An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1210

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

LAURA H. ROBERTS (now Huckabee),

Plaintiff

v.

Durham County

No. 09 CVD 0307

JOHN B. ROBERTS,

Defendant

Appeal by defendant from order entered 2 July 2013 by Judge 

James T. Hill in Durham County District Court. Heard in the 

Court of Appeals 18 February 2014.

Brock & Meece, P.A., by Paul B. Brock, for Plaintiff.

Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for 

Defendant.

ERVIN, Judge.

Defendant John B. Roberts appeals from an order denying his

motion for the restoration of his visitation and custody rights

and granting Plaintiff Laura H. Roberts’ motion that Defendant 

be held in contempt. On appeal, Defendant argues that the trial 

court erred by permanently ending his visitation with his minor 

children and by holding him in contempt of court for having 

filed an independent civil action in the Orange County Superior 
-2-

Court. After careful consideration of Defendant’s challenges to 

the trial court’s order in light of the record and the 

applicable law, we conclude that Defendant’s appeal from the 

trial court’s contempt decision is not properly before us and 

that the trial court’s visitation decision should be affirmed.

I. Factual Background

Plaintiff and Defendant were married on 8 August 1998, 

separated on or about 30 December 2008, and were granted an

absolute divorce on 17 February 2010. The parties are the 

parents of two minor children, Martin and Wendy.

1

On 20 March 2009, Plaintiff filed a complaint in Durham 

County District Court asserting, among other things, claims for

custody and support against Defendant. Defendant filed an 

answer and counterclaim on 5 May 2009 in which he sought, among 

other relief, joint custody of the children. In a memorandum of 

judgment filed on 11 May 2009, which was confirmed by a consent 

order entered on 20 May 2009, Plaintiff and Defendant were 

awarded joint custody of the children on a temporary basis, with 

the children to reside with Plaintiff, to spend alternate 

weekends with Defendant, to have overnight visits with Defendant

on alternate Wednesdays, and to spend designated vacation 

periods with Defendant.

 

1“Martin” and “Wendy” are pseudonyms which will be used for 

ease of reading and to protect the children’s privacy.
-3-

On 2 July 2009 and 28 October 2009, respectively, Plaintiff 

filed motions to have a psychological evaluation of Defendant

performed and a motion to have Defendant held in contempt and 

for temporary custody of the children. On 29 October 2009, an 

order appointing Dr. Conrad Fulkerson to evaluate Defendant’s 

mental status was entered. After completing his evaluation, Dr. 

Fulkerson opined that Defendant suffered from Type I Bipolar 

Disorder; that Defendant had a substance abuse disorder that 

was, at that time, in remission; and that he had a diagnosable 

personality disorder. Although Dr. Fulkerson acknowledged that

an assessment of Defendant’s capacity to co-parent his children

exceeded the scope of his assignment, he believed that 

Defendant’s relationship with Plaintiff appeared to be

sufficiently dysfunctional to raise concerns about the 

children’s welfare. According to Dr. Fulkerson, “more extensive 

treatment, including adequate and very careful monitoring of 

medication treatment, would be necessary” given Defendant’s 

diagnosis.

On 21 January 2010, a consent order providing that the 

parties would continue to have joint legal custody of the 

children, with Plaintiff having primary physical custody and 

Defendant having the right to visit with the children every 

other weekend, overnight or at dinner on alternate Wednesday 
-4-

nights, and during specified vacation periods, was entered. In 

addition, the consent order provided that Defendant’s ability to 

visit with the children was dependent upon his compliance with 

Dr. Fulkerson’s mental health treatment recommendations and a

requirement that Defendant participate in regular psychiatric

treatment and provide Plaintiff with quarterly written 

verification that he was in compliance with this requirement.

Finally, the consent order provided that:

Neither party shall discuss with the minor 

children the content of the children’s 

discussions with [their therapist,] Ms. 

[Teresa] McInerney, nor shall either party 

instruct the minor children as to what they 

should discuss with or tell Ms. McInerney. 

Interference with the minor children’s 

therapy with Ms. McInerney shall constitute 

grounds for modification of this Court’s 

order regarding the minor children. Neither 

party shall attempt or condone any attempt, 

either directly or indirectly, to estrange 

either child from the other party, or to 

impair the natural love and affection 

between the parent and children.

On 19 August 2010, a consent order providing that Defendant’s 

treating psychiatrist should send a letter to Plaintiff’s 

attorney on a quarterly basis identifying the dates upon which

Defendant attended his mandatory therapy sessions and providing 

updated information concerning the progress that Defendant was 

making in therapy and the extent of his compliance with random 

drug testing was entered.
-5-

On 28 October 2010, Plaintiff filed a motion seeking to 

have Defendant held in contempt, to modify the existing 

visitation arrangement, and to restrict Defendant’s access to 

the children pending the provision of assurances that Defendant 

did not pose a danger to the children, with this request being 

predicated on an assertion that Defendant had repeatedly 

attempted to interfere with the therapy being provided to the 

children and had attempted to intimidate Ms. McInerney. After a 

hearing held on 31 January 2011, the trial court entered an 

order on 2 February 2011 finding Defendant in contempt based 

upon his treatment of Ms. McInerney and his conduct in making 

disparaging remarks to the children about Plaintiff. In the 2 

February 2011 order, the trial court modified the existing 

visitation arrangement by requiring that Defendant’s visitation 

with the children be supervised by one or both of his parents. 

Defendant’s visitation rights remained contingent upon his 

compliance with the requirements set forth in previous orders, 

including the requirement that Defendant not make any 

disparaging remarks to the children concerning Plaintiff or 

interfere with the children’s therapy.

On 17 February 2011, Plaintiff filed a motion seeking the 

entry of an emergency order suspending Defendant’s visitation 

based upon a letter from his psychiatrist which indicated that 
-6-

Defendant had not received treatment since November 2010. In 

addition, Plaintiff alleged that Defendant’s parents had not 

been present during Defendant’s visits with the children, that 

Defendant had been making allegations against Plaintiff to the 

children, that Defendant had been acting in an erratic and 

otherwise troublesome manner, and that the children’s best 

interests would not be served by allowing them to be in

Defendant’s presence when he was not receiving mental health 

treatment. On that same day, Judge Hill entered an ex parte

order suspending Defendant’s visitation pending a hearing to be 

held on 28 February 2011.

After the 28 February 2011 hearing, during which Ms.

McInerney provided information to the trial court in chambers, 

the trial court entered an order on 1 March 2011 finding as fact 

that the children’s best interests would be served by remaining 

in therapy with Ms. McInerney and ordering that the relief 

granted in the 17 February 2011 ex parte order remain in effect. 

After a hearing held on 9 March 2011, the trial court entered an 

order finding that Defendant was in contempt based upon his 

failure to pay past due child support and certain fees that were 

owing for Ms. McInerney’s services and ordering Defendant to

refrain from contacting the minor children “except as authorized 

by the children’s therapist, the Plaintiff’s family, . . . or 
-7-

the Plaintiff’s counsel.” On 15 June 2011, the trial court 

entered an order providing that Defendant be incarcerated in the 

Durham County jail for a period not to exceed 90 days based upon 

his failure to comply with the 9 March 2011 order.

On 23 March 2012, Defendant filed a motion seeking to have 

the trial court disqualified from further participation in this 

case based upon allegations that the trial court was biased 

against him. On the same date, Defendant filed a motion seeking 

to have his visitation and custody rights restored on the 

grounds that he had become compliant with the trial court’s 

orders and that the best interests of the children would be 

served by resuming visitation.

On 25 April 2012, Plaintiff filed a response to Defendant’s 

disqualification motion. After holding a hearing with respect 

to the issues raised by Defendant’s disqualification motion on 1 

May 2012, Judge Doretta Walker entered an order denying 

Defendant’s motion on 3 January 2013.

After Plaintiff filed a response to Defendant’s motion for 

the restoration of his visitation rights, a hearing concerning 

that subject was held before the trial court on 19 July 2012.

At the hearing, Plaintiff presented the report from Dr. 

Fulkerson while Defendant presented the testimony of Dr. Mark

Moffett, who stated that Defendant had been his patient for 
-8-

approximately one year and that, in his opinion, Defendant had

an adjustment disorder with disturbances of mood and anxiety or 

depression characteristic of a narcissistic personality 

disorder. Dr. Moffett saw no evidence that Defendant was

currently using drugs or abusing alcohol or that Defendant 

suffered from a bipolar disorder, although he could not

completely rule out the possibility that Defendant suffered from 

such a disorder. Finally, Dr. Moffett testified that, while he 

had seen no evidence that Defendant posed a danger to his 

children, he could not formulate an opinion concerning the 

extent to which Defendant could safely be in his children’s 

presence and that long term psychotherapy would be Defendant’s

optimal treatment option.

At the 19 June 2012 hearing, Defendant testified that his 

communications with his children had been limited to phone calls 

initiated by his children and monitored by Plaintiff, that he

wanted to visit with the children, and that, as far as he knew, 

the children wanted to visit with him. Defendant denied that he 

currently used alcohol to excess and claimed that he had never 

physically harmed the children or abused them in any way. At 

the conclusion of Defendant’s testimony, Plaintiff moved to 

dismiss Defendant’s motion for insufficiency of the evidence to 

support an award of the relief that Defendant had requested.
-9-

On 16 August 2012, the trial court entered an order 

granting Plaintiff’s motion to dismiss Defendant’s motion. In 

its order, the trial court found as fact that Defendant had

failed to remain in regular treatment with a psychiatrist on an 

ongoing basis given that he not seen his psychiatrist since 

March 2012; that Defendant had failed to submit to random drug 

testing under psychiatric supervision; and that Defendant had 

failed to verify in writing that he was actively involved in, 

and compliant with, the required psychiatric treatment.

On 7 February 2013, Defendant filed another motion seeking 

the restoration of his custody and visitation rights. 

Defendant’s motion was accompanied by seven verifications 

relating to the psychiatric treatment that Defendant had 

received from Dr. Moffett and evidence that Defendant had 

submitted to medically supervised drug tests. In his motion, 

Defendant stated that he had been in regular treatment with his 

psychiatrist, that he had provided the required written 

verification of his active participation in psychiatric 

treatment, and that he had been submitting to random drug tests.

According to Defendant, this evidence supported a determination 

that there had been a substantial change in circumstances 

sufficient to justify restoration of Defendant’s custody and

visitation rights.
-10-

On 27 March 2013, Plaintiff filed a motion seeking to have 

Defendant held in contempt based on allegations that Defendant 

had interfered with the children’s therapy by filing a separate 

civil action against Ms. McInerney in the Orange County Superior 

Court in which he asserted claims for infliction of emotional

distress, conspiracy, and interference with familial rights. 

Although the Orange County action against Ms. McInerney was 

dismissed, Ms. McInerney had incurred substantial legal fees in

the course of defending herself against Defendant’s claims.

A hearing was held on 1-2 May 2013 for the purpose of 

considering Defendant’s motion for the restoration of his 

custody and visitation rights and Plaintiff’s motion to have 

Defendant held in contempt. At the hearing, Ms. McInerney 

testified that Defendant had been instructing the children to

refrain from trusting or talking to her and that Martin was 

distressed by false statements that Defendant had made to him. 

According to Ms. McInerney, the children were thriving, doing 

well academically, and had an appropriate set of friendships and

stated that, in her clinical opinion, the children’s best 

interests would be served by leaving the existing visitation 

schedule unchanged.

Defendant, on the other hand, testified that he had never 

physically harmed the children and that he had tried in every 
-11-

possible way to comply with the trial court’s orders. Defendant 

promised to refrain from making negative comments about 

Plaintiff in the presence of the children or recording anything 

said by the children or any other party. Finally, Defendant 

promised to comply with any order that the trial court might 

enter in order to ensure that he had the ability to visit with 

his children.

With the consent of the parties, the trial court

interviewed Martin in chambers in Ms. McInerney’s presence. 

Although Martin expressed love for both of his parents, he 

indicated that he did not believe that it would be beneficial 

for him to see Defendant. Martin stated that he had nightmares 

about Defendant, that Defendant made negative comments about 

Plaintiff during their conversations, and that he did not want 

to see Defendant.

Similarly, the trial court heard testimony from Ms. 

McInerney concerning Defendant’s last communication with Wendy, 

which took the form of a phone conversation that Ms. McInerney 

monitored. During that conversation, Defendant made negative 

statements about Wendy’s school, stated that she was a “bad 

reader,” and implied that her alleged academic deficiencies 

stemmed from sadness over her inability to see Defendant. As a 
-12-

result of the fact that this phone conversation had been very 

upsetting, Wendy had not requested to speak to Defendant again.

On 2 July 2013, the trial court entered an order denying 

Defendant’s motion for restoration of his custody and visitation

rights and granting Plaintiff’s contempt motion. Defendant 

noted an appeal to this Court from the 2 July 2013 order and

orders that the trial court had previously entered on 16 August 

2012, 19 July 2012, and 17 February 2011. On 7 October 2013, 

the trial court entered an order dismissing all of Defendant’s 

appeals except the one that he had noted from the 2 July 2013 

order on the grounds that those appeals been taken in an

untimely manner.

II. Substantive Legal Analysis

A. Request for Certiorari Review of Earlier Orders

As an initial matter, we must consider Defendant’s request 

that this Court review his challenges to the 17 February 2011, 

19 July 2012, and 16 August 2012 orders utilizing our certiorari

jurisdiction. However, Defendant has not advanced any challenge 

to the 19 July 2012 or 16 August 2012 orders in his brief. In 

addition, although Defendant alludes to the 17 February 2011, 1 

March 2011, and 9 March 2011 orders in his brief, he has not 

cited any authority in support of his apparent contention that 

he should receive relief from these orders on appeal. Finally, 
-13-

Defendant has failed to offer any explanation for his failure to 

note an appeal from any of these orders in a timely manner. As 

a result, in spite of the fact that this Court has the 

authority, in the exercise of it discretion, to issue a writ of 

certiorari where a defendant’s “right to prosecute an appeal has 

been lost by failure to take timely action,” N.C. R. App. P. 

21(a), we elect to refrain from exercising that authority given 

Defendant’s unexplained delay in failing to challenge the 

validity of those orders on appeal and his failure to provide 

any compelling basis for believing that those orders are 

affected by any error of law. As a result, the only order 

properly before this Court on appeal is the 2 July 2013 order.

B. Challenges to the 2 July 2013 Order

1. Contempt Decision

In his first challenge to the trial court’s order, 

Defendant contends that the trial court erred by holding 

Defendant in contempt on the grounds that he filed a separate 

civil action against Ms. McInerney in Orange County Superior 

Court. More specifically, Defendant argues that the trial court 

erred in the course of holding him in contempt given that the 

trial court lacked the authority to order him to pay attorney’s 

fees in a contempt proceeding, that the underlying order that 

Defendant was alleged to have violated was unclear, that the 
-14-

trial court failed to provide Defendant with required procedural 

protections, and that sanctioning Defendant for filing a 

separate civil action violated his constitutional right to have 

access to the courts. Defendant’s appeal from the trial court’s 

contempt decision is not properly before us.

Contempt may be either civil or criminal in nature, Watson 

v. Watson, 187 N.C. App. 55, 61, 652 S.E.2d 310, 315 (2007), 

disc. review denied, 362 N.C. 373, 662 S.E.2d 551 (2008), with 

the distinction between criminal and civil contempt having been 

described as “hazy at best.” O’Briant v. O’Briant, 313 N.C. 

432, 434, 329 S.E.2d 370, 372 (1985). “‘A major factor in 

determining whether contempt is criminal or civil is the purpose

for which the power is exercised.’” Watson, 187 N.C. App. at 

61, 652 S.E.2d at 315 (quoting Bishop v. Bishop, 90 N.C. App. 

499, 503, 369 S.E.2d 106, 108 (1988)). “Criminal contempt is 

administered as punishment for acts already committed that have 

impeded the administration of justice in some way[,]” Brower v. 

Brower, 70 N.C. App. 131, 133, 318 S.E.2d 542, 544 (1984), while 

the purpose of civil contempt is to coerce compliance with a 

court order. Scott v. Scott, 157 N.C. App. 382, 393, 579 S.E.2d 

431, 438 (2003). In the event that “a party may avoid the 

contempt sentence or fine by performing the acts required in the 

court order, the contempt is best characterized as civil.” 
-15-

Watson, 187 N.C. App. at 61, 652 S.E.2d at 315. While civil 

contempt orders entered in the District Court are properly 

appealed from the District Court to this Court, criminal 

contempt orders entered in the District Court are properly 

appealed from the District Court to the Superior Court. N.C. 

Gen. Stat. § 5A-17; N.C. Gen. Stat. § 5A-24; Hancock v. Hancock, 

122 N.C. App. 518, 522, 471 S.E.2d 415, 418 (1996).

Although the parties to this case disagree about the proper 

resolution of many issues, they do agree that the trial court’s 

contempt order constituted an exercise of the trial court’s 

criminal, rather than civil, contempt authority. As we have 

already noted, the contempt order that Defendant seeks to 

challenge on appeal found Defendant in contempt for interfering

with the therapy that Ms. McInerney was providing to the 

children by filing a separate civil action against her in the 

Orange County Superior Court. As a result, the trial court’s 

contempt order sanctioned Defendant for an “act[] already 

committed that [] impeded the administration of justice in some 

way.” Brower, 70 N.C. App. at 133, 318 S.E.2d at 544. In 

addition, the contempt order at issue here did not contain any 

provision describing the manner in which Defendant could purge 

himself of the contempt, a component that should be contained in 

all civil contempt orders. N.C. Gen. Stat. § 5A-23(e). Thus,
-16-

since the trial court’s order involved the imposition of 

sanctions for criminal contempt and since any appeal from the 

trial court’s contempt order should have been taken from the 

District Court to the Superior Court rather than to this Court, 

Defendant’s challenge to the trial court’s contempt order is not 

properly before us. Hancock, 122 N.C. App. at 522, 471 S.E.2d 

at 418. As a result, we have no authority to disturb the trial 

court’s contempt order and will refrain from doing so.

2. Visitation Decision

Secondly, Defendant contends that the trial court erred by 

denying his motion for restoration of his custody and visitation 

rights. More specifically, Defendant argues that the trial 

court’s decision amounted to a complete termination of his 

fundamental right to parent his children in the absence of a 

finding that Defendant was an unfit parent and that Defendant 

had made the required showing that a change in circumstances

sufficient to support the restoration of his visitation rights

had occurred. We do not find Defendant’s arguments persuasive.

a. Standard of Review

“When reviewing a trial court’s decision to grant or deny a 

motion for the modification of an existing child custody order, 

the appellate courts must examine the trial court’s findings of 

fact to determine whether they are supported by substantial 
-17-

evidence,” Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 

250, 253 (2003), with substantial evidence being “such relevant 

evidence as a reasonable mind might accept as adequate to 

support a conclusion.” Id. at 474, 586 S.E.2d at 253. “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.” Id. at 475, 586 S.E.2d at 254. “[T]he trial court is 

vested with broad discretion in cases involving child custody,” 

so that its decision will not be reversed on appeal absent a 

clear showing of abuse of discretion. Pulliam v. Smith, 348 

N.C. 616, 624–25, 501 S.E.2d 898, 902 (1998). “The same 

standards that apply to changes in custody determinations are 

also applied to changes in visitation determinations.” Simmons 

v. Arriola, 160 N.C. App. 671, 674, 586 S.E.2d 809, 811 (2003)

(citing Clark v. Clark, 294 N.C. 554, 575-76, 243 S.E.2d 129, 

142 (1978)); N.C. Gen. Stat. § 50–13.1(a) (stating that, 

“[u]nless a contrary intent is clear, the word ‘custody’ shall 

be deemed to include custody or visitation or both”). We will 

now review Defendant’s challenges to the trial court’s

visitation decision in light of the applicable standard of 

review.

b. Relevant Legal Principles
-18-

A person seeking to obtain the modification of an existing 

custody or visitation order must make a “motion in the cause and 

a showing of changed circumstances by either party or anyone 

interested[.]” N.C. Gen. Stat. § 50–13.7(a). “[B]efore a trial 

court may modify an existing custody order the trial court must 

determine that a substantial change of circumstances has 

occurred and that the change has affected the children’s 

welfare.” Davis v. Davis, __ N.C. App. __, __, 748 S.E.2d 594, 

600 (2013). In such a modification proceeding, “the moving 

party has the burden of proving a ‘nexus’ between the changed 

circumstances and the welfare of the child in order for the 

trial court to determine that a child [custody] order may be 

modified.” Warner v. Brickhouse, 189 N.C. App. 445, 454, 658 

S.E.2d 313, 319 (2008). “If the trial court concludes either 

that a substantial change has not occurred or that a substantial 

change did occur but that it did not affect the minor child’s 

welfare, the court’s examination ends, and no modification can 

be ordered.” Shipman, 357 N.C. at 474, 586 S.E.2d at 253.

c. Analysis of Visitation Decision

In the course of denying Defendant’s request for the 

restoration of his visitation rights, the trial court made the 

following findings of fact:

13. This Court finds as a fact that no 

substantial and material change 
-19-

affecting the welfare of the minor 

children has occurred since the entry 

of the last Order.

14. The Court interviewed [Martin] in 

chambers, with the consent of the 

parents, with Ms. McInerney present. 

[Martin] is of a suitable age and 

discretion to speak to the court about 

his custodial arrangement. [Martin]

loves both of his parents, but he 

expressed to the Court that he has no 

desire to see the Defendant.

15. This Court finds as a fact that the 

Defendant has made negative comments 

about the Plaintiff and her family in 

the presence of [Martin]. [Martin]

shared some of these comments with the 

Court.

16. This Court finds as a fact that the 

Defendant, when the minor children were 

in his custody, would go outside of the 

house in the middle of the night to go 

outside in the yard to talk on the 

phone, leaving the children unattended 

in the house.

17. This Court finds as a fact that 

[Martin] has had nightmares about his 

father coming to get him.

18. The Defendant’s last contact with the 

minor children was with [Wendy] in the 

fall of 2012. Said phone call was 

monitored by Ms. McInerney and [Wendy]

was in good spirits prior to the phone 

call. During the phone conversation, 

the Defendant made negative statements 

about [Wendy’s] school and her 

attending the Hill Center. He implied 

that she was not able to be a good 

student when she was sad about not

being able to see her father. 

[Wendy’s] attendance at the Hill Center 
-20-

is in the minor child’s best interest 

and the conversation was very upsetting 

to the child, especially when the 

Defendant stated that she was a “bad 

reader.” [Wendy] has not requested to 

speak to her father since this 

conversation occurred.

19. The Plaintiff and her family have a 

good relationship with the minor 

children and the Court commends the 

Plaintiff and her family for their care 

of the children. Both children are 

doing well in school and are welladjusted, active children.

20. Pursuant to this Court’s Order entered 

February 2, 2011, which states in 

relevant part, “This Court will 

reconsider Defendant’s visitation 

schedule at such time that the Court 

can hear from the minor children’s 

court-appointed therapist, Teresa M. 

McInerney, LCSW upon proper notice to 

the parties,” Ms. McInerney was asked 

her professional opinion. Ms. 

McInerney testified and this Court 

finds as a fact that changing the 

visitation schedule was not in the

minor children’s best interest.

21. The Defendant’s conduct, words, and 

actions have inflicted tremendous harm 

on the minor children. The fact that 

the children have been so well adjusted 

and are thriving is a positive 

reflection on the efforts of the 

Plaintiff, her family, and Ms. 

McInerney.

Based upon these findings of fact, the trial court concluded as 

a matter of law that the prior orders suspending Defendant’s 
-21-

visitation with the children should remain in effect subject to 

further order of the Court.

A careful review of the record establishes that each of the 

relevant findings of fact has adequate evidentiary support. The 

trial court’s findings were supported by testimony from Ms. 

McInerney, who stated that a change in the existing visitation 

schedule would not be in the children’s best interest; by 

Martin’s statement that he had no desire to see Defendant and

has had nightmares about Defendant coming to get him; and by the

evidence concerning Defendant’s last conversation with Wendy, 

during which she became very upset and after which she requested

that she not be allowed to speak with Defendant again. In 

addition, the undisputed record evidence showed that the 

children have been doing well both academically and socially. 

As a result, we hold that the trial court’s findings of fact 

have adequate evidentiary support and support the trial court’s 

conclusion of law to the effect that no substantial change in 

circumstances affecting the children’s welfare had occurred

since the entry of the last visitation order and that no change 

in the existing visitation arrangements should be made.

In seeking to persuade us to reach a different result, 

Defendant contends that the trial court should have found a 

substantial change in circumstances based upon Defendant’s 
-22-

testimony that he no longer abused drugs and alcohol, that he

was seeking treatment for his mental health issues, and that he 

had promised to comply with any protective rules that the trial 

court deemed appropriate. In support of this argument, 

Defendant cites this Court’s decision in Simpson v. Simpson, 149 

N.C. App. 440, 562 S.E.2d 447 (2002), for the proposition that 

overcoming a drug dependency can support a substantial change in 

circumstances. In Simpson, however, the defendant adduced

evidence that the substantial changes that had occurred in his 

life had served to benefit his child “emotionally, physically, 

intellectually, and medically,” Simpson, 149 N.C. App. at 446, 

562 S.E.2d at 450, while Defendant has made no such showing in 

this case. As a result of the fact that the trial court has the 

ultimate responsibility for performing the factfinding function, 

the fact that “the moving party has the burden of proving a 

‘nexus’ between the changed circumstances and the welfare of the 

child,” Warner, 189 N.C. App. at 454, 658 S.E.2d at 319, and the 

fact that Defendant has failed to adduce evidence demonstrating 

the existence of the required “nexus,” we hold that the trial 

court did not err by failing to modify the existing visitation 

arrangement in light of Defendant’s claim to have overcome his 

earlier drug and alcohol problems.

2

 

2In addition, Defendant argues that he should be absolved 
-23-

In addition, Defendant contends that the trial court’s 

order was tantamount to a complete termination of the parental

relationship between Defendant and his children and that such a 

result would be improper in the absence of a determination, 

which the trial court did not make, that Defendant was unfit to 

parent his children. In support of this contention, Defendant 

vigorously asserts that, under the existing visitation 

arrangement, all of the contacts that he is allowed to initiate 

with the children must be facilitated by Ms. McInerney, who had 

refused to do anything to assist in that process. We are not, 

however, persuaded by Defendant’s characterization of the trial 

court’s order given the court’s continuing ability to modify the 

existing visitation arrangement in the future in the event that 

Defendant is able to make the required showing that a 

substantial change in circumstances affecting the children’s

welfare has occurred. Warner, 189 N.C. App. at 454, 658 S.E.2d 

at 319. For that reason, the fact that the trial court did not 

find that Defendant was an unfit parent has no bearing on the 

 

from the responsibility for showing the existence of a 

substantial change in circumstances affecting the children’s 

welfare given that the trial court’s earlier visitation orders 

were affected with legal error despite the fact that those 

orders were not appealed in a timely fashion and remained in 

effect at the time of the hearing held with respect to 

Defendant’s second modification motion. Defendant has not, 

however, cited any support for this proposition, and we know of 

none.
-24-

validity of its decision to deny Defendant’s request for 

modification of the existing visitation arrangement. As a 

result, since none of Defendant’s challenges to the trial 

court’s visitation decision have merit, that portion of the 2 

July 2013 order must be affirmed.

III. Conclusion

Thus, for the reasons set forth above, we conclude that 

Defendant’s challenge to the trial court’s contempt decision is 

not properly before us and that none of Defendant’s challenges 

to the trial court’s visitation decision have merit. As a 

result, the trial court’s order should be, and hereby is, 

affirmed.

AFFIRMED.

Judges McGEE and STEELMAN concur.

Report per Rule 30(e).