Cash v. Cash

• Decision Date: 21 June 2022
• Docket Number: COA21-156
• Citation: 874 S.E.2d 653
• Parties: Katherine Gledhill CASH (now McGee), Plaintiff, v. Matthew CASH, Defendant.
• Court: North Carolina Court of Appeals

874 S.E.2d 653

Katherine Gledhill CASH (now McGee), Plaintiff,

v.Matthew CASH, Defendant.

No. COA21-156

Court of Appeals of North Carolina.

Filed June 21, 2022

Fox Rothschild LLP, by Michelle D. Connell, Raleigh, and Kip D. Nelson, Greensboro, for plaintiff-appellee.

Plumides, Romano & Johnson, P.C., Charlotte, by Richard B. Johnson, for defendant-appellant.

STROUD, Chief Judge.

¶ 1 Defendant-Father appeals from a trial court's order denying his motion to modify a child custody order. Defendant challenges the trial court's order on four grounds, but we only reach one issue. Because consideration of the effect of changes in circumstances of the minor child includes consideration of how those changes affect the best interests of the child, the trial court abused its discretion by strictly bifurcating the hearing of Defendant's motion to modify the existing child custody order and preventing Defendant from presenting evidence regarding his contentions regarding the best interests of the child. We therefore vacate and remand for the trial court to hold a new hearing where both parties shall be allowed to present evidence regarding the motion for modification, including evidence regarding their contentions as to how the changes in circumstances may affect the best interests of the child, either negatively or positively, and for the court to enter a new order ruling on Defendant's motion to modify the child custody order following the hearing.

I. Background

¶ 2 Defendant-Father and Plaintiff-Mother married in 2007 and had one child in 2008. As part of their subsequent divorce, they entered into a consent child custody order on 12 February 2010. The consent child custody order granted primary legal and physical custody to Plaintiff with regular weekly and weekend visitation for Defendant as well as holiday visitation, summer visitation, and further visitation as the parties agreed. When the consent order was entered, the child was about a year and a half old.

¶ 3 During the next few years, Plaintiff remarried and had additional children. The child whose custody is at issue here began school and began receiving additional academic support as needed, including speech therapy and tutoring in math and reading. The child was also diagnosed with ADD and started medication as a result. Defendant only exercised his summer visitation twice and had different job schedules that affected his regular visitation. To account for the disruptions to Defendant's regular visitation, the parties agreed to allow Defendant additional visitation. Perhaps due to these accommodations as to the visitation schedule, Defendant did not file any contempt or modification motions for many years.

¶ 4 On or about 14 August 2018, Defendant filed a motion to modify the child custody order alleging a "substantial and material change in the circumstances" since the time of the consent custody order. Specifically, Defendant alleged: Plaintiff had denied him visitation; Plaintiff had placed conditions on contact with the child, including Defendant paying her more money; Plaintiff had blocked Defendant on the child's cellphone; Plaintiff berated Defendant in front of the child, "which is not in the best interest of the minor child"; Plaintiff told Defendant the child does not want custody to change; the child cries when Defendant drops him off at Plaintiff's residence and asks to spend more time with Defendant, which Plaintiff does not allow; Plaintiff does not keep Defendant informed about the child's medical treatment or medications; Plaintiff "interrogates the minor child" after his visitation with Defendant about Defendant's romantic relationships; Plaintiff schedules the child's activities for weekends Defendant has visitation; Plaintiff does not allow the child to be involved with sports; Plaintiff has other children and cannot devote enough time to care for the parties’ child; and Defendant has his own house and accommodations for the child. Defendant also alleged "[i]t is in the best interest of all parties" to give Defendant primary custody of the child with appropriate visitation and requested modification of the consent child custody order.

¶ 5 The trial court held a hearing on the motion to modify the child custody order over two days, 2 October 2019 and 13 February 2020. At the hearing, Defendant presented testimony from five witnesses: himself, two co-workers of Defendant, Defendant's new wife, and Plaintiff. All the witnesses discussed the parties’ current circumstances to address Defendant's allegation of substantial and material changes in circumstances since the entry of the consent custody order. But the trial court limited the Defendant's presentation of evidence regarding the best interest of the child, as discussed in more detail below.

¶ 6 In addition to Defendant's five witnesses, the trial court heard from the minor child off the record in chambers with both parties’ attorneys present. Plaintiff did not present any evidence.

¶ 7 On 9 March 2020, the trial court entered an order denying Defendant's motion to modify the child custody order. First, the trial court recounted the consent custody order and incorporated it by reference. Then, the trial court recounted several changes since the entry of the consent custody order. Specifically, the trial court found: the child had grown from age one to age ten; the child had started school and received the additional support recounted above; the child had been diagnosed with ADD and been prescribed medication to treat it; both parties had remarried; and Plaintiff had additional children. The trial court also made Findings regarding the parties’ current circumstances such as their employment statuses. Finally, the trial court made Findings on all of Defendant's allegations and either found a lack of (credible) evidence to support them or found evidence that contradicted the allegations. Based on those Findings, the trial court further found and concluded Defendant "failed in his burden of demonstrating a substantial and material change in circumstances affecting" the child's welfare. Therefore, the trial court denied Defendant's motion to modify the existing child custody order.

¶ 8 Following the trial court's order, Defendant filed a motion for North Carolina Rule of Civil Procedure 59 relief.¹ The trial court denied the Rule 59 motion, and Defendant filed a written notice of appeal.

II. Analysis

¶ 9 Defendant challenges four components of the order denying his motion to modify the existing child custody order. First, he argues "the trial court abused its discretion by determining there had not been a substantial change of circumstances." (Capitalization altered.) Second, he contends parts of Finding of Fact 10(w) "are not supported by the evidence." (Capitalization altered.) Third, Defendant alleges "the trial court abused its discretion when it failed to make any Findings of Fact regarding its interview of the minor child and the wishes of the minor child." (Capitalization altered.) Finally, Defendant argues the trial court abused its discretion "when it prevented [him] from presenting evidence because it misunderstood the two prong test for a motion to modify child custody." (Capitalization altered.) We agree with Defendant's final argument, so we do not reach his other three arguments. We address that issue after explaining the general law on modifying child custody orders and the standard of review.

¶ 10 An existing child custody order "may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances ...." N.C. Gen. Stat. § 50-13.7(a) (2019). Applying that statute in practice, the trial court has a multi-part analytical process:

The trial court must determine whether there was a change in circumstances and then must examine whether such a change affected the minor child. If the trial court concludes either that a substantial change has not occurred or that a substantial change did occur but that it did not affect the minor child's welfare, the court's examination ends, and no modification can be ordered. If, however, the trial court determines that there has been a substantial change in circumstances and that the change affected the welfare of the child, the court must then examine whether a change in custody is in the child's best interests. If the trial court concludes that modification is in the child's best interests, only then may the court order a modification of the original custody order.

Shipman v. Shipman , 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003) ; see also Lamm v. Lamm , 210 N.C. App. 181, 185–86, 707 S.E.2d 685, 689 (2011) (explaining a trial court must make three separate conclusions to modify a child custody order: "(1) that ‘there has been a substantial change in circumstances,’ (2) that the substantial ‘change affected the minor child,’ and (3) that ‘a modification of custody [is] in the child's best interests[.]’ " (quoting Shipman , 357 N.C. at 475, 586 S.E.2d at 254 ) (alterations in original)).

¶ 11 The requirement for a showing of changed circumstances reflects that

[a] decree of custody is entitled to such stability as would end the vicious litigation so often accompanying such contests unless it be found that some change of circumstances has occurred affecting the welfare of the child so as to require modification of the order. To hold otherwise would invite constant litigation by a dissatisfied party so as to keep the involved child constantly torn between parents and in a resulting state of turmoil and insecurity. This in itself would destroy the paramount aim of the court, that is, that the welfare of the child be promoted and subserved.

Pulliam v. Smith , 348 N.C. 616, 620, 501 S.E.2d 898, 900 (1998) (quoting Shepherd v. Shepherd , 273 N.C. 71, 159 S.E.2d 357, 361 (1968) ) (alteration in original). The trial court's paramount focus on the welfare of the child thus reinforces the other part of the modification standard, the...