{ "id": 4343120, "name": "R. SCOTT BEST, Plaintiff v. AMBER L. GALLUP, Defendant", "name_abbreviation": "Best v. Gallup", "decision_date": "2011-09-06", "docket_number": "No. COA10-1488", "first_page": "483", "last_page": "491", "citations": [ { "type": "official", "cite": "215 N.C. App. 483" } ], "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": "660 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640947 ], "year": 2008, "pin_cites": [ { "page": "79", "parenthetical": "citations, quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/660/0073-01" ] }, { "cite": "660 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640930 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/se2d/660/0058-01" ] }, { "cite": "706 S.E.2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "365 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "year": 2011, "opinion_index": 0 }, { "cite": "697 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "476-77" } ], "opinion_index": 0 }, { "cite": "190 N.C. App. 61", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158575 ], "year": 2008, "pin_cites": [ { "page": "70-71", "parenthetical": "citations, quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0061-01" ] }, { "cite": "704 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2010, "pin_cites": [ { "page": "502-05", "parenthetical": "citations, quotation marks, ellipses, and brackets omitted" }, { "page": "504" } ], "opinion_index": 0 }, { "cite": "364 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152986 ], "weight": 3, "year": 2010, "pin_cites": [ { "page": "549-53" }, { "page": "550-52" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0537-01" ] }, { "cite": "484 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139523 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0068-01" ] }, { "cite": "190 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158635 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "221" }, { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0209-01" ] }, { "cite": "707 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "733", "parenthetical": "\"Unchallenged findings of fact are binding on appeal.\"" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 744, "char_count": 16522, "ocr_confidence": 0.735, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14738175855040198 }, "sha256": "1413908b7982d825519383f4f527a3970db064348b74bcee8e80f2255dd44017", "simhash": "1:5fc89562206f9d06", "word_count": 2639 }, "last_updated": "2023-07-14T18:49:09.394868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and BEASLEY concur." ], "parties": [ "R. SCOTT BEST, Plaintiff v. AMBER L. GALLUP, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nPlaintiff appeals the trial court\u2019s order dismissing his custody claim. For the following reasons, we reverse and remand.\nI. Background\nIn 2004, plaintiff and defendant had a romantic relationship and \u201cinformally adopted and raised together Defendant\u2019s niece, Ruthf.]\u201d In 2008, defendant legally adopted Ruth; plaintiff and defendant had plans to marry once plaintiff returned from a job in Iraq so that he too could legally adopt Ruth. While plaintiff was in Iraq, \u201cDefendant informed Plaintiff she was leaving him.\u201d\nOn 3 February 2010, plaintiff filed a verified complaint seeking custody of Ruth and an ex parte temporary custody order reinstating visitation with her. On 10 February 2010, defendant filed a motion to dismiss plaintiffs complaint or remove the action for improper venue. On 5 March 2010, defendant filed a motion to dismiss for plaintiffs lack of standing to bring the custody action.\nOn 12 March 2010, defendant\u2019s motions were heard; at the hearing, the trial court specifically noted that it would only be considering defendant\u2019s motions to dismiss and change venue and not the merits of the custody claim because \u201cif you prevail, then it will be transferred; if you don\u2019t, then you\u2019ll have to go through with the mediation\u201d scheduled for 1:00 p.m. that same day. Nevertheless, and despite the fact that the parties would have had no reason to be prepared to proceed on the merits of the custody claim, the \u201cmotions hearing\u201d ultimately became a custody hearing during which the trial court considered the several affidavits in the case and heard testimony from Jeff Wagner, defendant\u2019s live-in boyfriend and plaintiff himself. Both Mr. Wagner and plaintiff testified extensively about Ruth and their involvement with her. Defendant did not object to the trial court\u2019s consideration of testimonial evidence regarding custody nor to the trial court\u2019s consideration of the merits regarding custody. On 10 June 2010, the trial court entered an order, based on the 12 March 2010 hearing which (1) denied defendant\u2019s motion to dismiss or remove the case for a different venue; (2) denied defendant\u2019s motion to dismiss for lack of standing, and (3) dismissed the custody case upon unstated grounds. Plaintiff appeals.\nII. Custody\nOn appeal, neither party has challenged the trial court\u2019s denial of defendant\u2019s motions for change of venue or the motion to dismiss for lack of standing, and thus we only address the custody portion of the trial court\u2019s order. See N.C.R. App. P. 28(b)(6) (\u201cIssues not presented in a party\u2019s brief . . . will be taken as abandoned.\u201d) Furthermore, neither party has challenged the findings of fact, and thus they are binding on appeal. Peters v. Pennington,_N.C. App._,_, 707 S.E.2d 724, 733 (2011) (\u201cUnchallenged findings of fact are binding on appeal.\u201d).\nA. Conduct Inconsistent with Paramount Parental Status\nHere, plaintiff contends that the trial court\u2019s binding findings of fact do not support the trial court\u2019s conclusion of law that defendant had not acted inconsistently with her parental rights and \u201cdo not support the court\u2019s decree[,]\u201d (original in all caps), to dismiss plaintiffs case. \u201cUnder our standard of review in custody proceedings . . . [w]hether . . . findings of fact support the trial court\u2019s conclusions of law is reviewable de novo.\u201d Mason v. Dwinnell, 190 N.C. App. 209, 221, 660 S.E.2d 58, 66 (2008).\nThis case is controlled by Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997) and Boseman v. Jarrell, 364 N.C. 537, 704 S.E.2d 494 (2010); indeed, the findings of fact to a large extent seem to track the language of these cases. In Boseman, our Supreme Court stated,\nA parent has an interest in the companionship, custody, care, and control of his or her children that is protected by the United States Constitution. So long as a parent has this paramount interest in the custody of his or her children, a custody dispute with a nonparent regarding those children may not be determined by the application of the best interest of the child standard.\nA parent loses this paramount interest if he or she is found to be unfit or acts inconsistently with his or her constitutionally protected status. However, there is no bright line beyond which a parent\u2019s conduct meets this standard. . . .\nIn Price v. Howard we observed a custody dispute between a natural mother and a nonparent. The child in that case was bom into a family unit consisting of her natural mother and a man who the natural mother said was the child\u2019s father. The mother chose to rear the child in a family unit with plaintiff being the child\u2019s de facto father.\nAfter illustrating the creation of the family unit in Price, we focused our attention on the mother\u2019s voluntary grant of nonparent custody. . . .\nThus, under Price, when a parent brings a nonparent into the family unit, represents that the nonparent is a parent, and voluntarily gives custody of the child to the nonparent without creating an expectation that the relationship would be terminated, the parent has acted inconsistently with her paramount parental status.\nIn Mason v. Dwinnell, 190 N.C. App. 209, 660 S.E.2d 58 (2008), our Court of Appeals applied our decision in Price to facts quite similar to those in the case sub judice. In Mason the parties jointly decided to create a family and intentionally took steps to identify the nonparent as a parent of the child. . . . They shared caretaking and financial responsibilities for the child. As a result of the parties\u2019 creation, the nonparent became the only other adult whom the child considers a parent.\nThe parent in that case also relinquished custody of the minor child to the nonparent with no expectation that the nonparent\u2019s relationship with the child would be terminated. The parent chose to share her decision-making authority with the nonparent. The parent also executed a \u201cParenting Agreement\u201d in which she agreed that the nonparent should participate in making all major decisions regarding their child. . . .\nAs such, the natural parent created along with the nonparent a family unit in which the two acted as parents, shared decision-making authority with the nonparent, and manifested an intent that the arrangement exist indefinitely.\nThe Court of Appeals recognized that the degree of custody relinquishment in Mason differed from that in Price[, but] . . . the similarity in both cases is that if a parent cedes paramount decision-making authority, then, so long as he or she creates no expectation that the arrangement is for only a temporary period, that parent has acted inconsistently with his or her paramount parental status.\nThe record in the case sub judice indicates that defendant intentionally and voluntarily created a family unit in which plaintiff was intended to act \u2014 and acted \u2014 as a parent. . . . The record also contains ample evidence that defendant allowed plaintiff and the minor child to develop a parental relationship. . . .\nMoreover, the record indicates that defendant created no expectation that this family unit was only temporary. . . .\n. . . [Defendant has acted inconsistently with her paramount parental status.\n364 N.C. at 549-53, 704 S.E.2d at 502-05 (citations, quotation marks, ellipses, and brackets omitted). Furthermore,\nthe focus must... be on the legal parent\u2019s intent during the formation and pendency of the parent-child relationship between the third party and the child. Intentions after the ending of the relationship between the parties are not relevant because the right of the legal parent does not extend to erasing a relationship between her partner and her child which she voluntarily created and actively fostered simply because after the party\u2019s separation she regretted having done so.\nEstroff v. Chatterjee, 190 N.C. App. 61, 70-71, 660 S.E.2d 73, 79 (2008) (citations, quotation marks, and brackets omitted).\nBefore reviewing the trial court\u2019s findings of fact in light of Price and Boseman, we note that the trial court\u2019s comments upon rendering the decision reflect a misapprehension of these cases. The trial court appears to have been under the impression that because defend-ant had legally adopted Ruth, but plaintiff had not, that plain.tiff could not, as a matter of law, prevail on his custody claim. The trial court stated:\nShe has adopted the child. She\u2019s the parent of the child. He has not adopted the child. And do I think it stinks? I think it stinks. He certainly has paid \u2014 she has accepted money from him. And \u2014 and\u2014but she has made this choice. I have to respect her Constitutional right to make decisions with regard to her child. That\u2019s really not before me. If I understand correctly, it\u2019s really just the venue issue and the standing. I find that he has standing because he has connection with the child, but with regards to. the actual lawsuit, she will prevail. The law is going to have her prevail.\nSo I don\u2019t know what you guys want to do from here. She\u2019s right. I don\u2019t like it personally. I \u2014 I think it\u2019s not in the best interest of the child.\nThe trial court made the following findings of fact, which are not challenged by either party and are binding on this Court:\n7. ... the parties informally adopted and raised together Defendant\u2019s niece ....\n10. In July 2004, the parties began caring for Ruth full-time. Ruth lived with the parties in their homes in Mount Holly, North Carolina. Each shared equally in the care and custody of Ruth.\n12. In June 2004, . . . [although the parties did not live together during this time, Plaintiff continued to share in the care and custody of Ruth by caring for her while Defendant worked and keeping her overnight while Defendant was out of town. . . .\n15. From July 2004 until September 2005, . . . both parties were primary caretakers and custodians of the minor child. Defendant voluntarily created a family unit [by allowing plaintiff to take care of Ruth, attend Ruth\u2019s doctor\u2019s appointments, and pick Ruth up from daycare.]\n17. From September 2005 until late-December 2009, the parties continued to function as a family unit in the following ways:\na. The minor child calls Plaintiff \u201cDaddy\u201d with Defendant\u2019s knowledge and consent.\nb. Plaintiff represented himself as the minor child\u2019s father with Defendant\u2019s knowledge and consent.\nc. Defendant refers to Plaintiff as \u201cDaddy\u201d and \u201cDad\u201d when speaking about Plaintiff to the minor child.\nd. Plaintiff, a physician\u2019s assistant, treated Ruth for any minor illnesses.\ne. Plaintiff paid for Ruth\u2019s dental expenses.\nf. The parties lived together, shared Ruth\u2019s expenses, vacationed together, and shared custody and care of the minor child.\ng. In July of 2006, Defendant purchased a home in Garner, North Carolina for the parties and the minor child.\nh. After visiting different daycares in the area, the parties jointly selected the pre-school programs .... Defendant allowed Plaintiff to pay for a substantial portion of the minor child\u2019s daycare expenses and tuition and after-school expenses[.]\ni. Defendant listed Plaintiff on the daycare sheet and authorized Plaintiff\u2019s access to pick up the minor child from daycare. Plaintiff actively participated in the minor child\u2019s preschool activities by attending arts & crafts classes with the minor child and reading stories to the kids.\nj. Ruth\u2019s preschool teachers referred to Plaintiff has Ruth\u2019s father.\n20. The parties agreed that they would marry when Plaintiff finished his rotation in Iraq. Plaintiff would then be able to legally adopt Ruth.\n21. Although both parties interviewed with Wake County Department of Health and Human Services concerning Ruth\u2019s legal adoption, Plaintiff was unable to join in the adoption petition as a party because ... if the petitioner for adoption is unmarried, no other individual may join in the petition.\n22. After making the decision to adopt Ruth and get married, the parties announced the news to Plaintiff\u2019s former co-workers and celebrated ....\n25. While Plaintiff worked in Iraq, the parties continued to function as a family unit. . .\n... through telephone, video, and email [and by plaintiff a will leaving defendant and Ruth as his beneficiaries and a power of attorney for defendant before his departure to Iraq],\n29. ... [Even after \u201cDefendant informed Plaintiff she was leaving him\u201d] the parties continued to function as a family unit....\n34. Defendant voluntarily created a family unit by authorizing Plaintiff\u2019s access to Ruth\u2019s daycare and pre-school programs, allowing Plaintiff to jointly care for and share in decision making regarding Ruth\u2019s education, nutrition, potty training, discipline and overall raising of the minor child; allowing Plaintiff to attend Ruth\u2019s extracurricular activities together, and allowing Ruth to call Plaintiff \u201cDaddy\u201d alone and in front of others.\n38. Plaintiff is Ruth\u2019s defacto father.\n40. In October 2009, Plaintiff designated Ruth the sole beneficiary of his retirement account death benefits.\nThe findings of fact establish that defendant \u201chas acted inconsistently with her paramount parental status\u201d by \u201cced[ing] paramount decision-making authority\u201d and \u201cbring [ing] a nonparent into the family unit, representing] that the nonparent is a parent, and voluntarily giv[ing] custody of the child to the nonparent without creating an expectation that the relationship would be terminated[.]\u201d Boseman, 364 N.C. at 550-52, 704 S.E.2d at 504. The trial court\u2019s conclusion of law that defendant \u201chas not acted inconsistent with her constitutionally protected rights as an adoptive mother\u201d and the dismissal of the custody claim are therefore in error.\nB. Best Interest of the Child\nIn Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997), our Supreme Court established that the best interest of the child standard applies in a custody dispute between a legal parent and a non-parent when clear and convincing evidence demonstrates that the legal parent\u2019s conduct has been inconsistent with his or her constitutionally protected status.\nDavis v. Swan,_N.C. App._,_, 697 S.E.2d 473, 476-77 (2010), disc. review denied, 365 N.C. 76, 706 S.E.2d 239 (2011). A determination regarding the best interest of the child will not be disturbed unless there is a showing of abuse of discretion. Mason, 190 N.C. App. at 230, 660 S.E.2d at 71. (\u201cIt is well established that the district court\u2019s determination regarding the best interest of the child will not be disturbed unless there is an abuse of discretion.\u201d) Here, the trial court determined that \u201c [i]t is in the best interest of the minor child that she would have visitation with Plaintiff.\u201d Neither party challenges the trial court\u2019s determination as to best interest of the child and based on the binding findings of fact, we agree.\nIII. Conclusion\nIn conclusion, the trial court erred in concluding that defendant had not acted inconsistently with her paramount parental status, but correctly determined that it was in the best interest of Ruth to have visitation with plaintiff. Accordingly, as to the custody portion of the order, we reverse the dismissal of the plaintiff\u2019s custody claim and remand for the trial court to order a custodial schedule, including but not limited to visitation with plaintiff, and to address any other custodial issues as necessary for the best interest of the child.\nREVERSED AND REMANDED.\nJudges McGEE and BEASLEY concur.\n. A pseudonym will be used to protect the identity of the minor.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Robinson & Lawing, LLP, by Michelle D. Connell, for plaintiff-appellant.", "No brief filed for defendant-appellee." ], "corrections": "", "head_matter": "R. SCOTT BEST, Plaintiff v. AMBER L. GALLUP, Defendant\nNo. COA10-1488\n(Filed 6 September 2011)\n. 1. Child Custody and Support \u2014 acting inconsistently with paramount parental status \u2014 erroneous dismissal of claim\nThe trial court erred by dismissing plaintiffs child custody claim based on its conclusion that defendant adoptive mother had not acted inconsistently with her paramount parental status. The findings established that defendant ceded paramount decision-making authority by bringing a nonparent into the family unit, representing that the nonparent was a parent, and voluntarily giving custody of the child to the nonparent without creating an expectation that the relationship would be terminated.\n2. Child Visitation \u2014 best interests of child\nThe trial court properly concluded that it was in the best interest of the minor child to have visitation with plaintiff.\nAppeal by plaintiff from order entered 10 June 2010 by Judge Lori Christian in District Court, Wake County. Heard in the Court of Appeals 26 April 2011.\nRobinson & Lawing, LLP, by Michelle D. Connell, for plaintiff-appellant.\nNo brief filed for defendant-appellee." }, "file_name": "0483-01", "first_page_order": 493, "last_page_order": 501 }