Do as the court writes, not as it says.
That is perhaps the takeaway from the unanimous Oct. 18 state Court of Appeals ruling in Scoggin v. Scoggin, a child custody case that saw Onslow County District Court Judge William Sutton Jr. orally award custody to the mother, only to change his mind and issue a written order giving the father custody.
In June 2015, Sutton told the mother, Felicita Hayes (formerly Felicita Scoggin), in court that she would have primary physical custody of four children she shared with Christopher Scoggin. The pair, Sutton added, would share joint legal custody and Scoggin would have visitation rights.
At the time, Sutton called the decision a hard one to make.
“I just hope and pray that I’ve done the right thing,” he said.
At some point, apparently, Sutton decided that he had not.
Within days, according to the appeals court’s opinion, Sutton informed counsel for both parties that he’d had a change of heart. On Sept. 8, 2015, the district court entered its custody order, granting Scoggin primary physical custody and awarding Hayes “liberal visitation privileges.”
Hayes appealed, challenging the court’s authority to enter an order different from the one orally announced at trial. And if the court did have such authority, she argued, it would require a substantial change of circumstances occurring between the oral statements and the entered order.
The appeals court rejected that claim, citing In re O.D.S., a recently decided case in which the court “expressly rejected” an identical argument. In O.D.S., one party sought to terminate the other’s parental rights on grounds of neglect and dependency. The court stated that it found neglect as a ground for termination, but did not discuss dependency. In its written order, the court found both neglect and dependency.
On appeal, the court noted the “evolution of our Rules of Civil Procedure” regarding entry of judgment, specifically, revisions to Rule 58 specifying that oral judgments are no longer allowed in civil matters.
“[C]urrently, judgments and orders are only entered when reduced to writing, signed by the judge, and filed with the clerk of court,” the law reads.
“We conclude that O.D.S. is controlling on the issue of the trial court’s authority to enter an order that conflicts with its oral statements in court, that the court did not err by entering an order that reached a conclusion that differed from its oral pronouncement, and that defendant’s arguments for a contrary result lack merit,” Judge Valerie Zachary wrote for the unanimous panel.
He said, she said
Scoggins and Hayes were married in May 2003. Before divorcing in 2013, the couple had four children. At the time, both were serving in the U.S. Marine Corps and stationed in California. They agreed to share joint legal and physical custody of the children, who would alternate living with their two parents on a weekly basis. But Scoggins was soon transferred to Jacksonville, North Carolina, and, according to the court’s opinion, the pair modified their agreement to allow Scoggins to take the children with him.
Hayes’ attorney, James Lea III of Lea/Schultz Law in Wilmington, said that’s “sort of correct.”
“She was up in her home state and the children were enrolled in her home state and were living with her,” he said. “They worked out a Christmas exchange for visitation for him and when he got the children, he was supposed to bring them back on a date certain … and he just turned around and never brought them back again.”
In 2014, Scoggins moved to modify custody, asserting that since he and Hayes lived in North Carolina and Indiana, respectively, they could no longer adhere to the terms of the agreement. Scoggins sought primary physical custody of the children, accusing Hayes of failing to comply with the agreement.
Hayes filed a response and countermotion for custody, saying it was Scoggins who was noncompliant.
‘Really hard decision’
During a custody hearing on June 10, 2015, Sutton heard both sides of the story and “spoke for several minutes” about the considerations the court found important, stating that either parent would be “fit and proper” to have custody.
In the end, he pronounced that Scoggin and Hayes would share joint legal custody, granting Hayes primary physical custody.
“This is a really hard decision,” Sutton said.
But within a week, the court alerted the parties’ counsel of the change of heart. About three months later, the written order was filed placing the children in the primary care of Scoggin.
Lea said that he’s never seen this happen in 36 years of practicing law. Family law is difficult enough, he said, without having to explain to a client who’s expecting to get her kids back that the judge changed his mind.
“If they’re conflicted and not sure if the decision is right for some reason, then they don’t make the decision that day,” Lea said. “They go to sleep on it then call the parties back in the court and render the decision.”
Scoggin is represented by Lamar Armstrong and Eason Keeney of the Armstrong Law Firm in Smithfield. Keeney said she believes that the court got the decision right, praising Sutton for reviewing the record and ultimately doing what he thought was best, but agreed with Lea that one decision might be beneficial.
“We thought the law was pretty clear as I was writing the brief, and as I continued to research, the In re O.D.S. case came out,” Keeney said. “To me that just confirmed what we had believed to be true … but honestly my personal opinion is that judges should take everything under advisement until they’ve had time to review the evidence.”
Keeney believes that the ruling sets a bright line.
Lea believes it sets a “dangerous precedent” and “shakes the whole system.”
“I’m not going to get into the reasons but we’re going back to court alleging a change of circumstance,” he said.
Family law attorney Ilonka Aylward, Ph.D., of Charlotte was not involved in this case but was familiar with the decision and blogged about it. She believes that the decision is going to cause “a lot of uncertainty” for the recipients of adverse oral instruction. Before Scoggin, she said, a litigant could leave the courtroom and head to the clerk of court to file a notice of appeal.
But now, Aylward says, until a litigant sees the written order, he or she has no idea of what may be contained therein.
“The written order might be 100 percent different from what the judge said in the courtroom,” Aylward said. “For all you know, you won. So you wait for the written order.”
No order, no problem, right?
The problem, according to Aylward, is that written orders take time. Weeks. Months, sometimes. Maybe even a year or longer. Additionally, there is no hard date when an order must be entered, she added.
“Sometimes you never get the written order, ever,” Aylward said. “Orders get lost, get entered defectively, like In re Thompson.”
What happens in most cases, she said, and what will likely continue to happen, is that judges tell litigants what to do and litigants obey. They pay child support, they hand children over to the “winning” parent, they do what the judge says do, without a written order.
Demands related to family court are fast-paced. For instance, while the case is being finalized, children still have to be provided for.
Written orders, Aylward said, don’t always catch up.
“On one hand, it now became impractical to appeal before reading the written order,” Aylward said. “On the other hand, you still do not get to pause the litigation and wait until the written order is entered. In all likelihood, you will be pressed to abide by whatever oral instructions your judge delivered. Oh, and also, these instructions might change at any time and in any way several months or weeks later, when the order is finally entered.”
The 10-page decision is Scoggin v. Scoggin (Lawyers Weekly No. 011-343-16). The full text of the opinion is available online at nclawyersweekly.com.
Follow Heath Hamacher on Twitter @NCLWHamacherp