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Spoon v. Spoon

Court of Appeals of North Carolina

March 18, 2014

THOMAS BRANDON SPOON, Plaintiff,
v.
ABBY MELVIN SPOON, Defendant

Heard in the Court of Appeals September 12, 2013.

Counsel Amended, March 18, 2014.

Page 67

Alamance County. No. 07 CVD 2556. Kathryn Whitaker Overby, Judge.

Wishart, Norris, Henninger & Pittman, PA, by Hillary D. Whitaker and Kathleen F. Treadwell, for plaintiff-appellee.

Alexander, Miller, and Schupp, LLP, by Sydenham B. Alexander, Jr. and Jonathan J. Loch, for defendant-appellant.

Wishart, Norris, Henninger & Pittman, PA, by Ms. Hillary D. Whitaker, Ms. Kathleen F. Treadwell and Ms. Pamela S. Duffy, Attorneys at Law, for plaintiff-appellee.

Alexander, Miller, and Schupp, LLP, by Mr. Sydenham B. Alexander, Jr. and Mr. Jonathan J. Loch, Attorneys at Law, for defendant-appellant.

DAVIS, Judge. Judges HUNTER, JR. and ERVIN concur.

OPINION

Page 68

DAVIS, Judge.

Appeal by defendant from order entered 20 September 2012 by Judge Kathryn Whitaker Overby in Alamance County District Court. Heard in the Court of Appeals 12 September 2013.

Abby Melvin Spoon, now Abby Melvin Brown (" Defendant" ), appeals from the trial court's amended order modifying the custody arrangements for the parties' three children. Defendant's primary arguments on appeal are that the trial court erred by (1) supplementing its conclusions of law in response to a Rule 52(b) motion filed by Thomas Brandon Spoon (" Plaintiff" ); and (2) concluding that there had been a substantial change in circumstances warranting the modification of custody. After careful review, we affirm the trial court's amended order.

Factual Background

Plaintiff and Defendant were married on 8 July 2000, separated on 19 October 2007, and divorced on 15 July 2009. The parties have three minor children: Allison, age 12; Rebecca, age 11; and Trevor, age 7.[1]

On 25 September 2007, Plaintiff filed an action seeking child custody, equitable distribution, and divorce from bed and board. On 26 September 2007, the trial court granted

Page 69

Plaintiff temporary custody of the minor children. Defendant filed an answer and counterclaims on 19 October 2007 seeking child custody, child support, divorce from bed and board, post-separation support, alimony, and equitable distribution. Both parties voluntarily dismissed their claims, and a consent order was entered on 14 November 2007 granting the parties joint custody of the children. The consent order also required the minor children to attend school in the Alamance Burlington School System (" ABSS" ).

Between December 2007 and December 2009, the parties filed various motions for contempt and to modify custody. On 15 June 2011, Plaintiff filed a motion requesting primary placement. A hearing was held on 1 August 2011. Before this hearing, the parties filed a written set of stipulations, stating the following:

1. Defendant, Abby Melvin Spoon, is moving to Orange County, North Carolina. A move to Orange County, North Carolina constitutes a substantial change in circumstances affecting the minor children of the parties.

2. If this Court determines that it is in the best interest of the minor children to remain in Alamance County, North Carolina, then Abby Melvin will not move from Alamance County, North Carolina, and placement will remain the same.

The trial court proceeded to enter an order determining that " [i]t is in the best interests of the minor children to remain in Alamance County, North Carolina."

In August of 2011, Defendant moved from Burlington to Mebane. On 28 October 2011, the trial court entered a consent order concerning custody and the children's school placement after Defendant withdrew the children from their previous school in Burlington and enrolled them in E.M. Yoder Elementary School in Mebane. In May of 2012, Defendant moved from Mebane to Chapel Hill. On 3 May 2012, Defendant filed motions seeking to modify the children's school placement to the Chapel Hill-Carrboro School District and to hold Plaintiff in contempt. On 22 May 2012, Plaintiff filed motions seeking to modify custody and hold Defendant in contempt. Plaintiff filed a second motion to hold Defendant in contempt on 31 July 2012.

On 14 August 2012, the trial court held a hearing on Plaintiff's motion to modify custody, Defendant's motion to modify school placement, and the parties' cross motions for contempt. The trial court entered an order on 24 August 2012 modifying the 28 October 2011 consent order. The trial court granted Plaintiff primary physical custody, giving him custody of the minor children for nine days out of every fourteen days, and Defendant secondary physical custody, giving her custody for the remaining five days. The trial court also held Defendant in contempt for moving the minor children without giving Plaintiff 90 days written notice as required by a previous court order; however, the trial court declined to sanction her.

On 4 September 2012, Plaintiff filed a motion under Rule 52(b) of the North Carolina Rules of Civil Procedure requesting that the trial court make additional findings of fact and conclusions of law. In response to Plaintiff's motion, the trial court entered an ...


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