Pulliam v. Smith

• Decision Date: 30 July 1998
• Docket Number: No. 499PA96.,499PA96.
• Citation: 501 S.E.2d 898
• Parties: Carol J. PULLIAM v. Frederick J. SMITH.
• Court: North Carolina Supreme Court

501 S.E.2d 898

Carol J. PULLIAM v. Frederick J. SMITH.

No. 499PA96.

Supreme Court of North Carolina.

July 30, 1998.

Jackson & Jackson by Phillip T. Jackson, Hendersonville, for plaintiff-appellant.

Lambda Legal Defense and Education Fund, Inc. by Beatrice Dohrn, New York, NY; and N.C. Gay and Lesbian Attorneys by Ellen W. Gerber and Sharon A. Thompson, High Point, for defendant-appellee.

Stam, Fordham & Danchi, P.A. by Paul Stam, Jr., Apex; and James F. Lovett, Jr., Raleigh, on behalf of North Carolina Family Policy Council, amicus curiae.

Michael P. Adams, New York, NY, and Tharrington Smith by Jaye Meyer, on behalf of American Civil Liberties Union; and Deborah Ross, Raleigh, on behalf of ACLU of North Carolina Legal Foundation, amici curiae.

Myrna Ann Miller, Raleigh on behalf of National Association of Social Workers, North Carolina Chapter, and National Association of Social Workers, amici curiae.

MITCHELL, Chief Justice.

The overriding question presented for review is whether there was sufficient evidence to support the trial court's finding of a substantial change of circumstances affecting the welfare of two minor children which would warrant a change of custody. The Court of Appeals held that there was not. Since we conclude that the trial court's judgment modifying a prior order placing custody of the children with their father is supported by adequate findings of fact based on substantial evidence, we also conclude that the trial court's judgment was free of error. We therefore reverse the decision of the Court of Appeals.

As a preliminary matter, we address that portion of the Court of Appeals' decision which concluded that the party seeking modification of custody must show "that the change [in circumstances] has had an adverse effect on the child or will likely or probably have such an effect unless custody is altered." Pulliam v. Smith, 124 N.C.App. 144, 147, 476 S.E.2d 446, 449 (1996) (emphasis added). This Court has never required the party moving for a modification of custody to show that the change in circumstances has had or will have an adverse consequence upon the child's well-being, and we decline to do so now.

The controlling statute provides that, when an order for custody of a minor child has been entered by a court of another state, a court of this state may, upon a showing of changed circumstances, enter a new order for custody. N.C.G.S. § 50-13.7(b) (1995). In Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974), we interpreted N.C.G.S. § 50-13.7(b) which mandates a "showing of changed circumstances." In that decision, we held:

[T]he modification of a custody decree must be supported by findings of fact based on competent evidence that there has been a substantial change of circumstances affecting the welfare of the child, and the party moving for such modification assumes the burden of showing such change of circumstances.

Id. at 362, 204 S.E.2d at 681. In Blackley, we held that the trial court erred in modifying a prior order awarding custody because the evidence was insufficient to show a substantial change of circumstances affecting the welfare of the child; we neither held nor implied that to establish a change of circumstances which would justify a modification of custody, it must always be shown that the change of circumstances adversely affects or will adversely affect the child.

The welfare of the child has always been the polar star which guides the courts in awarding custody. Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E.2d 357, 361 (1968). In reviewing a request for modification of custody, courts may not limit the inquiry as to what constitutes the best interests of the child solely to a consideration of those changes in circumstances which it has found to exist and which may adversely affect that child. It is true that we have stated in one case that, "We cannot forecast the future, but if there should be a change of circumstances adversely affecting the welfare of these children, the court is empowered to act...." Thomas v. Thomas, 259 N.C. 461, 467, 130 S.E.2d 871, 876 (1963). However, this statement in the form of obiter dictum should not be read to indicate that a court's consideration of changed circumstances should be limited to those having adverse consequences for the child. The facts in Thomas involved a situation in which the children were affected adversely if at all, and our statement there merely reflected those facts. Further, our statement that a change of circumstances adversely affecting children would empower the court to act is not equal to, and should not be read as, a holding that a court could not change custody where a substantial change of circumstances had occurred which would beneficially affect the child if custody should be modified. Rather, courts must consider and weigh all evidence of changed circumstances which affect or will affect the best interests of the child, both changed circumstances which will have salutary effects upon the child and those which will have adverse effects upon the child. In appropriate cases, either may support a modification of custody on the ground of a change in circumstances. In Rothman v. Rothman, 6 N.C.App. 401, 170 S.E.2d 140 (1969), the Court of Appeals wrote, "Professor Lee points out in his treatise on North Carolina Family Law that there must generally be a substantial change of circumstances before an order of custody is changed." Id. at 406, 170 S.E.2d at 144. The Court of Appeals then incorrectly held, "It must be shown that circumstances have so changed that the welfare of the child will be adversely affected unless the custody provision is modified." Id. The Court of Appeals' decision in Rothman, insofar as it mandates that the changed circumstances analysis be limited to a showing of adverse effects on the child, is contrary to N.C.G.S. § 50-13.7(b) and is disapproved. We also disapprove of subsequent Court of Appeals cases to the extent they require a showing of adversity to the child as a result of changed circumstances to justify a change of custody.¹

We emphasize that an adverse effect upon a child as the result of a change in circumstances is and remains an acceptable factor for the courts to consider and will support a modification of a prior custody order. However, 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. We conclude this analysis by noting that, in either situation, it must always be remembered that

[a] decree of custody is entitled to such stability as would end the vicious litigation so often accompanying such contests, unless it be found that some change of circumstances has occurred affecting the welfare of the child so as to require modification of the order. To hold otherwise would invite constant litigation by a dissatisfied party so as to keep the involved child constantly torn between parents and in a resulting state of turmoil and insecurity. This in itself would destroy the paramount aim of the court, that is, that the welfare of the child be promoted and subserved.

Shepherd, 273 N.C. at 75, 159 S.E.2d at 361. Having resolved the foregoing questions of law, we turn to the evidence presented and the issue raised by the parties in this case.

Uncontroverted evidence before the trial court tended to show that plaintiff Carol J. Pulliam and defendant Frederick J. Smith are the mother and father of two boys, Frederick Joseph Smith, II (Joey) and Kenneth August Smith (Kenny). Plaintiff-mother and defendant-father were married in California in November 1982. They separated in 1990 when plaintiff went to live in Kansas with William Pulliam. Plaintiff and defendant were divorced in November 1991. At that time, Joey was six years old, and Kenny was three years old. The parties entered into a consent decree regarding the custody of the children. Pursuant to the decree, the parties had joint legal custody, and defendant-father had physical custody of the children. Until August 1994, the children lived with defendant and his grandmother in North Carolina. In February 1993, plaintiff married Mr. Pulliam, and they have since resided in Wichita, Kansas. Plaintiff-mother had the boys with her for two months during the summer and at Christmas each year. In August 1994, Tim Tipton moved into defendant's home, and defendant's grandmother moved out a month later. Defendant-father and Mr. Tipton are homosexuals.

The trial court made findings of fact supported by evidence, which included, inter alia, the following:

27. That Tim Tipton first moved into the home located on 9 Roberts Street in Fletcher, North Carolina around March of 1994.

28. That Tim Tipton and the Defendant often kiss on the check [sic] and sometimes on the lips in front of the two minor children. That Tim Tipton and the Defendant would often hold hands in front of the two minor children.

29. Tim Tipton and the Defendant both testified that they engaged in oral sex, in that Tim Tipton would about once a week place his mouth on the penis of the Defendant. The Defendant would also place his mouth on the penis of Tim Tipton. The Court accordingly makes this as a finding of fact.

....

32. That Tim Tipton and the Defendant engaged in the acts described in paragraph 29 above while the minor children were present in the home. That the minor children share the same bedroom and the said bedroom of the minor children is directly across the hall from the bedroom occupied by the Defendant and Tipton. That the Defendant and Tipton would engage in the acts described in paragraph 29 above while the children were a short distance away.

33. The Defendant and Mr. Tipton on at least one (1) occasion had a party for homosexuals at the home located at 9 Roberts Road in Fletcher, North Carolina. That the occasion was an anniversary party marking the first year since the Defendant and Tim Tipton meet [sic] at a homosexual bar in

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