{ "id": 11916301, "name": "MARGARET ANN GARRETT, (KAYLEY ROSE RADEL), Plaintiff v. DONALD F. GARRETT, Defendant", "name_abbreviation": "Garrett v. Garrett", "decision_date": "1995-12-19", "docket_number": "No. COA94-1421", "first_page": "192", "last_page": "198", "citations": [ { "type": "official", "cite": "121 N.C. App. 192" } ], "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": "20 ALR4th 677", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "10 ALR4th 827", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "39 L. Ed. 2d 1031", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "451 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1994, "pin_cites": [ { "page": "324-25" }, { "page": "324" }, { "page": "325" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 369", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525397 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "377-78" }, { "page": "377" }, { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0369-01" ] }, { "cite": "268 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "300 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564644 ], "year": 1980, "pin_cites": [ { "page": "714" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0708-01" ] }, { "cite": "179 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "142" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554114 ], "year": 1971, "pin_cites": [ { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0402-01" ] }, { "cite": "206 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565013 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0418-01" ] }, { "cite": "204 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563377, 8563252, 8563348, 8563289, 8563324 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0234-05", "/nc/285/0234-01", "/nc/285/0234-04", "/nc/285/0234-02", "/nc/285/0234-03" ] }, { "cite": "202 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "340" } ], "opinion_index": 0 }, { "cite": "20 N.C. App. 528", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554226 ], "year": 1974, "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nc-app/20/0528-01" ] }, { "cite": "418 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1992, "pin_cites": [ { "page": "678" }, { "page": "679" }, { "page": "680" }, { "page": "679" }, { "page": "778" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527143 ], "weight": 5, "year": 1992, "pin_cites": [ { "page": "78" }, { "page": "80" }, { "page": "78" }, { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0071-01" ] }, { "cite": "130 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "875" } ], "opinion_index": 0 }, { "cite": "259 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561042 ], "year": 1963, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0461-01" ] }, { "cite": "239 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "308" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 583", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550674 ], "year": 1977, "pin_cites": [ { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0583-01" ] }, { "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": "170 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1969, "pin_cites": [ { "page": "144" }, { "page": "144" } ], "opinion_index": 0 }, { "cite": "6 N.C. App. 401", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548309 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "406" }, { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0401-01" ] }, { "cite": "327 S.E.2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "62" }, { "page": "62" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 594", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525088 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "596" }, { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0594-01" ] } ], "analysis": { "cardinality": 738, "char_count": 14668, "ocr_confidence": 0.753, "pagerank": { "raw": 1.8008032599225386e-07, "percentile": 0.7163981374975915 }, "sha256": "e5e50244d39ae7706b37d5d2cbcc3d9755c51a1bf77f24e4fa63eb04c1d294a4", "simhash": "1:8579732f147d1c56", "word_count": 2387 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge GREENE concur." ], "parties": [ "MARGARET ANN GARRETT, (KAYLEY ROSE RADEL), Plaintiff v. DONALD F. GARRETT, Defendant" ], "opinions": [ { "text": "SMITH, Judge.\nPlaintiff Kayley Rose Radel argues the trial court erred in finding her in civil contempt of court, and in its decision to change custody of her children from her to her former husband. Plaintiff asserts the finding of contempt is improper because it was initiated by the trial court without the required statutory notice. Plaintiff argues next that the trial court erred by divesting her of custody through conclusory findings, without applying the \u201cadverse effect\u201d and \u201cbest interest\u201d analyses required by case law. We agree with plaintiffs contentions. Accordingly, we vacate the trial court\u2019s 29 June 1994 contempt judgment, reverse the trial court\u2019s custody order of 30 August 1994, and remand for rehearing consistent with this opinion.\nPlaintiff and defendant were married on 6 July 1974. Three children were born of the marriage. The parties separated on 24 March 1989, and were subsequently divorced. Plaintiff was awarded primary custody of the three minor children by the trial court\u2019s judgment and order (Order) of 15 February 1990. This Order established a visitation schedule, and included the following provision:\nQ) The Defendant shall transport the children for visitation purposes; however, if either party moves a distance greater than ten (10) miles, then the parties agree to renegotiate for transportation....\nAt the time of the Order, plaintiff, defendant and the children resided in Old Fort, North Carolina. On 17 April 1994, plaintiff informed defendant by letter of her intent to relocate to Santa Fe, New Mexico, with the children. On or about 8 May 1994, plaintiff moved to Santa Fe, for the purpose of attending graduate school. After the move, the children were enrolled in the Santa Fe school system, where they finished the 1994 school year, and progressed to the next grade.\nDefendant filed a motion for change of custody on 29 April 1994. In response, the trial judge entered an order, which was served on plaintiff 3 June 1994, requiring plaintiff and children to appear in Buncombe County District Court on 27 June 1994. On 14 June 1994, plaintiff filed a motion requesting a continuance. Neither plaintiff nor the children appeared on 27 June 1994, though plaintiffs counsel did appear. On 29 June 1994 the trial court entered an order denying the motion for continuance, finding plaintiff in contempt of court, and ordering plaintiff to deliver temporary custody of the children to defendant. Pursuant to this order, defendant went to Santa Fe on 4 July 1994, where he assumed custody of the children. A hearing to determine permanent custody was held on 15-16 August 1994.\nAt the permanent custody hearing, defendant testified about his relationship with the children and discussed the nascent economic and emotional stability of his household. Defendant also offered evidence of his good character and fitness as a father. For instance, one friend of defendant described him as \u201cencouraging and caring.\u201d Defendant\u2019s present wife expressed her desire to care for the children.\nPlaintiff testified about her reasons for seeking the move to New Mexico and about the children\u2019s positive academic, emotional and social progress there. Plaintiff also offered the testimony of several of the children\u2019s former teachers from Old Fort. This testimony tended to show plaintiff\u2019s active involvement with the children\u2019s education, and the children\u2019s responsiveness to plaintiff. Other witnesses for plaintiff included friends and neighbors, all of whom characterized plaintiff as having exceptional parenting skills. These witnesses generally emphasized plaintiff\u2019s focus on the needs of the children, and plaintiff\u2019s cultivation of the children\u2019s intellectual growth.\nIn its permanent custody decision, the trial court found that substantial and material changes had occurred since the post-separation custody order, and awarded father primary custody. The trial court made this custody switch defeasible, holding that primary custody would return to plaintiff if plaintiff came back to Old Fort \u201cwithin a reasonable length of time.\u201d\nWe first address the trial court\u2019s finding of civil contempt by the plaintiff in its 29 June 1994 order (June order). In its June order, the trial court found as a fact \u201cthat Plaintiff\u2019s failure to appear places the [Plaintiff] in jeopardy of being found in contempt of [the trial court].\u201d The trial court then concluded and decreed plaintiff to be \u201cin willful contempt of this Court.\u201d\nThe rules regarding civil contempt are delineated by N.C. Gen. Stat. \u00a7 5A-21 through \u00a7 5A-25 (1986). The trial court has not abided by these rules, and has thus erred as a matter of law in finding plaintiff in contempt. Glesner v. Dembrosky, 73 N.C. App. 594, 596, 327 S.E.2d 60, 62 (1985). A finding of civil contempt by a trial court must be accompanied by notice and a dedicated proceeding. N.C. Gen. Stat. \u00a7 5A-23 (1986 & Cum. Supp. 1994). The trial court must either order\nthe alleged contemnor to appear at a specified reasonable time and show cause why he should not be held in civil contempt or [give notice] that the alleged contemnor will be held in contempt unless he appears at a specified reasonable time and shows cause why he should not be held in contempt. The order or notice must be given at least five days in advance of the hearing unless good cause is shown.\nId.\nOn its face, the June order demonstrates noncompliance with \u00a7 5A-23. First, the trial court determines that plaintiff\u2019s failure to appear creates the jeopardy of contempt, then it immediately finds plaintiff to be in actual contempt. No \u00a7 5A-23 proceeding is contemplated by the order, giving rise to an inference that the trial court\u2019s action was, at best, summarial.\nMoreover, the instantaneous determination of contempt by the trial court makes obvious the lack of statutory notice to plaintiff. Notice is not optional under \u00a7 5A-23, therefore the trial court\u2019s imposition of contempt is error. Glesner, 73 N.C. App. at 596, 327 S.E.2d at 62. The trial court\u2019s finding of civil contempt is thus vacated as contrary to statute.\nWe now address the change of custody issue. Once custody of minor children has been judicially determined, that court\u2019s order cannot be modified absent a substantial change of circumstances affecting the welfare of the child. Rothman v. Rothman, 6 N.C. App. 401, 406, 170 S.E.2d 140, 144 (1969); N.C. Gen. Stat. \u00a7 5043.7(a) (1987). To qualify as substantial, circumstances must have \u201cso changed that the welfare of the child will be adversely affected unless the custody provision is modified.\u201d Rothman, 6 N.C. App. at 406, 170 S.E.2d at 144. The burden of showing substantially changed circumstances is on the moving party. Searl v. Searl, 34 N.C. App. 583, 587, 239 S.E.2d 305, 308 (1977).\nOnce the substantial change is demonstrated, it is incumbent upon the trial court to request production of evidence probative on the \u201cbest interest\u201d issue. Thomas v. Thomas, 259 N.C. 461, 467, 130 S.E.2d 871, 875 (1963). There is no burden of proof, per se, upon one party or the other in the best interest context. Ramirez-Barker v. Barker, 107 N.C. App. 71, 418 S.E.2d 675, 678 (1992). Instead, the parties to the case are obligated to bring forth evidence dispositive as to the best interests of the children involved. Id. The best interest analysis is rendered nugatory if the party requesting the custody change does not meet its burden on the substantial change of circumstances issue. Id.\nIn the case at bar, the trial court listed the following factors, ostensibly constituting the substantial material changes justifying a change of custody: (1) plaintiffs \u201cestrangement from her family which she has imposed on the children\u201d; (2) plaintiffs decision to take the children from Old Fort to New Mexico; (3) the demands of plaintiffs graduate work, in addition to her part-time employment; (4) the stable marriage of defendant and his present wife; (5) the eldest son\u2019s over-identification with his mother; and (6) plaintiffs \u201cphilosophy\u201d that the children do not need the consistent involvement of their father in their everyday lives.\nThese findings, in and of themselves, do not form a sufficient basis for the conclusion that a substantial change of circumstances has occurred. It is settled law that, \u201cwhen the trial court fails to find the material facts to dispose of the issues the case must be remanded for a new trial.\u201d Lawing v. Jaynes, 20 N.C. App. 528, 536, 202 S.E.2d 334, 340, cert. allowed, 285 N.C. 234, 204 S.E.2d 24, modified on other grounds, 285 N.C. 418, 206 S.E.2d 162 (1974); see also N.C. Gen. Stat. \u00a7 1A-1, Rule 52(a)(1) (1990) (trial judge in a custody case must find the facts specially before entering an appropriate judgment). For the reasons that follow, a new custody hearing is necessary.\nThe mere fact that a custodial parent\u2019s residence has changed is not, ipso facto, a factual circumstance justifying modification of a custody order. Barker, 107 N.C. App. at 78, 418 S.E.2d at 679. Further, the trial court must demonstrate, in its fact findings, a nexus between the changes of circumstances and a concomitant adverse effect on the children involved. Id. Conclusory statements regarding parental behavior, such as those above, are no substitute for findings of fact \u201c \u2018tailor-made\u2019 to settle the matter at issue between the parties.\u201d Peoples v. Peoples, 10 N.C. App. 402, 408, 179 S.E.2d 138, 142 (1971).\nThe factual factors listed by the trial court as dispositive on the substantial change of circumstance requirement are oriented toward parental fitness, not adverse alterations of the children\u2019s welfare. The factors enumerated are bare observations of plaintiff\u2019s or defendant\u2019s actions, not examples of how those actions adversely impact the children. For instance, the court cites the \u201cstable marriage of the Defendant and his present wife,\u201d and \u201cthe mother\u2019s need to make a career change,\u201d as factors supporting a finding of substantial change. Such findings, without more, do not meet the Rothman standard. No connection is made between these factors and any resulting adverse impact on the children.\nThe trial court has failed to discern the Rothman nexus. \u201cEvidence must support findings; findings must support conclusions; conclusions must support the judgment. Each step of the progression must be taken by the trial judge, in logical sequence .... Where there is a gap, it cannot be determined on appeal whether the trial court correctly exercised its function....\u201d Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980). Here, that logic gap is apparent, as the trial court\u2019s conclusion that a substantial change has occurred, meaning an adverse effect on the involved children, is not supported by the evidence or the findings of fact.\nWe note well that trial courts are to be given deference in child custody matters. Barker, 107 N.C. App. at 80, 418 S.E.2d at 680. After all, the trial court has the \u201cunique opportunity to see and hear the parties, the witnesses, and the child.\u201d Id. However, trial courts should not interpret this deference as justifying oblique findings of fact and conclusions of law. Benedict v. Coe, 117 N.C. App. 369, 377-78, 451 S.E.2d 320, 324-25 (1994).\nIn Coe this Court explicitly set forth its expectations with regard to findings of fact and conclusions of law in a custody modification setting. Id. First, a substantial change of circumstances is unequivocally a conclusion of law. This phrase is a term of art, meaning that a change has occurred among the parties, and that change has affected the welfare of the children involved. Id. The trial court must make \u201cthose findings of fact [necessary] to form a valid basis for the conclusions of law . . . .\u201d Coe, 117 N.C. App. at 377, 451 S.E.2d at 324. Findings of fact which are the equivalent of \u201c \u2018speculation or conjecture that a detrimental change may take place\u2019 \u201d will not support a change of custody. Coe, 117 N.C. App. at 378, 451 S.E.2d at 325 (quoting Barker, 107 N.C. App. at 78, 418 S.E.2d at 679).\nHaving determined that the trial court\u2019s findings of fact do not support its conclusion of law that a substantial change has occurred, it is unnecessary to reach the best interest analysis mandated in Barker. Barker, 107 N.C. App. at 77, 418 S.E.2d at 778.\nIn summary, we vacate the trial court\u2019s finding of civil contempt, as not applied in accordance with applicable statutes; we reverse the trial court\u2019s change of custody for the reasons set forth herein, and we remand for a rehearing of the custody issue consistent with this opinion.\nFinding of contempt vacated. Order changing custody reversed and remanded for rehearing.\nChief Judge ARNOLD and Judge GREENE concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Robert E. Riddle, P.A., by Robert E. Riddle, for plaintiff appellant.", "Devere Lentz & Associates, by David B. Thornton, for defendant appellee." ], "corrections": "", "head_matter": "MARGARET ANN GARRETT, (KAYLEY ROSE RADEL), Plaintiff v. DONALD F. GARRETT, Defendant\nNo. COA94-1421\n(Filed 19 December 1995)\n1. Contempt of Court \u00a7 25 (NCI4th)\u2014 civil contempt without notice and hearing \u2014 error\nThe trial court erred in finding civil contempt by plaintiff where the court determined that plaintiffs failure to appear at a child custody modification hearing created the jeopardy of contempt, then immediately found plaintiff to be in actual contempt; the court did not hold a proceeding pursuant to N.C.G.S. \u00a7 5A-23; and plaintiff was not given any notice of the contempt proceeding.\nAm Jur 2d,Contempt \u00a7\u00a7 5, 7, 180, 181, 193-203.\nContempt proceedings as violating procedural due process-Supreme Court cases. 39 L. Ed. 2d 1031.\n2. Divorce and Separation \u00a7 365 (NCI4th)\u2014 change of mother\u2019s residence \u2014 failure to show adverse effect on children \u2014 change of custody erroneous\nThe trial court erred in finding that substantial and material changes had occurred since the parties\u2019 post-separation custody order which warranted a change in custody from the mother to the father, since the court found that plaintiff mother\u2019s residence had changed from North Carolina to New Mexico, but the court did not demonstrate a nexus between the change of circumstances and a concomitant adverse effect on the children involved.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 988, 989.\nDesire of child as to geographical location of residence or domicile as factor in awarding custody or terminating parental rights. 10 ALR4th 827.\nPropriety of awarding custody of child to parent residing or intending to reside in foreign country. 20 ALR4th 677.\nAppeal by plaintiff from orders entered 29 June 1994 and 30 August 1994 by Judge Shirley H. Brown in Buncombe County District Court. Heard in the Court of Appeals 29 September 1995.\nRobert E. Riddle, P.A., by Robert E. Riddle, for plaintiff appellant.\nDevere Lentz & Associates, by David B. Thornton, for defendant appellee." }, "file_name": "0192-01", "first_page_order": 226, "last_page_order": 232 }