No, COA 17-1175 14" JUDICIAL DISTRICT NORTH CAROLINA COURT OF APPEALS. HOH re RenOH EE oss JACQUELINE LOUISE NEWTON, ) Plaintiff-Appellee, ) From Durham County v. ) No. 15 CVD 5703 ) JEAN-FRANCOIS GARIEPY, ) Defendant-Appellant. ) SHH HEE ne REE Sonn Deron eneH nes Eaeseee APPELLEE'S RESPONSIVE BRIEF HEH HERE SE re noni Renee tetiniennnenernsstas cit aa zB Be 22 za 8 geo $2 2 ¥ = o3o= Za = we SG o aaw4INDEX, TABLE OF CASES AND AUTHORITIES ... ARGUMEN’ I. THE COURT DID NOT IMPROPERLY CONSIDER HEARSAY TO SUPPORT ITS CUSTODY DETERMINATION. (Defendant-Appellant’s Issues #1 and #2)... Il, THE TRIAL COURT DID NOT VIOLATE DEFENDANT-APPELLANT’S FIRST AMENDMENT RIGHTS. (Defendant-Appellant’s Issue #3) ... Ill. THE RECORD AND TRANSCRIPT SUPPORT THE TRIAL COURT’S FINDINGS OF FACT. (Defendant-Appellant’s Issues #4, #5, #8, # 10, and #11) IV. THE TRIAL COURT PROPERLY CONSIDERED AND DENIED DEFENDANT. APPELLANT’S RULE 702 OBJECTION, (Issue #7), AL V. THE TRIAL COURT MADE SUFFICIENT FINDINGS TO ITS PERMANENT CUSTODY ORDER. (Issues #12 and #13) VI. THE TRIAL COURT PROPERLY ENTERED THE RESULTING ORDER O OF ‘THE PERMANENT CUSTODY HEARING IN THIS MATTER. (Issue #14). CONCLUSION 4 7 12 12 13 CERTIFICATE OF COMPLIANCE . 14 CERTIFICATE OF SERVICE we 1STABLE OF CASES AND AUTHORITIES Cases Huston y. Huston, No. COA10-941, at 8 (N.C. Ct. App. May 17, 2017)... Raynor v. Odom, 124 N.C.App. 724, 478 S.E.2d 655.. Tankala v, Pithavadian, 789 S.E.2d 31, 37 (2016)...... Wellons v. White, 229 N.C.App. 164, 748 S.E.2d 709 (2013).. White v. White, 312. N.C. 770, 777, 324 S.B.2d 204 (2013) Wonick v. Wonick, 82 N.C.App. 244, 247, 346 S.B.2d 277, 279 (1986).... Statutes N.C. R. App. P. 10(@)(1 NCGS. § 50-13.2).. NCGS. § 8-801(6).. U.S. Const, amend. INo. COA 17-1175 14" JUDICIAL DISTRICT NORTH CAROLINA COURT OF APPEALS SE ROr OO ERE ReR ER EeRERR eRe JACQUELINE LOUISE NEWTON, Plaintiff-Appellec, From Durham County v No. 15 CVD 5703 JEAN-FRANCOIS GARIEPY, ) ) ) ) ) Defendant-Appellant. ) HAO HEE OEE oa noc iar acon ie eon PLAINTIFF-APPELLEE’S BRIEF [Hobe Soar ooee ce omnis none eneE cere ARGUMENT 1. THE COURT DID NOT IMPROPERLY CONSIDER HEARSAY TO SUPPORT ITS CUSTODY DETERMINATION. (Defendant-Appellant’s Issues #1 and #2) ‘The trial court may consider temporary orders when determining the issue of permanent child custody. Raynor v. Odom, 124 N.C.App. 724, 478 S.E.2d 655, 657 (1996). Each portion of testimony related to Dr. Calloway’s report referenced in issue one of Defendant-Appellant’s brief is contained in the temporary order entered November 23, 2016, as a finding of fact and is contained in the record on appeal. (R p 114-119) Further, Dr. Calloway’s report itself was put in the case file, as Dr. Calloway was an expert appointed by the court and her report was sent directly to the Judge as required under a previous order and is therefore a part of the record on appeal. (R p- 134-168) At the temporary hearing, an affidavit prepared by Dr. Calloway was submitted into evidence with a copy of her report attached and is part of the record on appeal. At no time has Defendant-Appellant appealed the temporary custody orders. As such, any objection related to previous orders in this case or questions related to information contained in said orders is untimely and was properly overruled by the trial court. While it is true that Dr. Calloway'sreport was not entered into evidence and could therefore not be considered by the trial court at the permanent hearing, the findings of said report, which were contained in the temporary orders in this case could be considered and questions regarding such findings were admissible. (R p 114-119) Defendant did not object to the question on page 17 of the transcript, and the same was not preserved a3 an issue on appeal. N.C. R. App. P. 10(a)(1). Defendant-Appellant’s claim that the trial court found that the North Carolina Rules of Evidence did not apply to Dr. Ginger Calloway’s claims regarding Defendant-Appellant’s mentall health, is not supported by the record on appeal or the transcript. The portions of the transcript cited by Defendant-Appellant in support of such claim simply reflect that the court overruled Defendant-Appellant’s hearsay objection, as the testimony regarding Defendant-Appellant and Plaintiff-Appellee’s beliefs and opinions regarding the Dr. Calloway’s findings, which are contained in the temporary custody order entered November 23, 2016, was not hearsay. (Tp 136 -144, T p 24-25, T p 57 - 59), ‘Should this Court find that it was improper for the trial court to allow testimony regarding findings in the previous orders entered in this case, such testimony was not hearsay. “Hcarsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C.GS. § 8-801(). Defendaint-Appellant does not cite a single portion of testimony in which the declarant testified as to a statement, oral or written, made by someone other than him or herself to prove the truth of? the statement. Plaintiff-Appellee’s and Defendant-Appellant’s statement as to his or her reaction, or whether he or she agreed with Dr. Calloway’s report was a statement as to their own knowledge or belief. Further, such testimony was not offered for the purpose of proving that thefindings by Dr. Calloway were true, but instead were used to show that Defendant did not follow the previous order of this court and dismissed the opinion of the court-appointed expert. As such, the trial court properly overruled Defendant-Appellant’s hearsay objections. Defendant-Appellant’s contention that the trial court overruled his hearsay objection “claiming that hearsay objections are not valid when the party aggrieved by the rumors has not ‘made an effort to subpocna the witness and that they do not apply to expert witnesses hired by the cour”, is a gross misrepresentation of the trial court’s statement and is not supported by the transcript or the record om appeal as cited in Defendant-Appellant’s brief. With regard to the Court’s consideration of Defendant-A ppellant’s failure to follow the previous orders of the trial court, there are no North Carolina decisions to support the contention that it is improper for a trial court to consider orders from prior hearings in the same case to support a permanent custody order. Raynor v, Odom, 124 N.C.App. 724, 478 S.E.2d 655, In fact, to support its conclusion that it was not error for the trial court to consider prior temporary orders when determining the issue of child custody, the Court of Appeals held in Raynor v. Odom, that “when a trial judge is attempting to evaluate what is in the best interest of the child or whether a parent is unfit or has neglected the child, it is an undue restriction to prohibit the trial judge’s consideration of the history of the case on record.” Id. As is evidenced in the record, the trial court in this matter was concemed with Defendant- Appellant's mental health and fitness as a parent and ordered him to comply with the recommendations of the psychological evaluation to resolve such concems. (Rp 40-41) Defendant-Appellant’s failure to follow said recommendations is relevant to the issue of child custody as it illustrates Defendant-Appellant’s disregard of the trial court’s concerns, as laid out in previous orders in this case. The trial court did not err in considering the prior orders enteredin this case and Defendant-Appellant’s non-compliance with the same when evaluating the best interest of the minor child for the purpose of determining custody. Defendant-Appellant argues that the “psychological report did not constitute a judicial order” and he was therefore not required to follow the recommendations of the report. (Defendant-Appellant’s Brief p 11) Such claim is not supported by the record or transcript. For the reasons stated above, it was proper for the court to consider Defendant-Appellant’s failure to comply with prior orders entered in this matter when considering the best interest of the child, ‘Should this Court find that Defendant-Appellant’s arguments in Issue #1 and #2 are valid arguments, there is ample evidence on the record, without consideration of the few portions of testimony referenced in Defendant-Appellant’s brief and consideration for his failure to comply with the previous orders of the trial court, to support the trial court’s findings and conclusion to deny Defendant-Appellant visitation, I. THE TRIAL COURT DID NOT VIOLATE DEFENDANT-APPELLANT’S FIRST AMENDMENT RIGHTS. (Defendant-Appellant’s Issue #3) Defendant-Appellant’s First Amendment Argument is misplaced. The Free Speech Clause of the First amendment limits congressional or government regulation of private speech. U.S. Const. Amend. I. The trial court’s consideration of Defendant-Appellant’s past conduet is not a restriction on his speech and the First Amendment does not apply. Ill, THE RECORD AND TRANSCRIPT SUPPORT THE TRIAL COURT'S FINDINGS OF FACT. (Defendant-Appellant’s Issues #4, #5, #8, # 10, and #11) An abuse of discretion exists when the court’s ruling was “manifestly unsupported by reason” or “so arbitrary that it could not have been the result of a reasoned decision.” Tankala v, Pithavadian, 789 S.E.2d 31, 37 (2016) (quoting White v. White, 312 N.C. 770, 777, 324 S.B.24 204 (2013). The trial court’s findings of fact are binding on appeal if there is competentevidence in the record to support them, even if there is also evidence rebutting such finding, Wellons v. White, 229 N.C.App. 164, 748 S.E.24 709 (2013). A court’s finding is largely dependent on the court’s evaluation of the credibility of each party or witness, Wonick v, Wonick, 82 N.C.App. 244, 247, 346 $.E.2d 277, 279 (1986). As such, where the parties disagree or have competing versions of the facts, itis in the trial judge’s discretion to determine which party or witness is more credible In regard to Finding of Fact #23 (R p 126), although Defendant-Appellant testified that he was not referring to a specific individual when he referred to the individuals involved in this custody matter as “evil bitches,” there is evidence in the record to support the finding that Defendant-Appellant was referring to Plaintiff-Appellee, her counsel, and/or Dr. Calloway as “evil bitches.” (Ip 37 -38) As such, the trial court did not abuse its discretion in making such finding In regard to Finding of Fact #29 (R p 128), Defendant-Appellant’s inflexibility is, illustrated by his testimony that he doesn’t believe in supervised visitation centers and does not need or consent to supervision. (TT p 145) Defendant-Appellant expresses throughout his testimony that the way he sees things is the correct way, whether itis with regard to his mental health or what is best for the minor child, whom he has never met. Defendant’s lack of insight and lack of self-control is evidenced by his testimony regarding the nineteen-year-old, mentally handicapped girl with whom he had a sexual relationship. (T p 38-39). In regard to Finding of Fact #30, Defendant-Appellant heard testimony from Plaintiff- Appellee regarding her fear that Defendant-Appellant would take the minor child and flea to ‘Canada, yet he maintained that these anticipated actions were that of a normal father. (T p 165) Further, the Court voiced its concerns surrounding Defendant-Appellant’s mental statethroughout the pendency of this action and, yet Defendant-Appellant did not offer any evidence to rebut or address such concems. In regard to Finding of Fact #31, #55, and #58: Defendant-Appellant’s testimony contains considerable evidence to support a finding that he has significant mental health issues. A specific portion of his testimony that supports such finding is when Defendant-Appellant, in support of his position that he is fit to have custody of the minor child, states “I've been living in groups of animals such as monkeys for many years, gave birth to baby monkeys and saw them develop.” (T p 101) Where an individual argues that he is a fit parent because he has lived with monkeys and given birth to monkeys, a concer regarding his mental health rationally follows. In regard to Finding of Fact #32 and #57: On page 165 of the transcript, Defendant- Appellant states that “I'm now free of medication because me and my providers do not find any use to continue.” On page 23 of the transcript Defendant-Appellant testified that he did not have a current treating psychologist, had not sought any treatment for concerns surrounding his mental health and that he believes he is “more than fine. Very healthy.” In regard to Finding of Fact #33, #57, and #58: Plaintiff-Appellee testified regarding an incident in which Plaintiff-Appellee’s address was revealed to Defendant-Appellant during the psychological evaluation process, which was against the court order existing at the time. (T p 57) After becoming aware of Plaintiff Appelleo’s address, Defendant-Appellant emailed Plaintiff- Appellee’s counsel requesting to pick the minor child up for several days even though the court order at the time did not allow visitation due to safety concems. (Tp 57) The court order set clear boundaries for Defendant-Appellant which he clearly ignored by attempting to get, permission to see the minor child and stating that he knew where Plaintiff-Appellant lived. Defendant-Appellant also posted a video on the internet in which he expressed “I would want to10 kill her”, and did not understand why such a statement would cause fear in Plaintiff-Appellee because “anyone who listens to that podcast would conclude that I didn’t mean, uh, any violence...” (T p 36, T p 144) In regard to Finding of Fact #34 and #57: On page 18 of the transcript, in response to the question of whether he has any type of mental health issues, Defendant-Appellant responded “I do believe that I suffered from anxiety in the past. Currently, no.” In regard to Finding of Fact #36 - #40: Defendant-Appellant denied that he had sought ‘medical treatment and confirmed that he was not currently receiving medical treatment, which supports said findings. (T p 23 and 165) In regard to Finding of Fact #45: The prior orders of the trial court preventing Defendant- Appellant from having visitation with the minor child since his birth and containing Dr. Calloway’s recommendation that the court not allow supervised visits between Defendant- Appellant and the minor child, can be found in the Record on Appeal. As explained in Plaintiff Appellee’s response to Issue #2, such orders regarding the history of this case can be considered when determining permanent custody. In regard to Finding of Fact #46: Defendant-Appellant cites three portions of the transcript to support his contention that he asked Plaintiff-Appellee questions regarding the minor child on the day of the hearing, However, review of such portions reveals that none support the same, In regard to Finding of Fact #48: On page 98 of the transcript, the same page he cited in his argument, Defendant-Appellant states “Maybe her scare will disappear and that she will stop interrupting or interfering with the ability of me and her to have collaborative parent plans. She wants this to be long, but the reason she wants this to be long is that she currently has all thepowers over this child.” This statement by Defendant-Appellant clearly places all blame on Plaintiff-Appellee as he is stating that she is interfering and interrupting his ability to co-parent. Defendant-Appellant does not acknowledge any of his own action that has resulted in this litigation, In regard to Finding of Fact #49: The finding that the minor child was not accustomed to living in Defendant-Appellant’s home is supported by the evidence as the minor child has never ‘met Defendant-Appellant, let alone been in his home in Canada. (T p 124) Should this Court find that any of the above findings are not supported by the evidence, such error on behalf of the trial court would amount to no more than harmless error. “Appellate courts do not set aside verdicts and judgments for technical or harmless error; on the contrary, it ‘must appear that the error complained of was material and prejudicial, amounting to a denial of some substantial right.” Huston v. Huston, No. COA10-941, at 8 (N.C. Ct. App. May 17, 2017). In light of the substantial other evidence which supports the conclusion that it is in the best interest of the minor child that Defendant-Appellant not have any visitation, any such error by the trial court as argued by Defendant-Appellant was not material and did not amount to a denial of Defendant-Appellant’s substantial rights. THE TRIAL COURT PROPERLY CONSIDERED AND DENIED DEFENDANT- APPELLANT'S RULE 702 OBJECTION. (Issue #7) Defendant-Appellant claims that the trial court erred by refusing to hear his Rule 702 objection, but as evidenced on pages 157 — 161 of the transcript, the court heard Defendant- Appellant's objection and properly overruled the same as the substance of the testimony objected to is contained in previous orders entered in this matter and was not hearsay.12 V. THE TRIAL COURT MADE SUFFICIENT FINDINGS TO ITS PERMANENT CUSTODY ORDER. (Issues #12 and #13) Defendant-Appellant argues that the trial court did not make sufficient findings to deny his visitation with the minor child pursuant to N.C.G.S. § 50-13.5(i). Said statute states that “the trial judge prior to denying a parent reasonable visitation, shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child.” The trial court found in Finding of Fact #59 that “It is within the minor child’s best interest that his permanent legal and physical custody be placed solely with plaintiff and plaintiffs a fit and proper person to exercise sole legal and sole physical custody of the minor child with Defendant not having any visitation.” (R p 131) This finding clearly states that it is in the best interest of the minor child that Defendant not have any visitation, which meets the requirement of N.C.G.S. § 50-13.5(i). Further, as to Defendant-Appellant’s argument that a finding that he is unfit or that it is in the minor child’s best interest to not have visitation with Defendant-Appellant is not supported by the evidence, please see Plaintiff-Appellee’s arguments to Issues 1 through 11. Defendant-Appellant also claims that the trial court did not consider joint custody as required by N.C.GS. § 50-13.2(a), however, the trial court repeated numerous times throughout the trial that its focus was the minor child and his best interest. (T p 30, 161) The trial court considered joint custody as requested by Defendant-Appellant, but found that the same did not promote the best interest of the minor ehild (Tp 173). VL THE TRIAL COURT PROPERLY ENTERED THE RESULTING ORDER OF THE PERMANENT CUSTODY HEARING IN THIS MATTER. (Issue #14) Defendant-Appellant claims that the trial judge ordered him not to be present on the entry of order date, but the portion of the transeript he cites in his brief clearly states that “neither side13 has to appear on the 31°, especially one, if everything's emailed; two, if there's a request for more time.” (T p 176). Defendant-Appellant and Plaintiff-Appellee agreed on the order that was submitted to the trial court on March 16, 2017. Neither party was ordered to appear in court for entry of the order as the order was agreed upon by the parties and was submitted by email and entered without either party’s presence. CONCLUSION Based on the forgoing, Plaintiff-Appellee requests that this Court affirm the trial court's Order granting sole legal and physical custody of the minor child to Plaintiff-Appellee as entered Mareh 31, 2017. Respectfully submitted this 22” day of December 2017. ELLIS FAMILY LAW, P.L.L.C. ‘Autunin D. Osbourne, Esq. ‘Attomey for Plaintiff-Appellee P.O. Box 603 Durham, North Carolina 27702 (919)688-9400 Autumn@ellisfamilylaw.com14 CERTIFICATE OF COMPLIANCE Pursuant to Rule 28(j) of the Rules of Appellate Procedure, counsel for the Appellee certifies that the foregoing brief, which is prepared using a proportional font, is less than 3,750 words (excluding cover, indexes, table of authorities, certificate of service, and this certificate of compliance) as reported by the word-processing software, ELLIS FAMILY LAW, P.L.L.C. ‘Autumn D. Osbourne, Esq. Attomey for Petitioner-Appellee P.O. Box 603 Durham, North Carolina 27702 (919)688-9400 Autumn@ellisfamilylaw.com15 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Petitioner-Appellee’s Responsive Brief was duly served upon the following party depositing the same enclosed in a postpaid, properly addressed envelope in a Post Office or official depository under the exclusive care and custody of the United States Postal Service. JEAN-FRANCOIS GARIEPY 2180 Rue Hotel-de-Ville Sainte-Sophie, QC Canada, J5J 1K5 This the 22™ day of December 2017. ELLIS FAMILY LAW, P.L.L.C. S Gi ‘Autumh DzOsboume, Esq. Attomey for Petitioner-Appellee P.O. Box 603 Durham, North Carolina 27702 (919) 688-9400 Autumn@ellisfamilylaw.com