Hinson v. Hinson ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-439
Filed: 5 November 2019
Stanly County, No. 18 CVD 113
CHANDA Y. HINSON, Plaintiff,
v.
MICHAEL ANTHONY HINSON, Defendant.
Appeal by plaintiff from order entered 14 February 2019 by Judge T. Thai Vang
in Stanly County District Court. Heard in the Court of Appeals 15 October 2019.
Adkins Law, PLLC, by C. Christopher Adkins, Sarah E. Bennett, and Kelsey J.
Queen, for plaintiff-appellant.
Parker Bryan Family Law, by Gene Brentley Tanner and Kaitlin S. Kober, for
defendant-appellee.
TYSON, Judge.
Chanda Hinson (“Plaintiff”) appeals from an order modifying child custody
(“custody order”) entered on 14 February 2019, which granted Michael Hinson
(“Defendant”) joint legal and primary physical custody of their two minor children.
We affirm in part and remand.
I. Background
Plaintiff and Defendant married on 19 January 2007 and separated on 1 June
2017. They are parents of two minor children: S.H., born in 2006, and T.H., born in
2012. Defendant has served as a firefighter with the Albermarle Fire Department in
HINSON V. HINSON
Opinion of the Court
Stanly County for nineteen years. During their marriage, Plaintiff worked in a
“traditional role” raising their children. Since their separation, Plaintiff works part-
time, sixteen hours per week, providing in-home medical services.
On 14 February 2018, Plaintiff filed a verified complaint for custody, child
support, equitable distribution, and attorney’s fees. Plaintiff alleged she was a fit
and proper person to have custody of the children, and their best interests would be
served by custody with her.
On 27 February 2018, Defendant filed an answer and counterclaim for the
same, as well as a motion for status quo order. Defendant alleged, in part:
3. The Plaintiff has stated that she intends to uproot the
minor children from their home town and relocate to
Lincoln County, North Carolina away from all family and
friends and everything they have ever known.
4. The Plaintiff has shown inconsistency by changing jobs
frequently.
5. The Defendant has been employed with the same
company for over eighteen (18) years.
...
9. The Defendant’s parents have been actively involved in
the care of the minor children.
Defendant requested the trial court to grant him joint custody if Plaintiff remained
in Stanly County, but moved for an award of primary custody if she moved to Lincoln
County.
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Opinion of the Court
On 7 March 2018, Plaintiff filed a reply to Defendant’s answer and
counterclaim. Plaintiff’s reply admitted she has “considered relocating and that she
let defendant know her thoughts.” Plaintiff denied the rest of the allegations in
paragraph 3, as well as those in paragraphs 4 and 9, of Defendant’s counterclaim.
The parties agreed to joint legal and physical custody of the children and
established a regular visitation schedule. The parties resolved all issues and the trial
court entered a consent judgment on 29 May 2018.
Just over two months later on 10 August 2018, Plaintiff filed a motion to modify
the terms of child custody she had agreed to in the consent judgment. Plaintiff alleged
a substantial change in circumstances affecting the welfare of the children had
occurred after the entry of the consent judgment on 29 May 2018:
including but not limited to defendant’s change in work
schedule, the children’s wishes, mental health issues,
scheduling problems, changes in living arrangements,
inappropriate communications directed to plaintiff and to
the children, refusal to children [sic] to contact plaintiff,
problems regarding eczema and such additional and
further changes which may be alleged and proven at trial.
Plaintiff asked the court to modify the consent order and grant her the primary care
and custody of the children.
On 20 November 2018, Defendant filed a motion to modify custody and also
another motion for a status quo order. Defendant also alleged a substantial change
of circumstances affecting the welfare of the children including but not limited to the
following:
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Opinion of the Court
a. The Plaintiff has missed a significant number of
visitations with the minor children since the entry of the
Consent Order filed May 29, 2018;
b. The Plaintiff has refused reasonable weekend visitation
with the Defendant when he was willing to assist with
childcare to avoid taking the youngest child to a funeral
service of a grandparent he does not even know;
c. The Plaintiff has refused the Defendant Thanksgiving
visitation with the minor children;
d. The Plaintiff continues to make derogatory references
about the Defendant to the minor children;
e. The Plaintiff is coaching the minor children of things to
say to their Defendant father in an attempt to alienate the
children from their father;
f. The Plaintiff is attempting to drive a wedge between the
minor children and the Defendant father;
g. The Plaintiff has denied telephone access with his minor
children and oftentimes refuses to answer the Defendant’s
calls and fails to allow them to call back;
h. When the Defendant does talk over the telephone with
his children, the Plaintiff hovers over them creating a
stressful situation in which the children cannot freely
communicate with their father;
i. The Plaintiff is refusing visitation with the children’s
paternal grandparents;
j. The Plaintiff intends to uproot the minor children and
relocate an hour and a half away from their home, friends,
school and family;
k. The Plaintiff is in a relationship with a married man who
has been separated from his estranged wife for years;
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Opinion of the Court
l. The Plaintiff is without a job and has been unable to
maintain steady employment since July, yet alleges she
has a home to move into in Lincoln County.
On 31 December 2018 and while these motions were pending, Plaintiff left
Stanly County and moved to Lincoln County. On 3 January and without notice to
Defendant, Plaintiff enrolled the minor children in new schools in Lincoln County.
Plaintiff asserted the children would benefit academically from the transfer, while
Defendant disagreed with their move and the change.
After a trial on the cross-claims for modification of custody on 7 and 8 January
2019, the trial court entered the custody order on 14 February 2019. The trial court
made thirty findings of fact, including:
11. The Court finds that the minor children have resided
continuously in Stanly County, North Carolina, their place
of birth, until December 31, 2018;
12. That the minor children have family, including
paternal grandparents, and friends here in Stanly County,
North Carolina;
13. That the Defendant has his parents and friends here as
a support group to assist him with the minor children;
14. That the minor children have been enrolled in Central
Elementary School and Albemarle Middle School where it
is evident that they are performing exceptionally well until
January, 2019;
...
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Opinion of the Court
16. The Plaintiff testified that [T.H.] has experienced
separation anxiety, however neither the defendant nor the
paternal grandparents have observed this behavior;
17. That the minor child, [T.H.], is involved in T-ball in
Stanly County, North Carolina and the Defendant Father
and paternal grandfather were actively involved as
assistant coaches;
18. That the minor child, [S.H.], is a member of the cross
country team at Albemarle Middle School;
19. That testimony shows that both minor children have a
network of friends here in Stanly County, North Carolina;
20. That the paternal grandparents have had a long and
continuous involvement in the lives of the minor children;
21. That both minor children are treated by local
pediatricians;
22. That both biological parents were actively involved in
doctor’s visits;
23. That the Defendant Father has been employed with the
Albemarle Fire Department for over nineteen (19) years;
24. That the paternal grandparents have been teachers
and residents of Stanly County for a period of
approximately forty-nine (49) years;
25. That unilaterally, the Plaintiff Mother withdrew the
minor children from their schools and enrolled them
elsewhere in Lincoln County, North Carolina, in January,
2019;
26. That the Plaintiff testified that she has no family
residing in Stanly County, North Carolina;
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Opinion of the Court
27. That the Plaintiff has no connection to family in Lincoln
County, North Carolina other than her sister, who did not
appear before the Court.
28. That the [P]laintiff testified that she only works sixteen
(16) hours per week providing inhome [sic] medical
services;
29. That the [D]efendant works every third day a twenty-
four hour shift;
30. That the [D]efendant has been diagnosed with some
mental health problems including post traumatic stress
disorder for which [he] has received counseling[.]
The trial court found and concluded a substantial change of circumstances
affecting the welfare of the minor children had occurred and vested with primary
physical custody with Defendant. Plaintiff timely filed and served a notice of appeal
of the custody order.
II. Jurisdiction
An appeal of right lies with 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
Plaintiff argues the trial court abused its discretion by concluding, without
adequate findings of fact: (1) there has been a substantial change of circumstances
affecting the welfare of the minor children; and, (2) it is in the best interests of the
minor children that Defendant be vested with primary physical custody.
IV. Standard of Review
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Opinion of the Court
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.
Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003) (citations and
internal quotation marks omitted).
“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.” Id. at 475, 586 S.E.2d at 254 (citation omitted).
“Whether those findings of fact support the trial court’s conclusions of law is
reviewable de novo.” Hall v. Hall, 188 N.C. App. 527, 530, 655 S.E.2d 901, 904 (2008)
(citation omitted).
“Absent an abuse of discretion, the trial court’s decision in matters of child
custody should not be upset on appeal. Abuse of discretion results where the court’s
ruling is manifestly unsupported by reason or is so arbitrary that it could not have
been the result of a reasoned decision.” Routten v. Routten, __ N.C. App. __, __, 822
S.E.2d 436, 441 (2018) (internal citation and quotation marks omitted), disc. review
denied, 831 S.E.2d 77 (2019).
V. Analysis
A custody order “may be modified or vacated at any time, upon motion in the
cause and a showing of changed circumstances by either party.” N.C. Gen. Stat. § 50-
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Opinion of the Court
13.7(a) (2017). In Shipman, our Supreme Court succinctly set forth the trial court’s
duties and obligations under the statute:
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.
Shipman, 357 N.C. at 474, 586 S.E.2d at 253.
A. Substantial Change in Circumstances
On appeal, Plaintiff argues the trial court erred in its conclusion of law that a
substantial change in circumstances affecting the welfare of the children had
occurred. Plaintiff’s motion to modify custody asserted the opposite position before
the trial court. She has waived this argument by asserting on appeal the opposite
position to that she asserted in the trial court.
“It is well established that a party to a suit may not change [her] position with
respect to a material matter during the course of litigation. Especially is this so where
the change of front is sought to be made between the trial and the appellate courts.”
Green v. Kelischek, 234 N.C. App. 1, 6-7, 759 S.E.2d 106, 110 (2014) (alteration in
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Opinion of the Court
original) (quoting Leggett v. Se. People’s Coll., 234 N.C. 595, 597, 68 S.E.2d 263, 266
(1951)).
In Green, the plaintiff “represented that her remarriage and proposed
relocation did constitute a substantial change in circumstances before the trial court.”
Id. After the trial court’s subsequent “best interests” determination was contrary to
what she anticipated, Green asserted “an inconsistent legal position on appeal in
order to avoid the modified custody plan set forth in the trial court’s order. This she
cannot do.” Id. at 6, 759 S.E.2d at 110.
Here, Plaintiff moved to modify the consent order and alleged a substantial
change in circumstances had occurred, which affected the welfare of the children, as
is required by N.C. Gen. Stat. § 50-13.7(a). She cited “changes in living
arrangements” as one substantial change among others to support her allegation.
Plaintiff cannot now assert an inconsistent legal position on appeal to avoid the trial
court’s custody order. Id. at 6, 759 S.E.2d at 110.
Plaintiff’s argument on appeal that the trial court erred by concluding a
substantial change of circumstances occurred is wholly inconsistent with the position
she asserted in the trial court. See id. The trial court did not err in concluding that a
substantial change of circumstances affecting the welfare of the children had
occurred. We proceed to the second step of the trial court’s two-fold analysis.
B. Best Interests of the Children
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Opinion of the Court
Plaintiff argues the trial court abused its discretion by concluding the best
interests of the minor children are served by an award of joint legal and primary
physical custody to Defendant and secondary physical custody to Plaintiff. Plaintiff
challenges the adequacy of the findings of fact in the custody order.
“[B]efore 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.” Shipman, 357 N.C. at
478, 586 S.E.2d at 255 (citation omitted). Where a substantial change of
circumstances “involves a discrete set of circumstances such as a move on the part of
a parent, . . . the effects of the change on the welfare of the child are not self-evident
and therefore necessitate a showing of evidence directly linking the change to the
welfare of the child.” Id. at 478, 586 S.E.2d at 256 (citations omitted) (emphasis
original).
A trial court’s findings of fact in a child custody order must “resolve the
primary disputes between the parties and . . . explain why awarding primary custody”
is in the children’s best interests. Carpenter v. Carpenter, 225 N.C. App. 269, 278, 737
S.E.2d 783, 790 (2013).
Effective appellate review of an order entered by a trial
court sitting without a jury is largely dependent upon the
specificity by which the order’s rationale is articulated.
Evidence must support findings; findings must support
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Opinion of the Court
conclusions; conclusions must support the judgment. Each
step of the progression must be taken by the trial judge, in
logical sequence; each link in the chain of reasoning must
appear in the order itself. Where there is a gap, it cannot
be determined on appeal whether the trial court correctly
exercised its function to find the facts and apply the law
thereto.
Id. at 279, 737 S.E.2d at 790 (quoting Coble v. Coble, 300 N.C. 709, 714, 268 S.E.2d
185, 190 (1980)).
In Carpenter, the trial court made eighty findings of fact, but “many of the
findings of fact [were] actually recitations of evidence which [did] not resolve the
disputed issues.” Id. at 273, 737 S.E.2d at 787. A primary disputed issue in Carpenter
was one parent’s excessive alcohol consumption. Id. at 274, 737 S.E.2d at 787. The
court made numerous findings of fact which mentioned alcohol consumption, reciting
the evidence presented in briefs and from testimony at trial, but “[n]one of these
findings resolve the real issue, which . . . was whether plaintiff abuses alcohol to an
extent that it may have an adverse effect” on his child. Id. at 276, 737 S.E.2d at 788.
“The findings merely recognize the existen[ce] of a dispute and some evidence which
may bear upon that dispute without resolving it. There are no findings that either
party actually does abuse alcohol or that either party’s drinking has adversely
affected” the child. Id.
Based upon the trial court’s findings of fact here, the primary issues supporting
its conclusions of law were: the schools, doctors, and extracurricular activities the
children attended; the disparate work schedules of the parties; and the relative
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Opinion of the Court
support groups of family and friends each party had in their respective county. The
trial court made thirty findings of fact, which touched on all of these issues, but
resolved none of them. These findings are not self-executing.
The trial court found Plaintiff “unilaterally . . . withdrew the minor children
from their schools and enrolled them elsewhere in Lincoln County, North Carolina,
in January, 2019.” The court also found “it is evident that they are performing
exceptionally well until January, 2019” in their former schools. Yet the court did not
make any finding of fact regarding the effects of either the withdrawal or new
enrollment had on the children’s education or well-being. Without adjudication and
resolution of the findings of fact, “it cannot be determined on appeal whether the trial
court correctly exercised its function.” Id. at 279, 737 S.E.2d at 790 (quoting Coble,
300 N.C. at 714, 268 S.E.2d at 190).
The trial court found that Plaintiff “only works sixteen (16) hours per week”
while Defendant “works every third day a twenty-four hour shift.” Whether these
findings are positive or negative for either party, we cannot say from just this
recitation. See id. at 278, 737 S.E.2d at 789-90 (“Finding 72 states that ‘[the child]
has returned from visitation with his father with muddy shoes and dirty clothes. We
are unable to discern if this is a positive finding, as it may indicate [father] has been
engaging in healthy outdoor activities with his son, or negative, as it may indicate
[father] has failed to properly address the child's hygiene issues. Perhaps it is both.”).
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Opinion of the Court
Here, the court may be indicating Plaintiff’s lesser hourly work schedule is
concerning compared to Defendant’s as far as supporting the children financially, but
it equally could indicate Defendant’s regular day-length shifts are concerning
compared to Plaintiff’s greater availability to be present with the children. “Perhaps
it is both.” Id.
The custody order in this case merely recognizes the existence of disputes and
identifies some evidence from both parties that may bear upon those disputes without
resolving them. As in Carpenter, the findings of fact do not explain why it is in the
best interests of the children for Defendant to be granted primary physical custody.
See id. This lack of resolution mandates remand for additional findings of fact.
Because we remand on this issue, we need not reach Plaintiff’s remaining
arguments. However, the decree does not resolve all of the disputed legal issues.
Notably, Plaintiff asserts the decree does not resolve which school system the children
should attend, or how to resolve that issue, “despite that issue being a, if not the,
primary concern discussed at trial.”
VI. Conclusion
By asserting inconsistent legal positions on the issue of whether a substantial
change of circumstances affecting the welfare of the minor children had occurred
before the trial court and this Court, Plaintiff waived that argument on appeal. That
portion of the trial court’s order is affirmed.
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Opinion of the Court
The trial court’s conclusion for Defendant to be granted primary physical
custody and Plaintiff to be granted secondary physical custody is remanded for
adjudication and resolution of the evidence and for entry of findings of fact showing
why the award in the custody order was in the children’s best interests.
The trial court shall adjudicate and resolve conflicts in the evidence and make
additional findings of fact to support the conclusions and legal issues in its decree.
Whether to take additional evidence upon remand rests within the trial court’s
discretion. It is so ordered.
AFFIRMED IN PART AND REMANDED IN PART.
Judges BRYANT and BROOK concur.
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