TRACY TODD McLEAN,
Plaintiff,
v
.
Watauga County
No. 99 CVD 134
SHANNON LEE McLEAN (JESSEE),
Defendant.
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).
TRACY TODD McLEAN
Plaintiff,
v
.
Watauga County
No. 99 CVD 134
SHANNON LEE McLEAN (JESSEE)
Defendant.
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)
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