An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA 03-1154


Filed: 2 November 2004


v .                         Watauga County
                            No. 99 CVD 134

    Appeal by defendant from order entered 3 February 2003 by Judge Alexander Lyerly in District Court in Watauga County. Heard in the Court of Appeals 20 May 2004.

    Hedrick & Eggers, by Kimberly M. Eggers, for plaintiff- appellee.

    Vetro & Rivenbark, P.C., by Nancy M. Rivenbark, for defendant- appellant.

    HUDSON, Judge.

    Plaintiff and defendant were married 9 September 1990. Two children were born of the marriage: Anthony Chase (28 February 1990) and Kelsie Elizabeth (4 May 1993). The parties separated and entered into a separation agreement (“the incorporated Agreement”) on 30 September 1998, which was incorporated into the divorce judgment entered on 14 April 1999. At the time of entering the Agreement, both parties lived in Watauga County.
    Pursuant to the incorporated Agreement, the parties share joint physical and legal custody of the minor children on a rotating weekly basis. Also according to the Agreement, the children are to remain enrolled in the school system in WataugaCounty. Additionally, although not set forth in the incorporated Agreement, the parties established a pattern whereby each parent has a “supper visit” with the children during the week of the other parent's custody. The Agreement does not restrict either party from relocating.
    Before this action was filed, defendant became engaged to Jim McCall. Defendant told plaintiff that she desired to move to Lenoir in adjacent Caldwell County, because Lenoir is a midpoint between her and Mr. McCall's workplaces. Defendant also told plaintiff that since she works in Foscoe (Watauga County), the children would remain enrolled in their current Watauga County schools.
    Reacting to defendant's proposed relocation, on 13 June 2002, plaintiff filed a Motion to Show Cause and In the Cause, seeking sole custody of the minor children. On 13 June 2002, the district court ordered defendant not to move the children out of Watauga County and not to disturb the current custody arrangement pending a hearing on the merits of plaintiff's motion.
    The matter came to be heard during the 16 July 2002 session of Watauga County District Court. Following a hearing, the Watauga district court entered an order 7 August 2002 containing the following pertinent findings of fact:
    7. Plaintiff brought the instant action when Defendant told him that she was moving to Lenoir with Jim McCall so that Jim McCall would not have to drive for an hour and a half from Taylorsville to Foscoe. Plaintiff contends that such a move would not be in their best interests and would have a negative effect academically and socially on his children.
    8. Plaintiff has a very close and supportive family and lives within walking distance to his parents' and his brother and sister-in-law's homes, all of whom have close relationships with the minor children. Additionally, Defendant testified that she lives three minutes away from Plaintiff and that each of them live approximately fifteen minutes away from Valle Crucis Elementary School where the children attend school.

    9. Defendant is employed at DeWolfson Down in Valle Crucis as the national accounts manager. Her work is fifteen minutes away from the children's school, and that she has to be at work at 8:00 a.m. Defendant testified that currently the children get on the school but [sic] at 7:10 a.m. and that their school day starts at 7:45. Defendant testified that she had timed the drive from where she plans to live at Cherokee Drive in Caldwell County to Valle Crucis Elementary School, and that leaving at 6:50 a.m. she made it to Valle Crucis before the time for the tardy bell at 7:50 a.m. Defendant testified that leaving at 6:30 a.m. would still allow her to be at work on time and that the children would only have to wake up twenty minutes earlier than they do now for this schedule to work.

    10. Both of the minor children periodically forget their cleats, gloves, and schoolwork. One of the children's biggest problems was their unorginization. The parties' current proximity to the children's school and extracurricular activities does not cause the children to miss out entirely on those activities even if they do forget necessary items.


    13. Plaintiff was concerned about the move and the results it might have on his children's education and their progress in school. Both of the children had made good progress this year. Chase had a difficult start to his last grade year, but with the help of the children's tutor, Millie Lampo, Chase made the remainder of the year a success. Chase is getting ready to begin the middle school years. Both Plaintiff and Defendant are interested in the children's academic success and have helped them with their homework. Chase received an “A” on a project Plaintiff helped him with. Plaintiff testified that the children have lived here for all of their lives and formed close friendships at Valle Crucis and that most of their friends live only minutes away. The children attend Valle Crucis Elementary School which is approximately fifteen minutes away from Plaintiff and Defendants [sic] homes. Additionally, the children'stutor lives in the Valle Crucis community.

    14. The children participate actively in sports, and are very sports-oriented, particularly Chase. Practice for Chase typically does not end until 7:30 p.m., and during the school year, both children have to finish their homework after practice. Plaintiff and Coach Steve Breitenstein testified that Plaintiff is very involved with the children's teams and that he has bought equipment, sponsored teams, and attended every practice and game.

    15. Another reason for concerns about the move is the children's safety in traveling. Defendant testified that she has no four-wheel drive and admitted that this area has unpredictable snow and ice. The current distance between where she plans to live in Lenoir and Valle Crucis Elementary school is 38.7 miles and that she had timed the drive and that it took 55 minutes. Plaintiff testified that when Chase begins driving in a few years, he worries about his safety in driving this distance as a young driver.

Based upon these findings of fact, the court entered the following conclusions of law:
    2. The divorce judgment dated 14 April 1999, incorporating the separation agreement of the parties executed in September 1998 provided that the parties had joint legal and physical custody of the children with a week to week alternating schedule.

    3. Since the entry of that Order, there has been a substantial change of circumstances to wit: Defendant's plan to move to Lenoir, which would significantly affect the welfare of the minor children as set forth herein.

    4. Such a move would negatively affect the minor children as it would increase their travel time to and from school substantially, have potential dire social consequences. Additionally, the children have just this school year begun to do well in school and a move requiring their travel time to increase and hour and a half a day, when combined with their already hectic extracurricular schedules, threatens to jeopardize their academic performance and their significant involvement in extra-curricular activities such as the team sports in which they are involved.

    5. The changes in circumstances are so substantial thatthe welfare of the children will be adversely affected and therefore the custody provisions of the prior order should not be modified because such modification is not in the best interests of the minor children.

    6. Therefore, under [Ramirez-Barker v. Barker, 107 N.C. App. 71, 418 S.E.2d 675 (1992) and Evans v. Evans, 138 N.C. App. 135, 530 S.E.2d 576 (2000)] and other cases, in evaluating the best interests of the children due to Defendant's proposed relocation, the Court has considered and finds the following as to the factors set forth therein:

        a. ...the Court finds that the move would not be positive for the children.

        b. ...The Defendant's desire to move is motivated by her desire to find a compromise in driving distances fro Jim McCall; This move is not work related as to Defendant's primary place of work in Foscoe.

        c. ...Plaintiff's motives have been honorable, reasonable, and noble, based upon his love and concern for the children; Defendant's motives are not intended to be unreasonable.

        d. ...Visitation and joint custody arrangement would be significantly effected [sic] by the move, and this would adversely affect the welfare of the minor children, and therefore the move is not in their best interests.

    7. Plaintiff and Defendant are fit and proper persons to have the care, custody and control of the minor children, and it is in the best interests of the minor children that their care, custody and control be placed with Plaintiff and Defendant.

    8. Plaintiff and Defendant have suitable homes for the minor children and it would be in the best interests of the minor children that they reside with Plaintiff and Defendant as previously set out in [the] Order and Separation Agreement.

    Based upon the aforementioned findings of fact and conclusions of law, the court in the decretal paragraph 1, ordered that “theSeparation Agreement which was incorporated into the parties' divorce judgment dated April 14, 1999 remains in full force and effect except as modified herein.” The remaining decretal paragraphs do make some modifications to the parties' incorporated Agreement, to wit: the parties shall foster a feeling of love and affection between the children and the other parent; the parties shall avail themselves of the services of the North Carolina Child Support Enforcement to calculate support; the parties shall equally divide the children's expenses; the parties shall provide one another with notice of school meetings, grades, parent-teacher meetings, etc.; and that neither parent shall have any overnight guests of the opposite sex while the children are present or expose the children to alcohol or other substance abuse. These changes, however, do not pertain to the issue here.
    On 15 August 2002, defendant moved pursuant to N.C. R. Civ. P. 52, to amend the court's findings and to find additional facts. The trial court orally denied defendant's Rule 52 motion, and entered a written order denying the motion on 3 July 2003, nunc pro tunc 3 February 2003. Also on 3 February 2003, the trial court entered a Memorandum of Clarification of its 7 August 2002 order. The Memorandum provided the following changes:
    1. Separation Agreement, incorporated into Judgment of 14 April 1999 remains in effect[.]

    2. Parties shall continue to share custody as set out in prior Order, and visitation[.]

    3. Absent the consent of the Plaintiff, the Court finds it not in the best interest of the minor children that they reside in Caldwell or Catawba County, and continue to attend school in Watauga County.Defendant appeals. For the reasons discussed below, we vacate the order and remand to the trial court for further proceedings.
    A child custody order may be modified at any time upon a showing of a substantial change of circumstances affecting the welfare of the child. N.C. Gen. Stat. § 50-13.7(a) (2001). A child custody agreement which is incorporated into a court order can also be modified. Hershey v. Hershey, 57 N.C. App. 692, 693, 292 S.E.2d 141, 143 (1982).
Once the trial court makes the threshold determination that a substantial change has occurred, the court then must consider whether a change in custody would be in the best interests of the child. Ramirez-Barker v. Barker, 107 N.C. App. 71, 77, 418 S.E.2d 675, 678 (1992), overruled on other grounds by Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998). Thus, a finding of a substantial change in circumstances justifies the court to then determine whether a change in custody would be in the best interests of the child. If the court so determines, it may, in its discretion, modify the custody arrangement in the child's best interests. See King v. Allen, 25 N.C. App. 90, 92, 212 S.E.2d 396, 397, cert. denied, 287 N.C. 259, 214 S.E.2d 431 (1975).
    However, here defendant-appellant argues that the court's findings of fact, even if supported by the evidence, do not support its conclusions and order, and fail to address the relief defendant sought. Plaintiff testified that the quality of his time with the children during his custodial weeks would not be affected by defendant-appellant's proposed move. In his prayer for judgment,plaintiff requested that the court award him temporary and permanent custody of the children and order defendant not to disturb the current custody situation. We note that the trial court's 7 August 2002 order, while finding a substantial change in circumstances and determining that such a change would not be in the children's best interests, did not actually resolve with finality the issues related to defendant's proposed relocation. Instead, decretal paragraph 1 provides that:
    the Separation Agreement which was incorporated into the parties' divorce judgment dated April 14, 1999 remains in full force and effect except as modified herein.
After entry of its order, the trial court filed a Memorandum of Clarification that provided the changes set out above.
    In Ramirez-Barker, the trial court granted sole and permanent custody of the child to the mother with frequent and extended visitation privileges to the father following the parties' separation. The order also required the mother to give the father sixty days notice of her intention to move from the Chapel Hill area. Id. at __, __ S.E.2d at __. Later, the mother filed a motion requesting a change in the visitation schedule, alleging that she desired to move to California so that she and the child could be “close to where numerous members of [her] immediate family reside . . . [and that the move] would make the current visitation schedule . . . unreasonable.” Id. at __, __S.E.2d at __. The trial court found that the move would not be in the child's best interests, and ordered that:
    Now, Therefore, it is Ordered that if the mother stays in Orange County, that the permanent custody order in thismatter stay in force and effect without any change. If the mother decides to move to California, then at the time she moves to California, the custody arrangement shall change as follows: custody will then be joint custody with the situation reversed, that is the mother to have custody during the summer months and the father to have custody during the school year. However, as of the last day of school of 1993, full and complete custody of [the child] shall be awarded to or continued in the mother and she will be allowed to move or [to do] as she sees fit without coming back to court . . . subject however to summer visitation with the father. The proviso that the mother give the father sixty days notice of her intent to move remains in place.
Id. at __, __S.E.2d at __.
    Similarly, in Evans v. Evans, 138 N.C. App. 135, 530 S.E.2d 576 (2000), following a divorce, the mother was given sole custody of the parties' child. In response to the mother's proposed move to Maryland, the father filed a motion to modify custody based upon a change in circumstances. The trial court ruled:
    that for so long as the Defendant shall continue to remain in the immediate vicinity, then the parties shall continue to have and share joint custody of the minor child, with the primary placement with the Defendant. However, if the defendant-mother leaves North Carolina to join her new husband in Maryland, then the primary custody of the child will be awarded to the plaintiff-father.

Id. at 139, 530 S.E.2d at 578 (internal quotations omitted). This Court noted that according to the record on appeal, “the mother currently remains in North Carolina.” The Court of Appeals reversed the order, holding that there were inadequate findings of fact showing an adverse effect on the children, and that the court failed to address the best interests of the child. The Court pointed out that relocation alone does not justify modification of custody and that “evidence of 'speculation or conjecture that adetrimental change may take place sometime in the future' will not support a change in custody.” Ramirez-Barker, 107 N.C. App. at78, 418 S.E.2d at 679 (citing Wehlau v. Witek, 75 N.C. App. 596, 599, 331 S.E.2d 223, 225 (1985), overruled on other grounds by Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898, (1998)).
    Here, as in Ramirez-Barker and not in Evans, the trial court ordered that the present custody arrangement remain in effect. However, in Ramirez-Barker, unlike in Evans, the trial court also ordered a modification of custody should the contingency (the proposed move of one party) take effect. The trial court here made no such provision for modification in the event the mother actually moves to Caldwell County. Indeed, the court here entered no final order clearly addressing custody. Thus, the trial court failed to address the relief sought by defendant and entered no decreed modification of custody for this Court to address on appeal. “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.” Evans, 138 N.C. App. at 142, 530 S.E.2d at 580 (citing Crosby v. Crosby, 272 N.C. 235, 238-9, 158 S.E.2d 77, 80 (1967)). Here, we are unable to determine if the order is supported, because the pertinent findings, conclusions, and “order” amount to conjecture about what might occur. As the Court did in Evans, we must vacate the order and remand for detailed findings, conclusions, and order.    Reversed and remanded.
    Judge MCCULLOUGH concurs.
    Judge LEVINSON concurs with separate opinion.
    Report per Rule 30(e).

NO. COA03-1154


Filed: 2 November 2004


v .                         Watauga County
                            No. 99 CVD 134

    LEVINSON, Judge, concurring with separate opinion.

    I conclude that additional proceedings in the trial court are necessary.
    As the majority correctly observes, the parties' Separation Agreement was incorporated into a 14 April 1999 court order. The following provision concerning the physical and legal custody of the children was included in that Agreement:
        The parties agree to share in joint custody of the children, both legal custody and physical custody. The children shall stay together, rotating weekly between [father] and [mother]. The children shall remain enrolled in school in Watagua County, in the schools where they are presently enrolled, and the parties' exchange of the children shall be on Friday after the completion of each child's school day.

The Agreement contained nothing related to what would or would not happen in the event one or both parents moved to an adjoining county--and did not provide, for example, that the custody arrangement was contingent on the children living in the same city or county.
    Neither the Order entered 7 August 2002 nor the “Memorandum ofClarification” entered 3 February 2003, considered independently or together, state the trial court's resolution of the matters before it. First, the trial court neither expressly “granted” nor “denied” the father's motion to modify custody. Second, the 7 August 2002 order, quoted in relevant portions by the majority, left the joint physical and legal custody provisions of the original order undisturbed, and decreed nothing as to what will occur with respect to the children should the mother choose to move. Had the Agreement contained a provision stating, for example, that the children would continue to reside in Watauga County regardless of where either parent resides, then the 7 August 2002 order leaving the custodial arrangement intact would have come closer to resolving the issue. The 3 February 2003 order did little to address this failure. It decreed, again, that the 14 April 1999 order “remain[] in effect” and that the “[p]arties shall continue to share custody as set out in prior orders, and visitation [sic].” However, because the prior court orders say nothing about whether the children can reside outside of Watauga County--and because the parenting schedule in the Agreement might be maintained even if the mother moves her residence to the adjoining county-- we do not know what will occur in the event that the mother relocates. This problem, standing alone, is cause enough to remand this matter. Nevertheless, I wish to note additional concerns for the trial court to consider on remand.
    First, the decretal portions of the trial court's order and memorandum appear to contradict its conclusions of law. The trialcourt concludes that the mother's proposed move would constitute an adverse, substantial change of circumstances and that the proposed move would not be in the best interests of the children. However, the court's directive that the custodial arrangements remain intact suggests that the contrary is true such that the parents will continue to enjoy the same custodial arrangements even if the mother moves to the adjoining county.
    The opposite interpretation, apparently accepted by counsel for both parents on appeal, is that the order prevents the mother from enjoying joint physical custody should she relocate. However, there is no language in the order specifying that the mother will lose her custodial rights if she moves. Instead, the order acknowledges her plan to move, concludes such a move would not be in the best interests of the children, but nevertheless leaves the mother with the same joint physical and legal custody rights she had under the original Agreement.
    Second, I urge the trial court to reexamine its conclusion that “ [a]bsent the consent of the [father], the court finds it not in the best interest of the minor children that they reside in Caldwell or Catawba County, and continue to attend school in Watauga County” (emphasis added). The best interests determination is one assigned to the exclusive discretion of the trial court judge. See N.C.G.S. § 50-13.2(a) (2003).
    Notwithstanding the district court's good faith effort to do so, the orders on appeal do not resolve with finality the principal issue presented and are internally inconsistent. Rather thanreverse and remand the orders of the trial court as the majority directs, I would dismiss this appeal as interlocutory.
    I recognize this Court's decision will likely require the expenditure of additional litigation costs and create further uncertainty and distress for the children. However, I have no choice but to agree that further proceedings are necessary.   (See footnote 1) 

Footnote: 1
     I disagree with much of the last paragraph of the majority opinion. In my view, the discussion of Evans v. Evans, 138 N.C. App. 135, 530 S.E.2d 576 (2000), is misplaced. While one of the mother's arguments on appeal is that the findings of the trial court are not supported by competent evidence, this is not the reason the majority remands this matter to the trial court. Rather, it is because the trial court's orders do not resolve with finality the issues presented. Furthermore, I disagree with the majority's conclusory observation in the same paragraph that the “pertinent findings, conclusions and 'order' amount to conjecture about what might occur.” McLean v. McLean, COA03- 1154, slip. op. at 10 (N.C. App. 2 Nov. 2004). Again, because this Court has not examined whether the findings of fact and conclusions of law are proper, the use of Evans is misplaced. It cannot be that my colleagues would remand this matter for further proceedings and, at the same time, conclude that an order finding a substantial change of circumstances and decreeing a change in custody could only be the result of unsupported findings of fact and conjecture.

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