Benedict v. Coe

451 S.E.2d 320, 117 N.C. App. 369, 1994 N.C. App. LEXIS 1269

Opinion

ORR, Judge.

The dispositive issue before this Court is whether the trial court abused its discretion in modifying the 16 December 1991 Order, which set forth the original child custody and visitation schedule for the parties in this action. Defendant first contends that the trial court improperly modified custody, not visitation, when the only relief plaintiff sought was modification of the visitation schedule. We find this contention to be without merit.

It is well established that a court decree awarding custody of a minor child is never final in nature. Ellenberger v. Ellenberger, 63 N.C. App. 721, 723, 306 S.E.2d 190, 191, disc. review allowed, 309 N.C. 631, 308 S.E.2d 714 (1983). “Such a decree determines only the present rights with respect to such custody. . . .” Id. (quoting Neighbors v. Neighbors, 236 N.C. 531, 533, 73 S.E.2d 153, 154 (1952) (emphasis added) (citations omitted)). With respect to modification of a custody order, N.C. Gen. Stat. § 50-13.7 states in part as follows:

(a) An order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested. . . .

N.C. Gen. Stat. § 5043.7(a) (1987).

Thus, “[o]nce the custody of a minor child is judicially determined, that order of the court cannot be altered until it is determined that (1) there has been a substantial change in circumstances affecting the welfare of the child, Hamilton v. Hamilton, 93 N.C. App. 639, 647, 379 S.E.2d 93, 97 (1989); N.C.G.S. § 50-13.7(a) (1987); and (2) a change in custody is in the best interest of the child.” Dobos v. Dobos, 111 N.C. App. 222, 226, 431 S.E.2d 861, 863 (1993) (quoting Ramirez-Barker v. Barker, 107 N.C. App. 71, 77, 418 S.E.2d 675, 678 (1992)). “Changed circumstances” as used in N.C. Gen. Stat. § 50-13.7(a), means “such a change as affects the welfare of the child.” In re Harrell, 11 N.C. App. 351, 354, 181 S.E.2d 188, 189 (1971). In Ramirez-Barker, this Court stated:

It is not necessary that adverse effects on the child manifest themselves before a Court can alter custody .... It is sufficient if the changed circumstances show that the child will likely or probably be adversely affected.

Ramirez-Barker, 107 N.C. App at 78, 418 S.E.2d at 679 (citation omitted). “It is neither ‘necessary nor desirable to wait until the child is actually harmed to make a change’ in custody.” Id., (quoting Domingues v. Johnson, 323 Md. 486, 500, 593 A.2d 1133, 1139 (1991)).

The moving party has the burden of showing a substantial change of circumstances affecting the welfare of the child. Kelly v. Kelly, 77 N.C. App. 632, 636, 335 S.E.2d 780, 783 (1985). If the party with the burden of proof does not show that there has been a substantial change in circumstances, the “best interest” question is not reached. Ramirez-Barker, 107 N.C. App at 77, 418 S.E.2d at 678.

Under N.C. Gen. Stat. § 50-13.2, the best interest and welfare of the child is the paramount consideration in determining the custody and visitation rights. N.C. Gen. Stat. § 50-13.2 (1987); In re DiMatteo, 62 N.C. App. 571, 303 S.E.2d 84 (1983). However, trial court judges have broad discretion to determine what is in the best interest of the child in custody and visitation cases.

[C]ustody cases often involve difficult decisions. However, it is necessary that the trial judge be given wide discretion in making his determination for “the trial judge has the opportunity to see the parties in person and to hear the witnesses.”

Pruneau v. Sanders, 25 N.C. App. 510, 516, 214 S.E.2d 288, 292, cert denied, 287 N.C. 664, 216 S.E.2d 911 (1975) (quoting Greer v. Greer, 5 N.C. App. 160, 161, 167 S.E.2d 782, 783 (1969)). “The trial judge is entrusted by this section with the delicate and difficult task of choosing an environment which will, in his judgment, best encourage full development of the child’s physical, mental, emotional, moral and spiritual faculties.” In re Peal, 305 N.C. 640, 645, 290 S.E.2d 664, 667 (1982). The trial judge’s decision shall not be upset on appeal absent a clear showing of abuse of discretion. Falls v. Falls, 52 N.C. App. 203, 209, 278 S.E.2d 546, 551, disc. review denied, 304 N.C. 390, 285 S.E.2d 831 (1981). Our Supreme Court has said “visitation privileges are but a lesser degree of custody” and that the word “custody”, as used in N.C. Gen. Stat. § 50~13.7(a), was intended to encompass visitation rights as well as general custody. Clark v. Clark, 294 N.C. 554, 575, 243 S.E.2d 129, 142 (1978); Savani v. Savani, 102 N.C. App. 496, 505, 403 S.E.2d 900, 906 (1991) (“The word custody under the statute also includes visitation”).

The parties in the case at bar entered into a Consent Order on 12 December 1991 providing for the custody and support of their child. This Court has stated that any modification of a consent order for custody and visitation must be based on a showing of a substantial change in circumstances adversely affecting the welfare of the minor child. See Woncik v. Woncik, 82 N.C. App. 244, 246, 346 S.E.2d 277, 279 (1986).

In the instant case, the trial court ordered that joint custody remain the same and that “secondary custody” be modified. The court ordered that “Plaintiff shall exercise visitation with the minor child during the months of September, January, April, and June of each year for the entire month, returning the minor child the last day of' those months.” The court also ordered that plaintiff or his designate, of appropriate age and character, accompany the minor child between California and North Carolina; that plaintiff shall “enjoy all custodial rights while the minor child is in his care . . and that the parties keep one another informed of significant events in the life of the minor child while the child is in the parties’ care. The court reserved the issue of child support for a later date.

Nowhere in the trial judge’s Order or in the record was primary custody awarded to the plaintiff. Defendant retains primary custody for thirty-six out of fifty-two weeks per year, which is still the majority of the year. Plaintiff merely will visit with the minor child sixteen weeks per year in segments of one month per visit instead of twelve weeks spread out over twelve months as provided for in the 16 December 1991 Order.

We emphasize that we intend no change in well established law that the trial court may not modify child custody except upon proper motion with service and notice upon the opposing party that custody (as opposed to visitation) modification is being sought. See Jones v. Jones, 109 N.C. App. 293, 295-96, 426 S.E.2d 468, 469-470 (1993), and Clayton v. Clayton, 54 N.C. App. 612, 614, 284 S.E.2d 125, 127 (1981). Our decision herein is founded upon the determination that only modification of visitation was sought and only visitation was modified. This assignment of error is, therefore, overruled.

Defendant next argues in her brief that the trial court applied the wrong legal standard in modifying the 16 December 1991 Order. She further argues that the court’s finding of fact that defendant is an “over-protective mother” is not sufficient to support a conclusion that there had been substantial change in circumstances, justifying modification of the custody order.

Modification of a custody decree must be supported by findings of fact based on competent evidence that there has been a substantial change of circumstances affecting the welfare of the child. Best v. Best, 81 N.C. App. 337, 343, 344 S.E.2d 363, 367 (1986). “If the evidence supports the findings of fact by the trial court and those findings of fact form a valid basis for the conclusions of law, the judgment entered will not be disturbed on appeal.” Paschall v. Paschall, 21 N.C. App. 120, 122, 203 S.E.2d 337, 337 (1974). While it is well established that the trial judge is in the best position to observe the parties and witnesses and to hear the evidence,

[i]t is not sufficient that there may be evidence in the record sufficient to support findings that could have been made. . . . The trial court is required to make specific findings of fact with respect to factors listed in the statute. . . . Such findings are required in order for the appellate court to determine whether the trial court gave “due regard” to the factors listed.

Greer, 101 N.C. App. at 355, 399 S.E.2d at 402 (citations omitted).

At the hearing on 13 July 1993, the evidence was limited to the testimony of the parties and three exhibits. The record shows that no evidence was presented as to the circumstances of the parties on 16 December 1991, 6 January 1993, or 13 July 1993. Rather, all evidence presented concerned the parties’ and minor child’s then current circumstances. Moreover, the 29 July 1993 Order contains no findings as to the existing circumstances on 16 December 1991, 10 November 1992, 6 January 1993 or 13 July 1993. It contains no findings of changed circumstances since these dates. It contains no Conclusion of Law that a substantial change of circumstances affecting the welfare of the child has occurred. Finally, the Order contains no Conclu sion of law that the child will be adversely affected if the Order is not modified. In fact, with respect to the cross-country visitation, the trial judge stated in Finding of Fact No. 9 that “[t]he Court has no evidence that such visitation is emotionally or physically harmful to the minor child.”

The court’s discretion in child custody and visitation cases is limited by the well established legal standard for modification of custody and visitation orders. Evidence of “speculation or conjecture that a detrimental change may take place sometime in the future” will not support a change in custody. Ramirez-Barker, 107 N.C. App. at 78, 418 S.E.2d at 679 (quoting Wehlau v. Witek, 75 N.C. App. 596, 599, 331 S.E.2d 223, 225 (1985)). The trial court’s order is deficient in that it contains insufficient findings and no conclusion of law that “a substantial change of circumstances affecting the welfare of the child has occurred.” Without such finding, a modification based solely on the ground that the defendant mother is over-protective is improper. In this case, additional findings of fact and conclusions of law were in order.

We vacate the order of the trial judge and remand this case for new hearing.

Vacated and remanded for new hearing.

Judges EAGLES and JOHN concur.