SHELA PARKER RABON,
Plaintiff,
v
.
Robeson County
No. 97 CVD 1691
JONATHAN E. CAULDER,
Defendant.
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.
AFFIRMED.
Judges HUDSON and JACKSON concur.
Report per Rule 30(e).
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