{ "id": 9190744, "name": "KARAN ANN HICKS, Plaintiff v. ANDREW SCOTT ALFORD, Defendant", "name_abbreviation": "Hicks v. Alford", "decision_date": "2003-03-04", "docket_number": "No. COA02-617", "first_page": "384", "last_page": "391", "citations": [ { "type": "official", "cite": "156 N.C. App. 384" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "573 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "758", "parenthetical": "concluding that change of custody was warranted where denial of visitation rights was one of the factors constituting a substantial change of circumstances affecting the child" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 523", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250877 ], "year": 2002, "pin_cites": [ { "parenthetical": "concluding that change of custody was warranted where denial of visitation rights was one of the factors constituting a substantial change of circumstances affecting the child" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0523-01" ] }, { "cite": "346 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "279" }, { "page": "280" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 244", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358601 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "248" }, { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0244-01" ] }, { "cite": "479 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "34", "parenthetical": "concluding that, where the appellant failed to include relevant portions of the transcript on appeal, the Court would not engage in speculation as to potential error by the trial court" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 136", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11865801 ], "year": 1997, "pin_cites": [ { "page": "139", "parenthetical": "concluding that, where the appellant failed to include relevant portions of the transcript on appeal, the Court would not engage in speculation as to potential error by the trial court" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0136-01" ] }, { "cite": "274 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560069 ], "year": 1968, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0328-01" ] }, { "cite": "298 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "644" } ], "opinion_index": 0 }, { "cite": "307 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562282 ], "year": 1983, "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0321-01" ] }, { "cite": "509 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "805", "parenthetical": "noting that, on remand, the trial court must rely upon the existing record, but may also in its sole discretion receive such further evidence and further argument from the parties as it deems necessary and appropriate to comply with this Court's opinion" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 36", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11236874 ], "year": 1999, "pin_cites": [ { "page": "38", "parenthetical": "noting that, on remand, the trial court must rely upon the existing record, but may also in its sole discretion receive such further evidence and further argument from the parties as it deems necessary and appropriate to comply with this Court's opinion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0036-01" ] }, { "cite": "545 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "782", "parenthetical": "stating that, on remand, \"[i]t is left in the trial court's discretion whether the taking of additional evidence is necessary\"" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 544", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436004 ], "year": 2001, "pin_cites": [ { "page": "549", "parenthetical": "stating that, on remand, \"[i]t is left in the trial court's discretion whether the taking of additional evidence is necessary\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0544-01" ] } ], "analysis": { "cardinality": 640, "char_count": 16040, "ocr_confidence": 0.746, "pagerank": { "raw": 3.0949720198673475e-07, "percentile": 0.8588946691486646 }, "sha256": "543161b979db2572f5abe062d24d04de7cc4e8616bd77ab04808c512486f13e1", "simhash": "1:e4bea68e6a463974", "word_count": 2618 }, "last_updated": "2023-07-14T21:05:49.893248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and LEVINSON concur." ], "parties": [ "KARAN ANN HICKS, Plaintiff v. ANDREW SCOTT ALFORD, Defendant" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nKaran Ann Hicks (\u201cplaintiff\u2019) appeals from an order of the trial court granting Andrew Scott Alford (\u201cdefendant\u201d) custody of the minor child of plaintiff and defendant. For the reasons stated herein, we affirm the order of the trial court.\nPlaintiff and defendant are the natural parents of Jenny Lynne Hicks (\u201cthe minor child\u201d), who was born 2 October 1998. Plaintiff and defendant never married. On 2 July 1999, a consent order was filed in Forsyth County District Court awarding joint legal custody of the minor child to both parents. The order granted plaintiff primary physical custody and provided defendant visitation rights.\nOn 10 July 2000, defendant filed a motion for change of custody, alleging that plaintiff and certain members of her family had interfered with defendant\u2019s visitation rights to such extent that a change in custody was warranted. On 12 September 2000, the trial court concluded that plaintiff\u2019s actions in denying defendant visitation constituted a substantial change in circumstances and entered an order granting sole custody of the minor child to defendant. Plaintiff appealed to this Court, which vacated the order of the trial court on the grounds that the order did not contain the requisite findings of fact as to how the change of circumstances affected the welfare of the minor child. On remand, after hearing arguments of counsel and reviewing the evidence presented at the previous hearing, the trial court made the following pertinent .findings of fact:\n6. On June 27, 1999, the Defendant, with his parents and fianc\u00e9e, attempted to exercise visitation and went to the Plaintiff\u2019s residence to pick up the said minor child. That the Plaintiff and her family surrounded the Defendant\u2019s car shouting obscenities and threats to the Defendant and his family.\n7. That the Defendant attempted to exercise visitation on July 24, 1999, and on July 31, 1999, which was arbitrarily denied by the Plaintiff herein.\n8. On August 6, 1999 and August 7, 1999, Defendant attempted to exercise visitation with the minor child, which was unsuccessful.\n9. On or about August 13, 1999, the Defendant returned a phone call from Plaintiff. Plaintiffs father answered the phone and commenced at least a thirty minute diatribe against the Defendant. Said diatribe contained at least three hundred and fifty expletives, including threats against the Defendant, and statements that the Defendant should give up his parental rights. Further, Plaintiffs father informed the Defendant that he, \u201chated your \u2018f-a.\u2019 \u201d Further, Plaintiff\u2019s father told the Defendant, \u201cI\u2019ll fight you to hell and back, you g\u2014 d\u2014 back stabbing m\u2014 f \u2014 \u201d and statements, \u201cthis kid is going to hate your a \u2014 ,\u201d and informed the Defendant he was not the child\u2019s father. Defendant never responded to Plaintiff\u2019s father during this conversation.\n10. In July 1999, Defendant filed a Motion for Contempt against the Plaintiff for his failure to have visitation. In an Order dated November 11, 1999, the Honorable Laurie Hutchens found the Plaintiff in contempt and ordered that maternal grandfather \u201cBuddy Hicks\u201d not to be present at the exchanges. Judge Hutchens found that the Plaintiff could purge herself of contempt by allowing the specified visitation.\n11. The Defendant attempted visitation on October 16, 1999, and was refused by the Plaintiff. Plaintiff\u2019s father was present, in violation of the Court Order. On October 29, 1999, the Defendant attempted to talk with the Plaintiff in a telephone conversation and was verbally abused in language similar to that used by the maternal grandfather on August 13, 1999.\n12. The Defendant attempted visitation on January 16, 2000. On January 13, 2000, the Defendant attempted to call the Plaintiff and the Plaintiff would not cooperate and would not return the Defendant\u2019s phone calls. That said phone calls were made in an attempt to exercise visitation.\n13. Plaintiff, Plaintiff\u2019s mother and Plaintiff\u2019s father have all made demands on the Defendant for him to give up his parental rights with respect to said minor child.\n14. On May 19, 2000, Defendant met the Plaintiff at the minor child\u2019s orthopedic doctor\u2019s office located in Winston-Salem. Plaintiff did invite the Defendant to attend said doctor\u2019s appointment, and gave the Defendant the time of the appointment. However, while the Defendant was at the doctor\u2019s office, the Plaintiff refused to cooperate with the Defendant in filling out medical records regarding the minor child.\n15. On June 4, 2000, the Defendant attempted to return the minor child after visitation and went to a church parking lot next to Plaintiffs residence. Plaintiffs father was present, and Plaintiff assaulted Defendant\u2019s fianc\u00e9e and Plaintiff\u2019s father assaulted the Defendant in the presence of the minor child.\n16. On June 5, 2000, the Defendant attempted to call the Plaintiff at her employment and ask how the minor daughter was after the previous day\u2019s incident. Plaintiff slammed the phone down without responding. Defendant was not belligerent in his conversation with the Plaintiff.\n17. The Plaintiff filed a 50B Domestic Violence action in Stokes County and obtained an Ex Parte Order not allowing the Defendant to come near her residence. As a result, the Defendant lost his one-week vacation period with the minor child beginning on July 1, 2000 and ending on July 9, 2000. The Ex Parte Order was dissolved and the 50B Domestic Violence Order was not allowed.\n18. The Plaintiff testified that if Defendant was late for visitation, she would not wait for him. Defendant lives approximately two hours from the Plaintiff and has to travel Interstate 85 North from Charlotte to Highway 52 North near Davidson County. He encounters traffic delays and sometimes does not get out of work until 5:00 or 6:00 p.m. The Plaintiff refused to cooperate with Defendant in his attempts to exercise his visitation.\n19. The Defendant requested the Plaintiff\u2019s new telephone number. Plaintiff admitted on the stand that she would not give her new telephone number to the Defendant, thus denying him any contact with her.\n20. The Plaintiff has had the means and ability to comply with [the consent order] and Judge Hutchens\u2019 Order, but she has failed to do so, and that said failure is willful.\n21. Since the last Order, there have been serious acts of hostility and animosity on a consistent basis by Plaintiff and her family directed to the Defendant. That it is not in the best interest of the minor child for her custody to remain with the Plaintiff.\n22. That it is in the best interest of the minor child to develop a relationship with both parents. That the actions of the mother and her parents have interfered with the father developing a relationship with the child which is not in the best interest of the minor child and will continue to adversely affect the welfare of said minor child, if allowed to continue.\nBased on the foregoing findings of fact, the trial court concluded, inter alia,\n4. That there has been a substantial and material change of circumstances by virtue of the hostility and animosity by Plaintiff and her family to the Defendant herein, and it is in the best interest of the minor child that the custody be changed and the Defendant granted custody of the minor child subject to visitation as allowed hereinafter.\n5. That it is in the best interest of the minor child to develop a relationship with both parents. That the actions of the mother and her parents have interfered with the father developing a relationship with the child which is not in the best interest of the minor child and will continue to adversely affect the welfare of said minor child, if allowed to continue.\nHaving so concluded, the trial court entered an order awarding defendant sole legal custody and control of the minor child, and granting visitation rights to plaintiff. From this order, plaintiff appeals.\nPlaintiff argues that the trial court erred in failing to require additional testimony on remand as to how the substantial change of circumstances affected the minor child, and further contends that, as there was no additional evidence submitted on remand, there was no evidence to support the trial court\u2019s findings of fact and conclusions of law in its order granting custody to defendant. For the reasons stated hereafter, we affirm the order of the trial court.\nPlaintiff asserts that, by failing to require additional evidence on remand as to what effect, if any, the substantial change in circumstances had on the minor child, the trial court disregarded this Court\u2019s previous opinion and entered a custody order sua sponte. We disagree.\nIn this Court\u2019s previous opinion, we remanded the case to the trial court \u201cfor a determination of whether the substantial change in circumstances affected the welfare of the minor child.\u201d Contrary to plaintiffs assertions, the opinion did not specifically order the trial court to hold a new hearing or receive new evidence. Nor did the Court conclude that the record was devoid of evidence regarding the effect of the change of circumstances on the minor child. Rather, the order was vacated and the matter remanded because the order \u201clack[ed] the requisite findings of fact as to how the change in circumstances affected the welfare of the minor child.\u201d Whether on remand for additional findings a trial court receives new evidence or relies on previous evidence submitted is a matter within the discretion of the trial court. See Hendricks v. Sanks, 143 N.C. App. 544, 549, 545 S.E.2d 779, 782 (2001) (stating that, on remand, \u201c[i]t is left in the trial court\u2019s discretion whether the taking of additional evidence is necessary\u201d); Heath v. Heath, 132 N.C. App. 36, 38, 509 S.E.2d 804, 805 (1999) (noting that, on remand, the trial court must rely upon the existing record, but may also in its sole discretion receive such further evidence and further argument from the parties as it deems necessary and appropriate to comply with this Court\u2019s opinion). Plaintiff cites no authority to the contrary, and we have discovered none. It was therefore within the trial court\u2019s discretion to determine whether additional evidence was necessary regarding what effect the substantial change in circumstances had on the minor child. On remand, the trial court heard additional arguments by counsel and reviewed the evidence presented at the previous hearing, but determined that new evidence was unnecessary. We detect no abuse of discretion by the trial court in its determination, and we therefore overrule plaintiff\u2019s assignment of error.\nPlaintiff further argues that there was insufficient evidence to support the trial court\u2019s findings concerning the effect of the substantial change in circumstances on the minor child. Plaintiff failed to include in her appeal a transcript of the evidence presented to the trial court. Nor was a transcript of the evidence included in plaintiff\u2019s previous appeal of this matter to the Court. \u201cIf the appellant intends to urge on appeal that a finding or conclusion of the trial court is unsupported by the evidence or is contrary to the evidence, the appellant shall file with the record on appeal a transcript of all evidence relevant to such finding or conclusion.\u201d N.C.R. App. P. 7(a)(1) (2003). Similarly, Rule 9 of the North Carolina Rules of Appellate Procedure requires the appellant to include in the record on appeal \u201cso much of the evidence ... as is necessary for an understanding of all errors assigned.\u201d N.C.R. App. P. 9(a)(1)(e) (2003). It is the duty of the appellant to ensure that the record is complete. See State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983). \u201cAn appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court.\u201d State v. Williams, 274 N.C. 328, 333, 163 S.E.2d.353, 357 (1968). Without the transcript, we are unable to review plaintiffs argument that the trial court erred in making findings of fact that are unsupported by the evidence. See Pharr v. Worley, 125 N.C. App. 136, 139, 479 S.E.2d 32, 34 (1997) (concluding that, where the appellant failed to include relevant portions of the transcript on appeal, the Court would not engage in speculation as to potential error by the trial court). We therefore overrule this assignment of error.\nBy her final argument, plaintiff asserts that the trial court\u2019s findings are insufficient to support a modification of custody. We disagree.\nWhere interference by one parent with the visitation privileges of the other parent \u201cbecomes so pervasive as to harm the child\u2019s close relationship with the noncustodial parent, there can be a conclusion drawn that the actions of the custodial parent show a disregard for the best interests of the child, warranting a change of custody.\u201d Woncik v. Woncik, 82 N.C. App. 244, 248, 346 S.E.2d 277, 279 (1986); see also Shipman v. Shipman, 155 N.C. App. 523, 573 S.E.2d 755, 758 (2002) (concluding that change of custody was warranted where denial of visitation rights was one of the factors constituting a substantial change of circumstances affecting the child).\nIn the instant case, the trial court made numerous findings of fact detailing plaintiff\u2019s pervasive and harmful interference with defendant\u2019s visitation rights, as well as violent actions by plaintiff and her family directed at defendant in the presence of the minor child. The trial court found that plaintiff\u2019s consistent and willful refusal to allow defendant to exercise his visitation rights had \u201cinterfered with the father developing a relationship with the child which is not in the best interest of the minor child and will continue to adversely affect the welfare of said minor child, if allowed to continue.\u201d In Woncik, the Court affirmed a change of custody where there was pervasive interference with the father\u2019s visitation rights, as well as \u201cconduct undertaken deliberately to belittle the [father] in the mind of his child.\u201d Woncik, 82 N.C. App. at 249, 346 S.E.2d at 280. Here, plaintiff\u2019s actions have prevented defendant from developing a relationship with his daughter, resulting in an adverse effect on the welfare of the minor child. We conclude that the trial court\u2019s findings properly support its conclusion that a change of custody was warranted, and we therefore overrule this assignment of error.\nThe order of the trial court is hereby\nAffirmed.\nJudges TYSON and LEVINSON concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Jerry D. Jordan for plaintiff appellant.", "Metcalf & Beal, L.L.P., by Christopher L. Beal, for defendant appellee." ], "corrections": "", "head_matter": "KARAN ANN HICKS, Plaintiff v. ANDREW SCOTT ALFORD, Defendant\nNo. COA02-617\n(Filed 4 March 2003)\n1. Appeal and Error\u2014 hearing after remand for new findings \u2014 new evidence not required\nIt is within a trial court\u2019s discretion to receive new evidence or to rely on previous evidence after a remand for additional findings, and the trial court in this case did not abuse its discretion by not requiring additional testimony after the case was remanded for a determination of whether a substantial change in circumstances affected the welfare of the child.\n2. Appeal and Error\u2014 record \u2014 duty of appellant to complete\nIt is the duty of the appellant to ensure that the record on appeal is complete, and this plaintiff\u2019s argument that the court\u2019s findings were not supported by the evidence was not considered where plaintiff did not include in the record a transcript of the evidence.\n3. Child Support, Custody, and Visitation\u2014 change of custody \u2014 findings\u2014sufficient\nThe trial court\u2019s findings were sufficient to support a modification of child custody where the court made numerous findings of fact detailing plaintiff\u2019s pervasive and harmful interference with defendant\u2019s visitation rights, as well as violent actions by plaintiff and her family directed at defendant in the presence of the minor child.\nAppeal by plaintiff from order entered 12 February 2002 by Judge Roland H. Hayes in Forsyth County District Court. Heard in the Court of Appeals 8 January 2003.\nJerry D. Jordan for plaintiff appellant.\nMetcalf & Beal, L.L.P., by Christopher L. Beal, for defendant appellee." }, "file_name": "0384-01", "first_page_order": 414, "last_page_order": 421 }