JAMES D. SKINNER,
Plaintiff,
v. Durham County
No. 96 CVD 4139
LYNNE M. SKINNER,
Defendant.
No brief filed for plaintiff-appellee.
Judith K. Guibert for defendant-appellant.
MARTIN, Judge.
Plaintiff James D. Skinner (plaintiff) and defendant Lynne M.
Skinner (defendant) were married on 7 September 1986. One minor
child was born during the marriage on 18 January 1988. On 5
December 1996, the trial court entered a judgment granting
plaintiff an absolute divorce from defendant. The judgment
incorporated the parties Separation and Property Settlement
Agreement, which provided for joint legal custody of the minor
child, primary physical custody of the minor child to defendant,
and visitation to plaintiff.
Defendant filed a motion to modify child support on 6 May
1999. Eight months later, plaintiff moved to modify child support. The child support and custody actions were heard together in
November and December of 2000. The trial court entered a temporary
order in April of 2001. Upon review of the temporary order, the
trial court entered a final custody order on 10 May 2001. In its
order, the trial court ordered that the parties would continue
their alternating weekend schedule with the minor child, that the
minor child would spend alternating Tuesday and Wednesday
overnights with his father and that the parties would evenly split
the minor child's summer vacations. The order also ordered:
5. A copy of this Order shall be transmitted
to Dr. David Smith who shall be free to
discuss the terms of the order and the
implementation of the order with Mathew
Skinner. If, after discussing the terms of
this order with Mathew, Smith and Mathew
conclude that Mathew desires to add an
additional overnight on alternating Thursdays,
Smith shall so notify the parties, preferably
in writing, and that schedule shall be
immediately implemented.
Defendant appeals.
The sole issue on appeal is whether the trial court erred by
including paragraph five in the 10 May 2001 custody order.
Defendant argues that the disputed provision improperly delegated
to the minor child modification of the child custody order without
any showing of a change in circumstances. We agree.
A judgment awarding custody may only be modified by first
finding that there has been a substantial change of circumstances
affecting the welfare of the child. Metz v. Metz, 138 N.C. App.
538, 530 S.E.2d 79 (2000). Furthermore, a custody award must be
based upon conditions found to exist at the time the judgment isrendered. Smithwick v. Frame, 62 N.C. App. 387, 303 S.E.2d 217
(1983). “'Custody' as used in G.S. 50-13.7 was intended to
encompass visitation rights as well as general custody.” Clark v.
Clark, 294 N.C. 554, 576, 243 S.E.2d 129, 142 (1978). This Court
has stated that “the award of visitation rights is a judicial
function,” which the trial court may not delegate to a third-party.
Brewington v. Serrato, 77 N.C. App. 726, 733, 336 S.E.2d 444, 449
(1985), (citing In re Stancil, 10 N.C. App. 545, 552, 179 S.E.2d
844, 849 (1971)). In Brewington, this Court held that a provision
in the trial court's order permitting visitation “at such times as
the parties may agree” was improper. Id. Our Court reasoned that
the provision “effectively gives [father] the exclusive power to
deny [mother] reasonable visitation with the child by withholding
his consent.” Id. This Court remanded the case with instructions
that the trial court be required to include a provision in the
order specifying the times the mother may visit the child in the
father's home. Id.
In the present case, the trial court specified the times the
father would visit with the minor child as required by Brewington.
The final order stated that the minor child would spend alternating
Tuesday and Wednesday overnights with his father. However, in
paragraph five the trial court allowed a Thursday overnight in the
future based upon the minor child's desires. Paragraph five
delegates visitation decisions to the minor child. In addition,
adding the Thursday overnight essentially modifies the order
without a finding of a change of circumstances based uponconditions found to exist at the time the 10 May 2001 judgment was
rendered. Because paragraph five improperly delegates visitation
decisions to the minor child without a finding of a change of
circumstances, we must remand this case to the Durham County
District Court for an additional hearing, if necessary, and entry
of a new order.
Remanded.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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