Farmer v. FarmerÂ
253 N.C. App. 681
| N.C. Ct. App. | 2017Background
- Parents divorced after separation; initial custody order (Oct/Nov 2006) awarded Mother primary legal and physical custody and limited visitation to Father (temporary order contemplated reconsideration).
- Father filed a 2012 motion to modify custody/visitation seeking expanded holiday and summer visitation because children could travel to Georgia where he lived.
- A January 2015 order (entered long after the hearing) purported to re-determine custody/visitation, awarding Mother primary custody and Father expanded visitation (month of July and other periods).
- Father successfully moved in June 2015 to set aside the Jan. 2015 order (court cited mistake regarding Father’s six-hour distance) and the court eliminated alternating weekend visits and granted extended summer visitation; the order also suspended child support during periods of custody.
- Mother sought relief (stay, new trial/reopen evidence, or Rule 60 relief) arguing no evidence supported the June 2015 modifications; after further proceedings the court entered a February 2016 order setting aside the June 2015 order, dismissing Mother’s motions as moot, and again modifying custody/visitation without an evidentiary finding.
Issues
| Issue | Farmer (Mother) — Argument | Farmer (Father) — Argument | Held |
|---|---|---|---|
| Venue challenge | County lacked proper venue because neither party resided there | Venue not objected to below; proceedings proceeded in Robeson County | Waived on appeal; court declines to address venue challenge |
| Modification of custody/visitation without evidence | Trial court erred; Feb. 2016 order modifying custody/visitation is unsupported because no evidence was presented and findings are insufficient | Court acted within discretion to correct prior orders; Father relied on prior motions and orders | Vacated parts of Feb. 2016 order that modified custody/visitation; remanded for findings and, at court’s discretion, further evidence/hearing |
Key Cases Cited
- Shipman v. Shipman, 357 N.C. 471 (trial court must find substantial change in circumstances affecting child and that modification is in child’s best interest)
- Davis v. Davis, 229 N.C. App. 494 (modification requires showing substantial change affecting children’s welfare)
- Spoon v. Spoon, 233 N.C. App. 38 (appellate review limited to whether findings are supported by substantial evidence and support conclusions of law)
- In re D.Y., 202 N.C. App. 140 (orders affecting juveniles cannot be entered after hearings with no evidence; remand required)
- Evans v. Evans, 138 N.C. App. 135 (custody orders must contain sufficient factual findings; otherwise vacatur and remand required)
- Crosby v. Crosby, 272 N.C. 235 (court must make factual findings so appellate court can determine child’s welfare considerations)