CRISTAL A. MARSH (now Kurfees), Plaintiff,
TIMOTHY B. MARSH, Defendant.
in the Court of Appeals 19 October 2017.
by plaintiff from order entered 15 December 2016 by Judge
Mark L. Killian in Iredell County No. 09 CVD 1357 District
Homesley, Gaines & Dudley, LLP, by Christina Clodfelter,
Bowling Law Firm, PLLC, by Kirk L. Bowling, for
A. Marsh ("Plaintiff") appeals from a child custody
order entered on December 15, 2016 granting Timothy B.
Marsh's ("Defendant") motion to modify child
custody and denying Defendant's motion for attorney's
fees. Plaintiff argues the trial court erred by entering the
order without making sufficient findings of fact showing a
substantial change in circumstances regarding the child's
welfare since the entry of a child custody order on September
16, 2014. We disagree.
and Procedural Background
and Defendant were married on August 5, 2000, and one minor
child was born of the marriage. The parties separated on June
27, 2007, and executed a Separation and Property Settlement
Agreement ("the Agreement") on March 3, 2009. On
May 11, 2009, the trial court entered a divorce decree which
incorporated the Agreement. The trial court's order set a
visitation schedule between the parties that entitled
Defendant to a "substantial and loving relationship with
the child, " with visitation to be mutually agreed upon
by the parties. Defendant's initial visitation
arrangement was every other weekend from Friday to Sunday.
25, 2014, Defendant filed a motion to modify child custody,
for psychological assessments, and attorney's fees
alleging a substantial change in circumstances concerning the
visitation schedule and lack of consistent application of the
Agreement in the May 2009 Order. Defendant's motion
specifically alleged that Plaintiff had deprived Defendant of
visitation with the minor child for extended periods of time
in 2010 through mid-2011, and cut short pre-planned visits
based on Plaintiff's schedule. In 2012, Defendant was
only able to see the minor child on average once a month, and
eventually not at all due to Plaintiff's refusal to
respond to Defendant's emails, letters, and phone calls.
In March 2014, Defendant attempted to visit the minor child,
but Plaintiff refused to communicate with Defendant or honor
the May 2009 Order and Agreement. In April 2014, Defendant
contacted the minor child's doctor's office to review
her medical records, and Plaintiff delayed giving medical
information to Defendant. Defendant attempted to specifically
contact the minor child on her birthday and holidays,
including Christmas 2012 and 2013, but was never able to
reach her. Defendant further requested psychological
assistance with the minor child to help her develop a loving
relationship with him after such a prolonged separation from
August 19, 2014, the trial court denied Defendant's
motion for a psychological assessment of both Plaintiff and
the minor child for lack of evidence of a mental health
disorder requiring an assessment. In the same order, the
trial court mandated that both Plaintiff and Defendant attend
mediation and a parenting class.
September 16, 2014, the trial court entered a "Temporary
Child Custody Order" that granted primary custody to
Plaintiff and visitation to Defendant. The September 2014
Order found that Defendant had been deprived of seeing the
minor child for extended periods of time, and that the minor
child was excited about seeing Defendant again regularly.
Further, the trial court found that both parents were fit and
proper to exercise temporary custody of the minor child. The
September 2014 Order further set out a temporary visitation
schedule for Defendant to exercise until further notice, and
found that it was in the best interests of the minor child to
have a relationship with both parents. The parties performed
under the schedules outlined in the September 2014 Order
filed a second notice of hearing on his motion for
modification of child custody and attorney's fees on
August 31, 2015. The trial court conducted a hearing on
Defendant's motions for modification of child custody and
attorney's fees in September 2016. A permanent child
custody order was entered on December 15, 2016 granting
Defendant primary custody of the minor child and visitation
to Plaintiff. Plaintiff timely appeals from the December 2016
an order is temporary or permanent in nature is a question of
law, reviewed on appeal de novo." Smith v.
Barbour, 195 N.C.App. 244, 249, 671 S.E.2d 578, 582,
disc. review denied, 363 N.C. 375, 678 S.E.2d 670
(2009) (citation omitted); see ...