Welch v. Willey , 776 S.E.2d 364 ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1264
Filed: 21 July 2015
Pitt County, No. 08-CVD-3727
FRANCIS JOHN CARL WELCH, Plaintiff,
v.
PEYTEN GWEN WILLEY, Defendant.
Appeal by Defendant from order entered 3 July 2013 by Judge P. Gwynett
Hilburn in Pitt County District Court. Heard in the Court of Appeals 23 April 2015.
No brief for the Plaintiff-Appellee.
Teresa DeLoatch Bryant, for the Defendant-Appellant.
DILLON, Judge.
Peyten Gwen Willey (“Mother”) appeals from the trial court’s order granting a
motion to dismiss in favor of Francis John Carl Welch (“Father”). For the following
reasons, we reverse.
I. Background
Mother and Father are the biological parents of a minor child. Father sought
and obtained temporary custody of the child in 2008 based on Mother’s struggles with
addiction and associated risks of harm to the child. In 2009, Father was awarded
primary physical custody, and Mother was granted supervised visitation.
WELCH V. WILLEY
Opinion of the Court
In 2013, Mother moved to modify the 2009 custody order, seeking greater
visitation based on changed circumstances. She alleged in her motion facts which
tended to show how she had changed for the better and that increased visitation with
her would be in the best interest of the child.
In 2014, Mother’s motion came on for hearing in the district court. Father
orally moved to dismiss Mother’s motion for failure to allege specifically that the
changed circumstances alleged in her motion affected the child in a positive way. The
court granted the Father’s oral motion, entering an order dismissing Mother’s motion
without prejudice. Defendant entered written notice of appeal.
II. Analysis
Mother argues that the trial court erred in granting Father’s motion to dismiss
her motion seeking greater visitation. Specifically, Mother contends that the
apparent basis for the court’s ruling – that she did not allege a causal connection
between the change of circumstances asserted and the welfare of her child – is not an
allegation that must be pleaded in a motion to modify custody. We agree.
N.C. Gen. Stat. § 50-13.7(a) states that an order for custody may be modified
“upon motion in the cause and a showing of changed circumstances by either party or
any interested.” N.C. Gen. Stat. § 50-13.7(a) (2013). Our Supreme Court has held
that “changed circumstances” means those changes that affect the welfare of the
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WELCH V. WILLEY
Opinion of the Court
child, and that those changes can either adversely affect the child or benefit the child.
See Pulliam v. Smith, 348 N.C. 616, 618-19, 501 S.E.2d 898, 899 (1998).
Regarding the motion that must be filed, Rule 7(b) of our Rules of Civil
Procedure states that the motion “shall be made in writing, shall state with
particularity the grounds therefor, and shall set forth the relief or order sought.”
In the present case, Mother alleged that she had been “successful in dealing
with a substance abuse problem”; that she had completed an education program and
was gainfully employed; that she had a stable home environment; that the parties
had informally adjusted visitation by expanding the child’s visitation with Mother;
and that it would be in the best interests of the child to allow Mother greater
visitation. Nevertheless, the trial court concluded that “[Mother’s] failure to allege
additionally a causal connection between any asserted change in circumstance and
the impact, if any, on the welfare of the minor child, is fatal to [Mother’s] motion.”
We disagree. We believe, rather, that the contents of Mother’s motion adequately put
Father on notice as to the relief Mother was seeking and the grounds she was basing
it on. Mother is stating in her motion that she is in a much better place in her life;
that she can provide a good environment for the child during visitation; and that her
improvement is a beneficial change in circumstances for the child. Therefore, we hold
that the trial court erred in dismissing Mother’s motion. Accordingly, we reverse the
order of the trial court and remand the matter for a hearing on Mother’s motion.
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WELCH V. WILLEY
Opinion of the Court
III. Conclusion
The trial court’s order dismissing Defendant’s motion for failure to state a
claim upon which relief can be granted is reversed.
REVERSED.
Judges ELMORE and Judge GEER concur.
Report per Rule 30(e).
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