Moore v. Moore ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA13-803
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
JOHN T. MOORE, JR.,
Plaintiff,
v. Henderson County
No. 05 CVD 2007
SUSAN J. MOORE,
Defendant.
Appeal by defendant from order entered 19 March 2013 by
Judge Mack Brittain in Henderson County District Court. Heard
in the Court of Appeals 10 December 2013.
PRINCE, YOUNGBLOOD & MASSAGEE, PLLC, by Boyd B. Massagee,
Jr., for plaintiff.
Donald H. Barton, for defendant.
ELMORE, Judge.
On 4 February 2013, Susan J. Moore (defendant) filed a
motion for change of custody, praying the trial court to enter
an order granting her visitation with her minor children. In
response, John T. Moore, Jr. (plaintiff) filed a motion to
dismiss pursuant to N.C.R. Civ. P. 12(b)(6). On 19 March 2013,
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Judge Mack Brittain granted plaintiff’s motion and dismissed the
action, concluding as a matter of law that 1) he was without
authority to modify the 28 June Order, and 2) that plaintiff
failed to allege in her motion for modification a substantial
change in circumstances sufficient to warrant modification of
the Order. Defendant now appeals. After careful consideration,
we reverse the trial court’s order and remand for further action
consistent with this opinion.
I. Factual Background
The parties to this action were married on 14 July 2001 and
separated on 30 June 2012. Two children were born of the
marriage, the first in 2002 and the second in 2004. Plaintiff
initiated this action in 2005 seeking, inter alia, custody of
the children under Chapter 50 of the North Carolina General
Statutes.
The parties entered into their most recent child custody
consent order (the Order) on 28 June 2012, and it is the terms
of this Order that are relevant to this appeal. The Order
placed the minor children in the permanent sole custody of
plaintiff with the marital home sequestered for the benefit of
plaintiff and the children. The Order does not include any
findings of fact as to whether granting defendant visitation
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would be in the children’s best interests. In fact, it is
completely silent on the issue of visitation. Defendant
reviewed the terms and thereafter signed the Order pro se.
On 9 August 2012, defendant, through counsel, filed a Rule
60(b) motion to set aside the Order, alleging duress and undue
influence. On 11 October 2012, the trial court denied the
motion, concluding that defendant’s poor life choices, not any
improper action by plaintiff, led to the issuance of the Order.
Defendant neither timely appealed the entry of the June 2012
custody Order nor the trial court’s denial of her Rule 60(b)
motion.
II. Motion for Change of Custody
Defendant argues that the trial court erred in dismissing
her motion for modification of custody. Specifically, she
contends that, on its face, her motion alleged a substantial
change in circumstances sufficient to allow for a hearing on the
merits. We agree that the trial court erred; however, we reject
defendant’s argument. The dispositive question before us is
whether the Order on which defendant’s motion for modification
of custody rests is permanent or temporary.
We have classified custody orders as being either
“temporary” or “permanent.” However, the term “permanent” is
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slightly misleading, because “[a]fter an initial custody
determination, the trial court retains jurisdiction of the issue
of custody until the death of one of the parties or the
emancipation of the youngest child.” McIntyre v. McIntyre, 341
N.C. 629, 633, 461 S.E.2d 745, 748 (1995). “[W]hether an order
is temporary or permanent in nature is a question of law,
reviewed on appeal de novo.” Smith v. Barbour, 195 N.C. App.
244, 249, 671 S.E.2d 578, 582 disc. review denied, 363 N.C. 375,
678 S.E.2d 670 (2009) (emphasis added). “The same standards
that apply to changes in custody determinations are also applied
to changes in visitation determinations.” Simmons v. Arriola,
160 N.C. App. 671, 674, 586 S.E.2d 809, 811 (2003).
Permanent child custody orders can only be modified if the
trial court finds there has been a substantial change in
circumstances affecting the welfare of the child and that the
modification is in the child’s best interests. Woodring v.
Woodring, ___, N.C. App. ___, ___, 745 S.E.2d 13, 18 (2013).
Alternatively, a temporary order may be modified solely upon the
trial court finding that such proposed modification is in the
“best interests of the child.” Arriola, 160 N.C. App. at 674,
586 S.E.2d at 811. Thus, the party moving for modification of a
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temporary order need not allege a “substantial change in
circumstances.” Id. at 674, 586 S.E.2d at 811.
An order is temporary if it either (1) states a “clear and
specific reconvening time” that is reasonably close in proximity
to the date of the order; or (2) does not determine all the
issues pertinent to the custody or visitation determination.
Brewer v. Brewer, 139 N.C. App. 222, 228, 533 S.E.2d 541, 546
(2000). Temporary orders may become permanent by operation of
time. Anderson v. Lackey, 163 N.C. App. 246, 254–55, 593 S.E.2d
87, 92 (2004). However, “a temporary custody order that does
not set an ongoing visitation schedule cannot become permanent
by operation of time.” Woodring, ___ N.C. App. at ___, 745
S.E.2d at 19 (emphasis added).
The granting of visitation rights is a judicial function
which may not be delegated to the custodial parent. In re
Custody of Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849
(1971). Accordingly, we charge the trial court with safeguarding
“[t]he feasible exercise of a parent’s right of visitation” by
including “a definite provision [for visitation] in the order or
decree of the court awarding the custody of the child to another
person.” Id. at 550, 179 S.E.2d at 848; see also Brewington v.
Serrato, 77 N.C. App. 726, 733, 336 S.E.2d 444, 449 (1985)
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(concluding that a general provision permitting visitation “at
such times as the parties may agree” cannot be sustained because
it “effectively gives plaintiff the exclusive power to deny
defendant reasonable visitation with the child by withholding
his consent”); Arriola, supra, (finding that the parties’
initial custody order was not final because it failed to specify
visitation periods).
In this case, the trial court did not include a visitation
provision in the Order and, therefore, it has not determined all
of the issues. As such, the Order has remained temporary,
making the applicable standard of review the “best interests of
the child” standard, not a “substantial change in circumstances”
standard. Arriola, supra. Accordingly, defendant was only
required to allege that it was in the children’s best interests
to modify the Order to provide for visitation. She did so in
paragraph 3 of her motion: she “has a suitable home for the
minor children and it would be in the best interest[s] of the
minor children that they have visitation with their mother.
Defendant is a fit and proper person to have visitation with the
minor children.”
Contrary to Judge Brittain’s conclusion, the trial court
does, in fact, have authority to modify the Order. See Arriola,
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160 N.C. App. at 676, 586 S.E.2d at 812 (holding the district
court did not err in applying the “best interests of the child”
standard, instead of the “substantial change in circumstances”
standard, and in modifying the provisions of the temporary child
custody consent order). We remand this case to the District
Court of Henderson County with instructions to conduct a hearing
and enter an order specifying reasonable visitation. Serrato,
77 N.C. App. At 733, 336 S.E.2d at 449 (remanding to district
court for modification of a temporary child custody order upon
concluding that “it was the duty of the trial judge to safeguard
defendant’s right to visitation by including a provision in the
order specifying visitation periods”). The trial court shall
utilize the “best interests of the child” standard to establish
reasonable visitation. Again, barring extraordinary
circumstances, a parent should not be denied the right of
visitation. However, if the trial court determines that
defendant should be denied reasonable visitation, the written
order shall include findings of fact specifying that defendant
is unfit to visit the children or that granting visitation
rights would not be in the children’s best interests. N.C. Gen.
Stat. § 50–13.5(i) (2013).
III. Conclusion
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For the abovementioned reasons, the trial court erred in
dismissing plaintiff’s action. The Order is a temporary child
custody order subject to modification by the trial court upon
finding that the proposed modification is in the children’s best
interests. Accordingly, we reverse and remand to the trial
court for further action consistent with this opinion.
Reversed and remanded.
Judges McGEE and HUNTER concur.
Report per Rule 30(e).