Spoon v. Spoon

NO. COA13-340

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

THOMAS BRANDON SPOON
Plaintiff,

v. Alamance County
No. 07 CVD 2556
ABBY MELVIN SPOON
Defendant

Appeal by defendant from order entered 20 September 2012 by

Judge Kathryn Whitaker Overby in Alamance County District Court.

Heard in the Court of Appeals 12 September 2013.

Wishart, Norris, Henninger & Pittman, PA, by Hillary D.
Whitaker and Kathleen F. Treadwell, for plaintiff-appellee.

Alexander, Miller, and Schupp, LLP, by Sydenham B.
Alexander, Jr. and Jonathan J. Loch, for defendant-
appellant.

DAVIS, Judge.

Abby Melvin Spoon, now Abby Melvin Brown (“Defendant”),

appeals from the trial court’s amended order modifying the

custody arrangements for the parties’ three children.

Defendant’s primary arguments on appeal are that the trial court

erred by (1) supplementing its conclusions of law in response to

a Rule 52(b) motion filed by Thomas Brandon Spoon (“Plaintiff”);

and (2) concluding that there had been a substantial change in
 -2-
circumstances warranting the modification of custody. After

careful review, we affirm the trial court’s amended order.

Factual Background

Plaintiff and Defendant were married on 8 July 2000,

separated on 19 October 2007, and divorced on 15 July 2009. The

parties have three minor children: Allison, age 12; Rebecca,

age 11; and Trevor, age 7.1

On 25 September 2007, Plaintiff filed an action seeking

child custody, equitable distribution, and divorce from bed and

board. On 26 September 2007, the trial court granted Plaintiff

temporary custody of the minor children. Defendant filed an

answer and counterclaims on 19 October 2007 seeking child

custody, child support, divorce from bed and board, post-

separation support, alimony, and equitable distribution. Both

parties voluntarily dismissed their claims, and a consent order

was entered on 14 November 2007 granting the parties joint

custody of the children. The consent order also required the

minor children to attend school in the Alamance Burlington

School System (“ABSS”).

Between December 2007 and December 2009, the parties filed

various motions for contempt and to modify custody. On 15 June

1
Pseudonyms are used in this opinion to protect the identities
of the minor children.
 -3-
2011, Plaintiff filed a motion requesting primary placement. A

hearing was held on 1 August 2011. Before this hearing, the

parties filed a written set of stipulations, stating the

following:

1. Defendant, Abby Melvin Spoon, is moving
to Orange County, North Carolina. A move to
Orange County, North Carolina constitutes a
substantial change in circumstances
affecting the minor children of the parties.

2. If this Court determines that it is in
the best interest of the minor children to
remain in Alamance County, North Carolina,
then Abby Melvin will not move from Alamance
County, North Carolina, and placement will
remain the same.

The trial court proceeded to enter an order determining that

“[i]t is in the best interests of the minor children to remain

in Alamance County, North Carolina.”

In August of 2011, Defendant moved from Burlington to

Mebane. On 28 October 2011, the trial court entered a consent

order concerning custody and the children’s school placement

after Defendant withdrew the children from their previous school

in Burlington and enrolled them in E.M. Yoder Elementary School

in Mebane. In May of 2012, Defendant moved from Mebane to

Chapel Hill. On 3 May 2012, Defendant filed motions seeking to

modify the children’s school placement to the Chapel Hill-

Carrboro School District and to hold Plaintiff in contempt. On
 -4-
22 May 2012, Plaintiff filed motions seeking to modify custody

and hold Defendant in contempt. Plaintiff filed a second motion

to hold Defendant in contempt on 31 July 2012.

On 14 August 2012, the trial court held a hearing on

Plaintiff’s motion to modify custody, Defendant’s motion to

modify school placement, and the parties’ cross motions for

contempt. The trial court entered an order on 24 August 2012

modifying the 28 October 2011 consent order. The trial court

granted Plaintiff primary physical custody, giving him custody

of the minor children for nine days out of every fourteen days,

and Defendant secondary physical custody, giving her custody for

the remaining five days. The trial court also held Defendant in

contempt for moving the minor children without giving Plaintiff

90 days written notice as required by a previous court order;

however, the trial court declined to sanction her.

On 4 September 2012, Plaintiff filed a motion under Rule

52(b) of the North Carolina Rules of Civil Procedure requesting

that the trial court make additional findings of fact and

conclusions of law. In response to Plaintiff’s motion, the

trial court entered an amended order on 20 September 2012.

Defendant appealed to this Court.

Analysis
 -5-
A trial court may order the modification of an existing

child custody order if the court determines that there has been

a substantial change of circumstances affecting the child’s

welfare and that modification is in the child’s best interests.

Shipman v. Shipman, 357 N.C. 471, 473, 586 S.E.2d 250, 253

(2003). Our review of a trial court’s decision to modify an

existing child custody order is limited to determining (1)

whether the trial court’s findings of fact are supported by

substantial evidence; and (2) whether those findings of fact

support its conclusions of law. Id. at 474-75, 586 S.E.2d at

253-54. Evidence is substantial if “a reasonable mind might

accept [it] as adequate to support a conclusion.” Id. at 474,

586 S.E.2d at 253. Because our trial courts “are vested with

broad discretion in child custody matters” and have the

opportunity to observe the witnesses and the parties, the trial

court’s findings of fact are conclusive on appeal if supported

by evidence in the record, even if the evidence might also

support a contrary finding. Balawejder v. Balawejder, ___ N.C.

App. ___, ___, 721 S.E.2d 679, 689 (2011) (citation and

quotation marks omitted).

Defendant asserts a number of arguments on appeal. We

address each in turn.
 -6-
I. Rule 52(b) Motion

Defendant first argues that the trial court erred in

amending its 24 August 2012 order in response to Plaintiff’s

Rule 52(b) motion. Rule 52(b) provides, in pertinent part, that

“[u]pon motion of a party made not later than 10 days after

entry of judgment the court may amend its findings or make

additional findings and may amend the judgment accordingly.”

N.C. R. Civ. P.52(b).

Based on Plaintiff’s Rule 52(b) motion, the trial court

amended its prior order by adding the following italicized

language to its second conclusion of law:

2. There has been a substantial change in
circumstances that affects the welfare of
the minor children related to the
defendant’s moves to Mebane, North Carolina
and Chapel Hill, North Carolina.

The trial court also added a conclusion of law number 6 stating

that “[t]he plaintiff is not in contempt.” Defendant asserts

that the plain language of Rule 52(b) does not allow such

amendments to a trial court’s original conclusions of law.

However, this Court has stated that “Rule 52(b) concerns

amendments to the findings and conclusions relating to a final

judgment . . . .” O’Neill v. S. Nat’l Bank, 40 N.C. App. 227,

231, 252 S.E.2d 231, 234 (1979) (emphasis added). We also look
 -7-
to federal cases for guidance on this issue as our Court has

held that “federal court decisions are pertinent” to our

analysis of Rule 52(b) because “North Carolina’s Rule 52(b)

mirrors Rule 52(b) of the Federal Rules of Civil Procedure.”

Parrish v. Cole, 38 N.C. App. 691, 693, 248 S.E.2d 878, 879

(1978). Federal case law supports the proposition that Rule

52(b) gives a trial court “the power to amend its findings of

fact and conclusions of law.” Nat’l Metal Finishing Co. v.

BarclaysAmerican/Commercial, Inc., 899 F.2d 119, 124 (1st Cir.

1990) (emphasis added); see Shivers v. Grubbs, 747 F.Supp. 434,

436 (S.D. Ohio 1990) (“The primary purpose of a Rule 52(b)

motion is to enable the party to obtain a correct understanding

of the Court’s findings, typically for appeal purposes. In

doing so the movant raises questions of substance by seeking

reconsideration of material findings of fact or conclusions of

law.” (emphasis added)). Thus, we conclude that the trial court

possessed authority under Rule 52(b) to amend its conclusions of

law.

II. 3 August 2011 Stipulation

Defendant next contends that the trial court erred by

relying on the 3 August 2011 stipulation — which stated that

“[a] move to Orange County, North Carolina constitutes a
 -8-
substantial change in circumstances affecting the minor children

of the parties” — in concluding that a substantial change in

circumstances had occurred. Specifically, she argues that

“[t]he fact that Judge Overby drafted her own order, the

presence of certain Findings of Fact in that order which suggest

she may have worked off a previous electronic file, the addition

of conclusions of law pursuant to a Rule 52 motion, and the

absence of required findings of fact strongly indicate that the

trial court had again accepted the Stipulation as a conclusion

of law.”

Defendant correctly notes that “whether there has been a

substantial change of circumstances is a legal conclusion, which

must be supported by adequate findings of fact” and that the

requirement that a trial court find a substantial change in

circumstances before modifying custody cannot be waived by the

parties. Hibshman v. Hibshman, 212 N.C. App. 113, 121, 710

S.E.2d 438, 444 (2011) (citation and quotation marks omitted).

Our Court has also explained that “stipulations as to questions

of law are generally held invalid and ineffective, and not

binding upon the courts, either trial or appellate.” In re

A.K.D., ___ N.C. App. ___, ___, 745 S.E.2d 7, 9 (2013)

(citation, quotation marks, and brackets omitted).
 -9-
However, it is well established that “[a]n appellate court

is not required to, and should not, assume error by the trial

judge when none appears on the record before the appellate

court.” State v. Williams, 274 N.C. 328, 333, 163 S.E.2d 353,

357 (1968). Here, the only reference the trial court made to

the parties’ 3 August 2011 stipulation is in finding of fact 5

in which the trial court provides the entire procedural history

of the case. There is no indication that the trial court sought

to avoid its obligation to determine whether a substantial

change in circumstances had occurred — in stark contrast to the

trial court’s actions in Hibshman.

In Hibshman, the trial court initially granted custody of

the minor children to the mother during the school year.

Hibshman, 212 N.C. App. at 122, 710 S.E.2d at 444. The order

conditioned this custody arrangement on the mother “maintaining

a home in the Granite Quarry Elementary School district” and

provided that if she moved out of the school district, “this

order may be modified without a showing of a substantial change

in circumstances.” Id. When the trial court later modified the

custody order, it “explicitly stated that it was not considering

whether a substantial change in circumstances warranting a

change in custody had occurred” and instead expressly relied
 -10-
upon the above-quoted provision of the original custody order.

Id.

Unlike in Hibshman, the trial court here did not disregard

its duty to determine whether a substantial change in

circumstances had occurred. The trial court’s order does not

suggest that it relied upon the parties’ prior stipulation in

any way when it concluded that there had been a substantial

change in circumstances. Therefore, we decline to assume error.

III. Substantial Change in Circumstances

Defendant’s next several arguments on appeal relate to the

trial court’s conclusion that “[t]here has been a substantial

change in circumstances that affects the welfare of the minor

children related to the defendant’s moves to Mebane, North

Carolina and Chapel Hill, North Carolina.” Defendant asserts

that the trial court erred in making this conclusion because (1)

the change in circumstances must “substantially affect” the

children’s welfare; (2) the trial court relied on a change that

occurred prior to the entry of the previous custody order; and

(3) relocating to another county is not a substantial change in

circumstances where the evidence fails to establish a sufficient

nexus between the relocation and the children’s welfare.

A. “Substantially affects” the children’s welfare
 -11-
Citing Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537

(1973), Defendant claims that modification was improper here

because the trial court was required to find that the moves to

Mebane and Chapel Hill constituted a substantial change in

circumstances that substantially affected the children’s

welfare.

In Spence, our Supreme Court stated that modification of a

child custody order is appropriate upon a showing of “any change

of circumstances substantially affecting the welfare of the

children.” Id. at 684, 198 S.E.2d at 545. Since Spence,

however, our appellate courts have repeatedly articulated the

standard for modification of a child custody order as a

substantial change of circumstances affecting the welfare of the

children. See Shipman, 357 N.C. at 473, 586 S.E.2d at 253 (“It

is well established in this jurisdiction that a trial court may

order a modification of an existing child custody order between

two natural parents if the party moving for modification shows

that a substantial change of circumstances affecting the welfare

of the child warrants a change in custody” (citation and

internal quotation marks omitted)); Stephens v. Stephens, 213

N.C. App. 495, 498, 715 S.E.2d 168, 171 (2011) (“In granting the

Motion to Modify Custody, the trial court must have first
 -12-
appropriately concluded that there was a substantial change in

circumstances and that the change affected the welfare of the

minor child or children.”).

Thus, the trial court applied the appropriate standard in

concluding that “[t]here has been a substantial change in

circumstances that affects the welfare of the minor children

related to the defendant’s moves to Mebane, North Carolina and

Chapel Hill, North Carolina.” Defendant’s argument, therefore,

is overruled.

B. Significance of Fact that Defendant’s Move to Mebane
Occurred Prior to Entry of 28 October 2011 Custody Order

Defendant next argues that the trial court erred in

considering her move to Mebane, North Carolina when making its

determination that a substantial change of circumstances had

occurred, claiming that she had moved to Mebane in August of

2011, which was prior to the entry of the 28 October 2011

custody order. As such, Defendant, citing Tucker v. Tucker, 288

N.C. 81, 216 S.E.2d 1 (1975), asserts that her relocation to

Mebane was not relevant because only changes that have occurred

since 28 October 2011 should be considered when ruling on the

motion to modify custody.

Defendant is mistaken, however, because the trial court’s

actual conclusion was that a substantial change of circumstances
 -13-
“related to the defendant’s moves to Mebane, North Carolina and

Chapel Hill, North Carolina” had occurred. (Emphasis added.)

While the move to Mebane did, in fact, take place two months

before the previous custody order was entered, the trial court’s

findings and the record evidence show that the effects of the

relocation on the minor children did not manifest themselves

until after the entry of that order. Our review of the trial

court’s findings reveals that the trial court was concerned

about Defendant’s history of uprooting, or attempting to uproot,

the minor children without first consulting Plaintiff and the

ramifications that these actions had on the children.

Indeed, the trial court’s findings pertaining to

Defendant’s move to Mebane primarily refer to (1) the children’s

emotional well-being and school performance; and (2) Defendant’s

actions in attempting to diminish the amount of time the

children spent with Plaintiff, once they had moved.2 As such,

2
Defendant claims that findings of fact 14, 16, 18, 32, 33, 37,
47, 49, 62, and 66 address events that occurred before the entry
of the consent order and must be disregarded. We first note
that Defendant merely lists these findings by number and
provides no specific argument regarding any of the findings as
required by Rule 28(b)(6) of the North Carolina Rules of
Appellate Procedure. Moreover, we believe these findings, which
address the numerous times Defendant has attempted to relocate
and unilaterally change the children’s school placements, shed
light on events occurring after the 28 October 2011 consent
order was entered.
 -14-
the effects of the move to Mebane, which became apparent

following the entry of the 28 October 2011 consent order, were

relevant and properly considered by the trial court in

determining whether a substantial change in circumstances had

occurred.

C. Sufficiency of Defendant’s Relocations to Show a
Substantial Change in Circumstances

Defendant also argues that the trial court erred in

concluding that there had been a substantial change in

circumstances because “a change in the custodial parent’s

residence is not itself a substantial change in circumstances

affecting the welfare of the child which justifies a

modification of a custody decree.” Evans v. Evans, 138 N.C.

App. 135, 140, 530 S.E.2d 576, 579 (2000); see Harrington v.

Harrington, 16 N.C. App. 628, 630, 192 S.E.2d 638, 639 (1972)

(holding that trial court erred in modifying custody of minor

child when “[t]he only finding of change in circumstances as to

[the minor child] was that defendant is now residing in

Mecklenburg County, North Carolina” (internal quotation marks

omitted)).

In Evans, our Court explained that the relocation and

remarriage of one of the parties could not have been deemed a

substantial change in circumstances warranting modification of
 -15-
custody because the trial court “made no findings of fact

indicating the effect of the remarriage and relocation on the

child himself . . . [and did] not discuss the impact of the

proposed move on the child.” Evans, 138 N.C. App. at 141, 530

S.E.2d at 580.

In Shipman, our Supreme Court further elaborated on the

need to show the relationship between the change in

circumstances and the welfare of the child, holding that

[i]n situations where the substantial change
involves a discrete set of circumstances
such as a move on the part of a parent, a
parent’s cohabitation, or a change in a
parent’s sexual orientation, the effects of
the change on the welfare of the child are
not self-evident and therefore necessitate a
showing of evidence directly linking the
change to the welfare of the child. . . .
Evidence linking these and other
circumstances to the child’s welfare might
consist of assessments of the minor child’s
mental well-being by a qualified mental
health professional, school records, or
testimony from the child or the parent.

Shipman, 357 N.C. at 478, 586 S.E.2d at 256 (internal citations

and emphasis omitted).

Here, unlike in Evans, the trial court made multiple

findings concerning how the two relocations (and resultant

change in school placement) within a ten month period affected

the minor children. The trial court found that the move to
 -16-
Mebane — abruptly followed by another move to Chapel Hill —

“added stress to the minor children” because they were distanced

from their friends and extracurricular activities when they

moved to Mebane and because the situation was repeated when they

moved to Chapel Hill. The trial court also determined that both

the children’s teachers and Plaintiff had noticed a change in

the children — observing that they were more clingy, tearful,

and upset since the moves. The court found that Allison, the

oldest child, had especially struggled with moving and going to

a new school and that her dance instructor had observed “a

change in [her] demeanor” such that she would frequently cry and

be “visibly upset.”

Additionally, the trial court made findings that since the

two moves and her remarriage, Defendant has withdrawn the

children from activities that Plaintiff helps with or coaches

and has prioritized the development of relationships between the

children and their step-family over their ability to spend time

with Plaintiff. See Stephens, 213 N.C. App. at 499, 715 S.E.2d

at 172 (explaining that interference with and attempts to

frustrate relationship between children and other parent can be

considered in determining whether modification of custody is

appropriate). These findings are uncontested by Defendant and
 -17-
thus are binding on appeal. See Crenshaw v. Williams, 211 N.C.

App. 136, 142, 710 S.E.2d 227, 232 (2011) (“Unchallenged

findings are presumed to be supported by competent evidence and

are binding on appeal.” (citation, quotation marks, and brackets

omitted)).

The trial court also made findings regarding Allison’s and

Rebecca’s declining academic performance since they changed

schools. Defendant only challenges the finding concerning

Rebecca’s academic performance. As such, the trial court’s

finding regarding Allison’s school performance is presumed to be

supported by competent evidence and is binding on appeal. See

id. With respect to Rebecca’s school performance, the trial

court found

43. The middle child [Rebecca] is a rising
4th grader. She attended Highland for
kindergarten, first and second grade. She
attended Yoder for third grade. From
kindergarten through second grade her grades
progressively increased from eleven “needs
improvement”s (and 205 “satisfactory” marks)
in kindergarten to one “needs improvement”
(and 215 “satisfactory” marks) in first
grade to all “satisfactory” (209
“satisfactory”) marks in second grade, with
no “needs improvement” marks. In third
grade children receive their first “letter”
grades, but they also continue to receive
“needs improvement,” “satisfactory” or
“unsatisfactory” marks. In third grade, the
middle child received twenty-one “needs
improvement” marks and 170 “satisfactory”
 -18-
marks. The middle child took the end of
grade (EOG) tests for the first time while
at Yoder. She passed math on the first try.
She failed the English EOG and had to retake
it. The middle child passed the English EOG
on the second try. The middle child’s
grades (or marks) have diminished while she
attended Yoder.

We cannot agree with Defendant’s assertion that the trial

court’s findings on this issue were unsupported by competent

evidence. Rebecca’s report cards from her new school in Mebane

— introduced into evidence by Defendant — show that Rebecca

received more “needs improvement” marks and less “satisfactory”

marks than in her previous years of schooling. As such, the

trial court’s finding that Rebecca’s grades diminished is

supported by competent evidence in the record.

Thus, the trial court determined that the children’s

emotional and academic well-being were adversely impacted by the

moves to Mebane and Chapel Hill. As such, we hold that the

trial court’s order modifying custody (1) demonstrates that

there has been a substantial change in circumstances; and (2)

establishes a sufficient nexus between the change in

circumstances and the children’s welfare.

IV. Best Interests of the Children

Defendant also contends that the trial court erred in

concluding that it was in the best interests of the minor
 -19-
children to modify the previous custody order because the trial

court “failed to specify in its findings of fact which evidence

presented convinced it that modification of the 28 October 2011

Order was in the best interest of the children.” We disagree.

Once the trial court makes the
threshold determination that a substantial
change has occurred, the court then must
consider whether a change in custody would
be in the best interests of the child. As
long as there is competent evidence to
support the trial court’s findings, its
determination as to the child’s best
interests cannot be upset absent a manifest
abuse of discretion.

Metz v. Metz, 138 N.C. App. 538, 540-41, 530 S.E.2d 79, 81

(2000) (internal citation omitted). In determining whether

modification of custody is in the best interests of the minor

children, “any evidence which is competent and relevant to a

showing of the best interest . . . must be heard and considered

by the trial court.” In re P.O., 207 N.C. App. 35, 39, 698

S.E.2d 525, 529 (2010) (citation and emphasis omitted).

“When determining whether the findings in an order

modifying child custody are adequate to support its conclusions,

this Court examines the entire order. The trial court is not

constrained to using certain and specific buzz words or phrases

in its order.” Lang v. Lang, 197 N.C. App. 746, 748, 678 S.E.2d

395, 397 (2009) (citation, quotation marks, and brackets
 -20-
omitted). In this case, the trial court’s findings, taken

together, support its conclusion that modification of custody

was in the best interests of the minor children. As discussed

above, the trial court found that the two relocations have had a

negative impact on the children’s emotional and academic well-

being and that since the moves, Defendant has withdrawn the

children from extracurricular activities with which Plaintiff

assists in order to limit their time with him.

The trial court also found that Plaintiff’s living

situation has been more stable over the past several years than

Defendant’s. Specifically, the trial court noted that Plaintiff

has lived in the same house since his separation from Defendant

and has not been engaged or married during this time. The trial

court found that, conversely, Defendant has been engaged twice,

has moved twice, has transferred the children to a different

school district, and is now attempting to change the children’s

school placement once again. The trial court also determined

that at Plaintiff’s house, the children had their own bedrooms,

were closer to their core group of friends and to their

extracurricular activities, and that the flexibility of

Plaintiff’s work schedule allows him to pick up the children

from school and transport them to their afterschool activities.
 -21-
Based on our examination of the entire order and its extensive

findings of fact, we are satisfied that the trial court did not

abuse its discretion in concluding that modification of custody

was in the best interests of the minor children.

V. Motion to Modify School Placement

Finally, Defendant argues that the trial court erred by

failing to explicitly rule on her motion to modify school

placement. We note that the decretal portion of the 20

September 2012 order states that “[t]he plaintiff is responsible

for and shall enroll the minor children in school in the ABSS,”

indicating that the trial court considered and denied

Defendant’s motion to modify the children’s school placement to

the Chapel Hill-Carrboro School District. Furthermore,

Defendant’s argument on this issue is premised on her assertion

that the trial court erred in modifying custody, an assertion we

reject for the reasons explained herein.3

Conclusion

For the reasons stated above, we affirm the trial court’s

order modifying custody.

AFFIRMED.

3
We decline to address Defendant’s remaining arguments because
they merely consist of her contentions as to what should occur
in the event that the trial court’s 20 September 2012 order is
vacated.
 -22-
Judges HUNTER, JR. and ERVIN concur.