Appeal by plaintiff from order entered 12 August 2005 by Judge
Wendy M. Enochs in Guilford County District Court. Heard in the
Court of Appeals 16 April 2007.
Wyrick Robbins Yates & Ponton, LLP, by K. Edward Greene and
Heidi C. Bloom, for plaintiff-appellant.
Kathryn S. Lindley for defendant-appellee.
GEER, Judge.
Plaintiff Carmine F. Rocco appeals an order entered 12 August
2005 denying his Motion to Modify Custody for lack of a substantial
change of circumstances. The order nonetheless set forth a changed
visitation schedule designed to address defendant Cynthia C.
Rocco's proposed relocation to the State of Oregon. We agree that
the district court erred in modifying the visitation schedule when
it had previously found no substantial change of circumstances.
We, therefore, vacate the order and remand for further proceedings.
Facts
Plaintiff and defendant married on 21 June 1980 and divorced
on 1 April 2002. During the marriage, they adopted two childrenand resided in Guilford County, North Carolina. On 27 October
2003, plaintiff and defendant entered into a Custody Consent Order,
in which defendant was granted primary physical custody of the
parties' two minor children, and plaintiff was awarded secondary
custody, with custodial periods every other weekend, every
Wednesday evening, alternate holidays, and for two weeks in the
summer.
On 14 February 2005, defendant filed a Motion to Modify
plaintiff's visitation schedule on the grounds that she would be
moving from North Carolina to Oregon. Pursuant to a stipulation
between the parties to bifurcate, the trial court first addressed
only whether there had occurred a substantial change of
circumstances. On 14 July 2005, at the conclusion of defendant's
evidence, the trial court orally dismissed defendant's Motion to
Modify. Five days later, on 18 July 2005, plaintiff filed a Motion
to Modify Custody, asking that the district court grant him primary
custody. On the same day, plaintiff also filed a Motion for
Temporary Restraining Order and Preliminary Injunction, seeking an
order prohibiting defendant from removing the children from North
Carolina pending a hearing on his motion. On 21 July 2005, the
trial court rescinded its oral ruling denying defendant's motion to
change the visitation schedule and set for hearing the parties'
respective motions to modify the Custody Consent Order.
Following a hearing, the district court entered an order on 12
August 2005, finding that defendant, who is a chiropractor, was
planning to relocate to Oregon so that she could practice with herbrother, limit her work to 30 hours a week so that she could spend
more time with the children, and be closer to her brother and his
family. The court found that the father had exercised his
visitation on a regular and consistent basis and had a "close and
loving relationship" with his children. The court found, however,
that "[a] substantial change in circumstances adversely affecting
the welfare of the minor children has not occurred since the entry
of the last Order." Based on its determination that there had been
no substantial change of circumstances, the court denied
plaintiff's motion to modify custody.
The court, however, further found that "[i]f the Mother and
the children relocate to Oregon, the existing Order for visitation
will not be operable." Apparently based on this finding, the court
included the following in the decretal portion of its order:
3. So long as Cynthia Rocco and the children
continue to reside in Greensboro, North
Carolina, the Consent Order entered on
October 27, 2003 shall remain in full
force and effect.
4. If Cynthia Rocco chooses to relocate to
Oregon with the minor children, the
Father shall have the following
visitation periods:
a. Every summer, the Father shall have
the children with him from the third
Saturday in June until the first
Saturday in August. . . .
b. Every December, the Father shall
have the children with him from
December 20th until December 30th. .
. .
c. Every Spring break, the Father may
have the children with him from
Saturday to Saturday. . . .
Plaintiff timely appealed from this order.
Discussion
Plaintiff contends the trial court erred in modifying the
October 2003 consent order's visitation schedule after the court
had already found that there had been no substantial change in
circumstances. We agree.
Under N.C. Gen. Stat. § 50-13.7(a) (2005), "an order of a
court of this State for custody of a minor child may be modified or
vacated at any time, upon motion in the cause and a showing of
changed circumstances by either party or anyone interested." "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).
In applying this statute, this Court has held: "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."
Evans v. Evans, 138 N.C. App. 135, 139, 530 S.E.2d 576,
578-79 (2000) (internal citations omitted).
(See footnote 1)
The party seekingmodification bears the burden of proving the existence of a
substantial change in circumstances affecting the welfare of the
child.
Id.
This Court held in
Sain v. Sain, 134 N.C. App. 460, 465, 517
S.E.2d 921, 925 (1999), that "[h]aving concluded no changed
circumstances justifying modification of the prior custody order
had been shown, the trial court was without authority to modify the
terms of the prior custody order." Thus, in this case, the trial
court lacked authority to modify the visitation schedule
established in the existing custody order once it had determined
that there had been no substantial change of circumstances. We
must, therefore, vacate the trial court's order.
We note that there were two motions pending before the trial
court as a result of defendant's proposed relocation: (1)
plaintiff's request that primary custody be transferred to him and
(2) defendant's request that the visitation schedule be modified.
The order specifically rules only upon plaintiff's motion. We,
therefore, remand for determination of defendant's motion. Because
of the passage of time, we leave it to the trial court's discretion
to decide whether to hear additional evidence prior to making new
findings of fact.
Vacated and remanded.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
Footnote: 1