Appeal by defendant from an order entered 15 September 2004 by
Judge Hunt Gwyn in Anson County District Court. Heard in the Court
of Appeals 12 October 2005.
Brown & Associates, by Donald M. Brown, Jr., for the
Hosford & Hosford, by Sofie W. Hosford, for the
Gwendolen Anne Ratliff (defendant-mother) appeals from an
order entered 15 September 2004 granting primary custody of her two
sons to Gregory Scott Carpenter (plaintiff-father).
Defendant and plaintiff were married on 10 January 1986 and
have two sons: N.S.C.
(See footnote 1)
(age 18) and R.J.C. (age 14). The parties
separated on 20 July 1992 and defendant had primary custody of the
children pursuant to a court order until 20 August 2004.
In November 2003, defendant moved from Anson County to Oak
Island to become the Director of Special Needs Transportation inthe Brunswick County School System. In her new position, defendant
was paid a salary of $39,000 annually, plus bonuses and she
received a vehicle. In her former position with Anson County
School System, defendant had earned approximately $24,000 annually.
At the time of the hearing of this matter, N.S.C. was eighteen
years old, but due to his mild mental retardation, eligible to
remain in high school for an additional three years. R.J.C. cared
for his older brother and often answered questions on his behalf.
N.S.C. and R.J.C. had aunts and uncles and grandparents on both
sides of the family that lived in Anson County, a short distance
from plaintiff's home.
At the custody hearing, Dr. John Simpson was admitted as an
expert in child psychology. Dr. Simpson testified that N.S.C. was
mildly retarded and that he showed signs of autism based on
problems communicating and responding emotionally. Dr. Simpson
also testified that N.S.C.'s self-care skills and ability to
function needed development and that he would need a great deal of
care and assistance now and later in life. Dr. Simpson testified
he doubted that N.S.C. would ever live or work independently.
As for R.J.C., Dr. Simpson testified that he appeared very
attached to his home and his family for a fourteen-year-old boy.
R.J.C. enjoyed sports, fishing and country music, but exhibited
signs of anxiety related to this custody matter. R.J.C. stated he
wanted both his parents to live in Anson County and to be close to
their extended family. Dr. Simpson also testified that the move to
Brunswick County contributed to R.J.C.'s elevated anxiety levelwhich impacted his school performance, resulting in his receiving
lower grades in the Brunswick County School System.
The trial court also heard from plaintiff and defendant on
several aspects of the boys' daily lives including school, health
care and extracurricular activities. After hearing the evidence,
the trial court awarded plaintiff primary custody. Defendant
On appeal, defendant argues the trial court erred in: (I)
finding that a substantial change in circumstances existed and (II)
entering a custody order for the parties' eighteen-year-old son
without finding and concluding he was incompetent.
Defendant first argues the trial court erred in finding that
a substantial change in circumstances existed which adversely
affected the children.
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) (2003). 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). Here the trial court stated the sole issue before this court
is whether there has been a substantial change in circumstances as
recognized by the law that negatively impacts the welfare of the
two minor boys. After hearing testimony from plaintiff,
defendant, Dr. Simpson and holding an in-camera interview with
N.S.C. and R.J.C., the trial court found the boys' best interests
were not served while living in Brunswick County in their mother's
custody. Specifically, the trial court found that [R.J.C. and
N.S.C.] derive sustenance from day-to-day interaction with their
extended family in Anson County and the virtue of their entire
lives were rooted, invested, and attached to Anson County.
Further, the trial court found that while defendant's move was for
benign reasons, it has nonetheless caused turmoil within the
family and has affected the well-being and best interests of the
children. Based on these findings, the trial court concluded
THAT the move to Oak Island by Defendant
has materially affected both [N.S.C. and
R.J.C.], and therefore, under the law of
the State of North Carolina, has
constituted a material change of
circumstances which may justify the
relief sought herein.
After thorough review of the record, we find the trial court's
findings and conclusions were based on competent evidence. The
trial court did not err in awarding plaintiff primary custody of
the boys. This assignment of error is overruled.
Defendant argues the trial court erred in entering a custody
order for the parties' eighteen-year-old son without finding and
concluding he was incompetent and subject to the trial court's
N.C. Gen. Stat. § 50-13.8 provides the rights of a person who
is mentally or physically incapable of self-support upon reaching
his majority shall be the same as a minor child for so long as he
remains mentally or physically incapable of self-support.
N.C.G.S. § 50-13.8 (2003).
In the case sub judice
, the trial court found:
23. THAT the eldest son, [N.S.C.], is
presently 18 years of age yet the court
has deemed him unemancipated due to
mental retardation and autistic
24. THAT [N.S.C.] remains with special needs
and it is the court's understanding that
he will always require outside care.
Defendant's argument that the trial court failed to specifically
find or conclude as a matter of law that [N.S.C.] was incompetent
is without merit. Incompetency is not the standard under N.C.G.S.
§ 50-13.8. N.S.C. is understood to be mentally retarded and unable
to provide self-support. N.S.C.'s inability, mentally and
physically to support himself was clearly recognized by the trial
court in the above findings. This assignment of error is
Judges HUDSON and CALABRIA concur.
Report per Rule 30(e).