in the Court of Appeals 18 April 2018.
by defendant from order entered 17 May 2017 by Judge
Christine M. Walczyk in Wake County No. 11 CVD 14976 District
C. Brennan for plaintiff-appellee.
Tharrington Smith, LLP, by Steve Mansbery and Jeffrey R.
Russell, for defendant-appellant.
appeals from an order modifying custody of his minor child.
We reverse the order and remand.
appeal is before this Court a second time. Mastny v.
Mastny, __ N.C.App. __, 796 S.E.2d 402, 2017 N.C.App.
LEXIS 101 (2017) (unpublished) (hereinafter "Mastny
I"). Jamie Lunsford Mastny ("Plaintiff")
and Chad Joseph Mastny ("Defendant") originally
settled the custody arrangements for their minor child,
Tyler, by entering into a consent order in 2012.
order entitled Defendant to "alternating weekend
visitation from Thursday at the recess of school until Monday
morning" when Tyler would return to school. On the weeks
Defendant did not have weekend visitation, he was entitled to
overnight visitation on Thursdays. Additionally, Defendant
was granted two "floating days" per month for
visitation. Each party was guaranteed one week of vacation
with Tyler in the summer.
2013 and 2015, both Defendant and Plaintiff sought to modify
the custody arrangement. The use and scheduling of the
"floating days" was at issue in each motion for
modification. The trial court first mandated make-up
visitation days for Defendant in 2013, since Plaintiff had
allegedly denied his exercise of these floating visitation
days seven times without reason.
2015 order modifying custody, the trial court eliminated
these "floating days" from the custody schedule.
During the school year, Defendant was entitled to an
alternating weekend visitation spanning from the end of the
school day on Friday to the beginning of school on Monday.
Summer visitation was to follow an alternating week schedule.
appealed the 2015 order to this Court. In Mastny I,
this Court reversed the portions of the 2015 order that had
modified the custody schedule from the prior consent order,
and remanded to the trial court. Mastny, 2017
N.C.App. LEXIS 101 at *26. Upon remand, the trial court was
revisit the question of whether there has been a significant
change of circumstances affecting Tyler's welfare and, if
so, whether modification of the custody provisions of the
prior consent order would be in Tyler's best interest.
If the trial court decides that modification of the
custody provisions of the prior consent order are warranted,
it shall demonstrate through sufficient additional
relevant findings of fact that there is a nexus between any
change in circumstances and Tyler's welfare, and that any
particular modifications of the custody portions of the prior
consent order are in Tyler's best interest.
Id. (emphasis supplied).
remand, the trial court did not receive or hear any
additional evidence. On 17 May 2017, the trial court entered
an order modifying child custody that contained additional
findings of fact and conclusions of law, but retained the
identical custody schedule from 2015. Defendant timely
appeal of right lies to this Court from a child custody order
entered in a district court pursuant to N.C. Gen. Stat.
§ 7A-27(b)(2) (2017).
argues the trial court erred by failing to follow the
mandates of Mastny I by: (1) making certain findings
of fact; (2) failing to make sufficient findings of fact to
support conclusion of law #4; (3) failing to show
modification was in the best interests of Tyler and in
response to the substantial changes; (4) reducing
Defendant's physical custody time; and, (5) failing to
promote the policy of the State articulated in N.C. Gen.
Stat. § 50-13.01.
Standard of Review
reviewing a trial court's decision to grant or deny a
motion for the modification of an existing child custody
order, the appellate courts must examine the trial
court's findings of fact to determine whether they are
supported by substantial evidence." Shipman v.
Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003)
(citation omitted). "[T]he 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." Peters v. Pennington, 210
N.C.App. 1, 12-13, 707 S.E.2d 724, 733 (2011). Conclusions of
law must be supported by the findings of fact. Id.
"Absent an abuse of discretion, the trial ...