Hibshman v. Hibshman

• Decision Date: 17 May 2011
• Docket Number: No. COA10–435.,COA10–435.
• Parties: Mark Steven HIBSHMAN, Plaintiff,v.Ludmilla HIBSHMAN, Defendant.
• Court: North Carolina Court of Appeals

710 S.E.2d 438

Mark Steven HIBSHMAN, Plaintiff,

v.Ludmilla HIBSHMAN, Defendant.

No. COA10–435.

Court of Appeals of North Carolina.

May 17, 2011.

OPINION TEXT STARTS HERE

Appeal by defendant from order entered 21 October 2009 by Judge Charlie Brown in Rowan County District Court. Heard in the Court of Appeals 26 October 2010.

Sherrill & Cameron, PLLC, Salisbury, by Carlyle Sherrill, for Plaintiff–Appellee.

Horack, Talley, Pharr & Lowndes, P.A., Charlotte, by Elizabeth J. James and Kary C. Watson, for Defendant–Appellant.

ERVIN, Judge.

Defendant Ludmilla Hibshman appeals from orders changing the custody of her minor children from Defendant to Plaintiff Mark Steven Hibshman entered by the trial court on 21 October 2009. On appeal, Defendant contends, among other things, that she did not have the ability under North Carolina law to waive the necessity for a showing of a change in circumstances as a precondition for modification of a prior custody order and that the trial court erred by failing to address the “changed circumstances” issue in reliance on her agreement not to insist that such a showing be made. After careful consideration of Defendant's challenges to the trial court's orders in light of the record and the applicable law, we conclude that the trial court's orders should be reversed and that this case should be remanded to the Rowan County District Court for further proceedings not inconsistent with this opinion.

I. Factual Background

Plaintiff and Defendant were married in Pennsylvania on 5 September 1998. The couple had two children, a daughter, who was born in 2000, and a son, who was born in 2003.

On 10 January 2008, Plaintiff filed a complaint seeking custody of the children, a divorce from bed and board, child support, post-separation support, and alimony. On 6 March 2008, Plaintiff, without providing any notice to Defendant, took the children and moved back to Pennsylvania. On 11 March 2008, Defendant filed a motion, which Judge William C. Kluttz granted on the following day, seeking immediate temporary custody. On 25 April 2008, the trial court entered a temporary custody order granting the parties joint custody of the children.

In July 2008, the trial court conducted a hearing for the purpose of addressing child custody issues.¹ On 14 July 2008, counsel for the parties orally argued their respective positions to the trial court. At that time, the trial court and the parties discussed the possibility that Plaintiff and Defendant would enter into a stipulation addressing future modification of any custody order that the trial court might ultimately enter:

THE COURT: But [Defendant has] been willing to say that in the event I award her custody during the school year that ... would be by her agreement and contingent upon her maintaining the residence, therefore, maintaining [the daughter's] enrollment and sometime soon

[the

son's] enrollment in the Granite Quarry School District. Do I hear you correctly on that?

[DEFENSE COUNSEL]: Yes, that would be—we would be willing—and again, I don't know if the Court of Appeals says all kinds of funny things about what a judge can do with custody orders.

THE COURT: I don't believe I can mandate that.

[DEFENSE COUNSEL]: And to the ... extent that you cannot, we would stipulate, correct?

[DEFENDANT]: Yes.

...

THE COURT: Now, coming back to how that all links up to her concession that she'd be willing to ... have imposed upon her the requirement she maintain the home, otherwise this thing unravels, it's subject to review without further evidence, etcetera, is an interesting argument.

At the conclusion of the oral argument, the trial court announced certain findings of fact and then stated that:

[THE COURT:] All right. Based on those Findings of Fact, the Court concludes that both parents are fit and proper parents to have custody of their children. Their homes are appropriate and meet the needs of their children. The Court does find that it would be in the best interest for [the children] to be in the primary custody of their mother. And that is going to be by her agreement with this unusual contingency that is offered, and so I'd like it to be spelled out in the Findings of Fact. It's not a stipulation. I resist that word because it's not something that—I mean, this is—this announcement of judgment is as a result of a contested hearing and so nothing about this is what you're agreeing to, but it creates a burden for her, and so it's by her agreement—it's not court mandate—but it's going to be adopted by the Court that she will be a primary custodian during the school year—during the Rowan County school year for [the children] so long as she maintains residence so that [the daughter] may continue to be enrolled in Granite Quarry Elementary School. In the event that cannot be maintained, the matter may be rescheduled by calendar request and notice of hearing. Without the burden of proving substantial change of circumstances, the Court may receive additional evidence to evaluate whether custody during the school year should continue with defendant or not. Do I understand that to be your agreement, [Defense Counsel]?

[DEFENSE COUNSEL]: Yes, Your Honor[.]

On 5 September 2008, the trial court entered an order granting custody of the children to Defendant and including the following findings:

9. On March 6, 2008, while the Defendant was at work, the Plaintiff moved from the marital home, took the children, and moved to Pennsylvania, all without notice to the Defendant.

10. On March 12, 2008, the Defendant sought and obtained an immediate custody order ... placing [the children] in the immediate custody of the Defendant.

11. A temporary custody hearing was held on March 19, 2008, and an order entered granting the parties shared custody ... but requiring the children to remain in school in Rowan County.

...

31. Defendant's home is a fit and proper place for the children to reside[.]

32. Plaintiff's home is a fit and proper place for the children to reside[.]

...

48. Both parties are fit and proper persons to have custody of the minor children.

Based upon these and other findings of fact, the trial court concluded that “[a]n award of custody as set forth below is in the best interests of the minor children” and ordered, in pertinent part, that:

1. Defendant is granted primary custody of the minor children during the school year.

2. Plaintiff is granted primary custody during the summer[.]

...

7. Defendant's primary custody of the children during the school year is conditioned on Defendant maintaining a home in the Granite Quarry Elementary School district, while the children are still in elementary school. If she does not, this court may receive additional evidence and this order may be modified without a showing of a substantial change in circumstances.

Above Decretal Paragraph No. 7, the trial court initialed a handwritten notation that this provision was included “w/consent of [Defendant.]”

On 17 July 2009, Plaintiff filed a motion seeking a change of custody. In his motion, Plaintiff alleged that, after Defendant lost her job in Rowan County, she relocated to Greenville, South Carolina, where she found other employment. In addition, Plaintiff asserted that, although the children had relatives near his home in Pennsylvania, they had no similar family connections in South Carolina. In reliance on Decretal Paragraph No. 7 of the 5 September 2008 custody order, Plaintiff requested the trial court to modify its earlier order and award primary custody of the children to him.

On 9 September 2009, Plaintiff's motion came on for hearing before the trial court. Prior to receiving evidence, the trial court engaged in the following colloquy with counsel for the parties:

THE COURT: All right. Can I inquire of counsel, is there a stipulation? We had this pre-trial discussion yesterday. Is there a stipulation that the evidence presentation will sort of leap-frog the substantial change test and be considered by the Court on evaluation of best interest for custody?

[PLAINTIFF'S COUNSEL]: Yes, Your Honor, according to the prior court order substantial change in circumstances would not have to be shown, and this would merely be best interest of the child—children.

THE COURT: Is that a stipulation, Mr. Inge?

[DEFENSE COUNSEL]: Yes, I can live with that stipulation.

At the hearing, Plaintiff testified that he was born and raised in Pennsylvania and had moved to North Carolina solely because Defendant had employment there. After Defendant received primary custody of the children, Plaintiff returned to his home community in Pennsylvania, which was fairly close to the places where other members of his family lived and was where he planned to remain permanently. On cross-examination, Plaintiff agreed that the children had done well in school while in Defendant's custody.

Defendant testified that, for the past fifteen years, she had been employed selling specialized vans that had been converted for use by handicapped individuals. After being laid off from the job she held at the time of the earlier custody hearing, Defendant found a job in the same field that paid a higher salary, offered more prospects for advancement, and had more flexible hours in Greenville, South Carolina. As a result, Defendant moved to Simpsonville, South Carolina, where the children were enrolled in Bethel Elementary School, an institution that has been designated a National School of Excellence and that is located two miles from Defendant's home. After her separation from Plaintiff, Defendant became involved with an individual named Will Martinez. As of the date of the 9 September 2009 hearing, Defendant and Mr. Martinez had been dating for about a year and planned to marry within the ensuing twelve months. Defendant acknowledged on cross-examination that she had agreed to remain in Rowan County at the earlier hearing.

After the presentation of evidence, the trial court stated that:

THE COURT: All right. Matter...