Opinion
No. COA10-48
Filed 21 September 2010 This case not for publication
Appeal by plaintiff from order entered 18 September 2009 by Judge Sarah C. Seaton in Onslow County District Court. Heard in the Court of Appeals 17 August 2010.
Ellis Family Law, PLLC, by Alyscia G. Ellis, for plaintiff-appellant. Randolph and Fischer, by J. Clark Fischer, for defendant-appellee.
Onslow County No. 02 CVD 1567.
Troy Werner ("defendant") and Melody Patten ("plaintiff") (collectively "the parties") were previously granted joint legal custody of their minor child, "Carl." Defendant filed a motion in the cause to modify the permanent child custody order ("the prior custody order") that granted plaintiff primary physical custody of Carl, and defendant secondary custody with liberal visitation rights. The trial court concluded that a substantial and material change in circumstances affecting the welfare of the child existed, and concluded that it was in the best interests of the child to modify the prior custody order. The trial court modified the parties' joint legal custody arrangement by granting defendant primary physical custody, and plaintiff secondary physical custody with liberal visitation rights. Plaintiff appeals. We affirm.
A pseudonym.
I. BACKGROUND
The parties were married on 16 October 1999 and divorced on 22 January 2003. During the marriage, the parties had one child, Carl. On 10 March 2004, according to the prior custody order, the trial court awarded the parties joint legal custody of Carl, with plaintiff having primary physical custody and defendant having secondary custody with liberal visitation.
On 10 April 2003, plaintiff married Sergeant Stephen Patten ("Sgt. Patten"). In December 2006, Sgt. Patten and plaintiff went out together. Carl was at home in the care of two babysitters. Sgt. Patten decided to return home while plaintiff continued to stay out with her friends. When Sgt. Patten arrived home at 3:51 a.m., he was intoxicated. The babysitters ran outside and Sgt. Patten locked the doors. When plaintiff arrived home later, she was unable to get in the house. Law enforcement officers came and assisted her.
Some time prior to the lockout situation, Sgt. Patten was charged with driving while intoxicated ("DWI") in Craven County, and pled guilty to that charge in January 2007. As a result of his guilty plea, the court revoked Sgt. Patten's driver's license for one year from January 2007 through January 2008. During this period of revocation, plaintiff allowed Sgt. Patten to transport Carl in the family car. Plaintiff stated that she was "not too concerned" about Sgt. Patten's unlicensed driving as long as he was not drinking alcohol.
Law enforcement officers were called on another occasion during the time period of Sgt. Patten's license revocation when he arrived home intoxicated. Plaintiff argued with Sgt. Patten about his alcohol consumption. Sgt. Patten responded by hitting plaintiff. When plaintiff went outside to sit on the sidewalk, Sgt. Patten followed her and dragged her back into the house. Carl was aware of this incident because he was in a nearby room. Immediately after the assault, Carl came out of his room and cried when he observed plaintiff's bruised face and law enforcement officers questioning Sgt. Patten. Defendant learned about plaintiff's injuries because she sent pictures to defendant.
As a result of this incident, Sgt. Patten was charged with assault on a female in Onslow County. He was also court-martialed by the military justice system for assault, sentenced to serve 50 days in the military brig, and his rank was reduced from staff sergeant to sergeant. Sgt. Patten was also ordered to undergo treatment for alcoholism and attend anger management classes. Following Sgt. Patten's sentence imposed by the military, his charges in Onslow County court were dismissed.
On 10 July 2008, defendant filed a motion in the cause alleging a substantial and material change in circumstances affecting the welfare of Carl since the prior custody order. Defendant alleged that, during the past school year, Carl had been tardy to school on numerous occasions, and Sgt. Patten had been verbally and physically abusive to plaintiff in Carl's presence. On 18 September 2008, following a hearing, the trial court entered an order finding that a substantial and material change in circumstances affecting Carl's welfare had occurred, and that it was in Carl's best interests for the court to modify the prior custody order. The trial court awarded defendant primary physical custody and plaintiff secondary physical custody with liberal visitation. Plaintiff appeals.
II. MODIFICATION OF CHILD CUSTODY
Plaintiff argues that the trial court committed reversible error in modifying the prior custody order. More specifically, plaintiff argues that there was no evidence of any "on-going" concerns in her home at the time of the hearing, and that the trial court's findings did not permit a "`self-evident' conclusion" of an effect on Carl's welfare. We disagree.
An order for child custody may be modified at any time upon a motion in the cause and a showing of changed circumstances by either party. N.C. Gen. Stat. § 50-13.7(a) (2009). If the trial court determines that there has been a substantial change in circumstances and that the change affects the welfare of the child, the court must then determine whether a change in custody is in the child's best interests. Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003). Only if the trial court concludes that modification is in the child's best interests can the court modify the original custody order. Id. "[T]he evidence must demonstrate a connection between the substantial change in circumstances and the welfare of the child[.]" Id. at 478, 586 S.E.2d at 255.
The standard of review for child custody orders is abuse of discretion. Martin v. Martin, 167 N.C. App. 365, 367, 605 S.E.2d 203, 204 (2004). Under this standard, the trial court can be reversed only upon a showing that its actions were manifestly unsupported by reason. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). This Court examines whether the trial court's findings of fact were supported by substantial evidence, and whether the findings support the conclusions of law. Martin, 167 N.C. App. at 367, 605 S.E.2d at 204. Findings of fact to which a party did not object are conclusive on appeal. In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003). The trial court's findings regarding the substantial change in circumstances must "permit a self-evident conclusion as to the effect of such behavior on the welfare of the child[.]" Ford v. Wright, 170 N.C. App. 89, 97, 611 S.E.2d 456, 461 (2005).
In the instant case, plaintiff did not object to the following findings of fact:
6. That since the entry of the prior order of custody, there has been a substantial and material change of circumstance affecting the welfare of the minor child in that:
a. There has been domestic violence in the home of the Plaintiff and it has been witnessed by the minor child. Although it is a minor observation, it is unusual for the Plaintiff to send photographs of the injuries she sustained to the Defendant.
b. That there are alcohol related concerns in the Plaintiff's home involving the Plaintiff's husband.
c. That Plaintiff improperly permitted the minor child to attend school out of district for three years and as a result, a significant history of tardiness and absences accumulated during that period. That since the minor child has been in his proper school district during the 2008-2009 school year, there have been no relevant absences or tardiness noted.
d. That the police have been called to the house twice.
. . .
7. That the court has concerns about the minor child's care with the Plaintiff in that:
. . .
c. The Plaintiff has knowingly allowed her children, to include [Carl], to be driven in a car by her husband even though he was not properly licensed to drive because of his alcohol issues.
d. The Plaintiff continues to bring alcohol to the house and have parties despite her husband's alcohol issues.
Since plaintiff did not object to these findings, they are conclusive on appeal. Therefore, we must determine whether the trial court's findings support its conclusions.
Plaintiff argues that the domestic violence, alcohol abuse, and school attendance issues were "remote in time" and therefore did not allow for a "self-evident" conclusion as to their effect on Carl's welfare. We disagree.
We first note that in the above uncontested findings of fact, the trial court considered facts that occurred "since the entry of the prior order of custody[.]" Plaintiff testified that during the 2005-2006 and 2006-2007 school years, Carl went to a school that was not in plaintiff's school district. During the 2005-2006 school year, Carl was absent from school seven times and was tardy twenty-five times. During the 2006-2007 school year, Carl was absent from school nine times and was tardy fifteen times. Finally, after the end of the 2006-2007 school year, plaintiff enrolled Carl in a school within her district.
Additionally, the testimony of plaintiff and Sgt. Patten revealed that the domestic violence incident, the period of revocation of Sgt. Patten's driver's license, and the lockout incident all occurred after the entry of the prior custody order. Moreover, the period of revocation of Sgt. Patten's driver's license and the domestic violence incident both occurred within the nine-month period prior to the trial court's order modifying the prior custody order.
Therefore, the trial court considered facts regarding plaintiff and Sgt. Patten's relationship which occurred after the entry of the prior custody order and were not remote in time. The trial court's uncontested findings, along with plaintiff's and Sgt. Patten's testimony, "are sufficient to show that the trial court properly considered only events which occurred after [the] entry of the prior custody order when it concluded that there was a change of circumstances." Lang v. Lang, ___ N.C. App. ___, ___, 678 S.E.2d 395, 398 (2009). Plaintiff's assignments of error are overruled.
As a general rule, there must be evidence establishing a nexus between the changes and the welfare of the minor child. Shipman, 357 N.C. at 478, 586 S.E.2d at 255. However, "[w]here the `effects of the substantial changes in circumstances on the minor child . . . are self-evident,' there is no need for evidence directly linking the change to the effect on the child." Lang, ___ N.C. App. at ___, 678 S.E.2d at 398 (quoting Shipman, 357 N.C. at 478-79, 586 S.E.2d at 256).
In the instant case, the trial court found that "[t]he child has been affected by the incidents and circumstances he has experienced in his home environment while in the Plaintiff's care." While this finding does not specifically demonstrate the connection between the changed circumstances and the welfare of the child, in the instant case, the following substantial changes in circumstances permit a self-evident conclusion as to the effects of such behavior on Carl: (1) Carl witnessed an incident of domestic violence between plaintiff and Sgt. Patten, the resulting injuries to plaintiff, and the response by law enforcement to the incident; (2) Carl had a significant history of tardiness and absences from school; (3) plaintiff allowed alcohol in her home even after Sgt. Patten: (a) admitted he had a problem with alcohol, (b) had his driver's license suspended following a DWI conviction, (c) admitted the domestic violence incident with plaintiff after he had consumed alcohol, and (d) law enforcement officers had been called to plaintiff's home on two separate occasions as a result of Sgt. Patten's over-consumption of alcohol; and (4) plaintiff allowed Sgt. Patten to transport Carl in the family car even though Sgt. Patten did not have a valid driver's license.
We next examine whether the trial court erred by deciding that such a change of circumstances warranted a modification of the original custody order. Upon determining that a substantial change in circumstances affecting the welfare of the minor child occurred, a trial court must then determine whether modification would serve to promote the child's best interests.
Shipman, 357 N.C. at 481, 586 S.E.2d at 257.
In the instant case, the trial court considered the significance of the changes in circumstances and the effects of those changes on Carl, and expressly concluded that "it is in the best interest of the minor child that the prior order of the court be modified and that the Defendant be granted primary physical custody subject to reasonable visitation privileges therewith by the Plaintiff." Consequently, the trial court ordered a modification of the prior custody order, granting defendant "primary physical custody" of Carl and granting plaintiff "secondary custody and liberal visitation. . . ."
We note that although the content of the trial court's order in the instant case is adequate for our review, the lack of specificity in the order, particularly concerning the findings of fact as to the effect of the changes in circumstances on the child's welfare, has made our review far more difficult. Given different factual circumstances, a slightly more pervasive lack of specificity could necessitate our reversal of a modification order. To avoid further confusion, we would encourage trial courts, when memorializing their findings of fact, to pay particular attention in explaining whether any change in circumstances can be deemed substantial, whether that change affected the welfare of the minor child, and, finally, why modification is in the child's best interests.
Id.
The trial court's findings of fact are adequate to support its conclusions of law. Those conclusions, in turn, justify the modification of the prior custody order. The trial court did not abuse its discretion in granting defendant's motion for modification of the prior custody order. Plaintiff's assignments of error are overruled.
III. CONCLUSION
Proposed issues on appeal not argued in plaintiff's brief are abandoned. N.C.R. App. P. 28(b)(6) (2009). The trial court's
order granting defendant's motion to modify the prior custody order, and granting the parties joint legal custody of Carl, granting defendant primary physical custody, and granting plaintiff secondary custody and liberal visitation privileges, is affirmed.
Affirmed.
Judges HUNTER, ROBERT C., and ARNOLD concur.
Report per Rule 30(e).