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Rogers v. Black

North Carolina Court of Appeals
Feb 5, 2008
188 N.C. App. 632 (N.C. Ct. App. 2008)


No. 07-462.

Filed February 5, 2008.

Harnett County No. 01 CVD 2274.

Appeal by defendant from order entered 23 June 2006 by Judge Jacquelyn L. Lee in Harnett County District Court. Heard in the Court of Appeals 10 December 2007.

McLeod Harrop, by Donald E. Harrop, Jr., for plaintiff-appellee. Janet K. Ledbetter for defendant-appellant.

Randy Rogers ("plaintiff-father") and Shana Black ("defendant-mother") are the unmarried biological parents of minor child A.B. The parties shared custody of A.B. pursuant to a custody order entered 13 June 2002. The custody order was entered by mutual consent of the parties, and it stated that the parties had joint custody of A.B., with defendant-mother having primary physical custody and plaintiff-father having secondary custody with visitation.

In 2003, after observing plaintiff-father change A.B.'s diaper, defendant-mother concluded that he had inappropriately touched the child, and defendant-mother caused a report to be made to the Cumberland County Department of Social Services ("DSS"). After an investigation, DSS determined the allegations of sexual abuse were unsubstantiated. In the fall of 2004, defendant-mother again reported to DSS that plaintiff-father had sexually abused A.B. DSS filed a juvenile petition alleging that plaintiff-father made inappropriate sexual contact with A.B. and initiated a second investigation into the claims. After the child had been subjected to two medical examinations and a series of psychological evaluations, and after each parent submitted to a polygraph test, DSS voluntarily dismissed the petition on 29 June 2005 because the allegations of sexual abuse were unsubstantiated. During the investigations and until the petition was dismissed, plaintiff-father voluntarily refrained from exercising the visitation granted by the consent custody order. Plaintiff-father attempted to resume visitation on 3 July 2005, but defendant-mother would not relinquish the child. Thereafter, defendant-mother sought a domestic violence protective order against plaintiff-father based on the same allegations of sexual abuse, but the trial court denied the order on 8 August 2005.

On 13 July 2005, plaintiff-father filed a motion for defendant-mother to show cause why she should not be held in contempt for violating the terms of the custody order willfully and without reasonable excuse by failing to allow plaintiff-father visitation with A.B. Defendant-mother filed a reply, and after a hearing the trial court found defendant-mother in criminal contempt and sentenced her to 30 days' incarceration, which was suspended for six months upon condition of defendant-mother's continued compliance with the terms of the custody order. On 11 October 2005, plaintiff-father moved to change the 13 June 2002 custody order and asked that defendant-mother show cause why she again failed to comply with the custody order by failing to share A.B.'s medical information with plaintiff-father. After a hearing on 15, 16, 23, and 24 May 2006, the trial court entered a new custody order removing A.B. from defendant-mother's custody and granting plaintiff-father permanent custody of A.B. The order allowed defendant-mother visitation every other Saturday from 9:00 a.m. to 6:00 p.m. and indicated that defendant-mother's visitation would be reviewed after she receives a complete forensic psychological evaluation for mental illness and to determine why she fails to recognize that plaintiff-father did not abuse or molest A.B. Defendant-mother appeals from the 23 June 2006 custody order.

Defendant-mother first argues that the custody order is void because it refers to a custody order dated 17 July 2002 instead of 13 June 2002 and because it refers to the child as A_____ R_____, although the child's name is A.B. The typographical errors that appear in the order are not the sort of errors which cause the entire order to be void. Cf. Van Engen v. Que Scientific, Inc., 151 N.C. App. 683, 689, 567 S.E.2d 179, 184 (2002) (holding that orders entered by a court without jurisdiction were void). Rather, these errors were merely clerical mistakes. See Buncombe Co. ex rel. Andres v. Newburn, 111 N.C. App. 822, 827, 433 S.E.2d 782, 785 (1993) (indicating that a clerical error is one that does not affect the substantive rights of the parties). Clerical mistakes may be corrected at any time, pursuant to N.C.G.S. § 1A-1, Rule 60(a), and they are not reversible error. Bizzell v. Bizzell, 247 N.C. 590, 606, 101 S.E.2d 668, 679 (1958) ("Technical error is not sufficient [to substantiate an appeal]. The burden is on the appellant to show prejudicial error amounting to the denial of some substantial right.").

Defendant-mother next argues that the trial court erred in concluding a substantial change in circumstances affecting the welfare of the child had occurred because the conclusion was not supported by the findings of fact, and the findings of fact were not supported by the competent evidence. In the absence of changed circumstances, defendant-mother argues the trial court erred in modifying the custody order.

Under our General Statutes, "an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party." N.C. Gen. Stat. § 50-13.7(a) (2007). "The change in circumstances contemplated by G.S. 50-13.7(a) is a change affecting the welfare of the minor child[]." Hensley v. Hensley, 21 N.C. App. 306, 307, 204 S.E.2d 228, 229 (1974). If the findings of fact support a conclusion that changed circumstances affected the welfare of the child, then the trial court was authorized to modify the custody order. The trial court concluded "[t]he Plaintiff is entitled to a modification of the prior custody order . . . in that there have been substantial and material changes in circumstances relating to the best interest and welfare of the minor child [A.B.]" This conclusion was supported by the undisputed findings of fact.

Findings of fact not assigned as error are outside the scope of appellate review. N.C.R. App. P. 10(a) (2008). Assignments of error relating to findings of fact that are not argued on appeal are deemed abandoned. N.C.R. App. P. 28(b)(6) (2008). Findings of fact not excepted to "are presumed to be correct and supported by the evidence." In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982). We first look to see whether the undisputed findings of fact in the court's order support the court's conclusion of changed circumstances.

The court's findings of fact chronicle the following events: defendant-mother's allegations of child abuse to DSS initiating two separate investigations requiring A.B. to undergo medical and psychological examinations; DSS's determination on two separate occasions that the allegations were unsubstantiated; defendant-mother's refusal to allow plaintiff-father visitation after the juvenile petition had been dismissed as unsubstantiated; the criminal charges of stalking and trespassing that defendant-mother filed when plaintiff-father attempted to exercise visitation, which also were dismissed; defendant-mother's request for a domestic violence protective order based on the same unsubstantiated allegations of sexual abuse, which was denied; and defendant-mother's conviction for contempt for her willful and unreasonable actions. This series of events clearly indicates that circumstances had changed and that A.B.'s welfare would be adversely affected by defendant-mother's unreasonable behavior. Because the undisputed findings of fact sufficiently support the court's conclusion that changed circumstances would adversely affect A.B., the court did not err in modifying the custody order.

Defendant-mother's further argument that other findings of fact made by the trial court were not supported by the competent evidence need not be addressed. Where the court's modification of the custody order was authorized based on the appropriate conclusion of law and the undisputed findings of fact, any error with respect to the other findings of fact would not result in a reversal, as argued by the defendant-mother.

Defendant-mother ultimately argues that the trial court erred in ordering her to receive "a complete forensic psychological evaluation designed to explore any and all potential mental illnesses as well as the Defendant's continued failure to acknowledge that the Plaintiff has not abused or molested his daughter" before the court would review the visitation portion of the order. Defendant-mother specifically argues "[s]ince the requirement for [defendant-mother] to receive a psychological evaluation was a condition of the contempt conviction, the trial court did not have the authority to order a psychological evaluation, because there is no finding of fact that [defendant-mother] was found guilty of contempt beyond a reasonable doubt inthe written Custody Order filed on 23 June 2006." In effect, defendant-mother argues that the court could not require the psychological evaluation as part of the custody order unless it entered a finding of contempt in the same order. However, defendant-mother offers no authority to support this assertion. Finding no limitation on the court's authority to require a psychological evaluation before reviewing visitation pursuant to a custody order, we overrule defendant-mother's assignment of error.

Defendant-mother also suggests that because severe limitations were placed on her right of visitation, the court is required under N.C.G.S. § 50-13.5(i) to make a finding that the parent is no longer a fit and proper parent and that the restrictions are in the best interest of the child. N.C. Gen. Stat. § 50-13.5(i) (2007). The court made the appropriate finding where it found "[t]he Defendant is no longer a fit and proper parent to maintain custody rights as granted to her [previously], and the child's best interest will be harmed if custody is not transferred to the Plaintiff." Therefore, defendant-mother's argument is without merit.

Affirmed, remanded for correction of clerical mistakes.

Judges McGEE and STEPHENS concur.

Report per Rule 30(e).

Summaries of

Rogers v. Black

North Carolina Court of Appeals
Feb 5, 2008
188 N.C. App. 632 (N.C. Ct. App. 2008)
Case details for

Rogers v. Black

Case Details

Full title:ROGERS v. BLACK

Court:North Carolina Court of Appeals

Date published: Feb 5, 2008


188 N.C. App. 632 (N.C. Ct. App. 2008)