Griffin v Griffin
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-147 NORTH CAROLINA COURT OF APPEALS Filed: 5 July 2011 LUCINDA GALLOWAY GRIFFIN, Plaintiff, v. Forsyth County No. 07 CVD 4010 MICHAEL SCOTT GRIFFIN, Defendant. Appeal by plaintiff from Order entered 13 August 2010 by Judge Lisa Menefee in Forsyth County District Court. Heard in the Court of Appeals 26 May 2011. Robert N. Weckworth, Jr., for the plaintiff-appellant. Theodore M. Molitoris, for the defendant-appellee. STEELMAN, Judge. The trial court s findings of fact do not establish the essential nexus between the substantially changed circumstances and the effects on the child s welfare. I. Factual and Procedural History Lucinda Galloway Griffin (plaintiff) married Michael Scott Griffin (defendant) on 7 July 2001. Their only child was born -230 September 2004. They entered On 23 February 2006, the parties separated. into a Contract of Separation and Property Settlement on 8 June 2007, granting plaintiff primary legal and physical custody of secondary custody. the minor child, subject to defendant s The decree of absolute divorce, entered 2 July 2007, incorporated the Contract of Separation. On 17 June 2010, defendant filed a Motion for Child Custody Modification. has been a Defendant alleged that, since the divorce, there substantial and material change of circumstances affecting the welfare of the minor child, and therefore it is presently in the best interest and general welfare of the minor child that her full and complete permanent transferred from Plaintiff to Defendant. custody be On 16 July 2010, plaintiff filed a response denying the material allegations of defendant s motion. Plaintiff appealed pro se throughout the proceedings before the trial court. On 12 August 2010, a hearing was held before Judge Lisa Menefee on defendant s motion. transcribed. The hearing was not recorded or On 13 August 2010, the trial court entered an Order, modifying the custodial arrangement of the parties to a shared physical custodial arrangement. Pursuant to this Order, the parties were granted equal joint legal custody and shared -3physical custody. payments. On The 9 Order September also 2010, modified child plaintiff s support motion for reconsideration was denied. Plaintiff appeals. II. Findings and Conclusions Do Not Support Modification In her only argument on appeal, plaintiff contends that the trial court erred in changing the custody arrangements without finding substantial and material affecting the welfare of the child. A. changes in circumstances We agree. Standard of Review On appeal, plaintiff does not challenge the trial court s findings of fact. Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, Koufman v. 731 (1991). Therefore, the only issue on appeal is whether these findings of fact support the trial court s conclusions of law. Shipman v. Shipman, 357 N.C. 471, 475, 586 S.E.2d 250, 254 (2003). Conclusions of law in child custody cases are reviewed de novo. West v. Marko, 141 N.C. App. 688, 691, 541 S.E.2d 226, 229 (2001). Whether there has been a substantial change in circumstances is a legal conclusion. Kowalick v. Kowalick, 129 -4N.C. App. 781, 785, 501 S.E.2d 671, 674 (1998). court s examination custody order is whether there was examine whether of whether twofold. a such The change a to in change modify trial an existing court must circumstances affected The trial and the child determine then minor must child. Shipman, 357 N.C. at 474, 586 S.E.2d at 253. B. Trial courts custody matters. are Analysis vested with broad discretion in child Shipman, 357 N.C. at 474, 586 S.E.2d at 254. Whether there has been a substantial change in the circumstances depends on the specific facts of each case. Some examples of substantial changes are as follows: (1) a move on the part of a parent; (2) a parent s cohabitation; parent s financial status. or (3) a change in a See Shipman, 357 N.C. at 478, 586 S.E.2d at 256. In the instant case, the trial court s findings of fact in the Child Custody and Child Support Modification Order of 13 August 2010, reveal a substantial change in circumstances: (4) . . . Since the entry of the foregoing Absolute Divorce and Custody Order, there has been a substantial and material change of circumstances affecting this child s welfare warranting a modification by this Court of the prior Custody Order. (5) Plaintiff has the present intention to -5relocate to the coast and possibly the city of New Bern, North Carolina. Plaintiff told Defendant that she is relocating to New Bern and told the Court that she was relocating to the coast. She saw nothing wrong with this move to a location more than four hours travel from Forsyth County, North Carolina and did not feel that this relocation would endanger this child s relationship with her father, the Defendant herein. (6) Plaintiff is presently unemployed and has the present intention to relocate with Eric W. Hancock on the coast and the said Eric W. Hancock has residences both in North Myrtle Beach, South Carolina and New Bern, North Carolina. Plaintiff s relationship with Eric W. Hancock is not an exclusive relationship. The minor child has seen Eric Hancock on many occasions, has spent a great deal of time with him, and in fact, according to the Plaintiff loves him. . . . . (9) Since the parties separation, Plaintiff has resided at three separate locations . . . . . . . (12) This Plaintiff has allowed this child to make age inappropriate decisions about whether she wants to spend time with her father and whether to start school at an earlier or later age. (13) This child has a strong bond with her father and her stepmother. . . . . (15) this . . . Plaintiff would not encourage child to spend time with her father -6unless this child first to spend time with her belief in this child s time with the father is indicated her desire father. Plaintiff s reluctance to spend not substantial. (16) Plaintiff has expressed an interest in moving to the coast and this interest would affect the relationship with this child and her father and jeopardize their relationship thereafter. Plaintiff does not value the relationship this child has with her father. (17) It is in the best interest and general welfare of this child that the Court modify the prior Child Custody Order and provide for a joint legal custody relationship and a shared physical custody relationship with the minor child. (18) Plaintiff is able-bodied but not gainfully employed . . . . Defendant is able-bodied and gainfully employed . . . . The trial court concluded as a matter of law that [t]here has been a substantial and material change of circumstances affecting the welfare of the minor child such that the Court should modify the prior Child Custody Order. It is well established that findings of fact must support the conclusions of law and the conclusions of law must support the judgment. 185, 190 (1980). on appeal function. Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d Where there is a gap, it cannot be determined whether Id. the trial court correctly exercised its In order to modify a child custody order, the trial court must make specific findings of fact regarding the -7connection or nexus between the substantial circumstances and the welfare of the child. change in See Shipman, 357 N.C. at 478, 586 S.E.2d at 255; Johnson v. Adolf, 149 N.C. App. 876, 878, 561 S.E.2d 588, 589 (2002) (reversing and remanding a child custody modification order for failure to assess whether the changed circumstances affected the child s best interest); see also Lee s North Carolina Family Law, ยง13.103(a) (noting that the law requires proof of a nexus circumstances and the child s welfare). exception when the effects of the between the changed However, there is an substantial changes in circumstances on the minor child . . . are self-evident[.] Lang v. Lang, 197 N.C. App. 746, 750, 678 S.E.2d 395, 398 (2009) (citing Shipman, 357 N.C. at 479, 586 S.E.2d at 256). Although we agree that the trial court adequately identified substantial changes of circumstance, the findings of fact do not establish how the changes affected the child. The trial court s conclusion of law was not supported by adequate findings changed of fact indicating circumstances interest. and the their essential effects on nexus the between child s the best The trial court therefore erred in concluding that the custody modification was in the best interest and welfare of the child without supporting findings of fact. The effects of -8the substantial changes in circumstance are not self-evident in this case. The order of the trial court is vacated and this matter is remanded for further findings of fact on the effect of the substantial and material changes of circumstances upon the best interests of the child. Upon remand, the trial court in its discretion may take additional evidence. VACATED AND REMANDED. Judges CALABRIA and ELMORE concur. Report per Rule 30(e).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
