Carlton v. Carlton

EAGLES, Chief Judge,

concurring.

I concur in the result reached by the majority. As this Court stated in Brewer v. Brewer, 139 N.C. App. 222, 233 , 533 S.E.2d 541, 549 (2000), the trial court must make specific findings regarding any effect the change of circumstances had on the welfare of the children. A review of the trial court’s order reveals that the court here failed to make adequate factual findings as to whether the substantial change in circumstances affected the child’s welfare. I write separately to emphasize that I believe that the trial court has made sufficient findings that defendant’s relocation to Hawaii and plaintiff’s absconding with the child for two months constitute a substantial change of circumstances.

In its order, the trial court relied on two events to conclude that there had been a substantial change of circumstances: (1) defendant’s relocation to Hawaii; and (2) plaintiff’s absconding with the parties’ daughter. The majority correctly states that a mere change in residency is not enough to constitute a substantial change of circumstances. However, on these facts I believe that the defendant has shown more than a mere change in residency. The record reveals that the trial court’s original order called for the child to alternate her residence between parents at the end of every week. The court later altered this arrangement to every two weeks. However, even the most well-to-do individuals could not sustain this arrangement given that the defendant’s new residence is more than 4,000 miles *261 from Catawba County, North Carolina. The travel expenses alone for a transcontinental transfer every two weeks would be beyond the means of most people. This case presents a situation where the original order is not functional. Therefore, in the factual context of this case, defendant’s move to Hawaii constitutes a substantial change of circumstances.

I also believe that plaintiff’s absconding with the child for two months amounts to a substantial change of circumstances. In its order, the court made extensive findings as to the plaintiff’s removal of the child and her refusal to return the child in violation of a court order. The court found that on the advice of her sister, the plaintiff took the child and hid her for approximately two months. According to the record, plaintiff’s sister had informed her that the defendant was planning on physically harming her. Rather than going to the authorities, plaintiff took the child and secreted her from defendant and the court. The court found that these alleged threats had no basis and that the plaintiff was never in danger. Plaintiff acknowledged that she had used “poor judgment.” The trial court’s findings are supported by competent evidence and therefore are conclusive. See Metz v. Metz, 138 N.C. App. 538, 540 , 530 S.E.2d 79, 81 (2000). I believe that the plaintiff’s actions in disregarding a court order and hiding the child with no basis amount to a substantial change in circumstances.

I agree that the trial court should revisit this case to determine whether the substantial change of circumstances affected the welfare of the child. If so, the court then may reevaluate what disposition is in the child’s best interests.