North Carolina Lawyers Weekly
Peters v. Pennington. (Lawyers Weekly No. 11-07-0215, 42 pp.) (Robert N. Hunter Jr., J.) Appealed from Mecklenburg County District Court. (Rebecca T. Tin, J.) N.C. App. Click here for the full text of the opinion.
Holding: Where there was evidence that the defendant-mother, a child psychologist falsely accused the plaintiff-father of sexually abusing their children and implanted false memories of such abuse in her children, the trial court could conclude that the mother’s actions caused her children mental and emotional harm.
Facts
Lisa Pennington, a child psychologist, and Marco Peters, a chiropractor, were married in 1997. They had two sons who were 8 and 10 at the time the court heard this case.
After the parties separated in 2005, they entered into a separation agreement in which they agreed to share joint physical and legal custody of the children. Two months later, Peters filed a complaint seeking absolute divorce, which was awarded in February 2006. The divorce decree did not incorporate the separation agreement.
A disagreement arose between the parents pertaining to medical care and educational issues. After mediation, the parties entered into a consent order. The consent order addressed medical care, routine bedtimes for the children and preparation for school. The consent order also contained a non-disparagement clause that prevented either party from making or allowing others to make disparaging comments about each other in the presence of the children.
Subsequently Pennington filed her first motion for permanent custody and child support, alleging that Peters neglected to attend to certain matters affecting the children, including that he failed to administer medications to the children according to the consent order. Peters denied these allegations and moved for dismissal.
Pennington filed a second motion to restrict Peters’ visitation rights. She based her motion on allegations that Peters and his fiancée sexually and physically abused the children. Based on this second motion, two ex parte orders were entered: the first temporarily suspending Peters’ visitation rights until a hearing could be held and the second appointing a guardian ad litem.
Peters denied the allegations and requested the restoration of his custodial rights. After a hearing, the trial court restricted Peters’ visitation to supervised visitation to be administered by the children’s paternal grandparents, ordered the Mecklenburg County Department of Social Services to conduct a child medical evaluation, ordered joint access to school and medical records, specified administration of asthma medication, and required cooperation with the guardian ad litem per G.S. § 7B-601(c).
The court also ordered, “Neither mother nor father shall discuss with the children these, or any other, legal proceedings nor the legal case in any way.” The order also forbade both parents from discussing the sexual allegation with the children.
Pennington filed a third motion with the court to restrict and clarify the role of the guardian ad litem in the proceedings and require that he make “evidence-based decisions.” Pennington based this motion on alleged conversations with the minor children about “inappropriate” communications or touching of the children during Peters’ supervised visitations and her subsequent report of these conversations to the DSS supervisor and the guardian ad litem.
Peters filed a motion for temporary and full custody and to show cause why Pennington should not be held in contempt for violation of the order prohibiting the parties from discussing the subject matter of the litigation with the children. The motion also sought child support, attorney’s fees and a limitation on Pennington’s visitation rights.
In the motion, Peters reported that Pennington’s allegations had been investigated by appropriate authorities and were found to lack credibility or factual support. Peters alleged that Pennington’s conduct in making unfounded allegations and discussing them with the children was injurious to the children and resulted in fecal incontinence, suicidal ideations, marked change in behavior, withdrawal from family members and emotional distress.
DSS opened an investigation of Pennington based upon the Peters’ allegations. Peters’ request for a temporary injunction was granted in part, and Pennington was restrained from filing any additional complaints without the consent of the guardian ad litem.
A therapist issued a report shortly before the scheduled hearing. Dr. Pennington submitted an affidavit criticizing the therapist’s examination of the children. Peters changed counsel and Erica Burns, a Pennsylvania lawyer, was admitted pro hac vice to serve as counsel for Pennington. Meanwhile, DSS substantiated claims of neglect against Pennington.
During a three-week trial, 24 witnesses testified on two central issues: (1) whether Peters abused his sons and (2) whether Pennington’s actions in connection with her allegations of abuse were abusive and caused damage to the children. The court concluded that Peters had never physically or sexually abused the children. It also concluded that Pennington had abused her children by “manipulate[ing], whether intentionally or not, the minor children’s recollections and memories, instilling in them false images of being sexually abused by their father.”
Based on that, the court concluded that the children faced imminent threat of harm if they were in the presence of Pennington without supervision. The court named Peters as the “proper person to exercise the permanent sole physical and legal custody” of the children and that the order was in the best interests and welfare of the children.
The court further ordered that Pennington was “not a fit [or] proper person to exercise custody or unsupervised visitation with the minor children.” The order mandated therapy for both children and Pennington and required Pennington to waive confidentiality of her therapeutic records if she sought unsupervised visitation.
Finally, the court’s order specified a procedure whereby it would consider working toward supervised or unsupervised visitation between Pennington and the children, pending recommendations from the therapists. It ordered Pennington to pay all uninsured therapy costs incurred on behalf of the children due to her “role in creating this crisis.”
Pennington’s local counsel withdrew. Burns served a motion to stay enforcement of the court’s order pending appeal as well as motions for a new trial under Rule 59 and a motion to recuse the trial court judge from further proceedings in the matter. Burns alleged that the trial court refused to hear all the evidence Pennington sought to put before the court and that the court had reached its conclusions adverse to Pennington’s position before the close of evidence.
Peters, the guardian ad litem and the court sua sponte all filed responses seeking Rule 11 sanctions including attorney’s fees. The court denied the motions for stay, new trial and recusal. The court also sanctioned Burns under Rule 11 by ordering her to pay $7,750 in attorney’s fees to opposing counsel, $1,820 in attorney’s fees to the guardian ad litem and $875 for costs incurred by the court in dealing with these motions.
Pennington and Burns appealed.
Child Custody
We review permanent custody orders under the standard three-prong test for appellate review of orders resulting from a custody bench trial. We determine (1) whether the challenged findings of fact are supported by substantial evidence; (2) whether the trial court’s findings of fact support its conclusions of law; and (3) whether the trial court abused its discretion in fashioning the custody and visitation order.
Application of Correct Standard
The trial court did not – and was not required to – determine whether there had been a substantial change in circumstances affecting the welfare of the children, since the initial consent order was temporary.
An order is temporary if either (1) it is entered without prejudice to either party; (2) it states a clear and specific reconvening time in the order and the time interval between the two hearings was reasonably brief; or (3) the order does not determine all the issues.
The consent order in this case recognizes the existence of the separation agreement and indicates that the agreement gives the parties “joint physical and legal custody,” but the consent order does not incorporate or approve the separation agreement. We conclude the separation agreement never became part of the consent order.
If a prior order is temporary, the trial court can proceed directly to the “best interests” analysis, as it did here. The initial order determining custody did not modify the consent order, and the trial court correctly proceeded to the “best interests” analysis, insofar as this appeal is concerned.
Causation Finding
Pennington argued that there was no evidentiary support for the trial court’s causation finding that she “inflicted serious emotional, psychological, and physical damage on the minor children as a result of her false belief that Plaintiff/Father has abused them.”
The trial court’s conclusion that Pennington inflicted physical and emotional harm was a finding of fact. Causation is a factual inquiry. There are ample unchallenged findings of fact that support the trial court’s ultimate factual conclusion that Pennington caused physical and psychological damage to her children.
The trial court’s findings of fact likewise support the trial court’s finding that Pennington caused mental and emotional harm to her children. Pennington argued that a fact-finder cannot determine the cause of mental or emotional harm absent expert testimony regarding causation. We have never held this to be the case, and we decline to do so here. While expert testimony on causation might assist the trier of fact, it is not required to show causation.
A domestic trial court judge hears numerous child custody cases every month. She has practical experience and training in human behavior that qualifies her to make causal decisions regarding child custody.
Allocation of Custody
Pennington objected to the trial court’s allocation of legal custody. In a dispute between natural parents, child custody is awarded based on the best interests of the child. Our trial courts have wide latitude in distributing decision-making authority between the parties based on the specifics of a case.
Restrictions on Visitation
Pennington argued that the trial court impermissibly restricted her visitation with the children. Before a trial court may deny a parent “the right of reasonable visitation,” the court is required under G.S. § 50-13.5(i) to find that (1) the parent denied visitation is unfit to visit the child or (2) visitation is not in the best interests of the child.
Where the trial court’s order permits therapeutic visitation, the court was not required to apply the clear, cogent and convincing evidentiary standard that would be required if the court denied visitation altogether.
Pennington argued that the trial court abandoned its duty to determine visitation by allowing medical professionals to discontinue therapeutic visitation. As a general rule, a trial court should hesitate in delegating such decision-making authority. Here, the trial court gave Dr. Pennington’s and the boys’ therapists control over the only type of supervised visitation available to Pennington.
Because a neutral third party is vested with authority to control therapeutic visitation, the visitation arrangement does not present the problems inherent in custodian-controlled visitation.
We conclude that, under the circumstances, the trial court did not err by vesting neutral decision makers, who are in the best position to evaluate the mental condition of Pennington and the children, with the authority to craft the details of an elastic treatment and visitation program for all three individuals.
Order to Change Belief
Pennington is required by the court’s order to acknowledge that Peters did not sexually abuse their children and accept as true the trial court’s conclusion that she harmed her children. Thus, Pennington must force herself to believe that she implanted false images of sexual abuse in her children.
Presumably, she must prove to a medical professional or counselor that she genuinely believes the trial court findings were correct before being certified as rehabilitated, which may be a prerequisite to obtaining significant visitation or any level of custody in the future.
We hold that this is an unwarranted imposition under these facts. Our objection to this requirement is that it mandates that Pennington and the therapist attain a standard based upon Pennington’s beliefs rather than her behavior.
Costs
Pennington objected to the portion of the order described as a separate equitable remedy that assessed “equitable” costs against her in the form of the children’s uninsured therapy costs.
Uninsured therapy expenses are not taxable costs. Rather, they are awarded pursuant to a district court’s ability to structure child support. Consequently, the trial court’s order does not conflict with our decisions rejecting equitable awards of litigation-related costs.
The costs order requires Pennington to pay the law firm employed by Dr. Peters $266,658. The order states that $224,196 is derived from legal fees and $42,462 is derived from “expert consultation, testimony, and travel and other litigation-related expenses.”
Pennington argued that the attorney’s fees awarded were unreasonable and unnecessary. Pennington objected to the trial court’s determination that a member of Peters’ legal team had a reputation for diligence and competence as an attorney and that her hourly rate of $200 was more than reasonable relative to attorneys of comparable experience and skill in the family bar.
But the trial court had ample opportunity to observe the attorney at trial, which was sufficient to determine the reasonableness of her fee in comparison to attorneys of comparable experience and skill.
We believe the complexity of this case, the difficulty of litigation-related issues confronted by Peters’ attorneys, and the results obtained, among other things, support the trial court’s findings.
Pennington also objected to the portion of the order that required her to pay interest at 6 percent per annum. Interest on costs is expressly disallowed by statute. We vacate the portion of the trial court’s order imposing interest on costs.
Pennington also argued that the court lacked statutory authority to assess the following costs: $3,039 in copying fees, $60 in mileage reimbursements, $15 in long-distance telephone calls, $105 in postage fees, $168 in computerized research fees, and $19,253 in fees paid to an expert who Pennington claims was not subpoenaed and who did not testify at trial.
G.S. § 6-20 provides, “In actions where allowance of costs is not otherwise provided by the General Statutes, costs may be allowed in the discretion of the court. Costs awarded by the court are subject to the limitations on assessable or recoverable costs set forth in G.S. § 7A-305(d), unless specifically provided for otherwise in the General Statutes.”
When read together, it is clear that costs require statutory authorization and that section G.S. § 7A-305 or any other statute may authorize costs.
A trial court may tax expert witness fees as costs only when that witness is under subpoena. Before a trial court may assess expert witness testimony fees as costs, the testimony must be (1) reasonable, (2) necessary and (3) given while under subpoena.
In its discretion, a trial court has the authority to award costs for a subpoenaed witness’ time attending, but not testifying, at trial under G.S. § 7A-314(d), as well as transportation costs under G.S. § 7A-314(b).
On remand, the trial court shall account for a mathematical error amounting to $0.50.
Sanctions
Burns, trial counsel for Pennington, appealed the trial court’s order imposing Rule 11 sanctions against her.
There are three parts to a Rule 11 analysis: (1) factual sufficiency, (2) legal sufficiency, and (3) improper purpose. When determining factual sufficiency, a court must determine (1) whether the plaintiff undertook a reasonable inquiry into the facts and (2) whether the plaintiff, after reviewing the results of his inquiry, reasonably believed that his position was well grounded in fact.
We hold the trial court correctly decided to sanction Burns and that the specific sanction imposed did not constitute an abuse of discretion.
The trial court concluded that several factual allegations made by Burns in her post-trial motions had no factual support. She either failed to make an adequate inquiry in these factual allegations or did not reasonably believe the allegations were well-grounded in fact. The trial court also found Burns cited cases lacking a common nucleus of operative fact to the matter at bar.
On appeal, Burns stated that she remembered her co-counsel objecting at trial and that she merely paraphrased co-counsel’s objection. She conceded that she could not locate any such objection in the record. Her brief was vague as to whether she examined the transcript before or after filing her motion.
If she discovered there was no objection in the record before filing the motion, the most reasonable interpretation is that she misrepresented the record. If there was any doubt as to the contents of the trial transcript, Burns should have indicated this was the case in her motion or otherwise brought it to the trial court’s attention. Failing to examine the transcript before accusing the trial judge of bias, among other allegations, is equally dubious.
We conclude that Burns either failed to make an adequate inquiry in these factual allegations or did not reasonably believe the allegations were well-grounded in fact.
Affirmed in part, vacated in part, and remanded.
