Fields v. Fields

Decision Date17 May 2022
Docket NumberCOA20-855
Citation871 S.E.2d 878 (Table)
Parties Jason FIELDS, Plaintiff, v. Veronica FIELDS, Defendant.
CourtNorth Carolina Court of Appeals

The Law Office of Timothy P. Koller, PLLC, by Timothy P. Koller, for plaintiff-appellant.

Pritchett & Burch, PLLC, by Lloyd C. Smith, III, for defendant-appellee.

MURPHY, Judge.

¶ 1 Where a trial court considers an issue in an initial custody determination, that issue cannot later be used to conclude that a substantial change in circumstances justifying a change in child custody has occurred. Additionally, where substantial evidence supports the findings of fact in a child custody modification order, we treat them as binding. Finally, where the findings of fact, in turn, support the trial court's conclusions of law such that the trial court did not abuse its discretion, we will uphold a trial court's finding that a substantial change in circumstances occurred.

¶ 2 Here, the trial court did not improperly consider information in the custody modification order where that information was presented in the initial custody determination. Additionally, all challenged findings of fact were supported by substantial evidence, and the trial court did not abuse its discretion in concluding that a substantial change in circumstances had occurred based on the findings of fact. We affirm.

BACKGROUND

¶ 3 Plaintiff John Fields ("Father") and Defendant Veronica Fields ("Mother") married in 2008 and lived together as husband and wife until they separated in 2017. They share one child, born in July 2011, and both are members of the United States Coast Guard.

¶ 4 Father obtained a judgment of absolute divorce against Mother on 20 August 2018. On 28 January 2019, pursuant to N.C.G.S. § 50-13.7, the Pasquotank County District Court entered an order ("2019 Custody Order") stipulating that the parties would share joint legal and physical custody of their child and laying out various terms pertaining to the scheduling of their shared custody arrangement. The relevant terms of the 2019 Custody Order state:

1. [Mother and Father] shall share joint legal custody of the minor child and it is in the best interest of the minor child for her physical custody to be jointly shared between the parties. The shared custody schedule shall be as follows:
a. Time will be spent as equally as possible, spending two consecutive weeks with each party. However, [Mother's] address shall be used for residency and school purposes, as the primary address of the minor child. In the event [Mother] relocates out of the Elizabeth City area in the school district where the child is currently enrolled, the parties presume that the child's residence shall change to [Father's] address.
b. During the school year: The exchange will take place on Mondays. The receiving party will be responsible for picking her up from school. If that Monday is a holiday or no school is in session, the receiving party will pick her up from the other party's house at 4:00 p.m.
c. During the summer: The exchange will take place on Mondays. The receiving party will be responsible for picking her up from Day Care/Summer Camp. If no Day Care/Summer Camp is scheduled, the receiving party will pick her up from the other party's house at 4:00 p.m.
d. If a military deployment is scheduled during the party's normally scheduled time: the deployed party has the option to make-up ... missed custody time due to deployment up to 21 days. For [longer] deployments ... the make-up time will not exceed 21 days. Make-up time for deployments will be added on to the party's regularly scheduled time 7 days at a time.... This allows three three-week visitations to make up for missed time with the child but does not allow the child to go for more than three weeks without seeing the other party.
....
h. Holidays will be shared between the parties [as follows:]
(i) The [ ] child's birthday shall be alternated, with [Mother] having the child in odd numbered years from 9:00 a.m. to 8:00 p.m. [and Father] having the child in even numbered years from 9:00 a.m. to 8:00 p.m.
(ii) [Mother's] birthday shall be spent with [Mother] from the time school is released until 8:00 p.m., or if school is not in session, from 9:00 a.m. until 8:00 p.m.
(iii) [Father's] birthday shall be spent with [Father] from the time school is released until 8:00 p.m., or if school is not in session, from 9:00 a.m. until 8:00 p.m.
(iv) Mother's Day shall be spent with Mother, from 9:00 a.m. until 8:00 p.m.
(v) Father's Day shall be spent with [Father] from 9:00 a.m. until 8:00 p.m.
....
(vii) Christmas will be alternated and split into two parts. Part 1 begins the day school is released at 4:00 p.m. and ends on Christmas Day at 12:00 p.m. Part 2 begins Christmas Day at 12:00 p.m. and ends the day before school resumes at 4:00 p.m. In even number years, [Father] will have the minor child for Part 1, and [Mother] will have the minor child for Part 2. In odd number years [Mother] will have the minor child for Part 1 and [Father] will have the minor child for Part 2.
....
25. The parties shall attend joint counseling for co-parenting and family therapy ....

At the time of the 2019 Custody Order, both parties lived in Pasquotank County with residential addresses located within the district of their child's elementary school in Elizabeth City. However, by December 2019, Father had moved to Chesapeake, Virginia; and, on 19 February 2020, Mother officially received permanent change of station ("PCS") orders to transfer from Elizabeth City to New Orleans, Louisiana.1

¶ 5 On 13 April 2020, Mother filed a Motion for Modification of Child Custody , citing a substantial change in circumstances affecting the welfare of the parties’ child and asserting it would be in the child's best interest to be placed in her sole physical custody. As to the substantial change in circumstances, Mother's Motion for Modification of Child Custody asserted that, following her impending relocation to New Orleans, the shared custody arrangement contemplated in the 2019 Custody Order would no longer be feasible.

¶ 6 The trial court bifurcated proceedings, holding one hearing on 14 July 2020 as to the issue of a substantial change in circumstances and another hearing on 21 July 2020 as to the issue of the child's best interest. At the close of Mother's evidence on 14 July 2020, Father moved to dismiss, and the trial court denied the motion. On 21 August 2020, the trial court entered an Order for Modification of Child Custody ("Custody Modification Order"), listing the following relevant general findings:

1. [Father] is a citizen and resident of ... Chesapeake, Virginia, since December 2019. Prior to moving to Chesapeake [Father had] resided in Pasquotank County ... since 2010.
....
2. [Mother] is a citizen and resident of Pasquotank County[.] [She] is an active duty member of the ... [Coast Guard] stationed at Coast Guard Air Station [in] Elizabeth City[.] [She] has resided here since the birth of the ... [c]hild, and now has impending ... [ ]PCS[ ] orders ... to transfer to New Orleans, Louisiana to be promoted to the Rank of Command Master Chief (E-9), the highest level of Enlisted Rank.
....
5. This Court entered a custody [o]rder by consent of the parties on [28 January 2019.]

The Custody Modification Order also listed, inter alia , the following "Findings as to Substantial Changes in Circumstances":

8. [S]ince the entry of the 2019 Custody Order the parties have exercised the provisions contained therein, albeit with difficulty due to poor communication between them which existed at the time of the entry of the 2019 Custody Order.
....
11. That in December of 2019, [Father] moved to Chesapeake, Virginia following his remarriage and signed a one-year lease and provided forty-eight (48) hours’ notice to [Mother] of his move, which caused a dispute regarding interpretation of the 2019 Custody Order. At the time, this move had no impact on the education of the child because [Father] transported the child to and from school in Elizabeth City.
12. [Mother] would receive promotion to E-9, Command Master Chief, if she accepted new change of station orders with the United States Coast Guard in December of 2019. She received official notification of her transfer from Elizabeth City ... to New Orleans, Louisiana [on 19 February 2020], which was subsequently extended twice (2) to allow this custody proceeding to finalize before she transferred.
13. [Father's] move to Chesapeake[ ] [ ] in and of itself did not affect the schooling or general life of the minor child. However, [Father's] move coupled with [Mother's] promotion and move affects every aspect of the child because she is being completely uprooted from what she has known.
14. [S]ince the entry of [the 2019 Custody Order] the [m]inor [c]hild has attended school regularly at Central Elementary School in Elizabeth City until the beginning of the COVID-19 pandemic when they shifted to an online education format.
15. Since the institution of this action, Law Enforcement and the Pasquotank County Department of Social Services has been contacted at least once, and the Coast Guard initiated a Family Advocacy Program (FAP) investigation of [Mother] and the minor child.
16. The [c]ourt finds that [Father's] move coupled with [Mother's] PCS relocation from Elizabeth City constitutes a change in circumstances due to the difficulty it will present in following the current visitation schedule and rotation and that the distance affects the welfare of the [m]inor [c]hild.
17. Although short-term deployments were contemplated in the 2019 [C]ustody Order, duty station transfers were not contemplated. Further, some holidays such as ... birthdays and Mother's/Father's Day were detailed in the 2019 [C]ustody Order in such a way that the parties’ close living proximity was presumed.
18. Further, the [c]ourt finds that there is a significant change in circumstances that directly affects the welfare of the [child] in that her custodial
...

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