{ "id": 8525397, "name": "TERRY BENEDICT, Plaintiff v. DEBORAH L. COE, Defendant", "name_abbreviation": "Benedict v. Coe", "decision_date": "1994-12-20", "docket_number": "No. 9325DC1247", "first_page": "369", "last_page": "378", "citations": [ { "type": "official", "cite": "117 N.C. App. 369" } ], "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": "331 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "225" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526437 ], "year": 1985, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0596-01" ] }, { "cite": "203 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "337" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554602 ], "year": 1974, "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0120-01" ] }, { "cite": "344 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "367" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 337", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522905 ], "year": 1986, "pin_cites": [ { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0337-01" ] }, { "cite": "284 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "127" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 612", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524391 ], "year": 1981, "pin_cites": [ { "page": "614" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0612-01" ] }, { "cite": "426 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "469-470" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 293", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525251 ], "year": 1993, "pin_cites": [ { "page": "295-96" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0293-01" ] }, { "cite": "346 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "279" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 244", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358601 ], "year": 1986, "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0244-01" ] }, { "cite": "403 S.E.2d 900", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "906", "parenthetical": "\"The word custody under the statute also includes visitation\"" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 496", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524862 ], "year": 1991, "pin_cites": [ { "page": "505", "parenthetical": "\"The word custody under the statute also includes visitation\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0496-01" ] }, { "cite": "243 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "142" } ], "opinion_index": 0 }, { "cite": "294 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574089 ], "year": 1978, "pin_cites": [ { "page": "575" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0554-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "285 S.E.2d 831", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568167, 8568205, 8568301, 8568272, 8568240 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0390-01", "/nc/304/0390-02", "/nc/304/0390-05", "/nc/304/0390-04", "/nc/304/0390-03" ] }, { "cite": "278 S.E.2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "551" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170120 ], "year": 1981, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0203-01" ] }, { "cite": "290 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "667" } ], "opinion_index": 0 }, { "cite": "305 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572909 ], "year": 1982, "pin_cites": [ { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0640-01" ] }, { "cite": "167 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "783" } ], "opinion_index": 0 }, { "cite": "5 N.C. App. 160", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548588 ], "year": 1969, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc-app/5/0160-01" ] }, { "cite": "216 S.E.2d 911", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "parenthetical": "quoting Greer v. Greer, 5 N.C. App. 160, 161, 167 S.E.2d 782, 783 (1969)" } ], "opinion_index": 0 }, { "cite": "287 N.C. 664", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564448, 8564549, 8564589, 8564502, 8564473 ], "year": 1975, "pin_cites": [ { "parenthetical": "quoting Greer v. Greer, 5 N.C. App. 160, 161, 167 S.E.2d 782, 783 (1969)" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0664-01", "/nc/287/0664-04", "/nc/287/0664-05", "/nc/287/0664-03", "/nc/287/0664-02" ] }, { "cite": "214 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "292", "parenthetical": "quoting Greer v. Greer, 5 N.C. App. 160, 161, 167 S.E.2d 782, 783 (1969)" } ], "opinion_index": 0 }, { "cite": "25 N.C. App. 510", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555070 ], "year": 1975, "pin_cites": [ { "page": "516", "parenthetical": "quoting Greer v. Greer, 5 N.C. App. 160, 161, 167 S.E.2d 782, 783 (1969)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/25/0510-01" ] }, { "cite": "303 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "62 N.C. App. 571", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524019 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/62/0571-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "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": "323 Md. 486", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2012666 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "500" }, { "page": "1139" } ], "opinion_index": 0, "case_paths": [ "/md/323/0486-01" ] }, { "cite": "181 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "189" } ], "opinion_index": 0 }, { "cite": "11 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554849 ], "year": 1971, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc-app/11/0351-01" ] }, { "cite": "418 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1992, "pin_cites": [ { "page": "678" }, { "page": "679", "parenthetical": "citation omitted" }, { "page": "678" }, { "page": "679" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527143 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "77" }, { "page": "78" }, { "page": "77" }, { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0071-01" ] }, { "cite": "431 S.E.2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "863", "parenthetical": "quoting Ramirez-Barker v. Barker, 107 N.C. App. 71, 77, 418 S.E.2d 675, 678 (1992)" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521296 ], "year": 1993, "pin_cites": [ { "page": "226", "parenthetical": "quoting Ramirez-Barker v. Barker, 107 N.C. App. 71, 77, 418 S.E.2d 675, 678 (1992)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0222-01" ] }, { "cite": "379 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "97" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 639", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528435 ], "year": 1989, "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0639-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 5043.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "73 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "154", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "236 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626748 ], "year": 1952, "pin_cites": [ { "page": "533", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0531-01" ] }, { "cite": "308 S.E.2d 714", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762872 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0631-01" ] }, { "cite": "306 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "191" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 721", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526179 ], "year": 1983, "pin_cites": [ { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0721-01" ] } ], "analysis": { "cardinality": 944, "char_count": 20549, "ocr_confidence": 0.769, "pagerank": { "raw": 1.1896046580302706e-07, "percentile": 0.5910697882386193 }, "sha256": "3c600ca384c2cc848ca0ea5ce761a87cb038d092fdaf84d269397e490184ce41", "simhash": "1:47e9d6ea40e32ed6", "word_count": 3441 }, "last_updated": "2023-07-14T20:31:41.091249+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and JOHN concur." ], "parties": [ "TERRY BENEDICT, Plaintiff v. DEBORAH L. COE, Defendant" ], "opinions": [ { "text": "ORR, Judge.\nThe dispositive issue before this Court is whether the trial court abused its discretion in modifying the 16 December 1991 Order, which set forth the original child custody and visitation schedule for the parties in this action. Defendant first contends that the trial court improperly modified custody, not visitation, when the only relief plaintiff sought was modification of the visitation schedule. We find this contention to be without merit.\nIt is well established that a court decree awarding custody of a minor child is never final in nature. Ellenberger v. Ellenberger, 63 N.C. App. 721, 723, 306 S.E.2d 190, 191, disc. review allowed, 309 N.C. 631, 308 S.E.2d 714 (1983). \u201cSuch a decree determines only the present rights with respect to such custody. . . .\u201d Id. (quoting Neighbors v. Neighbors, 236 N.C. 531, 533, 73 S.E.2d 153, 154 (1952) (emphasis added) (citations omitted)). With respect to modification of a custody order, N.C. Gen. Stat. \u00a7 50-13.7 states in part as follows:\n(a) 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 by either party or anyone interested. . . .\nN.C. Gen. Stat. \u00a7 5043.7(a) (1987).\nThus, \u201c[o]nce 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 affecting the welfare of the child, Hamilton v. Hamilton, 93 N.C. App. 639, 647, 379 S.E.2d 93, 97 (1989); N.C.G.S. \u00a7 50-13.7(a) (1987); and (2) a change in custody is in the best interest of the child.\u201d Dobos v. Dobos, 111 N.C. App. 222, 226, 431 S.E.2d 861, 863 (1993) (quoting Ramirez-Barker v. Barker, 107 N.C. App. 71, 77, 418 S.E.2d 675, 678 (1992)). \u201cChanged circumstances\u201d as used in N.C. Gen. Stat. \u00a7 50-13.7(a), means \u201csuch a change as affects the welfare of the child.\u201d In re Harrell, 11 N.C. App. 351, 354, 181 S.E.2d 188, 189 (1971). In Ramirez-Barker, this Court stated:\nIt is not necessary that adverse effects on the child manifest themselves before a Court can alter custody .... It is sufficient if the changed circumstances show that the child will likely or probably be adversely affected.\nRamirez-Barker, 107 N.C. App at 78, 418 S.E.2d at 679 (citation omitted). \u201cIt is neither \u2018necessary nor desirable to wait until the child is actually harmed to make a change\u2019 in custody.\u201d Id., (quoting Domingues v. Johnson, 323 Md. 486, 500, 593 A.2d 1133, 1139 (1991)).\nThe moving party has the burden of showing a substantial change of circumstances affecting the welfare of the child. Kelly v. Kelly, 77 N.C. App. 632, 636, 335 S.E.2d 780, 783 (1985). If the party with the burden of proof does not show that there has been a substantial change in circumstances, the \u201cbest interest\u201d question is not reached. Ramirez-Barker, 107 N.C. App at 77, 418 S.E.2d at 678.\nUnder N.C. Gen. Stat. \u00a7 50-13.2, the best interest and welfare of the child is the paramount consideration in determining the custody and visitation rights. N.C. Gen. Stat. \u00a7 50-13.2 (1987); In re DiMatteo, 62 N.C. App. 571, 303 S.E.2d 84 (1983). However, trial court judges have broad discretion to determine what is in the best interest of the child in custody and visitation cases.\n[C]ustody cases often involve difficult decisions. However, it is necessary that the trial judge be given wide discretion in making his determination for \u201cthe trial judge has the opportunity to see the parties in person and to hear the witnesses.\u201d\nPruneau v. Sanders, 25 N.C. App. 510, 516, 214 S.E.2d 288, 292, cert denied, 287 N.C. 664, 216 S.E.2d 911 (1975) (quoting Greer v. Greer, 5 N.C. App. 160, 161, 167 S.E.2d 782, 783 (1969)). \u201cThe trial judge is entrusted by this section with the delicate and difficult task of choosing an environment which will, in his judgment, best encourage full development of the child\u2019s physical, mental, emotional, moral and spiritual faculties.\u201d In re Peal, 305 N.C. 640, 645, 290 S.E.2d 664, 667 (1982). The trial judge\u2019s decision shall not be upset on appeal absent a clear showing of abuse of discretion. Falls v. Falls, 52 N.C. App. 203, 209, 278 S.E.2d 546, 551, disc. review denied, 304 N.C. 390, 285 S.E.2d 831 (1981). Our Supreme Court has said \u201cvisitation privileges are but a lesser degree of custody\u201d and that the word \u201ccustody\u201d, as used in N.C. Gen. Stat. \u00a7 50~13.7(a), was intended to encompass visitation rights as well as general custody. Clark v. Clark, 294 N.C. 554, 575, 243 S.E.2d 129, 142 (1978); Savani v. Savani, 102 N.C. App. 496, 505, 403 S.E.2d 900, 906 (1991) (\u201cThe word custody under the statute also includes visitation\u201d).\nThe parties in the case at bar entered into a Consent Order on 12 December 1991 providing for the custody and support of their child. This Court has stated that any modification of a consent order for custody and visitation must be based on a showing of a substantial change in circumstances adversely affecting the welfare of the minor child. See Woncik v. Woncik, 82 N.C. App. 244, 246, 346 S.E.2d 277, 279 (1986).\nIn the instant case, the trial court ordered that joint custody remain the same and that \u201csecondary custody\u201d be modified. The court ordered that \u201cPlaintiff shall exercise visitation with the minor child during the months of September, January, April, and June of each year for the entire month, returning the minor child the last day of' those months.\u201d The court also ordered that plaintiff or his designate, of appropriate age and character, accompany the minor child between California and North Carolina; that plaintiff shall \u201cenjoy all custodial rights while the minor child is in his care . . and that the parties keep one another informed of significant events in the life of the minor child while the child is in the parties\u2019 care. The court reserved the issue of child support for a later date.\nNowhere in the trial judge\u2019s Order or in the record was primary custody awarded to the plaintiff. Defendant retains primary custody for thirty-six out of fifty-two weeks per year, which is still the majority of the year. Plaintiff merely will visit with the minor child sixteen weeks per year in segments of one month per visit instead of twelve weeks spread out over twelve months as provided for in the 16 December 1991 Order.\nWe emphasize that we intend no change in well established law that the trial court may not modify child custody except upon proper motion with service and notice upon the opposing party that custody (as opposed to visitation) modification is being sought. See Jones v. Jones, 109 N.C. App. 293, 295-96, 426 S.E.2d 468, 469-470 (1993), and Clayton v. Clayton, 54 N.C. App. 612, 614, 284 S.E.2d 125, 127 (1981). Our decision herein is founded upon the determination that only modification of visitation was sought and only visitation was modified. This assignment of error is, therefore, overruled.\nDefendant next argues in her brief that the trial court applied the wrong legal standard in modifying the 16 December 1991 Order. She further argues that the court\u2019s finding of fact that defendant is an \u201cover-protective mother\u201d is not sufficient to support a conclusion that there had been substantial change in circumstances, justifying modification of the custody order.\nModification of a custody decree must be supported by findings of fact based on competent evidence that there has been a substantial change of circumstances affecting the welfare of the child. Best v. Best, 81 N.C. App. 337, 343, 344 S.E.2d 363, 367 (1986). \u201cIf the evidence supports the findings of fact by the trial court and those findings of fact form a valid basis for the conclusions of law, the judgment entered will not be disturbed on appeal.\u201d Paschall v. Paschall, 21 N.C. App. 120, 122, 203 S.E.2d 337, 337 (1974). While it is well established that the trial judge is in the best position to observe the parties and witnesses and to hear the evidence,\n[i]t is not sufficient that there may be evidence in the record sufficient to support findings that could have been made. . . . The trial court is required to make specific findings of fact with respect to factors listed in the statute. . . . Such findings are required in order for the appellate court to determine whether the trial court gave \u201cdue regard\u201d to the factors listed.\nGreer, 101 N.C. App. at 355, 399 S.E.2d at 402 (citations omitted).\nAt the hearing on 13 July 1993, the evidence was limited to the testimony of the parties and three exhibits. The record shows that no evidence was presented as to the circumstances of the parties on 16 December 1991, 6 January 1993, or 13 July 1993. Rather, all evidence presented concerned the parties\u2019 and minor child\u2019s then current circumstances. Moreover, the 29 July 1993 Order contains no findings as to the existing circumstances on 16 December 1991, 10 November 1992, 6 January 1993 or 13 July 1993. It contains no findings of changed circumstances since these dates. It contains no Conclusion of Law that a substantial change of circumstances affecting the welfare of the child has occurred. Finally, the Order contains no Conclusion of law that the child will be adversely affected if the Order is not modified. In fact, with respect to the cross-country visitation, the trial judge stated in Finding of Fact No. 9 that \u201c[t]he Court has no evidence that such visitation is emotionally or physically harmful to the minor child.\u201d\nThe court\u2019s discretion in child custody and visitation cases is limited by the well established legal standard for modification of custody and visitation orders. Evidence of \u201cspeculation or conjecture that a detrimental change may take place sometime in the future\u201d will not support a change in custody. Ramirez-Barker, 107 N.C. App. at 78, 418 S.E.2d at 679 (quoting Wehlau v. Witek, 75 N.C. App. 596, 599, 331 S.E.2d 223, 225 (1985)). The trial court\u2019s order is deficient in that it contains insufficient findings and no conclusion of law that \u201ca substantial change of circumstances affecting the welfare of the child has occurred.\u201d Without such finding, a modification based solely on the ground that the defendant mother is over-protective is improper. In this case, additional findings of fact and conclusions of law were in order.\nWe vacate the order of the trial judge and remand this case for new hearing.\nVacated and remanded for new hearing.\nJudges EAGLES and JOHN concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Gaither, Gorham and Crone, by John W. Crone, III and Veronica M. Guarino, for plaintiff-appellee.", "Edward P. Hausle, P.A., by Edward P. Hausle, for defendant-appellant." ], "corrections": "", "head_matter": "TERRY BENEDICT, Plaintiff v. DEBORAH L. COE, Defendant\nNo. 9325DC1247\n(Filed 20 December 1994)\n1. Divorce and Separation \u00a7 377 (NCI4th)\u2014 modification of visitation sought \u2014 visitation order modified \u2014 no error\nThe trial court did not err in modifying an earlier child custody order where only modification of visitation was sought and only visitation was modified.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 999 et seq.\n2. Divorce and Separation \u00a7 378 (NCI4th)\u2014 visitation modified \u2014 no finding of substantial change of circumstances\u2014 order improper\nThe trial court\u2019s order modifying visitation was deficient in that it contained insufficient findings and no conclusion of law that a substantial change of circumstances affecting the welfare of the child had occurred, and, without such a finding, a modification based solely on the ground that the defendant mother was over-protective was improper.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 999 et seq.\nAppeal by defendant from Order entered 29 July 1993 by Judge Nancy L. Einstein in Catawba County District Court. Heard in the Court of Appeals 13 September 1994.\nOn 20 November 1991, the plaintiff filed an action to establish paternity and legitimation of the parties\u2019 minor child, Johnathan Chase Lester Benedict, who was born on 4 November 1990. Both parties acknowledged plaintiff as the biological father of the minor child and an Order of Paternity was entered on 27 November 1991. On that same day, the parties waived findings of fact and conclusions of law and signed a Consent Order, in which they agreed to the following custody, visitation and child support arrangements:\n2. Plaintiff and defendant shall have joint custody of their minor child, Johnathan Chase Lester Benedict, with the defendant having primary custody of the minor child subject to the secondary custody by the plaintiff with the plaintiff having physical custody of the minor child at least one week of every calendar month recognizing that since the plaintiff is from the State of California, it is impractical to set specific times for his secondary custody. Said secondary custody with the minor child by plaintiff shall be within the 25th Judicial District. Plaintiff shall not remove the child from the State of North Carolina without the consent of Defendant, said consent is not be be [sic] unreasonably withheld. Secondary custody by the plaintiff is encouraged at such times as the plaintiff is in the State of North Carolina, and especially Caldwell County, North Carolina, and said secondary custody shall not be unreasonably withheld.\n3. Secondary custody by plaintiff shall be at all such other times as the parties mutually agree with said secondary custody encouraged and not to be unreasonably withheld.\nIn addition, plaintiff agreed to pay $440.00 per month as child support until the minor child reaches the age of 18 or graduates from high school, whichever last occurs.\nOn 10 November 1992, plaintiff filed a Motion in the Cause seeking a modification of the visitation schedule and a reduction in child support due to a decrease in his income. Plaintiff set forth the following changes in circumstances with respect to the visitation schedule which he alleged justified the requested modification:\nA. The Plaintiff has not been allowed to exercise the visitation outlined in the Court\u2019s Order because the Defendant has refused said visitation.\nB. On numerous occasions the Plaintiff has spent enormous amounts of money in flying back and forth from California to North Carolina to see his child, only to be told where and under what circumstances he could spend time with said child.\nC. The Plaintiff is [sic] need of a specific Order by the Court allowing him to visit with the minor child.\nD. The child is older now and the Plaintiff should be allowed to take the child with him out of the State of North Carolina without the consent of the Defendant, since she has continually and consistently unreasonably withheld her consent in this regard. In fact, the Defendant has never allowed the Plaintiff to take the minor child to see his family or to family events that would obviously benefit the child.\nE. The Defendant has consistently unreasonably withheld visitation, and it is time for the Court to set specific times and parameters therefore.\nDefendant filed no response to the plaintiffs Motion in the Cause. On 23 December 1992, plaintiff filed a Motion to peremptorily set a hearing on his Motion in the Cause since plaintiff, who resides in California, needed time to make travel arrangements. The hearing was set for 6 January 1993. At the hearing, the parties entered a Memorandum of Judgment setting forth a more specific visitation schedule. This Memorandum of Judgment was reduced to written Order 13 July 1993. Pursuant to this Order, the parties agreed that all issues before the court would remain open until rescheduled and also that joint custody would remain as set forth in the 16 December 1991 Consent Order. However, \u201csecondary custody\u201d, which concerned the visitation schedule, was more specifically outlined. In addition, the parties agreed to a reduction in child support to $100.00 per week with plaintiff having a $100.00 credit applied for any full week that plaintiff had the child. The Order contains no findings of fact or conclusions of law.\nThe matter was heard on 23 July 1993. On 29-July 1993, after hearing the evidence, Judge Einstein entered an Order, which is the subject of this appeal, and concluded that the \u201cbest interests of the minor child\u201d would be served by modifying the visitation schedule. This conclusion was based on the following findings of fact by the court:\n1. The Court has proper jurisdiction over the parties and the subject matter of this action.\n2. The parties stipulate in open court that the Court may enter an order in this cause outside this term of Court.\n3. An Order was entered with the consent of the parties pursuant to a Memorandum of Judgment during the January 6, 1993 term of Court by the Honorable L. Oliver Noble, Jr.; however, this order was not reduced to typewritten version, signed and filed until July 13, 1993.\n4. The above-mentioned Order set a court review of the visitation order for the July 21-23, 1993 term of court. The Order also transferred venue by consent of the parties to Caldwell County where the Defendant resides. The parties have agreed that this file may be transferred to Caldwell County after this term\u2019s review hearing.\n5. Plaintiff currently resides in Santa Monica, California where he is a free lance production supervisor for commercials, movies and other media projects. Since the January 1993 Order, Plaintiff has had to turn down certain production jobs in order to enjoy visitation with his son and comply with the Court order. It is not reasonable to expect the Plaintiff to work outside his chosen field, when more flexibility in the visitation schedule would allow him to continue his career and earn a substantial salary from it.\n6. Plaintiff is looking for employment in his field' closer to North Carolina to be closer to his son, and specifically is looking at Atlanta for freelance production work or a salaried position with one company.\n7. Under the current order, Plaintiff has been obligated to physically pick up his son from the Hickory or Charlotte airport, take him to California or to Memphis, where he has family, and personally return Chase to Hickory all at great expense and inconvenience. He has, however, procured a safe and reasonable plan with a career US Air flight attendant who lives in Charlotte but travels to California frequently.\n8. Plaintiff is a well spoken, responsible and mature adult who clearly loves his son and wants to be an important part of his son\u2019s life. He is, in fact, a very fit and proper person to have the care, custody and control of his son, Chase and to enjoy all of the rights of visitation with him.\n9. Defendant testified that the one week visitation between father and son went well, but that the two week period was difficult on the minor child. The Court realizes that cross-country visitation for any child is out of the ordinary; however, Chase is only two and one-half years old, and any travel or difference in routine can be an adjustment and difficult for parents. The Court has no evidence that such visitation is emotionally or physically harmful to the minor child.\n10. The minor child has some apparent allergies that require avoidance of many irritants, including dairy products. Plaintiff has shown an ability and willingness to deal with these health problems reasonably and responsibly.\n11. Defendant, on the other hand, appears to the Court to be an over-protective mother. While she clearly loves her son and states that she wants him to have good relationship with his father, she makes the ability to have the father/son relationship very difficult with her demands for Chase\u2019s care. The Court refers specifically to Plaintiff Exhibit No. 2 received in evidence and incorporated as findings of fact as if fully set out herein, which is a nine (9) page list of instructions for Plaintiff to follow. These instructions include requiring that Plaintiff place a harness or leash on Chase when out with him, requiring that Chase be given popcorn every night as a snack \u201c(for constipation),\u201d and requires Plaintiff to affirm with his signature that he has read the instructions and agrees with it all.\n12. Because of this over-protectiveness, the Court wonders whether this young child has a chance to be an active, normal young toddler. He. needs to be able to play, get dirty, explore safely in order to develop into a well-adjusted child.\n13. It is in the minor child\u2019s best interests that this visitation schedule be adjusted so that the Plaintiff be able to spend more significant time with his father and obtain a healthy schedule at his father\u2019s house.\nFrom this Order, defendant appealed.\nGaither, Gorham and Crone, by John W. Crone, III and Veronica M. Guarino, for plaintiff-appellee.\nEdward P. Hausle, P.A., by Edward P. Hausle, for defendant-appellant." }, "file_name": "0369-01", "first_page_order": 401, "last_page_order": 410 }