demonstrating a trial court must first conclude a substantial change in circumstances has occurred to proceed with the remaining modification analysis
How later courts described this case
- demonstrating a trial court must first conclude a substantial change in circumstances has occurred to proceed with the remaining modification analysis
- explaining because the trial court did not conclude there was a substantial change in circumstances, it could not conclude a change affected the welfare of the child, let alone that an effect could be clear.
- “It is not our role to do a review of all of the transcripts of all of the proceedings to find the information” one party favors.
Written by the judges who cited it.
The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-917
Filed 3 December 2025
Randolph County, No. 20CVD001034-750
CHELSEA THERESA GLOVER,
v.
STACY TY TROGDON.
Appeal by defendant from a child custody modification order entered 21 March
2024 by Judge Joseph M. Buckner in Randolph County District Court. Heard in the
Court of Appeals 19 March 2025.
Law Firm Carolinas, by Carole R. Albright, for defendant.
Megerian & Wells, by Margaret J. Megerian, for plaintiff.
FREEMAN, Judge.
Defendant appeals from a child custody modification order entered 21 March
2024. On appeal, defendant argues the trial court erred by: (1) concluding it was in
the best interest of the minor child to award plaintiff sole custody and to leave
defendant’s visitation with the child at plaintiff’s discretion (2) concluding a
substantial change in circumstances affecting the welfare of the child occurred to
GLOVER V. TROGDON
Opinion of the Court
modify child custody; (3) concluding defendant brought a frivolous motion for the
purpose of harassing plaintiff and needlessly increasing the cost of litigation; and, (4)
awarding attorney’s fees to plaintiff. Because the trial court failed to make the
appropriate factual findings and conclusions of law as to whether there was a
substantial change in circumstances affecting the welfare of the child, we vacate and
remand that portion of the order modifying child custody. We affirm the trial court’s
imposition of sanctions, but remand for further factual findings as to the award.
I. Factual and Procedural Background
Plaintiff and defendant were married on 6 June 2015, separated on 30 May
2020, and later divorced. The parties share one child.
On 9 June 2022, plaintiff filed a complaint for child custody, child support,
equitable distribution and attorney’s fees. Defendant filed an answer to plaintiff’s
complaint; moved to change venue and expedite the hearing; and counterclaimed for
temporary custody on 17 June 2020. On 19 June 2020, the parties entered into a
consent order for temporary child custody. In that order, the parties agreed to share
temporary, joint, legal and physical custody of the child. That consent order also
stipulated the matter be heard outside of Randolph County. On 4 August 2020, the
parties entered into a consent order for interim distribution wherein the minor child’s
belongings were spilt and distributed in half between plaintiff and defendant. On 13
August 2021, the parties entered into a consent order for permanent child custody,
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GLOVER V. TROGDON
Opinion of the Court
where they agreed to share joint, legal and physical custody of the child.
On 30 November 2021, plaintiff filed a motion to modify child custody and the
parties subsequently entered into another consent order for child custody on 6 March
2023. In that order, the parties agreed to share joint, legal and physical custody of
the child, appoint Rebecca Poole as a parenting coordinator, limit all contact unless
related to the child, and respond to questions related to the child in a timely manner.
The parties further agreed to each pay one-half of the parenting coordinators fees,
unless “otherwise determined by the parenting coordinator.”
On 20 November 2023, the trial court entered an order appointing Shelley
Campen Brown as a parenting coordinator for a term of two years. The plaintiff and
defendant each remained responsible for her retainer and fees unless otherwise
determined by the parenting coordinator. However, that order specified the
parenting coordinator could modify these fees if they found: a parent was using their
“services unnecessarily, and as a result,” caused the other parent greater expense, or
“if one parent” was “acting in bad faith.” Further, the order stated the trial court had
the authority to determine allocation of parenting coordinator fees, including
reimbursement to one parent.
On 13 December 2023, plaintiff filed a motion for contempt and to show cause
alleging defendant failed to pay the necessary fees and schedule a meeting with the
parenting coordinator. On the same day, defendant filed a motion to modify custody
and visitation.
3
GLOVER V. TROGDON
Opinion of the Court
Defendant later filed an amended motion to modify custody on 10 January
2024. In that motion, defendant alleged plaintiff “committed 20+ counts of contempt
of the consent custody order.” Defendant stated that plaintiff: refused to
communicate regarding decisions affecting the child; used the child as a conduit for
communicating and exchanging objects with defendant; disparaged defendant in
front of the child, and thus, interfered with or otherwise attempted to diminish the
love, affection, or respect that the child has for the defendant; and displayed
emotional instability in the presence of the child. Defendant further requested the
trial court to order a psychological evaluation for plaintiff. The next day, the trial
court entered an order for plaintiff to appear and show cause.
On 18 January 2024, plaintiff filed a response to defendant’s motion and
countered with her own motion to modify custody. In that motion, plaintiff alleged
defendant: harassed plaintiff; refused to follow recommendations from the child’s
physician; failed to cooperate with the parenting coordinator; and that defendant
brought his motion to modify custody and visitation for the improper purpose of
needlessly increasing the cost of litigation and harassing plaintiff. Defendant filed a
response to that motion on 23 February 2024.
On 12 March 2024, parties’ motions were heard. At the hearing, the trial court
received testimony from Shelley Brown, the parenting coordinator. Brown testified
plaintiff had signed the necessary paperwork and paid her half of the retainer for the
appointment of the parenting coordinator, whereas defendant had not. Further, the
4
GLOVER V. TROGDON
Opinion of the Court
trial court received a Parenting Capacity Evaluation Report into evidence dated 14
June 2022.
On 21 March 2024, the trial court entered an order granting plaintiff sole legal
and physical custody of the child and awarding plaintiff’s requested attorney’s fees.
Throughout the order, the trial court quoted substantial portions of the 14 June 2022
Parenting Capacity Evaluation Report. At issue on appeal, the trial court found and
ordered:
15. The Court next heard Defendant’s motions to find
Plaintiff in criminal contempt filed December 13, 2023 and
an amended version on January 10, 2024. The Court heard
the following in support of Defendant’s motions:
a. Testimony of Defendant;
b. Defendant’s verified motions and 39-page
supporting documents;
c. A printed record of emails between the parties
since the March 5, 2023 order, entered without
objection as Plaintiff’s Exhibit 2.
16. The Defendant failed to prove beyond a reasonable
doubt that Plaintiff was in willful violation of the March 5,
2023 Custody Order.
17. The Court considers the evidence and testimony
presented regarding the parties’ motions for contempt for
the purposes of custody modification herein.
....
21. The Court entered, without objection, a Parenting
Capacity Evaluation Report regarding Defendant dated
June 14, 2022, by Carolina Psychology Group as Plaintiff’s
exhibit 3. This report was completed pursuant to a consent
5
GLOVER V. TROGDON
Opinion of the Court
order entered March 11, 2022 and the recommendations
therein were known to the parties when they entered into
the March 5, 2023 consent order.
....
25. Despite the above recommendation and consent order
agreeing to appoint a parenting coordinator to aid with
communication and decision-making, Defendant refused to
utilize a parenting coordinator and continuously emailed
Plaintiff questions about her parenting style and fitness as
a parent. Defendant’s January 10, 2024 motion for
contempt claims that Plaintiff “refused to have complete
and thorough conversations with Defendant regarding co-
parenting and the minor child despite numerous efforts by
the Defendant” and that Plaintiff failed to respond within
24 hours to Defendant’s questions regarding the minor
child on 26 occasions. Examples of the questions that
Plaintiff failed to respond to that were cited in Defendant’s
motion for contempt include:
a. “Are you stating that you believe it’s okay to lie in
some circumstances but not in others?”
b. “Oh really? So if she decides to wear something
inappropriate for the weather or her age you will
allow her to wear it?”
c. “Can you please tell me why you think it’s
important for her to occasionally experience a
dentist appointment with just one parent?”
d. “Have you done any research before making this
decision?”
e. An email attaching a seven-page article about co-
parenting states, “I’m requesting that you take that
document and notate what you disagree with in
there and send it back to me for my review.”
....
6
GLOVER V. TROGDON
Opinion of the Court
28. Since the March 5, 2023 order, Defendant has
demonstrated an unwillingness or inability to
communicate in a reasonable manner with the Plaintiff
regarding their child’s needs. Defendant cannot or will not
share any control or decision making with Plaintiff and will
not comply with court orders, including consent orders,
that would help improve communication.
29. From approximately October 20, 2023 to November 3,
2023, the Defendant sent numerous emails questioning
Plaintiff about her decision to have the child administered
the flu vaccine despite the prior order directing that
“unless otherwise agreed by the parties, the minor child
will receive any and all and vaccines and preventative care
recommended by the child’s primary care provider.”
Plaintiff ultimately told Defendant on November 4, 2024
“We can’t engage in this anymore. Let’s wait for the
parenting coordinator.” Defendant cited this as a violation
of the 24 hour response provision in his contempt motion.
30. Defendant informed the child that she could get her
ears pierced in September of 2023. On September 18, 2023,
the Defendant emailed Plaintiff informing her about an
appointment the next day to pierce the child’s ears.
Plaintiff responded that she believed the child was too
young and did not agree with the decision to pierce her
ears, and Defendant promising the child this without
consulting Plaintiff was a violation of the custody order.
Defendant asked the Plaintiff to state her reasons for
objecting to the ear piercing, and Plaintiff responded with
a list of several reasons, including the minor child was too
young to manage the responsibilities. Defendant responded
to each of Plaintiff’s concerns and then indicated he had
appropriately addressed her concerns and was therefore
proceeding with the ear piercing. Defendant also asked
“Can you point to where it says on our consent order that
she can’t get her ears pierced?” Defendant cites Plaintiff’s
failure to respond to him in his motion for contempt as a
violation of the 24-hour response provision.
31. On or about April 20, 2023 the Defendant went to have
7
GLOVER V. TROGDON
Opinion of the Court
lunch with the minor child at school for his birthday.
Defendant emailed the Plaintiff during his lunch that the
child stated she had made him a birthday card and Plaintiff
had taken the card away. Minutes later, Defendant
emailed the Plaintiff and said the “truth came out,” and
followed up with another email stating the child admitted
she had not made Defendant a birthday card and Plaintiff
had not taken the card away. Defendant then demanded of
Plaintiff, “What do you think we should do about this
lying?” which started a days-long back and forth with
Defendant demanding that Plaintiff outline what
punishment she would give the child for lying about his
birthday card and questioning Plaintiff about her
discipline. Defendant cites Plaintiff’s failure to respond to
him in his motion for contempt as a violation of the 24-hour
response provision.
32. Defendant has made inappropriate statements to the
child while on nightly video calls where Plaintiff can hear.
For example, when Plaintiff took the child to get her flu
shot in October 2023 (pursuant to the custody order, the
parents alternate taking the child to appointments), the
Defendant said to the child, “I’m sorry I wasn’t at your
appointment; your mom wouldn’t let me go.”
33. In several email exchanges, including the messages
related to piercing the minor child’s ears, Plaintiff
indicated that the disagreement would benefit from the
involvement of the parenting coordinator.
34. The minor child sometimes gets very emotional and
appears distressed transiting between homes and often
takes a day to adjust when returning to Plaintiff’s home.
35. Despite the behavior found herein, Plaintiff has entered
multiple consent orders for shared custody with Defendant
for the benefit of the minor child. Plaintiff has made good
faith attempts to co-parent despite the history of domestic
violence between the parties and Defendant’s
unreasonable questioning. Plaintiff has taken reasonable
steps to protect herself and the child from exposure to
8
GLOVER V. TROGDON
Opinion of the Court
Defendant’s outbursts while maintaining equal custody,
i.e. the DVPO and various terms of the multiple custody
orders regarding contact and conduct of the parties. These
actions indicate that Plaintiff has consistently put the
needs of the minor child above personal conflict with the
Defendant.
36. It is appropriate to release the parenting coordinator
from this matter due to Defendant’s lack of cooperation.
37. Plaintiff is a fit and proper person to have the care,
custody, and control of the minor child, and it is in the best
interest of the child to grant sole legal and physical custody
to the Plaintiff.
38. Based on the evidence presented and the findings
herein, the Defendant is not a fit and proper person to
exercise custody of the minor child and he has acted in a
manner inconsistent with his right to custody. It is in the
child’s best interest that Defendant’s visitation be left at
the discretion of the Plaintiff.
39. That Defendant’s motions were frivolous and
Defendant brought th[ese] motions for the Improper
purpose of harassing Plaintiff and needlessly increasing
the cost of litigation for Plaintiff.
40. That the above violations of N.C. Gen. Stat[.] [§] 1A-1,
Rule 11 merit the imposition of an appropriate sanction by
this court against Defendant, including the costs and
attorney’s fees incurred by Plaintiff in defending against
the Plaintiff’s ungrounded motions.
41. Plaintiff is an interested party acting in good faith and
has insufficient means to defray costs, expenses, and
counsel fees incurred as a result of this action, and
therefore Plaintiff is entitled to reasonable counsel fees
pursuant to N.C. Gen. Stat. § 50-13.6.
42. Attorney Margaret Megerian, counsel for Plaintiff, has
submitted an affidavit of attorney fees reflecting $7,085.50
in attorney fees and costs attributable to the pending
9
GLOVER V. TROGDON
Opinion of the Court
motions. This amount is reasonable, and it is appropriate
to order the Defendant to pay these fees and costs as set
forth herein.
....
3. A substantial change in circumstances affecting the
welfare of the minor child has occurred necessitating the
change in custody as set forth hereinbelow.
4. Plaintiff is a fit and proper person to have the care,
custody, and control of the minor child and it is in the best
interest of the child to grant sole and legal physical custody
to the Plaintiff.
5. Defendant is not a fit and proper person to exercise
custody of the minor child and he has acted in a manner
inconsistent with his right to custody. It is in the child’s
best interest that Defendant’s visitation be left at the
discretion of the Plaintiff.
6. That Defendant’s motions were frivolous and Defendant
brought th[ese] motions for the improper purpose of
harassing Plaintiff and needlessly increasing the cost of
litigation for Plaintiff.
7. Plaintiff is an interest party acting in good faith and has
insufficient means to defray costs, expenses, and counsel
fees incurred as a result of this action, and therefore
Plaintiff is entitled to reasonable counsel fees pursuant to
N.C. Gen. Stat. § 50-13.6.
8. Plaintiff is entitled to an award of reasonable attorney
fees pursuant to Rule 11(a) of the North Carolina Rules of
Civil Procedure.
Defendant timely appealed.
II. Jurisdiction
This Court has jurisdiction to review a final judgment from a district court.
10
GLOVER V. TROGDON
Opinion of the Court
N.C.G.S. § 7A-27(b)(2) (2023). As the parties’ child custody order is a final judgment,
we have jurisdiction to review defendant’s appeal.
III. Standard of Review
“We review an order for modification of custody to determine if the findings of
fact are supported by substantial evidence and if the conclusions of law are supported
by the findings; the trial court determines the credibility and weight of the evidence.”
Johnson v. Lawing, 289 N.C. App. 334, 337 (2023) (cleaned up). “Whether . . .
findings of fact support conclusions of law is reviewable de novo.” Hall v. Hall, 188
N.C. App. 527, 530 (2008) (emphasis omitted). Therefore, “[i]f the trial court’s
uncontested findings of fact support its conclusion of law, [this Court] must affirm
the trial court’s order.” Respess v. Respess, 232 N.C. App. 611, 614 (2014) (citation
omitted); see also Lawing, 289 N.C. App. at 337 (“If the findings of fact and
conclusions of law are supported, then we review the trial court’s decision regarding
custody for abuse of discretion.” (citation omitted)).
IV. Discussion
A. Modification of Existing Child Custody Order
Here, defendant challenges the trial court’s conclusion as to a substantial
change in circumstance on two grounds. First, defendant argues that the trial court
made inadequate findings as to the effect on the welfare of the child. Second,
defendant argues the trial court erred in considering reports that “evidenced events
that occurred prior to the entry of the last order.”
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GLOVER V. TROGDON
Opinion of the Court
1. Inadequate Findings
“[A] trial court may order a modification of an existing child custody order
between two natural parents if the party moving for modification shows that a
substantial change of circumstances affecting the welfare of the child warrants a
change in custody.” Shipman v. Shipman, 357 N.C. 471, 473 (2003) (cleaned up).
Specifically, whether a “change in circumstances can be deemed substantial, whether
that change affected the welfare of the minor child, and, finally, why modification is
in the child's best interests[,]” must be supported by the trial court's findings of fact.”
Id. at 474–75, 481. Therefore,
[w]hen 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. Substantial evidence is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.
Id. at 474 (citations omitted). Generally,
Evidence must support findings; findings must support
conclusions; conclusions must support the judgment. Each
step of the progression must be taken by the trial judge, in
logical sequence; each link in the chain of reasoning must
appear in the order itself. Where there is a gap, it cannot
be determined on appeal whether the trial court correctly
exercised its function to find the facts and apply the law
thereto.
Coble v. Coble, 300 N.C. 708, 714 (1980).
Our Supreme Court has articulated a two-part inquiry when determining
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GLOVER V. TROGDON
Opinion of the Court
whether to modify an existing child custody order. See Shipman, 357 N.C. at 473–
75. First, the trial court must ask “whether there was a change in circumstances.”
Id. at 474. Second, the trial court “must examine whether such a change affected the
minor child.” Id. “If . . . the trial court determines that there has been a substantial
change in circumstances and that change affected the welfare of the child, the court
must then examine whether a change in custody is in the child’s best interests.” Id.
This Court has clarified that “[t]he trial court is not constrained to using
certain or specific buzz words or phrases in its order.” Lang v. Lang, 197 N.C. App.
746, 748 (2009) (cleaned up). But “[u]nless the effect of the change on the children is
‘self-evident,’ the trial court must find sufficient evidence of a nexus between the
change in circumstances and the welfare of the children.” Stephens v. Stephens, 213
N.C. App. 495, 499 (2011) (citation omitted).
Our Court has recognized “individual changes such as the mere passage of
time, increased age of the child, a change in residence, or a change in family
composition are not necessarily sufficient changes of circumstances to justify the
modification of a custody order.” Cash v. Cash, 284 N.C. App. 1, 8 (2022). In these
circumstances, “the effects of the change on the welfare of the child are not self-
evident and therefore necessitate a showing of evidence directly linking the change
to the welfare of the child.” Shipman, 357 N.C. at 478.
For example, “changes in children’s ages, parent’s work schedule, and parent’s
residence did not support concluding a substantial change in circumstances
13
GLOVER V. TROGDON
Opinion of the Court
occurred.” Cash, 284 N.C. App. at 8 (citing Frey v. Best, 189 N.C. App. 622, 637–39
(2008)). Similarly, remarriage and “a change in the custodial parent’s residence”
alone are not “a sufficient change of circumstances affecting the welfare of the child
to justify modification of the child custody order without a finding of fact indicating
the effect of the [change] on the child.” Id. (citing Evans v. Evans, 138 N.C. App. 135,
140 (2000)) (emphasis added). Recently, our Supreme Court has recognized, “conflict
with the parenting coordinator, by itself, is not a substantial change in circumstances
unless it affects the welfare of the child.” Durbin v. Durbin, 918 S.E.2d 832, 839 (N.C.
2025).
This is because “[a]ny one of those changes may or may not constitute a
substantial change justifying modification of a custody order;” but “to make this
determination, the trial court must consider evidence regarding the effect of the
particular change on the child, whether positive or negative.” Cash, 284 N.C. App. at
8.
As our appellate case law has previously indicated, before
a child custody order may be modified, the evidence must
demonstrate a connection between the substantial change
in circumstances and the welfare of the child, and flowing
from that prerequisite is the requirement that the trial court
make findings of fact regarding that connection.
Shipman, 357 N.C. at 474 (emphasis added). Evidence of this connection
demonstrates an impact on the child’s “physical and emotional wellbeing,” Brewer v.
Brewer, 139 N.C. App. 222, 233 (2000), and is typically presented through medical
14
GLOVER V. TROGDON
Opinion of the Court
records or assessments (including those made by a mental health professional), school
records, or parties’ or the child’s testimony, e.g. Ford v. Wright, 170 N.C. App. 89, 97–
98 (2005); Warner v. Brickhouse, 189 N.C. App. 445, 452–53 (2008); Henderson v.
Wittig, 278 N.C. App. 178, 181–83 (2021). Put simply, “the trial court must consider
not only the change, but also if and how that change affects the child and the best
interests of the child.” Cash, 284 N.C. App. at 9.
The trial court’s examination ceases, and modification cannot be ordered 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[.]”
Shipman, 357 N.C. at 474. Once the trial court makes affirmative findings as to both
questions, then the court “must then examine whether a change in custody is in the
child’s best interests.” Id.; see also, e.g., Davis v. Davis, 229 N.C. App. 494, 504 (2013)
(explaining because the trial court did not conclude there was a substantial change
in circumstances, it could not conclude a change affected the welfare of the child, let
alone that an effect could be clear.).
Thus, the trial court can only examine whether a change in custody is in the
child’s best interests after sufficient and affirmative findings of both Shipman prongs.
Shipman, 357 N.C. at 474. Only after the trial court concludes that modification is
in the child’s best interest may the court modify the custody order. Id. Our Supreme
Court in Shipman cautioned:
We note that although the content of the trial court’s order
15
GLOVER V. TROGDON
Opinion of the Court
in the instant case is adequate for our review, the lack of
specificity in the order, particularly concerning the
findings of fact as to the effect of the changes in
circumstances on the child’s welfare, has made our review
far more difficult. Given different factual circumstances, a
slightly more pervasive lack of specificity could necessitate
our reversal of a modification order. To avoid further
confusion, we would encourage trial courts, when
memorializing their findings of fact, to pay particular
attention in explaining whether any change in
circumstances can be deemed substantial, whether that
change affected the welfare of the minor child, and, finally,
why modification is in the child's best interests.
Id. at 481.
Specifically, “escalating conflict on the part of one or both parents” can
constitute a substantial change in circumstance, Durbin, 918 S.E.2d at 834, that may
adversely affect a child, Laprade v. Barry, 253 N.C. App. 296, 303–04 (2017). Indeed,
“a history of poor communication and high conflict may still represent a substantial
change in circumstances when those communication problems and conflicts
are presently having a negative impact on the children’s welfare.” Durbin, 918 S.E.2d
at 840 (cleaned up). Thus, “a parent’s unwillingness or inability to communicate in a
reasonable manner with the other parent regarding their child's needs may adversely
affect the child[.]” Laprade, 253 N.C. App. at 303–04 (emphasis added). Because “[i]t
is not our role to do a review of all of the transcripts of all of the proceedings to find
the information” one party favors, the trial court’s factual findings must support its
conclusions of law, including “that there was a substantial change of circumstances
justifying modification of custody.” Id. at 302, 304.
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GLOVER V. TROGDON
Opinion of the Court
Here, the trial court found:
28. Since the March 5, 2023 order, Defendant has
demonstrated an unwillingness or inability to
communicate in a reasonable manner with the Plaintiff
regarding their child’s needs. Defendant cannot or will not
share any control or decision making with Plaintiff and will
not comply with court orders, including consent orders,
that would help improve communication.
29. From approximately October 20, 2023 to November 3,
2023, the Defendant sent numerous emails questioning
Plaintiff about her decision to have the child administered
the flu vaccine despite the prior order directing that
“unless otherwise agreed by the parties, the minor child
will receive any and all and vaccines and preventative care
recommended by the child’s primary care provider.”
Plaintiff ultimately told Defendant on November 4, 2024
“We can’t engage in this anymore. Let’s wait for the
parenting coordinator.” Defendant cited this as a violation
of the 24 hour response provision in his contempt motion.
30. Defendant informed the child that she could get her
ears pierced in September of 2023. On September 18, 2023,
the Defendant emailed Plaintiff informing her about an
appointment the next day to pierce the child’s ears.
Plaintiff responded that she believed the child was too
young and did not agree with the decision to pierce her
ears, and Defendant promising the child this without
consulting Plaintiff was a violation of the custody order.
Defendant asked the Plaintiff to state her reasons for
objecting to the ear piercing, and Plaintiff responded with
a list of several reasons, including the minor child was too
young to manage the responsibilities. Defendant responded
to each of Plaintiff’s concerns and then indicated he had
appropriately addressed her concerns and was therefore
proceeding with the ear piercing. Defendant also asked
“Can you point to where it says on our consent order that
she can’t get her ears pierced?” Defendant cites Plaintiff’s
failure to respond to him in his motion for contempt as a
violation of the 24-hour response provision.
17
GLOVER V. TROGDON
Opinion of the Court
31. On or about April 20, 2023 the Defendant went to have
lunch with the minor child at school for his birthday.
Defendant emailed the Plaintiff during his lunch that the
child stated she had made him a birthday card and Plaintiff
has taken the card away. Minutes later, Defendant emailed
the Plaintiff and said the “truth came out,” and followed up
with another email stating the child admitted she had not
made Defendant a birthday card and Plaintiff had not
taken the card away. Defendant then demanded of
Plaintiff, “What do you think we should do about this
lying?” which started a days-long back and forth with
Defendant demanding that Plaintiff outline what
punishment she would give the child for lying about his
birthday card and questioning Plaintiff about her
discipline. Defendant cites Plaintiff’s failure to respond to
him in his motion for contempt as a violation of the 24-hour
response provision.
32. Defendant has made inappropriate statements to the
child while on nighty video calls where Plaintiff can hear.
For example, when Plaintiff took the child to get her flu
shot in October 2023 (pursuant to the custody order, the
parents alternate taking the child to appointments), the
Defendant said to the child, “I’m sorry I wasn’t at your
appointment; your mom wouldn’t let me go.”
33. In several email exchanges, including the messages
related to piercing the minor child’s ears, Plaintiff
indicated that the disagreement would benefit from the
involvement of the parenting coordinator.
34. The minor child sometimes gets very emotional and
appears distressed transiting between homes and often
takes a day to adjust when returning to Plaintiff’s home.
Here, the trial court’s factual findings tell a story of the parties’ conflict
between themselves and their parenting coordinator. This may be a substantial
change in circumstances. See Durbin, 918 S.E.2d at 840 (“[A] history of poor
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Opinion of the Court
communication and high conflict may still represent a substantial change in
circumstances when those communication problems and conflicts are presently
having a negative impact on the children's welfare.” (emphasis added)). Thus,
presuming, without deciding the trial court properly determined there was a
substantial change in circumstance, the only factual finding this Court can discern
relates to “whether such a change affected the minor child,” Shipman, 357 N.C. at
474, states that “that minor child sometimes gets very emotional and appears
distressed transitioning between homes and often takes days to adjust when
returning to the Plaintiff’s home.”
This Court could guess how the parties’ conflict, and the parties’ conflict with
their parenting coordinator effects the welfare of the child. And, there is tension
between the fact finding demands of the trial court, and the demands of our
precedent. But even though “[t]he trial court is not constrained to using certain or
specific buzz words or phrases in its order,” Lang, 197 N.C. App. at 748 (cleaned up),
precedent demands specific findings that logically flow from one another, Coble, 300
N.C. at 714.
This is true generally where “[e]vidence must support findings; findings must
support conclusions; conclusions must support the judgment . . . . each link in the
chain of reasoning must appear in the order itself” and “[w]here there is a gap, it
cannot be determined on appeal whether the trial court correctly exercised its
function to find the facts and apply the law thereto.” Id. However, this is true
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Opinion of the Court
narrowly where Shipman describes that after a trial court deems a change in
circumstances substantial, it should “pay particular attention” to explain “whether
that change affected the welfare of the minor child.” 357 N.C. at 474, 481 (emphasis
added). In the present case, the fact “that minor child sometimes gets very emotional
and appears distressed transitioning between homes and often takes days to adjust
when returning to the Plaintiff’s home,” could be attributable to anything. R. p. 34}.
Although each prong of Shipman requires independent analysis, it is
undeniable that each factual finding must logically flow from one another. See id. at
474. Our precedent demands trial courts to take this scrupulosity a step further, as
“[u]nless the effect of the change on the children is ‘self-evident,’ the trial court must
find sufficient evidence of a nexus between the change in circumstances and the
welfare of the children.” Stephens, 213 N.C. App. at 499.1 Conflict between parents
and their parenting coordinators is not “self-evident.” Id. Rather, “the trial court
must find sufficient evidence of a nexus between the change in circumstances and the
welfare of the children.” Id.
For example, in Henderson, this Court remanded a trial court’s modification
of custody where its findings “focus[ed] on the parents’ role” in finding there was a
substantial change in circumstances. Henderson, 278 N.C. App. at 182. The trial
1 Interestingly, our Supreme Court signaled in Durbin that the effect of conflict between
parents and their parenting coordinators on a child, may actually aid our Court’s in determining
whether there is a substantial change in circumstances. See Durbin, 918 S.E.2d at 840.
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Opinion of the Court
court’s findings were inadequate where they did not “address the effect the parents’
communication difficulties had on the minor child’s welfare and” did not “discuss the
effect the disagreements pertaining to the minor child’s medical treatment had on
her welfare.” Id.
Based on the order before us on appeal, our review is not just “difficult” but
impossible. See Laprade 253 N.C. App. at 302 (“It is not our role to do a review of all
of the transcripts of all of the proceedings to find the information” one party favors.).
This Court cannot ignore the absence of findings or infer the first necessary finding
required in a trial court’s mandatory fact-findings steps to modify a custody order.
See Davis, 229 N.C. App. at 504 (demonstrating a trial court must first conclude a
substantial change in circumstances has occurred to proceed with the remaining
modification analysis). Similarly, our standard of review demands the same logical
sequence where “evidence must support findings; findings must support conclusions;
conclusions must support the judgment . . . . each link in the chain of reasoning must
appear in the order itself” and “[w]here there is a gap, it cannot be determined on
appeal whether the trial court correctly exercised its function to find the facts and
apply the law thereto.” Coble, 300 N.C. at 714. Accordingly, we vacate and remand
that part of the order and instruct the trial court to make appropriate factual findings
and conclusions of law under Shipman before modifying custody. Further, because
the trial court’s order does not demonstrate the requirements of Shipman and our
precedents, we likewise vacate and remand the trial court’s modification of custody.
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Opinion of the Court
2. Consideration of Reports
When “parties’ past domestic troubles and communication difficulties” have
“already [been] considered” in previous orders, and no “findings of additional changes
in circumstances or conditions” are made, there can be no present modification of a
prior custody order. Ford, 170 N.C. App. at 96. “Therefore, when evaluating whether
there has been a substantial change in circumstances, courts may only consider
events which occurred after the entry of the previous order, unless the events were
previously undisclosed to the court,” Woodring v. Woodring, 227 N.C. App. 638, 645
(2013), the previous order was a consent order, see Balawejder v. Balawejder, 216
N.C. App. 301, 309 (2011), or the effect of the substantial change—even if occurring
prior to entry of the order being modified—materializes after entry of the of the order
being modified, see Spoon v. Spoon, 233 N.C. App. 38, 45 (2014).
Here, the trial court made findings of fact related to events that occurred prior
to the entry of the previous consent order. Further, the trial court found these events,
and the reports, which detailed them, were previously known to the parties. But this
Court cannot determine how the trial court used these reports, or the events
contained within them, where the order to modify child custody lacked findings
related to what the substantial circumstance was, how it could have affected the
child, and what the nexus between the change and effect was. To do so would
impermissibly ask this Court to draw inferences outside the scope of its review. See
Coble, 300 N.C. at 714 (1980) (“Where there is a gap, it cannot be determined on
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Opinion of the Court
appeal whether the trial court correctly exercised its function to find the facts and
apply the law thereto.”). Because we cannot ascertain the reports’ use, we cannot
address parties’ arguments on appeal.
B. Motion for Sanctions and Attorney’s Fees
On appeal, defendant argues the trial court erred in finding and concluding
that defendant’s motions for contempt were brought for an improper purpose.
Our standard of review for Rule 11 sanctions is well
established: The trial court’s decision to impose or not to
impose mandatory sanctions under . . . Rule 11(a) is
reviewable de novo as a legal issue. An appellate court
must determine whether the findings of fact of the trial
court are supported by sufficient evidence, whether the
conclusions of law are supported by the findings of fact, and
whether the conclusions of law support the judgment. If the
appellate court makes these three determinations in the
affirmative, it must uphold the trial court’s decision to
impose or deny the imposition of mandatory sanctions
under . . . Rule 11(a).
Jonna v. Yaramada, 273 N.C. App. 93, 108 (2020) (omissions in original) (cleaned up).
Therefore, “we are 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.” Id. (cleaned up).
“Rule 11 permits the court to impose appropriate sanctions, including an order
to pay attorney’s fees to the opposing party, if a pleading or motion has no basis in
law or fact or is interposed for an improper purpose such as harassment or delay.”
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Opinion of the Court
Overcash v. Blue Cross & Blue Shield of N.C., 94 N.C. App. 602, 617 (1989). Thus,
“[a]ppellate review of sanctions under Rule 11 consists of a three-pronged analysis:
(1) factual sufficiency, (2) legal sufficiency, and (3) improper purpose.” Yaramada,
273 N.C. App. at 109 (cleaned up). “A violation of any one of these prongs requires
the imposition of sanctions.” Id. (cleaned up). Therefore, when the trial court
concludes one prong has been violated, it does not need to address the others. See
Barham v. Barham, 286 N.C. App. 764, 773–74 (2022) (“Because the trial court based
its Rule 11 order on the legal sufficiency prong, we do not address the factual
sufficiency nor the improper purpose prongs.”).
“Our Courts have held that the improper purpose prong of Rule 11 is separate
and distinct from the factual and legal sufficiency requirements.” Kohler Co. v.
McIvor, 177 N.C. App. 396, 404 (2006) (cleaned up). Therefore, “even if a paper is
well grounded in fact and law, it may still violate Rule 11 if it is served or filed for an
improper purpose.” Bossian v. Chica, 297 N.C. App. 1, 18 (2024) (citation omitted).
An improper purpose is
any purpose other than one to vindicate rights or to put
claims to a proper test, . . . [and] may be inferred from the
alleged offender's objective behavior. Accordingly, under
Rule 11, an objective standard is used to determine
whether a paper has been interposed for an improper
purpose, with the burden on the movant to prove such
improper purpose. The movant’s subjective belief that a
paper has been filed for an improper purpose as well as
whether the offending conduct did, in fact, harass movant
is immaterial to the issue of whether the alleged offender's
conduct is sanctionable. Improper purpose may, however,
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Opinion of the Court
be inferred from the service or filing of excessive,
successive, or repetitive papers or from continuing to press
an obviously meritless claim after being specifically
advised of its meritlessness by a judge or magistrate.
Id. at 18–19 (cleaned up). “For example, in Ward, this Court upheld sanctions under
Rule 11 where the trial court had ‘noted that [the] plaintiff has filed at least forty-
two actions in the past six years including a previous action alleging conduct identical
to the instant case.’ ” Id. at 19 (quoting Ward v. Jett Props., LLC, 191 N.C. App. 605,
606 (2008)).
In the present case, the trial court made the following factual findings:
15. The Court next heard Defendant’s motions to find
Plaintiff in criminal contempt filed December 13, 2023 and
an amended version on January 10, 2024. The Court heard
the following in support of Defendant’s motions:
a. Testimony of Defendant;
b. Defendant’s verified motions and 39-page
supporting documents;
c. A printed record of emails between the parties
since the March 5, 2023 order, entered without
objection as Plaintiff’s Exhibit 2.
....
25. Despite the above recommendation and consent order
agreeing to appoint a parenting coordinator to aid with
communication and decision-making, Defendant refused to
utilize a parenting coordinator and continuously emailed
Plaintiff questions about her parenting style and fitness as
a parent. Defendant’s January 10, 2024 motion for
contempt claims that Plaintiff “refused to have complete
and thorough conversations with Defendant regarding co-
parenting and the minor child despite numerous efforts by
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Opinion of the Court
the Defendant” and that Plaintiff failed to respond within
24 hours to Defendant’s questions regarding the minor
child on 26 occasions. Examples of the questions that
Plaintiff failed to respond to that were cited in Defendant’s
motion for contempt include:
a. “Are you stating that you believe it’s okay to lie in
some circumstances but not in others?”
b. “Oh really? So if she decides to wear something
inappropriate for the weather or her age you will
allow her to wear it?”
c. “Can you please tell me why you think it’s
important for her to occasionally experience a
dentist appointment with just one parent?”
d. “Have you done any research before making this
decision?”
e. An email attaching a seven-page article about co-
parenting states, “I’m requesting that you take that
document and notate what you disagree with in
there and send it back to me for my review.”
....
29. From approximately October 20, 2023 to November 3,
2023, the Defendant sent numerous emails questioning
Plaintiff about her decision to have the child administered
the flu vaccine despite the prior order directing that
“unless otherwise agreed by the parties, the minor child
will receive any and all and vaccines and preventative care
recommended by the child’s primary care provider.”
Plaintiff ultimately told Defendant on November 4, 2024
“We can’t engage in this anymore. Let’s wait for the
parenting coordinator.” Defendant cited this as a violation
of the 24 hour response provision in his contempt motion.
30. Defendant informed the child that she could get her
ears pierced in September of 2023. On September 18, 2023,
the Defendant emailed Plaintiff informing her about an
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Opinion of the Court
appointment the next day to pierce the child’s ears.
Plaintiff responded that she believed the child was too
young and did not agree with the decision to pierce her
ears, and Defendant promising the child this without
consulting Plaintiff was a violation of the custody order.
Defendant asked the Plaintiff to state her reasons for
objecting to the ear piercing, and Plaintiff responded with
a list of several reasons, including the minor child was too
young to manage the responsibilities. Defendant responded
to each of Plaintiff’s concerns and then indicated he had
appropriately addressed her concerns and was therefore
proceeding with the ear piercing. Defendant also asked
“Can you point to where it says on our consent order that
she can’t get her ears pierced?” Defendant cites Plaintiff’s
failure to respond to him in his motion for contempt as a
violation of the 24-hour response provision.
31. On or about April 20, 2023 the Defendant went to have
lunch with the minor child at school for his birthday.
Defendant emailed the Plaintiff during his lunch that the
child stated she had made him a birthday card and Plaintiff
had taken the card away. Minutes later, Defendant
emailed the Plaintiff and said the “truth came out,” and
followed up with another email stating the child admitted
she had not made Defendant a birthday card and Plaintiff
had not taken the card away. Defendant then demanded of
Plaintiff, “What do you think we should do about this
lying?” which started a days-long back and forth with
Defendant demanding that Plaintiff outline what
punishment she would give the child for lying about his
birthday card and questioning Plaintiff about her
discipline. Defendant cites Plaintiff’s failure to respond to
him in his motion for contempt as a violation of the 24-hour
response provision.
Here, defendant has continued to pursue successive, legally meritless
allegations against plaintiff. Specifically, our review of the record reveals, and the
trial court found, that defendant alleged twenty-six violations of the parties’ custody
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Opinion of the Court
order based on incidents where plaintiff failed to respond to defendant’s questions
regarding the minor child within twenty-four hours, and attached thirty-nine pages
of related documents that revealed defendant asked plaintiff questions like: “Have
you done any research before making this decision?” and requesting plaintiff to take
a seven-page article about co-parenting, annotate it, and describe to defendant what
she disagreed with in the article. Ultimately, the trial court concluded as such and
stated defendant brought a frivolous motion, and the motion was brought “for the
Improper purpose of harassing Plaintiff and needlessly increasing the cost of
litigation for Plaintiff.” The trial court’s conclusion that defendant’s motion for
modification of custody was brought for an improper purpose was supported by the
trial court’s findings, that in turn were supported by substantial evidence. See
Lawing, 289 N.C. App. at 337. Thus, we affirm the trial court’s findings and
determination to impose Rule 11 sanctions.
However, the trial court is also required to “explain why [a] chosen sanction is
appropriate and also why the amount of such is appropriate,” when imposing Rule 11
sanctions. Dalenko v. Collier, 191 N.C. App. 713, 723 (2008). And “[w]hen reviewing
the amount or type of sanctions imposed under Rule 11 we apply an abuse of
discretion standard.” O’Neal v. O’Neal, 226 N.C. App. 71, 79 (2013).
This requirement can be sufficiently satisfied where the trial court’s factual
findings demonstrate that “the amount of attorney’s fees awarded to defendant was
appropriate based upon the amount of work required by the case and the experience
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Opinion of the Court
of defendant’s attorneys.” Dalenko, 191 N.C. App. at 723; see also Barrington v. Dyer,
282 N.C. App. 404, 411 (2022). In other words, “[a] trial court, in making an award
of attorneys’ fees pursuant to Rule 11, must explain why the particular award is
appropriate and how the court arrived at the particular amount.” O’Neal, 226 N.C.
App. at 79 (cleaned up).
Here, the trial court found:
Attorney Margaret Megerian, counsel for Plaintiff, has
submitted an affidavit of attorney fees reflecting $7,085.50
in attorney fees and costs attributable to the pending
motions. This amount is reasonable, and it is appropriate
to order the Defendant to pay these fees and costs as set
forth herein.
As discussed previously, although the trial court explained why sanctions were
appropriate—the trial court failed to articulate how it decided to award attorney’s
fees in the amount of $7,085.50. The trial court stated its reliance an affidavit of
plaintiff’s trial counsel but failed to make findings about its contents to support an
award of attorney’s fees, and failed to specify which motion, or motions, the fees and
costs were attributable to.
Further, the record on appeal does not contain this affidavit, nor any discussion
of the breakdown of these fees. Thus, while we affirm the trial court’s imposition of
Rule 11 sanctions, we remand for further factual findings “to explain why the chosen
sanction is appropriate and also why the amount of such is appropriate.” Collier, 191
N.C. App. at 723 (2008). On remand, the trial court may, again, rely on plaintiff’s
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Opinion of the Court
trial counsel affidavit, but must make the required findings of fact. E.g. O’Neal, 226
N.C. App. at 79.
Defendant also argues the trial court erred in awarding attorney’s fees under
subsection 50-13.6; however, defendant fails to present any legal argument or
citations to authority other than the standard of review to support this argument.
See N.C.G.S. § 50-13.6 (2023). Accordingly, these issues are abandoned and any
relevant findings are binding on appeal. See N.C. R. App. P. 28(b)(6) (2023) (“Issues
not presented in a party's brief, or in support of which no reason or argument is
stated, will be taken as abandoned.”).
V. Conclusion
A substantial change in circumstances affecting the welfare of the children is
required before a trial court may modify an existing child custody order. Thus, we
vacate and remand that part of the order and instruct the trial court to make
appropriate factual findings and conclusions of law under Shipman before modifying
custody. Further, because the trial court’s order does not demonstrate the
requirements our precedent demands, we likewise vacate and remand the trial court’s
modification of custody. We affirm the trial court’s findings and conclusion that
defendant’s motion was brought for an improper purpose, but vacate and remand the
award of attorney’s fees for further factual findings.
VACATED IN PART, AFFIRMED IN PART, AND REMANDED.
Judge TYSON concurs.
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Opinion of the Court
Judge STADING concurs in result only by separate opinion.
Report per Rule 30(e).
31
No. COA24-917 – Glover v. Trogdon
STADING, Judge, concurs in the result only and writes separately.
For the reasons detailed below, I would hold there is sufficient record evidence
to support the trial court’s findings of fact and conclusions of law with respect to
custody modification. Further, in accordance with precedent, I would address
whether the trial court impermissibly delegated its judicial authority to determine
visitation with the minor child.
Defendant argues that the trial court erred when concluding there existed a
substantial change in circumstances warranting modification of the custody order.
In support of this position, Defendant cites as favorable the holding in Durbin v.
Durbin, 292 N.C. App. 381, 898 S.E.2d 65 (2024). However, our Supreme Court
recently overturned this Court’s holding. Durbin v. Durbin, __ N.C. __, __, 918 S.E.2d
832, 841 (2025).
In Durbin, the parents entered a consent order in 2016 that required shared
joint legal and physical custody. Id. at __, 918 S.E.2d at 834. The consent order also
obligated the parents to share information about medication, medical emergencies,
activities, appointments, and scheduling. Id. The mother filed a motion to modify
the child custody provision of the consent order in October 2020. Id. “Based upon an
agreement by the parties, the trial court entered an order modifying the custody
agreement (2020 Order).” Id. The relevant provisions from the 2020 order included:
GLOVER V. TROGDON
STADING, J., concurring in the result only.
[T]he modified order required appointment of a parenting
coordinator to deescalate the conflict between the
parents. See N.C.G.S. § 50-91 (2023) (allowing the
appointment of a parenting coordinator). The order gave
the parenting coordinator broad authority to resolve
disputes between the parties and make decisions regarding
the children, including determining transition pickup and
delivery, participation in child care, bedtime, diet, clothing,
recreation, and, most relevant to this case, health care
management.
Id. at ___, 918 S.E.2d at 834–35.
In October 2021, the mother filed a motion to modify the 2020 child custody
order, asserting a substantial change in circumstances due to the father’s failure to
cooperate with the parenting coordinator. Id. at ___, 918 S.E.2d at 835. The trial
court ultimately “concluded that the ‘findings constitute[d] a substantial change in
circumstances warranting the entry of a temporary custody order’ modifying the 2020
Order.” Id. (alteration in original). This temporary custody order granted the mother
“primary physical custody and final decision-making authority on major decisions
when the parties [were] unable to reach mutual agreement.” Id. The temporary
custody order also “required the parents to comply with the [parenting coordinator’s]
directive on medication for the children,” and to not “discuss the court proceedings
with the children.” Id. (alteration in original). Thereafter, the trial court “entered an
order making the prior modification to the custody order permanent on 8 July 2022
(Modified Custody Order).” Id. at ___, 918 S.E.2d at 836. The modified custody order
“concluded that the findings ‘constitute[d] a substantial change in circumstances’
2
GLOVER V. TROGDON
STADING, J., concurring in the result only.
warranting modification to the terms of the 2020 Order.” Id. The father appealed
from the modified custody order, asserting, the trial court erroneously concluded
there was a substantial change in circumstances affecting the minor children. Id.
After consideration, the Court of Appeals “reversed the Modified Custody Order,
holding that the findings of fact did not support the conclusion that there was a
substantial change in circumstances affecting the welfare of the children.” Id.
Thereafter, the North Carolina Supreme Court compared the modified custody
order and temporary custody order to the previous 2020 order and noted “a
substantial change in circumstances occurred affecting the welfare of the[ ] children.”
Id. at __, 918 S.E.2d at 838. The Supreme Court noted the findings throughout the
three orders demonstrated “an increasing level of conflict created by the Father about
many aspects of the children’s lives but especially the children’s medical needs and
therapy appointments.” Id. Ultimately, the Supreme Court concluded that the
“Court of Appeals erred when it held that the modification was not supported by a
substantial change in circumstance affecting the child’s welfare.” Id. at __, 918 S.E.2d
at 841.
Findings of Fact Nos. 23–25 and 27–38 adequately support Conclusions of Law
3–5, and the trial court’s order properly employs the language of the test set forth in
3
GLOVER V. TROGDON
STADING, J., concurring in the result only.
Shipman v. Shipman, 357 N.C. 471, 473–75, 586 S.E.2d 250, 252–54 (2023);2 see also
Lang v. Lang, 197 N.C. App. 746, 748, 678 S.E.2d 395, 397 (2009) (alterations in
original) (“When determining whether the findings [in an order modifying child
custody] are adequate [to support its conclusions], this Court examines the entire
order. The trial court is not constrained to using certain and specific buzz words or
phrases in its order.”). Additionally, Findings of Fact Nos. 23–25 and 27–30
demonstrate a substantial change in circumstances; Findings of Fact Nos. 32, 34, and
35 demonstrate the impact the change has had on the minor child; and Finding of
Fact No. 37 notes that it is in the best interest of the child to award sole legal and
physical custody to Plaintiff. Here, the trial court did not only find Defendant was
unwilling to cooperate with the parenting coordinator as in Durbin. It also found
Defendant: “continuously emailed Plaintiff questions about her parenting style and
fitness as a parent”; based his motion for contempt on the fact that Plaintiff did not
respond to several inquiries within twenty-four hours despite the consent order
requiring “a parenting coordinator aid in communication and decision-making”;
demonstrated an “unwillingness or inability to communicate in a reasonable manner
2 The Shipman test provides: “The trial court’s examination of whether to modify an existing child
custody order is twofold. The trial court must determine whether there was a change in
circumstances and then must examine whether such a change affected the minor child. . . . If . . . the
trial court determines that there has been a substantial change in circumstances and that the
change affected the welfare of the child, the court must then examine whether a change in custody is
in the child’s best interests. If the trial court concludes that modification is in the child’s best
interests, only then may the court order a modification of the original custody order.” 357 N.C. at
474, 586 S.E.2d at 253.
4
GLOVER V. TROGDON
STADING, J., concurring in the result only.
with Plaintiff” concerning the minor child’s needs; and refused to utilize the parenting
coordinator for medical and parenting decisions. Considering our Supreme Court’s
holding in Durbin, the trial court’s order properly modified the existing child custody
order. Even if Findings of Fact Nos. 22 and 26 are erroneous as Defendant contends,
they are immaterial to the substantial change in circumstances analysis since it may
rest upon Findings of Fact Nos. 23–25 and 27–38. See Woodring v. Woodring, 227
N.C. App. 638, 645, 745 S.E.2d 13, 20 (2013); see also Durbin, ___ N.C. at ____, 918
S.E.2d at 840.
Defendant also maintains the trial court improperly delegated its judicial
authority by granting Plaintiff discretion over Defendant’s visitation with the minor
child. This concern was not addressed in the majority opinion. In Finding of Fact
No. 38, the trial court’s order stated:
Based on the evidence presented and the findings herein,
the Defendant is not a fit and proper person to exercise
custody of the minor child and he has acted in a manner
inconsistent with his right to custody. It is in the child’s
best interest that Defendant’s visitation be left at the
discretion of the Plaintiff.
According to In re Custody of Stancill, the court may not delegate visitation to
the discretion of one parent. 10 N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971)
(“When the question of visitation rights of a parent arises, the court should determine
from the evidence presented whether the parent by some conduct has forfeited the
right or whether the exercise of the right would be detrimental to the best interest
5
GLOVER V. TROGDON
STADING, J., concurring in the result only.
and welfare of the child. If the court finds that the parent has by conduct forfeited the
right or if the court finds that the exercise of the right would be detrimental to the
best interest and welfare of the child, the court may, in its discretion, deny a parent
the right of visitation with, or access to, his or her child; but the court may not
delegate this authority to the custodian.”).
Based on the foregoing, I would vacate the trial court’s order to the extent it
delegates visitation authority. I would therefore remand to the trial court for further
proceedings on this basis alone. Contrary to the majority opinion’s conclusion, I
would hold the trial court’s findings of fact adequately support its substantial change
in circumstances determination. Accordingly, remand for the purpose of additional
findings of fact is unnecessary.
6