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
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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.
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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
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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
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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.
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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
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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
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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).
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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
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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
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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
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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
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“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.
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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
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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
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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
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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”
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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
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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
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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.
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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.
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Judges HUNTER, JR. and ERVIN concur.
Spoon v. Spoon
Court: Court of Appeals of North Carolina
Date filed: 2014-03-18
Citations: 233 N.C. App. 38
Copy CitationsCombined Opinion