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Thomas v. Thomas

Court of Appeals of North Carolina

May 6, 2014

JOEL W. THOMAS, Plaintiff,
v.
HERLENE THOMAS, Defendant

Heard in the Court of Appeals: January 6, 2014.

Counsel Amended May 15, 2014.

Page 376

Wake County. No. 10 CVD 17772. Debra S. Sasser, Judge.

Gailor, Hunt, Jenkins, Davis, & Taylor, P.L.L.C., Raleigh, NC, by Ms. Cathy C. Hunt, Mr. Jonathan S. Melton, Primary Attorneys, Attorneys at Law, Ms. Meredith J. Cross, Attorney at Law, for Plaintiff-Appellee - Thomas, Joel W.

Wyrick Robbins Yates & Ponton LLP, Raleigh, NC, by Hon. K. Edward Greene, Primary Attorney, Attorney at Law, and Mr. Tobias S. Hampson, Attorney at Law, for Defendant-Appellant - Thomas, Herlene.

McCULLOUGH, Judge. Chief Judge MARTIN and Judge ERVIN concur.

OPINION

Page 377

McCULLOUGH, Judge.

Appeal by defendant from order entered 17 December 2012 by Judge Debra S. Sasser in Wake County District Court.

Defendant Herlene Thomas seeks review of a child custody order, granting plaintiff Joel W. Thomas and defendant joint legal custody, granting plaintiff primary physical custody, and granting defendant secondary physical custody of their minor child. For the reasons stated herein, we affirm the order of the trial court.

I. Background

Plaintiff Joel W. Thomas and defendant Herlene Thomas were married on 31 August 2001 and divorced on 31 July 2007. One child was born of their marriage in 2004 (hereinafter " minor child" ).

The parties' first custody order was entered in California on 27 April 2006 (" the 2006 Order" ) and a second, supplementary order was entered in California on 18 July 2007 (" the 2007 Order" ). Both orders were registered in North Carolina on 21 October 2010 and 19 May 2011, respectively.

On 14 July 2011, plaintiff filed a " Motion to Modify Custody Order, Motion for Psychological Evaluation and Motion for Custody Evaluation Pursuant to N.C. Gen. Stat. § 50-13.1 et seq.; Rule 35." Plaintiff alleged that since the entry of the 2006 Order, defendant had " refused to facilitate the minor child's visitation with Plaintiff," resulting in a substantial change in circumstances affecting the best interest and welfare of the minor child. Furthermore, plaintiff alleged that " [d]efendant has shown an unwillingness to take reasonable measures to foster a feeling of affection between the minor child and Plaintiff and not to estrange the child from Plaintiff or impair the [minor] child's regard for Plaintiff."

Page 378

On 10 October 2011, the trial court entered an " Order For Custody Evaluation And Clarification of Existing Child Custody Order." The trial court found that " [g]iven the currently [SIC] level of acrimony between the parties, the Court finds that a good cause exists for ordering a custody evaluation."

On 14 November 2011, defendant filed a " Motion to Modify Custody; Motion for Contempt; Motion in the Cause for Attorney's Fees; Motion to Appoint Parenting Coordinator." Defendant argued that since the 2006 Order, a substantial change in circumstances affecting the welfare of the minor child had occurred and that modification of custody served the minor child's best interest. Defendant alleged, inter alia, that plaintiff fails to communicate with defendant in a collaborative way that promotes the best interest of the minor child, plaintiff makes false or empty promises to the minor child, plaintiff and his current wife demean and disparage defendant in the presence of the minor child, and that the terms of the 2006 Order and the 2007 Order were " vague, ambiguous, confusing, and did not serve the minor child's best interest[.]"

Following a hearing held from 11 until 17 October 2012 on each party's motion to modify custody and several other motions filed by both parties, the trial court entered a custody order on 17 December 2012. The custody order included 226 findings of fact. The trial court concluded that there had been a substantial change in circumstances affecting the minor child, warranting a modification of the 2006 and 2007 Orders. The trial court further concluded that it would be in the best interest of the minor child and would best promote the interest and general welfare of the minor child if the parties had joint legal custody, with plaintiff " having final decision making authority if the parties are unable to timely agree as to a decision, and with [p]laintiff exercising primary physical custody of the minor child, and with [d]efendant exercising secondary physical custody[.]"

Defendant appeals.

II. Standard of Review

In a child custody case, the trial court's findings of fact are conclusive on appeal if supported by substantial evidence, even if there is sufficient evidence to support contrary findings. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Unchallenged findings of fact are binding on appeal. The trial court's conclusions of law must be supported by adequate findings of fact.

Peters v. Pennington, 210 N.C.App. 1, 12-13, 707 S.E.2d 724, 733 (2011) (citations omitted).

" The trial court is vested with broad discretion in child custody cases, and thus, the trial court's order should not be set aside absent an abuse of discretion." Dixon v. Gordon, __ N.C.App. __, __, 734 S.E.2d 299, 304 (2012) (citation omitted).

III. Discussion

Defendant presents the following issues on appeal: whether the trial court (A) failed to make sufficient findings of fact to support its conclusion of law that a substantial change in circumstances had occurred; (B) erred in concluding that it was in the best interest of the minor child to modify custody; and (C) erred in denying the motion to appoint a parenting coordinator.

A. Substantial Change in Circumstances

Defendant argues that the trial court erred by failing to make sufficient findings of fact to support its conclusion of law that there had been substantial change in circumstances affecting the minor child, thereby warranting a modification of the 2006 and 2007 California custody orders. Specifically, defendant contends that (i) the parties' stipulation to a substantial change in circumstances was invalid and ineffective, and (ii) the trial court failed to make specific findings about what circumstances had changed and what effect, if any, such changed circumstances had on the minor child. We address each argument in turn.

i. Stipulation as to " Substantial Change in Circumstances"

Defendant argues that the trial court erred by making the following finding of fact: " [t]he parties stipulate that there has been a substantial change of circumstances since entry

Page 379

of the California Orders for custody on April 27, 2006 and July 18, 2007."

At the beginning of the hearing, the following exchange occurred:

THE COURT: All right. Thank you. Um, before we get started, since each party has a Motion to Modified [sic] Custody on the calendar, are you interested in just having a stipulation that there has been a substantial change in circumstances that would warrant a modification, such that I can focus my energies on best interests as opposed to, um, keeping tabs on whether there's evidence of a substantial change?
[Plaintiff:] We would stipulate to that, Your Honor.
[Defendant:] Uh, yes, Your Honor, I think it's clear.
THE COURT: All right. All right. And I'm certain we'll identify what those changes are.

It is well established that a " determination of whether changed circumstances exist is a conclusion of law." Head v. Mosier, 197 N.C.App. 328, 334, 677 S.E.2d 191, 196 (2009) (citing Brooker v. Brooker, 133 N.C.App. 285, 289, 515 S.E.2d 234, 237 (1999)). Our Court has held that " [s]tipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or ...


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