Weaver v Thomas
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure. NO. COA11-514 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 JENNIFER LYNN WEAVER (now PARKER), Plaintiff, v. Cleveland County No. 04-CVD-1341 ROBERT CLINTON THOMAS, JR., Defendant. Appeal by Plaintiff from order entered 1 December 2010 by Judge Anna F. Foster in Cleveland County District Court. Heard in the Court of Appeals 26 October 2011. Jeannette R. Reeves, for Plaintiff-Appellant. Horn, Pack & Brown, P.A., by Becky J. Brown and Carol J. Walsburger, for Defendant-Appellee. BEASLEY, Judge. Jennifer Lynn Weaver (Plaintiff) and Robert Clinton Thomas, Jr. (Defendant) were married on 11 July 1998. During their marriage, two children were born to the parties: Robert Clinton Thomas, III (Clint) born 5 December 1998 and Chloie Catherine Thomas (Chloie) born 11 December 2000. On 4 August 2004 Plaintiff filed a complaint, seeking a divorce, primary custody -2of the parties minor children, and child support. On 13 August 2004, the parties entered into a memorandum of judgment which provided for shared legal custody of the Plaintiff retaining primary physical custody. was entered 10 September 2004. children, with The consent order On 9 February 2005, Defendant filed an answer and counterclaim, requesting primary custody of the children. 2005. A permanent custody hearing was held on 11 July Defendant failed to participate in this hearing. On 15 July 2005, the Honorable Larry J. Wilson awarded joint custody with Plaintiff retaining primary physical custody. On 8 June 2010, Defendant filed a motion in the cause asserting that due to a substantial and material change of circumstances, it was in the best interest of the children that he be granted primary legal and physical custody. On 9 June 2010, Defendant filed an amended motion in the cause. On 15 July 2010, Plaintiff filed a reply to the motion in the cause, and a motion to dismiss. By order entered 1 December 2010, the trial court granted Plaintiff and Defendant joint legal custody, and physical custody beginning 28 December 2010. Plaintiff now appeals. I. Defendant primary From this order, -3Plaintiff first argues that the trial court erred in making findings of fact that were not supported by competent evidence. We disagree. It is a long-standing rule that the trial court is vested with broad discretion children. (1982). in cases concerning the custody of In re Peal, 305 N.C. 640, 645, 290 S.E.2d 664, 667 It is the trial court that has the opportunity to see the parties in person and to hear the witnesses, and thus can detect tenors, tones, and flavors that are lost in the bare printed record read months later by appellate judges. v. Smith, 348 N.C. 616, 625, 501 S.E.2d 898, 902-03 (citations and internal quotation marks omitted). Pulliam (1998) Thus, the trial court s findings of fact have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary. Id. at 625, 501 S.E.2d at 903 (internal quotation marks and citations omitted). Specifically, Plaintiff court s findings of fact. challenges four of the We will address each in turn. trial First, Plaintiff addresses Finding of Fact Number 3, where the trial court found that Defendant management recruiting. has advanced in his career of The evidence showed that in the time -4since the 2005 order, Defendant had obtained a job with Management Recruiters International, and later started his own recruiting business. Plaintiff contends that Defendant s yearly salary declined from 2008 to 2009. However, the record, as found in Finding of Fact Number 40, shows that in the other years since the 2005 order was entered, Defendant s earnings increased. Thus we reject Plaintiff s argument. Plaintiff s argument is overruled. Plaintiff next attacks Finding of Fact Number 11, where the trial court found that Defendant s current wife, the children s stepmother, participates in extracurricular activities with the children. Plaintiff argues that Defendant s wife attended any of Chloie s cheerleading competitions. has not However, Defendant s wife testified that she and Defendant spent time camping, baking, swimming, and boating with the children. This testimony supports the trial court s Finding of Fact Number. 11, and Plaintiff s argument is overruled. Plaintiff also attacks Finding of Fact Number 14, which states that her current husband, the children s stepfather, used vulgar language in addressing Defendant on the phone while the children were in the house, and that based on the size of the house, the trial court had no doubt that the children heard this -5inappropriate language. Plaintiff asserts that this finding was based on mere speculation, but the record shows that the trial court was shown multiple pictures of Plaintiff s home, pictures that Plaintiff herself stated was fair and accurate depictions of the home. Thus there was competent evidence from which the trial court could find that based on the size of the home, the children must have heard the vulgar language their stepfather directed at their father. The last Finding of Fact that Plaintiff attacks is Number 18, where the trial court found that in August 2010, the stepfather referred to Defendant by a vulgar name in open court, and that there was a significant lack of remorse, or explanation for the inappropriateness of that language. The parties disagree as to whether it was Plaintiff or the stepfather whom the court found was lacking remorse, but there is competent evidence in the record that neither showed any. Plaintiff s husband did not testify at trial, but the record shows that he has referred to Defendant multiple occasions. using Plaintiff a particular testified, vulgar name and when on asked specifically about this incident she did not appear remorseful. Nor did she suggest that her husband was remorseful. she defended her husband s actions, pointing out Instead, that the -6children were not in the room when the comment was made, and stating: I will say that [my husband] does not like Robert and, you know, I don t know. Finally, Plaintiff alleges that the trial court failed to make any findings of fact specific to Chloie. without merit. This argument is The majority of the findings of fact refer to the best interest of both children. II. Plaintiff concluding next that argues there had that the been trial a court substantial erred in change in circumstances affecting the best interests and welfare of the children. We disagree. 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. Shipman v. Shipman, 357 N.C. 471, 473, 586 S.E.2d 250, (2003) 253 (internal quotation marks and citations omitted). Appellate courts review a decision to grant a motion to an modify court s existing findings of custody fact to order by determine examining whether the they lower are -7supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. at 474, 586 (internal quotation marks and citation omitted). S.E.2d at 253 The decision of the trial judge in child custody proceedings ought not to be upset on appeal absent a clear showing of abuse of discretion. King v. Demo, 40 N.C. App. 661, 668, 253 S.E.2d 616, 621 (1979). The trial court found a number of changed circumstances since the entry of the 11 July 2005 custody order, notably (1) Defendant remarried, and his relationship with his current wife had been a positive relationship for the children, (2) Defendant was an appropriate significant efforts disciplinarian to address the for angry Clint, and and made undisciplined behavior Clint exhibited while living with Plaintiff in 2008, and (3) Plaintiff neglected to discipline Clint for some of his misbehaviors occurring during 2010. Since 2005 the children have gained, and bonded with their stepmother, and Clint had begun exhibiting misbehaviors at home and at Defendant had significant success in resolving. school, that Given these findings, it is clear that the trial court did not abuse its discretion when it modified the custody order. III. -8Plaintiff s final argument is that the trial court erred in concluding modification of the custody order was in the best interest of the children. In support of this argument, Plaintiff references the two-prong test that the trial court implements modified: . [that] change in to evaluate whether a custody order should be (1) whether there was a change in circumstances . . affected the custody is minor in child[ren] the and child[ren] s (2) whether best Shipman, 357 N.C. at 474, 586 S.E.2d at 253. a interests. Plaintiff then asserts that because the trial court erred in finding a change in circumstances that changing custody. affected the children, it We have already concluded in erred by Section II, supra, that the trial court s analysis of the first prong was not in error. Plaintiff does not advance any argument that the change in custody was not in the children s best interests. Plaintiff does note that the order fails to state the reason a modification is in the children s best interest, citing our Supreme Court s opinion in Shipman for the proposition that such a statement is needed. Shipman does indeed encourage the trial court to include such an explanation, but does not require it. Accordingly, this argument is overruled. Affirmed. -9Judges STEELMAN and GEER concur. Report per Rule 30(e).
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