Scott v. Scott

579 S.E.2d 431, 157 N.C. App. 382, 2003 N.C. App. LEXIS 742
CourtCourt of Appeals of North Carolina
DecidedMay 6, 2003
DocketCOA02-508
StatusPublished
Cited by42 cases

This text of 579 S.E.2d 431 (Scott v. Scott) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scott v. Scott, 579 S.E.2d 431, 157 N.C. App. 382, 2003 N.C. App. LEXIS 742 (N.C. Ct. App. 2003).

Opinions

[384]*384LEVINSON, Judge.

I. BACKGROUND

On 18 October 1999, the trial court incorporated the parties’ separation agreement into a consent order (the “Consent Order”) for child custody and support. On 10 May 2000, plaintiff filed motions seeking, inter alia, a show cause order for contempt. Defendant then filed a motion to modify custody of one of the parties’ minor children (the “Child”). In conjunction with that motion, defendant also filed a motion in limine requesting the trial court to limit the evidence presented to only those events occurring after the 18 October 1999 court order. Subsequently, the matter was heard, and the trial court denied defendant’s motion in limine and motion to modify custody, and found defendant in civil contempt. Defendant appeals. We affirm the trial court’s denial of defendant’s motions but reverse its finding of civil contempt.

Defendant’s evidence tended to show: In March or April 2000, the Child began expressing a desire to live with defendant and his wife, and he came to live with them in the summer of 2000. In October of 2000, the parties entered into a parenting agreement whereby the Child lived with defendant from 1 November 2000 until 28 February 2001. Before coming to live with defendant, the Child had been suspended from school for fighting. He had also received poor marks on his report card. On 2 May 2000, the parties argued at a ballfield about plaintiff spanking the Child.

Plaintiff’s evidence tended to show: The Child is healthy and has adapted well both socially and academically. Although he has had some behavioral problems, plaintiff has enjoyed the support of her immediate family in raising the Child. The Child has used his behavioral problems to gain favor with defendant. Additionally, defendant has, at times, been unable to control his temper, made intimidating phone calls to plaintiff, and verbally abused plaintiff at a baseball game where the Child was present.

II. CUSTODY MODIFICATION

A. Change in Circumstances

Defendant first contends the trial court abused its discretion in failing to find a substantial change in circumstances affecting the welfare of the Child. He argues the evidence supports a finding contrary to that of the trial court.

[385]*385In child custody cases, the trial court has broad discretion, and it will not be upset absent a clear showing of an abuse of that discretion. In re Peal, 305 N.C. 640, 645, 290 S.E.2d 664, 667 (1982); Browning v. Helff, 136 N.C. App. 420, 423, 524 S.E.2d 95, 97-98 (2000). However, the trial court’s findings of fact must be supported by substantial evidence, and its conclusions of law are reviewable de novo. Browning, 136 N.C. App. at 423, 524 S.E.2d at 98.

The party moving for modification of an existing custody order must show there has been a substantial change in circumstances affecting the welfare of the child. N.C.G.S. § 50-13.7 (2001); see also Pulliam v. Smith, 348 N.C. 616, 619, 501 S.E.2d 898, 899 (1998) (discussing salutary and adverse effects upon a child). “If a substantial change in circumstances is shown, [then] the trial court must consider whether modification of the custody order would be in the best interest of the child.” Kowalick v. Kowalick, 129 N.C. App. 781, 785, 501 S.E.2d 671, 674 (1998). We review defendant’s assignments of error in accordance with these standards.

The trial court found in pertinent part:

28. The child ... is very intelligent and does very well in school.
29. From time to time, [the Child] has had behavior problems at home and in school, some of which have resulted in his being disciplined by in school detention and suspension from school.
30. The Defendant has a history of lacking the ability to control his temper when upset by his wife or children.
31. The Plaintiff had enjoyed the support of her immediate family in rearing her children.
32. The Plaintiff’s discipline of [the Child] has been appropriate although he has frequently challenged her authority by physical and verbal intimidation.
33. [The Child] has artfully manipulated his parent’s estrangement to gain favor for himself with the Defendant and [his wife].
34. After several intimidating telephone calls made by the Defendant to the Plaintiff on November 28 and 29, 2000, the Plaintiff through her attorney demanded that he not call her anymore.
[386]*38635. All communication since that date has primarily been through intermediaries or in writing.
36. On May 2, 2000, the Defendant verbally abused the Plaintiff at a baseball game in the presence of the parties’ children and refused to allow her to get into her car with the children until Tim Britton intervened.
37. [The Child] has expressed that he would prefer to live with the Defendant father, but this appears to be part of his continuous effort to empower himself in his relationship with the parties.

Defendant contends the trial court should have found a change in circumstances because the evidence shows that the Child “did very well while he was with his father.” Specifically, he claims that while in his custody the Child was better able to control his temper, communicated better, and did not need to take his anger management drug, clonodine. Defendant also points to stress and other illnesses resulting from plaintiff’s custody of the Child. He essentially argues the Child experienced a social, emotional, and psychological blossoming while in his custody.

In addition to the beneficial changes in the Child’s circumstances while in his custody, defendant contends plaintiff abused the Child on two different occasions, spanking him with such force as to leave red marks. Defendant also contends plaintiff emotionally abused the Child by enrolling him in an alternative school designed to educate troubled children.

Defendant relies heavily on this Court’s opinion in Pritchard v. Pritchard, 45 N.C. App. 189, 262 S.E.2d 836 (1980) (overruled on other grounds by Pulliam, 348 N.C. 616, 501 S.E.2d 898). In Pritchard, the mother sent the child overseas on several occasions to reside with the father. Id. at 190, 262 S.E.2d at 837. As in the present case, there was evidence that the child had adapted and was performing well in school while in the care of the father, who sought a modification of custody. Id. at 191, 262 S.E.2d at 837. This Court affirmed the trial court’s ruling that there was a substantial change in circumstances. Id.

Contary to defendant’s argument, Pritchard does not mandate, under its facts or the current facts, that a trial court must find a substantial change in circumstances. Rather, Pritchard held the trial [387]*387court did not abuse its discretion in finding a substantial change in circumstances. Id. at 195-96, 262 S.E.2d at 840.

Furthermore, this case is factually distinguishable from Pritchard.

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Bluebook (online)
579 S.E.2d 431, 157 N.C. App. 382, 2003 N.C. App. LEXIS 742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-scott-ncctapp-2003.