Appellant’s reply 1

STATE OF NORTH CAROLINA NORTH CAROLINA COURT OF APPEALS

COUNTRY OF DURHAM

(NORTH CAROLINA COURT OF APPEALS)

*****************************

JACQUELINE LOUISE NEWTON )

Plaintiff-Appellee, )
) APPELLANT’S REPLY
v. )
) FILE NUMBER OF THE ORIGINAL CASE:
JEAN-FRANÇOIS GARIÉPY ) 15 CVD 5703
Defendant-Appellant, ) Docket COA-17-1175
)

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APPELLANT’S REPLY
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** a. SUBJECT INDEX **

INDEX OF CONTENTS OF THE APPELLANT’S REPLY. . . . . . . . . . . . 1

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . 2

REPLY TO APPELLEE’S ARGUMENTS. . . . . . . . . . . . . . . . . .6

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . 41

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . 42
 Appellant’s reply 2

** b. TABLE OF AUTHORITIES **

Adams v. Lovette, 105 N.C. App. 23, 411 S.E.2d 620 (1992) (cited on

page 3)

First Amendment of the United States Constitution (cited on page 6)

Meadows v. Meadows, No. COA15-527 (2016) (cited on page 14)

North Carolina General Statutes § 50-13.5 (i) (cited on page 13)

 Appellant’s reply 3

** c. REPLY TO APPELLEE’S ARGUMENTS **

PLAINTIFF-APPELLEE’S ARGUMENT I

The Plaintiff-Appellee argues that findings of facts from

temporary custody hearings can form substantial evidence on which the

trial court could have relied. This argument is moot because the trial

court has explicitly stated that it would not consider the Findings of

Facts of any temporary custody order "This Court will not consider any

previous findings of fact from earlier hearings in this case […]"

(Finding #14 R p. 125). The Plaintiff-Appellee did not object to this

exclusion during the trial as the trial court stated "I can’t consider

the finding of fact as evidence as you stated […]" (T p. 103 lines 4-

10). Thus, the argument of the Plaintiff-Appellee that the findings of

facts could, in principle, have been used, is moot. It is within the

trial court’s discretion to reject irrelevant evidence, and reversing

a judgment on relevance on appeal would require a showing of abuse of

discretion (Adams v. Lovette, 105 N.C. App. 23, 411 S.E.2d 620

(1992)), but the Plaintiff-Appellee did not provide any argument

showing such an abuse of discretion. Had the trial court stated that

it would indeed consider those findings during the hearing, after the

Defendant-Appellant’s initial objection, the Defendant-Appellant would

have had many more objections, but he did not need to lay those out

because the trial court abandoned the idea of considering these

Findings of Facts without objection from the Plaintiff-Appellee.

In the same vein, the Plaintiff-Appellee argues that the report

of Dr. Calloway was filed and that it can therefore be used as

 Appellant’s reply 4

evidence, but the trial court clearly contradicted this theory: "Dr.

Calloway’s evaluation is not part of substantive evidence in this

case." (T p. 161 lines 22-23). Again, the determination of which

evidence is relevant to the case is within the discretion of the trial

court and the Plaintiff-Appellee has not objected to this decision,

and therefore they have waived these two issues on appeal.

The Plaintiff-Appellee argues that the Defendant-Appellant has

not appealed of the temporary custody orders, which is not true,

because he did include one of these orders in the notice of appeal. In

addition, because the Findings of Facts of these orders were rejected

from evidence by the trial court (Finding #14 R p. 125), there was no

reason for the Defendant-Appellant to appeal of the other temporary

custody orders.

The Plaintiff-Appellee claims that the question on page 17 of the

transcript was not objected to, but the answer to this question is not

useful to support any of the Findings of Facts questioned, so this is

irrelevant. The question was clearly aimed at resolving a

communication issue that occurred between the Defendant-Appellant and

Dr. Calloway, and did not relate to the truth of the matters asserted

in the question asked to Dr. Calloway.

The Plaintiff-Appellee claims that the parties were allowed to

testify about their reactions to the report by Dr. Calloway, which

would not constitute hearsay. This is true in principle, but the trial

court went further and has taken for truth the statements in the

report, which violates the Defendant-Appellant’s hearsay objections.

 Appellant’s reply 5

At the bottom of Page 5 of the Plaintiff-Appellee Responsive

Brief, the Plaintiff-Appellee essentially recognizes that it would

have been improper for the trial court to consider Dr. Calloway’s

statements as truth. Thus, the Plaintiff-Appellee acknowledges that

the multiple Findings of Facts in the permanent custody order, which

in many instances are copy-pasted versions of Dr. Calloway’s report or

heavily inspired from it, were improperly included.

The Plaintiff-Appellee claims that the Defendant-Appellant is

wrong in stating that the trial court has accepted hearsay into the

trial because the trial court believed that hearsay was lawful when it

came from an expert witness who was not subpoenaed to be present.

However, this is the reason that the Court stated for accepting

hearsay testimony about Dr. Calloway’s report (T p. 139 11-14). The

issue of the true motivation of the trial court is not so important

here, because whether or not the trial court had another, unexpressed,

reasoning, hearsay did get included into the trial and was included in

the Findings of Facts of the Permanent Custody order against the

Defendant-Appellant’s objections and no exceptions to the hearsay rule

were raised during the trial.

The Plaintiff-Appellee claims that it is proper to use temporary

custody orders to make decisions in the permanent custody hearing.

However, this is an argument that fails to address the point of the

Defendant-Appellant. The point of the Defendant-Appellant concerning

whether or not he violated a court order is that there is no court

order that was written after the writing of Dr. Calloway’s report,
 Appellant’s reply 6

ordering him to follow her recommendations. The Defendant-Appellant

claims that the fact that the order was written before the

recommendations were even made was a delegation of judiciary powers

that has violated his constitutional rights.

The only argument made by the Plaintiff-Appellee concerning this

particular line of argument is that they claim that psychological

reports by expert witnesses do constitute judicial orders. However,

they provide no authority supporting their idea, while the arguments

of the Defendant-Appellant rely on numerous constitutional principles

of both the United States Constitution and the North Carolina

Constitution. The Plaintiff-Appellee fails at providing any argument

showing that a psychological report has ever been considered to

constitute a judicial order in North Carolina.

PLAINTIFF-APPELLEE’S ARGUMENT II

The Plaintiff-Appellee argues, without citing any authority other

than the First Amendment of the United States Constitution, that free

speech constitutional protections do not apply to this case. The

argument is that in a custody hearing, the court merely is taking the

child away from the Defendant-Appellant, not impeding on his free

speech. However, the authorities cited in the Defendant-Appellant’s

brief do show that courts, in interpreting the first amendment, do

have to consider not only whether the inclusion of public speech in

trials will impede on the person’s rights to free speech, but they

also have to care about whether or not the political or artistic

 Appellant’s reply 7

statements have any value in demonstrating conduct that is relevant to

the trial. In doing so, they ensure that only speech which serves to

demonstrate points that are relevant to the trial will be included,

and that fictional or artistic statements will not be taken as truth

in the trial. Here, the political position of the Defendant-Appellant

about the violations of rights that occur in family courts against men

are completely irrelevant to whether or not he is a fit parent. So too

are his statements about murderers that he did as a cognitive

psychologist who was being asked these questions, and the jokes that

he did as a comedian.

PLAINTIFF-APPELLEE’S ARGUMENT III

The Plaintiff-Appellee argues that (T p. 37-38) contains

qualifying evidence to support the idea that the Defendant-Appellant

meant to refer to the Plaintiff, her counsel, and/or Dr. Calloway as

"evil bitches" (Finding #23). This claim is unsupported by reason

since the Defendant-Appellant at no point names these people, and in

fact he even specifies that he was talking about people who have lied

through affidavits and who are not present in the room on that day (it

should be noted that both the Plaintiff and her counsel were present

in the room on that day).

The Plaintiff-Appellee proposes that the finding of

"inflexibility" by the Defendant-Appellant (Finding #29) is justified

by the fact that he believes he has the right to see his son without

supervision and that he has autonomy in the decisions concerning his

 Appellant’s reply 8

mental health. These are basic rights and claiming them in court

cannot on its own lead to a finding that the parent is unfit, or else

any mentally sane person who wants to defend their individual

liberties could end up being found too "inflexible." The Plaintiff-

Appellee also argues that because the Defendant had a romantic

involvement in the past with a 19-year-old who was mentally

handicapped, that this demonstrates a "lack of insight and self-

control." There is no reason why engaging in a healthy romantic

relationship with a consenting adult could ever be perceived as a lack

of insight or self-control.

The Plaintiff-Appellee proposes that the fact that the Defendant-

Appellant has asked to see the child and that he considers this to be

the behavior of a normal father (T p. 165) justifies Finding #30 of

the trial court that "Defendant finds it near impossible to take the

perspective of another." This finding seems completely unsupported by

reason, as the demand to see one’s child is a natural and desirable

phenomena, especially in a case where the Plaintiff-Appellee has

constantly refused to let the Defendant-Appellant see his child. If

parents can be found to be unfit merely for asking to see their child,

then it should be no surprise if someday people end up finding family

courts unfair.

Continuing on Finding #30, the Plaintiff-Appellee suggests that

the burden lies on the Defendant-Appellant to "offer any evidence to

rebut or address such concerns." This is a reversal of the burden of

proof, and the Plaintiff-Appellee is essentially demanding for a law-

 Appellant’s reply 9

abiding citizen who has never committed a single wrongful act in his

life to "prove" that he never did. The burden is on the Plaintiff-

Appellee to demonstrate that any concern that the court may have

expressed in the past is justified.

The Plaintiff-Appellee misrepresents the statements of the

Defendant-Appellant (T p. 101), claiming that the Defendant-Appellant

argued that his experience with animals allows him to be a good

father, when in fact the Defendant-Appellant was making claims about

his experience working with animals to make the case in the trial

court that he is a talented and experienced cognitive neuroscientist.

The Plaintiff-Appellee makes a case that the first part of

Finding #32 is valid, which is correct "Defendant is not taking any

psychotropic medication or receiving any ongoing supervision,"

however, the Plaintiff-Appellee fails at showing evidence supporting

the final part of this finding "of his distorted thoughts." The fact

that the Defendant-Appellant does not take medications is true and

uncontroversial. It is the assumption that he should be taking any,

and that he suffers from distorted thoughts, which is not based in

admissible evidence. For Finding #57, the Plaintiff-Appellee fails at

outlining any admitted evidence that would justify the Finding.

The Plaintiff-Appellee then claims that the Defendant-Appellant

suggested to violate a temporary custody order in an email by merely

asking if the Plaintiff-Appellee would agree to allow him visitation.

These emails were part of a negotiation between the Defendant-

Appellant and the Plaintiff-Appellee’s lawyer to see if a voluntary

 Appellant’s reply 10

order could have been entered in replacement of the temporary custody

order that was in effect at the time (the Defendant-Appellant explains

that his offer was rejected by the Plaintiff-Appellee’s counsel at T

p. 114 line 2 to 115 line 18). The evidence simply shows that the

Defendant-Appellant wanted to test the openness of the other party for

a review of the order that was in effect at the time, and there is no

evidence in the record that the Defendant-Appellant suggested in any

way that the court order in effect would have to be violated. The

statement of the Plaintiff-Appellee on that matter do not qualify as

evidence since she is not aware of the legal ways in which an order

can be re-negotiated and entered voluntarily between the parties and

the court. Thus her interpretation of visitations necessarily being in

violation of the order is unsupported in law.

The Plaintiff-Appellee then claims that the mere use of the words

"kill her" justifies Findings #33, #57 and #58. However, the

Defendant-Appellant clearly indicated that he was using those words in

a context on a podcast which was not sent to the Plaintiff-Appellee, a

podcast in which he was asked to explain the mentality of a serial

killer as a cognitive psychologist (T p. 144 lines 7-19). Thus, those

statements are not illustrative of any mental health issue on the part

of the Defendant-Appellant, and they fall under protected speech which

the Defendant-Appellant was doing as part of his profession as a

public educator. They also cannot fall under the category of threat

since these statements were not aimed nor sent to the Plaintiff-

Appellee.
 Appellant’s reply 11

Finding #34 is not problematic in and of itself, but it is

problematic when taken in context where it is used to justify a lack

of insight on the part of the Defendant-Appellant. The mere statement

that the Defendant-Appellant does not suffer from mental health issues

should not trigger a response from the court that the Defendant-

Appellant lacks insight, in the absence of any other evidence making

that case.

Plaintiff-Appellee claims that the mere fact that the Defendant-

Appellant claimed that he suffers from no mental health issue

justifies finding #57, stating that he did not take proper care of his

mental health. This is another instance where the mere statement of

someone claiming that he is mentally healthy is not sufficient

evidence to show that that person needs mental health services.

Plaintiff-Appellee claims that testimony on T p. 23 and 165

supports Findings #36-#40, but in fact it only supports #36-#38.

Nothing supports the claim in Finding #39 that the Defendant-Appellant

should have seen a Doctor rather than a nurse. Nothing supports the

claim in Finding #40 that the Defendant has "symptoms congruent with a

thought disorder, mood disorder, or psychotic disorders." For reasons

stated in issues covering hearsay and Rule 702 objections, nothing

warrants the part of Finding #40 that would depend on this Court

taking for truth the content of the report of Dr. Calloway.

Concerning Finding #45, Plaintiff-Appellee claims, similarly to

Argument I, that the findings of temporary custody orders can be used,

but again the trial court indicated that it would not consider those
 Appellant’s reply 12

findings (Finding #14 R p. 125) and the Plaintiff-Appellee did not

object, and thus waived her opposition to this decision by the trial

court.

Concerning Finding #46, the Plaintiff-Appellee claims that the

portions of the transcript cited by the Defendant-Appellant are not

questions about the minor child. The Plaintiff-Appellee is wrong, as

indeed the following sentences are questions about the child: "You

mentioned that I wasn’t asking to see Rowan?" (T p. 69, lines 7-8),

"And you attribute harassment and threats to kidnap the child. Is that

correct?" (T p. 71 lines 6-7), "Did I ever refuse opportunities for

discussions about co-parenting?" (T p. 69, lines 7-8). Therefore,

Finding #46 is not only unsupported by evidence, it is also plain

false based on the transcript.

Concerning Finding #48, the simple statement of the Defendant-

Appellant about the fact that the Plaintiff-Appellee seems to be

completely uninterested in co-parenting is not a sufficient statement

to conclude, as the Court did, "that Defendant maintains the position

that everything falls unto the Plaintiff […]." The question did not

relate to the entirety of the blame to be attributed to the Plaintiff-

Appellee.

Concerning Finding #49, the idea that the child has never seen

the Defendant’s home (due to temporary custody order entered against

his consent), is true factually, but the phrasing of the Finding is

not justified by the record as it suggests that the Defendant-

 Appellant’s reply 13

Appellant should be punished for having had his parental rights

previously violated in anti-constitutional temporary custody hearings.

The Plaintiff-Appellee then argues that there remains evidence

justifying a complete separation between the Defendant-Appellant and

his child, but in fact there remains none after a proper review of the

issues.

PLAINTIFF-APPELLEE’S ARGUMENT IV

Here the Plaintiff-Appellee repeats the argument that the

substance of the findings made during the permanent custody hearings

did not come from the report of Dr. Calloway, but that it came from

the Findings of Facts of the previous temporary custody order. This is

contradicted by statements quoted earlier from the trial court itself

"This Court will not consider any previous findings of fact from

earlier hearings in this case […]" (Finding #14 R p. 125). "I can’t

consider the finding of fact as evidence as you stated […]" (T p. 103

lines 4-10). The report of Dr. Calloway was similarly rejected by the

trial court "Dr. Calloway’s evaluation is not part of substantive

evidence in this case." (T p. 161 lines 22-23).

PLAINTIFF-APPELLEE’S ARGUMENT V

The Plaintiff-Appellee makes the case that the requirement of

N.C.G.S § 50-13.5(i) is satisfied merely because the trial court made

a finding that parental visitation by the Defendant-Appellant was not

in the child’s best interests. However, this Court has stated

 Appellant’s reply 14

previously that "a custody order is fatally defective where it fails

to make detailed findings of fact from which an appellate court can

determine that the order is in the best interest of the child, and

custody orders are routinely vacated where the “findings of fact”

consist of mere conclusory statements that the party being awarded

custody is a fit and proper person to have custody and that it will be

in the best interest of the child to award custody to that person. A

custody order will also be vacated where the findings of fact are too

meager to support the award" (Meadows v. Meadows, No. COA15-527,

2016). Previous cases that have led to a full denial of visitation

rights, or limiting visitations to a supervision center, include

extreme criminal conduct and consumption of child pornography (Meadows

v. Meadows, No. COA15-527, 2016). In the current case, none of the

Findings even remotely approach the prospect of criminal conduct, nor

do any suggest that the Defendant-Appellant may constitute a danger to

his child. Thus, the findings left after review of the issues by this

Court do not support the conclusion of law that the Defendant-

Appellant should be separated from his child until he reaches majority

without any right of fair custody.

The Plaintiff-Appellee claims that segments of the transcript (T

p. 30, 161 and 173) support the idea that the Court has considered

joint custody, but none of these portions show that the Court has ever

considered the request of the Defendant-Appellant for joint custody.

 Appellant’s reply 15

PLAINTIFF-APPELLEE’S ARGUMENT VI

Plaintiff-Appellee claims that the trial court did not order the

Defendant-Appellant not to be present on the day the order was

submitted. However, segments of this conversation show that the trial

court did do so: "I don’t want you to spend money to come back out

here for an entry award date" (T p. 175 lines 14-15), "Neither one

will have to show her. Okay?" (T p. 175 lines 18-19), "I don’t want

you all having to come in, especially from Canada – you said $400 down

and back – to – to just say, ‘Here, we do have an order,’ or ‘Excuse

me, we need more time.’" By ordering this, the trial court has pushed

the Defendant-Appellant against his will into abandoning his right to

further object to Findings of Facts in the order on the date of entry.

Finally, the Plaintiff-Appellee claims that the Defendant-Appellant

agreed to the order that was submitted to the trial court on March 16th

2017, but this is false and the Defendant-Appellant hereby denies this

claim. Indeed, the Defendant-Appellant never agreed on the content of

the order.

** d. CONCLUSION **

Given the fact that the Defendant-Appellant was deprived of contact

with his son, and that his son does not attend school and can

therefore change home without being disrupted in his learning

curriculum, the Defendant-Appellant prays that this Court:

 Appellant’s reply 16

1. Provide the relief sought in the Defendant-Appellant’s Brief.

2. Add language to the modified order, ordering any border officials

of Canada and the United States of America not to interfere with

the transportation of the child to the Defendant-Appellant’s home

in Canada or back to the Plaintiff-Appellee’s home in North

Carolina.

3. Provide any other relief that this Court may deem just.

** e.1. CERTIFICATE OF COMPLIANCE **

I, Jean-François Gariépy, certify that the word count of this

APPELLANT’S REPLY is 3284 words, in compliance with Rule 28 (j) of the

North Carolina Appellate Procedure.

This the 4th day of January 2018.

_____________________________

Jean-François Gariépy, Ph. D.

 Appellant’s reply 17

** f.1. PROOF OF SERVICE **

I, Jean-François Gariépy, certify that a copy of this APPELLANT’S

REPLY was served on all interested parties via email, as well as by

certified mail under the exclusive care and custody of the United

States and Canadian Postal Services, properly addressed as follows:

Jacqueline Louise Newton

C/O Ellis Family Law, P.L.L.C.

PO BOX 603

Durham, NC, 27702

USA

This, the 4th day of January, 2018.

_____________________________

Jean-François Gariépy, Ph. D.

450-436-1674

2180 rue Hotel-de-Ville

Sainte-Sophie, QC

Canada, J5J 1K5

jeanfrancois.gariepy@gmail.com