in a way that was not supported by the trial court’s findings
of fact. Specifically, Father argues:
[T]he trial court erred by ordering [Father] to select a
licensed counselor to counsel with the minor child, the
mother, and as deemed appropriate, with the mother and
the child, to explore the issue of resuming visitation
between mother and child because the trial court failed to
base its conclusions of law upon sufficient findings of fact.
Under N.C. Gen. Stat. § 50-13.7(a) (2015), an order for child custody “may be
modified or vacated at any time, upon motion in the cause and a showing of changed
circumstances by either party or anyone interested[.]” The North Carolina Supreme
Court has explained in detail how appellate courts review modification of custody
orders:
It is well established in this jurisdiction that a trial
court may order a modification of an existing child custody
order between two natural parents if the party moving for
modification shows a substantial change of circumstances
affecting the welfare of the child warrants a change in
custody. . . .
As in most child custody proceedings, a trial court’s
principal objective is to measure whether a change in
custody will serve to promote the child’s best interests.
Therefore, if the trial court does indeed determine that a
substantial change in circumstances affects the welfare of
the child, it may only modify the existing custody order if
it further concludes that a change in custody is in the
child’s best interests.
The trial court’s examination of whether to modify
an existing child custody order is twofold. The trial court
must determine whether there was a change in
- 14 -
WILLIAMS V. CHANEY
Opinion of the Court
circumstances and then must examine whether such a
change affected the minor child. 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. If, however, the trial court
determines that there has been a substantial change in
circumstances and that the change affected the welfare of
the child, the court must then examine whether a change
in custody is in the child’s best interests. If the trial court
concludes that modification is in the child’s best interests,
only then may the court order a modification of the original
custody order.
When reviewing a trial court’s decision to grant or
deny 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 evidence. Substantial evidence is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.
....
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. With regard to the trial
court’s conclusions of law, our case law indicates that the
trial court must determine whether there has been a
substantial change in circumstances and whether that
change affected the minor child. Upon concluding that
such a change affects the child’s welfare, the trial court
must then decide whether a modification of custody was in
the child’s best interests. If we determine that the trial
court has properly concluded that the facts show that a
substantial change of circumstances has affected the
welfare of the minor child and that modification was in the
child’s best interests, we will defer to the trial court’s
judgment and not disturb its decision to modify an existing
- 15 -
WILLIAMS V. CHANEY
Opinion of the Court
custody agreement.
Shipman v. Shipman, 357 N.C. 471, 473-75, 586 S.E.2d 250, 253-54 (2003) (citations
and quotation marks omitted).
Father does not dispute any of the trial court’s findings of fact in this case, but
rather argues that the findings fail to support the conclusions of law. “Because
plaintiff has not challenged any of the trial court’s findings of fact, they are binding
on appeal, and we must consider only whether the findings of fact supported the
conclusions of law.” Pass v. Beck, 210 N.C. App. 192, 197, 708 S.E.2d 87, 91 (2011)
(citations omitted).
We will first note that one of the challenging parts of this case is simply
determining which order is the “prior order” which is being modified, since the court
is required to find a substantial change of circumstances from that particular date
and order until the time of the new order. Since so many motions were filed and so
many orders and “supplemental orders” were entered, it is difficult to trace back to
the starting point. Both parties filed motions for modification of custody in April
2013. The 10 October 2013 order contained extensive findings of fact, including the
required findings of fact and conclusions of law to support modification of the
custodial schedule. We also recognize that this Court’s prior opinion held that the 10
October 2013 order was the last permanent order subject to modification:
On remand, the trial court should enter findings based on
the preponderance of the evidence and conclusions of law
- 16 -
WILLIAMS V. CHANEY
Opinion of the Court
supported by its findings. If the trial court modifies the
custody order of 10 October 2013 or its associated
supplemental order of 19 November 2013, its findings must
support an ultimate finding that there has been a
substantial change of circumstances that affects the
welfare of the child.
Williams, __ N.C. App. __, 782 S.E.2d 122, 2016 WL 409901 at *6, 2016 N.C. App.
LEXIS 124 at *15.
Our record does not include any motion for modification of custody filed after
the 10 October 2013 order, but it appears that this chain of orders relates back to the
April 2013 motions.3 In February 2015, Mother did file a request for “review” of the
prior orders regarding addressing restoration of her relationship with the child, and
this could generously be construed as a motion for modification of custody. In any
event, both this panel and the trial court are bound by this Court’s prior opinion, so
we will address the modification order on appeal based upon the October and
November 2013 orders. See, e.g., Lueallen v. Lueallen, __ N.C. App. __, __, 790 S.E.2d
690, 696 (2016) (concluding order that was arguably temporary could nevertheless be
addressed where “another panel of this Court ha[d] previously ordered the relevant
provisions of the . . . order stayed” and holding that since this Court is “bound by that
ruling, we will address Mother’s appeal. In addition if we were to dismiss Mother’s
3We also note that neither party was represented by counsel in either this appeal or the last.
Only Father filed a brief in this appeal. We are not entirely confident that either the current record
on appeal or the record for the last appeal is complete, but as best we can tell based upon the arguments
of Father, it is sufficient to address the issue raised in this appeal.
- 17 -
WILLIAMS V. CHANEY
Opinion of the Court
appeal, it would only add to the delay in establishing a final custodial schedule, much
to [the minor child’s] detriment.” (Citation omitted)).
We agree with Father that the trial court’s conclusions of law -- and in
particular the modification which requires even more counseling and reunification
efforts -- are not supported by the court’s findings of fact or conclusions of law. We
are perplexed by how the trial court ultimately reached the end result of requiring
additional counseling after finding that prior efforts had failed and additional
reunification counseling would “re-traumatize” him. The court’s findings, which are
not challenged on appeal, uniformly show that Mother has not made improvements
in years of prior counseling attempts and that Mother and Blake’s relationship has
deteriorated even further due to Mother’s attitude, behavior, and general
unwillingness to accept responsibility for the state of her relationship with her son.
Most relevant to the requirement of additional counseling, the trial court found that
“any further counseling sessions would re-traumatize the child”; that “the
reunification process with Ms. McGee in the Fall of 2014 caused [Blake] further
intense psychological stress”; that “the minor child has experienced fear, anxiety,
shaking, an inability to sleep, nausea and anger regarding reunification with his
mother”; and that “Ms. McGee testified and opined and the Court finds persuasive
that [Blake] is a child who has been traumatized and did not want to participate in
the family sessions.” Despite these findings that the reunification attempts had
- 18 -
WILLIAMS V. CHANEY
Opinion of the Court
traumatized the child and that further counseling would re-traumatize him, the trial
court ordered more counseling aimed at reunification. The only changes in
circumstances since the October 2013 and November 2013 orders which were found
by the trial court were negative changes -- failed efforts at counseling, the child’s
increased anxiety, and mother’s continued failure to improve her behavior. The trial
court then concluded that circumstances had changed substantially to support
modifying the custody order and that modification would be in the “best interests of
the minor child[,]” but, inexplicably, the only substantive modification from the prior
order was to add in a requirement that Father find a new counselor for the child and
Mother so that the issue of revisiting Mother’s visitation privileges with the child
could be evaluated further. Specifically, the trial court ordered, in relevant part, that:
3. [Father] shall, within 30 days of the entry of this
Order, select a licensed Counselor/Psychologist to counsel
with the minor child, with the Mother, and, as deemed
appropriate, with Mother and minor child, to explore the
issue of resuming visitation between Mother and child,
even on a limited basis.
4. Any joint sessions, or other direct contact between
Mother and minor child, shall be as directed by the licensed
Counselor/Psychologist, as he/she determines such contact
to be not detrimental to the mental and emotional well-
being of the minor child.
5. Any failure of the Plaintiff/Mother to cooperate with,
or promptly pay for the services of, the licensed
Counselor/Psychologist, will be taken into consideration by
the Court in future proceedings, and could subject her to
the contempt powers of the Court.
- 19 -
WILLIAMS V. CHANEY
Opinion of the Court
6. [Father] shall take the steps reasonably necessary to
choose the counselor, provide the contact information to
[Mother’s] Attorney, and to ensure the minor child’s
attendance and participation in scheduled sessions. Any
failure of the Defendant/Father to comply with these
directives will be taken into consideration by the Court in
future proceedings, and could subject him to the contempt
powers of the Court.
These requirements seem to conflict with everything else in the court’s order up to
this point.
The trial court may have misinterpreted this Court’s prior opinion as directing
the court to conclude that a substantial change had occurred supporting modification
in Mother’s favor, but that is not what our prior opinion stated. Our previous opinion
simply held:
In sum, the trial court’s custody order must be
vacated because (1) the trial court failed to make
conclusions of law; (2) the order modified custody without
first finding that there had been a substantial change of
circumstances, and (3) the order denied [Mother] any
visitation with the child without the findings required to
support such an order. . . .
. . . . On remand, the trial court should enter
findings based on the preponderance of the evidence and
conclusions of law supported by its findings. If the trial
court modifies the custody order of 10 October 2013 or its
associated supplemental order of 19 November 2013, its
findings must support an ultimate finding that there has
been a substantial change of circumstances that affects the
welfare of the child. If the trial court denies [Mother]
reasonable visitation its evidentiary findings should
support an ultimate finding that [Mother] is either unfit to
- 20 -
WILLIAMS V. CHANEY
Opinion of the Court
visit with the child or that visitation with [Mother] is not
in the child’s best interest.
Williams, __ N.C. App. __, 782 S.E.2d 122, 2016 WL 409901, at *6, 2016 N.C. App.
LEXIS 124, at *14-15. In other words, the trial court was free to make additional
findings of fact and depending upon those facts, to do any of the following on remand:
(1) conclude that there had been no substantial change of circumstances which would
justify modifying Mother’s limited contact as set forth in the October 2013 order in
any way, either by increasing it or decreasing it; (2) conclude that there had been a
substantial change of circumstances which justifies modification of custody, but enter
an order decreasing Mother’s contact with the child, if this would be in the child’s
best interest; or (3) modify custody in some other way, depending upon the new
findings of fact and upon conclusions of law to support modification and
demonstrating that the particular modification ordered would be in the child’s best
interest.
Instead, on remand, the trial court made the findings of fact as discussed above
and the following conclusion of law:
2. There has been a substantial change of
circumstances affecting the welfare of the minor child since
the entry of the January 30, 2013 Order which have
affected the best interest and general welfare of the minor
child, and it is now in the best interests of the minor child
to modify visitation.
- 21 -
WILLIAMS V. CHANEY
Opinion of the Court
Based upon the trial court’s findings, we are unable to discern any changes of
circumstances since the October and November 2013 orders which would justify
increasing Mother’s contact with Blake in any way. The findings of fact also do not
show how another attempt at counseling and reunification could possibly be in the
child’s best interest. Based upon the trial court’s finding that there was no showing
that the telephone contact and once-weekly attendance of an extracurricular event
had been harmful to the child, it would seem logical that the trial court would have
simply concluded that there was no reason to modify the prior order.
Since the findings of fact are not challenged on appeal and since only one
conclusion of law can logically follow from these findings, we vacate only the trial
court’s conclusion of law and decretal provisions noted above of the 31 May 2016
order. The findings of fact are affirmed. On remand, the trial court shall enter an
order with the same findings of fact as in the order on appeal and a conclusion of law
that there has been no showing of a substantial change in circumstances which would
justify modification of Mother’s limited visitation as set forth in the 10 October 2013
order, nor would any modification be in Blake’s best interests. See, e.g., Pulliam v.
Smith, 348 N.C. 616, 619, 501 S.E.2d 898, 899 (1998) (“The welfare of the child has
always been the polar star which guides the courts in awarding custody.”). There is
no factual or legal basis to order more reunification counseling.
Conclusion
- 22 -
WILLIAMS V. CHANEY
Opinion of the Court
Accordingly, we hold that the trial court’s second conclusion of law is not
supported by its findings and that the requirement of additional counseling in
particular is not supported by either the findings of fact or the conclusion of law. We
therefore vacate only the second conclusion of law and decretal provisions 3, 4, 5, and
6 of the order on appeal. The findings of fact in the 31 May 2016 order were not
challenged on appeal and we affirm these findings. We remand this matter for entry
of an order which incorporates these same findings of fact and denies modification of
the 10 October 2013 order, as described above.
The 2013 order was entered a long time ago, and much has happened and many
orders have been entered since 2013. To assist the parties in understanding which
order provisions the parties need to follow after this remand, the trial court’s new
order on remand should also simply note that Mother already completed the
psychological evaluation as ordered in the 10 October 2013 order; and that the
supplemental provisions of the 19 November 2013 order regarding the Child and
Family Treatment Team and counseling have also been completed. Since there has
been no substantial change of circumstances justifying modification of the October
2013 order, Mother’s visitation upon remand shall be exactly the same as set forth in
the 10 October 2013 order in decretal provision 1, subsections (a) and (b); these are
the very same provisions as set forth in decretal sections 1 and 2 of the order on
- 23 -
WILLIAMS V. CHANEY
Opinion of the Court
appeal, and we have not vacated these two decretal provisions since they are
unchanged from the 10 October 2013 order.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Chief Judge McGEE and Judge TYSON concur.
- 24 -