MICHAEL DEAN KANUPP,
Plaintiff
v
.
Caldwell County
No. 96 CVD 1509
KELLIE JEAN KANUPP,
Defendant
Wilson, Palmer, Lackey & Rohr, P.A., by Timothy J. Rohr, for
plaintiff-appellant.
Todd, Vanderbloemen, Brady & LeClair, P.A., by Rachael A.
LeClair, for defendant-appellee.
CAMPBELL, Judge.
Plaintiff appeals from an order that modifies an original
joint custody order and now grants primary custody of the parties'
minor child to defendant based on change of circumstances.
Plaintiff also appeals from child support orders requiring him to
pay child support based on this modified custody order, which were
entered while plaintiff's appeal of the custody order was pending.
We remand this case to the trial court to enter appropriate
findings to support its order allowing the custody modification. Plaintiff and defendant were married on 23 December 1991. One
minor child, Taylor Dean Kanupp (“Taylor”), was born of this
marriage on 2 September 1992. The parties later separated and are
now divorced. In a consent order entered on 22 April 1997,
plaintiff and defendant were awarded joint custody of Taylor on a
weekly rotating basis and rotating holidays year to year. No child
support was to be paid by either party. Plaintiff has since
remarried. Defendant temporarily resumed a relationship with
Steven Brown (“Mr. Brown”), her husband from a previous marriage,
but the two claim they are now just friends.
On 23 July 1999, plaintiff filed simultaneous verified motions
for ex parte immediate custody of Taylor and modification of the
earlier custody order. These motions alleged that a substantial
change of circumstances affecting Taylor's welfare had taken place
based on plaintiff's belief that defendant was engaging in alcohol
and drug abuse in Taylor's presence and placing the minor child in
a dangerous and inappropriate atmosphere. Per an ex parte order
entered by Judge Jonathan Jones on 23 July 1999, defendant's
custodial rights to Taylor were suspended and plaintiff was granted
temporary sole custody of Taylor.
On 2 September 1999, after hearing evidence at a temporary
custody hearing on 6 August 1999, Judge L. Suzanne Owsley entered
a temporary custody order reflecting memorandum of judgment
reinstating the original custody order. However, this temporary
custody order required defendant's visitation to be supervised atall times by her grandmother, Betty Miller (“Ms. Miller”), until
plaintiff's custody motion could be fully heard.
The issue of custody modification was heard before Judge Nancy
L. Einstein (“Judge Einstein”) on 18 April 2000. After hearing all
the evidence, the trial court entered a custody order on 15 May
2000, which included the following pertinent findings of fact:
9. Plaintiff, Michael Kanupp . . . does not
maintain health insurance coverage on himself
or his family.
10. The relationship between Plaintiff and
his current wife is somewhat volatile in that
they have separated on at least two occasions.
Defendant states they have separated three
times because of domestic violence. . . .
11. [Plaintiff's new wife] . . . denies
Plaintiff has ever assaulted her[.] . . .
. . .
13. During their marriage, Plaintiff was
convicted of Assault on a Female upon
Defendant. . . . At one point during this
pending Motion in the Cause, Mr. Brown was
angry with Defendant and called Plaintiff
volunteering to testify for Plaintiff on
Defendant's bad conduct, including drug use in
front of the minor child. Defendant also
filed a 50B Domestic Violence Order against
Mr. Brown since resuming their relationship,
which was later dismissed by Defendant.
14. During Plaintiff's testimony, Mr. Kanupp
testified about an incident wherein [sic]
Taylor was bitten by a rottweiler while in the
care of Defendant. Taylor was badly
scratched, bruised and required 13 stitches on
his temple and chin. Defendant was with
Taylor on this occasion and explained it was
an accident in the back of a truck when she
was breeding her female rottweiler.
15. Plaintiff also testified about a July
1999 incident where Taylor had a spot the size
of a nickel on his head, which was swollen andoozing. Defendant explained it as a bug bite
and sent cream to put on it. Plaintiff took
Taylor to a doctor and it apparently was
infected, but easily treatable.
16. During his testimony, Plaintiff only
testified about bad things Defendant had done
and never testified to his relationship with
Taylor. The Court finds this notable.
17. Both parties have been convicted of DWI.
Defendant's is more recent.
18. The Court also has questions about
Defendant's misuse of alcohol and drugs, and
particularly the choices she makes in
relationships in her life. However, it is
clear to the Court that she cares very deeply
for her son and has his best interests at
heart, in that she describes his schoolwork,
the relationship she shares with him and her
hopes for his future.
Based on these findings of facts, the trial court concluded
that both parties were fit and proper persons to have the care,
custody, and control of Taylor; however, “[t]he best interests of
the minor child would be served by placing his primary custody with
the Defendant, subject to liberal visitation with the Plaintiff.”
Also, the court ordered defendant to obtain a substance abuse
assessment and plaintiff to obtain a domestic violence assessment,
with both parties fully complying with any treatment recommended.
On 9 June 2000, plaintiff timely filed notice of appeal with
respect to this order.
On 26 July 2000, defendant filed a motion in the cause seeking
child support. Plaintiff subsequently filed a motion to dismiss
defendant's child support motion, alleging the trial court lacked
subject matter jurisdiction to hear the child support issue while
the child custody issue was on appeal. Plaintiff's motion todismiss was denied on 13 September 2000 by Judge C. Thomas Edwards
(“Judge Edwards”). An order was entered by Judge Edwards stating
that the trial court did have “subject matter jurisdiction to enter
a child support order during the pendency of the appeal of the
underlying Order of Custody.” Thereafter, the parties entered into
a consent order that required defendant to pay child support to
plaintiff in the amount of $396.00 per month. However, the parties
agreed that the issue of lack of subject matter jurisdiction was
specifically reserved pending the defendant's appeal of the
modified custody order. Plaintiff timely filed notice of appeal
with respect to these child support orders.
The dispositive issue on appeal is whether the trial court
erred in modifying the parties' original custody order and awarding
primary custody of Taylor to defendant. We find that the court's
findings of fact do not support its conclusions of law.
In cases involving child custody:
[A] decision of the trial court should not be
upset on appeal absent a clear showing of
abuse of discretion. Findings of fact by a
trial court must be supported by substantial
evidence. A trial court's findings of fact in
a bench trial have the force of a jury verdict
and are conclusive on appeal if there is
evidence to support them. However, the trial
court's conclusions of law are reviewable de
novo.
Browning v. Helff, 136 N.C. App. 420, 423, 524 S.E.2d 95, 97-98
(2000) (citations omitted).
A court order for custody of a minor child may be modified or
vacated if the moving party can prove that there has been a
substantial change in the circumstances affecting the welfare ofthe child. Evans v. Evans, 138 N.C. App. 135, 139, 530 S.E.2d 576,
578 (2000). This change in circumstances need not have adverse
affects on the child. Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d
898 (1998). “[A] showing of a change in circumstances that is, or
is likely to be, beneficial to the child may also warrant a change
in custody.” Id. at 620, 501 S.E.2d at 900. “Once the moving
party has shown a substantial change in circumstances affecting the
welfare of the minor child, the trial court must determine whether
a change in custody is in the best interest of the child.”
Browning, 136 N.C. App. at 423-24, 524 S.E.2d at 98.
Plaintiff argues that the trial court erred in modifying the
parties' original order without making specific findings of fact
and legal conclusions that there had been a substantial change of
circumstances both affecting the welfare of Taylor and supporting
modification in favor of defendant. We agree.
In the present case, plaintiff had the burden of proving that
a substantial change in circumstances occurred since 22 April 1997,
the date the original custody order was filed, which affected the
welfare of Taylor in some manner. The modified custody order
indicates that the court concluded plaintiff did not meet this
burden, but instead, this burden was met by defendant. However,
the court's pertinent findings (listed previously) are insufficient
to establish that either party proved a substantial change in
circumstances. Furthermore, these findings raise questions as to
the character of both parties and do not clearly indicate that
either party is more suited than the other to be awarded primarycustody of Taylor based on changed circumstances. Thus, there were
insufficient findings to conclude that primary custody of Taylor
should now be awarded to defendant.
Additionally, several of the court's findings of fact were
based on unsubstantiated testimony that plaintiff abuses his new
wife and defendant misuses alcohol and drugs. Our Supreme Court
has held that “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[.]” Blackley v. Blackley, 285 N.C. 358, 362,
204 S.E.2d 678, 681 (1974). Evidence of speculation or conjecture
regarding a detrimental change is not competent evidence and will
not support a change in custody. See Wehlau v. Witek, 75 N.C. App.
596, 599, 331 S.E.2d 223, 225 (1985). Therefore, these findings
cannot be used to conclude that there has been a substantial change
of circumstances affecting Taylor's welfare because they are not
based on competent evidence.
Also, even if the court's pertinent findings of fact did
support a change of circumstances, there were no findings regarding
what effect the changed circumstances would have on Taylor's
welfare. The only findings that even mention an effect on the
minor child's welfare involve the two occasions when Taylor
received injuries while in defendant's care. However, these
findings actually tend to support plaintiff's claim for primary
custody. Therefore, these findings, in and of themselves, simplycannot be construed as supporting the court's conclusion that
Taylor's primary custody should now be placed with defendant.
In conclusion, “when the court fails to find facts so that
this Court can determine that the order is adequately supported by
competent evidence and the welfare of the child is subserved, then
the order entered thereon must be vacated and the case remanded for
detailed findings of fact.” Crosby v. Crosby, 272 N.C. 235, 238-
39, 158 S.E.2d 77, 80 (1967). Thus, the modified order is vacated
and remanded so that the trial court can make detailed findings of
fact on the issue of change of circumstances. The court may take
additional evidence based on events occurring since the last
hearing and shall then make findings relating to custody and
support based on this evidence as well as that currently in the
record. Additionally, the child support orders that arose out of
the modified custody order must also be vacated because the trial
court was “divested of jurisdiction” to enter a child support award
while the modified order was pending on appeal. See Joyner v.
Joyner, 256 N.C. 588, 591, 124 S.E.2d 724, 726 (1962).
Remanded.
Judges GREENE and McCULLOUGH concur.
Report per Rule 30(e).
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