{
  "id": 8527822,
  "name": "PAULA DAVIS BARNES v. SAMUEL LEAR BARNES",
  "name_abbreviation": "Barnes v. Barnes",
  "decision_date": "1982-02-02",
  "docket_number": "No. 8128DC470",
  "first_page": "670",
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    "name": "North Carolina Court of Appeals"
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  "analysis": {
    "cardinality": 273,
    "char_count": 4361,
    "ocr_confidence": 0.816,
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  "last_updated": "2023-07-14T17:04:47.759339+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges MARTIN (Harry C.) and WELLS concur."
    ],
    "parties": [
      "PAULA DAVIS BARNES v. SAMUEL LEAR BARNES"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nPlaintiff\u2019s appeal is grounded on her contention that a showing of changed circumstances so as to adversely affect the child is not required where the question of custody never has been litigated. It is well-settled that a contractual agreement between the parents is not binding on the court in awarding custody of a minor child. Spence v. Durham, 283 N.C. 671, 198 S.E. 2d 537 (1973), cert. denied, 415 U.S. 918, 94 S.Ct. 1417, 39 L.Ed. 2d 473 (1974). However, it does not follow that the terms of a consent judgment regarding custody may be altered without a showing of changed circumstances.\nAt the time of the parties\u2019 divorce, the terms of their consent judgment relative to child custody were adopted by the court in its findings of fact and conclusions of law. Custody was then awarded to defendant as part of the divorce judgment, not merely by agreement of the parties. Where custody has thus been awarded by court order any subsequent modification must be made in accordance with G.S. 5043.7(a) which states:\nAn order of a court of this state for custody or support, or both, of a minor child may be modified or vacated at any time, upon a motion in the cause and a showing of changed circumstances by either party or anyone interested. (Emphasis added.)\nCase law construing this provision has clearly established that a showing of \u201csubstantial change of circumstances affecting the welfare of the child\u201d is required before an order of custody is changed, Daniels v. Hatcher, 46 N.C. App. 481, 483, 265 S.E. 2d 429, 431 (1980), and that the burden of showing such changed circumstances is on the moving party. Ebron v. Ebron, 40 N.C. App. 270, 252 S.E. 2d 235 (1979). In the case at bar, the plaintiff presented evidence of her own changed circumstances, but made no showing that the child\u2019s welfare was being affected adversely by her present environment. Indeed, plaintiff\u2019s counsel stipulated that both parties were fit and proper persons to have custody of their child. We agree with the trial court, therefore, that the plaintiff failed to meet her burden of showing changed circumstances sufficient to justify a change of Sarah Jane\u2019s custody. Accordingly, the dismissal of plaintiffs motion is\nAffirmed.\nJudges MARTIN (Harry C.) and WELLS concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "George H. Johnson, Jr., for plaintiff appellant.",
      "Sutton and Edmonds, by John R. Sutton, for defendant ap-pellee."
    ],
    "corrections": "",
    "head_matter": "PAULA DAVIS BARNES v. SAMUEL LEAR BARNES\nNo. 8128DC470\n(Filed 2 February 1982)\nDivorce and Alimony \u00a7 25.10\u2014 custody \u2014 failure to show changed circumstances\nThe trial court did not err in dismissing plaintiffs motion for change of custody of the parties\u2019 minor child from defendant father to plaintiff mother where plaintiff presented evidence of her changed circumstances, but made no showing that the child\u2019s welfare was being affected adversely by her present environment. A showing of changed circumstances so as to adversely affect the child is required where the question of custody is determined pursuant to a consent judgment, just as it is required where the question of custody is litigated, as the terms of a consent judgment relative to child custody are adopted by the court in its finding of facts and conclusions of law. G.S. 50-13.7(a).\nAppeal by plaintiff from Styles, Judge. Order entered 11 February 1981 in District Court, BUNCOMBE County. Heard in the Court of Appeals 6 January 1982.\nThis is an appeal from dismissal of plaintiffs motion for change of custody of the parties\u2019 minor child, Sarah Jane Barnes, from defendant father to plaintiff mother. Custody had been granted to the father pursuant to a consent judgment between the parties which was incorporated into the divorce decree. The mother previously had custody under the terms of a separation agreement.\nThe mother presented evidence at trial showing that she had remarried, that she and her second husband had a son, and that they could provide a stable home environment for Sarah Jane. She presented no evidence that the father was not a fit and loving parent.\nAt the close of plaintiffs evidence, the trial court granted a directed verdict in favor of the defendant father. Plaintiffs motion was dismissed on grounds that she had failed to present evidence that circumstances had so changed as to adversely affect Sarah Jane\u2019s welfare absent a change in custody. Plaintiff appeals.\nGeorge H. Johnson, Jr., for plaintiff appellant.\nSutton and Edmonds, by John R. Sutton, for defendant ap-pellee."
  },
  "file_name": "0670-01",
  "first_page_order": 702,
  "last_page_order": 704
}