{
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  "name": "SUSAN McCONNELL, Plaintiff v. NACY McCONNELL, Defendant",
  "name_abbreviation": "McConnell v. McConnell",
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    "judges": [
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    "parties": [
      "SUSAN McCONNELL, Plaintiff v. NACY McCONNELL, Defendant"
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    "opinions": [
      {
        "text": "BIGGS, Judge.\nThis appeal arises from a modification of a custody order based upon changed circumstances. For the reasons herein, we affirm the trial court.\nSusan McConnell (plaintiff) and Nacy McConnell (defendant) were married on 27 December 1971, and lived together as husband and wife until June 1996, when they separated. Although four children were born of this marriage, only one child, bom on 8 October 1985, was a minor at all relevant times and she is the subject of this action.\nFollowing their separation, on 13 August 1996, plaintiff filed a complaint in Moore County Civil District Court, seeking custody of the parties\u2019 minor child, child support, equitable distribution, temporary possession of marital home, post separation support and alimony. Defendant filed an answer admitting that it was in the minor child\u2019s best interest for plaintiff to have sole physical custody.\nOn 11 March 1997, following a hearing for permanent custody and child support, the trial court entered an order awarding joint legal custody, with plaintiff having primary physical custody of the minor child and defendant having secondary custody in the form of visitation.\nSome time after the 1997 order, defendant remarried and purchased a home in Clayton, North Carolina. Plaintiff began corresponding with Davis Chung, a Virginia resident she met through a Christian Internet chat room. Plaintiff and Chung were later engaged to marry. Plaintiff planned to relocate to Virginia with the minor child, but has not yet moved.\nOn 5 June 2000, defendant filed a Motion to Modify Child Custody alleging that plaintiff was engaged to marry Davis Chung, a convicted child sex offender, and that she intended to relocate to Virginia with the parties\u2019 minor child.\nOn 13 November 2000, the trial court entered an order granting defendant\u2019s motion to modify and placing the minor child in his custody. From this order, plaintiff appeals.\nAt the outset, we note that plaintiff appeals from a child custody and support order that does not address her claims for alimony or equitable distribution. Thus based on the record before us, this appeal would appear to be interlocutory, since the order appealed from does not resolve all of the parties\u2019 claims arising out of this action. See generally, Embler v. Embler, 143 N.C. App. 162, 545 S.E.2d 259 (2001); Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377 (1950). An immediate appeal from an interlocutory order will only lie where (1) the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to N.C.G.S. \u00a7 1A-1, Rule 54(b); or (2) when the challenged order affects a substantial right that may be lost without immediate review. Flitt v. Flitt, 149 N.C. App. 475, 561 S.E.2d 511 (2002). Whether an interlocutory appeal affects a substantial right is determined on a case by case basis. McCallum v. North Carolina Coop. Extensive Serv. of N.C. State Univ., 142 N.C. App. 48, 542 S.E.2d 227 (2001). The burden to establish that a substantial right will be affected unless he is allowed immediate appeal from an interlocutory order is on the appellant. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 444 S.E.2d 252 (1994).\nIn the case sub judice, the trial court did not certify the case for immediate appeal pursuant to Rule 54, and thus we must determine whether the order appealed from affects a substantial right. \u201cA substantial right is \u2018one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.\u2019 \u201d Turner v. Norfolk S. Corp., 137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000) (citations omitted). Our Supreme Court, in Oestreicher v. Stores, 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976), defined a substantial right as \u201ca right materially affecting those interests which a man is entitled to have preserved and protected by law: a material right.\u201d This appeal arises from an order modifying a permanent custody order for a minor child. Our Courts have not addressed whether a permanent custody order affects a substantial right. However, the order in this case involves the removal of the child from a home where the court specifically concluded \u201cthat there is a direct threat that the child is subject to sexual molestation if left in the mother\u2019s home.\u201d Where as here, the physical well being of the child is at issue, we conclude that a substantial right is affected that would be lost or prejudiced unless immediate appeal is allowed. Accordingly, we will address the merits of this appeal.\nAlthough plaintiff sets forth several assignments of error in her brief, the dispositive issue on appeal is whether the trial court erred in modifying the 1997 custody order. Plaintiff specifically argues that (1) there was insufficient evidence presented to establish a substantial change of circumstances; (2) the court in its order failed to make a specific finding of fact that a substantial change of circumstance that \u201caffects the welfare of the child\u201d had occurred; and (3) the court\u2019s findings of fact do not support its conclusions of law. We disagree.\nIt is well settled that the trial court is vested with broad discretion in child custody cases. Henderson v. Henderson, 121 N.C. App. 752, 468 S.E.2d 454 (1996). The decision of the trial court should not be upset on appeal absent a clear showing of abuse of discretion. Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546 (1981). \u201cFindings of fact by a trial court must be supported by substantial evidence.\u201d Browning v. Helff, 136 N.C. App. 420, 423, 524 S.E.2d 95, 97-98 (2000) (citation omitted). Substantial evidence has been defined as \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Union Transfer and Storage Co. Inc. v. Lefeber, 139 N.C. App. 280, 533 S.E.2d 550 (2000). \u201cA trial court\u2019s findings of fact in a bench trial have the force of a jury verdict and are conclusive on appeal if there is evidence to support them.\u201d Browning, 136 N.C. App. at 423, 524 S.E.2d at 98. However, the trial court\u2019s conclusions of law must be reviewed de novo. Id.\nIn the case sub judice, plaintiff does not assign error or except to any of the court\u2019s findings. Where no error is assigned to the findings of fact, such findings are presumed to be supported by competent evidence and are binding on appeal. Anderson Chevrolet/Olds v. Higgins, 57 N.C. App. 650, 292 S.E.2d 159 (1982) (citations omitted); see also Baker v. Log Systems, Inc., 75 N.C. App. 347, 350-51, 330 S.E.2d 632, 635 (1985) (where appellant does not bring forth exceptions in his brief to certain findings of the trial court, he is deemed to have abandoned them under N.C.R. App. R 28(b)(5)). The court\u2019s findings in this case are therefore conclusive on appeal. Thus, we must determine whether these findings support the trial court\u2019s conclusions of law.\nA court order for custody of a minor child \u201cmay be modified . . . at any time, upon motion in the cause and a showing of changed circumstances ...\u201d pursuant to N.C.G.S. \u00a7 50-13.7(a) (2001). Our Supreme Court has held that a custody order may not be modified until the movant establishes that a substantial change in circumstances exists which affects the welfare of the minor child. Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998). The required change in circumstances need not have adverse effects on the child. Id. \u201cThe court need not wait for any adverse effects on the child to manifest themselves before the court can alter custody.\u201d Evans v. Evans, 138 N.C. App. 135, 140, 530 S.E.2d 576, 579 (2000). \u201cIt is neither necessary nor desirable to wait until the child is actually harmed to make a change in custody.\u201d Id. (citations omitted). Moreover, \u201ca showing of a change in circumstances that is, or is likely to be, beneficial to the child may also warrant a change in custody.\u201d Pulliam, 348 N.C. at 620, 501 S.E.2d at 900.\nOnce the movant has shown a substantial change in circumstances affecting the welfare of the minor child, the trial court must determine whether a change in custody is in the best interest of the child. Id. at 619, 501 S.E.2d at 899. Our Supreme Court has previously held that \u201cthe welfare of the child has always been the polar star which guides the courts in awarding custody.\u201d Id. (citation omitted).\nThe trial court made the following pertinent findings of fact in support of its determination that substantial changed circumstances existed to modify the child custody order:\n20. Since the entry of the 1997 Custody Order, the Plaintiff met Mr. Davis Chung through a Christian Internet chat room in May of 1999.\n22. Since meeting in July of 1999, the Plaintiff and Mr. Chung have fallen in love, are engaged and plan to marry.\n23. Mr. Chung was convicted in the state courts of the Commonwealth of Virginia in May of 1995 of Indecent Liberties With a Minor Child, was sentenced to 4 years in prison and was paroled after approximately 20 months.\n24. The minor child, who was the victim of Mr. Chung\u2019s crime, was at the time a 14 year old female who was in Mr. Chung\u2019s charge as he was a teacher in the public schools of the Commonwealth of Virginia, also serving as a coach and a counselor at a girl\u2019s summer camp.\n25. There is believable evidence before the Court that Mr. Chung has admitted to others that the 14 year old of whom he was convicted of molesting was not his only victim.\n28. The Court further finds that there has been no evidence that the minor child of the parties is under any danger of being sexually molested in the Father\u2019s home by either the Father or the Father\u2019s current wife.\n29. The Court finds that the Plaintiff after learning of Mr. Davis Chung\u2019s past history refused to disclose Mr. Chung\u2019s history to the Defendant.\n30. The Plaintiff was urged by her brothers, given the past history of sexual molestation in their family, to disclose Mr. Chung\u2019s past to the Defendant and the Plaintiff continued to refuse.\n31. The Defendant only learned of Mr. Chung\u2019s past convictions of sexual molestation through the Plaintiff\u2019s brothers who made the disclosure to the Defendant.\n32. The Court specifically finds that the minor child in question is by observation of the Court as well as by the stipulation by all the parties, an attractive young female who is 14 years of age and will be 15 years of age in 11 days, who has taken modeling classes and is an aspiring model.\n33. The Court finds that Mr. Davis Chung, again forthrightly and candidly informs the Court that he continues to battle inappropriate urges toward post-pubescent teenage girls.\n35. The Court further finds as a fact that as Mr. Chung has again forthrightly testified, that should this Court leave custody in the mother\u2019s home, Mr. Chung will unavoidably at times be left unsupervised with the minor child.\n36. The Court finds that Mr. Chung has already transported the juvenile unsupervised on at least two occasions in an automobile from a teen club in Moore County to her home, that these automobile rides took place some time between midnight and 12:30 a.m.\n37. Since meeting Mr. Chung personally in July of 1999, Plaintiff has spent the night in Mr. Chung\u2019s home and Mr. Chung has spent the night in Plaintiff\u2019s home with the minor child present and that the parties acknowledge sleeping with one another.\n38. The Court finds that the Plaintiffs plan in addition to marrying Mr. Chung is to move with the minor child to Mr. Chung\u2019s grandparents [sic] farm.\n47. The Court specifically finds as a fact that this Court cannot find that it is in the child\u2019s best interest to place the child in a home where the Mother\u2019s fianc\u00e9e and potential husband with whom she sleeps in the same house on occasion and plans to marry is a person convicted of sexually molesting 14 year old females and the minor child under consideration is a 14 year old attractive female and where the Mother\u2019s fiancee forthrightly and candidly admits that he is still subject to inappropriate urges towards post pubescent female children and further where Mother\u2019s background is one of coming from a home of which her brothers were sexually abused and her mother was an enabler of the sexual abuse of the brothers and mother has refused to disclose Mr. Chung\u2019s background to the Defendant and that this matter only came to light through the efforts of the Plaintiff\u2019s brothers.\nWhile this Court has held that remarriage or relocation alone are insufficient to justify a modification based on changed circumstances, Kelly v. Kelly, 77 N.C. App. 632, 335 S.E.2d 780 (1985), this case involves much more. Here, plaintiff had indicated her intention to marry an individual who has admitted and been convicted of molesting a 14 year old female. More importantly, plaintiff\u2019s fianc\u00e9e admits to continued sexual urges for postpubescent females. The minor child in the case sub judice \u201cis a 14 year old attractive female.\u201d The court found that the child has been left alone in the care of plaintiff\u2019s fianc\u00e9e in the past and will likely be left under his supervision in the future. These findings support the trial court\u2019s conclusion that circumstances have changed since the 1997 order to justify a modification.\nMoreover, we conclude that the order sufficiently sets forth how this changed circumstance \u201caffects the welfare of the minor child.\u201d The court concluded \u201cthat there is a direct threat that the child is subject to sexual molestation in this mother\u2019s home.\u201d The court is not required to wait for adverse effects to manifest themselves or harm to come to the minor before it can alter custody. Though plaintiff relies on Brewer v. Brewer, 139 N.C. App. 222, 533 S.E.2d 541 (2000) and Browning v. Helff, 136 N.C. App. 420, 524 S.E.2d 95 (2000), for the proposition that the court must make specific findings as to any effect a change in circumstance has on the welfare of the child, we do not read Brewer or Browning to require that the court use specific language in its order. Rather, the order must demonstrate that the court has considered the effect on the child\u2019s welfare, which was clearly done here.\nWe hold that the trial court\u2019s findings support its conclusion, that a change of circumstances affecting the welfare of the child had occurred to justify modification of the order. Moreover, we hold that the court did not abuse its discretion in concluding that it was in the child\u2019s best interest to award custody to defendant.\nAccordingly, the trial court\u2019s order is\nAffirmed.\nJudge GREENE dissents.\nJudge HUDSON concurs.\n. Though not applicable to the present case, effective 31 October 2001, N.C.R. App. P. 28(b)(4) requires that when an appeal is interlocutory, appellant\u2019s brief must include a statement to support appellate review when the appeal is based on the existence of a substantial right.\n. Our Courts have generally held that interlocutory orders in domestic cases that implicate only financial repercussions do not affect a substantial right. Embler v. Embler, 143 N.C. App. at 166, 545 S.E.2d at 262.",
        "type": "majority",
        "author": "BIGGS, Judge."
      },
      {
        "text": "GREENE, Judge,\ndissenting.\nBecause I believe plaintiff\u2019s appeal is interlocutory and therefore must be dismissed, I dissent.\nA party may not immediately appeal an interlocutory order unless: (1) the trial court has entered a final order as to one or more but fewer than all of the claims or parties and has certified that there is no just reason to delay an appeal or (2) the \u201c \u2018order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.\u2019 \u201d See Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994) (citation omitted). In either situation, the burden is on the appellant to present an argument in her brief to this Court to support the acceptance of the appeal. Id.\nIn this case, the appeal is interlocutory as no final judgment exists on plaintiff\u2019s claims for alimony or equitable distribution. See Embler v. Embler, 143 N.C. App. 162, 165, 545 S.E.2d 259, 262 (2001) (an equitable distribution order explicitly leaving open the issue of alimony is interlocutory). While the trial court\u2019s judgment constitutes a final adjudication of the custody issue, the trial court did not certify the order pursuant to Rule 54(b). Furthermore, plaintiff presents no argument in her brief to this Court that the judgment affects a substantial right. Accordingly, I would dismiss plaintiffs appeal as interlocutory. See Embler, 143 N.C. App. at 167, 545 S.E.2d at 263.\n. The majority has constructed an argument for plaintiff that the appeal affects a substantial right which would be jeopardized absent immediate appellate review. I disagree with that construct. There is no indication in the record to this Court that the child\u2019s well-being is in any danger while she is in defendant\u2019s custody. Indeed, the trial court specifically concluded there was no evidence \u201cthe child is under any threat of [sexual] molestation in [defendant\u2019s] home.\u201d Even so, this Court has specifically stated that a temporary custody order is interlocutory and \u201cdoes not affect any substantial right... which cannot be protected by timely appeal from the trial court\u2019s ultimate disposition of the entire controversy on the merits.\u201d Dunlap v. Dunlap, 81 N.C. App. 675, 676, 344 S.E.2d 806, 807, disc. review denied, 318 N.C. 505, 349 S.E.2d 859 (1986). I see no reason to distinguish the interlocutory nature of temporary custody orders from the interlocutory nature of final custody determinations. While I acknowledge the importance of prompt appellate review of child custody orders, I also see the importance of prompt appellate review of temporary custody, alimony, and equitable distribution cases. Thus, absent some special facts, which do not exist in this case on this record, there can be no basis for differentiating between these domestic claims in the context of whether they affect a substantial right.\nIn the context of current law which labels an appeal as interlocutory if there are other claims asserted in the complaint that have not been resolved, a party seeking to assert multiple claims, i.e. equitable distribution and alimony, might better be served by not joining them into the same complaint. If this is done, resolution of a single claim would constitute a final order and be ripe for immediate appeal. If multiple claims are joined into one complaint and only one claim is fully and finally resolved, the trial court could be petitioned to issue a Rule 54(b) certification thus clearing the claim for immediate appellate review. Certification should be issued unless there is some \u201cjust reason\u201d to delay the appeal. N.C.G.S. \u00a7 1A-1, Rule 54(b) (2001).",
        "type": "dissent",
        "author": "GREENE, Judge,"
      }
    ],
    "attorneys": [
      "Law Firm of Richard J. Costanza, by Hal Morris, for plaintiff.",
      "Robbins, May & Rich, LLP, by P. Wayne Robbins, for defendant."
    ],
    "corrections": "",
    "head_matter": "SUSAN McCONNELL, Plaintiff v. NACY McCONNELL, Defendant\nNo. COA01-1009\n(Filed 6 August 2002)\n1. Appeal and Error\u2014 appealability \u2014 child custody \u2014 safety of child\nA substantial right was affected and an interlocutory appeal was heard where plaintiff appealed from a child custody and support order that did not address claims for alimony or equitable distribution but the physical well being of the child was at issue.\n2. Child Support, Custody, and Visitation\u2014 findings \u2014 no assignment of error or exception \u2014 conclusive\nThe trial court\u2019s findings were conclusive on appeal in a child custody action where plaintiff did not assign error or except to any of the court\u2019s findings.\n3. Child Support, Custody, and Visitation\u2014 custody \u2014 changed circumstances \u2014 remarriage to convicted molester\nAn order changing the custody of a child was justified by a change of circumstances, and the court did not abuse its discretion in concluding that it was in the child\u2019s best interest to change custody to defendant, where plaintiff indicated her intention to marry a man convicted of molesting a 14 year old female and who admitted to continued sexual urges for postpubescent females.\n4. Child Support, Custody, and Visitation\u2014 custody \u2014 changed circumstances \u2014 effect on the child\nAn order changing child custody sufficiently set forth changed circumstances affecting the welfare of the child where there was a direct threat of sexual molestation. The order must demonstrate consideration of the effect on the child\u2019s welfare, which was clearly done here, but the court is not required to wait for the adverse effects to manifest themselves or for harm to come to the minor before it can alter custody.\nJudge Greene dissenting.\nAppeal by plaintiff from judgment entered 13 November 2000 by Judge V. Bradford Long in Moore County District Court. Heard in the Court of Appeals 21 May 2002.\nLaw Firm of Richard J. Costanza, by Hal Morris, for plaintiff.\nRobbins, May & Rich, LLP, by P. Wayne Robbins, for defendant."
  },
  "file_name": "0622-01",
  "first_page_order": 652,
  "last_page_order": 661
}
