{
  "id": 8526179,
  "name": "TIMOTHY ELLENBERGER v. CAROL ELLENBERGER",
  "name_abbreviation": "Ellenberger v. Ellenberger",
  "decision_date": "1983-09-06",
  "docket_number": "No. 8229DC976",
  "first_page": "721",
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      "year": 1952,
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          "page": "154",
          "parenthetical": "emphasis added"
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      "cite": "236 N.C. 531",
      "category": "reporters:state",
      "reporter": "N.C.",
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          "parenthetical": "emphasis added"
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    {
      "cite": "286 S.E. 2d 859",
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      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1982,
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        {
          "page": "860",
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    {
      "cite": "56 N.C. App. 122",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
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      "year": 1982,
      "opinion_index": 0,
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  "last_updated": "2023-07-14T21:55:10.514065+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Wells and Phillips concur."
    ],
    "parties": [
      "TIMOTHY ELLENBERGER v. CAROL ELLENBERGER"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nDefendant assigns as error the court\u2019s \u201cmodification of a custody decree without finding that there had been a substantial change of circumstances that adversely affected the welfare of the child.\u201d She contends that under N.C. Gen. Stat. Sec. 50-13.7(a) the previous order awarding her custody of the child could be modified only upon a showing of changed circumstances and that there was no such showing.\nN.C. Gen. Stat. Sec. 5043.7(a) states that \u201c[a]n 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. . . In Harris v. Harris, 56 N.C. App. 122, 286 S.E. 2d 859 (1982) this court reiterated the rule that \u201cthe modification 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, and the party moving for such modification assumes the burden of showing such change of circumstances.\u201d Id. at 124, 286 S.E. 2d at 860 (citations omitted).\nPlaintiff contends that the order of 6 August 1981 was interlocutory in nature, and that the requirement of a substantial change of circumstances is inapplicable to such an order. He argues that the \u201cinitial custody order ... is clearly denominated \u2018temporary.\u2019 \u201d While it is true that the 6 August 1981 order has some characteristics of a \u201ctemporary\u201d order, we note that all orders awarding custody are in a sense \u201ctemporary.\u201d It is well-established that a court decree awarding custody of a minor child is never final in nature. \u201cSuch a decree determines only the present rights with respect to such custody. . . .\u201d Neighbors v. Neighbors, 236 N.C. 531, 533, 73 S.E. 2d 153, 154 (1952) (emphasis added) (citations omitted).\nThe evidence in the present case tends to show that Mark, the minor child, remained with defendant when she and her husband first separated, and that this arrangement was continued by the order of 6 August 1981. Plaintiff made no contribution to Mark\u2019s support after defendant was awarded custody of the child, according to the record, and plaintiff sought modification of the custody order only after defendant sought child support. The court found as a fact that both parents were \u201cfit and proper persons to exercise custody.\u201d The court also found, however, that \u201cprior to August of 1981, Mark was a friendly outgoing child with a \u2018sparkle in his eyes.\u2019 That from August of 1981 until the hearing on May 18, 1982, Mark has become somewhat subdued and was more quiet and reserved than he had been prior to leaving Transylvania County. That the \u2018sparkle\u2019 is gone.\u201d\nPlaintiff contends in his brief that the court\u2019s finding of fact, set out above, that \u201cthe sparkle is gone\u201d is sufficient support for a conclusion that there had been substantial change in circumstances, justifying modification of the custody order. We note that the trial judge failed to make a finding or conclusion regarding the presence or absence of a substantial change in circumstances. Moreover, we find little evidentiary support in the record for any such finding or conclusion. Plaintiff seemed satisfied with the arrangement that allowed Mark to remain in the defendant\u2019s custody so long as he was not required to contribute to the child\u2019s support. Furthermore, only six months elapsed between the first order that gave custody of Mark to the defendant and her motion in the cause seeking support for the child from the plaintiff. The trial court\u2019s finding of fact regarding \u201cthe sparkle in Mark\u2019s eyes\u201d is insufficient to establish the substantial change in circumstances contemplated by the law. The requirement of substantial change is an effort to lend \u201csuch stability as would end the vicious litigation so often accompanying such contests. . . .\u201d Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E. 2d 357, 361 (1968). To permit modification of the original order based on the findings and conclusions in the present case would defeat that purpose and contravene the law. We therefore vacate that portion of the order entered 30 June 1982 awarding custody of Mark to the father, and reinstate that portion of the original order awarding custody of Mark to the mother. That portion of the order entered 30 June 1982 requiring plaintiff to reimburse defendant in the amount of $1,405.75, requiring him to pay child support in the amount of $150.00 per month, and requiring him to pay $500.00 as partial attorney\u2019s fees is hereby affirmed.\nVacated in part, affirmed in part.\nJudges Wells and Phillips concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Potts & Welch, by Paul B. Welch, III for the plaintiff, ap-pellee.",
      "Margaret McDermott Hunt for the defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "TIMOTHY ELLENBERGER v. CAROL ELLENBERGER\nNo. 8229DC976\n(Filed 6 September 1983)\nDivorce and Alimony \u00a7 25.10\u2014 modification of child custody\u2014 changed circumstances not shown\nThe custody of a child under a court order could be modified only upon a finding of a substantial change of circumstances .affecting the welfare of the child, and the court\u2019s finding that the child had lost \u201cthe sparkle in his eyes\u201d was insufficient to support a conclusion that there had been a substantial change in circumstances justifying modification of a custody order.\nAPPEAL by defendant from Gash, Judge. Judgment entered 30 June 1982 in District Court, TRANSLYVANIA County. Heard in the Court of Appeals 23 August 1983.\nOn 22 July 1981, plaintiff, husband filed a complaint seeking an absolute divorce from his wife and temporary and permanent custody of the two minor children born of the marriage. From the date of the separation of the parties, the minor child, Mark, born 7 May 1972, lived with the defendant, mother, and their older child, Timothy, born 25 July 1969, lived with the plaintiff. On 6 August 1981, after a hearing on the issue of custody, the trial judge entered an order awarding \u201ctemporary care, custody, and control\u201d of Mark to the defendant and \u201ctemporary care, custody, and control\u201d of Timothy to the plaintiff. This order made no provision for support of either child.\nBy motions filed 5 February and 12 March 1982, defendant sought an order for support of Mark and reimbursement for expenses she incurred on his behalf since the 6 August 1981 order. On 3 March 1982, after receiving notice of defendant\u2019s motion, plaintiff filed a motion seeking to regain custody of Mark. All three motions were heard on 18 May 1982. From an order awarding custody of Mark to the plaintiff, defendant appealed.\nPotts & Welch, by Paul B. Welch, III for the plaintiff, ap-pellee.\nMargaret McDermott Hunt for the defendant, appellant."
  },
  "file_name": "0721-01",
  "first_page_order": 753,
  "last_page_order": 756
}