Opinion
No. COA10-1457
Filed 16 August 2011 This case not for publication
Appeal by defendant from orders entered on 5 October 2009, 24 February 2010, and 9 March 2010 by Judge Laura A. Powell in Rutherford County District Court. Heard in the Court of Appeals 8 June 2011.
Jonathan McGirt for defendant-appellant. No brief filed for plaintiff-appellee.
Rutherford County No. 05 CVD 975.
Where the trial court found that there had not been a substantial change in circumstances that materially affected the welfare of the minor child, the trial court properly denied defendant's motion to modify child custody, pursuant to N.C. Gen. Stat. § 50-13.7(a), and we affirm the ruling of the trial court. Further, where competent evidence in the record supported the trial court's findings of fact and conclusions of law that plaintiff acted in good faith and had insufficient means to defray the expenses of the suit pursuant to N.C. Gen. Stat. § 50-13.6, we affirm the order of the trial court granting plaintiff attorney's fees.
Facts and Procedural History
Edward Charles William Romney (defendant) and Cheri Montique Romney (plaintiff) were married on 10 May 2002, separated on 18 September 2005, and divorced on 28 November 2006. Plaintiff and defendant have one minor child together. On 4 October 2007, the trial court entered an order formalizing a prior memorandum of order wherein plaintiff and defendant had entered into a consent decree providing that the parties would share joint legal custody of their minor child. The schedule was complex but, nonetheless, provided for substantial custodial time for both parents. On 2 July 2009, defendant filed a motion for modification of child custody and a motion for contempt alleging that plaintiff had continually failed to cooperate in the co-parenting arrangements set out in the 4 October 2007 Order. Defendant also requested primary legal and physical custody, care, and control of the minor child. On 19 August 2009, plaintiff filed a reply to the motion for contempt and a countermotion alleging that defendant had also failed to cooperate in the custody arrangement. Plaintiff also requested primary custody of the minor child, attorney's fees, and that the minor child be evaluated by a proper professional to assess his needs. On 14 September 2009, defendant filed a reply to plaintiff's countermotion reasserting his request for primary custody and stating that Dr. Gail Gardner had been appointed to conduct a psycho-educational assessment of the minor child. On 14-15 September 2009, the trial court heard testimony on the parties' motions and, after finding that there had been no substantial change in circumstances and that plaintiff was not in contempt of the 4 October 2007 custody order, dismissed defendant's motions in a written order dated 5 October 2009. On 15 October 2009, defendant filed a Rule 59 motion for a new trial and a Rule 60 motion for relief from the 5 October 2009 order. On 9 March 2010, the trial court ruled on defendant's Rule 59 and Rule 60 motions. The trial court incorporated its 5 October 2009 order and made additional findings of fact before dismissing defendant's motions. Meanwhile, on 24 February 2010, in response to plaintiff's motion and affidavit in support of attorney's fees, the trial court ordered defendant to pay $8,000.00 in attorney's fees to plaintiff's counsel. From orders entered 5 October 2009, 24 February 2010, and 9 March 2010, defendant appeals.
Defendant gave notice of appeal from an order entered 7 April 2010 by Chief District Court Judge Randy Pool denying defendant's motion to recuse Judge Powell. As defendant chose not to pursue appeal of that order in his arguments to this court, we deem it abandoned per N.C. R. App. P. 28(b)(6).
On appeal, defendant argues that the trial court erred as a matter of law in (I) denying defendant's motion to modify child custody by finding that there had not been a substantial change in circumstances which materially affected the welfare of the minor child and (II) by ordering defendant to pay a portion of plaintiff's attorney's fees.
I
Defendant argues that the trial court erred as a matter of law in denying defendant's motion to modify child custody by finding that there had not been a substantial change in circumstances which materially affected the welfare of the minor child, pursuant to N.C.G.S. § 50-13.7. Defendant contends the trial court failed to include "prior" circumstances in its findings of fact to justify its ruling and erred by considering only "negative" factors in determining that there was no substantial change in circumstances. We disagree.
The record indicates the trial court dismissed defendant's motion; however, defendant's arguments on appeal challenge the trial court's denial of his motion. We address defendant's argument as stated, while acknowledging that for purposes of our analysis there is little or no distinction between denial and dismissal of the motion.
"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. Whether those findings of fact support the trial court's conclusions of law is reviewable de novo." Hall v. Hall, 188 N.C. App. 527, 530, 655 S.E.2d 901, 904 (2008) (citations omitted). "[I]n custody cases the welfare of the child is the `polar star' by which the court's decision must be guided." In re Cox, 17 N.C. App. 687, 689, 195 S.E.2d 132, 133 (1973) (citation omitted). In addition, wide discretion is vested in the trial judge because decisions in particular cases are often difficult, and "[the trial judge] has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion." Id. (citations omitted).
In reviewing a trial court's decision to grant or deny a motion to modify an existing child custody order, "the appellate courts 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 omitted). If 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.'" Id. at 475, 586 S.E.2d at 254 (citations omitted). In North Carolina, a child custody order may be modified pursuant to N.C.G.S. § 50-13.7 which provides, "an order 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." N.C. Gen. Stat. § 50-13.7(a) (2009). "When the parties have entered into a consent order providing for the custody and support of their children, any modification of that order must be based upon a showing of a substantial change in circumstances affecting the welfare of the child." Woncik v. Woncik, 32 N.C. App. 244, 247, 346 S.E.2d 277, 279 (1986) (citation omitted) (emphasis added). Moreover, the burden of showing such a change in circumstances is on the moving party. Id.
In determining whether to modify an existing child custody order, the trial court's examination is twofold. Shipman, 357 N.C. at 474, 586 S.E.2d at 253.
The trial court must determine whether there was a change in circumstances and then must examine whether such a change affected the minor child. If the trial court concludes either that a substantial change has not occurred or that a substantial change did occur but that it did not affect the minor child's welfare, the court's examination ends, and no modification can be ordered.
Id. In the instant case, defendant made a motion to modify the existing child custody order on 7 July 2009, but the trial court dismissed the motion on 5 October 2009 concluding that "[t]here ha[d] not been a substantial change in circumstances which materially affects the welfare of the minor child." Defendant argues that the trial court erred in its decision because there was no record of "prior" circumstances on which to base any subsequent determination of substantial change in circumstances. On the contrary, the trial court entered a number of findings of fact in the 4 October 2007 consent custody order which provided for joint legal custody and cooperative parenting. Defendant merely states, but fails to provide any evidence or authority to support his contention, that the findings of fact entered by the Court in its original custody order on 4 October 2007 order were insufficient to be deemed prior circumstances. Subsequently, in its 5 October 2009 order, the trial court made the following findings of fact:
14. Prior to the hearing the minor child had an evaluation by Dr. Gail Gardner Phd. Psychologist to determine any educational issues the minor child may have.
15. The minor child has trouble focusing and has been diagnosed by Dr. Gail Gardner with ADHD.
16. The minor child struggled in kindergarten but was doing grade level work by the end of the school year.
17. The minor child went to tutoring this summer and both parents participated with the tutoring.
. . . .
30. The Defendant had Tim Swane, Elizabeth Propst, June Webb Hardin, Crystal Lutz and his current wife Shellica Romney testif[y] on his behalf to his character and his parenting style.
. . . .
33. The Court finds both parents to be good, appropriate caretakers for the minor child.
34. The Defendant is unhappy about the lack of communication he believes he has with the Plaintiff.
35. The Court finds that the Plaintiff communicates with the Defendant to the extent required by the Court Order and to minimally co-parent the minor child.
Given these findings of fact, the trial court concluded as a matter of law that "[t]here has not been a substantial change in circumstances which materially affects the welfare of the minor child." Further, the trial court, in ruling on defendant's Rule 59 and 60 motions, made the following additional findings of fact in its 9 March 2010 order:
1. The minor child had an evaluation with Dr. Gardner and she did find specific problems that the minor child has. The minor child's kindergarten teacher was surprised by those findings when asked about them at trial. Both parents are very involved with the minor child's academics and have attempted to address his problems appropriately.
2. The Court does not find from the Defendant's evidence that the current custody arrangement is the cause of the minor child's academic problems or that one party is better equipped to handle those problems.
These findings demonstrate that the trial court properly considered changes that occurred since the prior custody order including the child's improved school performance and the diagnosis and treatment of the child's ADHD with the support of both parents.
Defendant, however, argues that the trial court erred in considering "negative" factors exclusively in determining whether there had been a substantial change in circumstances. A trial court may consider both negative and positive changes in determining whether there has been a substantial change in circumstances; however, in this case, there is no indication that the decision of the trial court was based on "negative" factors. The trial court heard testimony that defendant had remarried and the child would be living in a blended family situation. In addition to testimony by the parents and stepparent, the trial court received as evidence a psychological assessment by Dr. Gardner and the child's school records. In Dr. Gardner's report, she notes, "[Minor child] would benefit from all the adults in his life working together to establish consistent structure, expectations, rules, and a system of frequent positive reinforcement, with less frequent negative consequences." Dr. Gardner also concluded, "It is recommended that both parents take a parenting course or work that emphasizes positive reinforcement for responsible behaviors." Dr. Gardner's extensive evaluation of the minor child demonstrates that neither parent is better suited than the other to meet the individual needs of the minor child. Based on a careful review of the record, we hold that there is competent evidence to support the trial court's findings of fact and conclusions of law that "[t]here ha[d] not been a substantial change in circumstance which materially affect[ed] the welfare of the minor child." Therefore, defendant's argument is overruled.
II
Next, defendant contends that the trial court erred as a matter of law by ordering defendant to pay a portion of plaintiff's attorney's fees. We disagree.
In an action or proceeding for the custody of a minor child or the modification of an existing order for custody, "the court may in its discretion order payment of reasonable attorney's fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit." N.C. Gen. Stat. § 50-13.6 (2009). "Whether these statutory requirements have been met is a question of law, reviewable on appeal. When the statutory requirements have been met, the amount of attorney's fees to be awarded rests within the sound discretion of the trial judge and is reviewable on appeal only for abuse of discretion." Hudson v. Hudson, 299 N.C. 465, 472, 263 S.E.2d 719, 724 (1980) (internal citations omitted). "Only when [the statutory] requirements have been met does the standard of review change to abuse of discretion for an examination of the amount of attorney's fees awarded." Doan v. Doan, 156 N.C. App. 570, 575, 577 S.E.2d 146, 150 (2003).
Defendant argues that the trial court's conclusion of law that plaintiff had "insufficient means to defray the expense of the suit" is not supported by the findings of fact. We disagree.
In its 24 February 2010 order, the trial court made the following pertinent findings of fact and conclusions of law:
5. That this matter was heard on Defendant's motion for Contempt against Plaintiff, on the issue of child custody and to modify custody.
6. That based on the hearing that was conducted on September 15, 2009 and September 16, 2009 in addition to the additional motions brought before the Court in this matter pursuant to N.C.G.S. § 50-13.6 Plaintiff is entitled to attorney fees.
7. That the Plaintiff's attorney fee affidavit and Defendant's response to attorney fees are incorporated herein by reference.
8. That the motion was initiated by Defendant for contempt and for a change of custody.
9. That the Plaintiff is an interested party acting in good faith.
10. That the Plaintiff is employed as a nurse making $21.01 per hour; that Defendant is the sole proprietor of Ed's Pallet World making a gross income of $1,500.00 per week.
11. That Plaintiff testified she works a second job sometimes in order to meet her expenses.
12. [Plaintiff] is unable to employ adequate counsel in order to proceed as a litigant and is unable to defray the costs to meet the other party as a litigant.
13. That the Plaintiff had to expend necessary monies to meet the Defendant in Court for the motion for contempt and motion for modification of custody filed.
The trial court concluded, in pertinent part, that:
2. The Plaintiff is an interested party who acted in good faith and has insufficient means to defray the expense of the suit.
3. The attorney fees awarded to Plaintiff are reasonable given the lawyer's skill, hourly rate, reasonableness in comparison with rate of other lawyers, what lawyer did, and hours spent.
These facts do tend to support the trial court's conclusion that plaintiff has insufficient means to defray the costs of the suit.
While the trial court's findings of fact must be more than mere evidentiary facts "[p]ursuant to Rule 52(a), the . . . findings of fact . . . must be the specific ultimate facts . . . sufficient for [an] appellate court to determine that the judgment is adequately supported by competent evidence." Williamson v. Williamson, 140 N.C. App. 362, 363-4, 536 S.E.2d 337, 338 (2000) (citations and quotation marks omitted).
Here, there is competent evidence in the record from the 15 September 2009 hearing that establishes approximately how many hours per week plaintiff works as a Registered Nurse at St. Luke's Hospital in Columbus. Plaintiff testified, "I work usually three twelves, sometimes two twelves and one eight. I work nights." Moreover, the earnings of both the plaintiff and defendant have been part of the record since the initial custody order. At the time of entry of the order of equitable distribution, the trial court, in determining child support, noted the combined gross monthly income of defendant and plaintiff at $12,021.21 with plaintiff earning 30.56% and defendant earning 69.44%, respectively. We find this record evidence to be sufficient to support the trial court's findings of fact which in turn support its conclusions of law in its award of attorney's fees. Therefore, defendant's argument on this issue is overruled.
The judgment of the trial court is affirmed.
Affirmed.
Judges GEER and BEASLEY concur.
Report per Rule 30(e).