Davidson v. Tuttle ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-622
No. COA21-387
Filed 20 September 2022
Rutherford County, No. 15CVD549
DONALD DAVIDSON, Plaintiff,
v.
EMILY TUTTLE, Defendant.
Appeal by plaintiff from order entered on or about 19 November 2020 by Judge
Robert K. Martelle in District Court, Rutherford County. Heard in the Court of
Appeals 22 February 2022.
Parsons Law, P.A., by Patrick K. Bryan, for plaintiff-appellant.
W. Martin Jarrard and Jarald N. Willis, for defendant-appellee.
STROUD, Chief Judge.
¶1 Plaintiff-father appeals the trial court’s order reducing his visitation time with
his children. Upon careful review, we determine the trial court’s findings of fact are
supported by the evidence, and those finding support the trial court’s determination
that a substantial change adversely impacting the welfare of the minor children
occurred since the prior custody order and that the modification of the custodial
schedule is in the children’s best interests. We therefore affirm.
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2022-NCCOA-622
Opinion of the Court
I. Background
¶2 On or about 4 June 2015, plaintiff-father filed a verified child custody
complaint against defendant-mother requesting custody for the parties’ two children,
Adam and Bryan1, and moved to establish paternity. On 19 August 2015, a
temporary, non-prejudicial memorandum of judgment was entered ordering a
paternity test. On or about 24 August 2015, defendant-mother filed an answer and
counterclaimed for custody. The paternity testing established plaintiff-father is the
children’s father. On 13 May 2016, the trial court entered a custody order granting
both parties joint legal custody with defendant-mother having primary physical
custody. Father had visitation beginning in May of 2016 for two hours, twice a week;
the children were approximately 14 months old at the time this visitation began.
Father’s physical custody was set to slowly increase through the months with a
specific schedule laid out with changes when the children turned two years old and
when they began kindergarten.
¶3 On 10 February 2017, Father moved to modify the child custody order arguing
“there has been a substantial change in circumstances affecting the custody and
visitation of the minor children,” including that “the spirit” of the order indicates he
should get “more time” with the children as they age; the children are no longer bottle
1 Pseudonyms are used.
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fed, and thus they can have more flexible schedules; the children are close with
Father; and Mother would be moving her residence five hours away. Thereafter, on
31 December 2018, Father amended his motion to modify, alleging Mother had been
dating and when she was not with the children she allowed her parents to keep them
rather than him.
¶4 On 29 August 2019, the trial court entered a custody order, by consent of the
parties.2 The 29 August 2019 custody order modified the custodial schedule to give
Father more physical time with the children, including 14 overnights each month
beginning in August of 2019 and running through “school months[.]” On 18
November 2019, Mother filed a verified motion to modify custody alleging a
“substantial change in circumstances affecting the welfare of the minor children,”
because the children “have not adjusted well emotionally to the new schedule[;]”
Father has not been involved in preschool or speech therapy; the children often have
“physical ailments” after being with Father; Father often has a woman in his home
whose “fitness” around the children is “concern[ing;]” and the children are “no longer
thriving” as they were under the prior schedule. On 10 February 2020, Mother filed
a verified supplement to her motion to modify custody, claiming Father often took the
2On 1 August 2019, the parties entered a Memorandum of Order with the terms of the
revised custodial schedule; the formal order based on the Memorandum was filed on 29
August 2019.
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children to his elderly grandfather’s house “subjecting” them to 8 hours in the car on
weekends in “an unwholesome environment” with “dangerous conditions;” and
Father made “disparaging comments about” Mother to the children.
¶5 On 19 February 2020, Father answered Mother’s motion, denying most of the
allegations regarding a substantial change of circumstances and moving for attorney
fees. After a hearing on 12 August 2020 and 24 September 2020, the trial court
entered a custody order concluding there had “been a substantial change in
circumstances since entry of the August 1, 2019 Consent Order that adversely affects
the welfare of the subject minor children and which warrants . . . modification[.]” The
trial court modified Father’s visitation to visitation every other weekend from Friday
at 3:00pm to Sunday at 3:00pm with specific provisions for some holidays. Father
appeals.
II. Modification of Custody Order
¶6 Father first contends that “the trial court made no findings of fact
demonstrating a substantial change in circumstances since entry of the August 1,
2019 custody order” and “there is a lack of substantial evidence to demonstrate any
substantial change of circumstances had occurred since the entry of the August 1,
2019 order.” (Emphasis added and capitalization altered.) Thus, Father contends
“the trial court failed to make any findings of fact demonstrating a substantial change
in circumstances occurred.” (Emphasis added.)
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A. Standard of Review
¶7 As our Court has explained,
In Shipman v. Shipman, our Supreme Court set
forth the requirements for modification of a custody order,
and this Court’s standard of review of an order modifying
custody. See Shipman v. Shipman, 357 N.C. 471, 473-75,
586 S.E.2d 250, 253-54 (2003).
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. The party
seeking to modify a custody order need not
allege that the change in circumstances had
an adverse effect on the child. While
allegations concerning adversity are
acceptable factors for the trial court to
consider and will support modification, a
showing of a change in circumstances that is,
or is likely to be, beneficial to the child may
also warrant a change in custody.
As in most child custody proceedings, a
trial court’s principal objective is to measure
whether a change in custody will serve to
promote the child’s best interests. Therefore,
if the trial court does indeed determine that a
substantial change in circumstances affects
the welfare of the child, it may only modify the
existing custody order if it further concludes
that a change in custody is in the child’s best
interests.
The trial court’s examination of
whether to modify an existing child custody
order is twofold. The trial court must
determine whether there was a change in
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circumstances and then must examine
whether such a change affected the minor
child. If the trial court concludes either that a
substantial change has not occurred or that a
substantial change did occur but that it did
not affect the minor child’s welfare, the court’s
examination ends, and no modification can be
ordered. If, however, the trial court
determines that there has been a substantial
change in circumstances and that the change
affected the welfare of the child, the court
must then examine whether a change in
custody is in the child’s best interests. If the
trial court concludes that modification is in
the child’s best interests, only then may the
court order a modification of the original
custody order.
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.
Substantial evidence is such relevant
evidence as a reasonable mind might accept
as adequate to support a conclusion.
Our trial courts are vested with broad
discretion in child custody matters. This
discretion is based upon the trial courts’
opportunity to see the parties; to hear the
witnesses; and to detect tenors, tones, and
flavors that are lost in the bare printed record
read months later by appellate judges.
Accordingly, should we conclude that there is
substantial evidence in the record to support
the trial court’s findings of fact, such findings
are conclusive on appeal, even if record
evidence might sustain findings to the
contrary.
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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. With regard to
the trial court’s conclusions of law, our case
law indicates that the trial court must
determine whether there has been a
substantial change in circumstances and
whether that change affected the minor child.
Upon concluding that such a change affects
the child’s welfare, the trial court must then
decide whether a modification of custody was
in the child’s best interests. If we determine
that the trial court has properly concluded
that the facts show that a substantial change
of circumstances has affected the welfare of
the minor child and that modification was in
the child’s best interests, we will defer to the
trial court’s judgment and not disturb its
decision to modify an existing custody
agreement.
Id. (citations, quotation marks, and brackets omitted).
Huml v. Huml, 264 N.C. App. 376, 387–89, 826 S.E.2d 532, 541–42 (2019).
B. Findings of Fact
¶8 Father contests eleven of the trial court’s findings of fact as not supported by
the “substantial competent evidence.” We address the contested findings of fact in
two separate sets.
1. Findings of Fact 14-20
¶9 Father challenges findings of fact 14-20. We first note that findings of fact 7-
13, and particularly finding of fact 11, address, in some part, the children’s
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“dysfunctional behavior[,]” and Father’s response to it, and thus are helpful for
context regarding the challenged findings of fact. Further, findings of fact 7-13 are
not contested, and thus those findings are binding on appeal. See Isom v. Duncan,
2021-NCCOA-453, ¶ 1 (“When a finding of fact is unchallenged, it is binding on
appeal.”) We also note the children were born in 2015, so they were four or five years
old during the time of the events addressed by these findings of fact.
7. Shortly after the entry of the handwritten
memorandum of a modified Custody Order on August 1,
2019, which substantially increased the number and
frequency of overnights that they spent with the [Father],
the subject minor children began acting out in an angry
and maladjusted manner, using profanity and saying
hateful things to their Mother. This type of dysfunctional
behavior on the part of the subject minor children occurred
regularly upon their returning to the [Mother]’s home after
spending the night with the [Father], and also occurred
regularly while the subject minor children were being
readied to return to the physical custody of the [Father],
and has continued consistently from August 2019 until
now.
8. The [Mother] immediately became alarmed when
she noticed this drastic, negative change in the subject
minor children’s behavior following the entry of the
handwritten memorandum of a modified Custody Order on
August 1, 2019, and notified the [Father] right away of her
serious concerns about the subject minor children’s well[-
]being.
9. The [Mother] videoed numerous episodes of this
regular dysfunctional behavior on the part of the subject
minor children, and presented these videos as evidence in
this case. The Court finds that these videoed episodes fairly
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and accurately illustrate the described, regularly occurring
dysfunctional behavior on the part of the subject minor
children.
10. This dysfunctional behavior on the part of the
subject minor children, as described in the testimony of the
[Mother], the [Mother]’s husband, [Jon Smith], and the
[Mother]’s Mother, [Jane Jones], and as illustrated by the
representative episodes shown in the videos, cause the
Court grave concern for the subject minor children’s
welfare and emotional well-being.
11. Specific examples of the children’s dysfunctional
behavior that cause the Court grave concern for the subject
minor children’s welfare and emotional well-being, and
which occurred either upon their returning to the
[Mother]’s home after spending the night with the [Father],
or while they were being readied to return to the physical
custody of the [Father], are as follows:
- On August 25, 2019, upon returning home after
spending the night with the [Father], the children
screamed at the [Mother], and [Adam] told the [Mother] to
“shut your damn mouth;”
- On September 11, 2020, upon returning home after
spending the night with the [Father], they screamed at the
[Mother] “I hate you” and “you hate me” at least 10 times
and [Adam] threw his shoes at his Mother;
- On September 29, 2020, upon returning home after
spending the night with the [Father], [Adam] asked “why
do you hate me so much?” Mother responded “I do not hate
you” and [Adam] said “yes you do;”
- On October 16, 2019, upon returning home after
spending the night with the [Father], both of the children
were screaming, hitting the couch, throwing stuff, and
[Bryan] screamed “I don’t have to listen because I don’t
want to;”
- On November 3, 2019, upon returning home after
spending the night with the [Father], [Adam] screamed “I
hate you” and he threw things, kicked toys, threw a
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blanket;
- On November 13, [201]9, upon returning home
after spendi[ng the] night with the [Father] [Adam]
screamed “I'm going [to b]e mean to you all day because I
want to - Everyone hates me” and . . . when [Mother] told
him that she loved him, he responded by calling her a liar.
Then [Adam] also screamed “My name is Davidson, I am
not a Tuttle. Why do you lie all the time?” And then [Adam]
said “I want you to die;”
- On November 18, 2019, upon returning home after
spending the night with the [Father], [Adam] wakes up in
the middle of the night in a night terror and begins
screaming to his Mother “I hate you” when she tries to
comfort him;
- On November 20, 2019, upon returning home after
spending the night with the [Father], [Bryan] screams at
his Mother “I’m going to beat you” and “You’re mean to me”
[Bryan] also uses profanity and calls his Mother an
“asshole” and a “son of a bitch;”
- On Sunday, November 24, 2019, upon returning
home after spending the night with the [Father], [Bryan]
begins screaming about his jacket, [Bryan] begins kicking
and attacks his Mother. [Bryan] screams at his Mother “I
hate you.” [Bryan]’s scream is a blood-curdling scream, and
screams at his Mother that night “I hate you” at least 5
times and then he calls his Mother “a baby.”
- On one day in February, 2020, upon returning
home after spending the night with the [Father], [Adam]
screams at his Mother “you hate me, I’m a bad guy” and “I
hate you,” and then [Adam] begins punching his Mother.
- On February 19, 2020, upon returning home after
spending the night with the [Father], [Adam] calls his
Mother a “son of a bitch” and an “asshole” and a “dumb ass
motherfucker;”
- On March 8, 2020, upon returning home after
spending the night with the [Father], [Bryan] and [Adam]
scream repeatedly at their Mother that they “hate her” and
[Adam] screams at his Mother that he “wants her to die;”
and
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- On June 14, 2020, upon returning home after
spending the night with the [Father], [Bryan] repeatedly
screamed at his Mother “I hate you” and “why do you hate
me[”] and ”you want me to die.”
12. There was also an incident at [Bryan]'s and [Adam]’s
school in 2020 before school closed down in March 2020,
when [Bryan] and [Adam] surrounded another boy and
scared the other boy half to death - they had the other boy
on the ground crying and they were threatening to harm
this other child.
13. The [Father] suggested in his testimony that the
subject minor children learned this profane language and
these abnormal behaviors at school, or that the [Mother] or
her family has coached the subject minor children to act
this way or to use the profanity to gain an advantage in
these court proceedings.
¶ 10 Turning now to the contested findings:
14. This dysfunctional behavior on the part of the
subject minor children was not improperly influenced or
manipulated by the [Mother], the [Mother]’s husband, [Jon
Smith], or the [Mother]’s Mother, [Jane Jones], and this
type of language and hateful conduct toward the [Mother]
by the subject minor children was not learned at school.
15. The subject minor chil[d]’s screaming that their last
name wa[s] [“Da]vidson” and not “Tuttle” would not be
something they [w]ould learn at school, nor would the
expressions of “hatred” toward and about the [Mother] be
something they would learn at school.
16. The [Father], upon being told in August 2019 about
this alarming conduct on the part of the subject minor
children, was unconcerned and refused to participate in
any family counseling to get to the bottom of it.
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17. The [Father] detests and resents the [Mother], and
expressed those feelings in no uncertain terms during his
testimony at this hearing.
18. Because of his hostile feelings toward the [Mother],
the [Father] refuses to co-parent with the [Mother] to the
detriment of the subject minor children.
19. Based in part on the circumstantial evidence that
the subject minor children’s use of profanity and saying
hateful things to their Mother did not begin until after the
entry of the modified Custody Order on August 1, 2019,
which modified Custody Order substantially increased the
frequency of overnights that the subject minor children
spent with the [Father], and based on the circumstantial
evidence that the subject minor children could not and did
not learn this type of profanity and this expression of
hostility toward their Mother from the [Mother] and her
family, from classmates at school, or from any other known
source, the Court finds that the [Father] has regularly used
profanity in the presence of the subject minor children and
repeatedly expressed his hostile feelings for the [Mother]
in the presence of the subject minor children.
20. The Court’s finding that the [Father] regularly used
profanity in the presence of the subject minor children and
repeatedly expressed his hostile feelings for the [Mother]
in the presence of the subject minor children, is also based,
in part, on the direct observations of witness Kandice
Brown.
¶ 11 Essentially, findings of fact 14-20, indicate that the children’s “dysfunctional
behavior” as described in findings of fact 7-20 was caused by their extended time with
their Father since entry of the August 2019 order. In making its determination, the
trial court explains it used the “direct observations of witness Kandice Brown[,]”
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Father’s own attitude toward Mother and failure to address the children’s troubling
behavior, and “circumstantial evidence” such as the fact that neither the school nor
Mother’s family would teach the children to disown Mother’s last name and claim
only his.
¶ 12 As to Ms. Brown, Father contends her testimony “is not credible, is not reliable,
is full of inconsistences, and is rife with . . . [her] motivation to see [Father] lose his
children.” But,
we note that in custody cases, the trial court sees the
parties in person and listens to all the witnesses. With this
perspective, the trial court is able to observe the demeanor
of the witnesses and determine their credibility, the weight
to be given their testimony and the reasonable inferences
to be drawn therefrom. This opportunity of observation
allows the trial court to detect tenors, tones and flavors
that are lost in the bare printed record read months later
by appellate judges.
Weideman v. Shelton, 247 N.C. App. 875, 879–80, 787 S.E.2d 412, 416 (2016)
(citations and quotation marks omitted). Thus, we will not reweigh the trial court’s
credibility determinations. Ms. Brown testified to Father’s profanity in front of the
children and disparaging comments about their Mother. Father testified he had not
heard the boys curse, and the children do not need “counseling” for their behavior.
Father speculated Mother had taught the children to call her names and otherwise
act out as a “whole conspiracy” for the trial court.
¶ 13 Turning back to the contested findings of fact, ultimately, beyond Father’s
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speculation, which the trial court plainly did not deem credible, there was no evidence
the children’s troubles stemmed from Mother, her family members, or the school.
Father’s testimony verifies he was not fond of Mother and was not concerned about
the children’s emerging problems, as he found the children’s behavior to be “normal,”
and he did not believe they needed mental health services. Further, Ms. Brown
testified Father used profanity and disparaged Mother in front of the children.
Accordingly, findings of fact 14-20 were supported by the substantial, competent
evidence.
2. Findings of Fact 21-23, 27, and 28
¶ 14 As to findings of fact 21-23, 27, and 28, Father contends “Findings of Fact 21,
22, 23, 27, and 28 are based upon, and presupposed upon, Findings 19 and 20.
Because Findings 19 and 20 are not based upon substantial, competent evidence,
Findings 21, 22, 23, 27, and 28 are not.” However, we have concluded findings of fact
19 and 20 are based upon substantial competent evidence. Because findings of fact
21, 22, 23, 27, and 28 are challenged only upon the grounds that they were based
upon findings of fact 19 and 20, findings which stand, these findings also remain
intact.
C. Substantial Change in Circumstances
¶ 15 Having addressed the challenged findings of fact, we turn back to Father’s
main argument that “the trial court erred in modifying the August 1, 2019 order
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without first sufficiently finding a substantial change of circumstances affecting the
welfare of the children had occurred since August 1, 2019.” This argument is without
merit.
1. Findings of Fact Supporting a Determination of Substantial Change
of Circumstances
¶ 16 We have already noted the findings of fact regarding the changes in the
children’s behavior after the previous custody order which had substantially
increased Father’s visitation time. Further, the children were newly emotionally
distressed, and Father was unconcerned with these changes. Father is correct that
any changes in circumstances “must significantly affect the welfare of the children”
before the court may modify the custodial schedule:
When a trial court modifies a custody order, the
requisite change in circumstances cannot be
“inconsequential” or “minor,” but rather must significantly
affect the welfare of the children. Pulliam, 348 N.C. at 630,
501 S.E.2d at 905 (Orr, J., concurring). “By this, we mean
that the changes are of the type which normally or usually
affect a child’s well-being—not a change that either does
not affect the child or only tangentially affects the child’s
welfare.” Id.
Stephens v. Stephens, 213 N.C. App. 495, 499, 715 S.E.2d 168, 171 (2011).
¶ 17 Father contends the changes in the children’s behavior as found by the trial
court are “inconsequential” and “minor[.]” Id. Further, Father contends the prior
court-ordered modification of custody cannot serve as the substantial change of
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circumstances. But the prior modification of the custody order increasing Father’s
visitation was not itself the substantial change of circumstances considered by the
trial court. If the children did not have any significant behavioral or emotional
changes after the new visitation schedule started, there would be no change of
circumstances affecting the children. The trial court found the children’s drastic
change in behavior and heightened distress to be the substantial change and that this
significantly affected the welfare of the children. The fact that the substantial
changes in the children was apparently caused by more time with their Father does
not mean the increase in custodial time in the prior order was the substantial change
in circumstances. The trial court’s findings regarding the children’s drastic change
from well-adjusted to “dysfunctional behavior,” once they began spending more time
with Father, were very detailed. The troubling behaviors -- in children aged four and
five years old -- include screaming and cursing, throwing objects, surrounding
another boy and scaring him to the point he was on the ground crying while Adam
and Bryan threatened him, and statements from the children about hating Mother,
Mother hating one of the children, not having to listen to Mother, purposefully being
mean to Mother, disowning Mother’s last name, calling Mother profane names, and
stating a desire for Mother to die. These major and consequential changes in the
children certainly demonstrate a change of circumstances. See id; see generally
Huml, 264 N.C. App. at 387–88, 826 S.E.2d at 541. However, the substantial change
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in circumstances does not end with the children’s behavior.
¶ 18 In addition, a parent’s intensifying “anger” and “hostility” toward another
parent can create a substantial change of circumstances:
A substantial change in circumstances that affects
the welfare of the children can occur when a parent
demonstrates anger and hostility in front of the children
and attempts to frustrate the relationship between the
children and the other parent. Additionally, although
interference alone is not enough to merit a change in the
custody order, where interference with visitation becomes
so pervasive as to harm the child’s close relationship with
the noncustodial parent, it may warrant a change in
custody.
Stephens, 213 N.C. App. at 499, 715 S.E.2d at 172 (citations, quotation marks, and
brackets omitted). Here, the trial court made several findings regarding Father’s
expression of “his hostile feelings for” Mother in front of the children, noting it had
“influenced the subject minor children and to some degree has contributed to the
subject minor children’s dysfunctional behavior[.]” Accordingly, the trial court did
not err in determining there was a substantial change in circumstances since entry
of the prior custody order.
2. Linking the Substantial Change of Circumstances to the Children’s
Welfare
¶ 19 Father also contends “[t]he trial court failed to make any finding directly
linking any change in circumstances to the welfare of the children” and similarly,
“[t]he record and evidence are devoid of substantial evidence to demonstrate any
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nexus between any substantial change and the welfare of the children.”
(Capitalization altered.) In fact, the trial court’s order, much of which is quoted
above, is a plain declaration of the ways the children’s welfare was negatively affected
after Father’s visitation time increased.
¶ 20 To the extent Father is contending the children’s behavior does not impact
their welfare, we find this implausible. A child’s behavior affects his welfare in many
ways because his behavior affects his relationships with others and his opportunities
and ability to learn and to make friends. A child who demonstrates the behaviors as
described by the trial court’s findings at school will likely be unable to make friends
and to learn to his full potential, and if the behaviors continue as the child gets older,
he could even be suspended from school, at the very least. For example, the incident
at school described in finding of fact 12 indicates the children’s behavior was causing
significant problems at school, not just at home with Mother. Further, children who
are ages four and five cannot express their feelings and thoughts as an older child
can; with young children, we often must discern the welfare of the child in large part
by looking at the child’s behavior. Here, the substantial change of the children’s
behavior upon the modification of custody -- and the absence of any evidence of any
other explanation for the change in behavior -- supports the trial court’s finding of a
link between the increased time with Father and the negative changes in the
children.
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¶ 21 Lastly, we note, Father does not directly contest the trial court’s determination
of best interests of the children to return to the prior custodial schedule but instead
makes the same argument in slightly different words: “the trial court’s conclusion
that there was a substantial of circumstances adversely affecting the welfare of
children warranting custody modification was not supported by the orders factual
findings.” (Capitalization altered.) The trial court did not abuse its discretion in
determining it was in the best interest of the children to spend less time with Father.
See generally Metz v. Metz, 138 N.C. App. 538, 541, 530 S.E.2d 79, 81 (2000) (“[W]e
hold that the trial court committed no abuse of discretion by concluding that a
modification of custody was in Nicholas’ best interests.”).
III. Conclusion
¶ 22 We conclude the trial court properly modified custody based on a substantial
change of circumstances impacting the welfare of the minor children.
AFFIRMED.
Judges ARROWOOD and WOOD concur.