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Marsh v. Marsh

Court of Appeals of North Carolina

May 15, 2018

CRISTAL A. MARSH (now Kurfees), Plaintiff,
v.
TIMOTHY B. MARSH, Defendant.

          Heard in the Court of Appeals 19 October 2017.

          Appeal by plaintiff from order entered 15 December 2016 by Judge Mark L. Killian in Iredell County No. 09 CVD 1357 District Court.

          Homesley, Gaines & Dudley, LLP, by Christina Clodfelter, for plaintiff-appellant.

          Bowling Law Firm, PLLC, by Kirk L. Bowling, for defendant-appellee.

          BERGER, Judge.

         Cristal 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.

         Factual and Procedural Background

         Plaintiff 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.

         On July 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 her father.

         On 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.

         On 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 until 2016.

         Defendant 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 Order.

         Standard of Review

         "[W]hether 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 ...


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