Opinion
No. COA14–386.
2014-12-16
Nishima KAPLAN, Plaintiff v. Alon KAPLAN, Defendant.
Jonathan McGirt for Plaintiff.Cranfill Sumner & Hartzog LLP, by Michelle D. Connell, for Defendant.
Appeal by defendant from order entered 30 August 2013 by Judge Susan M. Dotson–Smith in Buncombe County District Court. Heard in the Court of Appeals 8 September 2014. Jonathan McGirt for Plaintiff. Cranfill Sumner & Hartzog LLP, by Michelle D. Connell, for Defendant.
ERVIN, Judge.
Defendant Alon Kaplan appeals from an order modifying the arrangement governing the custody of the minor children that he had with Plaintiff Nishima Kaplan. On appeal, Defendant contends that the trial court erred by concluding that a substantial change of circumstances warranting modification of the existing custody order had occurred, modifying the order with respect to all three children without finding the existence of changed circumstances affecting the welfare of the younger two children, making factual findings that were so contradictory that they failed to support the trial court's conclusions of law, and modifying the existing custody arrangement based on purely hypothetical circumstances. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.
I. Factual Background
Plaintiff and Defendant were married on 11 June 1995, lived together as husband and wife until they separated on 8 January 2010, and were divorced on 20 June 2011. Three children were born of the marriage: S.K., who was born 19 May 2000; B.K., who was born 5 July 2004; and J.K., who was born 24 June 2007.
The initial child custody order was entered on 11 August 2010 as a result of Plaintiff's request for permission to relocate to Texas with the children. Plaintiff's request was predicated on the theory that neither party was from Asheville, where they currently resided; that the parties had moved to Asheville in pursuit of a better lifestyle; that the parties lacked strong ties to the Asheville area and had discussed leaving Asheville for some period of time; that the parties had even discussed moving to Israel at one point in time; that Plaintiff needed the help and support of her family, which was centered in San Antonio; that Plaintiff had more financially profitable work opportunities in Texas than would be available in North Carolina; that the children would have the benefit of extended family and a more robust support system in Texas; that the parties are observant Jews; and that, since the Jewish community in San Antonio is significantly larger than the Jewish community in Asheville, the children would have a more nurturing and welcoming community of faith in the event that they were allowed to relocate to Texas.
At the conclusion of the initial custody hearing, Judge Marvin P. Pope, Jr., found that Defendant had suffered a stroke in December 2008 as the result of an accident from which he had not been expected to recover; that Defendant had experienced an “outstanding recovery” by the time of that hearing; that the parties' marriage had suffered because of Defendant's stroke and his resulting inability to be around the children, cook, clean, and engage in activities at the synagogue to which the parties belonged; that Plaintiff was dating an individual who was residing in Texas; that the school systems in San Antonio and Buncombe County were both excellent; that Plaintiff had a job offer in Texas; that Plaintiff was concerned about the minor employed the services of a nanny due to his disabilities. Based upon these findings of fact, the trial court denied Plaintiff's motion to relocate herself and the children to Texas and awarded joint legal and physical custody to the parties utilizing a week on/week off schedule.
On 30 March 2011, Plaintiff filed a motion seeking to modify the existing custody arrangement because she planned to relocate to Texas, a development that would render the week on/week off schedule adopted in the existing custody order unworkable. After the filing of Plaintiff's motion, the parties consented to the entry of a consent order by Judge Rebecca B. Knight providing that the children would remain in Buncombe County from 1 September to 31 May of each year; that Plaintiff would have custody of the children from the first Friday of each month until the second Sunday of each month at her Buncombe County residence; and that Defendant would have custody of the children during the second half of each month. In addition, the consent order addressed issues relating to holidays, summer breaks, communication issues, and the social security funds received on behalf of the minor children.
On 13 September 2011, Plaintiff filed an emergency motion seeking the entry of an order requiring the resumption of therapy for the children. On 14 February 2012, Judge Knight entered a consent order providing that the parties would seek a professional assessment that addressed the children's need for continued therapy.
On 23 August 2012, Plaintiff filed another motion seeking the entry of an order modifying the existing custody arrangement in which she alleged that Defendant was not a fit and proper person to have custody of the minor children and that a substantial change of circumstances had occurred that warranted a modification of the prior custody-related orders. Plaintiff's ex parte emergency custody and protective order motion was denied on 24 August 2012.
On 6 December 2012, Plaintiff filed a motion seeking the entry of an order prohibiting Defendant from driving a motor vehicle in which the children were passengers until he had been permitted to do so by his attending physician. On 24 January 2013, the trial court entered a consent order that provided that Defendant would refrain from transporting the children in a motor vehicle until he had been seizure-free for six months, was duly licensed to operate a motor vehicle in North Carolina, and had authorization from his physician to drive, and that a permanent order addressing this set of issues would be entered at a later date. In addition, the 24 January 2013 order reflected the parties' agreement to resume use of the week on/week off custody schedule.
Plaintiff's motion for modification of the existing custody arrangement came on for hearing before the trial court at the 3 June 2013 civil session of the Buncombe County District Court. On 30 August 2013, the trial court entered an order awarding joint legal custody of the children to the parties; providing that the children's primary placement during the school year would be with Plaintiff; and allowing Plaintiff to relocate outside of North Carolina with the children. Defendant noted an appeal to this Court from the trial court's order.
II. Substantive Legal Analysis
A. Standard of Review
An order governing the custody of minor children may be modified at any time based upon a showing of a substantial change of circumstances by either party. N.C. Gen.Stat. § 50–13.7(a). “This phrase [‘substantial change of circumstances'] is a term of art, meaning that a change has occurred among the parties, and that change has affected the welfare of the children involved.” Garrett v. Garrett, 121 N.C.App. 192, 197, 464 S.E.2d 716, 720 (1995) (emphasis in original), disapproved of on other grounds, Pulliam v. Smith, 348 N.C. 616, 620 n. 1, 501 S.E.2d 898, 900 n. 1 (1998). A trial court considering a request for the modification of an existing custody order must engage in a two-fold inquiry. Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003). As an initial matter, the trial court must determine whether a substantial change in circumstances has occurred and, if so, whether this change affected the minor children. Id. In the event that the trial court finds that a substantial change of circumstances occurred and that this change has affected the welfare of the children, the trial court must then determine whether a change in the existing custody arrangement is in the children's best interests. Id. If the trial court concludes that the children's best interests would be served by a modification of the existing custody arrangement, it may modify that existing custody order. Id.
As a result of the fact that Defendant has not, as a general proposition, challenged the sufficiency of the evidence to support the trial court's findings of fact before this Court on appeal, those findings are deemed binding for purposes of appellate review, so that our review on appeal is limited to determining whether the trial court's factual findings support its conclusions of law. Respess v. Respess, ––– N.C.App. ––––, ––––, 754 S.E.2d 691, 695 (2014) (stating that “[a] trial court's unchallenged findings of fact are presumed to be supported by competent evidence and [are] binding on appeal”) (quotation marks omitted) (alteration in original). “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). “Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (internal quotation marks omitted).
Although Defendant denies having conceded that all of the trial court's factual findings had adequate evidentiary support, he concedes that most of them do and focuses his challenge to the trial court's order on a contention that the trial court's findings do not support its conclusions.
B. Substantial Change of Circumstances
In his first challenge to the trial court's order, Defendant argues that the trial court erred by concluding that a substantial change of circumstances warranting modification of the existing custody order had occurred. More specifically, Defendant contends that the trial court was precluded from determining that a substantial change of circumstances affecting the minor children had occurred because the material facts supporting that conclusion of law already existed as of 11 August 2010, when the existing custody order was entered. In addition, Defendant contends that the trial court erroneously found a change in circumstances applicable to the oldest child sufficient to justify changing the existing custody arrangement of all three children. We do not find either aspect of Defendant's argument regarding change of circumstances persuasive.
A careful review of the findings of fact contained in the 31 August 2013 order demonstrates that the trial court made findings regarding events that had not occurred as of the time of the existing custody order. For example, the trial court found as a fact that:
13. Defendant was involved in a car accident, prompting the filing of Plaintiff's motion, wholly due to a seizure caused by Defendant missing several doses of his medicine prior to the accident. Defendant was unable to bring the car to a stop, and the two younger children were in the car at the time.... Defendant continued to drive with the minor children in the car after his seizure. He drove despite [the fact] that his caretaker had concerns about his driving. The Court finds this willingness to determine what is right for him in spite of the law a troubling consistency. He altered his medication without doctor direction, and intentionally or not, missed three doses in a row at night, and drove without authorization.
14. ... Defendant suggested his tension with Plaintiff about a dental appointment was sufficient to cause Defendant to have a seizure hours later. The Court finds this to be unpersuasive. The fact that he may try to blame a third person for his symptoms is indicative of how he approaches parenting, and the Court finds it very persuasive that Defendant blames others and is unwilling to be accountable for his own limitations.
15. Although Defendant has had improvement in his physical ability and his speech since the filing of Plaintiff's motion, and although the children have bonded with him, they have been negatively impacted by his lack of parenting skills, especially [the oldest child] who stays in her room to eat and read to avoid the Defendant.... [Defendant's] own testimony confirmed he did not know how [the oldest child] has been doing for the past six months.....
16. Defendant has acted inconsistent with the best interests of the minor children by firing the children's long-time nanny. Since that time, the caregivers for the children have been inconsistent with blurred roles in that at least two caregivers have become romantically involved with the Defendant.... Defendant's inconsistent parenting style affects [the children] in a negative way. His decision to put his needs before the needs of the children has negatively affected the children.
....
19. Defendant has not made efforts to explore what is available to his children. Defendant by his own testimony revealed a person who has made decisions about his own needs and imposed them on his family, as follows: He did not see a benefit to [the oldest child] seeing a counselor, so he discontinued counseling against the wishes of the Plaintiff; Defendant did not see any benefit to communicating to [the oldest child], and he discontinued to engage her; Defendant wanted to drive against doctor's orders, so he drove anyway; Defendant's statement that Plaintiff's nagging causes his seizures is worrisome to the Court....
20. The unexcused absences of the children at school occurred during Defendant's period of custody. The Court finds that although the age of [the youngest child] suggests that the absences were not necessarily delaying her academic development, nor were they excessive for kindergarten, the Court is very concerned as to the reasons offered by the Defendant for the absences. The explanation for one absence was because after a traumatic morning of clothing choices, Defendant was tired and wanted to make his appointment. Another excuse for excessive absences offered by the Defendant was “She's a Kaplan.” Defendant has kept the children at home to suit his schedule.
21. The parties' increased conflict and inability to clearly communicate and maintain separate lives affects the scheduling and therefore impacts the welfare of the minor children.
22. Since the entry of the August 11, 2010 Order, the minor children and the Defendant have adequately bonded which alleviates the necessity for additional bonding intended in that Order.
In his brief, Defendant pays minimal attention to these findings and focuses his attention on findings of fact that, in his opinion, reflect conditions that existed at the time of the initial custody order, arguing that the trial court was not entitled to rely on those findings in determining that a substantial change of circumstances had occurred.
The initial custody order provided “[t]hat bonding is of utmost importance for children between the years of two (2) and seven (7)” and that “the needs of the minor children would not be served by allowing the Plaintiff to move to Texas due to the bonding issues of the parties' three minor children, whose ages are between three (3) and ten (10).”
In support of this contention, Defendant points to findings relating to his inconsistent parenting style and his tendency to put his needs before those of the children and states that “[t]here is no evidence nor finding of fact to indicate these behaviors did not exist at the initial custody hearing.” In addition, Defendant points to findings relating to Plaintiff's relocation request and enumerates numerous findings from the initial custody order that address the relocation request that was addressed in that order. Finally, Defendant points to findings relating to his health, arguing that these issues existed at the time of the initial custody order.
After thoroughly examining the trial court's findings of facts, we do not find Defendant's contention persuasive. As we read the challenged order, the findings of fact that we have quoted earlier in this opinion addressing Defendant's unilateral alterations in his medication regime, his decision to continue driving after a seizure despite lacking the legal authority to do so, his actions in placing the blame for a seizure on Plaintiff, the negative impact from which the children suffered as a result of his parenting practices, his decision to fire the children's long-time nanny and become involved in romantic relationships with at least two of their subsequent caregivers, and his failure to ensure that the children attended school for reasons relating to his personal needs, separate and apart from those findings that Defendant claims to reflect facts and circumstances that existed prior to or at the time of the entry of the existing custody order, amply support a determination that a substantial change in circumstances that affected all three of the children had occurred since the entry of the existing custody order. As a result, we have no hesitation in concluding that the trial court's findings amply support a changed circumstances determination.
As a separate matter, Defendant argues that the trial court's findings with respect to the issue of whether Plaintiff should be permitted to move with the children to Texas rest on a series of factors that were considered and rejected in connection with the consideration of Plaintiff's earlier requests to relocate with the children to Texas. Although Defendant is correct in noting that many of the alleged benefits upon which Plaintiff relied in support of her most recent request to relocate to Texas with the children were similar, if not identical, to the reasons that were advanced in support of her earlier relocation requests, this request was also accompanied by a successful request for a change in the existing custody arrangement, a fact that we believe constituted a change in circumstances sufficient to allow approval of the relocation request.
C. Findings Regarding All Three Children
Secondly, Defendant argues that, even if the trial court correctly determined that a substantial change in circumstances had occurred, it erred by modifying the existing custody arrangements relating to the two younger children without finding that the change of circumstances affected their welfare separate and apart from the welfare of the oldest child. Although he appears to concede that the trial court correctly found that this change in circumstances had an effect on the welfare of the oldest child, Defendant contends that the trial court unlawfully used the impact of this substantial change of circumstances on the oldest child's life to support a determination that the welfare of all three children had been affected and that the trial court's findings of fact did not suffice to demonstrate that this substantial change in circumstances had any effect on the two younger children. Once again, Defendant's contention lacks merit.
In attempting to persuade us that this aspect of his challenge to the trial court's order has merit, Defendant analogizes the present case to Browning v. Helff, 136 N.C.App. 420, 524 S.E.2d 95 (2000), in which the trial court failed to make the necessary finding of fact regarding the effect of the defendant's cohabitation on the welfare of the children, simply finding that the children were present in the defendant's residence while “defendant was residing with a person of the opposite gender to whom he is not related.” Id. at 424, 524 S.E.2d at 98. In overturning the trial court's order, we stated that the “fact that the children were present, however, cannot be construed as a finding that the children's welfare was affected.” Id.
Although Defendant contends this case cannot be distinguished from Browning given that both cases involved situations in which the trial court found that the welfare of the minor children had been affected by the defendant's romantic relationship with a third person without making specific findings as to how their welfare had been affected by this development, we do not find this argument persuasive. The trial court in this case, unlike the trial court in Browning, described in detail how Defendant's romantic involvement with certain of the children's caretakers affected the welfare of all three children. Secondly, and more importantly, the trial court's changed circumstances decision did not rest solely upon Defendant's decision to become romantically involved with at least two of the children's caretakers. Instead, as we have already noted, the trial court's changed circumstances decision rested on a number of other factors in addition to the existence of these romantic relationships. Instead, the trial court also based its changed circumstances determination on Defendant's tendency to put his own needs before those of the children in a number of ways, including through his romantic involvement with certain of their caretakers and through his insistence on driving with the children in the car even after he was involved in an accident that resulted from a seizure and after he had been told not to drive by his doctors, on Defendant's memory loss, and on the increased level of conflict between the parties. The trial court further found that the change in circumstances negatively impacted the general welfare of the children, with this impact being manifested in heightened levels of anxiety and distress. As a result, we are unable to agree with Defendant's contention that the trial court erred by determining that a substantial change of circumstances affecting the welfare of all three children had occurred.
For example, the trial court found that the “[oldest child] perceives that the caretakers stay overnight sometimes. This has confused the children, specifically [the oldest child], and has negatively impacted the home environment to the point that [the oldest child] stays in her room most of the time and provides for herself with no parental guidance from the Defendant.”
D. Contradictory Findings of Fact
Thirdly, Defendant contends that the trial court's findings of fact are so contradictory that they cannot support its conclusions of law. Put another way, Defendant argues that certain of the trial court's findings, which reflect Defendant's love and concern for the children and the fact that the children have been successful, academically and otherwise, fatally contradict the other findings contained in the trial court's order. We do not find this argument persuasive.
According to well-established principles of North Carolina law, a decision by a trial court to make findings of fact that are so contradictory that a reviewing court cannot “safely and accurately decide the question” cannot be upheld on appeal. Spencer v. Spencer, 70 N.C.App. 159, 168, 319 S.E.2d 636, 643–44 (1984) (quotation marks omitted). On the other hand, “this Court must endeavor to reconcile apparently inconsistent findings and uphold the judgment when practicable.” Id. at 168, 319 S.E.2d at 644. “[T]he rule [is] that the findings of the trial judge will be construed to uphold, rather than to defeat, the judgment, if this may reasonably be done.” Bradham v. Robinson, 236 N.C. 589, 593, 73 S.E.2d 555, 558 (1952).
In seeking to persuade us that the trial court's findings of fact are fatally contradictory, Defendant points to a number of the trial court's findings, including the following:
8. The Court finds that both parents love the minor children and want what is best for them....
9. All three of the minor children are bright, gifted and successful in school, and both parents have contributed to their success.
10. Both parents are affectionate with the two younger girls....
11. The parties have helped the children with their homework either directly or through a caregiver....
....
25. The children are involved in ballet, karate and school activities including cello lessons, and [the oldest child] is involved with the Duke TIP program and Math Counts.
Although Defendant contends that these findings, when juxtaposed with the findings relating to his lack of parenting skills, his inconsistent parenting style, his lack of stamina, and his decision to put his own needs before those of the children, demonstrate that the trial court's findings contain a fatal contradiction, we see no conflict between the findings to which Defendant directs our attention and the other, less flattering, findings concerning Defendant's performance as a parent contained elsewhere in the trial court's order.
In its order, the trial court attempted to recognize that, like most of us, Defendant has both positive and negative attributes. The trial court's acknowledgement that Defendant's performance as a parent has not been uniformly negative does not render its findings, when considered in their totality, so contradictory that they fail to support its determinations that a substantial change in circumstances affecting the welfare of the children had occurred. Simply put, the trial court's findings of fact can easily be reconciled with each other on the basis of a recognition that, while Defendant loves his children and wants the best for them, he has an “inconsistent parenting style” and tends to put his own interests, needs, and desires ahead of the best interests of the children in such a manner as to negatively affect their welfare. A trial court responsible for deciding the difficult issues that frequently arise in custody proceedings must consider all of the evidence concerning a parent's attributes and activities and does not err by painting a multi-colored portrait of the non-custodial parent. As a result, Defendant is not entitled to relief from the trial court's order on the basis of this argument.
E. Hypothetical Scenarios
Finally, Defendant contends that the trial court erred by modifying the existing custody order based upon hypothetical facts that may not actually occur in the future. In essence, Defendant contends that the trial court's order impermissibly rests upon what might happen to the children rather than upon an actual, existing change in circumstances. Defendant's contention lacks merit.
As this Court has previously stated, speculative or conjectural evidence to the effect that a change of circumstances may occur at some point in the future does not suffice to establish that a change in custody sufficient to support the modification of an existing custody order has occurred. Ramirez–Barker v. Barker, 107 N.C.App. 71, 78, 418 S.E.2d 675, 679 (1992), disapproved of on other grounds, Pulliam v. Smith, 348 N.C. 616, 620 n. 1, 501 S.E.2d 898, 900 n. 1 (1998). On the other hand, “[i]t is not necessary that ... effects on the child manifest themselves before a court can alter custody” and it “is sufficient if the changed circumstances show that the child will likely or probably be ... affected,” Ramirez–Barker, 107 N.C.App. at 78, 418 S.E.2d at 679, since “[i]t is neither necessary nor desirable to wait until the child is actually harmed to make a change in custody.” Id. (internal quotation marks and citation omitted).
In his brief, Defendant notes that the trial court found, in pertinent part, that “Defendant's lack of knowledge of [the oldest child]'s emotional needs and his unwillingness to be proactive in her life are consistent with his parenting skills being a detriment to his children as they grow into their youth” and that, while “[b]oth parties have ill-identified adult relationships which may impact the minor children,” “Defendant's are more concerning to the Court in that his relationships are with the children's caregivers.” (emphasis added). According to Defendant, these findings are nothing more than speculative attempts on the part of the trial court to peer into the future. However, it is clear to us from an examination of the findings upon which this aspect of Defendant's challenge to the trial court's order rests that the trial court did not do anything more than attempt to engage in a permissible attempt to determine the likelihood that the circumstances in question will affect the children in the future.
In addition, Defendant directs our attention to the trial court's finding that “Plaintiff will abide by a realistic visitation schedule to be arranged to preserve and foster the parental relationship with the father” (emphasis added), and argues that the trial court cannot predict Plaintiff's future conduct. However, we stated in Ramirez–Barker that, “[i]n exercising its discretion in determining the best interest of the child[ren] in a relocation case, factors appropriately considered by the trial court include ... the likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the noncustodial parent.” Ramirez–Barker, 107 N.C.App. at 79–80, 418 S.E.2d at 680. Thus, the trial court's finding concerning the likelihood that Plaintiff would abide by the visitation schedule that the trial court intended to adopt is identical to a finding that we upheld in Ramirez–Barker. As a result, Defendant is not entitled to relief from the trial court's order on the basis of this argument.
III. Conclusion
Thus, for the reasons set forth above, we conclude that none of Defendant's challenges to the trial court's order modifying the custody arrangement relating to the parties' children have merit. As a result, the trial court's order should be, and hereby is, affirmed.
AFFIRMED. Judges STROUD and McCULLOUGH, concur.
Report per Rule 30(e).