Appeal by defendant from order dated 2 September 2004 by Judge
Wayne L. Michael in District Court, Iredell County. Heard in the
Court of Appeals 28 November 2005.
No brief filed by plaintiff-appellee.
Judy Dalton for defendant-appellant.
David L. LaBrie (plaintiff) and Patricia Ann McGlone
(defendant) (collectively, the parties) are the parents of a minor
child (the child) born 30 December 1992. The parties were never
married but lived together for approximately nineteen years. The
parties and the child moved to Iredell County from Dover, New
Hampshire, in April 2002.
Plaintiff obtained an emergency ex parte custody order
awarding him temporary custody of the child in September 2003.
Pursuant to a hearing held 26 September 2003, a temporary custody
order (temporary custody order) was entered, granting the parties
joint temporary custody of the child, with defendant having primary
physical custody. The temporary custody order also ordered thefollowing: (1) the parties were to adhere to the detailed schedule
of custody and visitation set forth in the temporary custody order;
(2) plaintiff was to obtain a substance abuse assessment and follow
through with any recommended treatment; (3) both parties were to
attend anger management classes; and (4) a guardian ad litem was
appointed to represent the child.
The temporary custody order was subsequently modified by a
consent order entered 5 February 2004. Under the consent order,
the parties maintained joint legal custody of the child, but
primary physical custody changed to plaintiff. The consent order
set forth a detailed schedule of visitation between defendant and
the child. The consent order also instructed defendant to convey
one-half interest in the former family residence to plaintiff, at
which time plaintiff would dismiss pending legal actions against
defendant. Defendant was also instructed not to remove any items
from the residence. After entry of the consent order, both parties
filed motions for contempt, alleging violations of provisions of
the consent order not pertaining to custody. Plaintiff also
requested modification of child custody and child support. A
hearing was held on both parties' motions on 24 August 2004.
At the time of the hearing, the child was eleven years old.
The trial court interviewed the child in chambers with the consent
of both parties. The trial court heard testimony from both
parties, the child's counselor, plaintiff's adult daughter, and
defendant's sister. The trial court dismissed both parties'
motions for contempt. The trial court made the following findingsof fact relevant to the modification of custody:
13. Since the entry of [the] Consent Order,
the Plaintiff has maintained primary custody
of the minor child and has provided a good and
suitable home for him. The Plaintiff and [the
child] have a very close relationship.
14. The Plaintiff has expressed a desire to
move back to Dover, New Hampshire, with [the
child], where [the child] has lived most of
his life. The Plaintiff believes there would
be more economic opportunities for him in that
area, and members of both parties' families
live in that area including [the child's]
maternal grandparents, and [defendant's]
sisters, and numerous relatives on
[plaintiff's] side of the family.
15. With the consent of the parties, the
Court spoke with [the child], who is eleven
years old, in chambers with the parties'
attorneys present. [The child] appeared to the
Court to be a mature and intelligent boy who
stated a strong desire to live primarily with
his father and to move with his father to New
Hampshire should his father desire to move
there. It is also clear to the Court from
talking with [the child] and from evidence
presented that the Defendant and various
members of her family make derogatory remarks
about the Plaintiff to [the child] which puts
[the child] in the uncomfortable position of
having to defend his father to them.
16. There is virtually no communication
between the Plaintiff and the Defendant as
they have not been able to resolve the hostile
feeling they obviously have for each other
arising out of their separation. It appears
to the Court that the hostile feelings between
the parties, and particularly the hostility
felt by the Defendant towards the Plaintiff
has rendered the current joint custody
agreement unworkable out of consideration of
[the child's] best interests. The Court finds
that, therefore, since the entry of the
Consent Order there has occurred a substantial
change of circumstances justifying a
modification of said custody by placing [the
child's] sole custody and control with the
Plaintiff out of [the child's] best interests.
Based on these findings of fact, the trial court concluded,
inter alia, that plaintiff should have sole custody of the child,
subject to reasonable visitation privileges by defendant.
Specifically, the trial court ordered that, in the event plaintiff
relocated to New Hampshire, defendant would have monthly
visitation, a three-week visitation in the summer, and Christmas
vacation with the child. Defendant appeals. On appeal, defendant
brings forth two assignments of error. Defendant's remaining
assignments of error not argued in her brief are deemed abandoned.
N.C.R. App. P. 28(b)(6).
Defendant first argues there was insufficient evidence to
support the trial court's finding of a substantial change of
circumstances warranting modification of custody. We disagree.
It is well established that a trial court may order a
modification of an existing child custody order only if 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." Evans v. Evans
138 N.C. App. 135, 139, 530 S.E.2d 576, 578-79 (2000) (internal
citations omitted). In reviewing a trial court's order modifying
child custody, an appellate court "must examine the trial court's
findings of fact to determine whether they are supported by
substantial evidence. Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion." Shipman v. Shipman
357 N.C. 471, 474, 586 S.E.2d250, 253 (2003) (internal citations and quotations omitted). "It
is a long-standing rule that the trial court is vested with broad
discretion in cases involving child custody." Pulliam v. Smith
348 N.C. 616, 625, 501 S.E.2d 898, 903 (1998).
This discretion is based upon the trial
court's 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. Accordingly, should we conclude that
there is substantial evidence in the record to
support the trial court's findings of fact,
such findings are conclusive on appeal, even
if record evidence might sustain findings to
, 357 N.C. at 474-75, 586 S.E.2d at 253-54 (internal
citations and quotations omitted).
In the present case, plaintiff filed a motion requesting
modification of the custody arrangement set forth in the consent
order. Therefore, plaintiff had the burden of proving that a
substantial change in circumstances had occurred since 5 February
2004 and that the changed circumstances had affected the welfare of
In plaintiff's motion for modification, plaintiff
alleged several changed circumstances: (1) defendant's "erratic"
exercise of visitation privileges; (2) defendant's "harassing and
uncooperative attitude"; (3) defendant's "constant and numerous
comments of a derogatory nature regarding the plaintiff"; and (4)
plaintiff's intention to relocate to New Hampshire.
From the language of its order, the trial court seemed to find
the substantial change in circumstances to be a lack of
communication stemming from hostility between the parties,particularly on the part of defendant. In finding number sixteen,
the trial court discussed at length the parties' lack of
communication and their hostility, finding that "there is virtually
no communication" between the parties and that "the hostile
feelings between the parties, and particularly the hostility felt
by the Defendant towards the Plaintiff has rendered the current
joint custody agreement unworkable." Finding sixteen concluded:
"The Court finds that, therefore, since the entry of the Consent
Order there has occurred a substantial change of circumstances
justifying a modification of said custody by placing [the child's]
sole custody and control with the Plaintiff out of [the child's]
A review of the record shows plenary evidence to support the
trial court's finding of a substantial change of circumstances.
Plaintiff testified he would not answer defendant's phone calls
because "[he didn't] need to be screamed at and yelled at or
anything else." As a result of the parties' lack of communication,
the child spoke directly with defendant to arrange visitation.
Plaintiff testified defendant's exercise of her evening visitation
privilege was "erratic" because defendant "never had her [work]
schedule" and "didn't know which day she wanted [the child]."
Defendant testified that she tried for two months to arrange
a weeknight visit with the child, but plaintiff would not take
defendant's phone calls to arrange a visit. Defendant also
testified that she missed several weekend visitations because
plaintiff would not take her phone calls. Defendant testifiedthat, during visitation exchanges, plaintiff would give her "the
finger" and would "mouth gestures" to her. Plaintiff would also
curse at defendant saying "F--- you, you piece of sh--" and would
swerve his vehicle toward defendant. Defendant testified that
plaintiff swerved toward her vehicle while plaintiff had the child
in the vehicle with him.
Defendant's sister admitted to leaving a message on
plaintiff's cell phone in which she referred to plaintiff as an
"ass hole." Defendant's sister also testified that defendant's
mother made derogatory remarks about plaintiff in the presence of
When questioned about a change in the child's relationship
with defendant since the February 2004 consent order, the child's
counselor testified that since September 2003 the child's
relationship with defendant had improved. The counselor explained
that he "[didn't] see any negative effect on [the child] any longer
concerning those visits except for the occasion[al] what [the
child] describes as fight[s] that [the parties] have[.]" The trial
court asked the counselor if he was "aware of whether the situation
. . . concerning telephone contact with the other parent [was]
causing any anxiety or concerns" for the child. The counselor
It is. We touched on it for the first time at
our last session, and I wasn't clear what [the
child's] tension and anxiety was about. He
couldn't articulate it really well, but it was
clear to me that he was uncomfortable taking
phone calls at times from his Mom. . . .
From this evidence, the trial court determined there was achange in circumstances sufficient to justify modification of
custody. Further, the trial court found that the child was "put
. . . in the uncomfortable position of having to defend his father"
when defendant and her family members made derogatory statements
about plaintiff. This finding of fact of an effect on the child's
welfare, not assigned as error by defendant, is binding on appeal.
See, e.g., Koufman v. Koufman
, 330 N.C. 93, 97, 408 S.E.2d 729, 731
(1991) (holding that a finding is binding on appeal where no
exception is taken to the finding). This finding, as well as
testimony by the child's counselor that the child was
"uncomfortable" taking phone calls from defendant and experienced
"tension and anxiety," support the determination that the
substantial change of circumstances affected the welfare of the
child. With this determination, the trial court was empowered to
modify the prior custody order if such modification was in the best
interest of the child. See Evans
, 138 N.C. App. at 139, 530 S.E.2d
Defendant next argues the trial court abused its discretion in
awarding plaintiff sole custody of the child. The trial court is
given broad discretion in determining the custodial setting that
will best promote the interest and welfare of minor children. In
, 305 N.C. 640, 645, 290 S.E.2d 664, 667 (1982). Since the
trial court had the opportunity to personally observe the parties,
hear the witnesses, and determine credibility, the trial court's
decision should not be reversed absent a showing of an abuse of
discretion. See id
. Defendant argues that the trial court erred in disregarding "a
substantial portion" of defendant's testimony regarding defendant's
wishes and her observation of the child. However, defendant cites
no persuasive authority to support her contention. Moreover, it is
well established that "it is within the trial court's discretion to
determine the weight and credibility that should be given to all
evidence that is presented during [a] trial." Phelps v. Phelps
337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994). The evidence
presented during the hearing included testimony by the child's
counselor that the child was "very connected" to plaintiff. In the
counselor's opinion, the child was mature enough to express himself
with regard to his desires and wishes about his living
arrangements. During the trial court's in camera interview with
the child, the child expressed a "strong" desire to live primarily
with plaintiff. In making a custody determination, a trial court
may properly consider the desire of a child of "suitable age and
discretion." In re Peal
, 305 N.C. at 645, 290 S.E.2d 667; see,
e.g., In re Custody of Stancil
, 10 N.C. App. 545, 548, 179 S.E.2d
844, 846 (1971) (holding that "[a] child's preference as to who
shall have his custody is not controlling; however, the trial judge
should consider the wishes of a ten-year-old child in making his
determination."). In light of this evidence, we find no abuse of
discretion in the trial court's decision that awarding custody to
plaintiff was in the best interest of the child.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).
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