IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-796

Filed 7 May 2024

Mecklenburg County, No. 17-CVD-3108

DARLA MARIE CARBALLO, Plaintiff,

v.

CHRISTIAN WEBER CARBALLO, Defendant.

Appeal by Plaintiff from order entered 20 December 2022 by Judge Tracy H. 

Hewett in Mecklenburg County District Court. Heard in the Court of Appeals 20 

March 2024.

Robinson & Lawing, LLP, by Christopher M. Watford, for Plaintiff-Appellant.

Dozier Miller Law Group, by Allison P. Holstein, Kelly A. Nash, and James R. 

Pennacchia, for Defendant-Appellee.

COLLINS, Judge.

Plaintiff Darla Carballo appeals from the trial court’s order granting 

Defendant Christian Carballo permanent primary legal and physical custody of their 

minor children and denying her visitation. Plaintiff argues that the trial court denied 

her visitation without making the requisite findings of fact pursuant to N.C. Gen. 

Stat. § 50-13.5(i), and that the trial court improperly delegated its judicial authority 

by allowing the children discretion to determine whether to have visitation with her. 

Because the trial court found that visitation with Plaintiff was not in the children’s 
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best interests and any delegation of discretion to the children to determine whether 

to have visitation with Plaintiff was mere surplusage, we affirm.

I. Background

Plaintiff and Defendant were married in 1999, were separated in 2016, and are 

now divorced. Plaintiff and Defendant share three children together: Easter, born in 

October 2003; Owen, born in July 2006; and James, born in October 2009.1 The trial 

court entered a consent order for permanent child custody (“Consent Order”) on 4 

December 2018 granting Plaintiff and Defendant joint legal and physical custody of 

the children. The trial court entered an order appointing a parenting coordinator 

that same day.

Defendant filed a motion for ex parte emergency custody or, in the alternative, 

a temporary parenting arrangement on 17 November 2020, alleging that Plaintiff 

“has committed acts of physical and emotional abuse against the minor children,” and 

that “[t]he children are presently refusing to go to [Plaintiff’s] house, refusing to call, 

or participate in the visitation/custody schedule with her or at her home.” Defendant 

also filed a motion to modify the Consent Order, seeking sole permanent legal and 

physical custody of the children. In support of his motions, Defendant specifically 

alleged:

On November 6, 2020, [Plaintiff] yelled at [James] about 

his homework such that [James] started crying, shaking, 

1 We use pseudonyms to protect the identity of the children. See N.C. R. App. P. 42. Easter 

is no longer a minor and is not subject to the custody order.
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and put his fist in his mouth. When [Owen] tried to 

intervene, [Plaintiff] pushed her down forcefully. 

[Plaintiff] then told her boyfriend to call the police. A police 

officer responded, and during the call for service the officer 

said that there wasn’t enough evidence to charge anyone 

because there was no “immediate threat”. [Plaintiff] 

became smug and was heard laughing and taunting 

[Easter] while the children were crying. The next day she 

said it was her “right to punish” the children.

The trial court entered an order the next day granting Defendant emergency custody 

of the children, limiting Plaintiff’s visitation to FaceTime and phone calls, and 

scheduling a return hearing.

Plaintiff filed an answer and objection to Defendant’s motion for ex parte 

emergency custody or a temporary parenting arrangement and motion to modify the 

Consent Order on 23 November 2020. Plaintiff subsequently filed an amended 

answer and objection on 8 December 2020. The trial court appointed the Council for 

Children’s Rights as Guardian ad Litem and Custody Advocate for the children on 14 

December 2020.

Plaintiff filed a motion to modify the Consent Order on 22 December 2020, 

alleging that “[Defendant] continuously puts [Plaintiff] in a negative light to the 

children to a point where it has alienated the children from [her,] causing her to have 

an extremely strained relationship with the minor children[,]” and that “[t]he 

children have repeatedly refused to visit with [her].” Plaintiff also filed a motion for 

contempt, alleging that “[Defendant] refuses to allow [Plaintiff] to have reasonable 
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communication with the minor children when they are in his care.”2 Defendant filed 

a response to Plaintiff’s motions.

At the request of the parenting coordinator, the trial court entered an order 

appointing a family therapist on 10 March 2021.

Plaintiff filed a motion on 12 April 2021 for ex parte emergency custody or, in 

the alternative, a temporary parenting arrangement. Plaintiff alleged that “[t]he 

children have become more resistant, hostile, angry and entitled against [her,]” and 

that “[t]his sense of entitlement has been fostered and generated from [Defendant’s] 

constant apathetic and complacent attitude against [Plaintiff] and [Plaintiff’s] 

relationship with the children.” The trial court denied the motion without a hearing,

finding that Plaintiff had failed to allege facts that met the criteria for ex parte 

emergency custody.

After a return hearing on the emergency custody order and Defendant’s motion 

for a temporary parenting arrangement, the trial court entered a temporary custody 

order on 5 May 2021 granting Defendant primary physical custody of the children 

and Plaintiff visitation every other weekend. The order also allowed the parties 

“reasonable telephone and/or video contact with the children while in the other 

parent’s care.” The family therapist resigned by email on 10 September 2021 on the 

grounds that “[Defendant] stated that the children are unwilling to continue 

2 Plaintiff also filed various other motions, which are not relevant to this appeal.
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facilitated visits with [Plaintiff] and he did not believe he could make them comply[,]” 

and that the case plan was “non-workable without everyone’s commitment.” Plaintiff 

filed motions for contempt on 8 April 2022 and 9 August 2022, alleging that 

“[Defendant] has failed to facilitate reasonable telephone contact as required.”

After several hearings, the trial court entered an order modifying the Consent

Order on 20 December 2022, granting Defendant permanent primary legal and 

physical custody of the children and denying Plaintiff “specific visitation with the 

children[,]” but allowing the children “to determine, with the assistance of their 

therapists, what contact and/or visitation they should have with [Plaintiff], if any.” 

Plaintiff appealed.

II. Discussion

Plaintiff argues that the trial court denied her visitation without making the 

requisite findings of fact pursuant to N.C. Gen. Stat. § 50-13.5(i), and that the trial 

court improperly delegated its judicial authority by allowing the children discretion 

to determine whether to have visitation with her.

A. Standard of Review

When reviewing a trial court’s decision to modify an existing custody order, we

determine whether the trial court’s findings of fact are supported by substantial 

evidence. Malone-Pass v. Schultz, 280 N.C. App. 449, 463, 868 S.E.2d 327, 339 (2021). 

“Substantial evidence is such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion.” Shipman v. Shipman, 357 N.C. 471, 474, 586 
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S.E.2d 250, 253 (2003) (quotation marks and citation omitted). “[T]he trial court’s 

findings of fact are conclusive on appeal if supported by substantial evidence, even if 

there is sufficient evidence to support contrary findings.” Peters v. Pennington, 210 

N.C. App. 1, 12-13, 707 S.E.2d 724, 733 (2011) (citation omitted). “Unchallenged 

findings of fact are binding on appeal.” Scoggin v. Scoggin, 250 N.C. App. 115, 118, 

791 S.E.2d 524, 526 (2016). “In addition to evaluating whether a trial court’s findings 

of fact are supported by substantial evidence, this Court must determine if the trial 

court’s factual findings support its conclusions of law.” Shipman, 357 N.C. at 475, 

586 S.E.2d at 254 (citation omitted). Conclusions of law are reviewed de novo. 

Padilla v. Whitley de Padilla, 271 N.C. App. 246, 247, 843 S.E.2d 650, 651 (2020).

“It is a long-standing rule that the trial court is vested with broad discretion 

in cases involving child custody.” Pulliam v. Smith, 348 N.C. 616, 624, 501 S.E.2d 

898, 902 (1998) (citation omitted). “[The trial court] has the opportunity to see the 

parties in person and to hear the witnesses, and [its] decision ought not be upset on 

appeal absent a clear showing of abuse of discretion.” Id. at 625, 501 S.E.2d at 902 

(quotation marks and citation omitted). “An abuse of discretion is shown only when 

the court’s decision is manifestly unsupported by reason or is so arbitrary that it could 

not have been the result of a reasoned decision.” Paynich v. Vestal, 269 N.C. App. 

275, 278, 837 S.E.2d 433, 436 (2020) (quotation marks and citation omitted).

B. N.C. Gen. Stat. § 50-13.5(i)

Plaintiff argues that “the trial court’s order vesting Owen and James sole 
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discretion over visitation is a de facto order for no visitation for which the trial court 

failed to make the required findings under [N.C. Gen. Stat.] § 50-13.5(i).”

(capitalization altered).

“A noncustodial parent’s right of visitation is a natural and legal right which 

should not be denied unless the parent has by conduct forfeited the right or unless 

the exercise of the right would be detrimental to the best interest and welfare of the 

child.” Johnson v. Johnson, 45 N.C. App. 644, 646-47, 263 S.E.2d 822, 824 (1980) 

(quotation marks and citation omitted). “In awarding visitation privileges the court 

should be controlled by the same principle which governs the award of primary 

custody, that is, that the best interest and welfare of the child is the paramount 

consideration.” Id. (citation omitted).

N.C. Gen. Stat. § 50-13.5(i) provides:

In any case in which an award of child custody is made in 

a district court, the trial judge, prior to denying a parent 

the right of 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.

N.C. Gen. Stat. § 50-13.5(i) (2023). “Thus, before the trial court may completely 

deprive a custodial parent of visitation, the statute requires a specific finding either 

(1) that the parent is an unfit person to visit the child or (2) that such visitation rights 

are not in the best interest of the child.” Paynich, 269 N.C. App. at 279, 837 S.E.2d 

at 436 (citations omitted).
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Here, the trial court made the following findings of fact:

76. This is [a] very unusual case, in that the adult nature 

of the children and their vehemently expressed desire 

outweighs the conventional wisdom and research that the 

children should have a relationship with both parents. The 

[c]ourt, with this order, does not preclude a relationship 

with [Plaintiff] and also believes that to be in the children’s 

best interest but not forced visitation.

. . . .

78. As best interest attorneys for the children, [the Council 

for Children’s Rights] registered concerns for the children’s 

mental health if visitation is forced, and formally 

recommended that [Plaintiff] be awarded no specific 

visitation at this time unless requested and agreed upon by 

the children.

79. The [c]ourt cannot make a finding that [Plaintiff] is not 

a fit and proper parent; however, it is not in the children’s 

best interests to have forced visitation or contact with 

[Plaintiff] at this time.

80. Rather, it is in the children’s best interests for them to 

have no specified visitation with [Plaintiff], but that they 

may have reasonable visitation and/or contact with 

[Plaintiff] at the discretion of the children and their 

therapists’ recommendations.

81. It is in the best interest of these children that they 

determine, with the assistance of their therapists, what, if 

any, visitation or contact they have with [Plaintiff].

The trial court made detailed findings, including that “it is in the children’s 

best interests for them to have no specified visitation with [Plaintiff],” and thus 

complied with N.C. Gen. Stat. § 50-13.5(i) prior to denying Plaintiff visitation. In 

support of these findings of fact, the trial court also made the following unchallenged

findings of fact:
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51. The middle child [Owen] shows symptoms of PTSD, at 

least in part, as a result of the dysfunctional relationship 

with [Plaintiff].

52. [James], the youngest child, has shown signs of 

distress, which is manifested in him chewing on his shirts, 

not being able to sleep alone (even at [Defendant’s] home), 

and the cessation of funny, happy behavior. After 

visitation ceased with [Plaintiff] in August 2021, [James] 

has ceased chewing on his shirts, is able to sleep in his own 

room by himself, and has resumed his silly, happy behavior 

(like playing the kazoo).

53. The children have been exposed to hyper-derogatory 

comments about their father from [Plaintiff] and her 

parents.

54. The children have repeatedly complained about racist 

and homophobic comments made by [Plaintiff] and her 

family, and these issues were repeatedly addressed in 

therapy and with the parent coordinator. [Defendant] is 

Filipino, and the children are bi-racial, such that they 

internalize [Plaintiff’s] comments personally. 

Additionally, [Plaintiff] texted [Easter] on their 18th

birthday about a cake she had bought and the following: “I 

transfer money into your account and you can use that 

however you woukd [sic] like- donate to queer organization, 

use for senior trip-whatever you would like”. 

Unfortunately, this message, which the [c]ourt believes 

was meant to be a sincere show of acknowledgement and 

interest in [Easter’s] life, was not received as such which 

further demonstrates a tone-deafness on [Plaintiff’s] part.

. . . .

56. The children are very close to one another and to 

[Defendant]. This is a result of the stressors from 

[Plaintiff] and not from any intentional manipulation.

. . . .

65. [Plaintiff] has been more aggressive and argumentative 

with professionals than most parents in those 

professionals’ experience, which leads the court to believe 

that she also communicates, or has in the past with her 
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children in a similar manner.

The trial court’s findings of fact support its conclusions of law that “[i]t is not 

in the children’s best interest for [Plaintiff] to have specific visitation with the 

children at this time”; “[i]t is not in the children’s best interest to be forced to visit 

with [Plaintiff]”; and “[i]t is reasonable in this case for the children to determine, with 

the assistance of their therapists, what contact and/or visitation they should have 

with [Plaintiff], if any.”

As the trial court made the requisite findings of fact prior to denying Plaintiff 

visitation, and the findings of fact and conclusions of law are supported by the 

unchallenged findings of fact, the trial court did not abuse its discretion by denying 

Plaintiff visitation.

C. Delegation of Judicial Authority

Plaintiff also argues that “the trial court improperly delegated its judicial 

authority over visitation by allowing the minor children the sole discretion to 

determine whether they would have any contact with [Plaintiff].” (capitalization 

altered). However, the trial court denied Plaintiff visitation after finding that 

visitation was not in the children’s best interests. In light of the trial court’s authority 

to deny visitation pursuant to N.C. Gen. Stat. § 50-13.5(i), any delegation of discretion 

to the children to determine whether to have visitation with Plaintiff is “mere 

surplusage[.]” Routten v. Routten, 374 N.C. 571, 579, 843 S.E.2d 154, 159 (2020). As

the trial court denied Plaintiff visitation pursuant to N.C. Gen. Stat. § 50-13.5(i), the 
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trial court did not improperly delegate its judicial authority by allowing the children 

discretion to determine whether to have visitation with Plaintiff.

III. Conclusion

For the foregoing reasons, we affirm.

AFFIRMED.

Chief Judge DILLON and Judge GORE concur.