KAREN M. MORRILL (now Harris),
Plaintiff
v
.
Rowan County
No. 99 CVD 1394
GREGORY P. MORRILL,
Defendant
The Law Office of Randell F. Hastings, by Randell F. Hastings,
for plaintiff-appellant.
Robert L. Inge for defendant-appellee.
HUNTER, Judge.
Karen M. Harris (“plaintiff”) appeals from an order of the
trial court denying her motion to modify an order of visitation and
dismissing as moot a motion to modify custody filed by her former
husband, Gregory P. Morrill (“defendant”). Plaintiff contends that
several of the trial court's findings are unsupported by
substantial evidence, and that these findings in turn do not
support its order. For the reasons stated herein, we affirm the
decision of the trial court.
Plaintiff and defendant were married on 3 February 1990 and
separated on 4 May 1998. Two children were born of the marriage:
Brittany, born 16 September 1991, and Ryan, born 1 April 1995. Theparties entered into a consent judgment filed 6 April 2000 in which
they agreed that plaintiff should have primary custody of the
children, with general and specific visitation privileges for
defendant. The consent judgment also provided that defendant
should pay monthly child support in the amount of $625.00.
On 8 June 2004, plaintiff filed a motion to modify the
existing consent judgment with respect to visitation. In her
motion, plaintiff alleged that she had remarried and that her
husband had obtained new employment as a pastor in Texas. As a
result, plaintiff intended to relocate to Texas and to take the
children with her. Plaintiff sought to modify the consent judgment
with respect to visitation in order to accommodate the planned
relocation.
Defendant filed a reply and counter-motion alleging that
plaintiff's anticipated move to Texas would adversely affect his
relationship with the children and would constitute a substantial
change in circumstances warranting a change in custody. Defendant
therefore requested that the trial court grant him custody of the
children.
Plaintiff's and defendant's motions came before the trial
court on 22 July 2004. After presentation of the evidence and
arguments by counsel, the trial court found and concluded that the
proposed relocation of the children would likely adversely affect
their welfare, and that it was not in the best interests of the
children to modify the existing visitation order. The trial court
therefore denied plaintiff's motion to modify visitation anddismissed defendant's motion to modify custody as moot. Plaintiff
appeals.
We note initially the proper standard of review for appeals
from custody decisions. “In cases involving child custody, the
trial court is vested with broad discretion.” Browning v. Helff,
136 N.C. App. 420, 423, 524 S.E.2d 95, 97 (2000). Child custody
determinations expressly include visitation rights. See id.; N.C.
Gen. Stat. § 50A-102(3) (2005). The trial court's decision will
not be upset on appeal absent a clear showing of abuse of
discretion. Browning, 136 N.C. App. at 423, 524 S.E.2d at 97. “A
trial court's findings of fact in a bench trial have the force of
a jury verdict and are conclusive on appeal if there is evidence to
support them.” Id. at 423, 524 S.E.2d at 98. The trial court's
conclusions of law are reviewable de novo, however. Id.
By her first assignment of error, plaintiff argues there was
insufficient evidence to support Findings of Fact Numbers 24 and
25, which provide as follows:
24. It would be expensive to fly two (2)
children and pay unaccompanied minor fees for
trips to North Carolina.
25. The household incomes of the parties
make it unlikely that the children could be
flown to North Carolina from Texas several
times a year for visits with their father.
Plaintiff contends there was insufficient evidence to support these
findings. We do not agree.
Plaintiff submitted various quotes from airline carriers
concerning fares for round-trip flights between several cities in
North Carolina and several cities in Texas. The quoted pricesranged from $203.00 to $305.00 per ticket. In addition, several of
the airline carriers required additional service fees if the
children traveled alone. For example, the quoted price for the
unaccompanied minor fee for US Airways ranged from $40.00 to $75.00
each way. Thus, at a minimum, the cost of flying the children
round-trip between North Carolina and Texas was $406.00, with a
maximum of $760.00. Although cost is always a relative matter,
such evidence in the instant case supports the trial court's
finding that it would be expensive to fly the children and pay
unaccompanied minor fees for trips to North Carolina.
There was also sufficient evidence to support the trial
court's finding that it was unlikely that the children could be
flown to North Carolina from Texas several times a year for visits
with their father. Plaintiff testified that the “package” offered
to her husband at his new position in Texas was $75,000.00.
According to exhibits, $36,500.00 of the package represented his
actual base salary, with the remainder being amounts allotted for
a housing allowance, insurance, and other benefits. Plaintiff's
husband earned “a little over [$]60,000.00” per year prior to
leaving his former employment. Plaintiff stated she currently
earned approximately $36,000.00 per year, but that she had no plans
to seek employment in Texas. Plaintiff agreed that the move to
Texas would result in a net loss of income to the family.
Moreover, plaintiff declined to pay for the children's trips back
to North Carolina, testifying instead that she “would hope we could
work that out.” Plaintiff further objects to Finding of Fact Number 27, which
states: “Should the children relocate to Texas, it is unlikely
that a realistic visitation schedule can be arranged which will
preserve and foster their great relationship with their father.”
Plaintiff argues this finding is unsupported by the evidence.
However, plaintiff did not object to any of the following findings:
9. There is currently a successful
custody-visitation arrangement in which both
parents have substantial contact with said
children.
. . .
11. The children are currently involved
in and excel in sporting activities and both
parents attend as many athletic events of the
children as their schedules allow.
12. The children's father attends school
open houses and Parent Teacher Organization
meetings. . . .
13. Relocation to Texas would eliminate
the ability of the children to have the
defendant involved in their schooling and
sporting events.
14. The defendant spends time each week
with the children on Tuesdays and provides
horseback riding lessons for Brittany.
. . .
16. Relocation to Texas would prevent
the frequent contact enjoyed between the
defendant and the children.
17. The children and the defendant have
an excellent and loving relationship.
. . .
26. Plaintiff believes the children
should not be away from her for more than a
week at a time and is not willing for thechildren to spend their entire summer break in
North Carolina with the defendant.
These findings, to which plaintiff did not object and are therefore
conclusive, establish that defendant and the children currently
have “an excellent and loving relationship” in which they enjoy
weekly contact with one another. Defendant is involved in the
children's school and sporting events. Relocation to Texas would
prevent defendant from being involved in these events, and would
prevent the frequent contact currently enjoyed between defendant
and the children. Plaintiff would not agree to the children being
away from her for more than one week at a time. Given these facts,
the trial court had substantial evidence to support its Finding of
Fact Number 27.
By her third assignment of error, plaintiff contends the trial
court erred in concluding that the proposed relocation would likely
adversely affect the welfare of the children. Plaintiff argues
this conclusion is unsupported by the findings. We disagree.
In addition to the above-listed findings of fact concerning
the detriment to defendant's relationship with his children should
the relocation take place, the trial court also found that:
10. The children have lived in the same
community all or nearly all their lives and
are thriving in said community.
. . .
18. The children have only been to Texas
one (1) time and do not know anyone in the
community other than the people they met at
church on one (1) occasion.
. . .
20. The children are excelling and
thriving in their current situation.
Plaintiff did not object to these findings. “[I]t will be a rare
case where the child will not be adversely affected when a
relocation of the custodial parent and child requires substantial
alteration of a successful custody-visitation arrangement in which
both parents have substantial contact with the child.”
Ramirez-Barker v. Barker, 107 N.C. App. 71, 79, 418 S.E.2d 675, 680
(1992) (concluding there was sufficient evidence to support the
trial court's findings that the proposed relocation of the mother
and child to California would likely adversely affect the welfare
of the child), overruled in part on other grounds, Pulliam v.
Smith, 348 N.C. 616, 501 S.E.2d 898 (1998). Given the trial
court's findings regarding the detrimental effect of the proposed
move on the relationship between defendant and his children, which
were supported by substantial evidence, along with the findings
that the children are currently excelling and thriving, the trial
court did not err in concluding that the proposed relocation would
likely adversely affect the children.
Finally, plaintiff argues the trial court erred in concluding
that it was not in the best interests of the children to modify the
current order and in denying her motion to modify visitation. “In
making the best interest decision, the trial court is vested with
broad discretion and can be reversed only upon a showing of abuse
of discretion.” Id. at 79, 418 S.E.2d at 680. Plaintiff's
contentions rely mainly on her previous arguments that there was
insufficient evidence to support key findings of fact by the trialcourt. However, as previously stated, the trial court did not err
in its findings or conclusions, and we therefore overrule
plaintiff's final argument.
The order of the trial court is affirmed.
Affirmed.
Judges WYNN and JACKSON concur.
Report per Rule 30(e).
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