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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-980

NORTH CAROLINA COURT OF APPEALS

Filed: 7 August 2007

DANIEL IRVING CORDELL, JR.,
        Plaintiff-Appellee,

v .                         Buncombe County
                            No. 03 CVD 460

GAIL ANN DOYLE (formerly CORDELL),
        Defendant-Appellant.

    Appeal by Defendant from orders entered 13 June 2005, 30 September 2005, and 20 December 2005 by Judge Marvin P. Pope, Jr. in District Court, Buncombe County. Heard in the Court of Appeals 10 April 2007.

    The McDonald Law Office P.A., by Diane K. McDonald, for Plaintiff-Appellee.

    Mary Elizabeth Arrowood for Defendant-Appellant.

    McGEE, Judge.

    Daniel Irving Cordell, Jr. (Plaintiff) filed a verified divorce complaint on 31 January 2003 against Gail Ann Doyle Cordell (Defendant). Plaintiff alleged that the parties were married on 4 June 1983 and separated on 15 November 2001. Plaintiff alleged that two children were born of the marriage: B.T.C, a boy, and G.N.C., a girl. Plaintiff further alleged that "there [were] no issues of child support, custody, alimony or equitable distribution pending between the parties as they [had] heretofore entered into a separation agreement that they wish[ed] to be incorporated into the divorce judgment." Plaintiff requestedan absolute divorce from Defendant and further requested "[t]hat the terms of the parties' separation agreement be incorporated in, merged with, and become a part of, the divorce judgment." Pursuant to the parties' separation agreement, Plaintiff had primary custody of B.T.C. and Defendant had primary custody of G.N.C. The parties were to exchange the children during one half of the summer and on holidays.
    The trial court entered judgment for absolute divorce on 12 March 2003. The judgment stated that "there [were] no issues of child support, custody, alimony or equitable distribution pending between the parties as they [had] heretofore entered into a separation agreement that they wish[ed] to be incorporated into the divorce judgment." The decretal portion of the judgment awarded Plaintiff an absolute divorce from Defendant and also granted "such additional relief as the Court may deem just and proper."
    Plaintiff filed a motion in the cause on 8 February 2005 seeking a modification regarding issues of custody and visitation. Plaintiff alleged in his motion that there had been a substantial change in circumstances since the execution of the separation agreement on 22 July 2002. At the time Plaintiff and Defendant entered into the separation agreement, Plaintiff lived in Buncombe County, North Carolina and Defendant lived in Sunset Beach, North Carolina. Defendant moved to New Jersey in July 2002 immediately after the parties entered into the separation agreement. Plaintiff also alleged in his motion that Defendant interfered with Plaintiff's contact and visitation with G.N.C.    Defendant filed a civil action in the Superior Court of New Jersey seeking to have that court assume jurisdiction over this matter, and that court filed an order to show cause on 8 March 2005. The Superior Court of New Jersey ordered that
        1. [Plaintiff] show cause before this Court on the 18th day of March 2005, at 11:00 a.m. at the Warren County Court House, 413 Second Street, Belvidere, New Jersey why an Order should not be entered:

            a. Determining whether or not jurisdiction over [G.N.C.] for purposes of parenting issues is properly in the State of New Jersey. If so, the fixing of a parenting schedule, and the costs related thereto, shall be argued at a later date.

The Superior Court of New Jersey issued an order on 5 May 2005 denying Defendant's request that it assume jurisdiction. The Court further stated as follows:
        The parties were divorced in North Carolina in 2003. Incorporated in the Judgment of Divorce entered in North Carolina was an agreement in which [Defendant] would [be] the primary caretaker of one child, [G.N.C.], and [Plaintiff] would [be] the primary caretaker of the other child, [B.T.C.] [Defendant] and [G.N.C.] moved to New Jersey before the Judgment of Divorce was entered, and have been living [in New Jersey] ever since. [Plaintiff] and [B.T.C.] have continued to live in North Carolina. There are now parenting time problems, and [Plaintiff] wants the North Carolina court to resolve such problems while [Defendant] wants the New Jersey court to take jurisdiction.

            The court finds that the court in North Carolina continues to have exclusive jurisdiction under the UCCJEA. See N.J.S.A. 2A:34-67. The court in North Carolina was the last court to enter an Order/Judgment concerning custody or parenting time, and [Plaintiff] and [B.T.C.] still live in NorthCarolina. The within court has conferred with the judge handling the matter in North Carolina, and both judges agree that North Carolina continues to have exclusive, continuing jurisdiction.

    A dispute arose between the parties over which parent would have the children during the first part of the summer of 2005. In response to a letter from Plaintiff's counsel, the trial court entered a visitation order on 13 June 2005 (the visitation order) resolving the dispute. The trial court ordered, inter alia, that Plaintiff have visitation with G.N.C. for the entire month of July 2005.
    Defendant filed a motion on 5 July 2005 to dismiss Plaintiff's motion in the cause. Defendant alleged:
        The prior Separation and Property Settlement Agreement of the parties has at no time been incorporated into an order of this Court and said Separation Agreement continues to be a contract between the parties and the provisions of said contract have been followed by the parties up until the summer vacation of 2005.

Defendant further alleged "[t]hat as there is no court order to modify, Plaintiff's motion should be dismissed." Defendant also filed a "motion for relief from [the visitation order] and for a trial." The trial court entered an order on 30 September 2005 denying Defendant's motion to dismiss and denying Defendant's Rule 59 and Rule 60 motions. Defendant filed notice of appeal from this order on 30 September 2005, and Plaintiff filed a motion to dismiss Defendant's appeal.
    The trial court entered an order on 20 December 2005. The trial court found:        That since the execution of the [Separation] Agreement, there has been a substantial change in circumstances in that . . . Defendant and [G.N.C.] have relocated to the State of New Jersey, and there is clear evidence from the numerous e-mails between the parties that there has not been effective communication regarding the scheduling and effecting of visitation as evidenced by the testimony regarding [G.N.C.'s] play, [and] . . . Defendant's planned wedding, rather any communication has been fruitless; that while there appears from the evidence to be no problem of telephonic communication between . . . Defendant and [B.T.C.], there appear to be problems with regard to the telephonic communication between . . . Plaintiff and [G.N.C.] because . . . Defendant has no answering machine or does not return Plaintiff's phone calls[.]

The trial court concluded there had been a substantial change in circumstances affecting the welfare of G.N.C. and that it was in the best interests of B.T.C. and G.N.C. to modify the visitation schedule.
    The trial court also entered an order on 20 December 2005 refusing to certify the matter for immediate appeal, and allowing Plaintiff's motion to dismiss Defendant's appeal from the trial court's 30 September 2005 order. Defendant appeals.

I.

    Defendant first attempts to raise objections to the visitation order. However, in Smithwick v. Frame, 62 N.C. App. 387, 303 S.E.2d 217 (1983), this Court held that a party's objections to a temporary custody order were rendered moot by the entry of the subsequent final custody order. Id. at 391, 303 S.E.2d at 220. Accordingly, because the visitation order was only a temporary custody order, entered without prejudice to either party,Defendant's objections were rendered moot by entry of a final order on 20 December 2005.
II.

    In her next assignment of error, Defendant argues the trial court erred by denying Defendant's motion to dismiss Plaintiff's motion in the cause to modify custody and visitation. Defendant argues that because the decretal portion of the 12 March 2003 divorce judgment did not specifically incorporate the separation agreement, the separation agreement was never made an order of the trial court. Therefore, Defendant argues, the trial court did not have jurisdiction to modify the separation agreement. We disagree.
    The uncontested findings of fact demonstrate that Plaintiff filed a pro se complaint for absolute divorce on 31 January 2003. Plaintiff sought the incorporation of the separation agreement that had been entered into by the parties in July 2002. Defendant was served with the complaint and did not file an answer. The findings further demonstrate that "Plaintiff prepared pro se the Judgment of Absolute Divorce as evidenced by the similar format of the Complaint; that said Judgment was entered by the [trial court] on the 12th day of March, 2003." The trial court further found that paragraph four of the judgment for absolute divorce stated "[t]hat there [were] no issues of child support, custody, alimony or equitable distribution pending between the parties as they [had] heretofore entered into a separation agreement that they wish[ed] to be incorporated into the divorce judgment." Finally, the trial court found "[t]hat the decretal portion of the Judgment grants anAbsolute Divorce and 'such other relief as is just and proper'; that in light of the pro se nature of this action, it is reasonable for the Court to include the incorporation of the separation agreement." We hold that, given the pro se nature of this action, the trial court incorporated the provisions of the separation agreement into the judgment for absolute divorce as part of the "other relief" granted by the trial court. Moreover, the Superior Court of New Jersey had previously determined that the separation agreement had been incorporated into the trial court's 12 March 2003 judgment for absolute divorce, and that North Carolina had continuing, exclusive jurisdiction over the matter. In light of all of the above, we affirm the trial court's findings and conclusion that the separation agreement was incorporated into the 12 March 2003 judgment for absolute divorce. Thereafter, the provisions of the separation agreement were modifiable upon a motion in the cause alleging a substantial change of circumstances affecting the welfare of the children.
III.

    Defendant next argues the trial court erred by denying Defendant's Rule 59 and Rule 60 motions. We disagree.
    N.C. Gen. Stat. § 1A-1, Rule 59(b) (2005) provides: "A motion for a new trial shall be served not later than 10 days after entry of the judgment." In the present case, the trial court entered its visitation order on 13 June 2005 and Defendant did not file a Rule 59 motion until 5 July 2005, more than ten days after entry of the judgment. Accordingly, Defendant's motion was untimely and thetrial court did not err by denying Defendant's Rule 59 motion.
    Furthermore, we have held that "[b]y its express terms, Rule 60(b) only applies to final judgments, orders, or proceedings; it has no application to interlocutory orders." Pratt v. Staton, 147 N.C. App. 771, 775, 556 S.E.2d 621, 624 (2001). In Dunlap v. Dunlap, 81 N.C. App. 675, 676, 344 S.E.2d 806, 807, disc. review denied, 318 N.C. 505, 349 S.E.2d 859 (1986), our Court held that a temporary custody order is interlocutory and "does not affect any substantial right . . . which cannot be protected by timely appeal from the trial court's ultimate disposition of the entire controversy on the merits." Therefore, we hold that Rule 60(b) had no application to the visitation order, and the trial court did not err by denying Defendant's Rule 60 motion.
IV.

    Defendant next argues the trial court erred by finding a substantial change in circumstances that affected the welfare of the children. We disagree.
    Pursuant to 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) (citing Clark v. Clark, 294 N.C. 554, 576, 243 S.E.2d 129, 142 (1978)).
    It is well established that a trial court may order amodification 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.2d 250, 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, 624, 501 S.E.2d 898, 902 (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 the contrary.

Shipman, 357 N.C. at 474-75, 586 S.E.2d at 253-54 (internal citations and quotations omitted).
    In the present case, Plaintiff specifically alleged in his 8 February 2005 motion in the cause that Defendant refused to share the responsibility of transportation for G.N.C. Plaintiff alsoalleged that Defendant had interfered with Plaintiff's phone contact with G.N.C. Plaintiff further alleged, upon information and belief, that Defendant spoke negatively about Plaintiff to G.N.C., and that Defendant refused to share information about G.N.C. with Plaintiff.
    The trial court found the substantial change of circumstances to be a lack of effective communication between the parties. Specifically, the trial court found that "there has not been effective communication regarding the scheduling and effecting of visitation as evidenced by the testimony regarding [G.N.C.'s] play, [and] . . . Defendant's planned wedding, rather any communication has been fruitless[.]" The trial court also found "that while there appears from the evidence to be no problem of telephonic communication between . . . Defendant and [B.T.C.], there appear to be problems with regard to the telephonic communication between . . . Plaintiff and [G.N.C.] because . . . Defendant has no answering machine or does not return Plaintiff's phone calls."
    A review of the record shows plenary evidence supporting the trial court's finding of a change of circumstances affecting the welfare of the children. Plaintiff testified that he was not informed that G.N.C. was participating in a school play on 7 October 2005 until a day or two before the play, and at that point, Plaintiff was unable to make arrangements to drive to New Jersey and attend the play. However, pursuant to an order of the trial court, Plaintiff had been scheduled to have visitation with G.N.C. starting on 7 October 2005. Plaintiff drove to the meeting placein Virginia where he was scheduled to pick up G.N.C. from Defendant; however, Defendant did not show up with G.N.C. Plaintiff also testified that he had not been informed that Defendant's wedding was planned for July 2005 until about one month prior to the wedding. At that time, Plaintiff had already made arrangements for child care for G.N.C. in North Carolina; Plaintiff did not want to change the visitation schedule under which Plaintiff had visitation with G.N.C. for the first half of the summer.
    The transcript is also replete with testimony that Defendant interfered with the telephonic communication between Plaintiff and G.N.C. Plaintiff testified that although he called Defendant's home to talk with G.N.C. twenty-four times in October 2005, he was only able to talk with G.N.C. four times. Plaintiff testified that at first he was able to leave messages on Defendant's answering machine, but then Defendant unplugged or turned off the answering machine and Plaintiff could no longer leave messages for G.N.C. Plaintiff further testified that when he spoke with G.N.C. over the phone, Defendant stood over the phone and talked during his conversations with G.N.C.
    Defendant argues that the purported problems with scheduling found by the trial court occurred after the filing of Plaintiff's motion in the cause, and therefore could not be relied upon by the trial court. However, Defendant did not object on this basis at trial and cannot now raise this objection. See N.C.R. App. P. 10(b)(1). Moreover, Defendant has not cited, nor have we found,any authority that a trial court cannot consider evidence after the filing of a motion in the cause when determining whether there has been a substantial change in circumstances since the entry of the previous order.
    Defendant also argues that even if the trial court's findings were supported by the evidence, they did not rise to the level of a substantial change of circumstances. However, our Court has previously acknowledged that interference with the visitation rights of a parent "can constitute a substantial change of circumstances sufficient to warrant a change of custody." Woncik v. Woncik, 82 N.C. App. 244, 249, 346 S.E.2d 277, 280 (1986). We agree with the trial court that the lack of effective communication between Plaintiff and Defendant and Defendant's interference with the telephonic communication between Plaintiff and G.N.C. rose to the level of a substantial change of circumstances.
    Defendant also argues the trial court made an erroneous finding of fact related to a failed visitation of G.N.C. with Plaintiff in November 2005. However, because this finding was not necessary to support the trial court's finding of a substantial change of circumstances, we need not address this argument.
    We also hold that the trial court made an adequate finding that the substantial change of circumstances affected the welfare of the children. The trial court found that "the children's best interest is being harmed because of the lack of contact with parents caused by the inability of the parents to work together." This finding is clearly supported by the evidence recited above. Moreover, there was also evidence that the parents' inability to communicate caused the failure of other attempted visitations. The trial court's findings of fact empowered the trial court to modify the parties' incorporated separation agreement if that modification was in the best interests of the children. See Evans, 138 N.C. App. at 139, 530 S.E.2d at 578-79.
V.

    Defendant also argues that the trial court had no authority, pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure, to dismiss Defendant's appeal from the 30 September 2005 order. We agree.
    In its 20 December 2005 order dismissing Defendant's appeal, the trial court found that, as a result of the 30 September 2005 order, "the matter of custody was not disposed of, but rather would require further Court action in order to finally determine the rights of all of the parties to this action, as prayed for [in] the February 8, 2005 Motion by . . . Plaintiff." The trial court relied upon language from Berkman v. Berkman, 106 N.C. App. 701, 417 S.E.2d 831 (1992), to the effect that "[a] temporary child custody order is interlocutory and 'does not affect any substantial right . . . which cannot be protected by timely appeal from the trial court's ultimate disposition of the entire controversy on the merits.'" Id. at 702, 417 S.E.2d at 832 (quoting Dunlap, 81 N.C. App. at 676, 344 S.E.2d at 807). The trial court then declined to certify the matter for immediate appeal pursuant to Rule 54(b).
    Based upon the trial court's order, it appears the trial courtthen further dismissed Defendant's appeal as interlocutory and not affecting a substantial right. However, "'ruling on the interlocutory nature of appeals is properly a matter for the appellate division, not the trial court.'" Giles v. First Virginia Credit Servs., Inc., 149 N.C. App. 89, 95, 560 S.E.2d 557, 561 (quoting Estrada v. Jaques, 70 N.C. App. 627, 640, 321 S.E.2d 240, 249 (1984)), disc. review denied, 355 N.C. 491, 563 S.E.2d 568 (2002). In Estrada, our Court recognized that trial courts do have limited authority to dismiss appeals pursuant to N.C.R. App. P. 25. Estrada, 70 N.C. App. at 638, 321 S.E.2d at 248. N.C.R. App. P. 25(a) provides:
        If after giving notice of appeal from any court, commission, or commissioner the appellant shall fail within the times allowed by these rules or by order of court to take any action required to present the appeal for decision, the appeal may on motion of any other party be dismissed. Prior to the filing of an appeal in an appellate court motions to dismiss are made to the court, commission, or commissioner from which appeal has been taken; after an appeal has been filed in an appellate court motions to dismiss are made to that court. Motions to dismiss shall be supported by affidavits or certified copies of docket entries which show the failure to take timely action or otherwise perfect the appeal, and shall be allowed unless compliance or a waiver thereof is shown on the record, or unless the appellee shall consent to action out of time, or unless the court for good cause shall permit the action to be taken out of time.

However, our Court in Estrada held that "the motions described in the second sentence [of Rule 25] are only those for failure to comply with the Rules of Appellate Procedure or with court orders requiring action to perfect the appeal." Estrada, 70 N.C. App. at639, 321 S.E.2d at 248 (emphasis in original). Therefore, our Court held that the trial court acted beyond its authority in dismissing the plaintiff's appeal as interlocutory. Id.
    In the present case, while the trial court appropriately declined to certify the matter for immediate appeal pursuant to Rule 54(b), the trial court did not have authority to dismiss Defendant's appeal on the basis that it was interlocutory and did not affect a substantial right. Accordingly, the trial court erred by dismissing Defendant's appeal. However, we need not remand the matter as we have now reached the merits of Defendant's appeal from the trial court's 30 September 2005 order.
    Dismissed as moot in part; affirmed in part; reversed in part.
    Judges ELMORE and STEPHENS concur.
    Report per Rule 30(e).

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