Green v. Kelischek

NO. COA13-981
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
ELIZABETH LAIRD PELZER GREEN,
f/k/a KELISCHEK,
Plaintiff.
v. Buncombe County
No. 10 CVD 1666
NICHOLAS G. KELISCHEK,
Defendant.
Appeal by plaintiff from custody order entered 13 February
2013 by Judge Andrea F. Dray in Buncombe County District Court.
Heard in the Court of Appeals 17 February 2014.
Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson and
K. Edward Greene, for plaintiff-appellant.
Steven Kropelnicki, PC, by Steven Kropelnicki, for
defendant-appellee.
HUNTER, JR., Robert N., Judge.
Elizabeth Laird Pelzer Green (“Plaintiff”) appeals from a
custody modification order granting school year custody of her
minor child, C.K., to his father, Nicholas G. Kelischek
(“Defendant”), in the event Plaintiff moves outside of North
Carolina or 125 miles away from Cherokee County. Plaintiff
contends that the trial court erred in concluding that a
substantial change in circumstances had occurred warranting
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modification of the parties’ existing custody plan. In the
alternative, Plaintiff contends that the trial court erred in
concluding that it was in the best interest of C.K. to remain in
North Carolina. For the following reasons, we affirm the trial
court’s order.
I. Factual & Procedural History
Plaintiff and Defendant married on 27 April 2006, separated
in May 2008, and subsequently divorced on 26 April 2010. During
the marriage, Plaintiff and Defendant had one child, C.K., who
was born in December 2006.
On 25 March 2010, Plaintiff and Defendant entered into a
separation agreement, which was incorporated into the decree of
divorce to be enforceable as the judgment and order of the trial
court. Pursuant to said agreement, each parent shared joint
legal custody of C.K. Plaintiff had primary physical custody of
C.K. during the week and Defendant had physical custody each
weekend. By all accounts, Plaintiff and Defendant have, with
reasonable adjustments, followed this custody plan since their
divorce. C.K., who is now seven years old, has lived with this
schedule since the age of two.
The custody plan agreed to by Plaintiff and Defendant is
contingent on the parties’ residence. Specifically, the
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separation agreement provides that “[Defendant] and [Plaintiff]
agree that . . . he/she will not move more than 125 miles
outside of Cherokee County, North Carolina, unless otherwise
agreed upon by the parties in writing or upon Order of the
Court.” Accordingly, at all times since their divorce, C.K. has
resided with Plaintiff in Asheville on weekdays and with
Defendant in Brasstown on weekends.
On 5 November 2012, Plaintiff filed a motion to modify
custody, contending that there had been a substantial change in
circumstances impacting C.K. since entry of the original custody
order. Defendant moved to dismiss Plaintiff’s motion, claiming
that the motion was facially deficient, and, in the alternative,
moved the trial court to modify custody giving him primary
physical custody of C.K. The matter came on for a hearing
before the trial court on 14 January 2013. Evidence at the
hearing tended to show the following.
Since the parties’ divorce, Plaintiff has maintained a
residence in Asheville, albeit at three different locations.
Plaintiff has not worked since C.K.’s birth and is currently
unable to support herself financially. Nevertheless, Plaintiff
has been attentive to C.K.’s needs, encouraging C.K. to
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participate in extracurricular activities and attending to
C.K.’s medical needs.
In June 2011, Plaintiff rekindled a romantic relationship
with Mr. Dominic Green (“Mr. Green”), a man she dated in high
school. Mr. Green currently lives in Portland, Oregon. On 25
May 2012, Plaintiff married Mr. Green. Plaintiff has not
relocated to Oregon but desires to do so.1
Since resuming a relationship with Mr. Green, Plaintiff has
traveled to Oregon several times, including trips with C.K. Mr.
Green has two children from a previous marriage of which he does
not have primary custody. Mr. Green lives in a small condo, but
has indicated he will buy a house and provide for Plaintiff and
C.K. if they move to Oregon. Neither Mr. Green nor Plaintiff
have extended family in Oregon. C.K.’s maternal grandmother and
great-grandmother are in North Carolina.
Since the parties’ divorce, Defendant has lived near C.K.’s
paternal grandparents in Brasstown and has worked in the
family’s instrument manufacturing and distribution business.
Defendant’s housing situation is stable and C.K. has his own
room when staying with Defendant. Defendant has consistently
1
Plaintiff’s motion to modify custody asked the trial court to
“award the Plaintiff the primary care and control of the child
and [to enter an order concluding] that Plaintiff be allowed to
relocate with the minor child to the State of Oregon.”
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exercised his weekend custody of C.K. and has also been
attentive to C.K.’s developmental needs. Defendant’s extended
family is actively involved in C.K.’s life. Defendant is
currently engaged to Ms. Misty Taylor (“Ms. Taylor”), whom he
has known for three years. Ms. Taylor has met C.K. and has a
warm relationship with him.
C.K. is a well-adjusted, healthy, and happy child. C.K.
participates actively in extracurricular activities in both
Asheville and Brasstown. C.K. is aware that Plaintiff wishes to
relocate them to Oregon and is aware that the proposed
relocation has placed tension between Plaintiff and Defendant.
C.K. exhibited separation anxiety on one occasion when leaving
Defendant to return with Plaintiff to Asheville.
C.K. is now old enough to attend school. Anticipating that
C.K.’s education would necessitate changes to the custody plan,
the parties’ separation agreement included the following:
When [C.K.] begins school, [Defendant] and
[Plaintiff] agree to negotiate any necessary
revisions to the visitation schedule. The
parenting schedule will be reviewed each and
every year in the month of June and tailored
to meet the needs of both parents and
[C.K.’s] development.
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Notwithstanding this provision, there has been conflict between
the parties as to whether C.K. should attend public school or be
home-schooled by Plaintiff.
Upon hearing the foregoing and other record evidence, the
trial court concluded that there had been a substantial change
in circumstances since the entry of the divorce decree
warranting modification of the original custody order.
Accordingly, by order dated 13 February 2013, the trial court
denied Defendant’s motion to dismiss and concluded:
That Plaintiff shall be entitled to the
school year custody of the minor child and
the minor child shall attend school within
the Plaintiff’s school districts provided
the Plaintiff/mother continues to reside
within 125 miles of Cherokee County, North
Carolina. That should the Plaintiff/mother
reside outside of North Carolina or outside
of 125 miles of Cherokee County, North
Carolina, the Defendant/father shall be
entitled to the school year custody of the
minor child and the minor child shall attend
school within the Defendant’s school
districts.
Plaintiff filed timely notice of appeal.2
2
The record on appeal contains two substantively identical
custody orders entered by the trial court on 13 February 2013—
one entitled “Custody Order” and the other “Defendant’s Proposed
Order (Custody Order).” Plaintiff’s notice of appeal is from
both of these orders. Because there is no substantive
difference between them, our disposition applies to both.
Nevertheless, for ease of interpretation, all references to the
trial court’s custody modification order are in the singular
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II. Jurisdiction & Standard of Review
Plaintiff’s appeal lies of right to this Court pursuant to
N.C. Gen. Stat. § 7A-27(b) (2013).
“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). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (citation and quotation marks
omitted). “A trial court’s unchallenged findings of fact are
presumed to be supported by competent evidence and [are] binding
on appeal.” Respess v. Respess, ___ N.C. App. ___, ___, 754
S.E.2d 691, 695 (2014) (citation and quotation marks omitted).
Here, Plaintiff has not challenged the trial court’s findings of
fact, so we consider them binding before this Court.3
However, “[i]n 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
form.
3
Plaintiff’s brief, in passing, challenges portions of Finding
of Fact 17, 20, 21, and 22. However, we consider these excerpts
unessential to our holding or disposition in this case.
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conclusions of law.” Shipman, 357 N.C at 475, 586 S.E.2d at 254.
“If the trial court’s uncontested findings of fact support its
conclusions of law, we must affirm the trial court’s order.”
Respess, ___ N.C. App. at ___, 754 S.E.2d at 695 (citation and
quotation marks omitted); see also Everette v. Collins, 176 N.C.
App. 168, 171, 625 S.E.2d 796, 798 (2006) (“Absent an abuse of
discretion, the trial court’s decision in matters of child custody
should not be upset on appeal.”).
III. Analysis
In granting a motion to modify custody, the trial court’s
task is twofold. First, the trial court must determine that a
substantial change in circumstances affecting the minor child
has taken place since entry of the existing custody order.
Shipman, 357 N.C at 474, 586 S.E.2d at 253. Second, the trial
court must determine that modification of the existing custody
order is in the child’s best interests. Id. “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.” Id.On appeal, Plaintiff challenges the trial court’s
conclusion that a substantial change in circumstances had
occurred warranting modification of the original custody order.
Alternatively, Plaintiff contends the trial court erred in
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determining that it was in C.K.’s best interests to stay in
North Carolina. We address each of these arguments in turn.
A. Substantial Change in Circumstances
With respect to the trial court’s determination that a
substantial change in circumstances had taken place, Plaintiff’s
brief makes three principal arguments: (1) that Plaintiff’s
proposed relocation does not constitute a substantial change in
circumstances; (2) that the trial court erred by failing to make
specific findings demonstrating a causal connection between the
changed circumstances identified in the trial court’s
modification order and the welfare of C.K.; and (3) that the
trial court acted under a misapprehension of law because it
considered only the adverse consequences of Plaintiff’s
relocation for purposes of determining whether a substantial
change in circumstances had taken place.
Notwithstanding Plaintiff’s briefing of these issues, we
hold that Plaintiff has waived these contentions by taking the
opposite position in the trial court below.
Unlike the typical situation where the appellant has
obtained an adverse ruling on the substantial change question in
the trial court, here, Plaintiff was the movant below and
specifically asked the trial court to conclude that a
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substantial change in circumstances had taken place based on her
remarriage and proposed relocation to Oregon. However, because
the trial court’s subsequent best interests determination did
not go as Plaintiff anticipated, Plaintiff now seeks to assert
an inconsistent legal position on appeal in order to avoid the
modified custody plan set forth in the trial court’s order.
This she cannot do.
“It is well established that a party to a suit may not
change [her] position with respect to a material matter during
the course of litigation. Especially is this so where the
change of front is sought to be made between the trial and the
appellate courts.” Leggett v. Se. People’s Coll., 234 N.C. 595,
597, 68 S.E.2d 263, 266 (1951) (internal citations and quotation
marks omitted).
Our Supreme Court has long held that where a
theory argued on appeal was not raised
before the trial court, the law does not
permit parties to swap horses between courts
in order to get a better mount in the
appellate courts. . . . According to Rule of
Appellate Procedure 10(b)(1), in order to
preserve a question for appellate review,
the party must state the specific grounds
for the ruling the party desires the court
to make. The [party] may not change [her]
position from that taken at trial to obtain
a steadier mount on appeal.
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Balawejder v. Balawejder, 216 N.C. App. 301, 307, 721 S.E.2d
679, 683 (2011) (internal quotation marks and citation omitted)
(first alteration in original). Accordingly, because Plaintiff
represented that her remarriage and proposed relocation did
constitute a substantial change in circumstances before the
trial court, she cannot assert the contrary for the first time
on appeal.4 Nor can she complain of a ruling she applied for and
received from the trial court. See Garlock v. Wake Cnty. Bd. of
Educ., 211 N.C. App. 200, 212, 712 S.E.2d 158, 167–68 (2011)
(stating that as to invited errors, “[o]ur Courts have long held
to the principle that a party may not appeal from a judgment
entered on its own motion or provisions in a judgment inserted
at its own request. . . . An appellant is not in a position to
object to provisions of a judgment which are in conformity with
their prayer, and they are bound thereby” (internal quotation
marks and citations omitted) (first alteration in original)).
4
We note that our holding with respect to this point is
distinguishable from our holding in Hibshman v. Hibshman, 212
N.C. App. 113, 710 S.E.2d 438 (2011), cited by Plaintiff. In
Hibshman, we held that a party cannot waive the requirement that
the trial court find a substantial change in circumstances
because that requirement is not a right held by the litigant,
rather, it is a limitation on the authority of the courts to
modify custody orders in order to protect the children involved.
Id. at 125, 710 S.E.2d at 445–46. Here, the trial court did not
disregard its duty to determine whether a substantial change in
circumstances had occurred, so Hibshman is inapposite.
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However, even if Plaintiff’s arguments were properly
preserved for our review, we find no error in the trial court’s
order. By arguments (1) and (2) above, Plaintiff contends that
her remarriage and proposed relocation with C.K. is not, in and
of itself, a substantial change in circumstances and that the
trial court failed to connect the specific changes upon which it
relied with evidence concerning how such changes affect C.K.’s
welfare.
We have previously held that
remarriage, in and of itself, is not a
sufficient change of circumstance affecting
the welfare of the child to justify
modification of the child custody order
without a finding of fact indicating the
effect of the remarriage on the child.
Similarly, 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) (internal citations omitted). Accordingly, in situations
where the substantial change involves a discrete set of
circumstances, e.g., a parent’s relocation, remarriage, etc.,
“the effects of the change on the welfare of the child are not
self-evident and therefore necessitate a showing of evidence
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directly linking the change to the welfare of the child.”
Shipman, 357 N.C at 478, 586 S.E.2d at 256.
Here, the trial court did make findings regarding Plaintiff’s
remarriage and proposed relocation, as well as how those actions
affect C.K.:
19. . . . Plaintiff/mother married [Mr.]
Green on May 25, 2012. She has not
relocated to Oregon but desires to do so.
She testified that she has no intention of
moving to Oregon without [C.K.].
. . . .
35. That the Court finds as fact that
[Plaintiff and Defendant] have behaved well
and the exchanges on weekends have gone very
well until the issue of relocation arose in
September 2011. At that time,
Defendant/father became very concerned that
Plaintiff/mother would try to take [C.K.]
further away. Defendant/father was already
concerned about not being able to see [C.K.]
except on weekends.
36. That the Court finds as fact that when
Plaintiff/mother married, the parties
determined that mediation was necessary, and
Defendant/father initiated scheduling a
meeting. . . . Defendant/father believed
that it would not be productive to try to
resolve the issue without a mediator
present.
37. That the Court finds as fact based on
the evidence before it that the
Plaintiff/mother complained that
Defendant/father failed to communicate with
her. The Court finds that the
Defendant/father often did not respond to
Plaintiff/mother because he did not find it
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productive to try to negotiate with her
without a mediator. He allowed her to make
plans for [C.K.] during her time and did not
object to activities she had planned for
[C.K.]. He trusted her judgment until the
relocation issue arose. He then felt
disrespected as a result of her decision to
try to take [C.K.] so far away from him.
38. The Court finds as fact that as a result
of the relocation issue, conflict began to
build and [C.K.] became aware of the change
in dynamics between Plaintiff/mother and
Defendant/father. The minor child is aware
that the Plaintiff/mother wanted to move to
Oregon. In the past the parents had always
stopped at a candy store in Dillsboro, NC,
the half way point between them. It was
typical for them to spend a half hour
talking with [C.K.] about things he was
doing and exchanging information about
[C.K.’s] life with the other parent. The
exchanges became shorter and on one
occasion, for the first time, [C.K.]
exhibited separation anxiety not wanting to
leave his Defendant/father at the end of his
time with Defendant/father.
39. That the Court finds as fact based on
the evidence presented that the
Plaintiff/mother’s decisions to marry and
move to Portland, Oregon were made not for
the benefit of [C.K.], but for the benefit
of the Plaintiff/mother. That the Court
finds no credible evidence before it that
Oregon offers a superior environment, either
culturally, educationally or in any other
way, to the minor child’s home State of
North Carolina which would make a move to
Oregon advantages [sic] for the minor child.
40. The Court finds as fact based on the
evidence presented that the stability of the
Plaintiff/mother’s plans are a concern. The
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Plaintiff/mother has stated that she has no
intention of leaving [C.K.] in Asheville,
and would not move her residence to Oregon
without [C.K.]. However, she testified that
she intends to continue her relationship
with her husband and he will continue to
work in Oregon. Plaintiff is in a new
marriage and they have not lived together
for more than three consecutive weeks since
the marriage in April 2012. Plaintiff has
not been employed for many years and has not
been successful in maintaining stable long
term employment or relationships.
Defendant/father has reasonable grounds for
resisting the relocation.
41. The Court finds as fact based on the
evidence presented that it is not reasonable
for [C.K.] to have to travel four times per
year in order to stay with his
Defendant/father for a one month period of
time. This schedule would cause the minor
child to have his residence intermittently
upset, to forego a normal school and social
environment and make it unnecessarily
difficult for him to have friends and
consistent activities. The court finds that
this arrangement would not foster stability
for [C.K.] or be in his best interest.
These findings directly link Plaintiff’s remarriage and
relocation to changes in C.K.’s life, namely, the growing
tension between Plaintiff and Defendant, the resulting effect of
that tension on C.K., the interference with C.K.’s educational
and social development, and the likelihood that C.K. would be
subjected to a less stable environment in Oregon.
The trial court’s order also made findings of fact
regarding Defendant’s engagement and the effect of that
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relationship on C.K., as well as changes in C.K.’s educational
needs as he reaches school age:
30. Evidence was before the court and the
Court finds as credible, that the
Defendant/father became recently engaged to
[Ms.] Taylor, a woman he has known for about
three years. . . . Ms. Taylor testified and
the Court finds that she and [C.K.] have a
warm relationship and that she is ready to
be a stepparent to him.
. . . .
42. The Court finds, and common sense
dictates, that the needs of a very young
child may change significantly as that child
moves from infancy to school age. Even a
short period of time in the life of a young
child, can require a readjustment to
appropriately meet the child’s developmental
needs and overall best interests. The
parties to this action clearly anticipated
in their Agreement/Court Order that when
[C.K.] started school the visitation would
be renegotiated. That the terms of the
agreement now Order of April 26, 2012
regarding child custody issues were specific
in many regards and included terms which are
relevant to the matters before the Court:
a. The stand alone paragraph entitled
Residence states: “The Husband and Wife
agree to that he/she will not move more
than 125 miles outside of Cherokee
County, North Carolina, unless
otherwise agreed upon by the parties in
writing or upon Order of the Court.”
b. Paragraph 17. reads in part: “When
[C.K.] begins school the [Defendant]
and [Plaintiff] agree to negotiate any
necessary revision to the visitation
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schedule. The parenting schedule will
be reviewed each and every year in the
month of June and tailored to meet the
needs of both parents and [C.K.’s]
development.”
These changes were also considered by the trial court in its
substantial change of circumstances analysis.
Furthermore, the order explicitly acknowledged our
precedent regarding remarriage and relocation, stating:
43. The Court recognizes that the requested
relocation of the Plaintiff is not, in and
of itself a substantial change in
circumstances which warrants a modification
of the custody of the minor child, absent a
finding that it is likely that the
relocation to Portland would have an adverse
effect on [C.K.]. The Court finds as fact
based on the evidence presented that because
of the close relationship [C.K.] has with
his Defendant/father and the extended family
in North Carolina that the loss of ongoing,
stable, consistent, weekly contact between
the Defendant and the minor child would
indeed have an adverse affect [sic] on the
minor child. It is not in the best interest
of the minor child’s development that he be
relocated to Oregon.
Based on these and other finding of facts, the trial court
concluded:
4. . . . that there has been a substantial
change in circumstances impacting the
welfare of the minor child since the entry
of the last Order of April, 26, 2010, which
warrants modification of the current custody
schedule of the child and that such a
modification is in the best interest of the
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minor child.
Accordingly, the trial court did not rely on Plaintiff’s
remarriage and relocation alone in invoking its authority to
modify the existing custody order. Nor did the trial court
abandon its responsibility to link individual changes in
circumstance with C.K.’s welfare. Plaintiff’s arguments on
these points are therefore without merit.
By argument (3) above, Plaintiff contends that the trial
court acted under a misapprehension of law because it only
considered the adverse consequences of Plaintiff’s remarriage
and relocation and not any salutary affects appertaining
thereto. Again, Plaintiff’s argument is without merit.
[C]ourts must consider and weigh all
evidence of changed circumstances which
affect or will affect the best interests of
the child, both changed circumstances which
will have salutary effects upon the child
and those which will have adverse effects
upon the child. In appropriate cases,
either may support a modification of custody
on the ground of a change in circumstances.
Pulliam v. Smith, 348 N.C. 616, 619, 501 S.E.2d 898, 899 (1998).
Here, although the trial court stated in Finding on Fact 43 that
it could not modify custody based on Plaintiff’s relocation
“absent a finding that it is likely that the relocation to
Portland would have an adverse effect on [C.K.],” other language
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in the trial court’s order indicates that it did not abandon its
responsibility to consider salutary effects of Plaintiff’s
relocation on C.K.’s welfare. Specifically, Finding of Fact 39
states, in part:
39. . . . [T]he Court finds no credible
evidence before it that Oregon offers a
superior environment, either culturally,
educationally or in any other way, to the
minor child’s home State of North Carolina
which would make a move to Oregon advantages
[sic] for the minor child.
Thus, the trial court did consider the salutary effects of
Plaintiff’s relocation for purposes of determining whether a
substantial change in circumstances had taken place. We will
not presume error based on an errant sentence found in Finding
of Fact 43.
In summary, we hold that Plaintiff has waived her
contention that the trial court erred in concluding that a
substantial change in circumstances had taken place since entry
of the original custody order. Even so, assuming arguendo that
this question is properly before us, we would affirm the trial
court’s conclusion regarding changed circumstances.
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B. Best Interests of the Child
Plaintiff’s second argument on appeal is that the trial
court erred in determining that it was in C.K.’s best interests
to remain in North Carolina.
“It is a long-standing rule that the trial court is vested
with broad discretion in cases involving child custody.”
Pulliam, 348 N.C. at 624, 501 S.E.2d at 902.
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. Under an abuse of
discretion standard, we must determine
whether a decision is manifestly unsupported
by reason, or so arbitrary that it could not
have been the result of a reasoned decision.
Stephens v. Stephens, 213 N.C. App. 495, 503, 715 S.E.2d 168,
174 (2011) (internal quotation marks and citations omitted).
In evaluating the best interests of a child in a proposed
relocation, “[t]he welfare of the child is the ‘polar star’
which guides the court’s discretion.” Evans, 138 N.C. App. at
141, 530 S.E.2d at 580. Factors that may be considered by the
trial court include, for example:
[T]he advantages of the relocation in terms
of its capacity to improve the life of the
child; the motives of the custodial parent
in seeking the move; the likelihood that the
custodial parent will comply with visitation
orders when he or she is no longer subject
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to the jurisdiction of the courts of North
Carolina; the integrity of the noncustodial
parent in resisting the relocation; and the
likelihood that a realistic visitation
schedule can be arranged which will preserve
and foster the parental relationship with
the noncustodial parent.
Id. at 142, 530 S.E.2d at 580 (quotation marks and citation
omitted).
Here, the trial court made the following findings of fact
pertinent to C.K.’s best interests:
26. The Court finds as fact based on the
evidence presented that neither the
Plaintiff/mother nor Mr. Green have any
extended family in Portland Oregon. The
Court finds that the minor child has
extensive maternal family connections in
North Carolina. [C.K.’s] maternal
grandmother visits about once or twice each
month and [C.K.] sees his maternal great-
grand-mother about every two months. He
visits with his maternal grandfather about
twice each year.
27. The Court finds as fact based on the
evidence presented that the Defendant/father
has consistently exercised his primary
physical custody of [C.K.] on weekends. The
Court finds as fact based on the evidence,
that the minor child and the
Defendant/father have a loving and close
relationship. All the evidence before the
Court was that this warm relationship
includes the larger immediate paternal
family that lives in the area of the
Defendant/father’s home and residence.
28. The Court finds as fact based on the
evidence presented that the community in
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which the Defendant/father lives and works
is a unique and enriching artistic
environment. That the Defendant/father and
his brothers grew up actively participating
in music and in classes at the school.
Defendant/father has many friends in the
arts community and he actively spends time
with his friends. He is involved in a dance
team there. [C.K.] always participates in
these activities and has now made friends
there. They have no television, but do have
Internet access. They have dinner with
[C.K.’s] grandparents on Saturday evenings,
and [C.K.] spends time with his paternal
grandparents every weekend. The
Defendant/father’s home is a stable place
that would benefit [C.K.]. Defendant/father
has provided many enrichment activities for
[C.K.]. [C.K.] has a rich life in the
Kelischek community that would likely be
diminished greatly if he were to move to
Oregon.
29. The Court finds as fact based on the
evidence presented that the Defendant/father
has been employed in his family’s business
since the divorce. They make and distribute
musical instruments all over the world.
Several family members are employed there.
Defendant/father is in charge of the
Internet sales, but also works in any other
capacity as may be necessary from time to
time. His work schedule is Monday through
Friday, although, he has for the last
several years taken off early to pick up
[C.K.] every Friday. Defendant/father now
lives in a home close to his parents. The
house has a separate suite in the basement
where his nephew and wife now reside.
[C.K.] now has his own separate bedroom that
he sleeps in when at the Defendant’s home.
. . . .
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31. That the Court finds as fact based on
the evidence before it that the
Defendant/father has shown a real and
demonstrable dedication to his extended
family. . . . Though [C.K.’s] first cousins
are much older than him, they interact
frequently with him [and] have a warm
relationship with him. These first cousins
grew up in Asheville, and have been very
involved in music and arts in the Brasstown
community, and it appears that they have
benefitted from the involvement in the
Brasstown community and the culture of the
extended family. [C.K.’s] aunt, a
physician, lives in Asheville. The Court
finds as fact based on the evidence
presented that [C.K.] has benefitted from
the time he spends with this extended
family, and he has good relationships with
them.
. . . .
39. That the Court finds as fact based on
the evidence presented that the
Plaintiff/mother’s decisions to marry and
move to Portland, Oregon were made not for
the benefit of [C.K.], but for the benefit
of the Plaintiff/mother. That the Court
finds no credible evidence before it that
Oregon offers a superior environment, either
culturally, educationally or in any other
way, to the minor child’s home State of
North Carolina which would make a move to
Oregon advantages [sic] for the minor child.
40. The Court finds as fact based on the
evidence presented that the stability of the
Plaintiff/mother’s plans are a concern. The
Plaintiff/mother has stated that she has no
intention of leaving [C.K.] in Asheville,
and would not move her residence to Oregon
without [C.K.]. However, she testified that
she intends to continue her relationship
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with her husband and he will continue to
work in Oregon. Plaintiff is in a new
marriage and they have not lived together
for more than three consecutive weeks since
the marriage in April 2012. Plaintiff has
not been employed for many years and has not
been successful in maintaining stable long
term employment or relationships.
Defendant/father has reasonable grounds for
resisting the relocation.
41. The Court finds as fact based on the
evidence presented that it is not reasonable
for [C.K.] to have to travel four times per
year in order to stay with his
Defendant/father for a one month period of
time. This schedule would cause the minor
child to have his residence intermittently
upset, to forego a normal school and social
environment and make it unnecessarily
difficult for him to have friends and
consistent activities. The court finds that
this arrangement would not foster stability
for [C.K.] or be in his best interest.
. . . .
43. . . . The Court finds as fact based on
the evidence presented that because of the
close relationship [C.K.] has with his
Defendant/father and the extended family in
North Carolina that the loss of ongoing,
stable, consistent, weekly contact between
the Defendant and the minor child would
indeed have an adverse affect [sic] on the
minor child. It is not in the best interest
of the minor child’s development that he be
relocated to Oregon.
Plaintiff does not challenge these findings of fact with
argument on appeal. Rather, Plaintiff points to other record
evidence that would tend to support relocation and emphasizes
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the burden that remaining in North Carolina will place on her
new marriage. While Plaintiff’s interpretation of the record
evidence is understandably different than the trial court, she
has failed to demonstrate how the trial court abused its
discretion in reaching its result, particularly in light of the
above unchallenged findings of fact.
Importantly, by holding that the trial court did not abuse
its discretion, we do not diminish the other findings of fact
demonstrating Plaintiff’s love and commitment to her son. Nor
do we deny the existence of record evidence that suggests there
would be benefits in allowing Plaintiff to move to Oregon with
C.K. Rather, our holding recognizes the broad discretion given
to the trial court in child custody matters and emphasizes our
standard of review on appeal. As our Supreme Court has noted:
The trial court has the opportunity to see
the parties in person and to hear the
witnesses, and its decision ought not be
upset on appeal absent a clear showing of
abuse of discretion. The trial court can
detect tenors, tones, and flavors that are
lost in the bare printed record read months
later by appellate judges.
Pulliam, 348 N.C. at 625, 501 S.E.2d at 902–03 (alterations,
quotation marks, and internal citations omitted). Accordingly,
because Plaintiff has failed to demonstrate that the trial
court’s best interests determination was “manifestly unsupported
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by reason” or “so arbitrary that it could not have been the
result of a reasoned decision,” we affirm the trial court’s
decision to modify the existing custody order such that
Defendant is entitled to school year custody of C.K. if
Plaintiff moves to Oregon.
IV. Conclusion
For the foregoing reasons, we affirm the order of the trial
court modifying custody of Plaintiff and Defendant’s minor
child.
AFFIRMED.
Chief Judge MARTIN and Judge ELMORE concur.