Opinion
No. COA12–1194.
2013-03-5
James McKEE, Plaintiff–Appellee, v. Cathriona SMITH, Defendant–Appellant.
No brief filed for Plaintiff–Appellee. Cranfill Sumner & Hartzog LLP, by Michelle D. Connell, for Defendant–Appellant.
Appeal by Defendant from judgment entered 10 May 2012 by Judge Sarah C. Seaton in District Court, Onslow County. Heard in the Court of Appeals 11 February 2013. No brief filed for Plaintiff–Appellee. Cranfill Sumner & Hartzog LLP, by Michelle D. Connell, for Defendant–Appellant.
McGEE, Judge.
James McKee (Plaintiff) filed a complaint against Cathriona Smith (Defendant), seeking a divorce. The trial court granted the divorce on 11 February 2009. One child was born of the marriage. Defendant relocated to Eugene, Oregon in December 2009. The trial court awarded primary custody of the child to Defendant and “secondary custody” to Plaintiff four months of each year. Plaintiff filed a motion seeking primary custody, and the trial court awarded primary custody to Plaintiff, beginning in January 2013. Defendant appeals.
Defendant first argues the trial court erred by making findings that were not supported by substantial evidence. “When reviewing a trial court's decision to grant or deny a motion for the modification of 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.” Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
The trial court found “the distance between California and Oregon will still be at least 18 hours by car thereby continuing to necessitate air travel.” No evidence in the record supports this finding. The trial court erred in making this finding.
Defendant next argues the trial court erred in concluding that there had been a substantial change in circumstances since the previous order. We agree.
This Court must determine whether the trial court's findings support its conclusions of law. Shipman, 357 N.C. at 475, 586 S .E.2d at 254. The “trial court must determine whether there has been a substantial change in circumstances and whether that change affected the minor child.” Id.
The trial court concluded there was a substantial change in circumstances, as supported by the following findings:
a. [ ] Plaintiff anticipates relocating to California by September 2012.
b. [ ] Defendant and her husband will complete their education in the spring of 2013 and it is possible they will relocate.
c. [ ] the distance between California and Oregon will still be at least 18 hours by car thereby continuing to necessitate air travel.
d. [ ] the child will be commencing 1st grade in the fall of 2012.
As to finding 16(a), even assuming arguendo that the relocation is evidence that Plaintiff is a suitable parent, the evidence does not negate Defendant's suitability to parent. This Court has held that such evidence “does not represent a change of circumstances.” Wehlau v. Witek, 75 N.C.App. 596, 599, 331 S.E.2d 223, 225 (1985), disapproved of on other grounds by Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998).
As to finding 16(b), a court cannot modify a custody order based on speculation or conjecture that a change in circumstances may take place sometime in the future. Wehlau, 75 N.C.App. at 599, 331 S.E.2d at 225. Finding 16(b) does not rise above mere speculation or conjecture and cannot support a conclusion of law. As previously discussed, finding 16(c) is unsupported by substantial evidence and cannot support a conclusion of law.
As to finding 16(d), this Court has held that simply obtaining “more maturity” does not constitute a sufficient change in circumstances affecting the welfare of the child. Hassell v. Means, 42 N.C.App. 524, 531, 257 S.E.2d 123, 127 (1979). The findings in support of the conclusion that there was a substantial change in circumstances are either unsupported by evidence in the record or do not show a change in circumstances. The findings do not support the conclusion that there was a substantial change in circumstances.
Reversed. Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).