An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-271


Filed: 15 November 2005


v .                         Anson County
                            No. 03-CVD-568

    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 plaintiff-appellee.

        Hosford & Hosford, by Sofie W. Hosford, for the defendant-appellant.

    BRYANT, Judge.

    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 appeals.


    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 inter alia:
            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 jurisdiction.
    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 tendencies.

        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 overruled.
    Judges HUDSON and CALABRIA concur.
    Report per Rule 30(e).

Footnote: 1
    Initials are used to protect the identity of the juveniles.

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