McConnell v. McConnell, COA01-1009.

• Decision Date: 06 August 2002
• Docket Number: No. COA01-1009.,COA01-1009.
• Citation: 566 S.E.2d 801,151 NC App. 622
• Parties: Susan McCONNELL, Plaintiff, v. Nacy McCONNELL, Defendant.
• Court: North Carolina Court of Appeals

566 S.E.2d 801

151 NC App. 622

Susan McCONNELL, Plaintiff, v. Nacy McCONNELL, Defendant.

No. COA01-1009.

Court of Appeals of North Carolina.

August 6, 2002.

Law Firm of Richard J. Costanza, by Hal Morris, Southern Pines, for plaintiff.

Robbins, May & Rich, LLP, by P. Wayne Robbins, Pinehurst, for defendant.

BIGGS, Judge.

This appeal arises from a modification of a custody order based upon changed circumstances. For the reasons herein, we affirm the trial court.

Susan McConnell (plaintiff) and Nacy McConnell (defendant) were married on 27 December 1971, and lived together as husband and wife until June 1996, when they separated. Although four children were born of this marriage, only one child, born on 8 October 1985, was a minor at all relevant times and she is the subject of this action.

Following their separation, on 13 August 1996, plaintiff filed a complaint in Moore County Civil District Court, seeking custody of the parties' minor child, child support, equitable distribution, temporary possession of marital home, post separation support and alimony. Defendant filed an answer admitting that it was in the minor child's best interest for plaintiff to have sole physical custody.

On 11 March 1997, following a hearing for permanent custody and child support, the trial court entered an order awarding joint legal custody, with plaintiff having primary physical custody of the minor child and defendant having secondary custody in the form of visitation.

Some time after the 1997 order, defendant remarried and purchased a home in Clayton, North Carolina. Plaintiff began corresponding with Davis Chung, a Virginia resident she met through a Christian Internet chat room. Plaintiff and Chung were later engaged to marry. Plaintiff planned to relocate to Virginia with the minor child, but has not yet moved.

On 5 June 2000, defendant filed a Motion to Modify Child Custody alleging that plaintiff was engaged to marry Davis Chung, a convicted child sex offender, and that she intended to relocate to Virginia with the parties' minor child.

On 13 November 2000, the trial court entered an order granting defendant's motion to modify and placing the minor child in his custody. From this order, plaintiff appeals.

At the outset, we note that plaintiff appeals from a child custody and support order that does not address her claims for alimony or equitable distribution. Thus based on the record before us, this appeal would appear to be interlocutory, since the order appealed from does not resolve all of the parties' claims arising out of this action. See generally, Embler v. Embler, 143 N.C.App. 162, 545 S.E.2d 259 (2001)

; Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377 (1950). An immediate appeal from an interlocutory order will only lie where (1) the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to N.C.G.S. § 1A-1, Rule 54(b); or (2) when the challenged order affects a substantial right that may be lost without immediate review. Flitt v. Flitt, 149 N.C.App. 475, 561 S.E.2d 511 (2002). Whether an interlocutory appeal affects a substantial right is determined on a case by case basis. McCallum v. North Carolina Coop. Extensive Serv. of N.C. State Univ., 142 N.C.App. 48, 542 S.E.2d 227 (2001). The burden to establish that a substantial right will be affected unless he is allowed immediate appeal from an interlocutory order is on the appellant.¹

Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 444 S.E.2d 252 (1994).

In the case sub judice, the trial court did not certify the case for immediate appeal pursuant to Rule 54, and thus we must determine whether the order appealed from affects a substantial right. "A substantial right is `one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.'" Turner v. Norfolk S. Corp., 137 N.C.App. 138, 142, 526 S.E.2d 666, 670 (2000) (citations omitted). Our Supreme Court, in Oestreicher v. Stores, 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976), defined a substantial right as "a right materially affecting those interests which a man is entitled to have preserved and protected by law: a material right." This appeal arises from an order modifying a permanent custody order for a minor child. Our Courts have not addressed whether a permanent custody order affects a substantial right.² However, the order in this case involves the removal of the child from a home where the court specifically concluded "that there is a direct threat that the child is subject to sexual molestation if left in the mother's home." Where as here, the physical well being of the child is at issue, we conclude that a substantial right is affected that would be lost or prejudiced unless immediate appeal is allowed. Accordingly, we will address the merits of this appeal.

Although plaintiff sets forth several assignments of error in her brief, the dispositive issue on appeal is whether the trial court erred in modifying the 1997 custody order. Plaintiff specifically argues that (1) there was insufficient evidence presented to establish a substantial change of circumstances; (2) the court in its order failed to make a specific finding of fact that a substantial change of circumstance that "affects the welfare of the child" had occurred; and (3) the court's findings of fact do not support its conclusions of law. We disagree.

It is well settled that the trial court is vested with broad discretion in child custody cases. Henderson v. Henderson, 121 N.C.App. 752, 468 S.E.2d 454 (1996). The decision of the trial court should not be upset on appeal absent a clear showing of abuse of discretion. Falls v. Falls, 52 N.C.App. 203, 278 S.E.2d 546 (1981). "Findings of fact by a trial court must be supported by substantial evidence." Browning v. Helff, 136 N.C.App. 420, 423, 524 S.E.2d 95, 97-98 (2000) (citation omitted). Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Union Transfer and Storage Co. Inc. v. Lefeber, 139 N.C.App. 280, 533 S.E.2d 550 (2000). "A trial court's findings of fact in a bench trial have the force of a jury verdict and are conclusive on appeal if there is evidence to support them." Browning, 136 N.C.App. at 423, 524 S.E.2d at 98. However, the trial court's conclusions of law must be reviewed de novo. Id.

In the case sub judice, plaintiff does not assign error or except to any of the court's findings. Where no error is assigned to the findings of fact, such findings are presumed to be supported by competent evidence and are binding on appeal. Anderson Chevrolet/Olds v. Higgins, 57 N.C.App. 650, 292 S.E.2d 159 (1982) (citations omitted); see also Baker v. Log Systems, Inc., 75 N.C.App. 347, 350-51, 330 S.E.2d 632, 635 (1985)

(where appellant does not bring forth exceptions in his brief to certain findings of the trial court, he is deemed to have abandoned them under N.C.R.App. P. 28(b)(5)). The court's findings in this case are therefore conclusive on appeal. Thus, we must determine whether these findings support the trial court's conclusions of law.

A court order for custody of a minor child "may be modified ... at any time, upon motion in the cause and a showing of changed circumstances ..." pursuant to N.C.G.S. § 50-13.7(a) (2001). Our Supreme Court has held that a custody order may not be modified until the movant establishes that a substantial change in circumstances exists which affects the welfare of the minor child. Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998). The required change in circumstances need not have adverse effects on the child. Id. "The court need not wait for any adverse effects on the child to manifest themselves before the court can alter custody." Evans v. Evans, 138 N.C.App. 135, 140, 530 S.E.2d 576, 579 (2000). "It is neither necessary nor desirable to wait until the child is actually harmed to make a change in custody." Id. (citations omitted). Moreover, "a showing of a change in circumstances that is, or is likely to be, beneficial to the child may also warrant a change in custody." Pulliam, 348 N.C. at 620,501 S.E.2d at 900.

Once the movant has shown a substantial change in circumstances affecting the welfare of the minor child, the trial court must determine whether a change in custody is in the best interest of the child. Id. at 619, 501 S.E.2d at 899. Our Supreme Court has previously held that "the welfare of the child has always been the polar star which guides the courts in awarding custody." Id. (citation omitted).

The trial court made the following pertinent findings of fact in support of its determination that substantial changed circumstances existed to modify the child custody order:

....

20. Since the entry of the 1997 Custody Order, the Plaintiff met Mr. Davis Chung through a Christian Internet chat room in May of 1999.

....

22. Since meeting in July of 1999, the Plaintiff and Mr. Chung have fallen in love, are engaged and plan to marry.

23. Mr. Chung was convicted in the state courts of the Commonwealth of Virginia in May of 1995 of Indecent Liberties With a Minor Child, was sentenced to 4 years in prison and was paroled after approximately 20 moths.

24. The minor child, who was the victim of Mr. Chung's crime, was at the time a 14 year old female who was in Mr. Chung's charge as he was a teacher in the public schools of the Commonwealth of Virginia, also serving as a coach and a counselor at a girl's summer camp.

25. There is believable evidence before the Court that Mr. Chung has admitted to others that the 14 year old of whom he was convicted of molesting was not his only victim.

....

28. The Court further finds that there has been no evidence that the minor child of the parties is under any danger of being sexually molested in the Father's home by either the Father or the Father's current wife.

29. The Court

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