Ellenberger v. Ellenberger
| Decision Date | 06 September 1983 |
| Docket Number | No. 8229DC976,8229DC976 |
| Citation | 63 N.C.App. 721,306 S.E.2d 190 |
| Court | North Carolina Court of Appeals |
| Parties | Timothy ELLENBERGER v. Carol ELLENBERGER. |
Potts & Welch by Paul B. Welch, III, Brevard, for plaintiff, appellee.
Margaret McDermott Hunt, Brevard, for defendant, appellant.
Defendant assigns as error the court's "modification of a custody decree without finding that there had been a substantial change of circumstances that adversely affected the welfare of the child." She contends that under N.C.Gen.Stat. Sec. 50-13.7(a) the previous order awarding her custody of the child could be modified only upon a showing of changed circumstances and that there was no such showing.
N.C.Gen.Stat. Sec. 50-13.7(a) states that "[a]n order of a court of this State for custody ... of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party...." In Harris v. Harris, 56 N.C.App. 122, 286 S.E.2d 859 (1982) this court reiterated the rule that "the modification of a custody decree must be supported by findings of fact based on competent evidence that there has been a substantial change of circumstances affecting the welfare of the child, and the party moving for such modification assumes the burden of showing such change of circumstances." Id. at 124, 286 S.E.2d at 860 (citations omitted).
Plaintiff contends that the order of 6 August 1981 was interlocutory in nature, and that the requirement of a substantial change of circumstances is inapplicable to such an order. He argues that the "initial custody order ... is clearly denominated 'temporary.' " While it is true that the 6 August 1981 order has some characteristics of a "temporary" order, we note that all orders awarding custody are in a sense "temporary." It is well-established that a court decree awarding custody of a minor child is never final in nature. "Such a decree determines only the present rights with respect to such custody...." Neighbors v. Neighbors, 236 N.C. 531, 533, 73 S.E.2d 153, 154 (1952) (emphasis added) (citations omitted).
The evidence in the present case tends to show that Mark, the minor child, remained with defendant when she and her husband first separated, and that this arrangement was continued by the order of 6 August 1981. Plaintiff made no contribution to Mark's support after defendant was awarded custody of the child, according to the record, and plaintiff sought modification of the custody order only after defendant sought child support. The court found as a fact that both parents were "fit and proper persons to exercise custody." The court also found, however, that ...
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