Mastny v. Mastny , 259 N.C. App. 572 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1171
Filed: 15 May 2018
Wake County, No. 11 CVD 14976
JAMIE LUNSFORD MASTNY, Plaintiff,
v.
CHAD JOSEPH MASTNY, Defendant.
Appeal by defendant from order entered 17 May 2017 by Judge Christine M.
Walczyk in Wake County District Court. Heard in the Court of Appeals 18 April
2018.
Laura C. Brennan for plaintiff-appellee.
Tharrington Smith, LLP, by Steve Mansbery and Jeffrey R. Russell, for
defendant-appellant.
TYSON, Judge.
Defendant appeals from an order modifying custody of his minor child. We
reverse the order and remand.
I. Background
This appeal is before this Court a second time. Mastny v. Mastny, __ N.C. App.
__, 796 S.E.2d 402, 2017 N.C. App. LEXIS 101 (2017) (unpublished) (hereinafter
“Mastny I”). Jamie Lunsford Mastny (“Plaintiff”) and Chad Joseph Mastny
MASTNY V. MASTNY
Opinion of the Court
(“Defendant”) originally settled the custody arrangements for their minor child,
Tyler, by entering into a consent order in 2012.
This order entitled Defendant to “alternating weekend visitation from
Thursday at the recess of school until Monday morning” when Tyler would return to
school. On the weeks Defendant did not have weekend visitation, he was entitled to
overnight visitation on Thursdays. Additionally, Defendant was granted two
“floating days” per month for visitation. Each party was guaranteed one week of
vacation with Tyler in the summer.
Between 2013 and 2015, both Defendant and Plaintiff sought to modify the
custody arrangement. The use and scheduling of the “floating days” was at issue in
each motion for modification. The trial court first mandated make-up visitation days
for Defendant in 2013, since Plaintiff had allegedly denied his exercise of these
floating visitation days seven times without reason.
In the 2015 order modifying custody, the trial court eliminated these “floating
days” from the custody schedule. During the school year, Defendant was entitled to
an alternating weekend visitation spanning from the end of the school day on Friday
to the beginning of school on Monday. Summer visitation was to follow an alternating
week schedule.
Defendant appealed the 2015 order to this Court. In Mastny I, this Court
reversed the portions of the 2015 order that had modified the custody schedule from
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the prior consent order, and remanded to the trial court. Mastny, 2017 N.C. App.
LEXIS 101 at *26. Upon remand, the trial court was ordered to
revisit the question of whether there has been a significant
change of circumstances affecting Tyler’s welfare and, if so,
whether modification of the custody provisions of the prior
consent order would be in Tyler’s best interest. If the trial
court decides that modification of the custody provisions of
the prior consent order are warranted, it shall demonstrate
through sufficient additional relevant findings of fact that
there is a nexus between any change in circumstances and
Tyler’s welfare, and that any particular modifications of
the custody portions of the prior consent order are in
Tyler’s best interest.
Id. (emphasis supplied).
Upon remand, the trial court did not receive or hear any additional evidence.
On 17 May 2017, the trial court entered an order modifying child custody that
contained additional findings of fact and conclusions of law, but retained the identical
custody schedule from 2015. Defendant timely appealed.
II. Jurisdiction
An appeal of right lies to this Court from a child custody order entered in a
district court pursuant to N.C. Gen. Stat. § 7A-27(b)(2) (2017).
III. Issues
Defendant argues the trial court erred by failing to follow the mandates of
Mastny I by: (1) making certain findings of fact; (2) failing to make sufficient findings
of fact to support conclusion of law #4; (3) failing to show modification was in the best
interests of Tyler and in response to the substantial changes; (4) reducing Defendant’s
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physical custody time; and, (5) failing to promote the policy of the State articulated
in N.C. Gen. Stat. § 50-13.01.
IV. Analysis
A. Standard of Review
“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.” Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253
(2003) (citation omitted). “[T]he trial court’s findings of fact are conclusive on appeal
if supported by substantial evidence, even if there is sufficient evidence to support
contrary findings.” Peters v. Pennington, 210 N.C. App. 1, 12-13, 707 S.E.2d 724, 733
(2011). Conclusions of law must be supported by the findings of fact. Id. “Absent an
abuse of discretion, the trial court’s decision in matters of child custody should not be
upset on appeal.” Everette v. Collins, 176 N.C. App. 168, 171, 625 S.E.2d 796, 798
(2006) (citation omitted).
B. Findings of Fact
Defendant argues insufficient evidence supports Findings of Fact 24(j), 24(g),
15A(a), 15A(b), 15A(c), 15A(e), 16A, 17A, and 27. Plaintiff only addresses Finding of
Fact 24(j) in her brief.
Finding of Fact 24 states, in relevant part:
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24. Since the entry of this Order, there has been a
substantial change of circumstances justifying this court to
assume jurisdiction to modify the August 13, 2012 Order
as it relates to the custodial schedule in that:
....
(g) Plaintiff sometimes requires Tyler to facetime
with his father outside;
....
(j) Defendant has inappropriate boundaries
concerning Plaintiff. Following the first day of trial
and after learning Plaintiff’s salary at Trinity
Academy, Defendant called Plaintiff’s boss to ask
him to give her a raise. Defendant had previously
asked Plaintiff’s employer for information on the
tuition discount Plaintiff was entitled to as a result
of her employment at Trinity. This behavior
undoubtedly put the Plaintiff’s employment at
Tyler’s school, and the family’s financial security, at
risk[.]
Finding of Fact 24(j) was partially included in the 2015 modification order,
with the final sentence being added upon remand. We previously found “Defendant’s
having ‘inappropriate’ boundaries concerning Plaintiff could theoretically affect
Tyler’s welfare, but there are no findings of fact supporting any conclusion that this
has happened.” Mastny I, 2017 N.C. App. LEXIS 101 at *23.
Plaintiff argues the effects of Defendant’s actions are “self-evident” requiring
no “evidence directly linking the change to the effect on the child.” In re A.C., __ N.C.
App. __, __, 786 S.E.2d 728, 743 (2016) (citation and internal quotation marks
omitted). Whether or not Defendant’s actions contacting Tyler’s school were
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inappropriate, it cannot be presumed, and is hardly “self-evident,” that Defendant’s
contacting Plaintiff’s employer “undoubtedly” jeopardized Plaintiff’s position at the
school or placed the “family’s financial security [] at risk.” No new evidence was
offered at the hearing upon remand. This finding is unsupported by any substantial
evidence. See Shipman, 357 N.C. at 474, 586 S.E.2d at 253.
Finding of Fact 24(g) is also not supported by competent evidence. Finding
24(g) was slightly modified from the 2015 order, where it was labeled 15(g) and read:
“Plaintiff does not allow [Tyler] to facetime with Defendant in her residence; rather,
she makes the minor child go outside to facetime with Defendant.” This Court
previous found “substantial record evidence” to support the 2015 finding. Mastny,
2017 N.C. App. LEXIS 101 at *12. As no new evidence was taken or received upon
remand, no evidence supports the change of Plaintiff “making” Tyler go outside to
facetime with his father to “sometimes requir[ing]” Tyler to go outside. It is unclear
why the trial court altered this Finding of Fact.
A similar change in the Findings of Fact from the 2015 order can be seen in
Finding 17A, which reads:
17[A]. As stated previously, there have been disagreements
about the floating days which have prevented the
Defendant from having the children for specific events such
as the family wedding and NC State football games.
Plaintiff has sometimes been inflexible on these matters.
She has also made the child talk with his father outside the
house on occasion. Despite these things, Plaintiff is less
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likely, based on the evidence presented, to involve the
children directly in the parties’ conflict.
This finding not only reiterates the new, occasional nature of Plaintiff requiring Tyler
to speak to his father outside, but also modified the related finding from the 2015
order, which read:
16. Plaintiff has unreasonably denied Defendant extra
custodial time with the children for specific events and
refused to modify the schedule that would have provided
the children with experiences with Defendant such as the
family wedding and NC State football games.
Upon remand, and without additional evidence to support the change, the trial court
now finds Defendant was “prevented . . . from having the children for specific events”
because the Plaintiff “has sometimes been inflexible,” whereas previously the trial
court had found Plaintiff’s denial of these requests unreasonable. There is no
substantial evidence to support the changes in Finding of Fact 17A. We will consider
in greater detail below the trial court’s conclusion that the Plaintiff is less likely to
involve the children in the parties’ conflict.
Finding of Fact 15A reads in relevant part:
15[A]. These changes have affected Tyler negatively in the
following ways:
(a) Because the parties communicate ineffectively
and cannot agree on floating days, Tyler has missed
certain sporting, cultural and family events such as
NC State Football games and an out-of-state
wedding[.]
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(b) There are no consistent rules or expectations
between homes concerning the use of phones, on-line
gaming, and television and movie viewing. This
makes it difficult for Tyler, an eight year old boy
[now ten years old], who is going back and forth
between homes regularly[.]
(c) Tyler is aware of his parent’s conflict.
....
(e) Because the parties do not communicate
effectively and there are multiple exchanges during
the school week, Tyler has not had things for school
such as uniforms and supplies for classroom projects
and/or activities.
Substantial record evidence supports Findings 15A(a), (c), and (e). There is evidence
to support the lack of consistent rules as indicated in Finding 15A(b). We return to
these Findings as they relate to the nexus between the substantial change and Tyler’s
welfare and best interests, below.
No substantial evidence supports Finding of Fact 16A:
16[A]. The changes have affected Tyler positively in the
following ways:
(a) Due to Plaintiff’s new work schedule at the child’s
school, Plaintiff is able to be involved with the
children’s educational pursuits on a daily basis.
This has proved beneficial to Tyler to have a parent
employed at his school as evidenced by his good
grades.
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No evidence or prior findings tends to show Tyler was doing poorly in school prior to
Plaintiff’s employment therewith, nor is there evidence that his good grades are
related to his mother’s employment at the school.
Finding of Fact 27 is most appropriately considered as a conclusion of law, and
is discussed below.
C. Nexus Between Changed Circumstances; Effect on Welfare and Best Interests
Defendant argues the trial court failed to find facts showing the required nexus
between the changed circumstances and Tyler’s welfare, and erred by concluding:
4. Modification of the child custody provisions set forth in
the Consent Order is in Tyler’s best interest, promotes his
best interest, and directly addresses needs indicated by the
substantial changes in circumstances affecting Tyler’s best
interest.
“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.” Shipman, 357 N.C. at 474, 586 S.E.2d at 253. The trial court can only modify
an existing order after it determines the change affected the child’s welfare and
modification is in the child’s best interests. Id.
“[Be]fore 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.” Id. at 478, 586 S.E.2d at
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255 (citation omitted). Upon remand, the trial court attempted to meet this
requirement through modifying the wording of the findings it had previously made
in 2015, but failed to follow the mandate we prescribed in Mastny I.
The modification in Finding 17A, “Plaintiff is less likely, based on the evidence
presented, to involve the children directly in the parties’ conflict,” is unsupported by
the evidence. The trial court attempted to soften its findings concerning Plaintiff’s
behavior in order to “shoehorn” this finding and tie the changed circumstances to
Tyler’s welfare. The 2015 and 2017 modifications removed the conflict over the
“floating days,” but it appears Plaintiff would be less likely to involve the children in
the conflict only because she would not be provided an opportunity to unreasonably
deny Defendant access to the children, as she had in the past.
We previously discussed how Finding of Fact 15A, related to the 2015
modification:
Finding[] 15A(a) . . . involve[s] Plaintiff’s unwillingness to
allow Defendant access to Tyler for specific events. To the
extent Plaintiff’s unwillingness in this regard constituted
a substantial change that affected Tyler’s welfare, it was a
change of Plaintiff’s making, and the 21 December 2015
modification order does not address this situation. The
concerns implicit in findings 15A(c) and (d) are likewise not
addressed by the 21 December 2015 order. Rearranging the
custody schedule will not serve to make rules between the
two homes more consistent, nor remove Tyler from the
“middle” of any conflicts between Plaintiff and Defendant,
with the possible exception that removal of the “floating”
days dispenses with one source of prior conflict.
....
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In finding 15A(e) the trial court found that “[t]he children
have not had things for school such as uniforms and
supplies for classroom projects and/or activities.” By
reducing the number of times Tyler changes custody during
the school year to once every two weeks instead of once
every week, the trial court has reduced the chances that
Tyler might not have access to certain items he needs for
school because they have been left at the other parent’s
home. However, we do not find that this benefit is enough
to support a conclusion that modifying the consent order in
the manner done in the 21 December 2015 order was in
Tyler’s best interest. While it may well be correct . . . that
“[a] specific and detailed custody order will reduce the
conflict between the parties[,]” we hold there are
insufficient findings of fact concerning how the trial court’s
modifications will reduce conflict between Plaintiff and
Defendant to such an extent that the modifications made
were in Tyler’s best interest.
Mastny, 2017 N.C. App. LEXIS 101 at *22-24. This reasoning from Mastny I equally
applies to the current appeal.
Finding of Fact 27 appears to have been drafted by the trial court as a way to
remedy the errors in the 2015 order. Finding 27 states:
27. It is in the best interest of the minor child that the
number of back and forth exchanges during the school year
be reduced and that Tyler has a more consistent “home
base” during the school year. This will enable Tyler to have
more consistent rules and expectations at home during the
school year, and reduce the number of times he is missing
equipment or school supplies. It is [i]n Tyler’s best interest
that the “home base” be Plaintiff’s home for the following
reasons:
a. Plaintiff is employed at the children’s school and
has more time to spend with the [sic] Tyler during
the work/school week;
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b. Plaintiff is able to transport Tyler to and from
school daily;
c. Tyler’s time in the care of Defendant’s employees
and at Defendant’s office will be reduced;
d. Tyler will have regular and consistent time with
Reagan; and
e. Plaintiff is less likely to involve the children in the
conflict between the parties.
Again, no finding shows how changing custody would make the rules between the
homes more consistent, nor does the reduction of the number of times he may be
missing something for school justify a change in custody. See id.
Plaintiff’s employment at the children’s school does not have any bearing on
Tyler’s custody, nor does it support a conclusion that Plaintiff’s home is a more
appropriate “home base.” No evidence suggests Defendant has had any issue with
taking the children to or from school. The fact that Defendant employs a caretaker
for the children while he finishes his workday does not support a conclusion that his
home is not appropriate for weekday visitation. In fact, the record shows the children
attend after-school care or activities while Plaintiff also finishes her workday at the
school.
“There are no findings, and there is no evidence, that Tyler will be afforded
more opportunities to spend time with Reagan as a result of the modification[.]” Id.
at *23. As stated above, the evidence does not support the conclusion that Plaintiff
is less likely to involve the children in the parties’ conflict. “In short, these findings
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of fact do not support a conclusion that the modification of the existing custody
consent order, in the manner ordered by the trial court, served to promote Tyler’s best
interests.” Id.
The trial court failed to follow and apply the mandate set forth in Mastny I. As
before,
the trial court’s findings of fact are not sufficient to
demonstrate the nexus between the change of
circumstances and any effect on Tyler’s welfare. Further,
the 21 December 2015 order [and the 2017 order on
remand] fails to demonstrate that the particular remedy
chosen – a significant reduction in Defendant’s custodial
time for nine months with an increase in Defendant’s
custodial time for three months – addresses the concerns
raised in light of any change in circumstances.
Id. at *25.
We reverse the 2017 order and remand. In light of our holding, we do not
address Defendant’s argument concerning the policy of N.C. Gen. Stat. § 50-13.01
(2017).
V. Conclusion
The holding in Mastny I was clear: the trial court had failed to find a nexus
between the changed circumstances and Tyler’s welfare, and failed to support its
conclusion that the specified modification addressed the changes and was in Tyler’s
best interest. See Mastny, 2017 N.C. App. LEXIS 101 at *25-26. This Court also
provided detailed guidance based upon Shipman, 357 N.C. at 474, 586 S.E.2d at 253.
Instead of making findings upon remand to demonstrate the nexus between the
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substantial changes and Tyler’s welfare, the trial court merely rearranged and
reworded its previous order, bringing the same failures to this Court for a second
time.
It appears the trial court did not reconsider its conclusion there had been a
substantial change. It may still do so upon this remand. If the court still concludes
a substantial change has occurred, the trial court must make the required findings of
fact to demonstrate how the substantial change affects Tyler’s welfare. If a
substantial change did not occur, or if it did occur, but it did not affect the child’s
welfare, “the court’s examination ends, and no modification can be ordered.”
Shipman, 357 N.C. at 474, 586 S.E.2d at 253.
If the trial court finds a substantial change occurred that affected Tyler’s
welfare, the trial court must then determine if the proposed modification is in Tyler’s
best interest and is in response to the identified substantial changes. All of these
findings must be supported by substantial evidence in the record. As several years
have passed since a full evidentiary hearing was conducted in this matter, new and
additional evidence may be presented upon remand.
This Court previously reversed portions of the 2015 order and remanded. The
trial court subsequently entered the 2017 order, presently before us, which is
indistinguishable in substance from the 2015 order. We reverse the 2017 order,
effectively putting the parties back under the initial 2012 consent order.
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We again remand to the trial court for additional findings and conclusions
consistent with this opinion and the prior mandate set forth in Mastny I. Any
visitation due to Defendant under the 2012 consent order, but missed due to
Plaintiff’s actions and the trial court’s 2015 and 2017 orders, must be credited and
provided to Defendant upon remand. It is so ordered.
REVERSED AND REMANDED.
Judges ELMORE and ZACHARY concur.
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