Opinion
No. COA14–702.
04-07-2015
Yuko KIRKWOOD (now Eades), Plaintiff, v. Jeremy KIRKWOOD, Defendant.
McCotter Ashton, P.A., by Rudolph A. Ashton, III, for plaintiff-appellant. No brief filed on behalf of defendant-appellee.
McCotter Ashton, P.A., by Rudolph A. Ashton, III, for plaintiff-appellant.
No brief filed on behalf of defendant-appellee.
GEER, Judge.
Plaintiff Yuko Eades appeals from an order granting defendant Jeremy Kirkwood's request for modification of a custody order. At the time the original consent order was entered, plaintiff was living with the parties' children in Japan, and defendant was deployed in Afghanistan. Subsequently, plaintiff and the children moved back to North Carolina and the parties shared physical custody. Defendant moved to modify the custody arrangement after discovering that plaintiff intended to relocate to Michigan with her new husband.
On appeal, plaintiff primarily argues that the trial court erred in determining that it is in the children's best interest to remain in North Carolina and have the parties share custody on a week on/week off basis, rather than allowing the children to relocate with plaintiff to Michigan. The majority of plaintiff's arguments amount to a request that we reweigh the evidence, which we cannot do. The trial court found that the children deserve stability, permanency, and the opportunity to have a close relationship with each of their parents and that both parties have the ability to remain in North Carolina. These findings are supported by competent evidence in the record and support the trial court's conclusion that the modification is in the children's best interests. Accordingly, we affirm the order.
Facts
Plaintiff and defendant were married on 9 September 2004. Two children were born of the marriage: Tieler, born 16 March 2005, and Aiko, born 17 October 2006. While they were married, the parties lived in Havelock, North Carolina. Plaintiff is Japanese, and defendant is a Sergeant in the United States Marine Corps. On 1 April 2009, the parties separated and in October 2009, defendant was deployed to Afghanistan. At some point while the parties were separated, plaintiff met Phillip Eades, who was also a Sergeant in the United States Marine Corps.
In April 2010, while still deployed, defendant bought round trip tickets for plaintiff and the children to go to Japan to visit plaintiff's family. Plaintiff, however, did not bring the children back to the United States on the scheduled flights. Instead, plaintiff left the children with her mother in Japan and returned to the United States alone to file a complaint for absolute divorce, equitable distribution, child custody, and child support on 4 August 2010.
On 6 May 2011, while plaintiff and the children were still residing in Japan, the parties entered into a consent order regarding all issues pending between the parties except the issue of absolute divorce. The order granted plaintiff and defendant joint legal care, custody, and control of the minor children. Pursuant to the order, the parties agreed to be equally responsible for the expense of the children's round trip tickets from Japan to the United States to facilitate visitation with defendant. Defendant would be minimally entitled to physical custody of the children for the Christmas holiday of every odd numbered year and for six weeks every 12 months in addition to Christmas.
On 22 May 2011, plaintiff gave birth to Mr. Eades' son Zedadiah. Plaintiff and the children lived in Japan until October 2012. During that time, defendant attempted to arrange visitation with the children, but he only saw them once in August 2012. In October 2012, plaintiff and the children moved to Havelock to live with Mr. Eades. Plaintiff and Mr. Eades got married in November 2012, and their second son, Ezekiel, was born 20 April 2013.
Upon plaintiff's return to North Carolina, plaintiff and defendant shared physical custody of the children. From October 2012 through December 2012, the children stayed with defendant at his home in Jacksonville, North Carolina every weekend. They spent the week in Havelock with plaintiff where they were enrolled at Gurganus Elementary School. However, beginning in January 2013, plaintiff only allowed the children to stay with defendant every other weekend.
In May 2013, Mr. Eades was forced to retire from the Marines due to downsizing. He was offered a Civil Service job at Marine Corps Air Station in Cherry Point, North Carolina, but declined the offer. Mr. Eades instead desired to move to his home state of Michigan and to take plaintiff and the four children with him. Mr. Eades also has a seven-year-old son who resides in Onslow County. He does not have custody of his son but does have regular visitation.
After learning of plaintiff's and Mr. Eades' intent to move to Michigan, defendant filed a motion in the cause on 10 May 2013 requesting a modification of the existing consent order based upon a substantial change in circumstances and requesting an emergency order preventing the plaintiff from removing the children from the State of North Carolina.
A temporary hearing was held on 19 July 2013, after which the trial court ordered that the children remain with defendant until 28 July 2013, at which time they were authorized to go with plaintiff on vacation through 20 August 2013. The court further ordered that the children not be removed from the United States and that plaintiff surrender the children's United States and Japanese passports to plaintiff's counsel.
The hearing resumed on 21, 22, and 23 August 2013. On 29 August 2013, the trial court entered a memorandum of judgment/order requiring the children to remain in Craven County and to remain enrolled in Gurganus Elementary School, and granting joint legal custody on a week on/week off basis. On 4 December 2013, the trial court entered a formal order in which it concluded that a substantial change in circumstances had occurred which materially affected the welfare of the minor children, warranting the modification of the consent order, and that it was in the best interests of the children to remain in Craven County and to have shared custody between plaintiff and defendant, with physical custody rotated on an every other week basis. Plaintiff timely appealed the order to this Court.
Discussion
A custody order may not be modified unless the trial court determines “(1) that there has been a substantial change in circumstances affecting the welfare of the child, and (2) [that] 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). “A party seeking modification of a child custody order bears the burden of proving the existence of a substantial change in circumstances affecting the welfare of the child.” Id., 530 S.E.2d at 579. “If the party bearing the burden of proof does not show that there has been a substantial change in circumstances, the court does not reach the ‘best interest’ question.”Id.
“Our review of a trial court's decision to modify an existing child custody order is limited to determining (1) whether the trial court's findings of fact are supported by substantial evidence; and (2) whether those findings of fact support its conclusions of law.” Spoon v. Spoon,–––N.C.App. ––––, ––––, 755 S.E.2d 66, 69 (2014). “In making the best interest decision, the trial court is vested with broad discretion and can be reversed only upon a showing of abuse of discretion.” Ramirez–Barker v. Barker, 107 N.C.App. 71, 79, 418 S.E.2d 675, 680 (1992), overruled on other grounds by Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998).
Change in Circumstances
When considering a party's request to modify a custody order, “courts must consider and weigh all evidence of changed circumstances which affect or will affect the best interests of the child, both changed circumstances which will have salutary effects upon the child and those which will have adverse effects upon the child. In appropriate cases, either may support a modification of custody on the ground of a change in circumstances.” Pulliam, 348 N.C. at 619, 501 S.E.2d at 899. Where “the effects of the change on the welfare of the child are not self-evident,” it “necessitate[s] a showing of evidence directlylinking the change to the welfare of the child[,]” and requires that “the trial court make findings of fact regarding that connection.” Shipman v. Shipman, 357 N.C. 471, 478, 586 S.E.2d 250, 255, 256 (2003).
Here, the trial court's findings show that when the original order was entered, plaintiff lived in Japan with the children and defendant was deployed in Afghanistan. Since that time, plaintiff relocated from Japan back to North Carolina, married Mr. Eades, had two more children, and planned to relocate again to Michigan. In North Carolina, remarriage or relocation of a custodial parent, standing alone, is not considered a substantial change in circumstance absent findings of fact indicating the effect of the remarriage or relocation on the welfare of the children. Evans, 138 N.C.App. at 141, 530 S.E.2d at 579.
The trial court made the following findings regarding the effect the relocation had on the children's welfare. While the children were living in Japan, defendant did not see them for approximately 21 months. However, since the children returned to Craven County in October 2012, defendant has exercised all custodial time with the children that plaintiff would allow. Defendant has a strong and loving relationship with his children, and they have thrived in his care. Academically, the children struggled at first to adapt to school in the United States, but with the help of both parents and the personnel at their school, they have made satisfactory progress. The children “have had their physical residence changed many times in their short lives” but are accustomed to living in Craven County, which is where they lived the majority of their lives. The trial court found that the children deserve stability, permanency, and the opportunity to have a close relationship with both their parents.
Plaintiff does not challenge any of these findings, and therefore they are binding on appeal. These findings show that the trial court considered how the relocation affected the children's school work, their relationship with their parents, and their need for stability. Such findings are sufficient to show that the children's relocation from Japan to North Carolina constituted a substantial change in circumstances that had a positive impact on the welfare of the children, warranting modification of the consent order. See Spoon,––– N.C.App. at ––––, 755 S.E.2d at 73 (upholding trial court's conclusion that relocations amounted to substantial change in circumstances affecting welfare of children where conclusion was supported by findings that moves were stressful for children and their academic performance declined); Carlton v. Carlton, 145 N.C.App. 252, 263, 549 S.E.2d 916, 924 (Tyson, J., dissenting) (holding that trial court made sufficient findings as to effect of changed circumstances on welfare of child where findings addressed effect of changes on child's school work and child's need for stability), reversed for reasons stated in dissent,354 N.C. 561, 557 S.E.2d 529 (2001) ; Ramirez–Barker, 107 N.C.App. at 79, 418 S.E.2d at 679 (holding trial court's finding that child had close relationship with both parents and needed input from both parents supported conclusion that proposed relocation of mother constituted substantial change affecting welfare of child).
Plaintiff, however, argues that findings of fact 14(b), (c), (d), and 21 are not supported by evidence. Those findings state:
[14.] b. Although the Consent Order authorized the Defendant's ability to communicate freely with the minor children via telephone, the Defendant's contact with the children was limited by the Plaintiff, while they were living in Japan.
c. The Plaintiff did not consult with the Defendant regarding decisions relating to the minor children's health, education and welfare while she lived with the children in Japan.
The Defendant attempted to arrange visits with the minor children in the United States at several times from May 6, 2011, until October, 2012.
....
21. Beginning in January, 2013, the Plaintiff unilaterally cut back the Defendant's custodial time with the minor children to every other weekend.
Each of these findings is supported by defendant's testimony at the hearing. As this Court has explained, “in most child custody cases, the determination of the evidence is based largely on an evaluation of the credibility of each parent. Credibility of the witnesses is for the trial judge to determine, and findings based on competent evidence are conclusive on appeal, even if there is evidence to the contrary.” Woncik v. Woncik, 82 N.C.App. 244, 248, 346 S.E.2d 277, 279 (1986) (internal citations omitted). Plaintiff's challenge to these findings amounts to a request that we reweigh the evidence, which this Court is not permitted to do. See id.
Plaintiff argues, alternatively, that the findings are irrelevant because the children are back in the United States and “appear[ ] to be loved and cared for appropriately by all sides.” With respect to finding 14(b), plaintiff asserts that defendant's visitation was limited while the children lived in Japan due to the distance, and that therefore plaintiff's and the children's move from Japan to North Carolina would not adversely affect the children. Similarly, plaintiff argues that finding 21—that plaintiff limited defendant's custodial time with the children once they returned to North Carolina—did not adversely affect the children because there was not a visitation schedule in the original consent order. These arguments hinge on the assumption that defendant must show that the change has an adverse effect on the minor children. As established by Pulliam,this is not the standard.
Curiously, plaintiff acknowledges the standard set by Pulliam later in her brief.
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Additionally, this Court has recognized that “although interference [with a non-custodial parent's visitation rights] alone is not enough to merit a change in the custody order, ‘where interference [with visitation] becomes so pervasive as to harm the child's close relationship with the noncustodial parent,’ it may warrant a change in custody.” Stephens v. Stephens, 213 N.C.App. 495, 499, 715 S.E.2d 168, 172 (2011) (quoting Shipman, 357 N.C. at 479, 586 S.E.2d at 256 ). In Shipman,our Supreme Court held that the plaintiff-mother's denial to the defendant-father of any visitation with their child during a period of 19 months was “more than simply an interference or frustration with [defendant-father's] rights, as it encompassed a considerable period .” 357 N.C. at 479, 586 S.E.2d at 256. When considered along with the trial court's findings that the child had a good relationship with the defendant-father and an unstable home life with plaintiff-mother due to her transient living arrangements, the Supreme Court concluded that the trial court's findings were sufficient to establish that the plaintiff-mother's interference with defendant-father's visitation rights had a negative impact on the child and warranted a modification of the custody order. Id.at 481, 586 S.E.2d at 258.
Here, the findings that plaintiff limited defendant's contact with the children while they were in Japan and then unilaterally cut back defendant's custodial time with the children after they returned to North Carolina are relevant. When considered with the trial court's findings that defendant has a strong and loving relationship with his children, that the children thrive in defendant's care, and that, despite making several attempts to arrange visits, defendant did not see his children for approximately 21 months—a “considerable period” of time, id.at 479, 586 S.E.2d at 256 —the findings tend to show that plaintiff's interference with defendant's visitation rights was “so pervasive as to harm the [children's] close relationship with [defendant such that] there can be a conclusion drawn that the actions of [plaintiff] show a disregard for the best interests of the child[ren], warranting a change of custody.” Woncik, 82 N.C.App. at 248, 346 S.E.2d at 279.
In sum, we hold that the trial court's findings are supported by the evidence and sufficient to support the conclusion that a substantial change in circumstances had occurred that affected the welfare of the children. Specifically, the trial court's findings tend to show that the children's relocation from Japan to the United States was a substantial change that positively affected the welfare of the children and that plaintiff's interference with defendant's visitation rights and plaintiff's proposal to relocate the children to Michigan interfered with the children's ability to have a close relationship with both parents and with their need for stability.
Best Interests
“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. Here, the trial court determined that it was in the children's best interest to remain in Craven County and to have the parties share custody on a week on/week off basis. Plaintiff argues this was error.
Plaintiff asserts that it is in the children's best interests to relocate to Michigan and points to evidence in the record showing that the children have resided with plaintiff the majority of their lives, that the children are bonded with their younger half-siblings, that Mr. Eades' family lives in Michigan and that there will be better job opportunities for Mr. Eades and educational opportunities for the children in Michigan. These arguments simply ask that we reweigh the evidence, which we cannot do.
Plaintiff challenges the trial court's finding that relocating the children to Michigan would significantly impair defendant's ability to regularly see his children. Plaintiff asserts that, as evidenced by this finding, the trial court failed to consider that the parties are military families, and, as such, may be transferred and relocated. She notes that defendant's ability to see his children is more favorable now than it was when they were in Japan, and that had Mr. Eades not retired from the military, he could have been transferred to somewhere even farther than Michigan. In other words, plaintiff argues that defendant's ability to see his children is not impaired by the children's relocation to Michigan because, hypothetically, they could move farther away. Along the same lines, plaintiff asserts generally that shared custody in a military family is not practical due to the possibility of being transferred. Plaintiff does not point to any evidence in the record to support her position. In fact, the record shows that Mr. Eades is retired from the military and no longer subject to transfer. That defendant's ability to see his children regularly would be impaired if the children moved to Michigan is self-evident and supported by the evidence in the record.
Plaintiff next challenges the trial court's finding that she has the ability to remain in Craven County. She argues that the trial court ignored the fact that plaintiff and Mr. Eades had already moved to Michigan, and, therefore, the trial court should have made findings regarding how a relocation to Michigan would affect the children, and how it would affect the children if the children remained in North Carolina while plaintiff, Mr. Eades, and the two younger children remained in Michigan.
Contrary to plaintiff's assertion, the trial court did not ignore the fact that plaintiff had already moved to Michigan: the order's first finding is that “Plaintiff is a citizen and resident of Michigan.” In the decretal portion of the order, the trial court explains that it “envisions that the Plaintiff intends to move back to Havelock, North Carolina, in order to exercise her custodial time with the children.” These findings show that the trial court was well aware that plaintiff was already residing in Michigan. However, it is evident that the trial court did not view this arrangement as permanent. Indeed, the trial court found that neither plaintiff nor Mr. Eades had secured employment in Michigan, that they planned to live with Mr. Eades' mother—from which we can infer that they had not yet purchased a home or signed a residential lease—and that plaintiff's and Mr. Eades' younger children were not yet school age. In other words, there was nothing preventing them from returning to North Carolina.
Additionally, at the hearings, both plaintiff and Mr. Eades testified that if the court ordered the children to remain in North Carolina, they would move back to North Carolina and Mr. Eades would seek employment here. Thus, the trial court's finding that plaintiff has the ability to remain in Craven County is supported by the evidence in the record and undisputed findings of fact.
Plaintiff next argues that the trial court failed to make sufficient findings regarding how a relocation to Michigan would affect the welfare of the children because the findings were not as extensive as the findings that supported the custody modification orders in Carltonand Crenshaw v. Williams, 211 N.C.App. 136, 710 S.E.2d 227 (2011). Rather, plaintiff asserts, the trial court's findings were analogous to the findings in Evans.In Carlton,the trial court found that the child missed 38 days of school as a result of the mother's absconding with her and incorporated in its order findings from a psychological report of the child that determined that a move to Hawaii with her father would provide needed stability in her life. 145 N.C.App. at 262, 549 S.E.2d at 923 (Tyson, J., dissenting). In Crenshaw,this Court upheld a custody modification order where the trial court made extensive findings regarding the parties' respective incomes and standard of living, their level of involvement in the children's education and extracurricular activities, their style of parenting and ability to take care of the children's medical needs. 211 N.C.App. at 145, 710 S.E.2d at 233–34. Although these cases hold that such findings are sufficient to support the custody order, neither case holds that such findings are required.
In Evans,the trial court granted the father's request to modify the custody order based upon its finding that the proposed relocation of the mother would adversely affect the relationship between the father and his child. 138 N.C.App. at 141, 530 S.E.2d at 579. This Court reversed because “the court made no findings of fact indicating the effect of the remarriage and relocation on the child himself. The trial court's findings do not discuss the impact of the proposed move on the child.” Id., 530 S.E.2d at 580.
Here, unlike in Evans,it is evident from the trial court's findings that it did consider how moving to Michigan would impact the children. The trial court found that the children thrived under the current arrangement in North Carolina: they had a close and loving relationship with defendant, had adapted to school, and were accustomed to living in Craven County. As this Court recognized in Ramirez–Barker,“it will be a rare case where the child will not be adversely affected when a relocation of the custodial parent and child requires substantial alteration of a successful custody-visitation arrangement in which both parents have substantial contact with the child.” 107 N.C.App. at 79, 418 S.E.2d at 680. It is evident from the trial court's findings that it believed relocating the children to Michigan would not only deprive the children of the opportunity to have a close relationship with both of their parents, but it would also deprive them of stability and permanency, which, thus far in their lives, has been lacking.
The trial court did not make more extensive findings regarding how a move to Michigan would affect the children because the plaintiff and Mr. Eades expressed a willingness and ability to remain in North Carolina. Although plaintiff asserts on appeal that she intended to remain in Michigan, this assertion is contrary to her testimony at the hearing.
In short, the trial court's findings establish that the children had successfully adapted to life in North Carolina, had developed a close relationship with defendant, and were deserving of stability, permanency, and a close relationship with both of their parents. Additionally, both parties had the ability to remain in Craven County. These findings are supported by competent evidence and are sufficient to support the trial court's conclusion that it was in the best interests of the children for the parties to remain in North Carolina and share custody on a week on/week off basis. See id.at 80, 418 S.E.2d at 680 (holding trial court did not abuse its discretion in determining that it was in best interest of child to remain in North Carolina and maintain current shared custody and visitation arrangement rather than relocate to California with mother when trial court found that child prospered under current custody-visitation arrangement, had close relationship with both parents, and that evidence did not show that relocation to California would necessarily benefit child). Accordingly, we affirm the order.
AFFIRMED.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).
Opinion
Appeal by plaintiff from order entered 4 December 2013 by Judge Paul M. Quinn in Craven County District Court. Heard in the Court of Appeals 20 November 2014.