Académique Documents
Professionnel Documents
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APPELLANT’S BRIEF
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** a. SUBJECT INDEX **
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . 2
APPELLANT’S ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . 16
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . 41
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . 42
Appellant’s brief 2
** b. TABLE OF AUTHORITIES **
Cornett v. Watauga Surgical Group, P.A., 194 N.C. App. 490, 493, 669
Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 196,
657 S.E.2d 361, 364 (2008) (quoting N.C.R. App. P. 2) (cited on Page
39)
Goulart v. Meadows, 345 F.3d 239, 246 (4th Cir.2003) (citing Cornelius
v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797, 87 L.Ed.2d
North Carolina General Statutes § 8C–1, Rule 802 (2009) (cited on page
17)
North Carolina Rules of Evidence §801 (c) (2009) (cited on pages 17,
32)
Oliver v. Bynum, 163 N.C. App. 166, 169, 592 S.E.2d 707, 710 (2004)
Sharpe v. Nobles, 127 N.C. App. 705, 709, 493 S.E.2d 288, 291 (1997)
Smith v. Barbour, 195 N.C.App. 244, 249, 671 S.E.2d 578, 582 (2009)
State v. Blackwell, 207 N.C. App. 255, 257, 699 S.E.2d 474, 475 (2010)
State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009)
State v. Maynard, 311 N.C. 1, 16, 316 S.E.2d 197, 205 (1984) (cited on
page 17)
State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008)
Thorne v. Bailey, 846 F.2d 241, 243 (4th Cir.1988) (cited on page 28)
1. Did the court err in finding that because Dr. Ginger Calloway was
Appeal #7)
failed to comply with the order of February 8th 2016 (R p. 37) when the
court itself had replaced this order on November 23rd 2016 (R p. 114),
and that the first order was written before Dr. Calloway provided any
recommendations?
4. Did the trial court abuse its discretion in concluding that the
5. Did the trial court err in giving instruction to the parties that
was not presented in evidence, and while having taken that commitment,
6. Did the trial court abuse its discretion in finding that the
when needed?
7. Did the trial court err in refusing to hear the Rule 702 objection
evaluations?
8. Did the trial court abuse its discretion in finding that the
Defendant did not ask plaintiff a single question about the minor
child the day of the hearing, when in fact he asked several questions
9. Did the trial court abuse its discretion in finding that the
Defendant had only asked on one occasion about the minor child
Appellant’s brief 8
the child?
10. Did the trial court abuse its discretion in finding that the
11. To the extent that the custody decision would have been based on
this finding, did the trial court err in making the finding that the
Appellant, when in fact the child was taken from the Defendant-
Carolina?
12. Did the trial court err in reaching a conclusion of law that was
request for reasonable shared legal and physical custody of the child?
absent on the day of the signing of the order, thus denying his right
to renew his objections to the Findings of the Court and make new
objections?
temporary custody order entered on February 8th 2016 (R p. 37) and (3)
The permanent custody order was entered on March 30th 2017 (R p. 123).
custody.
This is a custody case in which the child was born during the marriage
does not state a reconvening time for the decision to be updated, (2)
all issues related to the custody of the child and (4) there is no
183).
Issue #1.
to subpoena Dr. Ginger Calloway, who had been appointed in this case
#17). The Court also confirmed that the report that was filed by her
lines 4 to 22; T p. 161 lines 22-23). Yet, the Court allowed questions
that hearsay objections are not valid when the party aggrieved by the
rumors has not made an effort to subpoena the witness (T p. 139 lines
11-14) and that they do not apply to expert witnesses hired by the
Issue #2.
faith during the evaluation, including providing any and all necessary
Court on the day of the permanent custody hearing, claiming that the
18) and that no judiciary order had been written after the publication
the most recent temporary custody order was not ordering him to follow
the recommendations (Findings of Fact #14, #15, #16, #27, #28, #48,
#55, #57, #58, order starting at R p. 123). The trial court later
cited this point as being the main point on which its decision to deny
statement he has made on the public space, claiming that they were
protected by the First Amendment and that they were irrelevant to the
denied his request and ordered him to answer the questions concerning
Appellant’s brief 13
123).
bitches." When asked about who he was referring to, the Defendant
the people who have committed perjury against him through affidavits
p. 20-23). He specified that these people were not present in the room
Issue #1). He also sought and obtained assurance by the Court that the
Court would not consult Dr. Calloway’s evaluation and that this
147 lines 4 to 22). Yet, the Court decided to copy-paste content from
(Findings of Fact #29, #30, #31, #32, #33, #34, #45, #55, #57, #58,
Issue #6. When the Plaintiff’s counsel suggested that the Defendant
may have failed to obtain medical counselling when he needed some, the
that the trial Court did not have to completely strike any reference
to the psychological report of Dr. Calloway (Issues #1, #2, #5). The
an additional Rule 702 objection. The trial court refused to hear the
Rule 702 objection and claimed that the report was not going to be
73, lines 2-3). The Court decided to ignore these questions and
123).
Issue #9. The Defendant gave multiple examples of contacts he has made
with the Plaintiff’s party concerning the child (T p. 31, lines 4-6
and 9-11; T p. 93-94 starting at line 22; T p. 109 lines 10-12; p. 110
lines 21-25; p. 111 lines 2-9; p. 113 lines 18-20; p. 114 lines 16-21;
Appellant’s statements and claimed that the Defendant had only asked
on one occasion about the minor child (Finding of Fact #123, order
starting at R p. 10).
absence of answers from the Plaintiff and her lawyer (see relevant
Issue #11. The Defendant-Appellant testified that the child was taken
have led the Court to detain the child against the Defendant-
Appellant’s will from the day he was born up to the day of the
Court made the finding that the child was not sufficiently accustomed
Issue #12 and #13. The trial court concluded based on its findings
that the Defendant-Appellant was an unfit parent and denied his rights
to reasonable custody.
** g. APPELLANT’S ARGUMENTS **
if so, whether the trial court abused its discretion in admitting the
evidence.” State v. Blackwell, 207 N.C. App. 255, 257, 699 S.E.2d 474,
214, 683 S.E.2d 437, 444 (2009), disc. review denied, 363 N.C. 857,
Gen. Stat. § 8C-1, Rule 802), which resulted in Findings of Facts #16,
#27, #28, #29, #30, #31, #32, #33, #35, #36, #37, #38, #40, #45, #46,
#55, #56, #57 and #58, in the order starting at R p. 123. The hearsay
testify about how they reacted to the document of Dr. Calloway (see
State v. Maynard, 311 N.C. 1, 16, 316 S.E.2d 197, 205 (1984)), but the
Calloway herself. Dr. Calloway was not present at the hearing and
Appellant should not have been considered as facts, since her report
does not fall under any exception to the hearsay rule (N.C. Gen. Stat.
conclusions of law" Sharpe v. Nobles, 127 N.C. App. 705, 709, 493
S.E.2d 288, 291 (1997). “The standard of review for alleged violations
204, 214, 683 S.E.2d 437, 444 (2009), disc. review denied, 363 N.C.
The trial court erred in finding that the psychological report of Dr.
case. The first one is an ex parte order which does not order the
24). The second order was entered before the psychological evaluation
Finally, the third order, which is the only temporary custody order
that was entered after the production and publication of the report of
following a hearing in Court after the parties in this case had been
Calloway and argue their case about whether or not the Defendant-
but no party successfully obtained such order from the Court (order
starting at R p. 114).
The Defendant-Appellant believed that the third order, which does not
replacing the second one. However, the trial court decided to consider
custody orders (Findings of Fact #14, #15, #16, #27, #28, #48, #55,
anything against his will. The Defendant also notes that any
information about this report that has come into the trial does not
come from the written report itself, as the Court promised it would
#1).
p. 125), because the order does not contain any language ordering the
Appellant’s brief 21
114-119).
Secondly, the court erred in finding that the second temporary custody
the trial court that the segment stating "Lastly, defendant shall be
one supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish. The Judges, both of the
supreme and inferior Courts, shall hold their Offices during good
without due process, the trial court has literally created another
Calloway, and doing so before even knowing what these requests would
delegations could go wrong. Dr. Calloway could have been ordering the
(incidentally, this is what she has done here). Dr. Calloway could
money, and had he not done so, the Court could then have found him
In this case, the trial court delegated its judiciary power to Dr.
law."
the trial court, thus obtaining a proper judiciary order that would
fact in the report when she states "Restraint regarding removal of the
child and dictate to follow court orders are legal matters, not
could not have appealed of the order entered on February 8th 2016
would be, and he had no reason to believe at that time that the
August 31st 2016, well after the 30-days window for appealing of the
previous order, and there is no statute nor case law allowing the
Defendant could not appeal of the November 23rd 2016 order because this
It is proposed that this Court must declare that a trial court cannot
Issue #3
evidence.” State v. Blackwell, 207 N.C. App. 255, 257, 699 S.E.2d 474,
214, 683 S.E.2d 437, 444 (2009), disc. review denied, 363 N.C. 857,
For this issue, the Defendant-Appellant argues that the court erred in
that the trial court abused its discretion in finding that these
speaks on the public space about how family courts are used by women
indicated any intention to harm anyone involved in this case, nor was
extortion, but he also testified that these comments were not aimed at
anyone present in the room during the hearing and were intended for
The only legal theory by which acts of free speech could have been
unfair to men.
evidence. For instance the Supreme Court of New Jersey noted “The
has acted in accordance with those views. One would not presume that
Appellant’s brief 27
Bob Marley, who wrote the well-known song “I Shot the Sheriff,”
Jersey, 2014). In the present case, the Court simply included the
“The first inquiry a court must undertake when a First Amendment claim
speech.’“ Goulart v. Meadows, 345 F.3d 239, 246 (4th Cir.2003) (citing
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797,
87 L.Ed.2d 567, 576 (1985)). In this case, the statements were made by
bring the First Amendment into play, we have asked whether “[a]n
the likelihood was great that the message would be understood by those
who viewed it.” (quoting Spence v. State of Wash., 418 U.S. 405, 410–
Therefore, the only legal theory in which these statements could have
Bailey, 846 F.2d 241, 243 (4th Cir.1988) (holding that a West Virginia
for the audience of the Defendant-Appellant and it was not sent to the
These acts of speech led to findings that are irrelevant to the well-
123). The Defendant argues that this Court must protect his right to
free speech against the violations of his rights that have occurred in
call out his abusers on the public space. It would be unfair that this
legal abuse to talk about the wrongs that were committed against him
on the public space, especially given that the false allegations that
defend their reputation when false allegations are made against them.
166, 169, 592 S.E.2d 707, 710 (2004).” (Sergeef v. Sergeef, No. COA
16-489, 2016).
The trial court abused its discretion in finding that the Defendant-
Appellant had called all the parties in this case “evil bitches”
(Finding of Fact #23, order starting at R p. 123) when in fact his own
present in the room and who had committed perjury against him (T p. 37
was clear from the context that the Defendant-Appellant was opposing
if so, whether the trial court abused its discretion in admitting the
evidence.” State v. Blackwell, 207 N.C. App. 255, 257, 699 S.E.2d 474,
475 (2010). This particular issue mixes issues of facts and of law,
p. 103 lines 11-22; T p. 147 lines 4 to 22; see also T p. 161 lines
22-23). Yet, it can easily be seen that the Court has copy-pasted
Appellant’s brief 31
findings from the report into the Findings of Facts that are not
- Finding #29 was copied from the 4th paragraph of R p. 148, the 3rd
153.
- Finding #32 R p. 128 was copied in part from the 6th paragraph of
R p. 153.
as paragraph 6 of R p. 153.
report.
146.
- Findings #55, #57 and #58 R p. 131 assume that the Defendant has
when it claimed that it would not accept the report of Dr. Calloway as
see also T p. 161 lines 22-23). Including these findings not only
rules of evidence against hearsay (see N.C.R. Evid. 801(c), Issue #1),
Appellant’s brief 32
but the trial court has also severely misled the Defendant-Appellant
by letting him believe that evidence would not be consulted, and yet
166, 169, 592 S.E.2d 707, 710 (2004).” (Sergeef v. Sergeef, No. COA
16-489, 2016).
The trial court abused its discretion in finding that the Defendant-
when needed, which contradicts the Finding (T p. 17, lines 17-22). The
Court has not obtained any evidence that this statement by the
not obtained counseling. It was clear from the context that the
not seeking any counsellor of his own and indicated that he did
Appellant’s brief 33
Issue #7. (“Where the plaintiff contends the trial court's decision is
490, 493, 669 S.E.2d 805, 807 (2008)). “Under a de novo review, the
court considers the matter anew and freely substitutes its own
judgment for that of the lower tribunal.” State v. Williams, 362 N.C.
628, 632-33, 669 S.E.2d 290, 294 (2008) (internal quotation marks and
hear the Rule 702 objection and claimed that the report was not going
in Findings of Facts #16, #27, #28, #29, #30, #31, #32, #33, #35, #36,
#37, #38, #40, #45, #46, #55, #56, #57 and #58, in the order starting
at R p. 123. The trial court’s refusal to hear the Rule 702 objection
is a denial of right that adds to the fact that the trial court has
misled the parties by stating that it was not including Dr. Calloway’s
166, 169, 592 S.E.2d 707, 710 (2004).” (Sergeef v. Sergeef, No. COA
16-489, 2016).
The trial court abused its discretion in finding that the Defendant-
Appellant had not asked a single question about the minor child on the
when no evidence suggests that it is the case, and indeed the record
166, 169, 592 S.E.2d 707, 710 (2004).” (Sergeef v. Sergeef, No. COA
16-489, 2016).
The trial court abused its discretion in finding that the Defendant-
Appellant had only asked on one occasion about the minor child
Plaintiff’s party concerning the child (T p. 31, lines 4-6 and 9-11; T
p. 93-94 starting at line 22; T p. 109 lines 10-12; p. 110 lines 21-
25; p. 111 lines 2-9; p. 113 lines 18-20; p. 114 lines 16-21; p. 129
lines 4-16).
166, 169, 592 S.E.2d 707, 710 (2004).” (Sergeef v. Sergeef, No. COA
16-489, 2016).
Appellant’s brief 36
The trial court abused its discretion in finding that the Defendant-
evidence suggesting that this is the case. The only relevant portion
absence of answers from the Plaintiff and her lawyer (see relevant
Smith v. Barbour, 195 N.C.App. 244, 249, 671 S.E.2d 578, 582 (2009).
from the day he was born up to the day of the permanent custody
Appeals, 2002), this Court notes that temporary custody orders without
and the hearing on the merits,” and “A party should not lose the
case tried but cannot get it heard because of the case backlog.” By
considering the amount of time that the child had spent in the
against the Defendant-Appellant’s case the fact that he has never seen
the child. However, the facts of this case is that the child was
that the Court has ruled with temporary orders that the Defendant-
Appellant had no right to see his son, against his consent and in
Issue #12 and #13. It is argued that, given the issues mentioned
the child or that such visitation rights are not in the best interest
of the child.”
Appellant has requested joint custody, but the court did not consider
“Encourage programs and court practices that reflect the active and
the public interest.’” Dogwood Dev. & Mgmt. Co. v. White Oak Transp.
Appellant’s brief 39
Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008) (quoting N.C.R.
App. P. 2).
the Court, as he was not informed of his rights at the time, the
plain error review in order to review this oral order by the trial
day of the signing of the permanent custody order. The Court ordered
and conclusions of law made by the Court. Because the mailing to his
received the order after the 10-day window had elapsed, thus keeping
asking for this Court to take immediate action that will help repair
was broken against his consent and in violation of his rights. The
3. Refers the case back to the trial court for a permanent custody
5. Provides any other relief that this Court may deem just.
Appellant’s brief 41
this case have now been unjustly withheld from the father for 2
time for this Court to show that it will not participate to the unfair
reparation to the child when a judgment has done so for too long.
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