No. ____________

FROM THE GENERAL COURT OF JUSTICE DISTRICT COURT DIVISION CASE NO. 18 CVD 3169

JOHNNY C. SHERROD, JR.                   Plaintiff- Appellant  vs.  TRACEY MARIE HINDES                    Defendant- Appellee

IN THE NORTH CAROLINA COURT OF APPEALS

PLAINTIFF-APPELLANT’S BRIEF

TABLE OF CONTENTS

ISSUE PRESENTED.. 8

STATEMENT OF THE CASE. 9

STATEMENT OF GROUNDS FOR APPELLATE REVIEW… 11

STATEMENT OF THE FACTS. 12

ARGUMENTS. 14

A.  STANDARD OF REVIEW.. 14

B.  THE TRIAL COURT ERR IN GRANTING APPELLEE’S AND EMMANUEL MOORE’S MOTIONS TO DISMISS APPELLANT’S CASE. 15

CONCLUSION.. 20

CERTIFICATE OF COMPLIANCE. 21

CERTIFICATE OF SERVICE. 22

 

TABLE OF AUTHORITIES

Cases

Doyle v. Hasbro, 103 F.2d 186, 190 (1 Cir. 1996)………………………………….. 10

Everette v. Collins, 176 N.C. App. 168, 171, 625 S.E.2d 796, 798 (2006)……. 15

In re Hatley, 291 N.C. 693, 694, 231 S.E.2d 633, 634 (1977)…………………… 12

Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff’d per curiam, 357 N.C. 567, 597 S.E.2d 673…………………………………………………………. 11

Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003)………… 15

Sisk v. Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d 429, 434 (2010)    13

Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979)……….. 11

State v. Black, 197 N.C. App. 373, 375-76, 677 S.E.2d 199, 201 (2009)……… 12

State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982));………………. 13

State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988);………………. 15

State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008)…………….. 13

Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100-01, 655 S.E.2d 362, 369 (2008)…………………………………………………………………………………………………. 13

White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)………………… 15

Statute

N.C. R. Civ. P. 12(b)(6)……………………………………………………………………. 10

No. ____________

FROM THE GENERAL COURT OF JUSTICE DISTRICT COURT DIVISION CASE NO. 18 CVD 3169

JOHNNY C. SHERROD, JR.                   Plaintiff- Appellant  vs.  TRACEY MARIE HINDES                    Defendant- Appellee

IN THE NORTH CAROLINA COURT OF APPEALS

PLAINTIFF-APPELLANT’S BRIEF

 

ISSUE PRESENTED

1.     Did the Trial Court err in granting Appellee’s and Emmanuel Moore’s Motions to Dismiss Appellant’s case?

 

STATEMENT OF THE CASE

          This is a child custody case. Appellant filed a Summons and Affidavit on or about November 30, 2020. Appellant included Appellee and her husband, Emmanuel Moore, as Defendant and Co-Defendant respectively. The Affidavit alleged that Appellee had denied mediation, which was requested by Appellant. The Affidavit also alleged Appellee’s abuse of her position as a police officer to harass Appellant and his acquaintances. Lastly, Appellant’s Affidavit alleged that Appellee no longer had the child’s best interest at heart.

          Appellee filed a Motion to Dismiss in response to Appellant’s Affidavit, on February 1, 2021, and alleged, inter alia, that Appellant’s Affidavit failed to state a claim upon which relief can be granted. Appellee also claimed that Appellant’s Affidavit contained issues which were moot and that were already settled. Thirdly, Appellee claimed that Appellant used the wrong procedure to file the claims. Lastly, Appellant claimed sovereignty, which allegedly barred her from Appellant’s allegations.

          On February 1, 2021, Emmanuel Moore also filed a Motion to Dismiss Appellant’s Affidavit and Summons.  Moore alleged he was not a party to the case and that Appellant erroneously named him as co-defendant. He also alleged that he had no legal custody of the child. Thirdly, Moore alleged that the Affidavit was filed following the wrong procedure, and that it was filed in a bid to harass the Defendant. Lastly, he alleged that the affidavit was frivolous, procedurally inappropriate and defective.

          On or about June 4, 2021, Appellant received Orders from the Court granting Appellee’s and Moore’s Motions to Dismiss with prejudice.

          Appellant herein appeals the said Orders.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

          Judge Mark E. Galloway’s order, which entered judgment as a matter of law in favor of the Appellee and Emmanuel Moore on all of the Appellant’s claims, is a final judgment and appeal is therefore proper pursuant to N.C. Gen. Stat. § 7 A-27(b).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

STATEMENT OF THE FACTS

          Appellant is a Desert Storm war Veteran. (Appellant’s Nov 30, 2020, Affidavit, Page 1).

          Appellee is a police detective working with the Greenville Police Department.  (Judge Bean’s Finding of Fact, Page 2).

          Both parties are parents of Jaylen Marie Sherrod, born on November 17, 2011. (Appellant’s Nov 30, 2020, Affidavit, Page 1).

          The Appellant and Appellee experienced a strained relationship and eventually broke up.

          Consequently, Appellant filed the instant case seeking child custody orders from the General Court of Justice, District Court Division, Pitt County.

          On or about Nov 30, 2020, Appellant filed an affidavit and summons against Appellee and named Emmanuel Moore as co-Appellee. Id.

          On December 15, 2020, Judge C. Christopher Bean entered a finding of fact for the aforementioned case. In the finding of fact, the Judge granted legal and physical custody to the Appellee subject to reasonable visitation from Appellant. (Judge Bean’s Finding of Fact, Page 2).

          On February 1, 2021, both Appellee and her husband, Emmanuel Moore filed Motions to Dismiss Appellant’s Affidavit and Summons with prejudice.

           On June 4, 2021, Appellant received Orders from Judge Mark E. Galloway, which dismissed Appellant’s Affidavit and Summons with prejudice. The Judge dismissed Appellant’s case on the following grounds:

For Appellee’s Motion to Dismiss:

       i.            That by filing the Affidavit and Summons, Appellant failed to file a Motion to Amend, in violation of Rule 15 of the North Carolina Rules of procedure.

     ii.            That Judge Bean’s Statement of Facts found no evidence of Appellant’s allegations in Appellant’s Affidavit.

  iii.            That the statements in Appellant’s Affidavit were already in the Court’s records and were duly settled by Judge Bean’s finding of facts.

For Emmanuel Moore’s Motion to Dismiss:

       i.            That Emmanuel Moore does not have legal custody of the minor child.

     ii.            That Appellant improperly issued summons on Moore in an already pending action.

  iii.            That Appellant did not file a Motion to Amend in violation of Rule 15 of the North Carolina Rules of procedure.

   iv.            That Judge Bean’s Findings of Fact settled all allegations in Appellant’s Affidavit.

     v.            That Appellant made no allegations against Moore.

   vi.            That Moore does not appear in the case caption or in the relief sought. 

 

ARGUMENTS

A.   STANDARD OF REVIEW

          “This Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court’s ruling on the motion to dismiss was correct.” Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff’d per curiam, 357 N.C. 567, 597 S.E.2d 673 

(2003)

          “The motion to dismiss under N.C. R. Civ. P. 12(b)(6) tests the legal sufficiency of the complaint. In ruling on the motion the allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted.” Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citations omitted).

B.    THE TRIAL COURT ERR IN GRANTING APPELLEE’S AND EMMANUEL MOORE’S MOTIONS TO DISMISS APPELLANT’S CASE

       i.            The issues raised in Appellant’s Affidavit are not moot.

          “Before determining whether an appeal is moot when the defendant has completed …, it is necessary to determine whether collateral legal consequences of an adverse nature may result. ‘[W]hen the terms of the judgment below have been fully carried out, if collateral legal consequences of an adverse nature can reasonably be expected to result therefrom, then the issue is not moot and the appeal has continued legal significance.’” State v. Black, 197 N.C. App. 373, 375-76, 677 S.E.2d 199, 201 (2009) (quoting In re Hatley, 291 N.C. 693, 694, 231 S.E.2d 633, 634 (1977)).

          Appellant contends that he would suffer collateral legal consequences that are be unfavorable to him, if this Court upholds the Trial Court’s findings that the Appellant’s Affidavit contained allegations that were already made in the pending action, and that were settled by Judge Bean’s Findings of Fact. Appellant further maintains that contrary to Judge Bean’s findings, the Appellee has no best interest of the child at heat. Notably, Appellee has denied mediation, which was requested by the Appellant, as well as many visitation offers and out of court agreements.

          Besides, Appellee has also obstructed all emotional ties, daily care, parental guidance, involvement in school and community activities, with the child as well as the sable living situation and parenting plan. Appellee’s conduct has inflicted Parental Deprivation upon the Appellant.  

     ii.            The Trial Judge erroneously relied on Judge Bean’s Findings of Facts, which were in error.

          “In reviewing a trial judge’s findings of fact, [this Court is] ‘strictly limited to determining whether the trial judge’s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge’s ultimate conclusions of law.’” State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)); see also Sisk v. Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d 429, 434 (2010) (“‘[F]indings of fact made by the trial judge are conclusive on appeal if supported by competent evidence, even if . . . there is evidence to the contrary.’” (quoting Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100-01, 655 S.E.2d 362, 369 (2008))).

          Appellant contends that the Trial Judge wholly relied on findings of facts, which were manifestly in error. As already alleged above, the Court failed to recognize the fact that Appellee denied mediation, which was requested by the Appellant, as well as many visitation offers and out of court agreements. Clearly, irrespective of any past misunderstanding between Appellant and Appellee, Appellant was taking reasonable steps to achieve consensus with the Appellee, in the best interest of the child. Unfortunately, the Trial Court, by applying the erroneous finding of facts against the Appellant, seems to sanction Appellee’s refusal to enter a consensus with Appellant.

          Also, the Trial Court erred when it relied solely on the events of Labor Day 28, to award custody rights to Appellee. Therefore, the Court wholly relied on Appellant’s past mistake to arrive at its decision. Most notably, there is no evidence that Appellant cannot take care of his child, if granted custody of her.

          The Trial Court also erred in fact, when it denied Appellant’s averment that Appellee has abused her authority as a police officer and has been reprimanded for misconduct in relation to Dana Taylor Lewis, an acquaintance of Appellant. Doubtlessly, Appellant maintains that the aforementioned allegation is pertinent fact to the case, and there is evidence to prove that Appellant was indeed reprimanded for misconduct as alleged above.

  iii.            The Trial Court erred in failing to award child custody to the Appellant.

          “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 evidence.” Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003). “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.

          “Absent an abuse of discretion, the trial court’s decision in matters of child custody should not be upset on appeal.” Everette v. Collins, 176 N.C. App. 168, 171, 625 S.E.2d 796, 798 (2006).

          “Abuse of discretion results where the court’s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988); see also White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (“A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason . . . [or] upon a showing that [the trial court’s decision] was so arbitrary that it could not have been the result of a reasoned decision.”)

          In the instant action, Appellant avers that the Trial Court erroneously relied on the finding of facts to uphold the award of child custody to the Appellee. As already alleged above, the Trial Court failed to appreciate the fact that some facts in Judge Bean’s finding of facts were erroneous, as much as Appellant did not appeal the findings. For instance, the Court failed to appreciate that Appellant was taking reasonable steps to achieve consensus with the Appellee, in the best interest of the child.

          Appellant also avers that the Court failed to consider Appellant’s input and relationship with Jaylen. Notably, from Jaylen’s birth, the minor child lived under shared responsibility of care, parenting and monitoring of the child’s daily and nightly activities. In addition, the residence belonging to Appellant, at 2700 Thackery Road, Apt 1, Greenville, NC 27858 was utilized as Jaylen’s home for Appellant to provide his responsibilities of parenting, custody and care while the Appellee worked 12 hour shifts as a Police officer. It follows; it is doubtless that Appellant has always displayed proper parenting behaviors regarding the child while enduring the infliction of emotional distress from the Appellee, while she used her authority to stalk and harass Appellant and his acquaintances. 

          Accordingly, the Trial Court abused its discretion by failing to probe the facts beyond what was stated by Judge Bean. Notably, the Court failed to question the circumstances existing at the time the parties appeared before the Court on or about May 21, 2021.

CONCLUSION

          For the foregoing reasons, this Court should hold that the Appellant has sufficiently stated his case against the Appellee and that the Trial Court erred in failing to consider Appellant’s claims in Appellant’s Affidavit. Appellant respectfully requests this Honorable Court reverses the Trial Court’s Orders and remands the case for a fresh hearing. Appellant also prays for any other relief this Court deems just.

Respectfully Submitted,

Dated: _____________

________________________ JOHNNY C. SHERROD, JR.   ENTER ADDRESS   Appellant in Pro Per.

CERTIFICATE OF COMPLIANCE

          Pursuant to Rule 280 of the Rules of Appellate Procedure, counsel for the Appellant certifies that the foregoing brief, which is prepared using a proportional font, is less than 8,750 words (excluding the cover, index, table of authorities, certificate of service, and this certificate of compliance) as reported by the word-processing software on which it was written.

________________________ JOHNNY C. SHERROD, JR.   ENTER ADDRESS   Appellant in Pro Per.

Dated: _____________

CERTIFICATE OF SERVICE

          The undersigned hereby certifies that she served a copy of the foregoing brief on counsel for the Appellee by depositing a copy, contained in a first-class postage-paid wrapper or envelope, at an office of the United States Postal Service, addressed as follows:

TEAGUE CAMPBELL DENNIS & GORHAM, LLP

Jennifer B. Milak

N.C. State Bar No. 24418

P. O. Box 19207

Raleigh, NC 27619-9207

Telephone: (919) 873-0166

Fascmile: (919) 873-1814

W. Gregory Duke

119 West 4^th Street,

Greenville, NC 27858

Telephone: (252) 758-4444

Facsmille: (252) 758-4080

Attorney for Defendant Tracey Marie Hindes

Dated: _____________

________________________ JOHNNY C. SHERROD, JR.   ENTER ADDRESS   Appellant in Pro Per.