Evans v. Evans
Decision Date | 16 May 2000 |
Docket Number | No. COA99-355.,COA99-355. |
Citation | 138 NC App. 135,530 S.E.2d 576 |
Court | North Carolina Court of Appeals |
Parties | Mitchell Garnet EVANS v. Vonda Wilson EVANS. |
The Rosen Law Firm, by Lee S. Rosen, Raleigh, for plaintiff-appellee.
W. Michael Spivey, Rocky Mount, for defendant-appellant.
This is an appeal from an order modifying a custody decree based on a change of circumstances. The plaintiff and the defendant are the parents of Mitchell Evans, Jr., who was born 1 May 1991. Mr. and Mrs. Evans divorced 25 May 1994. Upon divorce, Mrs. Evans, the defendant-appellant, was given primary physical custody of the child, and Mr. Evans was given visitation rights.
Later, plaintiff-husband and defendant-wife each remarried. The defendant-wife's new husband lives in Maryland. Mrs. Evans planned to relocate with the child to live with her new husband in Maryland, but has not yet moved. In response to defendant's plans to move, the plaintiff filed a "Motion in the Cause for Change of Circumstances" requesting that "the primary care, custody and control of the child be placed with the Plaintiff." The plaintiff also requested "[t]hat the court order that the child not be taken out of the State of North Carolina except as is reasonably necessary for brief vacations and trips for travel...."
After a hearing, the trial court made the following pertinent findings of fact:
Based on these findings, the trial court made the following pertinent conclusions of law:
The trial court then ruled "[t]hat for so long as the Defendant shall continue to remain in the immediate vicinity, then the parties shall continue to have and share joint custody of the minor child, with the primary placement with the Defendant." However, if the defendant-mother leaves North Carolina to join her new husband in Maryland, then the primary custody of the child will be awarded to the plaintiff-father. The record on appeal indicates that the mother currently remains in North Carolina. The defendant-mother appeals from this ruling.
We first address whether the trial court's findings of fact support its conclusions of law and the judgment entered. Once the custody of a minor child is determined by a court, that order cannot be altered until it is determined (1) that there has been a substantial change in circumstances affecting the welfare of the child, see Hamilton v. Hamilton, 93 N.C.App. 639, 647, 379 S.E.2d 93, 97 (1989), N.C.G.S. § 50-13.7(a)(1999); and (2) a change in custody is in the best interest of the child. See Thomas v. Thomas, 259 N.C. 461, 467, 130 S.E.2d 871, 876 (1963)
. 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. See Crosby v. Crosby, 272 N.C. 235, 237, 158 S.E.2d 77, 79 (1967). The change in circumstances need not have adverse effects on the child. See Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998).
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. See Ramirez-Barker v. Barker, 107 N.C.App. 71, 77, 418 S.E.2d 675, 678 (1992)
. However, if the party does show that there has been a substantial change in circumstances, there is no burden of proof on the "best interest" question. See In re Shue, 311 N.C. 586, 597, 319 S.E.2d 567, 574 (1984).
Although the parties have an obligation to provide the court with any pertinent evidence relating to the "best interest" question, the trial court has the ultimate responsibility of requiring production of any evidence that may be competent and relevant on the issue. The "best interest" question is thus more inquisitorial in nature than adversarial.
Ramirez-Barker, 107 N.C.App. at 78, 418 S.E.2d at 679.
418 S.E.2d at 679 (quoting Domingues v. Johnson, 323 Md. 486, 499, 593 A.2d 1133, 1139 (1991)). However, evidence of "speculation or conjecture that a detrimental change may take place sometime in the future" will not support a change in custody. Wehlau v. Witek, 75 N.C.App. 596, 599, 331 S.E.2d 223, 225 (1985).
disc. rev. denied, 298 N.C. 568, 261 S.E.2d 122 (1979). Similarly, a change in the custodial parent's residence is not itself a substantial change in circumstances affecting the welfare of the child which justifies a modification of a custody decree. See Gordon v. Gordon, 46 N.C.App. 495, 500, 265 S.E.2d 425, 428 (1980).
In Gordon v. Gordon, 46 N.C.App. 495, 265 S.E.2d 425 (1980), the trial court ordered a change in primary custody of a child to the mother after concluding that there had been a substantial change in circumstances because the father and child had relocated. This Court vacated the trial court's order, stating:
In the case sub judice, the only finding of change of...
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