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Mastny v. Mastny

Court of Appeals of North Carolina

May 15, 2018

JAMIE LUNSFORD MASTNY, Plaintiff,
v.
CHAD JOSEPH MASTNY, Defendant.

          Heard in the Court of Appeals 18 April 2018.

          Appeal by defendant from order entered 17 May 2017 by Judge Christine M. Walczyk in Wake County No. 11 CVD 14976 District Court.

          Laura C. Brennan for plaintiff-appellee.

          Tharrington Smith, LLP, by Steve Mansbery and Jeffrey R. Russell, for defendant-appellant.

          TYSON, Judge.

         Defendant appeals from an order modifying custody of his minor child. We reverse the order and remand.

         I. Background

         This 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 LEXIS 101 (2017) (unpublished) (hereinafter "Mastny I").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.

         This 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.

         Between 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.

         In the 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.

         Defendant 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 ordered to

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).

         Upon 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 appealed.

         II. Jurisdiction

         An 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).

         III. Issues

         Defendant 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.

         IV. Analysis

         A. Standard of Review

         "When 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 ...


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