IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-266

No. COA21-274

Filed 19 April 2022

Randolph County, No. 19 CVD 1606

BRIAN R. TURNER, Plaintiff,

v.

LINDSEY OAKLEY (now LEGGE), Defendant.

Appeal by Plaintiff from orders entered 31 July 2020 and 17 August 2020 by 

Judge Lee W. Gavin in Randolph County District Court. Heard in the Court of 

Appeals 25 January 2022.

Lake Tillery Law, by Brooke M. Crump, for Plaintiff-Appellant.

Cathy R. Stroupe for Defendant-Appellee. 

COLLINS, Judge.

¶ 1 This appeal stems from Plaintiff’s August 2018 motion to modify custody of the 

parties’ son, Matthew.

1 Plaintiff argues that the trial court lacked jurisdiction to 

enter an order modifying custody, made a finding of fact not supported by substantial 

evidence, failed to find a nexus between the substantial change in circumstances and 

Matthew’s welfare, failed to make sufficient findings concerning evidence of child 

 

1 We use a pseudonym to protect the identity of the minor. 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

abuse, and abused its discretion. After careful review, we affirm. 

I. Background 

¶ 2 The parties are the parents of Matthew, a minor child born in March 2010. 

The parties were never married.

¶ 3 On 15 April 2013, Plaintiff filed a complaint in Rockingham County District 

Court seeking primary custody of Matthew. On 26 November 2013, the district court

entered an order granting primary custody to Defendant and secondary custody to 

Plaintiff (“2013 Custody Order”). This order awarded the parties physical custody of 

Matthew as follows: Plaintiff had physical custody on “all weekends that [Defendant] 

must work”; Defendant had physical custody the weekend immediately following; and 

Plaintiff had physical custody “for the next two successive weekends immediately 

following[.]” The 2013 Custody Order also included a holiday schedule granting each 

party physical custody “for as close to equal time [as] is practical,” and a provision 

permitting each party custody for vacation purposes upon advance notice.

¶ 4 On 10 August 2018, Plaintiff filed an Ex Parte Motion for Emergency Custody 

and Modification of Prior Order on Custody (“Custody Motion”) seeking temporary 

and permanent custody of Matthew. Plaintiff alleged there had been a substantial 

and material change in circumstances affecting Matthew’s welfare since the entry of 

the 2013 Custody Order as follows: 

a. Since the school year ended, [Matthew] has primarily 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

resided with Plaintiff. 

b. On March 29, 2018, Defendant called Plaintiff in a rage 

and said that she couldn’t do anything for [Matthew] 

while screaming at [Matthew] to go live with 

[D]efendant if that’s what [Matthew] wanted. 

c. [Matthew] has expressed concern that Defendant does 

not have time for him during the school week due to 

her busy schedule in the evenings including going to 

work and school, whereas she has enrolled in school on 

four different occasions. 

d. Defendant has not been keeping up with [Matthew’s] 

homework and has trouble communicating with 

teachers. 

e. Defendant currently has [Matthew] in therapy due to 

the strained relationship between Defendant and 

[Matthew]. 

f. The current visitation schedule is not in the best 

interest of [Matthew] due to Defendant’s current 

mental state, Defendant’s threats to [Matthew], and 

Defendant’s strained relationship with [Matthew].

g. Plaintiff has married and [Matthew] has a strong 

familial bond with both Plaintiff and Plaintiff’s wife. 

h. Modifying the schedule to give specific visitation times 

for Defendant’s visitations, and giving Plaintiff 

primary custody, will promote consistency and 

stability for [Matthew], which is in the best interests of 

[Matthew].

¶ 5 The trial court granted Plaintiff emergency full custody of Matthew by an ex 

parte order. Following a hearing on 29 August 2018, the trial court entered an order 

on 14 December 2018 granting Plaintiff “temporary primary physical and legal 

custody” of Matthew and awarding Defendant “supervised visitation at a time, 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

location, frequency, and duration mutually agreed upon by the parties” (“Initial 

Emergency Custody Order”).

¶ 6 Defendant moved the court on 11 January 2019 to establish a visitation 

schedule (“Visitation Motion”). Defendant alleged that Plaintiff had “systematically 

denied” her requests for visitation under the Initial Emergency Custody Order and 

refused to communicate with Defendant.

¶ 7 On 8 February 2019, the trial court entered a Temporary Memorandum of 

Judgment/Order (“First Memorandum Order”) incorporating the parties’ agreement

to permit Defendant certain supervised visitation with Matthew in person and by 

phone. On 5 March 2019, the trial court entered a Temporary Order adjusting the 

time at which Defendant was to have telephone visitation with Matthew.

¶ 8 The trial court entered an additional Temporary Memorandum of 

Judgment/Order on 5 April 2019 (“Second Memorandum Order”), containing another 

agreement by the parties to permit Defendant supervised visitation with Matthew in 

person and by phone. The Second Memorandum Order also provided that “[t]his 

matter is temporary in nature, entered without prejudice to either party” and ordered 

the case be transferred to Randolph County District Court. On 9 May 2019, the 

Rockingham County District Court entered a Temporary Order containing the same 

terms as the Second Memorandum Order.

¶ 9 Defendant responded to Plaintiff’s Custody Motion on 9 May 2019. The 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

Randolph County District Court received the case file on 16 July 2019 and noticed a 

hearing on Plaintiff’s Custody Motion. The trial court heard Plaintiff’s motion on 

8 November 2019, 18 February 2020, and 7 July 2020. 

¶ 10 On 31 July 2020, the trial court entered a Temporary Order directing Plaintiff 

to bring Matthew to Defendant’s home that evening, pending entry of a final order 

(“July 2020 Temporary Order”). Plaintiff filed a notice of appeal from the July 2020 

Temporary Order.2

¶ 11 The trial court entered a Custody Order on 17 August 2020 (“August 2020 

Custody Order”) which included the following pertinent findings of fact:

5. That a Court Order which included provisions for child 

custody of [Matthew] was entered on or about November 

26, 2013, in Rockingham County, North Carolina District 

Court . . . . In said Order, Defendant was granted primary 

custody, control, and tuition of [Matthew], with Plaintiff 

exercising certain visitation. . . . 

6. That thereafter, Defendant relocated to Guilford 

County, North Carolina and continued to be the primary 

caregiver of [Matthew]. 

7. That Defendant’s brother died unexpectedly in an 

automobile accident in 2017. Defendant and her brother 

were very close and Defendant had a hard time dealing 

with his death. 

8. That on August 8, 2018, Defendant was to pick up 

[Matthew] following summer visitation with Plaintiff. 

Defendant was under continued stress from dealing with 

 

2 Plaintiff raised no arguments concerning the July 2020 Temporary Order in his brief.
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

her brother’s death and was dealing with anxiety and 

depression. She had suffered panic attacks for the two 

weeks prior to August 8, 2018. Defendant had concerns 

about her ability to care for [Matthew], and out of that 

concern, Defendant asked Plaintiff’s wife to keep 

[Matthew]. Plaintiff’s wife testified that Defendant had 

developed a trust with Plaintiff’s wife and Plaintiff’s wife 

agreed to keep [Matthew]. 

9. That after speaking with Plaintiff’s wife on August 8, 

2018, Defendant voluntarily committed herself at Wesley 

Long Hospital, Greensboro, North Carolina. Contrary to 

the testimony of Plaintiff’s wife that they did not learn of 

the hospitalization until the next week, the Defendant’s 

husband informed the Plaintiff on August 9th of 

Defendant’s hospitalization. Defendant was released from 

Wesley Long Hospital on August 16, 2018. 

10. That on August 10, 2018, Plaintiff obtained an ex parte

custody Order in Rockingham County District Court. A 

return hearing was held on August 29, 2018. At the 

hearing, the Court entered [the Initial Emergency Custody 

Order] granting Plaintiff temporary custody and allowing 

Defendant supervised visitation to be mutually agreed 

upon by the parties. 

11. Following the August 29, 2018 hearing Defendant was 

in a state of shock at losing custody of [Matthew]. She was 

assessed by Dr. Alexander Eksir (“Dr. Eksir”), a boardcertified licensed psychiatrist, who diagnosed her with a 

severe episode of depression with psychotic symptoms. 

Defendant voluntarily admitted herself to Moses Cone 

Hospital on August 31, 2018 and was discharged on 

September 5, 2018. Upon her discharge, Defendant was 

stable and substantially improved. 

12. That Defendant has followed up with Dr. Eksir who 

described Defendant as a model patient. Dr. Eksir testified 

that Defendant suffered a major depressive disorder that 

is in remission. Dr. Eksir described Defendant as cured. 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

He testified that she is down to earth, involved and 

engaged with no impairment. He has no concerns that 

Defendant is a danger to herself or anyone else. She had 

no problem with the birth of her second child. Dr. Eksir 

has no concern about children being in Defendant’s care. 

13. That notwithstanding the fact that the [Initial 

Emergency Custody Order] provided for Defendant to have 

supervised visitation with [Matthew], Plaintiff allowed 

Defendant to have unsupervised visits with [Matthew] 

during Thanksgiving 2018 and at Defendant’s home for 

Christmas 2018. These visits went very well. 

14. That Defendant asked Plaintiff many times for 

expanded visits and a visitation schedule which Plaintiff 

refused. That Plaintiff filed [the Visitation Motion] on 

January 11, 2019 asking the (Rockingham County, North 

Carolina) Court to set a visitation schedule. The parties 

were in Court on February 8, 2019 but the Court was 

unable to conduct a full hearing on Defendant’s motion. 

The parties reached [the First Memorandum Order] for a 

supervised visitation schedule, under which Defendant 

was to have supervised visitation every Friday and 

Saturday in Guilford County, North Carolina. 

15. That Defendant noticed the matter back on for a review 

of the [Initial Emergency Custody Order] in Rockingham 

County District Court and the matter was set for hearing 

on April 5, 2019. 

16. That the parties returned to (Rockingham County, 

North Carolina) Court on April 5, 2019 for the Court to 

conduct a hearing and review of the[Initial Emergency 

Custody Order]. Again, the Court was unable to conduct a 

full hearing on said review and an oral motion was made 

to change venue to Randolph County, North Carolina since 

neither party now lived in Rockingham County, North 

Carolina. [The Second Memorandum Order] was entered 

under which, after two (2) Saturday visitations, Defendant 

was to exercise supervised visitation every Sunday from 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

1:00 p.m. to 5:00 p.m. at Freedom Park, Liberty, Randolph 

County, North Carolina. The (oral) change of venue was 

then granted and the matter was transferred to Randolph 

County, North Carolina.

17. That since April 5, 2019, except for very limited 

exceptions, Plaintiff has only allowed Defendant 

supervised visitation with [Matthew] at Freedom Park, no 

matter the weather or the fact that Defendant had given 

birth to another child, and that child should not be in the 

open elements for four hours.

18. That Plaintiff’s main complaint regarding the 

visitation between Defendant and [Matthew] was that the 

half-siblings were competitive with each other during said 

visitation, and that Defendant should only be the person 

visiting with [Matthew], despite the fact that [Matthew] 

had a step-father and half-siblings that only saw him 4 

hours each week. That despite repeated requests from 

Defendant, the Plaintiff refuses to allow any expanded 

visitation between Defendant and [Matthew] and no good 

cause has been shown for such refusal.

19. That the paternal grandmother, who supervised most 

of the visits between Defendant and [Matthew], testified 

that the visits went very well, that [Matthew] is very 

bonded to the Defendant, that he loves his mother, and that 

the only concern she expressed was that [Matthew] would 

not get “one-on-one” attention because there are other 

children in Defendant’s home.

20. That Defendant remains gainfully employed with 

Moses Cone Hospital and that her work schedule allows 

her to be home all but 5-7 days per month.

¶ 12 Based upon the foregoing findings of fact, the trial court concluded that “since 

the entry of the [2013 Custody Order] there has been a substantial change of 

circumstances that affect[s] the general welfare of” Matthew. The trial court further 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

concluded that “it is in the best interest of [Matthew] that the [2013 Custody Order]

be modified and that the parties shall have joint legal custody of” Matthew and it “is

in the best interest, safety and general welfare of [Matthew that his] primary care, 

custody and control be placed with the Defendant, with Plaintiff exercising certain 

visitation with [Matthew] as more fully stated in the decretal portion of this Order.” 

The trial court granted the parties joint legal custody and Defendant primary 

physical custody. The trial court awarded Plaintiff visitation with Matthew as 

follows: (1) three weekends of each month, from 5 p.m. Friday until 7 p.m. Sunday; 

(2) a 30-day period during the school summer recess; (3) Father’s Day, a portion of 

Matthew’s birthday, and every other Christmas, Thanksgiving, and Easter holiday; 

and (4) other periods as the parties agree. Plaintiff gave notice of appeal from the 

August 2020 Custody Order.

II. Discussion

A. Trial Court’s Jurisdiction to Enter the August 2020 Custody Order

¶ 13 Plaintiff argues that the trial court lacked jurisdiction to enter the August 2020 

Custody Order. Though Plaintiff did not raise this argument before the trial court, 

the issue of subject matter jurisdiction may be raised for the first time on appeal. In 

re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006). We review this issue de 

novo. McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). 

¶ 14 An existing order “for custody of a minor child may be modified or vacated at 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

any time, upon motion in the cause and a showing of changed circumstances by either 

party or anyone interested.” N.C. Gen. Stat. § 50-13.7(a) (2020). “[T]he jurisdiction 

of the court entering [a child custody] decree continues as long as the minor child 

whose custody is the subject of the decree remains within its jurisdiction.” Stanback 

v. Stanback, 287 N.C. 448, 456, 215 S.E.2d 30, 36 (1975) (citations omitted). 

¶ 15 Plaintiff asserts that the trial court was deprived of jurisdiction to enter the

August 2020 Custody Order because his Custody Motion was no longer pending. 

Plaintiff contends that the trial court “overlooked the fact that multiple orders had 

been entered since Plaintiff filed” his Custody Motion.

¶ 16 Contrary to Plaintiff’s assertion, until the August 2020 Custody Order, none of 

the trial court’s orders finally resolved Plaintiff’s claim for permanent custody in his 

Custody Motion. The 10 August 2018 ex parte order granted “emergency full custody” 

to Plaintiff and set the matter for a review hearing. The Initial Emergency Custody

Order granted Plaintiff only “temporary primary physical and legal custody,” with 

Defendant’s visitation to be “mutually agreed upon by the parties.” Following 

Defendant’s Visitation Motion, the trial court entered the First Memorandum Order

which set a schedule of visitation between Defendant and Matthew. The subsequent 

5 March 2019 Temporary Order merely adjusted the time at which Defendant was to 

have telephone visitation with Matthew. This order noted that it embodied only a 

“temporary agreement as to custody and visitation, pending further hearing and/or 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

disposition by the Court.” The Second Memorandum Order set a new schedule of inperson and telephonic visits between Defendant and Matthew and expressly specified 

that it was “temporary in nature, entered without prejudice to either party.” The 

9 May 2019 Temporary Order contained these same terms. Defendant filed a 

response to Plaintiff’s Custody Motion on 9 May 2019 and the trial court listed 

Plaintiff’s Custody Motion as one of the matters for hearing on three consecutive

notices of hearing. At the beginning of the 8 November 2019 hearing, Counsel for 

Plaintiff answered affirmatively when the trial court inquired, “So you have a motion 

to modify, correct?”

¶ 17 Moreover, even if Plaintiff’s Custody Motion was no longer technically pending, 

“the absence of a motion to modify . . . does not divest the district court of jurisdiction 

to act under the purview of” the modification provision in N.C. Gen. Stat. § 50-13.7(a). 

Catawba Cnty. ex rel. Rackley v. Loggins, 370 N.C. 83, 94, 804 S.E.2d 474, 482 (2017). 

“A primary purpose of a requirement to file a motion in order to modify” is to “make 

the court aware of important new facts unknown to the court at the time of the prior 

custody decree.” Id. at 96, 804 S.E.2d at 483 (quotation marks and citation omitted). 

Where the conduct of the parties satisfies this purpose, no motion is required. 

Summerville v. Summerville, 259 N.C. App. 228, 241, 814 S.E.2d 887, 897 (2018). In 

the present case the parties amply apprised the trial court of new facts unknown at 

the time of the 2013 Custody Order: Plaintiff filed the Custody Motion, Defendant 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

filed a response, and the parties appeared for multiple hearings during which the 

trial court heard testimony. 

¶ 18 The trial court was not deprived of jurisdiction to modify custody of Matthew

and the August 2020 Custody Order is not void for lack of jurisdiction. 

B. Substantive Challenges to the August 2020 Custody Order 

¶ 19 Plaintiff also raises several substantive challenges to the August 2020 Custody 

Order. A “trial court’s examination of whether to modify an existing child custody 

order is twofold.” Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 

(2003).

The trial court must determine whether there was a 

change in circumstances and then must examine whether 

such a change affected the minor child. If . . . the trial court 

determines that there has been a substantial change in 

circumstances and that the change affected the welfare of 

the child, the court must then examine whether a change 

in custody is in the child’s best interests. If the trial court 

concludes that modification is in the child’s best interests, 

only then may the court order a modification of the original 

custody order.

Id. 

¶ 20 “In a child custody case, the 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). “Substantial evidence is such relevant evidence as 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

a reasonable mind might accept as adequate to support a conclusion.” Id. at 13, 707 

S.E.2d at 733 (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). 

We review a trial court’s decision in a child custody case for an abuse of discretion. 

Id. An abuse of discretion occurs only where “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.” Barton v. Sutton, 152 N.C. App. 706, 710, 568 S.E.2d 264, 266 

(2002) (quotation marks and citation omitted). 

1. Finding Concerning Dr. Eksir’s Testimony

¶ 21 Plaintiff challenges the trial court’s finding that “Dr. Eksir described 

Defendant as cured.”

¶ 22 Dr. Eksir testified that when Defendant was discharged in the fall of 2018, her 

condition was not yet resolved but was stable and “substantially improved.” Dr. Eksir 

explained that at a follow-up appointment, Defendant’s condition was sufficiently 

improved to taper her off of some of the medication she had been prescribed during 

her hospitalization. Dr. Eksir testified that Defendant’s major depressive disorder 

was in remission and defined “remission” as the point 

when medication that’s provided or whatever treatment 

has provided full reconstitution of a person’s mood such 

that they’re able to function and behave and act and are 

existing without any ongoing symptoms of their psychiatric 

illness. It’s essentially like, you know, cured so to speak.

According to Dr. Eksir, Defendant maintained stability after her discharge from the 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

hospital and her prognosis was “excellent.” Dr. Eksir’s testimony concerning 

Defendant’s improvement is substantial evidence in support of the trial court’s 

finding that Dr. Eksir “described Defendant as cured.” 

¶ 23 Plaintiff emphasizes that none of the medical records read at the hearing state 

that Defendant was “cured” and contends that “it is common knowledge that if you 

have to take medicine for something, then you are not ‘cured.’” These arguments are 

misplaced because the trial court only found that Dr. Eksir “described Defendant as 

cured,” a finding sufficiently supported by Dr. Eksir’s testimony. 

¶ 24 Without challenging any specific finding, Plaintiff also contends that the trial 

court gave “far too much weight” to Dr. Eksir’s testimony concerning Defendant’s 

current mental status. Plaintiff suggests that Dr. Eksir’s testimony warranted less 

weight “considering that Dr. Eksir only sees the Defendant approximately every three 

months.” This argument is unavailing because 

[a] trial judge passes upon the credibility of the witnesses 

and the weight to be given their testimony and the 

reasonable inferences to be drawn therefrom. Issues of 

witness credibility are to be resolved by the trial judge. It 

is clear beyond the need for multiple citation that the trial 

judge, sitting without a jury, has discretion as finder of fact 

with respect to the weight and credibility that attaches to 

the evidence. . . . [I]t is not for an appellate court to 

determine de novo the weight and credibility to be given to 

evidence disclosed by the record on appeal.

Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994) (quotation marks, 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

brackets, and citations omitted). Plaintiff’s argument is overruled.

2. Nexus Between Change in Circumstances and Matthew’s Welfare 

¶ 25 Plaintiff also argues that the trial court erred by failing to find a nexus between 

the substantial change in circumstances and Matthew’s welfare and by failing to 

examine whether modification was in Matthew’s best interests. We disagree. 

¶ 26 “Unless the effect of the [substantial change in circumstances] on the children 

is ‘self-evident,’ the trial court must find sufficient evidence of a nexus between the 

change in circumstances and the welfare of the children.” Stephens v. Stephens, 213 

N.C. App. 495, 499, 715 S.E.2d 168, 172 (2011) (citing Shipman, 357 N.C. at 478, 586 

S.E.2d at 255-56). 

¶ 27 The trial court made findings concerning Defendant’s mental health 

difficulties, her improvement upon hospitalization and treatment, her successful 

visitation with Matthew, and her continued employment and flexible work schedule. 

The trial court’s findings3 show that Defendant’s mental health crisis initially 

affected not only her ability to care for herself, but her ability to care for Matthew. 

The findings further show that Defendant improved following hospitalization and 

 

3 In his principal brief, Plaintiff challenges only the trial court’s finding that “Dr. Eksir 

described Defendant as cured.” The remaining unchallenged findings of fact are binding on 

appeal, Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991), regardless of 

Plaintiff’s belated attempt to challenge multiple additional findings in his reply brief, see 

McLean v. Spaulding, 273 N.C. App. 434, 441, 849 S.E.2d 73, 79 (2020) (“Under Rule 28(b)(6) 

of the North Carolina Rules of Appellate Procedure, where a party fails to assert a claim in 

its principal brief, it abandons that issue and cannot revive the issue via reply brief.”).
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

treatment and consequently has been able to exercise successful visitation with 

Matthew. Based upon these findings, the trial court concluded that there had been a 

substantial change in circumstances that affected Matthew’s welfare since entry of 

the 2013 Custody Order. The trial court then concluded that it was in Matthew’s best 

interests to modify the 2013 Custody Order to award joint custody to the parties, with 

primary custody to Defendant. 

¶ 28 The trial court complied with its duty to determine whether there was a 

substantial change in circumstances, whether that change in circumstances affected 

Matthew’s welfare, and whether modification of custody was in Matthew’s best 

interests, Shipman, 357 N.C. at 474, 586 S.E.2d at 253, and its findings reflect 

“sufficient evidence of a nexus between the change in circumstances and the welfare 

of” Matthew, Stephens, 213 N.C. App. at 499, 715 S.E.2d at 172.

3. Evidence of Child Abuse

¶ 29 Plaintiff next argues that the trial court failed to make written findings 

concerning “allegations of child abuse” and “expert testimony . . . presented regarding 

the psychological abuse of” Matthew.

¶ 30 When determining the best interests of a child, the trial court 

shall consider all relevant factors including acts of 

domestic violence between the parties, the safety of the 

child, and the safety of either party from domestic violence 

by the other party. An order for custody must include 

written findings of fact that reflect the consideration of 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

each of these factors and that support the determination of 

what is in the best interest of the child. 

N.C. Gen. Stat. § 50-13.2(a) (2020). “Any evidence of child abuse is of the utmost 

concern in determining whether granting custody to a particular party will best 

promote the interest and welfare of the child,” and the trial court is obligated “to 

resolve any evidence of [abuse] in its findings of fact.” Dixon v. Dixon, 67 N.C. App. 

73, 78-79, 312 S.E.2d 669, 673 (1984).

¶ 31 In Scott v. Scott, the defendant argued that the trial court erred by failing to 

make detailed findings regarding child abuse. 157 N.C. App. 382, 387, 579 S.E.2d 

431, 435 (2003). There was evidence that the plaintiff spanked the child, but there 

was “also evidence that the spanking did not inflict serious injury.” Id. Additionally, 

the defendant “made no attempt to seek medical attention for the [c]hild, and there 

was no evidence that the spanking left more than temporary red marks.” Id. This 

Court held that this evidence did not obligate the trial court to make specific findings 

concerning abuse. Id. (citing N.C. Gen. Stat. § 7B-101). 

¶ 32 Here, though Plaintiff did not allege abuse in his Custody Motion, Plaintiff 

contends he introduced evidence of physical and psychological abuse. However, as in 

Scott, Plaintiff has not introduced evidence that the isolated incidents of spanking or 

yelling he identified either “created serious emotional damage to [Matthew] . . . 

evidenced by [Matthew’s] severe anxiety, depression, withdrawal, or aggressive 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

behavior toward himself or others,” N.C. Gen. Stat. § 7B-101(1)(e) (2020), or evidence 

of any “serious physical injury” or “substantial risk of serious physical injury,” N.C. 

Gen. Stat. § 7B-101(1)(a), (b) (2020). Nor was there evidence that Plaintiff sought 

treatment for Matthew. To the contrary, Plaintiff testified that he did not have 

Matthew in therapy and he never thought Matthew needed to see a psychiatrist. 

Plaintiff points to Dr. Eksir’s testimony, but Dr. Eksir merely gave a general 

definition of emotional abuse and confirmed that emotional abuse can occur in a 

parent-child relationship. The evidence presented at the hearing did not require the 

trial court to make specific written findings concerning abuse. 

4. Abuse of Discretion 

¶ 33 Plaintiff argues that the trial court abused its discretion by not granting 

primary custody to Plaintiff. Plaintiff also contends that there are “no reasons 

supporting Plaintiff having even less visitation time with [Matthew] than he did prior 

to the two years he had exclusive care, custody and control of [Matthew].” We 

disagree. 

¶ 34 Both the 2013 Custody Order and the August 2020 Custody Order granted the 

parties joint custody and awarded primary custody to Defendant. The 2013 Custody 

Order awarded Plaintiff physical custody of Matthew from 5 p.m. Thursday to 5 p.m. 

Sunday on “all weekends that [Defendant] must work,” Defendant would have 

physical custody the following weekend, and Plaintiff would again “exercise 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

secondary physical custody of his son for the next two successive weekends[.]” The

August 2020 Custody Order awarded Plaintiff visitation on the first, second, and 

fourth weekend of each month from 5 p.m. Friday to 7 p.m. Sunday. Each order 

permitted Plaintiff to have vacation time with Matthew upon written notice and 

established holiday visitation schedules providing for approximately equal visitation 

between the parties.

¶ 35 The trial court’s decision to adopt the custody arrangement in the August 2020 

Custody Order was not “manifestly unsupported by reason” or “so arbitrary that it 

could not have been the result of a reasoned decision.” Barton, 152 N.C. App. at 710, 

568 S.E.2d at 266 (quotation marks and citation omitted). The trial court’s findings 

of fact reflect that Defendant experienced a mental health crisis in 2018 which 

adversely affected her ability to care for Matthew. Defendant took steps to address 

her mental health issues, including undergoing two voluntary commitments and 

engaging in extensive psychiatric treatment, upon which she significantly improved. 

Defendant subsequently had successful visitation with Matthew and remained 

gainfully employed.

¶ 36 The trial court’s findings also reflect that Plaintiff had ongoing difficulties in 

co-parenting Matthew. The Initial Emergency Custody Order provided that 

“Defendant shall have supervised visitation at a time, location, frequency, and 

duration mutually agreed upon by the parties.” The trial court found, however, that 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

“Defendant asked Plaintiff many times for expanded visits and a visitation schedule 

which Plaintiff refused.” The trial court further found that after entry of the Second 

Memorandum Order, “except for very limited exceptions, Plaintiff . . . only allowed 

Defendant supervised visitation with Matthew [outdoors] at Freedom Park, no 

matter the weather or the fact that Defendant had given birth to another child, and 

that child should not be in the open elements for four hours.” The trial court also 

found that Plaintiff’s “main complaint regarding the visitation between Defendant 

and [Matthew] was that the half-siblings were competitive with each other” and 

Plaintiff desired for Defendant to be the only person visiting with Matthew, “despite 

the fact that [Matthew] had a step-father and half-siblings that only saw him 4 hours 

each week.”

¶ 37 In light of these findings, the trial court did not abuse its discretion by entering

the August 2020 Custody Order.4

III. Conclusion

¶ 38 The trial court had jurisdiction to modify the 2013 Custody Order, did not fail 

to find a nexus between the change in circumstances and Matthew’s welfare, did not 

 

4 Plaintiff notes that in the August 2020 Custody Order, the trial court stated that “it 

is in the best interest and general welfare of [Matthew] that the Order entered on August 29, 

2018, be modified as hereinbelow memorialized.” No order was entered in this case on that 

date. However, where the trial court otherwise consistently referred to modification of the

2013 Custody Order, this singular erroneous reference does not demonstrate that the trial 

court abused its discretion. 
TURNER V. OAKLEY

2022-NCCOA-266

Opinion of the Court

fail to address evidence of abuse, and did not abuse its discretion. We thus affirm the 

August 2020 Custody Order. 

AFFIRMED.

Judges GORE and JACKSON concur.