This in itself would destroy the paramount aim of the court, that is, that the welfare of the child be promoted and subserved."Davis v. Davis, 229 N.C. App. 494, 500, 748 S.E.2d 594, 599 (citing Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E.2d 357, 361 (1968)). We have consistently held that "the trial court commit[s] reversible error by modifying child custody . . . absent any finding of substantial change of circumstances affecting the welfare of the child."
Actually, the trial court found just the opposite as to defendant's motion and was silent as to plaintiff's motion." 229 N.C. App. 494, 504, 748 S.E.2d 594, 601–02 (2013). Nor did the Davis findings of fact make the reason for the modification "self-evident" but rather noted the issue for concern arose from an "isolated incident."
Additionally, the trial court noted a Domestic Violence Protection Order was entered in Johnston County due to threats Defendant made against Plaintiff in the presence of the minor child. Although this Court has cautioned that "[t]he trial court has the discretion to require a party to submit to a mental health evaluation . . . only if there is a legal basis for this requirement[,]" Davis v. Davis, 229 N.C.App. 494, 502, 748 S.E.2d 594, 601 (2013), the Findings in this case provide such a basis. Thus, the trial court did not abuse its discretion in ordering Defendant to submit to a psychological evaluation to increase his visitation with the minor child.
As long as "the 'nexus' between a substantial change in circumstances and an effect on the children involved was actually stated in, . . . or was plainly evident from, . . . other parts of the order," making "a specific conclusion of law as to whether that change affected the welfare of the child" is not necessary. Davis v. Davis, 229 N.C. App. 494, 503-04, 748 S.E.2d 594, 601 (2013). As stated above, the trial court's findings of fact demonstrate that Defendant's new employment schedule and Plaintiff's interference with Defendant's ability to visit his child has affected the welfare of the child.
While a child support order may only be modified "upon ... a showing of changed circumstances," N.C. Gen. Stat. § 50-13.7(a) (2017), the lack of an express conclusion that such a showing has been made does not render such a modification deficient such that remand is required where the findings in the order reflect the showing of the changed circumstances. SeeDavis v. Davis , 229 N.C. App. 494, 503, 748 S.E.2d 594, 601 (2013) ("even if the ‘magic words’ are not used, the factual findings must still make the substantial change of circumstances and its effect upon the children clear"). In its 28 December 2017 order, the trial court found that the children had moved to Maryland to live with Defendant.
We have previously noted that the trial court need not use "magic words" in its findings of fact or conclusions of law, if the evidence and findings overall make the trial court's basis for its order clear. See Davis v. Davis, 229 N.C. App. 494, 503, 748 S.E.2d 594, 601 (2013). Here, we have disposition orders with "magic words" but no evidence to support some of the crucial findings of fact and thus no support for the related conclusions of law.
Before a trial court may modify an existing custody order, it "must determine that a substantial change of circumstances has occurred and that the change has affected the children's welfare." Davis v. Davis , 229 N.C.App. 494, 502, 748 S.E.2d 594, 600 (2013) (citing Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003) ). A trial court must then "further conclude[ ] that a change in custody is in the child's best interests."
Moreover, the trial court cannot, on the one hand, conclude there was not a substantial change of circumstances and, at the same time, change the existing order.Davis v. Davis,––– N.C.App. ––––, ––––, 748 S.E.2d 594, 599 (2013) (citations and internal quotation marks omitted.)Due to the absence of such findings and conclusions in the trial court's custody order, the order must be vacated and this case remanded for entry of a new order with additional findings of fact to address modification of custody.
Finally, such findings are required in order for the appellate court to determine whether the trial court gave due regard to the factors expressly listed in N.C. Gen.Stat. § 50–13.7.Davis v. Davis, ––– N.C.App. ––––, ––––, 748 S.E.2d 594, 599 (2013) (citations and quotation marks omitted). It would appear from the lack of findings of fact and conclusions of law as to the two biological children that the trial court did not find defendant's requests to be supported by the facts, the law, or perhaps both, but still the trial court needs to make findings of fact so that it is clear that defendant's motion to modify custody was addressed in full.
“[B]efore a trial court may modify an existing custody order the trial court must determine that a substantial change of circumstances has occurred and that the change has affected the children's welfare.” Davis v. Davis, ––– N.C.App. ––––, ––––, 748 S.E.2d 594, 600 (2013). In such a modification proceeding, “the moving party has the burden of proving a ‘nexus' between the changed circumstances and the welfare of the child in order for the trial court to determine that a child [custody] order may be modified.”