{ "id": 8521296, "name": "LEAH GAY HINES DOBOS v. JEFFREY DONALD DOBOS", "name_abbreviation": "Dobos v. Dobos", "decision_date": "1993-07-20", "docket_number": "No. 9221DC952", "first_page": "222", "last_page": "227", "citations": [ { "type": "official", "cite": "111 N.C. App. 222" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "89 ALR2d 106", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "158 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "80" } ], "opinion_index": 0 }, { "cite": "272 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572341 ], "year": 1967, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0235-01" ] }, { "cite": "335 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "783" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 632", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524740 ], "year": 1985, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0632-01" ] }, { "cite": "261 S.E.2d 122", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573312, 8573253, 8573227, 8573293, 8573273 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0568-05", "/nc/298/0568-02", "/nc/298/0568-01", "/nc/298/0568-04", "/nc/298/0568-03" ] }, { "cite": "257 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "127" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 524", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555042 ], "year": 1979, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0524-01" ] }, { "cite": "418 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1992, "pin_cites": [ { "page": "678", "parenthetical": "citations omitted" }, { "page": "679" }, { "page": "678" }, { "page": "679" }, { "page": "679" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527143 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "77", "parenthetical": "citations omitted" }, { "page": "78" }, { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0071-01" ] }, { "cite": "179 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "180" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554338 ], "year": 1971, "pin_cites": [ { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0457-01" ] } ], "analysis": { "cardinality": 472, "char_count": 11409, "ocr_confidence": 0.727, "pagerank": { "raw": 1.9492551619678378e-07, "percentile": 0.7365207392400097 }, "sha256": "5ed1a234e55dc10be7a7ba2201b88119dcb9e1b5e50e7a15afd3d0f24ee08a2f", "simhash": "1:d0ad52c225d32857", "word_count": 1885 }, "last_updated": "2023-07-14T15:07:55.768244+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and LEWIS concur." ], "parties": [ "LEAH GAY HINES DOBOS v. JEFFREY DONALD DOBOS" ], "opinions": [ { "text": "GREENE, Judge.\nDefendant appeals from orders entered 18 June 1992, denying defendant\u2019s motions for modification of a custody order entered 31 July 1990 and to set aside the aforementioned custody order pursuant to N.C.G.S. \u00a7 1A-1, Rule 60(b).\nPlaintiff and defendant were married on 29 June 1985, and on 8 April 1986, the parties\u2019 only child was born. On 28 September 1989, plaintiff instituted an action in Forsyth County District Court for relief from domestic violence and custody of the parties\u2019 daughter, who was three years old at the time. On 5 October 1989, the parties entered into a consent order pursuant to which they agreed to alternate custody of the minor child. Plaintiff subsequently sought a divorce from bed and board.\nOn 11 May 1990, plaintiff filed and served on defendant\u2019s attorney a notice of hearing to be held on 6 June 1990, at which plaintiff would seek \u201csuch relief as to the court may seem just and proper.\u201d Plaintiff and her attorney and defendant\u2019s attorney were present at the hearing, at which plaintiff presented, among other things, evidence of changed circumstances affecting the welfare of the parties\u2019 child. After the hearing, in an order entered 31 July 1990, the trial court granted plaintiff a divorce from bed and board and modified the consent order of 5 October 1989, pursuant to which the parties had agreed to alternate custody of the child, due to \u201cchanged circumstances presented by the evidence\u201d at the hearing. The court granted plaintiff sole care, custody, and control of the minor child and awarded plaintiff attorney\u2019s fees in the amount of $500.00. The record reveals no objection by defendant\u2019s attorney to the introduction of evidence at the hearing regarding changed circumstances, and defendant did not appeal from this order.\nSubsequently, child support and visitation orders were entered in the cause, pursuant to which defendant, who by this time had moved from North Carolina to Ohio, was awarded visitation with the child one weekend per month, two three-week periods each summer, and certain holidays. Plaintiff subsequently moved with the child from North Carolina to Texas. On 3 January 1992, defendant moved to modify the 31 July 1990 custody order, alleging substantial and material change in circumstances, specifically, plaintiff\u2019s relocation to Texas and her remarriage. On 3 April 1992, defendant moved pursuant to N.C.G.S. \u00a7 1A-1, Rule 60(b) to have the 31 July 1990 custody order set aside on the ground that defendant was not served with notice of the hearing. After a hearing on defendant\u2019s motions before the Honorable R. Kason Keiger, the court entered orders on 18 June 1992. With regard to defendant\u2019s motion to modify the previous custody order, the court found that certain changes had occurred since entry of the 31 July 1990 custody order, but concluded that defendant had failed to meet his burden of showing changed circumstances sufficient to justify a modification of the 31 July 1990 custody order, and denied defendant\u2019s motion. With regard to defendant\u2019s Rule 60(b) motion, the court found that defendant had full actual notice of the hearing on 6 June 1990, and a full opportunity to be heard, and concluded that, therefore, the 31 July 1990 custody order was not void on the ground of lack of notice to defendant. From these orders, defendant appeals.\nThe issues presented are whether (I) the court abused its discretion in denying defendant\u2019s Rule 60(b) motion; and (II) the evidence supports the trial court\u2019s findings in its order denying defendant\u2019s motion for modification of custody, and whether the findings support its conclusions.\nI\nDefendant argues that the trial court abused its discretion in denying defendant\u2019s Rule 60(b) motion to set aside the 31 July 1990 custody order on the ground that defendant did not receive proper notice of the hearing on plaintiff\u2019s motion to modify custody, and therefore the order is void.\n\u201cSubject to the provisions of G.S.' 50A-3, an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances . . . .\u201d N.C.G.S. \u00a7 50-13.7(a) (1987). Such motion, to be proper, must be made \u201con 10 days notice to the other parties and after compliance with G.S. 50A-4,\u201d N.C.G.S. \u00a7 50-13.5(d)(1) (1987 & Supp. 1992), \u201cshall state the grounds therefor, and shall set forth the relief or order sought,\u201d N.C.G.S. \u00a7 1A-1, Rule 7(b)(1) (1990), and shall be served upon either the party or his attorney of record. N.C.G.S. \u00a7 1A-1, Rule 5(a), (b) (1990). Where a party is given neither proper notice of a motion to modify custody nor an opportunity to be heard, an order modifying a previously entered custody order is void and may be set aside. See N.C.G.S. \u00a7 1A-1, Rule 60(b)(4) (1990). However, a party entitled to notice of such a motion may waive notice by attending the hearing of the motion and participating in it. Brandon v. Brandon, 10 N.C. App. 457, 461, 179 S.E.2d 177, 180 (1971).\nThe record in the instant case reveals that, although plaintiff\u2019s \u201cNotice of Hearing\u201d was not served on defendant himself, plaintiff properly served the notice on defendant\u2019s attorney, and did so in a timely manner in that it was served by mail on 11 May 1990, more than ten days prior to the scheduled hearing. However, despite the fact that a motion may properly be stated in a written notice of hearing on the motion, see N.C.G.S. \u00a7 1A-1, Rule 7(b)(1) (1990), the content of plaintiff\u2019s notice of hearing, seeking \u201csuch relief as to the court may seem just and proper,\u201d is insufficient to comply with the requirement that the motion state the grounds therefor and the relief or order sought. Defendant\u2019s attorney, however, was present at and participated in the hearing, and the record contains no indication that defendant\u2019s attorney either objected to the introduction of plaintiff\u2019s evidence of changed circumstances or sought a continuance of the matter. Accordingly, defendant waived proper notice of plaintiff\u2019s motion to modify custody, and therefore the trial court properly denied defendant\u2019s motion to set aside the 31 July 1990 custody order.\nII\nDefendant argues that the trial court\u2019s order denying defendant\u2019s motion to modify the 31 July 1990 order granting plaintiff custody of the parties\u2019 minor child should be reversed on the ground that the court\u2019s findings are not supported by the evidence, the evidence does not support the court\u2019s conclusions, and the trial court \u201cgrossly abused its discretion.\u201d\n\u201cOnce the custody of a minor child is judicially determined, that order of the court cannot be altered until it is determined that (1) there has been a substantial change in circumstances [adversely] affecting the welfare of the child; and (2) a change in custody is in the best interest of the child.\u201d Ramirez-Barker v. Barker, 107 N.C. App. 71, 77, 418 S.E.2d 675, 678 (1992) (citations omitted). The party seeking modification has the burden of showing the necessary change in circumstances. Id. at 78, 418 S.E.2d at 679. Because modification of a custody order requires a two-step inquiry, unless the movant meets his burden of showing changed circumstances adversely affecting the welfare of the child, the trial court never reaches the \u201cbest interest of the child\u201d question. Id. at 77, 418 S.E.2d at 678.\nThis Court has previously determined that neither remarriage nor a change in a custodial parent\u2019s residence is itself a substantial change in circumstances justifying a modification of a custody decree. Hassell v. Means, 42 N.C. App. 524, 531, 257 S.E.2d 123, 127, disc. rev. denied, 298 N.C. 568, 261 S.E.2d 122 (1979); Barker, 107 N.C. App. at 78, 418 S.E.2d at 679. However, evidence that the remarriage or relocation is detrimental to the child\u2019s welfare is a substantial change of circumstances which would support modification of a custody order. Kelly v. Kelly, 77 N.C. App. 632, 636, 335 S.E.2d 780, 783 (1985); Barker, 107 N.C. App. at 79, 418 S.E.2d at 679.\nIn the instant case, the trial court found that certain changes in the life of plaintiff and the child had taken place since the entry of the 31 July 1990 custody order, specifically, plaintiff\u2019s move with the child to Texas to live with plaintiff\u2019s parents, and plaintiff\u2019s remarriage. The court found, however, that plaintiff continues to reside full-time with the child and is the primary caregiver, and provides safe and ample living arrangements and a stable environment for the child; and that the parties continue to comply with the same visitation schedule established prior to plaintiff\u2019s move to Texas. In effect, the court found that, although changes have occurred, they have not adversely affected the welfare of the parties\u2019 child. The court concluded based on these findings that defendant had not met his burden of showing substantial changed circumstances. Because there is competent evidence in the record to support the court\u2019s findings, which in turn support its conclusion, we are bound by them. Crosby v. Crosby, 272 N.C. 235, 238, 158 S.E.2d 77, 80 (1967). We therefore reject defendant\u2019s assignments of error in this regard.\nAffirmed.\nJudges EAGLES and LEWIS concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Wendell Schollander and David F. Tamer for plaintiff-appellee.", "White and Crumpler, by G. Edgar Parker and Joan E. Brodish, for defendant-appellant." ], "corrections": "", "head_matter": "LEAH GAY HINES DOBOS v. JEFFREY DONALD DOBOS\nNo. 9221DC952\n(Filed 20 July 1993)\n1. Divorce and Separation \u00a7 460 (NCI4th)\u2014 child custody \u2014notice of hearing \u2014 content of notice insufficient \u2014 proper notice waived The trial court properly denied defendant\u2019s motion under N.C.G.S. \u00a7 1A-1, Rule 60(b) to set aside a child custody order on the ground that defendant did not receive proper notice of the hearing on plaintiff\u2019s motion to modify custody where the record reveals that, although the content of the notice of hearing was insufficient to comply with the requirement that the motions state the grounds and the relief sought, defendant\u2019s attorney was present and participated in the hearing and the record contains no indication that defendant\u2019s attorney either objected to the introduction of plaintiff\u2019s evidence of changed circumstances or sought a continuance of the matter.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 982, 1008.\n2. Divorce and Separation \u00a7 447 (NCI4th)\u2014 child custody \u2014 change of circumstances \u2014no adverse affect on child \u2014custody not modified\nThere was competent evidence to support the trial court\u2019s findings that defendant had not met his burden of showing substantial changed circumstances in a child custody proceeding where plaintiff had moved with the child to Texas to live with her parents and had remarried, but plaintiff continues to reside full-time with the child, is the primary care-giver, provides safe and ample living arrangements and a stable environment for the child, and the parties continued to comply with the same visitation schedule as before the move to Texas. The court found, in effect, that the changes which have occurred have not adversely affected the welfare of the child.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 1003, 1011 et seq.\nRemarriage as basis for modification of amount of child support or custody provision in divorce decree. 89 ALR2d 106.\nAppeal by defendant from orders entered 18 June 1992 in Forsyth County District Court by Judge R. Kason Keiger. Heard in the Court of Appeals 9 July 1993.\nWendell Schollander and David F. Tamer for plaintiff-appellee.\nWhite and Crumpler, by G. Edgar Parker and Joan E. Brodish, for defendant-appellant." }, "file_name": "0222-01", "first_page_order": 252, "last_page_order": 257 }