Meduri v. Meduri

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-107
NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

JOSHUA JORDAN MEDURI,
Plaintiff-Appellant,

v. Buncombe County
No. 11 CVD 1038
NATASHA SERRAO MEDURI,
Defendant-Appellee.

Appeal by Plaintiff from order entered 9 September 2013 by

Judge Susan Dotson-Smith in District Court, Buncombe County.

Heard in the Court of Appeals 3 June 2014.

Mary Elizabeth Arrowood for Plaintiff-Appellant.

Emily Sutton Dezio, P.A., by Emily Sutton Dezio, for
Defendant-Appellee.

McGEE, Judge.

Joshua Jordan Meduri (“Plaintiff”) and Natasha Serrao

Meduri (“Defendant”) were married on 12 December 2004. Two

children were born of the marriage, Arella in 2006, and Aurora

in 2008 (“the children”). Plaintiff and Defendant separated on

25 February 2010, and entered into a “Contract of Separation and

Property Settlement Agreement” (“the agreement”) on 29 October
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2010. Plaintiff filed a complaint for divorce on 28 February

2011. The trial court entered a divorce judgment on 23 May 2011

(“the divorce”), and incorporated the agreement into the divorce

judgment.

The section of the agreement on physical custody of the

children states:

PHYSICAL CUSTODY:

A. [Plaintiff] shall have physical custody
of the minor children and be entitled
to placement at all times except when
[Defendant] is entitled to visitation
as below described:

B. [Defendant] shall be entitled to
visitation every other weekend from
6:00 p.m. Friday to 6:00 p.m. Sunday;

C. Exchanges shall be at [Plaintiff’s]
residence;

D. Such other arrangements [as] are
mutually agreeable to [Plaintiff and
Defendant].

Defendant filed a “Motion to Modify Custody Agreement” on 2

November 2012, and requested that the trial court award joint

legal and physical custody of the children to Plaintiff and

Defendant. At a hearing on 24 and 25 July 2013, the parties

testified that, Plaintiff and Defendant maintained a flexible

visitation schedule at times, as provided for under subsection

D. of the agreement. Defendant testified that originally

Plaintiff had physical custody, with Defendant having visitation
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every other weekend from Friday evening to Sunday evening. From

the date of separation until about a month prior to the divorce,

Defendant testified she lived in a very small residence and the

children only stayed overnight occasionally. Defendant worked

as a wedding photographer, which made it difficult for Defendant

to spend time with the children every other weekend. In 2011,

Plaintiff attended school from mid-February through mid-June,

which was both before and after the divorce. During that time,

Defendant sometimes provided daytime care for Aurora, as well as

afterschool care for both children. Plaintiff and Defendant

agreed Defendant needed to be more consistent in visiting the

children and needed to have a greater presence in the children’s

lives. Plaintiff testified that after Defendant’s sporadic

visitation during the summer of 2011, Plaintiff and Defendant

agreed to a six-month trial period of visitation, with Defendant

having visitation every Thursday and Friday nights.

Plaintiff and Defendant, along with the children’s paternal

and maternal grandparents, were Jehovah’s Witnesses. During

their marriage, Plaintiff and Defendant raised the children in

that faith. After the divorce, Plaintiff remarried and had a

child with his new wife in September 2011. Plaintiff began to

separate himself from the Jehovah’s Witness religion, and began

to attend the Universal Unitarian Church with his second wife.
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Plaintiff and Defendant discussed Plaintiff’s change in

religion. They decided the children would participate in each

parent’s religion during each parent’s time with the children.

Plaintiff occasionally allowed Defendant to take the children to

the Jehovah’s Witness Kingdom Hall during Plaintiff’s custodial

time. Plaintiff testified they would eventually allow the

children to choose the religion the children would follow.

Plaintiff’s religious change was not a problem between Plaintiff

and Defendant, but it did cause a rift between Plaintiff and his

mother. Plaintiff eventually decided he did not want the

children to have any involvement with the Jehovah’s Witness

religion during his custodial time.

During spring break in April 2012, the children went on a

trip with Defendant and the children’s maternal grandparents.

The children were not returned to Plaintiff on time, which

caused Arella to miss some school. The grandparents said the

children were returned late because the children were sick.

There was a dispute about how, and if, Plaintiff had been

informed the children would be returning late. After this

incident, Plaintiff was no longer comfortable with the modified

visitation schedule. In April 2012, Plaintiff and Defendant

reverted to the original schedule set out in the agreement, with
 -5-
Defendant having physical custody of the children every other

weekend.

In Defendant’s motion, she argued that Plaintiff’s choice

to revert to the more limited visitation schedule constituted a

substantial change of circumstances, and warranted modification

of the custody agreement. At that hearing, Defendant testified

she was also concerned that Plaintiff had had the children

vaccinated without first consulting her because, when Plaintiff

and Defendant were married, they had decided the children would

not be vaccinated.

The trial court entered a final custody order on 9

September 2013, and concluded there had been a material and

substantial change in circumstances that affected the welfare of

the children, and that modifying the prior custody order was in

the best interests of the children. The trial court awarded

joint physical and legal custody of the children to Plaintiff

and Defendant. Plaintiff appeals.

Motion to Strike

We first address Defendant’s “Motion to Strike” filed with

this Court on 10 February 2014. A portion of Defendant’s

testimony from the 24-25 July 2013 hearing was not recorded,

apparently due to malfunctioning equipment. Plaintiff included

an “Addendum Narrative to Transcript” in the record, purporting
 -6-
to accurately reflect the content of Defendant’s missing

testimony. However, when Plaintiff sent the proposed record to

Defendant, Defendant objected to some of the content of

Plaintiff’s narrative, and requested changes. Plaintiff did not

respond, and filed the record without including Defendant’s

proposed narration in the record. Plaintiff failed to properly

settle the record on appeal. Rule 11 of the North Carolina

Rules of Appellate Procedure mandates settlement of the record

by agreement or by certain other approved means. When an

appellee objects to a proposed narration, as is the case in this

instance, the appellant and appellee must first attempt to reach

mutual agreement and, then, if mutual agreement is not reached,

pursue other means of settling the record. N.C.R. App. P. 11(c)

(2014). Plaintiff did not respond to Defendant’s objections and

thus made no effort to reach an agreement on the narration.

Instead, Plaintiff filed the record, certifying that the record

on appeal was settled, when, in fact, it had not been settled.

Failure to properly settle the record is a violation of Rule 9

of the North Carolina Rules of Appellate Procedure. N.C.R. App.

P. 9; Higgins v. Town of China Grove, 102 N.C. App. 570, 572,

402 S.E.2d 885, 886 (1991).

Plaintiff states in his “Settlement of Record:”

“[Defendant] requested ‘additions’ to the narrative be added to
 -7-
the Record on Appeal, which is objected to by [Plaintiff], and

pursuant to Rule 11 those additions are not included in the

printed record on appeal.” However, Plaintiff cites to no

portion of Rule 11 supporting his decision, and we can find

none. It was Plaintiff’s duty, as Appellant, to insure that the

record was complete and settled. Hill v. Hill, 173 N.C. App.

309, 322, 622 S.E.2d 503, 512 (2005) (citation omitted).

Violations of Rules 9 and 11 of the North Carolina Rules of

Appellate Procedure can lead to serious sanctions. Higgins, 102

N.C. App. at 572, 402 S.E.2d at 886. We grant Defendant’s

motion to strike the contested portions of Plaintiff’s

narrative.

I.

We first consider whether the relevant findings of fact are

supported by substantial evidence and whether those findings

support the trial court’s conclusion that there had been a

substantial change in circumstances that affected the welfare of

the children, and that modification of the custody order was in

the children’s best interests. The trial court found that the

children needed to have a “more predictable and consistent

schedule” and a schedule that “compliment[ed] their school hours

and that requires a change to the custody agreement.” Because

we find, at the time the trial court entered its order, that the
 -8-
children’s schedule was predictable and consistent and

complimented the children’s school hours and, because the

modified schedule did not increase predictability or consistency

in relation to the children’s school hours or otherwise, we

reverse.

II.

Plaintiff first argues that several of the trial court’s

findings of fact are not supported by substantial evidence. We

agree in part.

“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). “Substantial evidence has

been defined as ‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” McConnell

v. McConnell, 151 N.C. App. 622, 626, 566 S.E.2d 801, 804 (2002)

(citation omitted). “‘In a custody proceeding, the trial

court’s findings of fact are conclusive on appeal if there is

evidence to support them, even though the evidence might sustain

findings to the contrary.’” Senner v. Senner, 161 N.C. App. 78,

83, 587 S.E.2d 675, 678 (2003) (citations omitted).
 -9-
In the present case, the trial court made the following

relevant findings of fact:

8. Since the entry of the May 23, 2011
Divorce Judgment which incorporated the
parties’ separation agreement, there have
been substantial and material changes in
circumstances as follows:

a. That [Plaintiff and Defendant] did
not follow the separation agreement and
[Plaintiff] would allow [Defendant] to
pick the . . . children up from school.

. . . .

d. That the visitation schedule was
extremely fluid at times and resulted
in inconsistent visitation for the
children by both [Plaintiff and Defendant].

e. It is in the children's best
interests to have a more predictable
and consistent schedule. When the children
were younger, they benefited from the
flexibility contemplated by the initial
agreement and practiced initially. The
families had more in common and
therefore the flexibility worked
better.

. . . .

g. The children are now school age and
in need of a schedule which compliments
their school hours and that requires a
change to the custody agreement.

h. Both [Plaintiff and Defendant]
agree, and the [c]ourt finds, because of
the children’s age, it is important to have
a consistent schedule and routine.

i. [Plaintiff] has re-married and
separated himself from the original
 -10-
faith of his family, [Defendant’s]
family and the children’s history.
[Plaintiff’s] decision to explore a
different faith community has changed
the nature of events (both family and
religious) in which the children can
participate.

j. [Plaintiff has made medical
decisions without consulting
[Defendant]. This has directly affected
the children in that they are now
vaccinated against [Defendant’s] wishes.

k. The children are confused because of
the differences in the homes and the
rules that have been put in place to
respect [Plaintiff’s and Defendant’s]
choices. These constraints have
altered visitation with extended relatives
and that change has affected the children.

l. The lack of a consistent routine has
caused confusion for the children as to
when they can see their parents.

m. One [child’s] concerns may have
manifested itself as digestive and
intestinal issues.

n. The children have experienced
confusion over the development of one
parent staying in the religion in which
[the children] were raised and the
other parent changing his belief system.

. . . .

s. Even though at separation,
[Defendant’s] contact was restricted by
her own actions, by the date of the
divorce, [Plaintiff and Defendant]
were sharing the children on a more
regular and weekly basis. [Plaintiff’s]
changing of his faith and the Spring
Break incident in April 2012, resulted
 -11-
in [Plaintiff] relying on the custody
order in place which stated that
[Defendant] have the children every
other weekend.

t. [Plaintiff and Defendant] were in
agreement to raise the . . . children
as Jehovah’s Witnesses during the[ir]
marriage and after the[ir] separation.
Even after [Plaintiff] first became
engaged in September, 2011, he still
allowed the . . . children to attend
the Kingdom Hall of Jehovah’s Witnesses
with [Defendant], regardless of whose
scheduled time it was on.

u. [Plaintiff] changed the religious
upbringing of the . . . children in the
fall of 2011, and decided that the
children would not attend their Kingdom
Hall of Jehovah’s Witnesses with
[Defendant] or the grandparents during
[Plaintiff’s] custodial time.

. . . .

9. The foregoing substantial and material
changes in circumstances which have affected
the welfare of the children warrant this
[c]ourt to modify the May 23, 2012 Judgment
by awarding joint physical and legal custody
of the . . . children to Defendant and
Plaintiff.

We first note that the trial court’s finding of fact number

nine is actually a conclusion of law, and we must treat it as

such. In re R.A.H., 182 N.C. App. 52, 60, 641 S.E.2d 404, 409

(2007) (citations omitted). Also, finding of fact number eight:

“Since the entry of the May 23, 2011 Divorce Judgment which

incorporated the parties’ separation agreement, there have been
 -12-
substantial and material changes in circumstances[,]” when

considered in its entirety, is a conclusion of law. To the

extent the trial court made determinations that certain findings

of fact constituted bases for ruling there had been substantial

and material changes in circumstances, those determinations were

conclusions of law. The individual alphabetized subsections of

finding of fact number eight, except as indicated below,

represent the trial court’s relevant findings of fact.

Plaintiff contests finding of fact 8.a., which states:

“That [Plaintiff and Defendant] did not follow the separation

agreement and [Plaintiff] would allow [Defendant] to pick the

. . . children up from school.” When determining the

evidentiary basis for this finding, the agreement must be

considered in its entirety. While the agreement stated that

Defendant was entitled to visitation with the children every

other weekend, and exchanges of the children should occur at

Plaintiff’s residence, the agreement also stated that “[s]uch

other arrangements [as] [were] mutually agreeable to [Plaintiff

and Defendant]” would be allowed. Therefore, Plaintiff and

Defendant did, in fact, follow the agreement when they made

mutually agreeable deviations from the agreement. Thus, this

portion of the finding is not supported by substantial evidence.

However, the portion stating that: “[Plaintiff] would allow
 -13-
[Defendant] to pick the . . . children up from school[,]” is

supported by substantial evidence.

Plaintiff next challenges the trial court’s finding of fact

8.d., which states: “That the visitation schedule was extremely

fluid at times and resulted in inconsistent visitation for the

children by both [Plaintiff and Defendant].” We agree the

visitation schedule was at times “fluid,” but disagree with the

characterization of the schedule as “extremely fluid.” The

visitation schedule had been in place since October 2011, but

the testimony at trial focused primarily on the visitation

schedule following Plaintiff’s and Defendant’s divorce. At the

time of the divorce, Plaintiff was in school ‒ from mid-February

until mid-June ‒ and Defendant sometimes provided daytime care

for Aurora, as well as afterschool care for both children.

During that time, Defendant had a small residence and did not

have overnight visits with the children every other weekend as

scheduled. Defendant’s career as a wedding photographer, which

often required her to work on weekends, also made it difficult

for her to visit the children on weekends. This inconsistent

visitation continued through the summer of 2011. In an attempt

to have Defendant visit more consistently with the children, and

be more of a presence in the children’s lives, Plaintiff and

Defendant mutually agreed to modify the schedule, allowing
 -14-
Defendant custody of the children every Thursday and Friday

night.

The evidence does not support the finding that the

“visitation schedule was extremely fluid at times and resulted

in inconsistent visitation for the children by both [Plaintiff

and Defendant].” There was no evidence Plaintiff had ever been

inconsistent in his visitation, and Defendant’s inconsistent

visitation was not a result of the schedule – had Defendant

wanted to keep the children every other weekend as was agreed

upon in the schedule, she had that opportunity. Rather, because

of the flexibility permitted in the agreement, Defendant and

Plaintiff mutually agreed for Defendant to have visitation every

Thursday and Friday, thereby increasing the time Defendant spent

with the children, and increasing consistency since Defendant

had not been taking advantage of all of her scheduled visitation

with the every other weekend schedule.

In April 2012, Plaintiff and Defendant resumed the original

every other weekend schedule set out in the agreement, and

Defendant maintained a consistent visitation schedule. There

was no evidence, after that time, that Defendant’s career

continued to prevent her from seeing the children on weekends.

Therefore, although the visitation schedule was “fluid” at times

to accommodate Defendant’s schedule, it resulted in a more
 -15-
consistent and more frequent visitation schedule for Defendant.

Furthermore, since April 2012, the visitation schedule has been

entirely consistent: Defendant has physical custody of the

children every other weekend, as Plaintiff and Defendant had

initially agreed in the agreement.

Plaintiff next challenges finding of fact 8.e., which

states: “It is in the children’s best interests to have a more

predictable and consistent schedule. When the children were

younger, they benefited from the flexibility contemplated by the

initial agreement and practiced initially. The families had

more in common and therefore the flexibility worked better.” We

note that any ultimate finding that considered what was in the

best interests of the children was a conclusion of law and not a

finding of fact. R.A.H., 182 N.C. App. at 60, 641 S.E.2d at

409. We hold that there is substantial evidence to support the

rest of this finding of fact.

Plaintiff next challenges finding of fact 8.g., which

states: “The children are now school age and in need of a

schedule which compliments their school hours and that requires

a change to the custody agreement.” The portion of this finding

stating that the children are now of school age and in need of a

schedule complimenting their school hours is a reasonable

statement, though we are uncertain what evidence was presented
 -16-
to the trial court in support of this finding. Furthermore, one

of the children was already attending school at the time of the

divorce. The portion of this finding stating that the

children’s status as school-age children requires a change to

the agreement is a conclusion of law.

Plaintiff also contests finding of fact 8.l., which states:

“The lack of a consistent routine has caused confusion for the

children as to when they can see their parents.” It is unclear

from the evidence before the trial court what the basis was for

this finding of fact. However, it is clear the children were in

a very consistent routine, as originally agreed to by Plaintiff

and Defendant, from April 2012 until the 24-25 July 2013

hearing.

Finally, Plaintiff challenges finding of fact 8.m., which

states: “One [child’s] concerns may have manifested itself as

digestive and intestinal issues.” We hold there was not

substantial evidence that the agreement, as it was originally

written, caused a digestive or intestinal issue that the child

may have suffered. In any event, a finding that these issues

“may” have been connected to the child’s “concerns” is

speculative only.

We consider the above findings of fact that we have

determined are supported by substantial evidence, along with the
 -17-
unchallenged findings of fact, in our analysis below.

III.

In Plaintiff’s second argument, he contends the trial court

erred in finding “that there had been a substantial and material

change in circumstances since the entry of the prior order of

May 23, 2011[.]” We agree.

“‘[T]he modification of a custody decree must be supported

by findings of fact based on competent evidence that there has

been a substantial change of circumstances affecting the welfare

of the child, and the party moving for such modification assumes

the burden of showing such change of circumstances.’” Pulliam

v. Smith, 348 N.C. 616, 618-19, 501 S.E.2d 898, 899 (1998)

(citation omitted).

[C]ourts must consider and weigh all
evidence of changed circumstances which
affect or will affect the best interests of
the child, both changed circumstances which
will have salutary effects upon the child
and those which will have adverse effects
upon the child. In appropriate cases,
either may support a modification of custody
on the ground of a change in circumstances.

Id. at 619, 501 S.E.2d at 899.

Defendant, as the moving party, had the burden of showing

there had been a substantial change affecting the welfare of the

children. Defendant has not met this burden. Reviewing the

relevant findings of fact that are supported by substantial
 -18-
evidence, the trial court’s conclusion that there was a

substantial change in circumstances is based upon the following.

First, the trial court seems to have primarily relied on its

findings and conclusion that the schedule had been “fluid” and

that the children now needed a more predictable and consistent

schedule. The extent to which the schedule had been “fluid” in

the past was because of Defendant’s initial lack of

participation in the children’s lives, and then because

Plaintiff decided to accommodate Defendant’s schedule to allow

more predictable and consistent visitation between Defendant and

the children. While Defendant’s access to the children

decreased in April 2012 because of the return to the express

terms of the agreement, the schedule since April 2012 has been

more predictable and more consistent from the standpoint of the

children.

Second, the trial court found that Plaintiff’s marriage and

his separation from the Jehovah’s Witness faith “has changed the

nature of events (both family and religious) in which the

children can participate.” There is no evidence to support the

finding that Plaintiff’s marriage affected, or will negatively

affect, the welfare of the children. Since Plaintiff’s

marriage, his wife has become involved with the children and

attends parent-teacher conferences. Plaintiff’s marriage was
 -19-
not a substantial change that has affected the welfare of the

children. The trial court found that Plaintiff’s change of

religion caused confusion in the children “because of the

differences in the homes and the rules that ha[d] been put in

place to respect both [Plaintiff’s and Defendant’s] choices.”

According to the trial court, this impacted the children’s

relationships with their grandparents, “and that change has

affected the children[,]” but has not indicated how confusion

on the part of the children has negatively impacted the

children, nor how the change in relationship with their

grandparents “has affected” them. Defendant agreed at the 24-25

July 2013 hearing that she and Plaintiff had worked out the

issues surrounding Plaintiff’s change of faith and how to handle

that change with respect to the children.

Finally, in finding of fact 8.j., the trial court found:

“[Plaintiff] has made medical decisions without consulting

[Defendant]. This has directly affected the children in that

they are now vaccinated against [Defendant’s] wishes.” This

finding is supported by substantial evidence; however, there is

no indication or finding that vaccinating the children

negatively impacted the children.

The relevant findings of fact supported by the evidence do

not support a conclusion that there has been “‘a substantial
 -20-
change of circumstances[.]’” Pulliam, 348 N.C. at 618-19, 501

S.E.2d at 899 (citation omitted). Because the findings of fact

do not support the conclusion that there has been a substantial

change of circumstances, we reverse and remand to the trial

court for action consistent with this opinion.

IV.

Plaintiff also argues that Defendant failed to prove a

connection between the alleged substantial change in

circumstances and the welfare of the children, and that the

trial court’s findings and conclusions do not support its

ruling. We agree. “[B]efore a child custody order may be

modified, the evidence must demonstrate a connection between the

substantial change in circumstances and the welfare of the

child[.]” Shipman, 357 N.C. at 478, 586 S.E.2d at 255.

Even assuming, arguendo, there has been a substantial

change in circumstances, the trial court has not indicated how

any such change has affected the welfare of the children. The

trial court’s primary basis for modifying the schedule ‒ greater

predictability and consistency ‒ has not been improved by the

modification since the children’s schedule, as provided in the

agreement, is clearly predictable and consistent: Defendant has

physical custody every other weekend. As indicated above, there

are no findings that Plaintiff’s marriage, his change of faith,
 -21-
or his decision to vaccinate the children, had an adverse impact

on the welfare of the children. Because the findings of fact do

not support a conclusion that any alleged substantial change in

circumstances has affected the welfare of the children, we

reverse and remand on this basis, as well. Though it is

conceivable that the positive advances Defendant has made in

parenting, and her increased involvement in the children’s

lives, could lead to a conclusion supporting a modified schedule

to provide Defendant more time with the children, that is not

the basis alleged by Defendant for the custody modification

order before us.

For the reasons stated above, we find that the trial court

erred in concluding there was a substantial change in

circumstances affecting the welfare of the children that

warranted modification of the prior child custody agreement.

Reversed and remanded.

Judges HUNTER, Robert C. and ELMORE concur.

Report per Rule 30(e).