Robinson v. Cain ( 2015 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedu re.
    IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA15-181
    Filed: 20 October 2015
    Henderson County, No. 06 CVD 2004
    JOHN LEROY ROBINSON, Plaintiff,
    v.
    RACHEAL ELLEN CAIN, Defendant.
    Appeal by plaintiff from Order entered 19 August 2014 by Judge Emily G.
    Cowan in Henderson County District Court. Heard in the Court of Appeals 24 August
    2015.
    F.B. Jackson & Associates Law Firm, PLLC, by Angela S. Beeker, for plaintiff.
    No appellee brief filed.
    ELMORE, Judge.
    John Leroy Robinson (plaintiff) appeals from an order denying his motion to
    modify child custody. Plaintiff argues that the trial court abused its discretion in
    finding no changed circumstances warranted a modification of the existing child
    custody order. We agree with plaintiff and remand for a new hearing on plaintiff’s
    motion for modification.
    I. Background
    ROBINSON V. CAIN
    Opinion of the Court
    Plaintiff and Racheal Ellen Cain (defendant) are the natural parents of the
    minor child. The child was born out of wedlock and has lived with defendant since
    his birth in October 2006. Plaintiff and defendant have never lived together but
    agreed between themselves how they would raise and support the child.
    On 5 June 2007, plaintiff filed a complaint in this action praying for the trial
    court to enter a consent judgment of the parties relative to the support and
    maintenance of the minor child. That same day, the trial court entered a consent
    order and agreement granting defendant custody of the minor child, with reasonable
    visitation for plaintiff, and ordering plaintiff to pay child support to defendant in the
    amount of $1,500 per month. The 5 June 2007 Order included the following findings
    of fact relevant to the issue of child custody:
    8. Neither of the parties has ever participated in litigation
    concerning custody of the Offspring. There has not been a
    custody proceeding concerning the Offspring in a court of
    this or any other state. No person has physical custody or
    claims to have physical custody of Offspring, other than the
    parties to this action. North Carolina is the home state of
    the Offspring (as “home state” is defined in G.S. 50A-2(5)
    of the General Statutes of North Carolina, and as
    interpreted by the case law of the State of North Carolina)
    and has been the home state of the Offspring since. It is in
    the best interest of Offspring that this court assume
    jurisdiction in that the Offspring and the parties have a
    significant connection with North Carolina (i.e., are and
    have been residents of the state) and there is available in
    North Carolina substantial evidence relevant to the
    Offspring’s present and future care, protection, training
    and personal relationships. Offspring are physically
    present in North Carolina. It appears that no other state
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    ROBINSON V. CAIN
    Opinion of the Court
    besides North Carolina would have jurisdiction of
    Offspring under the Uniform Child Custody Act.
    9. The parties have never lived together. Offspring has
    lived with Woman since his birth. Woman is a fit and
    proper person to have custody of Offspring, and it is in the
    best interest of Offspring to be placed in the custody of
    Woman, with reasonable visitation in Man.
    On 28 January 2013, plaintiff filed a motion in the cause requesting a
    modification of the 5 June 2007 Order. Plaintiff’s motion was based on his contention
    “[t]hat since the entry of the [5 June 2007 Order] there has occurred a substantial
    and material change in circumstances affecting the best interest and general welfare
    of the parties’ minor child . . . .” Plaintiff’s argument that changed circumstances
    warranted a modification of the 5 June 2007 Order was based, in part, on the
    following allegations: that defendant has denied plaintiff any input into the child’s
    education and has refused to share with plaintiff any information concerning the
    child’s educational needs, attendance, or progress in school; that, over plaintiff’s
    objections, defendant continues to smoke in the child’s presence; that defendant
    disconnected a smoke detector that the Department of Social Services for Henderson
    County had installed in defendant’s home; that defendant refuses to allow plaintiff
    any reasonable communication with the child by phone; that defendant has denied
    plaintiff any reasonable overnight visitation with the child; that defendant has
    recently been accused of having oxycodone, marijuana, methamphetamine, and drug
    paraphernalia in her car when she was stopped by police in Rutherford County; and
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    ROBINSON V. CAIN
    Opinion of the Court
    that defendant has threatened to remove the child from North Carolina and the
    jurisdiction of the trial court.
    A subsequent motion by plaintiff to modify the 5 June 2007 Order followed on
    18 June 2013. In addition to those circumstances alleged in his prior motion, plaintiff
    alleged the following: that despite paying $1,500 per month in child support,
    defendant has refused plaintiff visitation with the child; that defendant is on
    probation for the possession of Schedule II and Schedule IV controlled substances;
    that plaintiff has made a good faith effort to establish a proper relationship with the
    child and wants the child to develop socially and academically; that defendant does
    not have a fit and proper place to keep the child and is not a fit and proper person to
    have legal custody of the child.
    Plaintiff’s motions were resolved by a second consent order entered 27 August
    2013.    The 27 August 2013 Order adopted a handwritten “Memorandum of
    Judgment/Order” that modified the custody of the minor child to joint legal custody,
    awarded defendant primary physical custody, and specified a visitation schedule.
    On 30 May 2014, plaintiff filed a motion to modify the 27 August 2013 Order.
    The motion was first argued, and evidence introduced, on 21 July 2014. The matter
    was continued and ultimately concluded on 18 August 2014. On 19 August 2014, the
    trial court entered an order denying plaintiff’s motion to modify the custody of the
    minor child. Plaintiff filed a timely appeal from the 19 August 2014 Order.
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    ROBINSON V. CAIN
    Opinion of the Court
    II. Analysis
    On appeal, plaintiff argues that the trial court erred in denying his motion to
    modify custody. Specifically, plaintiff contends that the trial court acted under a
    misapprehension of the law and, therefore, abused its discretion in finding no change
    in circumstances existed that would warrant a modification of the 27 August 2013
    Order. Additionally, plaintiff maintains that the findings of fact in the 19 August
    2014 Order are not supported by substantial evidence and, furthermore, the findings
    of fact do not support the conclusions of law. We agree with plaintiff that the trial
    court abused its discretion in denying plaintiff’s motion for modification of custody.
    As this issue is dispositive, we need not address plaintiff’s second argument.
    A. Standard of Review
    “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).   “In addition to evaluating whether a trial court’s findings of fact are
    supported by substantial evidence, this Court must determine if the trial court’s
    factual findings support its conclusions of law.” 
    Id. at 475
    , 
    586 S.E.2d at 254
    .
    “Absent an abuse of discretion, the trial court’s decision in matters of child
    custody should not be upset on appeal.” Everette v. Collins, 
    176 N.C. App. 168
    , 171,
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    ROBINSON V. CAIN
    Opinion of the Court
    
    625 S.E.2d 796
    , 798 (2006). “A [trial] court by definition abuses its discretion when
    it makes an error of law.” Koon v. United States, 
    518 U.S. 81
    , 100, 
    135 L. Ed. 2d 392
    ,
    414 (1996), superseded in part on other grounds by statute, PROTECT Act of 2003,
    Pub. L. No. 108-21, § 401, 
    117 Stat. 650
    , 670 (2003), cited with approval in State v.
    Rhodes, 
    366 N.C. 532
    , 535–36, 
    743 S.E.2d 37
    , 39 (2013). “[F]indings made under a
    misapprehension of law are not binding,” and “[w]hen faced with such findings, the
    appellate court should remand the action for consideration of the evidence in its true
    legal light.” Allen v. Rouse Toyota Jeep, Inc., 
    100 N.C. App. 737
    , 740, 
    398 S.E.2d 64
    ,
    65 (1990) (citing Dishman v. Dishman, 
    37 N.C. App. 543
    , 
    246 S.E.2d 819
     (1978);
    Hanford v. McSwain, 
    230 N.C. 229
    , 
    53 S.E.2d 84
     (1949)).
    B. Changed Circumstances Warranting Modification
    Plaintiff contends that the trial court acted under a misapprehension of the
    law when it instructed the parties as follows:
    I’m looking for substantial change of circumstances since
    August of last year. You all have got—I’m trying to give you
    as much leeway as I can, but you all have got to keep me in
    that range, because that’s all I’m legally allowed to
    consider.
    ....
    The only thing I’m allowed to consider is what has
    happened since the last order because the first thing I have
    to find where I can consider anything at all is a substantial
    change of circumstances affecting the welfare of the child.
    And I have to go back to the last order on that. My
    understanding is the last order is August 2013.
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    ROBINSON V. CAIN
    Opinion of the Court
    (emphasis added). Because the trial court had not previously made findings at the
    time of the 27 August 2013 Order, plaintiff maintains that the court was allowed to
    consider “as current” those facts that were in existence but not previously disclosed
    to the court. Therefore, plaintiff argues, the trial court erred by limiting the evidence
    and its findings to only those facts that had occurred since the 27 August 2013 Order.
    In North Carolina, a child custody order “may be modified or vacated at any
    time, upon motion in the cause and a showing of changed circumstances by either
    party . . . .” 
    N.C. Gen. Stat. § 50-13.7
    (a) (2013). The “changed circumstances” analysis
    generally involves a comparison between the current circumstances affecting the
    welfare of the child and those that existed at the time of the previous order. See
    generally 3 Suzanne Reynolds, Lee’s North Carolina Family Law § 13.106 (5th ed.
    2014) (explaining the standard and process for modifying custody orders).           The
    purpose of the rule is “to prevent relitigation of conduct and circumstances that
    antedate the prior custody order.” Newsome v. Newsome, 
    42 N.C. App. 416
    , 425, 
    256 S.E.2d 849
    , 854 (1979) (citing Stanback v. Stanback, 
    266 N.C. 72
    , 
    145 S.E.2d 332
    (1965) (applying the “changed circumstances” requirement where a second judge
    reached a different conclusion on the same facts only sixteen days after entry of the
    first custody order)); see 
    id.
     (“The rule prevents the dissatisfied party from presenting
    those circumstances to another court in the hopes that different conclusions will be
    drawn.”).
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    ROBINSON V. CAIN
    Opinion of the Court
    Plaintiff’s argument turns on whether the trial court may treat “as current”
    those facts that existed at the time of the 27 August 2013 Order but were not disclosed
    to the court. In support of his argument, plaintiff relies on Newsome, 
    42 N.C. App. at
    424–27, 
    256 S.E.2d at
    853–55. In Newsome, a separation agreement granting custody
    to the plaintiff was incorporated by reference into a divorce decree. Id. at 424, 
    256 S.E.2d at 854
    . The trial court had “merely approved the contract made between the
    parties”; the question of custody, however, had not been “litigated and decided by the
    judge after hearing evidence tending to show the circumstances as they then existed
    relating to the best interest of this child.” 
    Id.
     The following year, the defendant filed
    a motion to modify the custody order. Id. at 417, 
    256 S.E.2d at
    849–50. The trial
    court, concluding that changed circumstances warranted a modification, made
    findings of fact that did not distinguish between circumstances as they existed before
    and after the divorce decree. Id. at 423, 
    256 S.E.2d at 853
    . Affirming the trial court’s
    decision, this Court explained that if the reason for the changed circumstances
    requirement is to “prevent relitigation” of the facts existing at the time of the prior
    order, “[i]t assumes . . . that such conduct has been litigated and that a court has
    entered a judgment based on that conduct.” Id. at 425, 
    256 S.E.2d at 854
    . But
    “[w]hen, . . . as in the present case, facts pertinent to the custody issue were not
    disclosed to the court at the time the original custody decree was rendered, courts
    have held that a prior decree is not res judicata as to those facts not before the court.”
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    ROBINSON V. CAIN
    Opinion of the Court
    
    Id.
     (citations omitted). Newsome, therefore, represents a narrow exception to the
    otherwise rigid rule regarding changed circumstances in child custody cases: the trial
    court may treat “as current” those facts that were in existence but undisclosed at the
    time of the last order to determine whether changed circumstances exist. Id. at 424,
    
    256 S.E.2d at 854
    .
    Prior decisions of this Court have consistently relied on Newsome in similar
    child custody cases. See, e.g., Woodring v. Woodring, ____ N.C. App. ____, ____, 
    745 S.E.2d 13
    , 20 (June 4, 2013) (No. COA12-679) (“[W]hen evaluating whether there has
    been a substantial change in circumstances, courts may only consider events which
    occurred after the entry of the previous order, unless the events were previously
    undisclosed to the court.”); Ford v. Wright, 
    170 N.C. App. 89
    , 96, 
    611 S.E.2d 456
    , 461
    (2005) (“As the trial court had already considered the parties’ past domestic troubles
    and communication difficulties in the prior order, without findings of additional
    changes in circumstances or conditions, modification of the prior custody order was
    in error.”); Wehlau v. Witek, 
    75 N.C. App. 596
    , 598, 
    331 S.E.2d 223
    , 225 (1985)
    (requiring a showing of changed circumstances where all facts relevant to issue of
    custody were before the trial court at the time of the original custody order), overruled
    on other grounds by Pulliam v. Smith, 
    348 N.C. 616
    , 620 & n.1, 
    501 S.E.2d 898
    , 900
    & n.1 (1998).
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    ROBINSON V. CAIN
    Opinion of the Court
    We find Newsome to be controlling in the case sub judice and conclude that the
    trial court acted under a misapprehension of the law with respect to the permissible
    scope of evidence supporting its findings of fact in the 19 August 2014 Order. Plaintiff
    directs our attention to the following findings of fact, to which he takes exception:
    12. The minor child is in first grade. The minor child is
    special needs (ADHD). His grades indicate that he needs
    intensive help in some of his classes. There is no evidence
    that this has not always been the case.
    ....
    19. The Woman is not working to any significant degree
    now and she was not at the time of the last order.
    20. The Woman is on probation and was at the time of the
    last order; she has passed all her drug screens.
    ....
    24. The Man and his family have more education than the
    Woman and her family. This was the case at that [sic] time
    of the last order as well. There is no evidence that anyone
    has gotten more education since the time of the last order
    (except the minor child).
    25. Since the entry of the last order; [sic] the Man has
    gotten remarried to a woman he had been dating since
    before the last order. She and the minor child have a good
    relationship and there is no evidence of any change with
    regards to the minor child since the dating relationship
    became a marriage.
    Neither the 5 June 2007 Order nor the 27 August 2013 Order included findings
    regarding the circumstances mentioned above. Nevertheless, the trial court appears
    to conclude, for example, that because the minor child has always had special needs,
    there has been no change in circumstances since the 27 August 2013 Order. This is
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    ROBINSON V. CAIN
    Opinion of the Court
    exactly the type of reasoning that Newsome rejected. See Newsome, 
    42 N.C. App. at 426
    , 
    256 S.E.2d at 855
     (“Surely it could not be said that the second judge is powerless
    to act merely because the circumstances are the same in that the abuse is no greater
    or the environment no worse than before.”). Contrary to the trial court’s assertion
    that it could “only consider what has happened since the last order,” according to
    Newsome the court could have considered “as current” those facts that existed but
    were not disclosed to the court at the time of the 27 August 2013 Order. We conclude,
    therefore, that the trial court abused its discretion in making the findings of fact
    contained in its 19 August 2014 Order.
    As it is the trial court’s duty to examine the evidence and make findings of fact
    and conclusions of law as to whether a substantial change of circumstances
    warranting the modification of custody has occurred, we vacate the 19 August 2014
    Order and remand for a new hearing on the issue of custody in accordance with this
    opinion. See Woodring, ____ N.C. App. at ____, 745 S.E.2d at 20 & n.2 (vacating
    custody order and remanding for a new hearing without addressing whether the error
    was a sufficient basis to modify the order).
    III. Conclusion
    The trial court abused its discretion by acting under a misapprehension of law.
    In making its findings of fact, the trial court was permitted to consider “as current”
    those facts that were in existence but previously undisclosed at the time of the 27
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    ROBINSON V. CAIN
    Opinion of the Court
    August 2013 Order. We vacate the 19 August 2014 Order and remand for a new
    hearing on plaintiff’s motion to modify the 27 August 2013 Order.
    VACATED AND REMANDED.
    Chief Judge McGEE and Judge DAVIS concur.
    Report per Rule 30(e).
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