An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1443
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
RAY NORTON HUNT,
Plaintiff-Appellant,
v. Iredell County
No. 11 CVD 1911
LINDSAY NICOLE DURFEE (now
COLLINSWORTH),
Defendant-Appellee
Appeal by Plaintiff from order entered 9 September 2013 by
Judge Deborah P. Brown in District Court, Iredell County. Heard
in the Court of Appeals 6 May 2014.
Cranfill Sumner & Hartzog LLP, by Michelle D. Connell, for
Plaintiff-Appellant.
Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson and
K. Edward Greene, for Defendant-Appellee.
McGEE, Judge.
Ray Norton Hunt (“Plaintiff”) and Lindsay Nicole Durfee
(“Defendant”) had a brief relationship that resulted in the
birth of their minor child (“the child”) in 2009, but they were
never married. Plaintiff filed a complaint on 17 June 2011
seeking custody of the child, and Defendant filed a response to
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the complaint on 4 August 2011. The trial court entered a
temporary custody order on 27 August 2012.
After a hearing, the trial court entered a permanent
custody order on 9 September 2013, in which it granted the
parties joint legal and physical custody and ordered that the
parties “shall continue the alternating week to week custodial
schedule” until August 2015. The trial court further ordered
that “[b]eginning the third week of August 2015, the primary
custody of the [] child shall shift to [] Defendant,” and that
Plaintiff would have visitation every other Friday from 5:00
p.m. until Monday morning before school and each Wednesday from
school dismissal until 8:00 p.m. Plaintiff appeals.
I. Best Interests of the Child
Plaintiff first argues that “when making an initial child
custody award, the trial court is to consider the best interests
of the child under the current, existing conditions.” This is
not an argument on appeal so much as a statement of the rule to
be applied in child custody cases. Indeed, at the conclusion of
this section in Plaintiff’s brief, Plaintiff requests no relief,
but rather, asks this Court to affirm part of the custody order.
II. Whether Trial Court Modified Custody
Plaintiff next argues that “the trial court does not have
the authority to sua sponte modify custody of a minor child in
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the initial permanent custody order based upon speculative
future changes of circumstances.” Plaintiff contends the
“portion of the custody order awarding the parties joint legal
and physical custody on an alternating weekly basis . . . should
be affirmed.”
Plaintiff challenges the portion of the order that provides
a different custody arrangement beginning the third week of
August 2015. Plaintiff contends there has not been a
substantial change of circumstances to justify the modification
occurring in August 2015, and cites N.C. Gen. Stat. § 50-
13.7(a), regarding modification of a child custody order.
However, the trial court’s order in the present case does
not arise from the modification of a prior custody order.
Rather, the trial court entered a single order providing for two
different custody arrangements at two different times.
Therefore, the provisions of N.C.G.S. § 50-13.7(a) do not apply.
III. Whether Findings Support a Substantial Change in
Circumstances
Plaintiff next argues that “even if the trial court could
properly modify future custody of the minor child in the initial
permanent custody order, the findings of fact do not support a
substantial change of circumstances.” As discussed in the
previous section of this opinion, the trial court did not modify
the custody of the child. Thus, the provisions of N.C.G.S.
-4-
§ 50-13.7(a) regarding a substantial change in circumstances do
not apply in the present case. Plaintiff has not shown that the
trial court erred.
Affirmed.
Judges HUNTER, Robert C. and ELMORE concur.
Report per Rule 30(e).