Appeal by plaintiff from Clark, Judge. Order entered 2 March 1981 in District Court, Surry County. Heard in the Court of Appeals 2 February 1982.
Martin (Robert M.), Judge. Judge Wells concurs. Judge Webb dissents.
The question presented by this appeal is whether there was sufficient evidence of change of circumstances affecting the welfare of Stacy Harris to justify modification of a prior order placing her in the custody of her mother.
The entry of an Order in a custody matter does not finally determine the rights of parties as to the custody, care and control of a child, and when a substantial change of condition affecting the child's welfare is properly established, the Court may modify prior custody decrees. G.S. 50-13.7; Teague v. Teague, 272 N.C. 134, 157 S.E.2d 649; In re Herring, 268 N.C. 434, 150 S.E.2d 775; Stanback v. Stanback, supra; Thomas v. Thomas, supra; In re Means, 176 N.C. 307, 97 S.E. 39. However, the 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. Shepherd v. Shepherd, 273 N.C. 71, 159 S.E.2d 357; Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77; and Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227.
Blackley v. Blackley, 285 N.C. 358, 362, 204 S.E.2d 678, 681 (1974).
We do not think the trial court made sufficient findings of substantial change of circumstances to support the order transferring custody of the child from plaintiff to defendant. See Todd v. Page 125} Todd, 18 N.C. App. 458, 197 S.E.2d 1 (1973). While the court found that plaintiff had allowed a male friend to visit regularly in the evenings and at least once to stay overnight, we find nothing in the record to support the critical finding that "this relationship, continued in the presence of the minor child, will have a future injurious effect upon the development and formation of the minor child's character, mental and emotional development." The court failed to find that there was any adulterous relationship between plaintiff and said friend. Id. In its previous order the court found that both plaintiff and defendant were fit and proper person to have custody of the child; in the order appealed from the court made no finding that plaintiff had become an unfit person to have custody of the child.
For the aforegoing reasons, the order appealed from is vacated and this cause is remanded for further proceedings not inconsistent with this opinion.
I dissent from the majority. I believe the evidence and the finding of fact that the plaintiff had been dating a man and on at least one occasion that he had stayed with her overnight is sufficient to show a change in circumstances justifying the order of the District Court. The majority cites Todd v. Todd, 18 N.C. App. 458, 197 S.E.2d 1 (1973). I do not believe it is precedent for this case. In Todd the court found the mother had allowed a man to stay with her before and after the first order for custody was made. This Court held that did not support a finding of change in ...