Child Support, Custody, and Visitation_-custody--modification
The trial court erred by hearing defendant's motion to modify the parties' child custody
agreement and subsequently by modifying the custody arrangement, because: (1) there was no
written order entered when defendant filed her motion to modify, and thus, there was nothing to
modify; and (2) even if it was proper for the trial court to hear the motion, it was not possible for
there to have been a change in circumstances between the time the order was entered on 13 May
2002 and the time the motion to modify was heard on 13 May 2002.
William E. Loose for plaintiff-appellant.
Charlotte A. Wade for defendant-appellee.
McGEE, Judge.
Gary Wayne Carland (plaintiff) filed suit against Karen Lynn
Branch Anders (defendant) on 2 December 1999 seeking joint custody,
visitation, and the establishment of child support and paternity
with respect to the minor child (the child) born to defendant on 8
June 1999. Defendant filed an answer and counterclaim dated 12
January 2000 requesting temporary and permanent sole custody of the
child and requesting that plaintiff pay child support. Plaintiff
filed a reply to defendant's answer and counterclaim on 12 January
2000. A temporary non-prejudicial consent order was filed on 28
March 2000 whereby the parties agreed that defendant would maintain
primary care of the child and plaintiff would be entitled to
visitation as provided in this temporary order. A consent orderwas filed on 21 July 2000 which established that plaintiff was the
father of the child and provided that defendant have the primary
care of the child subject to secondary care by plaintiff.
Plaintiff filed a motion on 9 March 2001 requesting that
defendant be ordered to show cause as to why she should not be held
in contempt of court. Defendant filed a motion on 16 March 2001 to
modify the custody arrangement. In a consent order filed 19 April
2001, the trial court continued these matters until the completion
of a custody evaluation. After the custody evaluation was
completed, the matter was heard by the trial court on 19 November
2001 and on 3 December 2001, and the trial court announced in open
court its decision to award joint custody to the parties. The
order regarding this joint custody arrangement was dated 13 May
2002.
On 3 May 2002, prior to entry of the 13 May 2002 order
granting joint custody, defendant filed a motion in the cause
alleging a change in circumstances warranting a modification of the
custody arrangement which had been announced in open court on 19
November 2001. In a judgment dated 23 May 2002, the trial court
allowed defendant's 3 May 2002 motion to modify custody. The
judgment recited the details of the joint custody arrangement which
had been previously announced in open court. The judgment included
multiple facts in support of the conclusion that a substantial
change in circumstances affecting the welfare of the child had
occurred. Consequently, the trial court awarded sole custody to
defendant with visitation to plaintiff. Plaintiff filed a motion
on 3 June 2002 for a new trial pursuant to Rule 59 and to amend,pursuant to Rule 52, certain findings of fact in the 23 May 2002
judgment. The trial court denied plaintiff's motion in an order
filed 4 September 2002. Plaintiff appeals.
Plaintiff first argues in assignment of error number two that
the trial court erred in finding a substantial change in
circumstances warranting a custody modification because the order
the trial court modified was entered the same day the trial court
heard the motion requesting modification. Modification of custody
orders is provided for in N.C. Gen. Stat. § 50-13.7(a) (2003),
which states "[s]ubject to the provisions of [the UCCJEA], an order
of a court of this State for custody of a minor child may be
modified or vacated at any time, upon motion in the cause and a
showing of changed circumstances by either party or anyone
interested." (emphasis added). An order is defined as "[a] written
direction or command delivered by a court or judge." Black's Law
Dictionary 1123 (7th ed. 1999) (emphasis added).
In this case, there was no written order by the trial court
until 13 May 2002, ten days after the motion to modify had been
filed. Although the trial court had announced its decision to
award joint custody to the parties in open court on 19 November
2001, "an order rendered in open court is not enforceable until it
is 'entered,' i.e., until it is reduced to writing, signed by the
judge, and filed with the clerk of court." West v. Marko, 130 N.C.
App. 751, 756, 504 S.E.2d 571, 574 (1998); N.C. Gen. Stat. § 1A-1,
Rule 58 (2003). See also Abels v. Renfro Corp., 126 N.C. App. 800,
803, 486 S.E.2d 735, 737-38, disc. review denied, 347 N.C. 263, 493
S.E.2d 450 (1997). Since there was no order "entered" whendefendant filed her motion to modify, there was nothing to modify.
Further, even if it was proper for the trial court to hear the
motion, it is not possible for there to have been a change in
circumstances between the time the order was entered on 13 May 2002
and the time the motion to modify was heard on 13 May 2002.
Defendant's response to plaintiff's first argument is based on
an assumption that the trial court was permitted to consider what
had occurred between the time the custody arrangement was announced
in open court on 19 November 2001 and the date of the modification
hearing in May 2002. As previously noted, there was no enforceable
order between the parties until the order was entered on 13 May
2002. Accordingly, in deciding whether a change of circumstances
had occurred, the trial court should not have considered the events
that transpired prior to entry of the order.
Further, defendant responds that plaintiff had unclean hands
because plaintiff had been directed to draft the custody order when
it was announced in November 2001. However, plaintiff failed to
comply with this instruction and defendant ultimately drafted the
13 May 2002 order. Although we recognize the frustration of both
defendant and the trial court in plaintiff's failure to draft and
present the order, there was no order on record at the time the
motion to modify was filed. Accordingly, we are bound to find that
the trial court should not have heard defendant's motion and
subsequently should not have modified the custody arrangement.
Therefore, we vacate and remand in accordance with this opinion.
In light of our decision on this issue, we need not review the
remaining assignments of error. Vacated and remanded.
Judges HUNTER and GEER concur.
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