Woodring v. Woodring, 227 N.C. App. 638

Background

Mother and father, formerly married, separated Jan 15, 2010; mother took two minors to Missouri; children were 14 and 10.
Father filed North Carolina custody action; June 14, 2010 temporary consent order granted father specified visitation, otherwise children with mother.
Mother allegedly failed to deliver children for visitations; father obtained contempt findings and same-day visitation in Feb 2011.
May 31, 2011 motion for visitation; July 2011 hearing; court struck mother’s alleged voluntary dismissal, reinstated father’s claim, and interpreted the order as giving mother primary physical custody with joint legal custody; issued July 14, 2011 ongoing visitation schedule; permanent custody hearing scheduled then continued and apparently not held.
August–September 2011 events: show-cause for summer visitation; September 8, 2011 order modified custody granting father primary physical custody and restricting mother’s visitation; order not served.
December 2011 Rule 59 motion for new trial/amendment; February 2012 ruling denied; appeal challenging the 9/8/2011 modification and related rulings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 14 June 2010 order was temporary or permanent	Father argues temporary became permanent by time.	Mother argues it remained temporary unless properly converted by time and process.	Temporary order did not become permanent by operation of time.
Whether the 14 July 2011 order was the controlling permanent custody order	Father contends 14 July 2011 was permanent and superseded earlier order.	Mother asserts error for not recognizing latest permanent order and treating 14 June 2010 as permanent.	14 July 2011 order was the controlling permanent order.
Whether findings from the earlier order can support a substantial change in circumstances	Father relied on post-order conduct to show change in circumstances.	Mother contends findings were res judicata and pre-date the last permanent order.	Findings were improperly considered where they post-date or are not after the last permanent order; res judicata applies to pre-14 July 2011 facts.
Whether the custodial parent can have exclusive control over visitation	Father argues the court can allocate visitation supervision to the noncustodial parent or designate.	Mother contends exclusive control to custodial parent over visitation is improper.	Court erred by granting exclusive control over mother’s visitation to the father.
Rule 59 motion and remand for new custody hearing	Mother seeks new or amended order; argues error in 9/8/2011 modification.	Mother contends the modification was improper and merits a new hearing.	Rule 59 motion should be granted; case remanded for new custody hearing.

Key Cases Cited

McIntyre v. McIntyre, 341 N.C. 629 (1995) (jurisdiction to modify custody; permanency of order)
Shoaf v. Shoaf, 282 N.C. 287 (1972) (definition of permanent vs temporary custody order)
Peters v. Pennington, 210 N.C. App. 1 (2011) (criteria for temporary orders and reconvening time)
LaValley v. LaValley, 151 N.C. App. 290 (2002) (temporary order becoming permanent; reasonable time standard)
Brewer v. Brewer, 139 N.C. App. 222 (2000) (reconvening date and temporariness; reasonable time)
Senner v. Senner, 161 N.C. App. 78 (2003) (duration of temporary orders; extenuating circumstances)
Simmons v. Arriola, 160 N.C. App. 671 (2003) (substantial change in circumstances standard)
Newsome v. Newsome, 42 N.C. App. 416 (1979) (new facts post-date prior order may affect custody)
Wehlau v. Witek, 75 N.C. App. 596 (1985) (res judicata considerations in custody matters)
Lang v. Lang, 197 N.C. App. 746 (2009) (newly undisclosed facts; post-order changes)
Ford v. Wright, 170 N.C. App. 89 (2005) (post-decree changes and prior issues)
Smith v. Barbour, 195 N.C. App. 244 (2009) (temporary vs permanent custody distinction)