An unpublished opinion of the North Carolina Court of Appeals does not constitute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

                                              Durham County
      v.
                                              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 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 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

     2
         In 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).
