Gordon v. Gordon

265 S.E.2d 425 (1980)

Vernon P. GORDON v. Janice Jarman GORDON.

No. 798DC933.

Court of Appeals of North Carolina.

May 6, 1980.

*427 White, Allen, Hooten, Hodges & Hines by John M. Martin, Kinston, for plaintiff-appellant.

Hulse & Hulse by Herbert B. Hulse, Goldsboro, for defendant-appellee.

ROBERT M. MARTIN, Judge.

Plaintiff contends that the trial court erred in entering the order modifying a previous custody order without a finding of substantial change in circumstance affecting the welfare of the child. This contention has merit.

G.S. § 50-13.7(a) provides that an order of a court of this State providing for the custody of a minor child may be modified upon a showing of changed circumstances. "However, the party moving for modification of a custody order has the *428 burden of showing that there has been a substantial change of circumstances affecting the welfare of the child." (Citations omitted.) King v. Allen, 25 N.C.App. 90, 92, 212 S.E.2d 396, 397, cert. denied 287 N.C. 259, 214 S.E.2d 431 (1975). It must be shown that the circumstances have so changed that the welfare of the child will be adversely affected unless the custody provision is modified. Rothman v. Rothman, 6 N.C.App. 401, 170 S.E.2d 140 (1969).

This is a closely contested case in which the court found that both parents were fit and proper persons to have custody of the child. Upon a report from the Department of Social Services, the trial judge carefully weighed and made detailed findings of fact concerning the home, neighborhood and surroundings which each parent could offer the child. In awarding custody to the father, the trial judge found that it would be disruptive to remove the child from the home in which he and his child had resided since the child was adopted and that the child would actually receive more love and attention if he were left with his father in a familiar situation and environment than if he were placed in a new environment and in a strange, unfamiliar neighborhood and nursery.

Upon the hearing on modification, Judge Wright, in removing primary custody from the father, found that "there has been a substantial change in the circumstances that led to the Court's award of custody. . . to the plaintiff, inasmuch as the default by the plaintiff . . . has frustrated the Court's intention . . . to have the child remain in the home in which he has been living throughout his life . ." Assuming arguendo that remaining in the homeplace was the decisive factor in favor of placing custody with the father, that reason no longer exists. Neither party can restore the child to the familiar homeplace they once shared. Frustration of the court's intention, however, is not in itself a proper finding upon which to modify a custody award. See In re Poole, 8 N.C.App. 25, 173 S.E.2d 545 (1970) (the finding of a wilful, intentional, heedless violation of a direct order in a custody award that the children not associate with a certain person is not a substantial change of circumstance where there is no finding that said association with the child's mother is immoral or detrimental to the children's welfare.) The welfare of the child, not the frustration of the court order is the determining factor.

In the case sub judice, the only finding of change of circumstance is that the child has moved from his original home to "strange," i. e. unfamiliar neighborhoods. There are no findings that the moves proved disruptive or detrimental to the child's welfare; that the home and surrounding neighborhood in which the child presently lives differs from his original home, is inadequate, or has an adverse affect on the child's welfare or that the placement of the child in an unfamiliar neighborhood has had any impact on the child's adjustment. The mere fact that either parent changes his residence is not a substantial change of circumstance. See Harrington v. Harrington, 16 N.C.App. 628, 192 S.E.2d 638 (1972) (where the only finding of change of circumstance was that defendant, the party seeking custody, "is now residing in Mecklenburg County, North Carolina," held not a substantial change of circumstance). Rothman v. Rothman, 6 N.C.App. 401, 170 S.E.2d 140 (1969) (more must be shown than a removal by one parent of a child from a jurisdiction which may enter an adverse decision to the removing parent), accord, Searl v. Searl, 34 N.C.App. 583, 239 S.E.2d 305 (1977). Where a parent changes his residence, the effect on the welfare of the child must be shown in order for the court to modify a custody decree based on change of circumstance.

The facts found, therefore, do not support the conclusions that there has been a "substantial change in conditions" and that it is "in the best interest of the child that custody be split or divided among the parties." "[W]hen the court fails to find facts so that this Court can determine that the order is adequately supported by competent evidence and the welfare of the child is subserved, then the order entered thereon *429 must be vacated and the case remanded for detailed findings of fact." Crosby v. Crosby, 272 N.C. 235, 238-39, 158 S.E.2d 77, 80 (1967). (Citation omitted.)

Plaintiff further contends that the court erred in awarding child support when no evidence was offered tending to show the individual needs and expenses of the minor child who was the subject of the custody hearing. We agree. Although defendant offered evidence of the monthly expenses for her and another minor child, there was no evidence offered tending to show the amount necessary to meet the reasonable needs of the child, Vernon Bradley, for his health, education and maintenance pursuant to G.S. 50-13.4. The expenses of a teenage daughter bear no relationship to those of a four year old son. The court's finding of fact that $50.00 a month is a reasonable and necessary amount for the plaintiff to pay for the support of said child while he is in the custody of defendant is not supported by competent evidence. Martin v. Martin, 35 N.C.App. 610, 242 S.E.2d 393, cert. denied 295 N.C. 261, 245 S.E.2d 778 (1978). Similarly the court erred in ordering plaintiff to pay attorney's fees of $250.00 when no evidence was offered tending to show the nature of the legal services rendered or the amount of the fees and there were no findings of fact as to the amount or reasonableness of the attorney's fees incurred. Rogers v. Rogers, 39 N.C.App. 635, 251 S.E.2d 663 (1979).

We do not consider other errors contended for by plaintiff as they may not occur upon a new hearing.

The order is vacated and remanded for detailed findings of fact on the issue of change of circumstance from the record as it is now constituted or for such further hearing as the court may deem advisable.

Vacated and remanded.

CLARK and ERWIN, JJ., concur.