An unpublished opinion of the North Carolina Court of A ppeals does not constitute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. COA 13

- 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. Robert s appeals from an order denying his motion for the restoration of his visi tation and custody rights and granting Plaintiff Laura H. Robert s ’ motion that Defendant be held in contempt. On appeal, Defendant argues that the trial
court erred by permanently ending his visitation with his minor

c hildren and by holding him in contempt of court for having filed an independent civil action in the Orange County Superior- 2

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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 vis itation 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 child ren , Martin and Wendy
. 1 On 20 March 2009, Plaintiff filed a complaint in Durham County D istrict 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

aw arded joint custody of the children on a temporary basis, with the children to reside with Plaintiff , to spend alternate

w eekends 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

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On 2 July 2009 and 28 October 2009, respectively, Plaintiff filed motion s 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. Co nrad 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

- pa rent his children exceeded the scope of his assignment, he believed that Defe ndant’s r e lationship with Plaintiff appeared to be sufficiently dysfunc tional to raise concerns about the children’s welfare. According to Dr. Fulkerson , “ more extensive treatment, including adequate and very careful monitoring of medicati on treatment , wo uld 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
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nights, and during specified vacation periods , was entered
. In addition, the consent order provided that Defendant’s ability to visit with the children was depend ent 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 req uirement
. Finally, the cons ent 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 at tempt, either directly or indirectly, to estrange either child from the other party, or to impair the natural love and affection b etween the parent and children. On 19 August 2010, a consent order providing that Defendant’s treating p sychiatrist should se nd a letter to Plaintiff’s attorney on a quarterly ba sis identifying the dates upon which Defendant attended his mandatory therap y 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
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On 28 October 20 10, 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 provisi on 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 intimid ate M s. McInerney . After a hearing held on 31 January 2011, the trial court entered an order on 2 February 2011 findin g Defendant in cont empt based upon his treatment of Ms. McInerney and his conduct in making disparaging r emarks 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 childre n be supervised by one or both of his parents. Defendant’s visitation rights remained continge nt upon his compliance with the requiremen ts set forth in previous orders, including the requirement that Defendant not make any disparaging remarks to the children concerning Plain tiff or interfere with the ch ildren’s therapy
. On 17 February 20 11, Plainti ff filed a motion seeking the entry of an emergency order suspend ing Defendant’s visitation based upon a lett er from his psychiatrist which indicated that- 6

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Defendant had not received treatment since November 2010. In addition, Plaintiff alleg ed that Defendant’s parents had not be en present during Defendant ’s visit s with the children, that
Defendant had been making allegations against Plaintiff to the children, that Defendant had been act ing in an erratic and otherwise troublesome manner , and that the children’s best interests would no t 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 Def endant’s visitation pending a hearing to b e 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 interest s would be served by remaining in therapy with Ms. McInerney and ordering that the relief granted in the 17 Fe bruary 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 b ased 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 contact ing the minor children “except as authorized by the children’s therapist, the Plaintiff’s family , . . . or- 7
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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 exce ed 90 days based upon his failure to comply with the 9 March 2011 order
. On 23 March 2012, Defe ndant 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, Plainti ff filed a response to Defendant’ s disqualification mot ion
. After holding a hearing with respect to the issues raised by Defendant’s disqualification motion on 1 May 2012, Jud g e 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 o n 19 Ju ly 2012
. At the hearing, Plaintiff presented the report from Dr.
F ulkerson while Defendant presented the testimony of Dr. Ma r k Moffett, who stated that Defen dant had been his patient for- 8

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approximately one year and that, in his op inion, Defendant had

an adjustment disorder with disturbances of mood and anxiety or depression characteristic of a narcissistic per sonality disorder
. Dr. Moffe tt saw no evidence that Defendant was
current ly using drug s or abusing alcohol or th at Defendant suffered from a bi polar disorder, although he could not completely rule out the possibility that Defendant suffered from such a disorder
. Finally, Dr. Mo ffett testified that , while he had seen no evidence that Defendant posed a d anger to his children, he could not form ulate an opinion concerning the extent to which Defe ndant 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 wi th his children had be en limited to phone calls initiated by his chil dren and monitored by Plaintiff , that he wanted to visit with the children, and that, as far as he knew, the children want ed to visit with him. Defendant denied that he currently used alcohol to excess and claimed that he had never ph ysically harmed the children or abused them in any way
. At the conclusion of Defendant’s testimony, Plaintiff moved to di smiss Defendant’s motion for insufficiency of the evidence to support an award of the relief that Defendant had requested
.- 9

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On 1 6 Augus t 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 psychiat rist on an ongoing basis given that he not se en his psychiatrist since March 2012; that Defendant had failed to submit to random drug testi ng under psychiatric supervision ; and that Defendant had failed to verify in writing that he was actively involved in, and compliant with, the required psyc hiatric 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 treatme nt with his psychiatrist, that he had prov ided the required written verificati on 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 vis itation rights
.- 10

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On 2 7 March 2013, Plaintiff filed a motion seeking to have Defendant held in contempt based on allegations that Defendant had interfered with the children’s thera py by filing a separate civil action against Ms. McInerney in the Orange County Superior
Court in which he asserted claims for infliction of emotion al distress, conspiracy, and interference with familial rights. Although the Orange County action against Ms. McInerney was dismissed , Ms. McInerney had incur red substantial legal fees in
the course of def ending herself against Defendant’s claims
. A hearing was held o n 1

- 2 May 2013 for the purpose of considering Defendant’s motion for the restoration of his custody and visitation r ights and Plaintiff’s motion to have
Defendant held in contempt. At the hearing, Ms. Mc Inerney testified that Defendant had b een instructing the children to refrain from trusting or t alk ing to her and that Martin was distressed by false statements that Defend ant had made to him
. According to Ms. McInerney , the children were thriving, doing
well academically, and had an appropriate set of friends hips and stated that, in her clinical opinion, the children’s best in terest s would be served by leaving t he existing visitation
schedule unchanged. Defendant , on the other hand, testified that he had never physically harmed the children and that he had tried in ev ery- 11

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possible way to comply with the trial court’s orders. De fendant promised to refrain from making negative comments about Plaintiff in the presence of the children or recording anything

sa id by the children or any other party . Finally, Defe ndant 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 Marti n in chambers in Ms. McInerney ’s presence
. Although Martin expressed love for both of his parents , he indicated that h e 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 Plai ntiff during their conversations , and that he did not want to see Defendant
. Simi larly, 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 a bout 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

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result of the fact that this phone conversation had been very upsetting , Wendy had not re que sted 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 th e 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 fr om the 2 July 2013
order on the grounds that those appeal s 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 order s 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 author ity in support of his apparent contention that he should receive relief from these orders on appeal
. Finally ,- 13

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Defendant has failed to offer any explanation for his failure to note an appeal from any of these orders in a timely manner
. A s a result, in spi te of the fact that this Court has the

a uthority, 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 ele ct 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 ap peal 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 th at 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 holdi ng 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

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trial court failed to provide Defendant with required procedural protection s, 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 pr operly before us. Contempt may be either civil or cri minal 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
t he distinction between crimina l 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 contem pt 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 t he court order, the contempt is best characterized as civil.”- 15

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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 C ourt to this Court, c riminal contempt orders entered in the District Court are properly appealed from the Di strict C ourt to th e Superior Court
. N.C. Gen. Stat. § 5A

- 17; N.C. Gen. Stat. § 5A

- 24; Hancock v. Hancock , 122 N.C. App. 518, 52 2, 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 Defend ant seeks to challenge on appeal found Defendant in contempt for interfering with the therapy that Ms. McI nerney 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 , t he 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 b e contained in
all civil contempt orders
. N.C. Gen. Stat. § 5A

- 23( e ). Thus ,- 16

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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 motio n 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 chan ge in circumstances sufficient to support the restoration of his visitation rights
had occurred . We do not find Defendant’s argument s 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 a re su pported by substantial- 17

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evidence,” Shipman v. Shipman , 357 N.C. 471, 474, 586 S.E.2d 2 50, 253 (2003), with s ubstant ial 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 cas es 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, 57 5

- 7 6, 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 includ e 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

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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, “t he 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 cour t’ s ex amination 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 c ourt 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 th e se 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 c all was m onitored 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 i n school and are well

adjusted, 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 ch ildren’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 P l aintiff, her family, and Ms. McI nerney. Based upon these findings of fact , the trial court concluded as a matter of law that the prior orders suspending Defendant’s- 21

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visitation with the children should remain in effect subject to
further order of the Court
. A careful review of the record establishes tha t each of the relevant findings of fact ha s 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 ab out Defendant coming to get him; and by the evidence concerning De fendant’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 we lfare 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

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testimony that he no longer abused drug s 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 d eemed appropriate
. In support of t his argument , Defendant cites this Court’s decision in Simpson v. Simpson , 149
N.C. App. 440, 562 S.E.2d 447 (2002), for the pro position that overcoming a drug dependency can support a substantial change in circumstances. I n Simpson , however, the d efendant 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 par ty has the burden of proving a ‘nexus’ between the ch anged 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 f ailing to modify the existing visitation arrangement in light of Defendant’s claim to have overcome his earlier drug and alcohol problem s . 2

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

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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 thi s 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 th at a substantial c hange 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 show ing 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 r emained 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 p roposition, and we know of none .- 24

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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).