Gordon v. Gordon

• Citation: 265 S.E.2d 425,46 N.C.App. 495
• Decision Date: 06 May 1980
• Docket Number: No. 798DC933,798DC933
• Parties: Vernon P. GORDON v. Janice Jarman GORDON.
• Court: Court of Appeal of North Carolina (US)

Page 425

265 S.E.2d 425

46 N.C.App. 495

Vernon P. GORDON v. Janice Jarman GORDON.

No. 798DC933.

Court of Appeals of North Carolina.

May 6, 1980.

White, Allen, Hooten, Hodges & Hines by John M. Martin, Kinston, for plaintiff-appellant.

Hulse & Hulse by Herbert B. Hulse, Goldsboro, for defendant-appellee.

ROBERT M. MARTIN, Judge.

Plaintiff contends that the trial court erred in entering the order modifying a previous custody order without a finding of substantial change in circumstance affecting the welfare of the child. This contention has merit.

G.S. § 50-13.7(a) provides that an order of a court of this State providing for the custody of a minor child may be modified upon a showing of changed circumstances. "However, the party moving for modification of a custody order has the burden of showing that there has been a substantial change of circumstances affecting the welfare of the child." (Citations omitted.) King v. Allen, 25 N.C.App. 90, 92, 212 S.E.2d 396, 397, cert. denied 287 N.C. 259, 214 S.E.2d 431 (1975). It must be shown that the circumstances have so changed that the welfare of the child will be adversely affected unless the custody provision is modified. Rothman v. Rothman, 6 N.C.App. 401, 170 S.E.2d 140 (1969).

This is a closely contested case in which the court found that both parents were fit and proper persons to have custody of the child. Upon a report from the Department of Social Services, the trial judge carefully weighed and made detailed findings of fact concerning the home, neighborhood and surroundings which each parent could offer the child. In awarding custody to the father, the trial judge found that it would be disruptive to remove the child from the home in which he and his child had resided since the child was adopted and that the child would actually receive more love and attention if he were left with his father in a familiar situation and environment than if he were placed in a new environment and in a strange, unfamiliar neighborhood and nursery.

Upon the hearing on modification, Judge Wright, in removing primary custody from the father, found that "there has been a substantial change in the circumstances that led to the Court's award of custody . . . to the plaintiff, inasmuch as the default by the plaintiff . . . has frustrated the Court's intention . . . to have the child remain in the home in which he has been living throughout his life . . ." Assuming arguendo that remaining in the homeplace was the decisive factor in favor of placing custody with the father, that reason no longer exists. Neither party can restore the child to the familiar homeplace they once shared. Frustration of the court's intention, however, is not in itself a proper finding upon which to modify a custody award. See In re Poole, 8 N.C.App. 25, 173 S.E.2d 545 (1970) (the finding of a wilful, intentional, heedless violation of a direct order in a custody award that the children not associate with a certain person is not a substantial change of circumstance where there is no finding that said association with the child's mother is immoral or detrimental to the children's welfare.) The welfare of the child, not the frustration of the court order is the determining factor.

In the case sub judice, the only finding of change of circumstance is that the child has moved from his original home to "strange," i. e. unfamiliar neighborhoods. There are no findings that the moves proved disruptive or detrimental to the child's welfare; that the home and surrounding neighborhood in which the child presently lives differs from his original home, is inadequate, or has an adverse affect on the child's welfare or that the placement of the child in an unfamiliar neighborhood has had any impact on the child's adjustment. The mere fact that either parent changes his residence is not a substantial change of circumstance. See Harrington v. Harrington, 16 N.C.App. 628, 192 S.E.2d 638 (1972) (where the only finding of change of circumstance was that defendant, the party seeking custody, "is now residing...