Karger v. Wood

TYSON, Judge,

concurring in part and dissenting in part.

I concur with the majority’s opinion to uphold the trial court’s denial of defendant’s motions to dismiss. I respectfully dissent from that portion of the majority’s opinion which holds the trial court properly found a change of circumstances affecting the welfare of the child. The trial court failed to make sufficient findings regarding the effect of the changed circumstances on the child’s welfare.

I. Substantial Change in Circumstances

A. Standard of Review

In Blackley v. Blackley, our Supreme Court stated the plaintiff’s burden of proof to support a modification of a child custody order. 285 N.C. 358, 362 , 204 S.E.2d 678, 681 (1974).

The entry of an Order in a custody matter does not finally determine the rights of parties as to the custody, care and control of a child, and when a substantial change of condition affecting the child’s welfare is properly established, the Court may modify *711 prior custody decrees. However, the 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, and the party moving for such modification assumes the burden of showing such change of circumstances.

Id. (internal citations omitted) (emphasis supplied).

In Puliam v. Smith, our Supreme Court broadened the trial court’s discretion in determining whether a substantial change of circumstances had occurred. 348 N.C. 616, 620 , 501 S.E.2d 898, 899 (1998).

[C]ourts must consider and weigh all evidence of changed circumstances which affect or will affect the best interests of the child, both changed circumstances which will have salutary effects upon the child and those which will have adverse effects upon the child. In appropriate cases, either may support a modification of custody on the ground of a change in circumstances.

Id.

B. Conclusions of Law

Based on its findings of fact, the trial court concluded:

3. There has occurred since the entry of the Order entered herein September 13, 2000 a substantial change in circumstances of the parties and the minor child such as justifies modification of the previous Order so as to award custody of the minor child to the plaintiff and plaintiff’s Motion to transfer custody of the minor child to her should be granted.

4. There has occurred since the entry of September 13, 2000 a change in circumstances such as justifies modification of the previous orders as set forth hereinafter and said modification would be in the best interest of the minor child.

We review the trial court’s conclusions of law de novo. Scott v. Scott, 157 N.C. App. 382, 385 , 579 S.E.2d 431, 433 (2003) (citation omitted).

Here, the trial court failed to make any finding of fact regarding any effect the change of circumstances may have had on the welfare of the child. In finding of fact Number 15, the trial court states that defendant and the child spent the night at Bessie Lippmann’s house, *712 and Bessie Lippmann spent the night at defendant’s house when the child was present. The trial court made no findings of fact of any effect defendant’s behavior or presence with Bessie Lippmann may have had on the child and did not find any inappropriate behavior between defendant and Lippmann on these occasions. “The fact that the [child was] present. . . cannot be construed as a finding that the [child’s] welfare was affected.” Browning v. Helff, 136 N.C. App. 420, 424 , 524 S.E.2d 95, 98 (2000).

The trial court also found in finding Number 13 that the child’s grades had suffered in the past year. However, no finding of fact was made that the grades the child earned resulted from any substantial change of or due to the conduct circumstances of either of the parties.

The trial court made other findings of fact regarding plaintiff’s housing situation, plaintiff’s improved medical condition, the parties’ employment, defendant’s separation from Susan Wood, and defendant’s visitation with his daughter. The trial court failed to indicate the effect that any of these changes had on the welfare of the child. The trial court is not constrained to using “certain and specific ‘buzz’ words or phrases” in its order. Carlton v. Carlton, 145 N.C. App. 252, 263 , 549 S.E.2d 916, 924 (Tyson, J., dissenting), rev’d per curiam, 354 N.C. 561 , 557 S.E.2d 529 (2001), cert. denied, 536 U.S. 944 , 153 L. Ed. 2d 811 (2002).

The facts here can easily be distinguished from Carlton. In Carlton, the trial court’s findings of fact clearly indicated how the changed circumstances affected the welfare of the minor child, Angela. 145 N.C. App. at 263 , 549 S.E.2d at 924 . The trial court’s findings of fact clearly stated:

(1) that plaintiff’s absconding with the child caused Angela to miss 38 days of school, furthering her failure to maintain her school work and requiring that she obtain additional help from her teacher and defendant to make up school work caused by the absences; and (2) that the effect on Angela of a move to Hawaii and the awarding of primary custody and residence of Angela to one parent would provide needed stability in the child’s life.

Id. While the trial court is not required to use certain words or phrases to show an effect in its order, “the evidence must demonstrate a connection between the substantial change in circumstances and the welfare of the child, and flowing from that prerequi *713 site is the requirement that the trial court make findings of fact regarding that connection.” Shipman v. Shipman, 357 N.C. 471, 478 , 586 S.E.2d 250, 255 (2003) (citation omitted) (emphasis supplied). It is not the province of this Court on appeal to infer a connection the trial court expressly failed to find or make.

Here, “the trial court only partially discharged its duty in finding that a change'in circumstances occurred without also finding whether plaintiff had met her burden of showing the effect, if any, of such change upon the welfare of the [child].” Browning, 136 N.C. App. at 425 , 524 S.E.2d at 99 . The trial court failed to find or conclude how defendant’s relationship with Bessie Lippmann, defendant’s separation from Susan Wood, defendant’s new job, defendant’s visitation with his daughter, plaintiff’s housing situation, and plaintiff’s improved medical condition affect the welfare of the child. Without making such determination, the trial court failed to “demonstrate a connection between the substantial change of circumstances and the welfare of the child” to take custody from defendant and award custody to plaintiff. Shipman, 357 N.C. at 478 , 586 S.E.2d at 255 .

II. Conclusion

The trial court failed to find whether plaintiff had met her burden of showing what effect, if any, the change of circumstances had on the welfare of the child. Accordingly, I vote to vacate the trial court’s order and remand for determination of how the change of circumstances affected the child’s best interests and welfare.

Contrary to the trial court’s conclusions that the custody order is a “final order,” custody orders are never final and are always subject to modification upon a requisite showing of a substantial change of circumstances affecting the welfare of the child. In re R.T.W., 359 N.C. 539, 545 , 614 S.E.2d 489, 493 (2005). On remand, the trial court should also consider any additional evidence of changed circumstances that have occurred since the date the order was entered. I respectfully dissent.