Barnes v. Barnes

286 S.E.2d 586 (1982)

Paula Davis BARNES v. Samuel Lear BARNES.

No. 8128DC470.

Court of Appeals of North Carolina.

February 2, 1982.

*587 George H. Johnson, Jr., Waynesville, for plaintiff-appellant.

Sutton & Edmonds by John R. Sutton, Candler, for defendant-appellee.

ARNOLD, Judge.

Plaintiff's appeal is grounded on her contention that a showing of changed circumstances so as to adversely affect the child is not required where the question of custody never has been litigated. It is well-settled that a contractual agreement between the parents is not binding on the court in awarding custody of a minor child. Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473 (1974). However, it does not follow that the terms of a consent judgment regarding custody may be altered without a showing of changed circumstances.

At the time of the parties' divorce, the terms of their consent judgment relative to child custody were adopted by the court in its findings of fact and conclusions of law. Custody was then awarded to defendant as part of the divorce judgment, not merely by agreement of the parties. Where custody has thus been awarded by court order any subsequent modification must be made in accordance with G.S. 50-13.7(a) which states:

An order of a court of this state for custody or support, or both, of a minor child may be modified or vacated at any time, upon a motion in the cause and a showing of changed circumstances by either party or anyone interested. (Emphasis added.)

Case law construing this provision has clearly established that a showing of "substantial change of circumstances affecting the welfare of the child" is required before an order of custody is changed, Daniels v. Hatcher, 46 N.C.App. 481, 483, 265 S.E.2d 429, 431 (1980), and that the burden of showing such changed circumstances is on the moving party. Ebron v. Ebron, 40 N.C. App. 270, 252 S.E.2d 235 (1979). In the case at bar, the plaintiff presented evidence of her own changed circumstances, but made no showing that the child's welfare was being affected adversely by her present environment. Indeed, plaintiff's counsel stipulated that both parties were fit and proper persons to have custody of their child. We agree with the trial court, therefore, that the plaintiff failed to meet her burden of showing changed circumstances sufficient to justify a change of Sarah Jane's custody. Accordingly, the dismissal of plaintiff's motion is

Affirmed.

HARRY C. MARTIN and WELLS, JJ., concur.