Lamm v. Lamm. (Lawyers Weekly No. 11-07-0213, 17 pp.) (Rick Elmore, J.) Appealed from Pasquotank County District Court. (C. Christopher Bean, J.) N.C. App. Click here for the full text of the opinion.
Holding: Since the evidence indicated that the mother sought an emergency custody order – alleging sexual abuse of the parties’ son by the father – in order to frustrate the father’s summer visitation with the son, Rule 11 sanctions were warranted.
We affirm the trial court’s order modifying custody and imposing sanctions on the mother.
The parties divorced in 2005. Three children were born of their marriage.
Before the final divorce decree, the trial court appointed Dr. David A. Zoll “to conduct an impartial evaluation of the parties and the parties’ minor children.” Zoll concluded that the father should have physical custody of his son, while the defendant-mother would maintain custody of both of the parties’ daughters. Zoll concluded that if the son continued to reside with the mother, her “anger regarding the separation and divorce” might have damaged his relationship with his father.
The trial court awarded physical custody of all three children to the mother subject to reasonable visitation privileges granted to the father. The father filed a motion to modify custody based on alleged anger and violence exhibited by the son and by an ongoing disagreement about the son’s counseling.
The trial court appointed Harold J. May to perform an impartial custody evaluation of the parties and their minor children. May’s findings corroborated the court’s own findings regarding the characteristics of the parties.
While the father’s motion was pending, the mother filed an emergency motion alleging that the son would be “exposed to a substantial risk of bodily injury or sexual abuse, and an immediate order curtailing [the father’s ] visitation is necessary pursuant to” G.S. § 50-13.5(d)(2) and (3). The trial court granted an emergency custody order, pending a scheduled hearing.
Based on the mother’s allegations, the Pasquotank County Department of Social Services conducted an investigation and concluded that the allegations were unsubstantiated. At the hearing, the court dismissed the emergency custody order and awarded primary custody of the son to the father.
In its order, the trial court found that the mother’s emergency custody motion had been made “without basis in law or in fact and was interposed for [the] improper purpose” of “block[ing] [the father’s] scheduled summer visitation [with their son].”
The mother appealed.
Modification of Custody Order
The mother argued that the trial court erred by modifying the custody order because its conclusions of law did not address whether the change in custody was in the child’s best interest. When considering a motion to modify an existing child custody order, 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.
The trial court concluded that substantial changes in circumstances affecting the best interests of the parties’ son occurred warranting a modification of the existing custody order.
The trial court conflated into a single conclusion of law the three conclusions that must precede a modification of an existing custody order: (1) that “there has been a substantial change in circumstances,” (2) that the substantial “change affected the minor child,” and (3) that “a modification of custody [is] in the child’s best interests.” But a single conclusion of law may still address all three required legal conclusions, even if they might be more obviously addressed in three separate conclusions of law.
The key language is “warranting a modification.” A modification is only warranted if a change in custody is in the child’s best interest. Thus, if a trial court concludes that a modification is warranted, it follows that a change in custody is in the child’s best interest.
We next examine whether the conclusion of law is supported by the findings of fact. The mother challenged only two findings of fact in her brief; the remaining findings of fact are binding on appeal.
The mother objected to one finding, referencing “Statements made by [the son] to the social worker who conducted the investigation [as] clear indications of how he perceived his mother’s and sisters’ feelings …” on the basis that such statements were not “indications” of anything. The court made this inference itself on the basis of witness testimony, and the finding was supported by another witness.
With respect to the challenged portion of the second finding, the trial court again made an inference based on the evidence, this time that the son’s habit of referring to his father by his first name could only have been acquired at the mother’s home.
Even if we were to hold that this particular portion of this single finding of fact is not supported by the evidence, the remaining findings of fact still support the trial court’s conclusions.
The trial court did not err by concluding, as a matter of law, that a modification of the existing custody order was warranted.
The mother argues that the trial court erred by imposing Rule 11 sanctions on her for filing her emergency custody motion. The trial court ordered the mother to pay $3,500 to the father, “representing attorney’s fees incurred by [him] defending the motion filed by the [the mother] for an emergency custody order.”
We review de novo a trial court’s decision to impose mandatory sanctions under G.S. § 1A-1, Rule 11(a).
We first determine whether the trial court’s conclusions of law support its decision to impose sanctions. The conclusion the court reached that the mother’s emergency custody motion “was without basis in law or in fact and was interposed for an improper purpose” supports the trial court’s decision to impose sanctions.
Next, we examine whether the trial court’s conclusions of law are supported by its findings of fact. A trial court cannot enter an order changing custody ex parte unless the court finds that the child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the state for the purpose of evading the jurisdiction of N.C. courts.
Given the narrow exception set out in the statute, the trial court’s focus on the son’s exposure to a substantial risk of sexual abuse was entirely appropriate.
The emergency order would never have been issued except for allegations of possible sexual abuse, in that the other allegations contained in the motion were allegations that the court was already aware of and had already been presented, for the most part, in previous testimony.
A physical examination of the son conducted at a children’s hospital “revealed no evidence of sexual abuse and resulted in no referral to the Department of Social Services as would be required by law if there were suspicions of sexual abuse.”
The trial court also found that the mother had filed her emergency custody order on “the first day of Mr. Lamm’s scheduled summer visitation with” their son after he had previously refused her request to rearrange the summer vacation.
All of these findings, taken together, support the trial court’s conclusion that the mother filed the emergency custody motion for an improper purpose.
Finally, we examine whether these findings of fact are supported by sufficient evidence.We are satisfied that the findings of fact are supported by sufficient evidence. No testimony supported the mother’s insinuation that the son had been sexually abused, and we find testimony to support the other findings.
We must uphold the trial court’s decision to impose mandatory sanctions. We find no abuse of discretion in the trial court’s sanction, the award of $3,500 in attorneys’ fees to the father. Accordingly, we affirm the trial court’s imposition of Rule 11(a) sanctions.