DANNY WILLARD JOHNSON,
Plaintiff
v
.
Martin County
No. 01 CVD 701
DEBBIE K. JOHNSON,
Defendant
Irvine Law Firm, PC, by David J. Irvine, Jr., for plaintiff-
appellee.
Pritchett & Birch, PLLC, by Melissa L. Skinner, Lars P.
Simonsen, and Lloyd C. Smith, Jr., for defendant-appellant.
CALABRIA, Judge.
Debbie K. Johnson (“defendant”) appeals a 27 February 2004
order granting sole legal and physical custody of Willard Miles
Johnson (the “minor child”) to Danny Willard Johnson (“plaintiff”)
and visitation privileges to defendant. We affirm.
The minor child was born on 4 February 1997. Plaintiff and
defendant were married on 3 March 1997, and the family resided in
Williamston, North Carolina until their separation on 15 November
2001. On 25 February 2002, the trial court entered an initial
custody order granting joint legal custody of the minor child to
plaintiff and defendant, primary physical custody to defendant, and
visitation privileges to the plaintiff. On 26 November 2003, plaintiff moved for a modification of
child custody and an ex parte order modifying custody, and the
trial court granted plaintiff temporary custody of the minor child.
At the hearing to determine permanent custody of the child, the
trial court ordered an immediate modification of child custody.
Specifically, the court granted plaintiff primary legal and
physical custody of the minor child, and defendant was granted
visitation privileges. Defendant appeals.
On appeal, defendant asserts the trial court's findings of
fact were not supported by competent evidence and its conclusions
of law, regarding a substantial change of circumstances that
warranted a modification of custody in the best interests of the
minor child, were not supported by the findings of fact.
I. Findings of Fact
Defendant asserts that certain findings of fact of the trial
court are not supported by the evidence. A trial court's findings
of fact are conclusive on appeal if supported by competent
evidence. Sain v. Sain, 134 N.C. App. 460, 464, 517 S.E.2d 921,
925 (1999). Specifically, defendant argues that no evidence in the
record supports the trial court's findings that (1) defendant
failed to provide a stable living arrangement for the minor child
and (2) defendant was almost entirely dependent on others for her
housing.
At the time of the 25 February 2002 custody hearing,
defendant was employed at a daycare center and worked approximately
thirty-four hours per week earning $5.45 per hour. During thecustody hearing, defendant stated her intention to move from Martin
County to her hometown in Virginia if granted custody of the minor
child. Approximately three weeks after the custody hearing,
defendant left her job and moved with the minor child from Martin
County to Hiltons, Virginia, where her mother, adult son, adult
daughter, and grandchildren lived. Plaintiff introduced evidence
that, approximately two weeks later, defendant and the minor child
moved into a mobile home owned by Carl Blalock (“Blalock”) and
lived rent free until the summer of 2003 when they moved into
another mobile home. Defendant did not check the condition of the
other mobile home before relocating to it. The minor child slept
on the only bed in the mobile home while defendant slept on the
couch. In November 2003, defendant and the minor child returned to
the mobile home owned by Blalock and again resided rent free.
Defendant testified she did not intend to move from Blalock's
mobile home, but if Blalock asked her to move, she would have no
choice. She further stated, if Blalock asked her to start paying
rent, that she would find full-time employment. Accordingly, the
trial court's findings that defendant failed to provide a stable
living arrangement and was dependent on others for housing were
supported by competent evidence.
Defendant also argues no evidence supports the trial court's
finding that “[d]efendant unilaterally discontinued [the minor
child's] speech therapy and [had] not sought any such therapy
since, contending that the minor child's teachers did not request
that she seek such therapy.” Plaintiff, however, introducedevidence that, without consulting him or the minor child's speech
therapist, defendant moved to Virginia prior to the minor child's
completion of the therapy. After arriving in Virginia, she did not
enroll the minor child in speech therapy and never took the minor
child to a qualified speech therapist to determine if he needed to
complete his therapy. Rather, she relied on the fact that “nobody
said anything about his speech being bad” and that his kindergarten
“teacher didn't seem to think he needed [speech therapy].”
Accordingly, the trial court's finding that defendant unilaterally
removed the minor child from speech therapy and did not seek to
complete his therapy was supported by competent evidence.
Defendant further argues no evidence supported the trial
court's finding that the minor child's two episodes on pneumonia
while living in Virginia “support[ed] [p]laintiff's contention that
the [d]efendant's residence is not properly heated.” After
reviewing the evidence, because we determine “there is no
[competent] evidence of record to dispute [this] finding of fact .
. . [and] none to support it[,] . . . we [will] not consider [this]
finding of fact . . . in our review of the trial court's conclusion
of law . . . .” Raynor v. Odom, 124 N.C. App. 724, 730, 478 S.E.2d
655, 659 (1996).
II. Change in Circumstances
Defendant next argues the trial court erred in concluding that
a substantial change in circumstances affecting the minor child had
occurred since entry of the initial child custody order.
Specifically, defendant argues no evidence supports the trialcourt's conclusion that there was a substantial change in
circumstances, no evidence supports a connection between a change
in circumstances and the minor child's welfare, and the trial court
failed to make findings regarding the connection between a change
in circumstances and the minor child's welfare.
“[A] trial court may order a modification of an existing child
custody order between two natural parents if the party moving for
modification shows that a 'substantial change of circumstances
affecting the welfare of the child' warrants a change in custody.”
Shipman v. Shipman, 357 N.C. 471, 473, 586 S.E.2d 250, 253 (2003)
(quoting Pulliam v. Smith, 348 N.C. 616, 619, 501 S.E.2d 898, 899
(1998)). See N.C. Gen. Stat. § 50-13.7(a) (2003) (providing that
custody orders “may be modified or vacated at any time, upon motion
in the cause and a showing of changed circumstances by either
party”). It is well established that a trial court's conclusions
of law will be upheld if supported by its findings of fact.
Shipman, 357 N.C. at 475, 586 S.E.2d at 254. A trial court's
conclusion that a substantial change of circumstances occurred
affecting the welfare of a child will be upheld where the effects
on the child's welfare are self-evident. Id., 357 N.C. at 478-79,
586 S.E.2d at 256. Where the effects of the substantial change in
circumstances on the welfare of a child are not self-evident, “the
evidence must demonstrate a connection between the substantial
change in circumstances and the welfare of the child, and . . . the
trial court [must] make findings of fact regarding that
connection.” Id., 357 N.C. at 478, 586 S.E.2d at 255. Defendant first attacks the trial court's conclusion that her
unilateral removal of the minor child from speech therapy was a
substantial change affecting the child's welfare. We note that the
trial court made no findings regarding the connection between
defendant's removal of the minor child from speech therapy and the
effect on his welfare. However, in the instant case, the effects
on the minor child were self-evident. The trial court found “the
Defendant unilaterally discontinued her son's speech therapy and
has not sought any such therapy since, contending that the minor
child's teachers did not request that she seek such therapy.” This
finding is supported by competent evidence. The record and
transcripts show the minor child, a five-year-old, started school
with limited language skills. Nonetheless, defendant removed the
minor child from speech therapy prior to completion, without
consulting a qualified speech therapist to determine whether he
needed to finish therapy or be enrolled in another speech therapy
program. Cf. Trivette v. Trivette, 162 N.C. App. 55, 61, 590
S.E.2d 298, 303-04 (2004) (stating that evidence the defendant “had
interfered with his children's counseling, even to the extent of
canceling a session when the children were not scheduled to be with
him” supported the conclusion that “a substantial change of
circumstances affecting the welfare of the minor children had
occurred”). We, therefore, hold that the trial court's competent
finding supports its conclusion of law.
Defendant next challenges the trial court's conclusion that
defendant's unstable living arrangements constituted a substantialchange of circumstances. The trial court made findings of fact
based on competent evidence that defendant “failed to provide a
stable living arrangement for the [minor] child” and that the minor
child's welfare necessitated “a more consistent living
arrangement.” As discussed above, plaintiff introduced evidence of
defendant's unstable living arrangements including defendant's
multiple moves and her return to the mobile home owned by Blalock,
where she paid no rent and would have to leave upon Blalock's
request. Plaintiff further testified that the minor child, who was
staying with him during summer vacation, was upset upon learning he
and defendant would again be moving into Blalock's mobile home.
Accordingly, the trial court's finding that the minor child
required “a more consistent living arrangement” and related
findings supported its conclusion that defendant's unstable living
arrangements constituted a substantial change of circumstances
affecting the minor child's welfare. Accord Shipman, 357 N.C. at
475, 586 S.E.2d at 254 (recognizing that the custodial parent's
frequent moves and dependence on others for housing as well as
other circumstances were substantial changes, which when taken
together had a self-evident effect on the child's welfare);
Flanders v. Gabriel, 110 N.C. App. 438, 441, 429 S.E.2d 611, 613
(1993) (recognizing the importance of “a stable and continuous
environment” to a child's best interests).
Defendant also contends the trial court erred in concluding
her reduction in wages after moving to Virginia was “a substantial
change in circumstances affecting the needs and welfare of theminor child.” Competent evidence showed that prior to moving to
Virginia, defendant worked thirty-four hours per week earning $5.45
per hour. However, after her move, although she testified she was
capable of working full-time and earning minimum wage, defendant
worked no more than a total of three and one-half weeks for the
entire year. Defendant's tax return showed her total income was
approximately $10,000.00 and consisted of approximately: $3,000.00
in alimony, $6,250.00 from a deceased husband's annuity, and
$794.00 in wages for the year. The alimony payments were scheduled
to terminate in March 2004, and defendant had reduced her wages by
approximately $9,000.00 from the prior year. The trial court made
findings based on this competent evidence that “[d]efendant earned
less than $800.00 in wages” and “could not have worked more than
three and one-half weeks total during the entire year of 2002.”
This finding supports the trial court's conclusion that defendant's
reduction in wages was a substantial change in circumstances. See
White v. White, 90 N.C. App. 553, 558, 369 S.E.2d 92, 95
(recognizing that a finding regarding insufficient income supports
a trial court's conclusion that there has been a substantial change
in circumstances sufficient to modify custody). See also Shipman,
357 N.C. at 480, 586 S.E.2d at 257 (holding that obtaining
employment can amount to a substantial change of circumstances
positively affecting a minor child).
Defendant next challenges the trial court's conclusion that
exposure to violent family confrontations constituted a substantial
change of circumstances affecting the minor child's welfare. Defendant had a violent argument with her adult daughter in front
of the minor child that resulted in injury to the defendant, and
upon viewing the altercation, the minor child was scared and
crying. As such, the trial court's finding “that the minor child
was crying, scared and upset at having witnessed this violent
episode” was supported by competent evidence. This finding fully
supported the conclusion that exposure to violent family
confrontations constituted a substantial change of circumstances
affecting the minor child's welfare.
III. Best interests
Defendant next argues that the trial court abused its
discretion in concluding that a change in custody was in the minor
child's best interests. If the trial court determines that a
substantial change in circumstances affecting the welfare of the
child has occurred, it must determine whether a change in custody
is in the best interests of the child. Evans v. Evans, 138 N.C.
App. 135, 139, 530 S.E.2d 576, 578-79 (2000). “In making the best
interest decision, the trial court is vested with broad discretion
and can be reversed only upon a showing of abuse of discretion.”
Ramirez-Barker v. Barker, 107 N.C. App. 71, 79, 418 S.E.2d 675, 680
(1992), overruled on other grounds, Pulliam v. Smith, 348 N.C. 616,
501 S.E.2d 898 (1998). An abuse of discretion occurs when a trial
court's actions “are manifestly unsupported by reason.” White v.
White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). In light of
defendant's numerous moves, unstable living conditions, failure to
work despite her ability to maintain full-time employment, removalof the minor child from speech therapy, and violent altercations in
front of the child, we hold that the trial court did not abuse its
discretion in determining that a change in custody was in the minor
child's best interests.
IV. Conclusion
In sum, we hold the trial court's findings of fact, with the
above mentioned exception, were supported by competent evidence,
and those findings of fact supported its conclusion that “the
various factors set forth [in the order] . . . individually and
cumulatively constitute[d] a substantial change in circumstances
affecting the needs and welfare of the minor child, since entry of
the [initial] Custody Order.” We further hold the trial court did
not abuse its discretion in concluding that the best interests of
the minor child required modification of the initial custody order
by placing the minor child in the care and custody of plaintiff so
that “he can enjoy a more consistent living arrangement” in his
former home in North Carolina.
We have carefully considered defendant's remaining arguments
and consider them to be without merit. For the foregoing reasons,
the trial court's order modifying custody of the minor child is
affirmed.
Affirmed.
Judges HUNTER and JACKSON concur.
Report per Rule 30(e).
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