Opinion
NO. COA12-917
01-15-2013
IRINA MARIE NORDSTROM, Plaintiff, v. JOHN GLOVER SHAW, JR., Defendant.
Marshall & Taylor, P.C. by Travis R. Taylor for plaintiff-appellant. Vitale Family Law by Ryan M. Tarrant for defendant-appellee.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Wake County
No. 10 CVD 8266
Appeal by plaintiff from order entered 23 December 2011 by Judge Anna E. Worley in Wake County District Court. Heard in the Court of Appeals 12 December 2012.
Marshall & Taylor, P.C. by Travis R. Taylor for plaintiff-appellant.
Vitale Family Law by Ryan M. Tarrant for defendant-appellee.
, Judge.
The trial court's findings of fact were supported by substantial evidence. These findings in turn supported the trial court's conclusion of law that there had been a substantial change in circumstances affecting the welfare of the children and that a change in the custody arrangements was in the best interest of the children. The trial court's order changing the custody arrangments is affirmed.
I. Factual and Procedural History
Plaintiff and defendant married on 22 May 1999, separated on 20 April 2009, and divorced on 11 June 2010. Two children were born of the marriage, Hannah (born 27 September 2002) and Alexander (born 27 January 2003). On 12 May 2010, plaintiff filed a complaint seeking custody of the children. On 4 June 2010, defendant filed an answer and counterclaim, along with a motion seeking a temporary restraining order to prevent plaintiff from removing the children to Oregon. On 8 June 2010, the trial court entered a temporary order, barring plaintiff from removing the children from North Carolina.
On 4 August 2010, plaintiff and defendant entered into a parenting agreement, which was approved and adopted as an order of the court on 3 September 2010. This agreement provided that the children would primarily reside with plaintiff. Defendant would have the children every other weekend, along with an overnight stay every other Monday and Thursday. The agreement further provided that:
All major decisions concerning education and non-emergency medical and dental treatment of Hannah Shaw and Alexander Shaw will be discussed by both parents and mutually
agreed upon.
The parents will notify each other of any anticipated move that would require a change in schedule as outlined in this parenting agreement. They will give a minimum of sixty days notice prior to the move to allow them to make needed changes by mutual agreement, through mediation, or through a court process.
At the time that the court adopted the parenting agreement, plaintiff resided in Franklin County and defendant resided in Wake County. These residences were approximately 5 minutes away from the children's school in Wake County. In September of 2010, plaintiff's boyfriend from Oregon moved in with plaintiff and the children. On 1 November 2010, plaintiff sent defendant a notice that she intended to move to Chapel Hill with the children, and enroll them in the Orange County Schools. Plaintiff advised defendant that this "did not require his permission or consent." Following an unsuccessful mediation, plaintiff filed a motion requesting that a procedure be established to resolve disputes between the parties. On 10 December 2010, defendant filed a motion to modify child custody and preserve the status quo. On 3 February 2011, the trial court entered an order restraining plaintiff from removing the children from their present school pending a final hearing, and setting that hearing for 13 May 2011. This order was entered nunc pro tunc 13 December 2010.
On 22 December 2011, the trial court entered an order modifying child custody. The children were to be with defendant overnight on every Monday and Tuesday, and with plaintiff overnight on every Wednesday and Thursday. The parties were to have the children on alternate weekends, Friday through Sunday night. The children were ordered to attend school in defendant's school district.
Plaintiff appeals.
II. Standard of Review
"In a child custody case, the trial court's findings of fact are conclusive on appeal if supported by substantial evidence, even if there is sufficient evidence to support contrary findings." Peters v. Pennington, ___ N.C. App. ___, ___, 707 S.E.2d 724, 733 (2011) (reviewing a modification order). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. "The trial court's conclusions of law must be supported by adequate findings of fact." Id.
III. Challenges to Findings of Fact
In her first argument, plaintiff contends that the trial court erred by making findings of fact that were not supported by substantial evidence. We disagree.
Plaintiff's brief purports to challenge a number of findings of fact, but only discusses findings 63, 74, and 58 in this argument. We discuss these challenges below. Plaintiff acknowledges that findings of fact 46, 83, 90, and 94 are discussed in her second argument, and not in the first argument. The discussion in the second argument is whether these findings support the trial court's conclusions of law. We discuss those findings in the context of plaintiff's second argument in section IV of this opinion.
A. Finding of fact 53
Plaintiff challenges finding of fact 53 as unsupported by substantial evidence. The trial court found as fact that: "Hannah's three good friends are being dispersed to different schools in Wake County as a result of transitioning to Middle School for the 2011-2012 school year, one of them will attend Heritage, one Wakefield, and one Ligon. The majority of students from North Forest Pines attend Heritage."
This finding is supported by substantial evidence in the record. Defendant testified that Hannah's three closest friends would be dispersed to different schools. Defendant further testified that "just about all the kids in Hannah's class right now will be going to Heritage[.]" Finding of fact 53 is conclusive on appeal.
We further note that this finding is not germane to the trial court's decision. The dispersal of Hannah's friends to different schools does not support keeping her in the Wake County schools.
B. Finding of fact 74
Next, plaintiff challenges finding of fact 74. The trial court found as fact that: "Plaintiff went to Ligon Middle [S]chool to see if it was a potential middle school alternative for Hannah compared with her base school in Wake Forest and the year-round school[,] Heritage Middle. Plaintiff had no intention to enroll Hannah in Ligon Middle school if she was accepted."
This finding is supported by substantial evidence in the record. Plaintiff testified that she "went and spoke with the people inside the office" at Ligon Middle School. Plaintiff further testified that she did not consider Ligon Middle School to be an option. Finding of fact 74 is conclusive on appeal.
We further note that this finding is not germane to the trial court's decision. One of the few things that the parties agreed upon was that Hannah should not attend Ligon Middle School.
C. Finding of fact 58
Plaintiff challenges finding of fact 58. The trial court found as fact that: "Both parents agreed that the children should remain in Wake Forest schools after they separated and the children should continue to attend school in this school district unless both parents otherwise agree."
This finding is supported by substantial evidence in the record. Plaintiff testified that the parties agreed that the children would continue in Wake County schools for the 2010 school year. Further, the provision of the parenting agreement requiring mutual agreement of the parties for major decisions concerning the education of the children supports this finding of fact. Finding of fact 58 is conclusive on appeal.
IV. Conclusions of Law
In her second argument, plaintiff contends that the trial court's conclusions of law that a substantial change in circumstances affecting the minor children occurred and that the modification in custody was in the best interests of the children were not supported by the findings of fact. We disagree.
To modify an order for child custody, N.C. Gen. Stat. § 50-13.7(a) requires a "motion in the cause and a showing of changed circumstances[.]" N.C. Gen. Stat. § 50-13.7(a) (2011).
This Court has held that, once the custody of a minor child is judicially determined, that order of the court cannot be modified until it is determined that (1) there has been a substantial change in circumstances affecting the welfare of the child; and (2) a change in custody is in the best interest of the child.Warner v. Brickhouse, 189 N.C. App. 445, 450, 658 S.E.2d 313, 317 (2008) (emphasis removed) (internal quotation marks omitted).
Plaintiff argues that the trial court's findings of fact do not support a conclusion that a substantial change of circumstances occurred; that the findings do not support a conclusion that a change in circumstances affected the children; and that the findings do not support a conclusion that a modification of the child custody order is in the children's best interest.
A. Substantial Change in Circumstances Affecting the Minor
Children
The trial court concluded that there "has been a substantial change in circumstances as set forth above in the findings of fact warranting a custody modification." In finding of fact 46, the trial court lists the changes in circumstances that affect the children.
A. The commute from the Plaintiff's residence in Chapel Hill, North Carolina to the children's school at North Forest Pines Elementary was increased by about 40 miles that takes 40 minutes to an hour to drive, depending on the traffic. Plaintiff testified that this "situation is impossible".Plaintiff argues that this finding does not support a conclusion that a substantial change in circumstances occurred.
B. This commute is not working for the children or either party. The commute lasts 90 minutes to 2 hours for the children. It requires the children to be on the road early in the morning to commute on a regular basis.
C. Plaintiff relocated to Chapel Hill, North Carolina from Wake Forest, NC without good reason. She continued to work in Garner, NC, approximately 40 minutes from Chapel Hill, she attended a Yoga school in Raleigh and the children attend school in Wake Forest. Colin Nordstrom traveled for work all week over an hour away from Chapel Hill.
D. The Plaintiff has acted unilaterally in making decisions for the children, despite the order requiring consultation, including, but not limited to cancelling after school care at the YMCA, withdrawing the children from previously arranged extracurricular
activities, such as basketball, without notice or discussion with the Defendant, enrolling the children in extracurricular activities in Chapel Hill without consultation or discussion with the Defendant and telling the Defendant she is moving the children, changing their school, and hiring a nanny to drive them.
E. Plaintiff's move has limited her resources in that she decreased her income by taking a voluntary pay cut of $5,000.00, and increased her living expenses by hiring a nanny to drive the children to and from Wake Forest at a cost of $275.00, increased her rent by $650.00, and increased her gas expense to $675.00.
F. Wake Forest, North Carolina has an established group of friends and neighbors who support the Plaintiff, the Defendant, and the children. When the Plaintiff is at work in Garner, and the children are in Chapel Hill, there is not a nearby support network in the event of an emergency. For example, when the Plaintiff's rental home was broken into in April 2011.
G. The Plaintiff's unilateral decision to move was not for a job or for a person. Her move impacted the ability of the parties to cooperate and agree upon things affecting the children and has deteriorated significantly since the Plaintiff's move to Chapel Hill.
A "change in a custodial parent's residence is not itself a substantial change in circumstances justifying a modification of a custody decree." Ramirez-Barker v. Barker, 107 N.C. App. 71, 78, 418 S.E.2d 675, 679 (1992). "If, however, the relocation is detrimental to the child's welfare, the change in residence of the custodial parent is a substantial change in circumstances and supports a modification of custody." Ramirez-Barker, 107 N.C. App. at 79, 418 S.E.2d at 679.
In the instant case, the trial court made detailed findings of fact regarding the detriment to the children's welfare: "83. Plaintiff's unilateral decision to move to Chapel Hill has caused problems. The children have been impacted by the significantly longer drive to and from school." "84. The children haven't been able to participate in the same activities as they were previously participating."
Plaintiff argues that finding of fact 83 is unsupported by evidence. This finding of fact is supported by substantial evidence in the record. The parenting coordinator testified that plaintiff used the length of the drive as a reason to keep the children home from school. The relocation is detrimental to the children's welfare. Therefore, the change in plaintiff's residence is a substantial change in circumstances that supports a modification of custody. Ramirez-Barker, 107 N.C. App. at 79, 418 S.E.2d at 679. Moreover, plaintiff fails to challenge finding of fact 84. "Unchallenged findings of fact are binding on appeal." Peters, ___ N.C. App. at ___, 707 S.E.2d at 733.
The trial court's findings of fact adequately support its conclusion that there was a substantial change in circumstances affecting the minor children.
B. Best Interests of the Children
The trial court concluded that it "is in the children's best interests that custody be modified as set forth herein." The trial court made finding of fact 90 regarding the best interests of the children:
It is in the best interests of the children to remain in school in the Defendant's school district. The children have an established community, perform well, and know their teachers and fellow students. However there should be less travel time each week from Plaintiff's residence in Chapel Hill to each child's school.Plaintiff argues that this finding of fact is unsupported by substantial evidence in the record. However, her argument does not identify a dearth of evidence in the record supporting this finding, but rather that the court should have adopted her position that the children should live with her and attend the Chapel Hill schools. She contends that the children would be challenged academically and would "avoid academic complacency" by being enrolled in the Chapel Hill schools.
We hold that finding of fact 90 is an ultimate finding of fact, based upon evidentiary facts found earlier in the order. See Woodard v. Mordecai, 234 N.C. 463, 470, 67 S.E.2d 639, 644 (1951). This finding is supported either by evidentiary findings that are not challenged on appeal, or by findings that we have found to be supported by the evidence. The trial court found that both "children have performed well in the Wake Forest schools and are well-adjusted in this district, and should remain in this district." This finding is unchallenged on appeal. Finding 46F, set forth above, emphasized the importance of a support network near the children's school. Finally, this finding explained the importance of reducing the travel time each week for the children, which was accomplished by having them stay more with defendant each week.
We further hold that the trial court's evidentiary and ultimate findings of fact support its conclusion that the modification of the custody arrangement was in the best interests of the children.
AFFIRMED.
Judges STEPHENS and McCULLOUGH concur.
Report per Rule 30(e).