TONITA E. MELTON,
(FORMERLY CLINE)
Plaintiff
v. Catawba County
No. 93 CVD 3051
JAMES ARNOLD CLINE,
Defendant
David Shawn Clark, P.A., by D. Shawn Clark, for plaintiff-
appellant.
No brief for defendant-appellee.
CAMPBELL, Judge.
Plaintiff appeals from an order and amended order which modify
a child custody consent order entered 18 October 2000 and grant
primary custody of the parties' minor children to defendant based
on a change of circumstances. Plaintiff and defendant were married
on 14 April 1990, and two children were born of the marriage in
1990 and 1992. The parties subsequently separated and divorced.
The trial court granted primary custody of the two children to
plaintiff in an order entered 19 September 1994. On 30 June 2000,
defendant filed a motion seeking a change in child custody. In aconsent order entered on 18 October 2000, the trial court granted
primary custody of the children to defendant.
On 19 April 2001, plaintiff filed a motion seeking a change in
child custody as the result of a substantial change in
circumstances. Plaintiff amended her motion on 13 June 2001 to add
additional allegations. Defendant filed an answer and counterclaim
on 20 June 2001. The trial court heard the matter on the 13th and
14th of August 2001. Plaintiff was represented by counsel, and
defendant appeared pro se.
In an order entered on 22 August 2001 and subsequently amended
on 9 October 2001 as a result of a motion filed by plaintiff
pursuant to N.C.R. Civ. P. 59, the trial court made the following
findings of fact:
4. That a Consent Order was entered giving
joint custody to both the Plaintiff and the
Defendant with primary custody to the
Defendant, including after-school visitation
which was entered on October 18, 2000. [] The
Plaintiff was awarded extensive visitation
according to a schedule set out in the Consent
Order and was ordered to pay child support.
(Portion in italics amended by 9 October 2001
order.)
. . . .
7. That the Plaintiff remarried on September
16, 2001, to Chris Melton and had moved into
his residence by no later than August 1, 2001.
. . . .
9. That the minor child, Cody Cline has had
difficulty concentrating on his schoolwork
since entering school and has some symptoms of
ADHD.
. . . . 11. That the minor child, Cody Cline, has been
discovered three times naked with another
minor child in closets or closed rooms; once
with [his four-year-old stepbrother] in June
2000. The minor child, Cody Cline, has not
committed sex offenses to date, but is at risk
for doing so and he has been in counseling for
that reason. . . .
. . . .
13. That the minor child, Keysha Cline's,
school grades dropped during the 2000-2001
school year. The elementary school, Webb
Murray, attended by the children is forty-five
minutes away from the Plaintiff's residence.
Each child has some tardies at school.
. . . .
16. That the Plaintiff describes herself as
having been saved, and she and her husband
attend church regularly. She does not drink
or curse as much since her marriage. [] The
Plaintiff has attempted to improve her
relationship with her mother, who desires no
such relationship. (Portion in italics amended
by 9 October 2001 order.)
17. That the Plaintiff stopped working outside
the home in May 2001.
18. That prior to the Consent Order, the
Plaintiff had changed jobs and residences
frequently. The Plaintiff has taken paramedic
classes but never completed the classes. The
Plaintiff owes $2500.00 in student loans.
19. That the Plaintiff is $620.00 in arrears
on Child Support. The Plaintiff owes $4500.00
on a van and $2000.00 to her mother, Mrs.
Davis.
On the basis of these and other findings of fact, the trial court
concluded the “improvement in Plaintiff's lifestyle constitutes a
material change of circumstances favorable to the minor children's
welfare. . . . [but] the school day visitation is not in the minorchildren's best interest, and their best interest will be served by
the following modification of custody.” The trial court then
eliminated the school day visitation periods set out in the 18
October 2000 consent order. From the trial court's order and
amended order, plaintiff appeals.
Plaintiff in her first assignment of error asserts “[t]he
trial court abused its discretion in the making of the Findings of
Fact in that the Findings of Fact are not supported by competent
evidence.” However, “[a] single assignment generally challenging
the sufficiency of the evidence to support numerous findings of
fact, as here, is broadside and ineffective.” Wade v. Wade, 72
N.C. App. 372, 375-76, 325 S.E.2d 260, 266, disc. review denied,
313 N.C. 612, 330 S.E.2d 616 (1985). When no assignment of error
is made to particular findings, they are “presumed to be supported
by competent evidence and are binding on appeal.” Anderson
Chevrolet/Olds v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159,
161 (1982). This broadside assignment of error is overruled.
Plaintiff's second assignment of error states “[t]he trial
court abused its discretion in the making of the Conclusions of Law
in that the Conclusions of Law and Decretal do not follow from the
evidence presented and the Findings of Fact.” This broadside
assignment of error “is ineffectual except to present the question
of whether the facts found support the judgment and whether error
of law appears on the face of the record.” Monds v. Monds, 46 N.C.
App. 301, 304, 264 S.E.2d 750, 752-53 (1980).
A court order for custody of a minor child may be modified orvacated if the moving party can prove that there has been a
substantial change in the circumstances affecting the welfare of
the child. Evans v. Evans, 138 N.C. App. 135, 139, 530 S.E.2d 576,
578 (2000). Here the trial court concluded the “improvement in
Plaintiff's lifestyle constitutes a material change of
circumstances favorable to the minor children's welfare[,]” but
then made no findings of fact regarding what effect the changed
circumstances would have on the children's welfare. While it
appears from the trial court's findings of fact that the school day
visitation provision in the 18 October 2000 consent order has had
a detrimental effect on the minor children, those findings of fact
would arguably support plaintiff's claim for primary custody. The
trial court's conclusion of law that the improvement in plaintiff's
lifestyle was a change of circumstances favorable to the minor
children's welfare cannot be construed as supporting its decision
to reduce plaintiff's visitation and to leave the minor children's
primary custody with defendant.
“[W]hen 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 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). Accordingly, the trial court's order and
amended order are vacated and remanded so that the trial court can
make detailed findings of fact on the issue of change of
circumstances. The trial court may take additional evidence basedon events occurring since the last hearing and shall then make
findings of fact relating to custody based on this evidence as well
as that currently in the record.
Vacated and remanded.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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