IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-902

No. COA22-433

Filed 29 December 2022

Wake County, No. 10 CVD 20375

ROBERT RICHARD KOZEC, JR., Plaintiff,

v.

KRISTEN ANNE MURPHY, Defendant.

Appeal by Plaintiff from order entered 12 October 2021 by Judge J. Brian 

Ratledge in Wake County District Court. Heard in the Court of Appeals 16 November 

2022.

Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for plaintiffappellant. 

Schiller & Schiller, PLLC, by David G. Schiller, for defendant-appellee. 

MURPHY, Judge.

¶ 1 In its hearing on Mother’s motion to modify a permanent child custody order, 

the trial court abused its discretion by not first reviewing various child protective 

services documents, already submitted along with an affidavit as a part of the sealed 

court file pursuant to a prior N.C.G.S. § 7B-302(a1) order, before denying Father’s 

request to enter the documents as part of his evidence. Further, based upon the 

statements of the trial court and arguments by counsel, it is unclear as to whether 
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Opinion of the Court

the trial court’s exclusion of these documents was limited to an authentication basis 

or extended to exclusion under either North Carolina Rule of Evidence 803(8) or 

902(4). We vacate and remand for the trial court to hold a new hearing on Mother’s 

motion to modify permanent child custody that affords both parties the opportunity 

to present argument on the documents’ admissibility in conjunction with the trial 

court’s simultaneous review of the documents. 

BACKGROUND

¶ 2 This case arises out of the trial court’s 12 October 2021 Order Modifying 

Permanent Child Custody (“the Order”) of the minor children of Plaintiff-Appellant 

Robert Kozec (“Father”) and Defendant-Appellee Kristen Murphy (“Mother”). 

¶ 3 The parties were never married but are the parents of two children, of whom 

Mother was provided legal and physical custody and of whom Father was granted 

visitation by a permanent custody order entered 6 February 2013. On 3 November 

2016, Mother filed a motion to modify custody and sought emergency suspension of 

all contact between Father and the children. The trial court entered a Temporary 

Emergency Custody Order on 7 December 2016, suspending Father’s visitation and 

ordering he have no contact with the children. On 13 June 2017, Father filed a 

Petition for Writ of Certiorari requesting that we review this order, which a panel of 

this Court allowed on 5 July 2017; the panel in an unpublished opinion subsequently 

vacated the order because it constituted a custody modification that “d[id] not make 
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the substantial change of circumstances and its effect upon the children clear.” See 

Kozec v. Murphy (“Kozec I”), 261 N.C. App. 115, 2018 WL 3978150, *1-*3 (Aug. 21, 

2018) (unpublished) (citation and marks omitted). 

¶ 4 On 22 August 2018, one day after we filed the decision in Kozec I but more than 

a week before the mandate of our decision issued, Mother filed an Ex Parte Motion 

for Emergency Custody, seeking to suspend Father’s visitation with the minor 

children and prevent him from having any communication with them, based on 

various allegations of changed circumstances that created an imminent risk of 

physical harm to the minor children if Father was allowed to continue visiting and 

communicating with them. Mother’s 22 August 2018 motion relied heavily on 

allegations made by a therapist, Ms. Mary Jernigan, who had started seeing the 

children approximately two months prior and who initiated child protective services 

investigations in both Wake and Johnston counties after those two months. That 

same day, the trial court entered an ex parte emergency custody order, but it did not 

have jurisdiction over the matter until Kozec I’s mandate issued, resulting in us 

vacating the 22 August 2018 emergency order on 29 August 2018. On 10 September 

2018, the trial court entered an ex parte emergency order, and Mother’s 22 August 

2018 motion to modify child custody was set for a “return hearing” on 18 September 

2018. Mother filed an Amended Motion to Modify Custody on 17 September 2018, 

which contained some of the same allegations included in her 2016 motion seeking 
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emergency custody, in addition to allegations regarding matters occurring since entry 

of the 2016 order that we vacated in Kozec I. After the return hearing, the trial court 

entered a Temporary Custody Order and Notice of Hearing on 30 October 2018, 

awarding sole legal and physical custody to Mother. 

¶ 5 On 3 April 2019, the trial court entered an Order and Preliminary Injunction

that allowed the parties’ counsel, but not the parties, to access the children’s medical 

and mental health records that were ordered to be made available on the “[eleventh] 

[f]loor of the Wake County Courthouse in the Family Court Office.” The parties’ 

counsel were permitted to “review those records but [could] not make copies, take 

photographs or otherwise reproduce the records and remove them from the Wake 

County Courthouse.” However, when the attorney serving as Father’s counsel was 

permitted to withdraw from representing Father, he informed the trial court that 

Father would need access to certain records “to adequately prepare for a pending 

[o]rder to [s]how [c]ause to be heard at a later date.” The trial court entered a 

Protective Order on 21 August 2019, which concluded that “allowing [Father] access 

to the children’s private treatment records is ill-advised and not in their best interest” 

and ordered that Father could choose to call the children’s therapists as fact witnesses 

who would be constrained by a limiting instruction so as to prevent the specific 

divulging of the confidential treatment information of the minor children. 

¶ 6 On 27 December 2019, the trial court entered a Temporary Order for Child 
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Custody (Review Hearing), concluding “[t]he terms of the Temporary Custody Order 

entered [30 October 2018] shall remain in full force and effect and shall not be 

modified. [Mother] shall retain sole legal and physical custody.” 

¶ 7 Mother’s motion to modify permanent child custody was heard on 14 and 15 

June 2021. During the modification hearing, the trial court denied Father’s motion 

to admit several Wake County Child Protective Services records (“the CPS Records”),

including investigations and assessments conducted by the agency relating to the 

parties’ minor children. CPS Records were subpoenaed by Mother and the documents 

were placed under seal by the trial court’s Amended Protective Order entered 5 

February 2018. Under the Amended Protective Order, the trial court ordered the CPS 

Records to be provided to the parties’ counsel for their review. Subject to the 

provisions of N.C.G.S. § 7B-302(a1), the trial court classified the CPS Records as 

“relevant and necessary to the trial in this matter and [as being] unavailable from 

any other source” such that their disclosure to counsel was permitted. By its 5 

February 2018 order, the trial court placed significant limits on counsel’s review and 

copying of the documents.

¶ 8 After denying, without consideration of the “relevant” sealed documents, 

Father’s motion to admit the CPS Records into evidence during the 14 and 15 June 

2021 hearing, the trial court announced its ruling on Mother’s motion to modify, 

which it later memorialized in the Order entered 12 October 2021. The Order, inter 
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alia, finds as fact that Father sexually abused his own children, decrees that Mother 

shall have sole legal and physical custody, and bars Father from having contact with 

the minor children. Father timely appeals the Order. 

ANALYSIS

¶ 9 Father urges us to “vacate and reverse [the Order] and remand for a new trial 

where all the relevant evidence (including the evidence previously and erroneously 

excluded) is considered by the trial court before determining if a modification of the 

permanent custody order is warranted.” Father argues the trial court erred in 

excluding the CPS Records he attempted to offer into evidence and the findings of 

fact in the Order were, as a result of the documents’ exclusion, made under a 

misapprehension of law that requires us to vacate the Order. 

¶ 10 “‘A trial court may order the modification of an existing child custody order if 

the [trial] court determines that there has been a substantial change of circumstances 

affecting the child’s welfare and that modification is in the child’s best interests.’” 

Peeler v. Joseph, 263 N.C. App. 198, 201 (2018) (quoting Spoon v. Spoon, 233 N.C. 

App. 38, 41 (2014) (citation omitted)). “Our court reviews a trial court’s decision to 

modify an existing custody order for[] ‘(1) whether the trial court’s findings of fact are 

supported by substantial evidence[] and (2) whether those findings of fact support its 

conclusions of law.’” Id. “[W]hether changed circumstances exist is a conclusion of 

law” that we review de novo. Thomas v. Thomas, 233 N.C. App. 736, 739 (2014) 
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(citation omitted); see also Peeler, 263 N.C. App. at 201. “[C]ourts must consider and 

weigh all evidence of changed circumstances which [a]ffect or will affect the best 

interests of the child, both changed circumstances which will have salutary effects 

upon the child and those which will have adverse effects upon the child.” Hibshman 

v. Hibshman, 212 N.C. App. 113, 121 (2011) (citation and marks omitted). 

¶ 11 However, “[t]he dispositive issue here—the trial court preventing [Father] 

from presenting certain evidence—is an evidentiary issue.” Cash v. Cash, 284 N.C. 

App. 1, 2022-NCCOA-403, ¶ 14. Although Father identifies a potential conflict in our 

caselaw as to whether a de novo or an abuse of discretion standard applies to 

evidentiary issues, we apply the more onerous standard and consider whether the 

trial court abused its discretion by excluding the CPS Records.1 “A trial court abuses 

its discretion when it acts under a misapprehension of law.” Id. (citations omitted). 

¶ 12 As to the documents at the heart of the dispositive issue raised by this appeal, 

at the modification hearing, the trial court denied Father’s motion to admit the CPS 

Records on the basis that Father did not have “any[one] to come and . . . authenticate 

or, as [Mother’s counsel] aptly put it, cross-examine maybe what is or isn’t in the 

1 In State v. Clemons, 274 N.C. App. 401, 409-12 (2020) (citations omitted), we discussed the

conflict in the context of our review of a “decision regarding authentication” and stated, “[b]ased on . . 

. our extensive caselaw explicitly applying de novo review on issues of authentication, we conduct de 

novo review of whether the evidence at issue here was properly authenticated.” However, in this case, 

we do not make a determination about which standard of review should apply because the result would 

be the same under either standard. 
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report.” This basis was erroneous as it appears it was rooted in a misapprehension 

of law that child protective services records must be authenticated by live witness 

testimony even where they may qualify as public records under Rule 902(4). Under 

Rule 902(4), “[e]xtrinsic evidence of authenticity as a condition precedent to 

admissibility is not required” for the following records:

(4) Certified Copies of Public Records.—A copy of an official 

record or report or entry therein, or of a document 

authorized by law to be recorded or filed and actually 

recorded or filed in a public office, including data 

compilations in any form, certified as correct by the 

custodian or other person authorized to make the 

certification by certificate complying with paragraph (1), 

(2), or (3) or complying with any law of the United States 

or of this State. 

N.C.G.S. § 8C-1, Rule 902(4) (2021); see id. § 8C-1, Rule 1005 (2021) (“The contents of 

an official record, or of a document authorized to be recorded or filed and actually 

recorded or filed, including data compilations in any form, if otherwise admissible, 

may be proved by copy, certified as correct in accordance with Rule 902 . . . .”). We 

therefore hold that a trial court acts under a misapprehension of law and abuses its 

discretion where it excludes documents on the basis that there is no live witness 

present to authenticate them without first determining whether they fall under Rule 

902(4). 

¶ 13 Here, even when Father’s counsel reiterated during the hearing that the

documents were CPS Records embraced under Rule 902(4) and do not require 
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authentication by live witness testimony, the trial court noted its past understanding 

was that child protective services records and other public records require that 

“somebody . . . authenticate[] the[] records or [say,] ‘[y]eah, this is what it says to be.’” 

The trial court, in finishing with Father’s counsel’s argument, characterized the 

origin of its reasoning: “So it’s not your argument, okay, that’s the policy.” By

excluding the CPS Records based on this apparent policy without first determining 

they were not records that may be authenticated by certification under Rule 902(4), 

the trial court acted under a misapprehension of law. 

¶ 14 Mother’s initial response—that Father allegedly did not have the affidavit to 

present to the trial court during the hearing because he did not subpoena the CPS 

Records—does not alter our conclusion. Mother contends “the [trial] court [] did not 

actually have the authenticating affidavit before it” and “[Father] should not now be 

heard to complain that the trial judge would not admit evidence that the trial judge 

did not have before him based upon an authenticating affidavit that was also not 

before him.” We are not convinced. Pursuant to the non-traditional offer of proof 

employed by the trial court here, the authenticating affidavit certifying the CPS 

Records as public records is properly before us on appeal. Based on when the affidavit 

was signed and when Wake County Child Protective Services was ordered to produce 

the CPS Records pursuant to the Amended Protective Order entered 5 February 2018, 

the Record demonstrates the affidavit was supplied with the CPS Records and existed 
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long before the June 2021 hearing on Mother’s motion. There was no indication at 

the hearing that Father did not have the affidavit to present to the trial court nor 

that the decision excluding the CPS Records was due to Father lacking the affidavit. 

Indeed, as our holding emphasizes, supra ¶¶ 12-13, the trial court did not consider 

the affidavit at all because it believed live witness testimony was necessary to 

authenticate the CPS Records and did not review the sealed documents. 

¶ 15 As to the prejudice to Father from the exclusion of the CPS Records, such 

prejudice may be relevant in our analysis if we were determining whether the trial 

court correctly applied the law that it did not misapprehend. But our inquiry in the 

case sub judice is focused on a misapprehension of law that is the basis of the trial 

court’s exclusion of evidence. Where a trial court acts under a misapprehension of 

law in excluding evidence, it commits an abuse of discretion, and this abuse of 

discretion must be remedied by vacating and remanding for the parties to have a full 

opportunity to be heard upon trial court’s corrected apprehension of the applicable 

law. See, e.g., Cash, 2022-NCCOA-403 at ¶¶ 15-27. We hold that such an abuse of 

discretion occurred here with the trial court’s erroneous requirement that the CPS 

Records must be authenticated by live witness testimony even if the documents

qualified as public records under Rule 902(4). However, this is not the end our 

inquiry on appeal.

¶ 16 Mirroring his contentions below regarding the admissibility of the documents, 
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Father argues the CPS Records should have been considered by the trial court as they 

are embraced by the public records exception to the hearsay rule provided by Rule 

803(8). The trial court had indicated it was skeptical of Father’s assertions that the 

CPS Records fell under the hearsay exception in Rule 803(8) and qualified as public 

records that may be authenticated by certification under Rule 902(4). See N.C.G.S. § 

8C-1, Rule 803(8) (2021); N.C.G.S. § 8C-1, Rule 902(4) (2021). The trial court 

ultimately did not contain a stated rationale in its written order excluding the CPS 

Records, which stated, “[Father], in his case in chief, moved for admission of the [CPS 

Records], which had been previously subpoenaed by [Mother] for a prior hearing in 

this matter. . . . [Mother] objected to the introduction of these records, and the Court 

sustained [Mother’s] objection.” As such, given that the Record is unclear as to 

whether the trial court excluded the CPS Records as hearsay not falling under Rule 

803(8) or as not constituting certified public records that can be authenticated by 

affidavit under Rule 902(4), we remand for Mother and Father to have the 

opportunity to present argument on these issues. 

¶ 17 The trial court misapprehended the law and abused its discretion by excluding 

the CPS Records. Additionally, as it is unclear from the hearing transcript whether 

the trial court ultimately excluded the CPS Records solely on this basis or also on the 

bases that the records do not constitute public records under either Rule 803(8) or 

Rule 902(4), we remand for both parties to have full opportunity to present argument 
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as to the documents’ admissibility, along with the trial court’s simultaneous review, 

under these or any of our other Rules of Evidence. Because we vacate and remand 

on this issue, we need not reach Father’s other argument on appeal. 

CONCLUSION

¶ 18 As its exclusion of the CPS Records was based on the misapprehension of law 

that public records—such as relevant child protective services records in a child 

custody modification proceeding—must be authenticated by live witness testimony, 

the trial court abused its discretion in excluding these records. We therefore vacate 

the Order and remand for the trial court to consider the admissibility of the CPS 

Records under North Carolina Rules of Evidence 803(8) and 902(4) as well as any 

other relevant evidence rules. On remand, the trial court should hold a new hearing 

on Mother’s motion to modify the child custody order and both parties shall have the 

opportunity to present argument on the documents’ admissibility.

VACATED AND REMANDED.

Judges DIETZ and COLLINS concur.