Shell v. Shell , 261 N.C. App. 30 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-990
Filed: 21 August 2018
Watauga County, No. 09 CVD 389
DAVID W. SHELL and DONNA SHELL, Plaintiffs,
v.
DAVID DWAYNE SHELL and NICOLE RENEE GREEN, Defendants.
Appeal by plaintiffs and defendant Shell from order entered 6 February 2017
by Judge Hal G. Harrison in District Court, Watauga County. Heard in the Court of
Appeals 8 February 2018.
Anné C. Wright, for plaintiffs-appellants.
Epperson Law, PLLC, by James L. Epperson, for defendant-appellee Nicole
Renee Green.
STROUD, Judge.
Plaintiffs and defendant Shell appeal a custody modification order changing
primary physical custody from defendant Shell to defendant Green. Because the trial
court’s findings of fact support its conclusion there had been a substantial change in
circumstances affecting the best interest of the children and that modification would
be in their best interest, we affirm.
I. Background
SHELL V. SHELL
Opinion of the Court
This appeal arises from the modification of a 2012 custody order. Plaintiffs,
David and Donna Shell, are the paternal grandparents of the children, Sam and Kim.1
Defendant David Shell is the son of plaintiffs and father of Sam and Kim. Defendant
Nicole Green is the children’s mother and has married since the prior order and is
now Nicole McKiernan. We will identify all parties by their relation to Sam and Kim.
Therefore, plaintiffs will be referred to as the “Grandparents,” defendant Shell as
“Father” and defendant Green as “Mother.” Although both parents are “defendants,”
the interests of defendant Father are aligned with plaintiff Grandparents and are
opposed to the interests of defendant Mother.
The prior custody order was entered in May 2012. Father was granted sole
legal and physical custody of the children and Mother had visitation rights. At the
time of the prior order, Father and the children resided with Grandparents; they still
lived with Grandparents at the time of the hearing on the motion to modify custody.
Father “has limited education and intelligence[,]” struggles with literacy, and “relies
heavily on his parents.” In 2011, Mother had admitted to Father she was using
marijuana, cocaine, and alcohol to excess. She was also “spending time” with a man
who later went to prison for selling methamphetamine. She had moved four times in
the ten months prior to the hearing because she could not afford rent or utilities. She
also could not keep a job, and she was fired or quit jobs several times. At the time of
1 A pseudonym is used to protect the privacy of the minors involved.
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Opinion of the Court
the 2012 hearing, the children were ages five and two. Mother’s home was 45 minutes
away from the older child’s school. In August 2011, Grandmother went to her home
and found it was strewn with trash and empty alcohol containers. One child had cut
her foot on glass on the floor, and Grandmother took her away from Mother’s home.
In September 2011, Mother had posted nude photos on the internet, was drinking
heavily, and was not making good decisions. Father was living with his parents in a
stable home.
On 3 June 2016, Mother moved to modify custody alleging that since the prior
custody order there had been a substantial change of circumstances affecting the
welfare of the children because she had remained sober for several years, maintained
a job for over two years, and gotten remarried. She also alleged that Father had
become more difficult to deal with regarding visitation. He refused to send the
children’s homework so the children could complete it during visits with Mother, and
he denied Mother information about the children’s school activities and would not
allow her to participate.
On 17 and 30 January 2017, the trial court held a hearing on the motion to
modify custody. The trial court entered an order modifying custody on 6 February
2017, which determined there had been a substantial change of circumstances
affecting the welfare of the children and modified custody, granting Father and
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Opinion of the Court
Mother joint legal custody, with Mother receiving primary physical custody. Father
and Grandparents appeal.2
II. Modification of Custody
Father first contends that “the trial court erred in finding that there were
substantial changed circumstances since the entry of the last custodial order in May
2012 when little, if anything, had changed [and] any changes that did occur did not
affect the welfare of the children” and even “assuming arguendo that there was a
substantial change in circumstance materially affecting the children, the trial court
nevertheless abused its discretion by ‘flipping’ the previous custody arrangement and
disrupting the children’s stability and routine.” (Original in all caps).
A. Standard of Review
It 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. The party seeking to modify a custody
order need not allege that the change in circumstances had
an adverse effect on the child. While allegations
concerning adversity are acceptable factors for the trial
court to consider and will support modification, a showing
of a change in circumstances that is, or is likely to be,
beneficial to the child may also warrant a change in
custody.
As in most child custody proceedings, a trial court’s
2 Grandparents have filed a petition for writ of certiorari with this Court because their notice of appeal
was not timely; however, Father provided timely notice of appeal, and he and Grandparents have filed
one joint brief. Because we will necessarily consider Grandparent’s arguments based upon Father’s
timely appeal, we need not grant their petition for writ of certiorari and thus dismiss it.
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Opinion of the Court
principal objective is to measure whether a change in
custody will serve to promote the child’s best interests.
Therefore, if the trial court does indeed determine that a
substantial change in circumstances affects the welfare of
the child, it may only modify the existing custody order if
it further concludes that a change in custody is in the
child’s best interests.
The trial court’s examination of whether to modify
an existing child custody order is twofold. The trial court
must determine whether there was a change in
circumstances and then must examine whether such a
change affected the minor child. If the trial court concludes
either that a substantial change has not occurred or that a
substantial change did occur but that it did not affect the
minor child’s welfare, the court’s examination ends, and no
modification can be ordered. If, however, the trial court
determines that there has been a substantial change in
circumstances and that the change affected the welfare of
the child, the court must then examine whether a change
in custody is in the child’s best interests. If the trial court
concludes that modification is in the child’s best interests,
only then may the court order a modification of the original
custody order.
When reviewing a trial court’s decision to grant or
deny a motion for the modification of an existing child
custody order, the appellate courts must examine the trial
court’s findings of fact to determine whether they are
supported by substantial evidence. Substantial evidence is
such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.
Our trial courts are vested with broad discretion in
child custody matters. This discretion is based upon the
trial courts’ opportunity to see the parties; to hear the
witnesses; and to detect tenors, tones, and flavors that are
lost in the bare printed record read months later by
appellate judges. Accordingly, should we conclude that
there is substantial evidence in the record to support the
trial court’s findings of fact, such findings are conclusive on
appeal, even if record evidence might sustain findings to
the contrary.
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Opinion of the Court
In addition to evaluating whether a trial court’s
findings of fact are supported by substantial evidence, this
Court must determine if the trial court’s factual findings
support its conclusions of law. With regard to the trial
court’s conclusions of law, our case law indicates that the
trial court must determine whether there has been a
substantial change in circumstances and whether that
change affected the minor child. Upon concluding that
such a change affects the child’s welfare, the trial court
must then decide whether a modification of custody was in
the child’s best interests. If we determine that the trial
court has properly concluded that the facts show that a
substantial change of circumstances has affected the
welfare of the minor child and that modification was in the
child’s best interests, we will defer to the trial court’s
judgment and not disturb its decision to modify an existing
custody agreement.
Shipman v. Shipman, 357 N.C. 471, 473-75, 586 S.E.2d 250, 253-54 (2003) (citations,
quotation marks, and brackets omitted).
B. Substantial Change in Circumstances
Father does not challenge the findings of fact as unsupported by the evidence
but contends that the facts are not enough to establish a substantial change in
circumstances affecting the welfare of the children since entry of the 2012 order. His
argument addresses several of the circumstances addressed by both the 2012 order
and the order on appeal. We address each in turn.
1. Sobriety
In the 2012 order, as noted above, Mother’s living circumstances were very
unstable and she was unable to care for the children properly. In the order on appeal,
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Opinion of the Court
the trial court found that when the 2012 order was entered, Mother had been sober
for about eight months, but she was still “struggling with her sobriety” and that she
was selfish. As of the 2017 hearing, Mother had been sober from drugs and alcohol
for about four years. Father argues Mother’s sobriety is not a change of
circumstances because at both times, she was sober. We disagree.
Changes in circumstances may be either negative or positive. See, e.g., Pulliam
v. Smith, 348 N.C. 616, 619, 501 S.E.2d 898, 899 (1998) (“[C]ourts 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. In
appropriate cases, either may support a modification of custody on the ground of a
change in circumstances.”). Here, the trial court’s findings show that Mother had
made positive changes that affect the children. The trial court’s findings in the 2012
order detailed the detrimental effects Mother’s drug and alcohol abuse was having on
the children, resulting in her inability to keep a job or residence and her poor
judgment. In contrast, the order on appeal details how these things had improved
dramatically: Mother had maintained a stable job and home and had become a loving
and caring parent. There is no doubt that a parent’s alcohol and drug abuse normally
has negative effects on children, as Mother’s did prior to the 2012 order. Mother’s
maintainance of her sobriety for over four years and the resulting changes in her life
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Opinion of the Court
show that her ability to care for the children had improved dramatically. See
generally Dreyer v. Smith, 163 N.C. App. 155, 159, 592 S.E.2d 594, 596 (2004) (“Here,
however, the trial court made ample findings of fact describing the negative effect of
Ms. Smith’s remarriage on the children. We hold that these findings -- setting forth
the children’s exposure to alcohol abuse, violent behavior, illegal drugs, and a risk of
physical harm -- support the trial court’s conclusion that there has been a substantial
change of circumstances affecting the welfare of the children.”).
Father also contends that even if Mother’s sobriety is a change of
circumstances, it has no effect on the children. This argument is difficult to
understand, since Father contended -- quite correctly -- in 2012 that Mother’s
substance abuse was still having detrimental effects on the children, even after she
had been sober for a few months. Her life was still unstable, even if she was not
actively using drugs or alcohol. Considering the other findings in the order regarding
the positive changes in Mother’s life which have accompanied her sobriety, this
argument is entirely without merit. See id. The trial court’s order includes many
findings detailing these effects -- Mother’s involvement with the children, her ability
to provide a home and support them, and her becoming a caring parent instead of a
selfish and unreliable one.
2. Remarriage
Father next contends that Mother’s remarriage was not a substantial change
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Opinion of the Court
of circumstances, as the relationship between the children and their now-stepfather
did not change. “[R]emarriage, in and of itself, is not a sufficient change of
circumstance affecting the welfare of the child to justify modification of the child
custody order without a finding of fact indicating the effect of the remarriage on the
child.” Evans v. Evans, 138 N.C. App. 135, 140, 530 S.E.2d 576, 579 (2000). But the
trial court found this relationship had become stronger and was beneficial to the
children: “Since the entry of the prior Order Thomas McKiernan has developed a
strong bond with the children and is very involved in their lives during periods of
visitation provided to” Mother. (Emphasis added.) The trial court’s finding of the
stepfather’s development of a strong relationship with the children and his positive
involvement in the children’s lives is a change of circumstances that affects the
children’s welfare.
3. Difficult Communication
Father next argues that the parties had difficulty with communication prior to
entry of the 2012 order so no substantial change of circumstances has occurred, and
even if their communications had changed, this did not affect the children nor was
there any evidence it did. We addressed a similar argument regarding the parents’
difficulties in communication in Laprade v. Barry:
It is beyond obvious that a parent’s unwillingness or
inability to communicate in a reasonable manner with the
other parent regarding their child’s needs may adversely
affect a child, and the trial court’s findings abundantly
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Opinion of the Court
demonstrate these communication problems and the
child’s resulting anxiety from her father’s actions. While
father is correct that this case overall demonstrates a
woeful refusal or inability of both parties to communicate
with one another as reasonable adults on many occasions,
we can find no reason to question the trial court’s finding
that these communication problems are presently having a
negative impact on Reagan’s welfare that constitutes a
change of circumstances. In fact, it is foreseeable the
communication problems are likely to affect Reagan more
and more as she becomes older and is engaged in more
activities which require parental cooperation and as she is
more aware of the conflict between her parents. Therefore,
we conclude that the binding findings of fact support the
conclusion that there was a substantial change of
circumstances justifying modification of custody.
Laprade v. Barry, ___ N.C. App. ___, ___, 800 S.E.2d 112, 117 (2017) (citation
omitted).
Here, the trial court specifically noted the changes in communication and
cooperation since the 2012 order. Although the parties had always had trouble
communicating, Father had become even less willing to cooperate with Mother.
Father had refused to allow Mother to get information regarding the children’s
education, including their report cards; he refused to allow Mother to attend school
activities and parent teacher conferences; he failed to send the children’s homework
with them when they visited Mother; and refused to allow Mother to have the
children’s medical information. At the time of the prior order, the older child was just
beginning school and the younger was only two. At the time the trial court entered
the order on appeal modifying custody, the children were ages ten and seven, and
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Opinion of the Court
both were in school and extracurricular activities. Just as in Laprade, “[i]t is beyond
obvious” how Father’s unwillingness to communicate with Mother regarding the
children’s school and medical needs would have a negative effect on the children that
becomes more substantial as the children grow older. Id. at __, 800 S.E.2d at 117. In
addition, the trial court’s order includes findings about how Father’s refusal to share
information, particularly about school, is detrimental the children.
4. Father’s Capabilities
Father also contends that he has always needed assistance from his parents
and there has not been a change in his capabilities since entry of the 2012 order. The
trial court also addressed the detrimental effects of Father’s inability to read and to
assist the children with school work. Despite his lack of ability to help the children,
he still he refused to allow Mother to help by sending homework with them and
allowing Mother to be involved in parent teacher conferences. As just noted in
Laprade, above, as children become older, they have more involvement with school
activities, parent-teacher meetings become more detailed, and homework becomes
more complex. As the children have advanced in school, Father’s limited capabilities
have had more of an impact on the children’s lives and this will likely continue as the
children get older. See id. at __, 800 S.E.2d at 117. Father’s argument fails to take
into account the fact that the children themselves are always changing and their
needs change, although his abilities have remained the same. His inability to read
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Opinion of the Court
and to assist the children with schoolwork affects the children more as they progress
through their own education and must do more challenging work.
5. Conclusion
The trial court’s findings of fact regarding Mother’s years of sobriety, her
remarriage along with the stepfather’s positive relationship with the children,
Father’s and Mother’s worsening communications, and Father’s limited capabilities,
while the children’s needs are becoming more complex, support its conclusion there
have been substantial changes of circumstances since the prior order that affect the
welfare of the minor children. See generally Shipman, 357 N.C. at 473-75, 586 S.E.2d
at 253-54.
C. Best Interests
Last, Father contends that even assuming there was a substantial change of
circumstances affecting the welfare of the children, it was not in their best interest
to change custody as the “best interests were that they remain with their Father in
the paternal Grandparents’ home.” (Original in all caps.) Again, “a trial court’s
principal objective is to measure whether a change in custody will serve to promote
the child’s best interests.” Id. at 474, 586 S.E.2d at 253.
Once the trial court makes the threshold
determination that a substantial change has occurred, the
court then must consider whether a change in custody
would be in the best interests of the child. As long as there
is competent evidence to support the trial court’s findings,
its determination as to the child’s best interests cannot be
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Opinion of the Court
upset absent a manifest abuse of discretion.
Metz v. Metz, 138 N.C. App. 538, 540-41, 530 S.E.2d 79, 81 (2000) (citations omitted).
Here, the trial court found that due to Mother’s maintenance of her sobriety,
ability to maintain a stable job and provide a proper home, the children’s close
relationship to their stepfather, Father’s increasingly “autocratic” control seeking to
shut Mother out of the children’s lives, and Father’s continued need to rely on his
parents to care for his children, it was in the best interests of the children to primarily
reside with their Mother. We discern no abuse of discretion with this determination.
III. Conclusion
Because the trial court’s findings of fact support its conclusion there was a
substantial change of circumstances affecting the welfare of the minor children since
the prior order and because the trial court did not abuse its discretion in concluding
it was in the best interests of the children to primarily reside with their Mother, we
affirm.
AFFIRMED.
Judges DILLON and INMAN concur.
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