{ "id": 4347829, "name": "NEAL B. WOLGIN, Plaintiff v. ELIZABETH HESLIP WOLGIN, Defendant", "name_abbreviation": "Wolgin v. Wolgin", "decision_date": "2011-12-06", "docket_number": "No. COA11-148", "first_page": "278", "last_page": "290", "citations": [ { "type": "official", "cite": "217 N.C. App. 278" } ], "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": "611 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632675 ], "year": 2005, "pin_cites": [ { "page": "460", "parenthetical": "Disagreements alone do not support a substantial change in circumstance. The trial court must make \"specific findings of instances where the parties' failure to communicate subsequent to the prior custody order had affected the welfare of the child.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/611/0456-01" ] }, { "cite": "647 S.E.2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638968 ], "year": 2007, "pin_cites": [ { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/se2d/647/0628-01" ] }, { "cite": "501 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "899" } ], "opinion_index": 0 }, { "cite": "348 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659910 ], "year": 1998, "pin_cites": [ { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0616-01" ] }, { "cite": "173 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "548" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 25", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548646 ], "year": 1970, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0025-01" ] }, { "cite": "232 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "472", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 482", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551580 ], "year": 1977, "pin_cites": [ { "page": "483", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0482-01" ] }, { "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": "248" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0244-01" ] }, { "cite": "170 N.C. App. 89", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9004318 ], "year": 2005, "pin_cites": [ { "page": "93", "parenthetical": "Disagreements alone do not support a substantial change in circumstance. The trial court must make \"specific findings of instances where the parties' failure to communicate subsequent to the prior custody order had affected the welfare of the child.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0089-01" ] }, { "cite": "478 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "658", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890554 ], "year": 1996, "pin_cites": [ { "page": "729", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0724-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "586 S.E.2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2003, "pin_cites": [ { "page": "253" }, { "page": "253", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "255" }, { "page": "255" }, { "page": "256" } ], "opinion_index": 0 }, { "cite": "357 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491698 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "474" }, { "page": "473" }, { "page": "478" }, { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0471-01" ] }, { "cite": "185 N.C. App. 18", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8208383 ], "year": 2007, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0018-01" ] }, { "cite": "367 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "90 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522291 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/90/0072-01" ] }, { "cite": "340 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "387", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "315 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715095 ], "year": 1986, "pin_cites": [ { "page": "562", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0556-01" ] }, { "cite": "533 S.E.2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "490" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496763 ], "year": 2000, "pin_cites": [ { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0370-01" ] }, { "cite": "486 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "737" }, { "page": "804" }, { "page": "738", "parenthetical": "\"the full time, N.C.R. App. P. 3(c), for appeal as to both the original judgment and denial of the motion commenced to run and [must] be computed from the entry of [the trial court's] order [.]\" (internal citations omitted)" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 800", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713506 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "803" }, { "page": "804" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0800-01" ] }, { "cite": "184 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "881" } ], "opinion_index": 0 }, { "cite": "280 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569959 ], "year": 1971, "pin_cites": [ { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0106-01" ] } ], "analysis": { "cardinality": 1040, "char_count": 27474, "ocr_confidence": 0.744, "pagerank": { "raw": 7.028831041558008e-08, "percentile": 0.4240438342158172 }, "sha256": "8a779c2c2ba1288820d8bf061944ad4d565bf809ceeaf28644b1f312b5f6c3c3", "simhash": "1:872b90227f4efd75", "word_count": 4455 }, "last_updated": "2023-07-14T22:07:22.966851+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and GEER concur." ], "parties": [ "NEAL B. WOLGIN, Plaintiff v. ELIZABETH HESLIP WOLGIN, Defendant" ], "opinions": [ { "text": "BEASLEY, Judge.\nDefendant appeals the trial court\u2019s orders modifying physical custody and denying her Rule 59 Motion for a New Trial. For the following reasons, we affirm.\nOn 19 April 2007, the trial court entered a consent order for permanent custody awarding joint legal custody with primary physical custody to Defendant and secondary physical custody to Plaintiff. On May 13 2009, Plaintiff filed a motion to modify the 2007 permanent custody order (2007 order). Following a two-day hearing, the trial court entered an order modifying the 2007 order, and awarded primary physical custody to Plaintiff on 4 May 2010. On 14 May 2010, Defendant filed a Motion for a New Trial pursuant to N.C. Rules of Civil Procedure Rule 59. Before the trial court entered a written order on Defendant\u2019s Motion for a New Trial on 23 July 2010, Defendant filed notice of appeal from the custody order. On 8 September 2010, the trial court entered a written order denying Defendant\u2019s Motion for a New Trial and Defendant filed notice of appeal from the trial court\u2019s denial of her Motion for a New Trial that same day.\nBefore we address Defendant\u2019s appeal on its merits, we are required to determine whether our Court properly has jurisdiction in this matter.\nPursuant to N.C. Rules of Appellate Procedure Rule 3(c), when a party enters notice of appeal in civil actions,\na party must file and serve a notice of appeal:\n(2) within thirty days after service upon the party of a copy of the judgment if service was not made within that three day period; provided that\n(3) if a timely motion is made by any party for relief under Rule[] ... 59 of the Rules of Civil Procedure, the thirty day period for taking appeal is tolled as to all parties until entry of an order disposing of the motion and then runs as to each party from the date of entry of the order or its untimely service upon the party. . . .\nAdditionally, our Supreme Court has held that\nthe general rule is that when an appeal is taken from the district court the latter court is divested of jurisdiction, except to take action in aid of the appeal, until the case is remanded to it by the appellate court. Hence during the pendency of an appeal it is generally held that the district court is without power to grant relief under Rule 59 [.]\nWiggins v. Bunch, 280 N.C. 106, 111, 184 S.E.2d 879, 881 (1971). Generally, \u201c[t]his Court is without authority to entertain appeal of a case which lacks entry of judgment.\u201d Abels v. Renfro Corp., 126 N.C. App. 800, 803, 486 S.E.2d 735, 737 (1997). A judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court. N.C. Gen. \u00a7 1A-1, Rule 58 (2009). In Abels, our Court announced an exception to this general rule which applies when judgments are rendered, but have not yet been entered. \u201c[W]e believe rendering of an order commences the time when notice of appeal may be taken by filing and serving written notice[.]\u201d Id. at 804, 486 S.E.2d at 738 (citing N.C.R. App. P. 3 (c)).\nWhen Defendant sub judice, filed the Motion for a New Trial pursuant to Rule 59, the time for filing notice of appeal was tolled. Defendant first entered notice of appeal on 23 July 2010, after the trial court orally denied the motion on 22 July 2010, but before the trial court entered its written judgment on the motion. Though the trial court rendered its oral judgment on 22 July 2010, the entry of the notice of appeal on 23 July 2010 from the order entered 4 May 2010 preserved this issue for appellate review pursuant to Abels. Also, Defendant gave notice of appeal from the order denying the Rule 59 Motion on 8 September 2010, the same day that the written order denying of the Rule 59 Motion was entered, and this appeal is also properly preserved. See Abels, 126 N.C. App. at 804, 486 S.E.2d at 738 (\u201cthe full time, N.C.R. App. P. 3(c), for appeal as to both the original judgment and denial of the motion commenced to run and [must] be computed from the entry of [the trial court\u2019s] order [.]\u201d (internal citations omitted)). We now address the appeal on its merits.\nWhen the trial court entered the 2007 Order, both parties and the minor children resided in Durham County. In 2007, Hannah, five-years-old, was in kindergarten at Creekside Elementary in Durham and David, two-years-old, was in pre-school at Greenwood School in Durham. On 9 May 2009, Defendant remarried and she and the children relocated to Wake County. In April 2009, Defendant enrolled the children at Laurel Park Elementary School, a year-round school in Wake County, which was set to begin on 7 July 2009. Plaintiff objected to the transfer and sought to keep the children enrolled in the Durham County Public School System. The parties corresponded several times concerning Defendant\u2019s relocation and her wish to change the children\u2019s school. The parties could not reach an amicable agreement. Subsequently, in May 2009, Defendant filed a \u201cRequest for Transfer\u201d to remove the children from the Durham County Public School System to enroll them in the Wake County Public School System. Defendant did not inform Plaintiff that she filed the \u201cRequest for Transfer\u201d, though she had several e-mail discussions with him prior to enrolling the children.\nOn 13 May 2009, Plaintiff filed a motion to modify child custody, for appointment of a parenting coordinator, and for a preliminary injunction. In the motion, Plaintiff argued, inter alia, that Defendant\u2019s unilateral decision to enroll the children in a Wake County Public School warranted a modification of the 2007 Order. After a two-day hearing, the trial court entered a modification of the 2007 Order by written order entered 4 May 2010 (2010 Order), which changed Defendant\u2019s status as primary physical custodian and awarded both parties shared physical custody.\nDefendant raises several issues on appeal and we address each in turn.\nI. Rule 59 Motion for New Trial\nFirst, Defendant contends that the trial court abused its discretion by denying her Motion for a New Trial, which urged the court to re-open the evidence and allow Defendant to complete her testimony because the trial court placed arbitrary time limits on the presentation of evidence. We disagree.\nIt is well settled that \u201ca motion for new trial is addressed to the sound discretion of the trial court, and its ruling will not be disturbed absent a manifest abuse of that discretion.\u201d Kinsey v. Spann, 139 N.C. App. 370, 372, 533 S.E.2d 487, 490 (2000). Similarly, \u201cthe manner of the presentation of evidence is a matter resting primarily within the discretion of the trial judge, [and] his control of the case will not be disturbed absent a manifest abuse of discretion.\u201d State v. Harris, 315 N.C. 556, 562, 340 S.E.2d 383, 387 (1986) (citations omitted). Pursuant to N.C. Gen Stat. \u00a7 8C-1, Rule 611(a) (2009), the trial court has the authority to\nexercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.\nHere, the trial court did not arbitrarily impose limitations on the presentation of evidence where (1) the length of the trial was discussed at pre-trial conferences and both parties agreed to a two-day trial; (2) the court made inquiry concerning the ability of both parties to present evidence within a two-day time frame and neither party objected during pre-trial conferences; (3) the court made several references to the time constrictions during the trial; and (4) at the close of Defendant\u2019s evidence, Defendant made no objection to time limits enforced by the trial court on the second day of trial.\nDefendant relies on Mishler v. Mishler, 90 N.C. App. 72, 367 S.E.2d 385 (1988), to support her argument that the two-day trial limit was erroneous. Although Mishler addresses the court\u2019s authority to limit the presentation of evidence, the case sub judice is distinguishable.\nIn Mishler, our Court, in an equitable distribution case, held that the trial court erred where it limited the plaintiff\u2019s testimony as well as defendant\u2019s cross examination of the plaintiff on the issue of personal debt. Id. Unlike Mishler, the trial court sub judice, was presented with adequate evidence to make a determination as to whether modification of the custody order was appropriate. Therefore, Defend-ant\u2019s reliance on Mishler is not persuasive and we conclude the trial court did not abuse its discretion by designating two days for trial. This argument is overruled.\nDefendant also asserts that the trial court erred by refusing to review tall of the evidence. There is no merit to Defendant\u2019s argument.\nRule 403 of the North Carolina Rules of Evidence states, \u201c[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2009). \u201cThe exclusion of evidence under Rule 403 is a matter left to the sound discretion of the trial judge, and we will reverse a Rule 403 decision of the trial court only when the decision is arbitrary or unsupported by reason.\u201d State v. Brockett, 185 N.C. App. 18, 23, 647 S.E.2d 628, 633 (2007).\nAt trial, Defendant introduced Exhibits 13 and 14 which consisted of 562 e-mail correspondences. Defendant contends that the trial court\u2019s express admission that it would not review each e-mail is an abuse of the court\u2019s discretion. The trial court accepted the exhibits into evidence but admitted that while it would not read each e-mail introduced into evidence, it would give the e-mails \u201cdue consideration.\u201d The trial court further clarified its position by stating, \u201cI will be able to ascertain the tone and tenor by looking at a representative portion of the e-mails so don\u2019t think I\u2019m not going to look at them at all.\u201d Here, the trial court properly exercised its authority to limit the presentation of cumulative evidence. Accordingly, the trial court did not abuse its discretion by reviewing a representative portion of the e-mail correspondences and Defendant\u2019s argument is overruled.\nII. Custody Modification Order\nNext, Defendant contends that \u201cthe trial court committed reversible error in relying on continual disagreements between the parties to change physical custody provisions of a permanent custody order from primary physical to 50-50 when the parties already had joint legal custody.\u201d Defendant further argues that the trial court failed to make a determination as to \u201cwhether and how the disagreements affect the welfare of the children.\u201d We disagree.\nOur Supreme Court has held that \u201ctrial courts are vested with broad discretion in child custody matters.\u201d Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003). \u201cWhen reviewing a trial court\u2019s decision to grant or deny a motion for the modification of an existing child custody order, the appellate courts must examine the trial court\u2019s findings of fact to determine whether they are supported by substantial evidence.\u201d Id. \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980). \u201c[T]he trial court\u2019s findings of fact are conclusive if there is evidence to support them, even though the evidence might sustain a finding to the contrary.\u201d Raynor v. Odom, 124 N.C. App. 724, 729, 478 S.E.2d 655, 658 (1996) (citations omitted).\n\u201cIt is well established in this jurisdiction that a trial court may order a modification of an existing child custody order between two natural parents if the party moving for modification shows that a substantial change of circumstances affecting the welfare of the child warrants a change in custody.\u201d Shipman, 357 N.C. at 473, 586 S.E.2d at 253 (internal quotation marks and citations omitted). Generally, there must be evidence establishing a \u201cnexus\u201d between the changes and the welfare of the minor child. Id. at 478, 586 S.E.2d at 255.\nDefendant asserts that the trial court erred in making Finding of Fact 16(B) which states,\n[t]he 2007 Order contemplated that the parties would be able to work out disagreements related to the children through co-parenting therapy. This has proven not to be true, and decisions regarding the children have not been made as a result, or the Defendant has made decisions unilaterally by default. As a result, Defendant unilaterally chose the children\u2019s current school, Hannah is still not in therapy, the children have missed celebrations of important Jewish holidays, and Hannah and David are attending dance and soccer at locations that are not conducive to Plaintiff\u2019s involvement, all of which affect the welfare of the minor children.\nDisagreements \u201calone\u201d between the parties, even with the appointment of a co-parenting therapist, do not constitute a substantial change in circumstances. See Ford v. Wright, 170 N.C. App. 89, 93, 611 S.E.2d 456, 460 (2005) (Disagreements alone do not support a substantial change in circumstance. The trial court must make \u201cspecific findings of instances where the parties\u2019 failure to communicate subsequent to the prior custody order had affected the welfare of the child.\u201d), (emphasis added).\nDefendant argues that because the trial court found in Finding of Fact Number 16(B), that the parties had disagreements which impacted the children and Defendant made unilateral decisions, the trial court changed custody to punish Defendant. Defendant\u2019s argument is meritless.\nChild custody cannot be used as a tool to punish an uncooperative parent. Standing alone, such interference would normally only warrant a contempt citation. However, where, as here, such interference becomes so pervasive as to harm the child\u2019s close relationship with the noncustodial parent, there can be a conclusion drawn that the actions of the custodial parent show a disregard for the best interests of the child, warranting a change of custody.\nWoncik v. Woncik, 82 N.C. App. 244, 248, 346 S.E.2d 277, 279 (1986).\nThe trial court did not merely consider the parties\u2019 disagreements but also considered the effect of those disagreements on the children and their well-being. Defendant fails to challenge Finding of Fact 7 which states that \u201c[t]he'parties have agreed that they shall discuss with each other all major decisions concerning the Minor Children and that they will engage the services of a co-parenting therapist to help them with such decisions, including, but not limited to school issues, health issues, and unusual schedule changes.\u201d\nDefendant also does not challenge Finding of Fact 15(D) which provides:\nOn May 15,2009, the Defendant filed a Request for Transfer for each of the minor children with the Wake County Public School System. The Defendant did not advise the Plaintiff in advance of her filing of said document and, in fact, she waited until after the transfer had been granted to inform Plaintiff of same. In these Requests for Transfer documents, and accompanying letter, Defendant listed six potential schools in rank order of her preference. ...\nThe trial court also found in Finding of Fact 15(E) that rather than directly discussing Plaintiffs preference with him that the children attend school in Durham,\n[t]he Defendant, through counsel, contacted the Durham County Office of Student Assignment on or about April 1, 2009, and requested that said Office notify her if the Plaintiff applied for a transfer of the children to the Creekside Elementary School attendance zone, indicating that she intended to enroll the children in Wake County Schools. She specifically requested that she be permitted to submit information in opposition to any such application of the Plaintiff.\nThe Defendant did not discuss her request with Plaintiff in advance of her submission, and had not mentioned two of the schools to Plaintiff as schools she was considering.\nThe trial court, in making these findings of fact, not only considered Defendant\u2019s failure to discuss her selection of the children\u2019s new school with Plaintiff, but in Findings of Fact 15 (I), (J), and (K), the trial court found that the change in school had a detrimental effect on Hannah\u2019s social adjustment, as her teachers at Creekside had begun to successfully address improvements in Hannah\u2019s social interaction with her peers.\nIn Finding of Fact 15 (L), the trial court found that the therapist, llene Sperling, informed the parties that\n\u201c[t]he themes of [Hannah\u2019s] difficulties are related to the lack of communication between you both as parents and the challenges you are experiences [sic] with navigating custody issues and parenting together. The ability for you both to begin to resolve your communication together enough to create a custody agreement that you both support and agree on will help to remove Hannah from her questions and feelings of being in between parental conflict. ...\u201d However the Defendant ultimately changed her mind by March of 2009 and decided that llene Sperling was not qualified to provide therapy for Hannah. Plaintiff maintained that Hannah needed and would benefit from therapy. Hannah has never returned to therapy since the parties have not been able to agree on how to address this issue.\nClearly, the trial court did not conclude that a substantial change of circumstances existed merely because of the parties\u2019 disagreements, but instead found that the parties\u2019 disagreements had a profound effect on Hannah\u2019s mental health by Defendant\u2019s refusal to allow a therapist to address Hannah\u2019s mental health needs.\nFurther, as a result of the parties\u2019 inability to effectively communicate for the benefit of the children\u2019s welfare, the trial court found in Findings of Fact 15 (N), (O), (P), and (Q), that this inability hindered the children\u2019s religious growth. While\nthe trial court cannot base its findings on the preferability [sic] of any particular faith or religious instruction, . . . [t]he welfare of the child is the paramount consideration which must guide the Court in exercising this discretion. Thus, the trial judge\u2019s concern is to place the child in an environment which will best promote the full development of his physical, mental, moral and spiritual faculties....\nDean v. Dean, 32 N.C. App. 482, 483, 232 S.E.2d 470, 472 (1977) (internal quotation marks and citations omitted).\nThe children\u2019s lack of participation in holiday celebrations was not a change of circumstances from the 2007 Order. The schedule from the 2007 Order awarded Defendant physical custody during the specified holidays. However, while there was no actual change in circumstances from the 2007 Order as to Plaintiff\u2019s religious observances in Finding of Fact 15 (N), in conjunction with Findings of Fact 15 (O) and (P) which consider the children\u2019s \u201cincreased age\u201d and ability \u201cto more fully participate in and understand [religious] activities\u201d and \u201c[t]he parties\u2019 inability to cooperate to change their schedule\u201d to accommodate religious observances, the substantial change in circumstances is supported by the evidence.\nThe trial court further found in Finding of Fact 15(T) that the children\u2019s participation in extracurricular activities at locations that were inconvenient for Plaintiff constituted a substantial change in circumstances that affect the welfare of the children. We agree.\nWe have held that \u201c[t]he welfare of the children is the determining factor in the custody proceedings!.]\u201d In re Poole, 8 N.C. App. 25, 29, 173 S.E.2d 545, 548 (1970). In Shipman, our Supreme Court held that \u201cbefore a child custody order may be modified, the evidence must demonstrate a connection between the substantial change in circumstances and the welfare of the child, and flowing from that prerequisite is the requirement that the trial court make findings of fact regarding that connection.\u201d Shipman, 357 N.C. at 478, 586 S.E.2d at 255. The general rule is applied unless the substantial change of circumstances are determined to be self-evident. Id.\nIn choosing the location of extracurricular activities, the trial court found,\n[s]ince her relocation to Wake County, the Defendant has enrolled Hannah in dance and David in soccer in Wake County without first discussing this with the Plaintiff or soliciting his input. As a result, the children are attending these activities at locations which are even further from the Plaintiff\u2019s home than the Defendant\u2019s home or their school. When Plaintiff asked the Defendant whether she would consider a location which would work better for him, she informed him that she had already done all of the research and these were the most viable options.\nAs the trial court had, in its 2007 Order, considered that visitation with Plaintiff was in the children\u2019s best interest, the fact that Defendant was unyielding in determining the location and time of extracurricular activities focuses on the inconvenience to Plaintiff only to the extent that Plaintiff\u2019s time spent with the children would necessarily be curtailed (i.e., for Plaintiff\u2019s travel time to the event). As the children benefit from time spent with Plaintiff, the trial court properly determined that Defendant\u2019s arrangements are not in the best interest of the children.\nIn Defendant\u2019s final argument, she contends that the trial court committed reversible error by considering legally improper factors to support its conclusion that a change of the physical custody provisions of the permanent custody order were warranted. We disagree.\nOur Court has not set out \u201cpermissible factors\u201d in determining whether there has been a substantial change in circumstances warranting a modification of a custody order, as Defendant suggests. Instead, we have held:\ncourts must consider and weigh all evidence of changed circumstances which affect or will affect the best interests of the child, both changed circumstances which will have salutary effects upon the child and those which will have adverse effects upon the child.\nPulliam v. Pulliam, 348 N.C. 616, 619, 501 S.E.2d 898, 899 (1998).\nDefendant argues that the trial court\u2019s consideration of factors such as her relocation and remarriage, a party\u2019s continued fitness, and the children\u2019s school transfer are \u201cimpermissible factors.\u201d Our case law does not support this argument. In Shipman, our Supreme Court announced several factors that can be considered in determining whether a substantial change of circumstances has occurred. Factors include, but are not limited to (1) \u201ca move on the part of a parent\u201d; (2) the remarriage of a parent; (3) \u201ca parent\u2019s cohabitation\u201d; and (4) a child\u2019s mental health. Shipman, 357 N.C. at 478, 586 S.E.2d at 256. Moreover, our Courts have broad discretion, as stated in Pulliam, in weighing evidence that may impact the welfare of minors. We reject the notion that the trial court should have been restricted to certain \u201cpermissible factors\u201d in its determination. Therefore, we conclude there was no error as to the factors that the trial court used to make its determination.\nDefendant further argues that because she and her husband moved to Wake County, regardless of Plaintiff\u2019s wishes to keep the children enrolled in the Durham School System, the children\u2019s residency with Defendant necessitated the school system change. As school systems are accustomed to accommodating children who are in the joint custody of their parents and to accommodate children with mental or emotional problems, it is not uncommon for school systems to accommodate transfer requests.\nIn summary, the trial court did not err in denying Defendant\u2019s Motion for a New Trial. Further, the trial court did not err in limiting the presentation of evidence. We also hold there was no error as to the factors used by the trial court in determining whether there was a substantial change in circumstances. Finally, we affirm the trial court\u2019s order because the findings of fact support a substantial change in circumstances warranting modification of custody.\nAffirmed.\nJudges BRYANT and GEER concur.\n. 4132.2 Hardship Transfer\nThe Superintendent or designee may grant transfer requests in cases of substantial hardship if the Superintendent or designee finds that any of the following exist:\nA. Serious physical, mental or emotional problems. The student must submit an affdavit from the student\u2019s physical, psychologist, or psychiatrist to support a request made under this ground.\nD. Other extreme or unusual circumstances that affect the student\u2019s academic achievement and/or behavior at school.\nwww.dpsnc.net, Student Transfers", "type": "majority", "author": "BEASLEY, Judge." } ], "attorneys": [ "Law Office of Laurel E. Solomon, PLLC, by Laurel E. Solomon, for Plaintiff-Appellee.", "Lewis Phillips Hinkle, PLLC, by Elliot I. Brady, for Defendant-Appellant." ], "corrections": "", "head_matter": "NEAL B. WOLGIN, Plaintiff v. ELIZABETH HESLIP WOLGIN, Defendant\nNo. COA11-148\n(Filed 6 December 2011)\n1. Appeal and Error \u2014 jurisdiction\u2014notice of appeal \u2014 timing\nThe Court of Appeals had jurisdiction over a child custody case where an order modifying custody was entered; defendant filed a Rule 59 Motion for a new trial, tolling the time for appeal; the trial court rendered (but did not enter) a denial of the motion for a new trial; defendant entered notice of appeal from the custody order; the trial court entered a written order denying the motion for a new trial; and defendant gave notice of appeal from that order.\n2. Trials \u2014 two-day limit for trial \u2014 not arbitrary\nThe trial court did not abuse its discretion in a child custody matter by denying defendant\u2019s motion for a new trial where defendant argued that the trial court had placed arbitrary time limits on the presentation of evidence. The length of the trial was discussed at the pretrial conferences, both parties agreed to a two-day trial, and defendant did not object at the close of her evidence to the limits enforced by the court. Moreover, the court was presented with adequate evidence to make a determination as to whether a custody modification was appropriate.\n3. Evidence \u2014 cumulative exhibits \u2014 control\u2014no abuse of discretion\nThe trial court did not abuse its discretion in a custody case by accepting exhibits which consisted of 562 e-mails but indicating that it would give them due consideration without reading each one.\n4. Child Custody and Support \u2014 change in custody \u2014 disagreements between parties\nThe trial court did not err by relying on continual disagreements between the parties to change the physical custody provisions of a permanent custody order. Disagreements alone do not support a substantial change in circumstances, but the trial court here also considered the effect of those disagreements on the children, including the children\u2019s mental health, religious growth, and extracurricular activities\n5. Child Custody and Support \u2014 custody\u2014change\u2014factors\nThe trial court did not err in a child custody action in the factors it considered in concluding that a change of physical custody was warranted. Case law did not support defendant\u2019s argument that her relocation and remarriage, a party\u2019s continued fitness, and the children\u2019s school transfer were impermissible factors.\nAppeal by Defendant from orders entered 4 May 2010 and 8 September 2010 by Judge William A. Marsh in Durham County District Court. Heard in the Court of Appeals 25 May 2011.\nLaw Office of Laurel E. Solomon, PLLC, by Laurel E. Solomon, for Plaintiff-Appellee.\nLewis Phillips Hinkle, PLLC, by Elliot I. Brady, for Defendant-Appellant." }, "file_name": "0278-01", "first_page_order": 288, "last_page_order": 300 }