An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1586


Filed: 20 September 2005


v .                         Robeson County
                            No. 97 CVD 1691

    Appeal by defendant from judgment entered 21 June 2004 by Judge Herbert L. Richardson in Robeson County District Court. Heard in the Court of Appeals 18 August 2005.

    Shela Parker Rabon, pro se.

    Rosen Divorce, by Ketan P. Soni and Jana B. Sperry, for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Jonathan E. Caulder, and plaintiff, Shelia Parker Rabon, are the biological parents of E.P. E.P. was born out of wedlock on 21 November 1996. Plaintiff subsequently filed a complaint seeking a determination that defendant was the biological father of the child and ordering him to pay child support. Defendant filed a counterclaim seeking visitation in the event he was found to be the father. On 6 May 1998, the trial court entered a temporary order requiring defendant to pay $325.00 monthly in child support based on the parties income as of 7 July 1997. Following the results of a paternity test, the trial court enteredan order making permanent the 6 May 1998 order of child support and granting defendant visitation with the child.
    Things went smoothly for two years after entry of this order, with plaintiff and defendant enjoying a good relationship. Defendant testified things deteriorated in late 2000 when plaintiff began living with John McArthur. Defendant became concerned after hearing rumors that McArthur was violent and would destroy things in the home while his daughter was present. Defendant testified he had multiple discussions with plaintiff regarding his concerns. In May 2001, plaintiff and McArthur were in an accident, in which McArthur was killed and plaintiff seriously injured. Hospital records introduced at trial showed plaintiff had cocaine in her system at the time of the accident.
    Defendant quit his job at a Chapel Hill hospital and moved to Lumberton to be closer to his daughter. While the court order granted defendant visitation every other weekend, plaintiff permitted defendant much more access to his daughter. From March 2002 through March 2003, the minor child spent 144 nights with defendant. In October 2003, E.P. would spend anywhere from one to three nights a week with defendant. Plaintiff's son, Donnie Rabon, also kept the minor child and would often take and pick her up from school.
    Plaintiff subsequently married Chris Pate. However, they divorced due to his drug use and violent behavior. Several witnesses testified that plaintiff drank while around her daughter, although plaintiff denied doing so. Plaintiff's stepdaughter,Victoria Pate, testified that plaintiff and E.P. had a good relationship and that plaintiff took care of her daughter and helped her with her homework.
    Ms. Sandra Pridgen, the school social worker for Robeson County, testified that during the 2002-2003 school year, E.P. had seventeen absences, six of which were unexcused, and twelve tardies. Ms. Pridgen admitted plaintiff was cooperative and assured her she would try to do better. Despite her absences and tardies, E.P. performed well on standardized testing. However, she did not do as well academically in the classroom as her teacher thought she should .
    On 29 May 2003, defendant filed a motion to modify the prior custody order, seeking custody of his daughter. Following the filing of this motion, plaintiff significantly reduced the time E.P. spent with defendant. In addition, she made it more difficult for defendant to exercise the original visitation granted and ultimately moved to South Carolina without notifying defendant. Further, plaintiff moved at least four times since August 2001.
    The matter came on for hearing at the 10 June 2004 session of the Robeson County District Court. The trial court denied defendant's motion, ruling there had not been a substantial change in circumstances that would warrant a change in custody. The trial court modified the visitation provisions of the original order granting defendant increased visitation so that he would see his daughter every other weekend, as well as six consecutive weeks in the summer. The trial court granted plaintiff's motion to increasechild support, ordering defendant to pay $631.00 per month. Defendant appeals.
    In defendant's first argument he contends the trial court erred in denying his motion for a change in custody as there existed a substantial change in circumstances since the original order was entered. We disagree.
    A trial court may modify an existing child custody order between two natural parents where there is a “substantial change of circumstances affecting the welfare of the child,” which warrants a change in custody. Shipman v. Shipman, 357 N.C. 471, 473, 586 S.E.2d 250, 253 (2003) (citations omitted). The party moving for modification bears the burden of proving that such a change has occurred between the time the order was entered and the time of the hearing on their motion. Id; Crosby v. Crosby, 272 N.C. 235, 237, 158 S.E.2d 77, 79 (1967). Determining whether to modify an existing custody order involves a two-part inquiry. First, the trial court must determine whether there was a change in circumstances, and if so, whether such a change affected the minor child. Shipman, 357 N.C. at 474, 586 S.E.2d at 253. It is only after the trial court has determined that a substantial change in circumstance has occurred affecting the minor child that it considers whether a change in custody would be in the minor child's best interests. Id.
     In reviewing the trial court's ruling on a motion for modification of child custody, this Court must “examine the trial court's findings of fact to determine whether they are supported bysubstantial evidence.” Id. “'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (citations omitted). Matters concerning child custody are vested within the trial court's discretion and will not be overturned absent a showing that the decision was manifestly unsupported by reason. Pulliam v. Smith, 348 N.C. 616, 625, 501 S.E.2d 898, 902 (1998). The reason trial courts are afforded such wide discretion is because the judge has the “opportunity to see the parties; to hear the witnesses; and to detect tenors, tones, and flavors that are lost in the bare printed record read months later by appellate judges.” Shipman, 357 N.C. at 474, 586 S.E.2d at 253 (citations and internal quotation marks omitted). As a result, if the record contains substantial evidence to support the court's findings of fact, those findings will be deemed conclusive on appeal, even if there is evidence in the record which might also support findings to the contrary. Pulliam, 348 N.C. at 625, 501 S.E.2d at 903.
    In this case, following the presentation of evidence, the trial court concluded that defendant had failed to demonstrate a substantial change in circumstances justifying a modification of custody. In support of its conclusion, the trial court found that despite the minor child performing at an academic level less than average for her capabilities, she was “well adjusted and well provided for in the family structure in which she is living.” The court also found that despite some of plaintiff's poor decisions, such as moving the minor child multiple times in a short period oftime and her questionable judgment in choosing relationships with men, the minor child is “bright and resilient, [and] has done well.” The minor child's teachers testified that E.P. was well- behaved at school, she interacted well with the other children, and came to school clean and well-fed. The record demonstrates that the trial court was keenly aware of the legal standard applicable to cases involving modification of custody and weighed the evidence accordingly. Thus, even if there was evidence to support a finding of substantial change in circumstances, there is ample evidence in the record to support the trial court's finding that the change did not affect the minor child. In light of the trial judge's careful and deliberate reasoning, we are unable to say that he abused his discretion in denying defendant's motion to modify custody. This argument is overruled.
    In defendant's second argument, he contends the trial court erred by increasing his child support obligation. We disagree.
    The trial court may modify an order for support of a minor child at any time upon a showing by the moving party of changed circumstances. N.C. Gen. Stat. § 50-13.7 (2004). The Child Support Guidelines provide that:
        In any proceeding to modify an existing order that is three years old or older, a difference of 15% or more between the amount of the existing order and the amount of child support resulting from application of the guidelines . . . shall be presumed to constitute a substantial change of circumstances warranting modification.
N.C. Child Support Guidelines, 2005 Ann. R. N.C. 51.    Here, the existing order was entered in 1997 and is clearly over three old. In the prior order, defendant was required to pay $325.00 in child support. Under the current guidelines, defendant is required to pay $631.00, which is more than a fifteen percent deviation. Therefore, the presumption of a substantial change in circumstance arises, warranting the modification of the existing order. Accordingly, the trial court did not err in granting plaintiff's motion to increase defendant's child support obligation.
    Judges HUDSON and JACKSON concur.
    Report per Rule 30(e).

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