Appeal by defendant from an order entered 3 December 2004 by
Judge Wendy M. Enochs in Guilford County District Court. Heard in
the Court of Appeals 16 November 2005.
Neill A. Jennings, Jr., P.A. for plaintiff-appellee.
Smith, James, Rowlett & Cohen, LLP, by Seth R. Cohen, for
defendant-appellant.
BRYANT, Judge.
Ziad Hashem Najjar (defendant/father) appeals an order entered
3 December 2004 denying his Motion in the Cause For Change of Child
Custody and Support filed 4 November 2004. For the reasons below
we reverse and remand this case for further findings of fact.
Facts & Procedural History
On 12 March 2003 Deborah Jackson Najjar (plaintiff/mother)
filed a Complaint against defendant setting out claims,
inter alia,
for custody, child support, post-separation support, alimony and
divorce from bed and board. On 9 May 2003, the parties entered
into a Consent Order which provided that they have joint custody of
their three minor children, with plaintiff having primary physical
custody and defendant having visitation with the minor childrenevery other weekend. The Consent Order also stated that, “Neither
party will take one or all of the minor children out of the
territorial jurisdiction of the State of North Carolina or the
United States without written permission of the other party.” All
other claims in the Complaint were dismissed with prejudice.
In the summer of 2004, plaintiff agreed to allow defendant to
take their children to Jordan to visit his family. While defendant
and the children were in Jordan, plaintiff relocated to Texas to
accept a teaching position. Defendant returned from Jordan with
the children on 4 August 2004, but refused to return the children
to plaintiff's custody. On 5 August 2004, plaintiff filed a Motion
for Emergency Custody in attempt to have the children returned to
her physical custody. The Motion was denied, and the parties were
referred to mediation, which was unsuccessful.
On 4 November 2004, defendant filed a Motion in the Cause For
Change of Child Custody and Support. Defendant's motion was heard
before the Honorable Wendy M. Enochs in Guilford County District
Court on 3 December 2004. On 4 December 2004, Judge Enochs entered
an order denying defendant's motion, leaving primary physical
custody of the children with plaintiff but modifying the visitation
arrangements of the initial Consent Order. Defendant appeals.
_________________________
The dispositive issue in the case
sub judice is whether the
trial court's order makes sufficient findings to support the change
to the visitation. In its Order, the trial court makes the
following findings of fact: 10. A substantial change in circumstances has
occurred since the entry of the last
Order in that the prior Order is no
longer functional since the Plaintiff has
relocated to Texas.
11. Both parties are fit and proper to have
joint legal custody of their three minor
children. It is in the children's best
interest that the Mother and Father share
joint legal custody.
12. The Mother is a fit and proper person to
have primary physical custody of the
three minor children. It is in the
children's best interest that the Mother
continue to have primary physical custody
of the three minor children as previously
ordered.
13. The Father is a fit and proper person to
have visitation with the three minor
children. It is in the children's best
interest that the Father continue to have
visitation with the three minor children.
Based upon its finding of a substantial change in circumstances,
the trial court subsequently changed defendant's visitation rights:
5. Beginning 2005, the Defendant is to have
visitation with the three minor children
as follows:
a. SUMMERS: Each summer from 4:00
pm on the third Saturday in
June until 4:00 on the second
Saturday in August.
b. WINTER BREAK: Each holiday
recess from 4:00 PM on the
Sunday after school is
dismissed until 4:00 PM on the
Saturday before school resumes.
6. The Plaintiff is responsible for
transporting the children to and from the
Defendant's home for the above stated
visitation periods.
7. The Defendant may visit with the children
during their school Spring break recessof even numbered years, so long as he
provides the Plaintiff with 30 days
notice. He will be responsible for
transportation to and from the Plaintiffs
home for these visits.
Under section 50-13.7 of the North Carolina General Statutes,
a party is required to demonstrate changed circumstances in order
to be granted a modification of an existing custody order. N.C.
Gen. Stat. § 50-13.7(a) (2003). “The word custody under the
statute also includes visitation.”
Savani v. Savani, 102 N.C. App.
496, 505, 403 S.E.2d 900, 906 (1991);
see also, Clark v. Clark, 294
N.C. 554, 576, 243 S.E.2d 129, 142 (1978). This statutory
requirement has been modified by case law such that:
Once the custody of a minor child is
determined by a court, that order cannot be
altered until it is determined (1) that there
has been a substantial change in circumstances
affecting the welfare of the child and (2) a
change in custody is in the best interest of
the child. A party seeking modification of a
child custody order bears the burden of
proving the existence of a substantial change
in circumstances affecting the welfare of the
child.
Evans v. Evans, 138 N.C. App. 135, 139, 530 S.E.2d 576, 578-79
(2000) (citations omitted). “The required change in circumstances
need not have adverse effects on the child. A showing of a change
in circumstances that is, or is likely to be, beneficial to the
child may also warrant a change in custody.”
Browning v. Helff,
136 N.C. App. 420, 423, 524 S.E.2d 95, 98 (2000) (citations and
quotations omitted). “[A] substantial change in circumstances
affecting the welfare of a child must be supported by findings offact based on competent evidence.”
White v. White, 90 N.C. App.
553, 557, 369 S.E.2d 92, 95 (1988).
In the instant case, the trial court found the prior Order was
no longer functional because plaintiff moved to Texas. The trial
court held this finding to be the substantial change in
circumstances required to modify the prior Order. However, the
trial court made no findings as to whether this substantial change
in circumstances
affected the welfare of the minor children. “[A]
change in a custodial parent's residence is not itself a
substantial change in circumstances justifying a modification of a
custody decree.”
Ramirez-Barker v. Barker, 107 N.C. App. 71, 78,
418 S.E.2d 675, 679 (1992),
overruled on other grounds by Pulliam
v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998).
“When the [trial] court fails to find facts so that [an
appellate c]ourt can determine that the order is adequately
supported by competent evidence and the welfare of the child
subserved, then the order entered thereon must be vacated and the
case remanded for detailed findings of fact.”
Crosby v. Crosby,
272 N.C. 235, 238-39, 158 S.E.2d 77, 80 (1967) (citation omitted);
see also, Browning, 136 N.C. App. at 425, 524 S.E.2d at 98-99
(vacating the trial court's order when the court found a change in
circumstances occurred but did not find “whether plaintiff had met
her burden of showing the effect, if any, of such change upon the
welfare of the children”). Accordingly, we vacate the trial
court's order and remand for further findings of fact. We leave itto the trial court's discretion to decide whether to hear
additional evidence prior to making new findings of fact.
Vacated and remanded for further findings of fact.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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