*1 IN THE COURT OF v. SHIPMAN App. (2002)]
[155 a true information BOA, without such well as the Cox as Susan repair had, and a true cost of not be repair cost could of the estimate put into evidence. was not that, under decision supports the BOA’s foregoing evidence its burden Ordinance, Lamar did not meet Zoning
the Hendersonville repair sign and the between the cost proving the ratio of may quality. While Lamar comparable sign of replacement value of facts, prove the BOA attempt to these in an presented have evidence supports this Where the whole record enough. it was concluded may substitute court nor this Court determination, “neither the trial Adver., Outdoor Board’s.” Whiteco for that of the judgment its own holding of our light at 74. App. at record, also hold that we the whole decision was BOA’s arbitrary capricious, as the BOA nor neither decision was the BOA’s carry its did not that Lamar reasonably from the evidence concluded proof. burden of decision upholding the superior court’s order
Thus, we affirm the Adjustment. City Zoning Board of Hendersonville Affirmed. concur. WYNNand CAMPBELL
Judges SHIPMAN, Appellant SHIPMAN, DEAN v. CASEY APRIL Plaintiff, Appellee Defendant, No. COA02-332 2002) (Filed December primary Custody, Support, and Visitation— 1. Child evidence changed circumstances — substantial — primary cus- in the in a which resulted In an action father, there plaintiff mother to defendant tody of the child trial court’s supporting the in the record evidence was substantial remarriage, planned transience, rights, and these of defendant’s plaintiff’s denial had been a substan- that there conclusion supported the of the child. affecting the welfare change in circumstances tial IN THE COURT OF APPEALS SHIPMAN v. SHIPMAN *2 2. Support, Custody, Child support— and Visitation—
change Support Agency of notice to Child —lack County
Lack of notice .to the Support Henderson Child Agency change support of a in defendant’s child obligation and arrearage did not in change being result appeal. disturbed on agency Lack of notice to the is not fatal where there was a custody in causing circumstances modification agency and the prior had through appearance notice of its testifying agent. 3. Child Support, Custody, support changed and Visitation— — custody existing arrearage to new — — credited
The trial support court did not err in a custody child and by action compelling payment by immediate defendant of an arrearage primary custody where changed was defendant, to plaintiff went receiving paying support, to and the court arrearage plaintiffs credited the new obligation. support, Plaintiff receives the but in a different form.
4. Trials— court’s comments to witness — irrelevant custody court did not err in a and case
by instructing employee, a bank plaintiff, witness for about proper procedures subpoenaed for documents; the court’s com- ments were compliance directed toward future and were irrele- vant to the issues at bar.
Judge dissenting. Walker Appeal plaintiff from an order entered 5 October 2001 Judge Laura J. Bridges County Henderson District Court. Heard in Appeals the Court of 14 November 2002. plaintiff-appellant.
WadeHall for Groce; Edwin R. Carr, andBazzle & P.A., by Eugene M. III, Carr defendant-appellee. TYSON,Judge. Background
I. April Shipman Casey (“plaintiff’) Shipman and (“defend- Dean ant”) parents are the Spencer Shipman Reed (“Spencer”), born July April 1999, 1998. On parties after separated, plain- tiff custody filed an action Spencer for sole requested that pay support. defendant be ordered to On 5 October IN THE COURT OF SHIPMAN custody joint awarding them
parties entered into a consent order Spencer. plaintiff primary care, and control of granting and ordered established visitation for defendant consent order also support. $110.00 per week in child him to Spencer, May 2001, moved for sole On 9 defendant Spencer’s affecting wel- alleging a material support award trial to vacate the child fare. He also moved the payment arrearage. of his claim of a material after of his plaintiffs relationship circumstances, alleged defendant Christopher boyfriend, Vaughn, created an “abusive” with her Spencer’s best inter- living environment that was not “neglectful” comply with alleged Defendant further refused est. *3 rights as set forth the consent order. his visitation motion, plaintiff reply denied defendant’s her to contempt him in and asked the trial court to hold allegations pay child as wages garnished his be for failure to order required by the consent order. pertinent 2001, following made the
On 5 October the trial court motion for modification of the hearing after a on defendant’s custody support obligation: order and child 5, on October 1. That the Consent Order entered this cause joint Spencer 1999, provided parties for the to have July 8, 1998, primary of the child Shipman, born with the speci- Plaintiff and the Defendant to have certain to be with the fied visitation with the child. in a Mother, provided for the child good
4. That the Plaintiff is day day. to of the child’s needs from good manner and took care parenting good Father, has Defendant has been 5. That the capable providing for the child. skills and is for [sic] Plaintiff, part the conduct of the large That a and direct 6. deprive the year been to especially during has by deceit, child, and that visitation of the minor Defendant of his minor Vaughn,with the in and lived with Chris the Plaintiff moved on that was entered present, in violation of the Order of her not inform the Defendant and she did October give direct and phone The Plaintiff did not address or number. examined questions when she was cross revealing answers to IN THE COURT OF APPEALS SHIPMAN v. SHIPMAN visitation, she has denied the Defendant until this matter came on September Hearing 6, 2001, January, 2001. 7. That the child knows the Father/Defendant, loves the glad Father/Defendant and was to see him when visitation took place. The Father/Defendant had a good relationship with the enjoyed child, child, visiting with the loves the child and the child Father/Defendant, loves the and the child seeing looks forward to Father/Defendant, though even the Plaintiff would not allow the Father to see the child or the Paternal Grandmother to see the child. It was also revealed to the court that the Plaintiff allowed stay go Georgia child to with the Plaintiffs Mother in the same home where the molested, Plaintiff was and the Plaintiff has deprived the child of interaction with the Father/Defendant and family, Bishop, his including Sheila the Paternal Grandmother. 8. blameless, The Defendant has not been as he has failed to do, as he was ordered to and at the time of the hear- ing, the $5853.22, Defendant was in arrears in the amount of only pay pay, would when he was made to and he has not done what he done, provide should have and that sup- was to some port, though, testimony even job was that he had during lost a this time. Kelly Squirer
9. The Defendant and home, have a three bedroom provide Kelly can child, Squirer year for the has a four old son help and can with the child. *4 plaintiff
10. ... home, does not have a has worked at the [T]he job period same for a time, considerable of but has moved numer- times, instability. ous which shows 11. That the Court finds that there has been a substantial entry circumstances since the of the Order in this cause on 5, 1999, October affecting the welfare of the minor child. parties joint The trial court awarded the granted and defend- primary care, custody ant Spencer. and control of The trial court also plaintiff established rights and ordered her to earnings based on her $5853.22, after a credit of by arrearage as set the trial court at the hearing.
II. Issues The issues (1) are whether there was sup- substantial evidence to port findings the trial court’s sup- fact and whether those findings OF
IN THE COURT v. SHIPMAN erred in the trial court (2) law and whether port conclusions of arrearage. support obligation defendant’s child modifying Support Findings Conclusions of Law Fact III.
by competent evidence and that [1] Plaintiff contends that the trial court’s findings findings do are not supported its order custody cases, the In custody to defendant. awarding primary Browning Helff, 136 with broad discretion. is vested trial court evi (2000). If there is substantial App. 420, 423, S.E.2d a motion for on trial court’s in the record dence appeal. custody, findings are conclusive such modification of child of law are conclusions at 97-98. The trial court’s at 524 S.E.2d Id. at 98. Id. at de novo. reviewable has been a substantial of fact that “there finding entry in this cause on of the Order since restated minor is 5, 1999, affecting the welfare of the child[]” October findings of fact. the other law and as a conclusion of The trial court supports findings of fact. those Substantial evidence parents who had made mistakes parents good both were found that plaintiff vio- had The trial court found Spencer’s lifetime. during Vaughn in with Chris cohabiting (1) consent order lated the about her whereabouts deceiving defendant Spencer’s presence, (2) deprived his son which visitation with denying defendant (3) family. The trial his father’s with his father and Spencer of interaction mother Spencer to visit her took further found that stepfather to live with Plaintiff’s mother continued Georgia. younger. plaintiff when she was molested who had and his that defendant made of fact trial court also home, were in a three-bedroom purchased and lived had girlfriend contrast, provide for the child. married, and could to be engaged have a home” as she plaintiff “does not found that the trial court a home home, into and out of grandmother’s in and out of her moved home. grandmother’s and back into her Vaughn, with Chris with plaintiff’s cohabitation upcoming marriage, Defendant’s order, plaintiff’s denial in violation of the consent Vaughn Chris are plaintiff’s transience Spencer, with defendant’s visitation circum- a substantial cumulatively to establish sufficient *5 welfare of the child. affecting the stances our (1998), 616, 501 S.E.2d Smith, 348 N.C.
In Pulliam v.
making discretion
the trial court’s
Supreme Court broadened
IN THE COURT OF APPEALS
SHIPMAN v. SHIPMAN
determination whether
changed
circumstances affected the wel-
child,
fare of the
showing
change
and stated “a
of a
in circumstances
is,
likely
be,
that
or is
may
to the child
also warrant a
beneficial
custody.”
620,
Id.
(emphasis
at
as would end the vicious accompanying so often such contests, it unless be found that some change of circumstances has affecting occurred the welfare require of the child so as to modifica- ” tion of (quoting Shepherd the order.’ Id. Shepherd, 71, 273 N.C. 361 (1968)). This Court has held that the denial of visitation with a child’s father is sufficient to constitute a in circumstances affecting the welfare of the child. Woncik, App. 244, 248, Woncikv. S.E.2d (1986). . . . interference “[W]here [with pervasive becomes so as to harm the relationship child’s close order] parent, with the noncustodial there can be a conclusion drawn that parent the actions of the disregard custodial show a for the best inter- child, ests of the warranting change custody.” Id. findings supported by of fact are substantial evi-
dence in the record. The of fact the conclusion of law that there was a substantial in circumstances affecting the child. All including (1) plaintiff’s fact transience, (2) remarriage, plaintiffs and (3) denial of defendant’s rights supported by are substantial evidence and affect the welfare of the child. Support
IV. Modification of Child [2] Plaintiff contends the trial court erred in modifying defend ant’s child obligation and arrearage. objects Plaintiff to the grounds modification on the (1) the court erred in modifying defendant’s child arrearage without giving notice to the County Support Henderson Agency Child (2) the court erred in aiding imposed defendant avoid his
compelling payment and penalizing for not being finan cially stable. County
The Support Henderson Child Agency had intervened to past assist in the support. collection of defendant’s due child agency represent plaintiff’s did not during trial, interests but a agency member of that testified at trial. Plaintiff had retained her *6 OF APPEALS IN THE COURT v. SHIPMAN SHIPMAN App. (2002)] N.C.
[155 is attorney. agency Lack of notice to the modification own causing a cus- there was a not fatal where the tody prior through notice agency and the modification appearance 50-13.7(a) (2001); See testifying agent. § of its N.C.G.S. App. 671, 675 Kowalick, v. Kowalick parent changed custody from one to another is a (1998) (change supporting party’s child supporting circumstance modification of the support obligation.)
cizes the trial court for not [3] Plaintiffs other argument regarding compelling immediate support generally criti payment of defend Although payment immediate was arrearage. ant’s child no hearing the at the date the compelled, arrearage the credited secondary parent. plaintiff’s support as custodial merely emphasizes law but general argument supporting This cites no Plaintiff will the child but different form. the facts. receive were We disturb trial of fact which decline to court’s upon substantial evidence. based
V. Conduct of the Trial Court advising plaintiff’s witness. Debra [4] Plaintiff argues that the trial court erred Potter, a bank interacting employee, with and testified deposits judge bank instructed about to defendant’s account. procedures subpoenaed regarding proper documents. Ms. Potter compliance The were directed toward future trial court’s comments issues at bar. were irrelevant
VI. Conclusion supported fact were that the
We hold trial supported conclusions of law. substantial evidence and their trial affirmed. order of the court is
Affirmed. concurs.
Judge McCULLOUGH WALKERdissents.
Judge
WALKER,Judge, dissenting. majority opinion affirming the trial respectfully
I
dissent from
obligation.
and the
court’s modification
'
THE COURT
IN
OF
SHIPMAN v.
A
of cir-
determination
there has been substantial
con-
legal
cumstances to warrant modification of child
is a
adequate
findings.
clusion which
Garrett,
be
must
Garrett
App. 192,
(1995).
determining
Here, the trial found that “there has been a substantial change entry in since the the in of Order this cause on 5, 1999, affecting October Although the welfare of the minor child.” finding, change labeled as a the a determination that substantial affecting circumstances has occurred the welfare of is a the child by legal supported adequate and must findings. conclusion be However, only parties’ the trial court focused the on conduct any findings failed to make as to how this conduct sub- constituted a change stantial in circumstances and affected the child’s welfare. plaintiff The trial court found the violated order had the consent boyfriend support with her cohabitating as for a substantial change However, circumstances. trial court that the also found cohabitating girlfriend during defendant was with his time the same period, a of Conveniently, also violation the consent order. trial the disregard court seems to defendant’s violation of the consent order as girlfriend it noted the planned wedding defendant his their for the day only speculate hearing. after the I can trial whether the plaintiff ruling have been would different if simi- offered lar immediately following evidence that was to she be married the custody hearing. principles support obligor
One of the cardinal of is that child the required is to child obligation though the even visitation privileges required cannot be exercised as the trial court’s order. Appert Appert, App. 27, 41, See N.C. S.E.2d 350 (1986) duty parent (stating of a his “the or her children is not dependent upon granting rights, dependent the of nor it is upon parent’s opportunity the rights”); exercise visitation 52C-3-305(d) apparent reason, Gen. (2001). Here, Stat. for no the § THE OF APPEALS IN COURT v. POWELL ex eel. POWELL CTY. DSS SCOTLAND support arrears which child failed to enforce defendant’s trial court provided the Instead, the trial court plaintiff. due to were may support obligation she any future child against with a “credit” the arrears modification of Again, incur. the trial court’s premised disapproval relating conduct be seems to its contrary law of to the this visitation with the child to defendant’s sup- the however, modification of If, the trial court based the State. using the in circumstances port obligation on a substantial law, it make this may under our should which be considered factors apparent in and conclusions. its basis how is as to trial court’s order devoid Because the as to sub- affects child’s welfare so constitute parties’ conduct circumstances, I conclude modification stantial by adequate find- is not for a Thus, this matter new I would vacate the order and remand ings. circum- as to whether there has been substantial hearing *8 affects the welfare such stances how custody and the child a modification of child so as to warrant obligation. support behalf of OF COUNTY DEPARTMENT SOCIAL SERVICES,
SCOTLAND A. Defendant C. Plaintiff JOHN POWELL, SHANNON POWELL, No. COA02-183 (Filed 2002) 31 December grand- Support, Custody, and Visitation—
1. Child — parents’ contributions —irrelevant parents party of third contributions Evidence in a action was while lived with them irrelevant she parents with her living were not the children because was in fact Moreover, the evidence hearing. at the time of explained in detail on cross-examination. introduced and pre- Support, Custody, and Visitation— 2. Child — sumptive amount — applica- adequate findings were The trial court’s where the court support amount presumptive tion of the children specific findings needs as to reasonable made