TERESA MITCHELL ICARD,
Plaintiff-Appellant,
v
.
Scotland County
No. 99 CVD 046
GREGORY REDDIN ICARD,
Defendant-Appellee.
William L. Davis, III, for plaintiff-appellant.
Etheridge, Moser, Garner, Bruner and Wansker, P.A., by Terry
R. Garner, for defendant-appellee.
EAGLES, Chief Judge.
Teresa Mitchell Icard (“plaintiff”) appeals from a
modification to a custody order and from an order finding her in
contempt. After careful review of the briefs and record, we
affirm.
Plaintiff and Gregory Reddin Icard (“defendant”) were married
on 13 December 1997. Prior to the marriage, a minor child was born
to plaintiff and defendant on 16 March 1996. The parties separated
in December 1998. Plaintiff commenced the initial custody matter on 20 January
1999 seeking custody of the minor child and defendant filed a
counterclaim seeking custody. The matter was heard on 15 February
2000 in Scotland County District Court. The trial court filed a
Custody Order on 16 May 2000 which awarded joint legal custody of
the minor child to plaintiff and defendant and awarded primary
physical custody to plaintiff.
Plaintiff met Charles Edward Carter (“Carter”) on 10 September
1999. The two began a dating relationship shortly after meeting
and plaintiff became pregnant in November 1999. Defendant and his
stepmother, Cheryl Icard, began observing and videotaping
plaintiff's apartment in Maxton, North Carolina, on 27 April 2000.
Plaintiff gave birth to a child on 9 August 2000. Plaintiff was
granted an absolute divorce from defendant in October 2000.
Subsequently, plaintiff and Carter were married.
Defendant filed a motion in the cause seeking a modification
in custody on 16 June 2000. This matter was heard in Scotland
County District Court before Judge Richard T. Brown on 20 September
2000. The trial court issued an order on 26 October 2000 awarding
primary physical custody to defendant. Plaintiff filed notice of
appeal.
On 30 November 2000, defendant filed a contempt motion
alleging that plaintiff violated the terms of the 26 October 2000
Custody Order by “repeatedly picking [the minor child] up early
from the prekindergarten program” and “failing to take [the minor
child] to the prekindergarten program on the mornings she isrequired to do so.” Judge Brown conducted a hearing on 14 December
2000 and entered an order finding plaintiff in contempt. Plaintiff
appeals the 26 October 2000 Custody Order and the 14 December 2000
Contempt Order.
Plaintiff raises three issues on appeal. Plaintiff contends
that the trial court erred in concluding that a substantial change
in circumstances affecting the welfare of a child existed to
justify modification of a custody order and that plaintiff
intentionally and willfully violated the 26 October 2000 Custody
Order. Plaintiff also contends that the trial court did not have
jurisdiction to conduct the contempt proceeding on 14 December 2000
while the 26 October 2000 Custody Order was on appeal. After
careful review, we affirm.
Plaintiff first contends that the trial court's findings of
fact and conclusions of law that a substantial change in
circumstances affecting the welfare of the minor child existed are
not supported by the evidence. We are not persuaded.
The trial court made the following findings of fact.
8. That on many occasions, the plaintiff's
vehicle, and a vehicle owned and operated
by Charles Edward Carter have been
located at the said apartment, by the
defendant and his stepmother, at hours
ranging from 12:03 a.m. until 5:16 a.m.,
during times when the plaintiff had the
aforesaid minor child in her physical
custody. The court finds that there has
been a pattern of cohabitation by the
plaintiff with Charles Edward Carter,
during periods of time when the minor
child of the parties has been in the
plaintiff's physical custody, in
violation of the order of this court
filed herein on May 16, 2000.
9. That notwithstanding the plaintiff's
explanations that the said Charles Edward
Carter left the apartment, and even if he
did so leave the apartment, the evidence
indicates that he was there many nights
until late at night or early morning,
while [the minor child] was present in
the apartment, although this was denied
by the plaintiff.
. . . .
11. That the plaintiff's actions in
cohabiting with another man to whom she
is not married constitute an
inappropriate example for the minor child
of the parties to this action.
12. That the plaintiff's own testimony that
she left her car at the apartment during
periods to make it appear that she lived
therein, in order to satisfy her lease
requirements, would constitute a
subterfuge.
. . . .
14. That since the entry of the said order,
the defendant has changed jobs, and no
longer is employed at ARA in Cheraw,
South Carolina, but is now employed at
Wade S. Dunbar Insurance Agency in
Laurinburg, North Carolina, and because
he now lives much closer to his work, he
has more time available to spend with the
minor child of the parties.
15. The court finds that the plaintiff's
disregard for the terms of the previous
order of the court, prohibiting her
cohabitation with a member of the
opposite sex to whom she is not related
by blood or marriage during periods of
time when she has the physical custody of
the minor child, constitutes a material
and substantial change in the
circumstances of the parties.
16. The court finds that the minor child of
the parties is of such an age anddiscretion that his exposure to the
defendant cohabiting on an overnight
basis with her boyfriend is contrary to
his best interest, and adverse to his
best interest, because he is of such an
age that his exposure to such conduct is
detrimental to his best interest and
welfare. All of the evidence indicates
that he is an intelligent child, and
could understand the significance of his
mother occupying the same residence with
a man to whom she is not married.
17. Further, the court finds that, because of
the stability which the defendant has
maintained, and his employment closer to
his home, together with the fact that the
plaintiff has occupied a residence on
several nights with a person of the
opposite sex to whom she is not married,
constitutes a change of circumstances of
such a nature that a change of custody
will beneficially affect the child in the
future. That there is no evidence before
the court of any improper conduct on the
part of the defendant.
The trial court concluded that:
2. That there has been a material and
substantial change in the circumstances
of the parties, which, in the court's
discretion, requires a modification of
the previous order of this court relating
to custody, because of the adverse effect
of the plaintiff's conduct, as set forth
in the findings of fact, on the child;
and that because of said material and
substantial change in the circumstances
of the parties, the child will be
beneficially affected by a modification
of custody.
Plaintiff argues that there is insufficient evidence to
support a finding of cohabitation in Findings of Fact #9, 11, 12,
and 15. Plaintiff contends that at most the evidence showed that
Carter spent the night with plaintiff on some weekends or that
Carter spent the night alone in plaintiff's apartment whenplaintiff was in the hospital having their baby. Plaintiff also
contends that there was insufficient evidence to support Finding of
Fact #16. Plaintiff argues that there was no “evidence to indicate
that [the minor child] was intelligent enough to understand the
significance of the mother occupying the same residence with a man
to whom she is not married.” Further, plaintiff contends that
there was insufficient evidence to support Finding of Fact #17.
Plaintiff argues that the evidence of defendant's new employment
and stability along with plaintiff occupying a residence with a
person of the opposite sex several nights a week does not support
a finding that a change of circumstances has occurred and that a
change of custody would be beneficial to the minor child.
“[I]n custody cases, the trial court sees the parties in
person and listens to all the witnesses. This allows the trial
court to 'detect tenors, tones and flavors that are lost in the
bare printed record read months later by appellate judges.'” Adams
v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499, 503 (2001) (citations
omitted).
Once the custody of a minor child is
determined by a court, that order cannot be
altered until it is determined (1) that there
has been a substantial change in circumstances
affecting the welfare of the child and (2) a
change in custody is in the best interest of
the child. A party seeking modification of a
child custody order bears the burden of
proving the existence of a substantial change
in circumstances affecting the welfare of the
child.
Evans v. Evans, 138 N.C. App. 135, 139, 530 S.E.2d 576, 578-79
(2000) (citations omitted). “The required change in circumstancesneed not have adverse effects on the child. '[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.'” Browning v.
Helff, 136 N.C. App. 420, 423, 524 S.E.2d 95, 98 (2000) (citations
omitted). “It is well established law in this state that a
substantial change in circumstances affecting the welfare of a
child must be supported by findings of fact based on competent
evidence.” White v. White, 90 N.C. App. 553, 557, 369 S.E.2d 92,
95 (1988). “The court's findings of fact are conclusive if
supported by any competent evidence, . . . even though there is
evidence to the contrary, or even though some incompetent evidence
may have been admitted.” In re McCraw Children, 3 N.C. App. 390,
392, 165 S.E.2d 1, 3 (1969). “However, the trial court's
conclusions of law are reviewable de novo.” Browning, 136 N.C.
App. at 423, 524 S.E.2d at 98. “In cases involving child custody,
the trial court is vested with broad discretion. Matters of
custody expressly include visitation rights. The decision of the
trial court should not be upset on appeal absent a clear showing of
abuse of discretion.” Id. at 423, 524 S.E.2d at 97 (citations
omitted).
Here, there is competent evidence in the record to support the
trial court's findings which support the conclusion that there has
been a substantial change in circumstances affecting the welfare of
the minor child. Testimony showed that plaintiff and Carter
started a relationship in September 1999, that plaintiff and Carter
engaged in sexual intercourse and that plaintiff became pregnant inNovember 1999. Their child was born in August 2000. Plaintiff and
defendant were not divorced until October 2000 and plaintiff and
Carter were married by the time of the contempt hearing in December
2000.
Plaintiff's lease on her apartment in Maxton, North Carolina,
also began in April 2000. The record shows that defendant and his
stepmother observed and videotaped plaintiff's apartment on twenty-
three occasions between 27 April and 17 September 2000. The times
of the observations varied between 9:19 p.m. and 5:28 a.m. On
thirteen of the days observed, plaintiff's and Carter's vehicles
were at plaintiff's apartment. On ten of those thirteen occasions,
plaintiff had custody of the minor child. On four other nights,
only Carter's vehicle was parked at the apartment. Carter's
vehicle was present at the apartment seventeen of the twenty-three
times that defendant and his stepmother observed plaintiff's
apartment. There was also testimony that Carter and plaintiff
shared the use of their vehicles.
Further, the evidence shows that the minor child is “an
intelligent child, and could understand the significance of his
mother occupying the same residence with a man to whom she is not
married.” Plaintiff's own testimony provides that the minor child
is “smart” and that “[h]e takes in a lot . . . .”
We note that defendant changed employment since the entry of
the initial custody order. The evidence shows that before
defendant's job change, defendant had to travel twenty-five to
thirty minutes to work each day. The evidence further shows thatdefendant's new job, which is closer to home, has allowed him to
spend more time with the minor child, take him to school, pick him
up from school, and coach his soccer team.
The evidence supports the trial court's findings which in turn
support its conclusion that a substantial change in circumstances
exists which affected the welfare of the minor child.
“Once the trial court makes the threshold determination that
a substantial change has occurred, the trial court then must
consider whether a change in custody would be in the best interests
of the child.” West v. Marko, 141 N.C. App. 688, 691, 541 S.E.2d
226, 228 (2001). “The trial court is in the best position to
determine what is in the best interests of the child. It is a
difficult determination and one made by observing the witnesses and
weighing the evidence.” White, 90 N.C. App. at 557, 369 S.E.2d at
95 (citations omitted). “As long as there is competent evidence to
support the trial court's findings, its determination as to the
child's best interests cannot be upset absent a manifest abuse of
discretion.” Metz v. Metz, 138 N.C. App. 538, 541, 530 S.E.2d 79,
81 (2000).
In Finding of Fact #16, the trial court stated that the minor
child's “exposure to the defendant cohabiting on an overnight basis
with her boyfriend is contrary to his best interest, and adverse to
his best interest” and “detrimental to his best interest . . . .”
The trial court concluded that the minor child would be
“beneficially affected by a modification of custody.” We consider
the pertinent language from Finding of Fact #16 as a conclusion oflaw even though it is labeled as a Finding of Fact. See In re
Helms, 127 N.C. App. 505, 510-11, 491 S.E.2d 672, 675-76 (1997).
Reading the above quoted sections of Finding of Fact #16 along with
the quoted language of Conclusion of Law #2, we conclude that the
trial court did not err in concluding that it is not in the minor
child's best interest to remain in the primary custody of plaintiff
and that the minor child will be “beneficially affected” by placing
him in the primary custody of defendant. This determination is
supported by competent evidence and the trial court's findings of
fact.
Plaintiff next contends that the trial court erred in denying
defendant's motion to dismiss which alleged that the trial court
did not have jurisdiction to conduct the contempt proceeding on 14
December 2000 while the 26 October 2000 Custody Order was being
appealed. We do not agree.
Plaintiff argues that G.S. § 1-294 removes jurisdiction of the
matter to the appellate court while an appeal is pending. G.S. §
1-294 states that “[w]hen an appeal is perfected as provided by
this Article it stays all further proceedings in the court below
upon the judgment appealed from, or upon the matter embraced
therein; . . . .”
However, G.S. § 50-13.3 entitled “Enforcement of order for
custody” is also applicable here. G.S. § 50-13.3(a) states that:
“[n]otwithstanding the provisions of G.S. 1-294, an order
pertaining to child custody which has been appealed to the
appellate division is enforceable in the trial court by proceedingsfor civil contempt during the pendency of the appeal.” (Emphasis
added). Even though plaintiff perfected her appeal of the 26
October 2000 Custody Order before defendant filed his motion for
civil contempt for violation of the 26 October 2000 Custody Order,
the trial court retained jurisdiction for the purposes of enforcing
the custody order through proceedings for civil contempt. But see
Rosero v. Blake, __ N.C. App. __, __ S.E.2d __ (May 21, 2002) (No.
COA01-350, COA01-483). The trial court properly denied plaintiff's
motion to dismiss.
Next, plaintiff contends that the trial court's findings of
fact and conclusions of law that plaintiff intentionally and
violated the 26 October 2000 Custody Order are not supported by the
evidence.
The trial court made the following findings:
3. That since the entry of the aforesaid
order, [the minor child] has missed several
days from the prekindergarten program,
including October 18, November 1, November 13,
November 15, November 16, November 22,
November 29, and November 30.
4. That the plaintiff contends that on the
said occasions, the child has been sick, but
yet the plaintiff's father testified that on
the evening of October 31, 2000, which was
Halloween, [the minor child] was eager to go
out for trick or treating, was excited, and
that they took him out for a evening of trick
or treat, without any proof whatsoever that
the following day he was sick.
5. That on all the remaining days since
October 6, 2000, through the end of November,
2000, while [the minor child] has been in the
physical custody of the defendant he has
regularly attended the prekindergarten
program.
6. That the plaintiff has produced some
medical records, but no records reflecting
that the child was unable to attend school,
and no medical records at all for several of
the days that he has missed.
7. That the plaintiff testified that, in her
opinion, if she was not working, it was more
important that [the minor child] be with her
than that he attend the prekindergarten
program.
. . . .
10. That the plaintiff has willfully and
intentionally violated the terms of the
aforesaid order of the court, in failing to
return [the minor child] to the Laurinburg
Presbyterian Church Prekindergarten Program on
the mornings that her visitation terminates
under the terms of the order.
The trial court concluded “[t]hat the plaintiff's violation of the
terms of the aforesaid order constitutes a willful and intentional
contempt of this court and its orders.”
Plaintiff argues that the evidence did not show that she
willfully or intentionally violated the custody order. Plaintiff
contends that the minor child was sick on the days that he did not
attend school. We are not persuaded.
“Review in contempt proceedings is limited to whether there is
competent evidence to support the findings of fact and whether the
findings support the conclusions of law.” Adkins v. Adkins, 82
N.C. App. 289, 292, 346 S.E.2d 220, 222 (1986). “Findings of fact
made by the judge in contempt proceedings are conclusive on appeal
when supported by any competent evidence and are reviewable only
for the purpose of passing upon their sufficiency to warrant thejudgment.” Hartsell v. Hartsell, 99 N.C. App. 380, 385, 393 S.E.2d
570, 573 (1990), aff'd, 328 N.C. 729, 403 S.E.2d 307 (1991).
“In the context of a failure to comply with a court order, the
evidence must show that the person was guilty of 'knowledge and
stubborn resistance' in order to support a finding of willful
disobedience.” Sharpe v. Nobles, 127 N.C. App. 705, 709, 493
S.E.2d 288, 290-91 (1997).
In order to support a finding of wilfulness in
a civil contempt proceeding there must be
evidence to establish as an affirmative fact
that defendant possesses the current ability
to comply with the order. Although specific
findings as to the contemnor's present means
are preferable, this Court has held that a
general finding of present ability to comply
is sufficient basis for the conclusion of
wilfulness necessary to support a judgment of
civil contempt.
Hartsell, 99 N.C. App. at 385, 393 S.E.2d at 574 (citations
omitted).
The record contains competent evidence to support the trial
court's findings. Plaintiff testified that “[w]hen I'm out of
work, I keep my son home with me, I do.” The record also contains
testimony that the minor child was absent from the prekindergarten
program on 1, 13, 15, 16, 22, 29, and 30 November when the minor
child was in plaintiff's custody. Testimony also shows that the
minor child did attend the prekindergarten program on 14, 17, 20,
21, and 28 November when the minor child was in defendant's
custody. Further testimony shows that when defendant had custody
of the minor child in November 2000 and up to the time of the
hearing in December, the minor child attended the prekindergartenprogram. The record also shows that plaintiff produced one medical
record at the hearing which was a 25 September 2000 note from Dr.
Faulkenberry which provided that the minor child “had a three day
history of a cough.” The record is silent as to any other medical
reports showing that the minor child was sick during October or
November.
The trial court also found “[t]hat the plaintiff is able to
comply with the order or is able to take reasonable measures that
would enable her to comply.” Competent evidence exists in the
record to support the trial court's findings. These findings
support the trial court's conclusions of law. This assignment of
error is overruled.
Accordingly, the orders of the trial court are affirmed.
Affirmed.
Judges HUDSON and BRYANT concur.
Report per Rule 30(e).
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