Hassell v. Means

257 S.E.2d 123 (1979) 42 N.C. App. 524 Charles R. HASSELL, Jr. v. Lorraine H. MEANS. No. 7910DC182. Court of Appeals of North Carolina. August 7, 1979. *126 Gulley, Barrow & Boxley by Jack P. Gulley, Raleigh, for plaintiff-appellee. W. Brian Howell, Raleigh, and Michael D. Levine, Chapel Hill, for defendant-appellant. ERWIN, Judge. The defendant contends that: "The court committed error, in concluding, as a matter of law, that custody of the children was not determined by the Separation Agreement of June 20, 1975, between the parties, because the Separation Agreement, the Judgment of Divorce, and the conduct by and between the parties over a period exceeding six years confirms that custody was in fact vested in the defendant-appellant." We agree with defendant. That portion of the separation agreement relating to custody of the minor children of the parties is not artfully drafted; however, we hold that the agreement is sufficient to establish permanent custody of the children with defendant. That part of the separation agreement provides: "(Custody) 7. The parties hereto having agreed upon the custody and support of the minor children born of the marriage, hereby covenant and stipulate, each with the other as follows: a. It is stipulated and agreed that both party of the first part and party of the second part are fit and proper persons to have custody of the minor children born of the marriage of the parties. It is agreed that the said minor children born of the marriage of the parties presently reside with the party of the second part, (Lorraine H. Hassell Means) subject to reasonable visitation privileges. It is further provided that in the event the residences should change such that they are separated by a distance of more than 150 miles, the parties agree to arrange specific periods of visitation, including the summer months and Thanksgiving, Easter and Christmas." In addition, the following was provided with reference to child support: "[A]t such time as party of the second part completes her legal education and is admitted to the practice of law, or alternatively remarries, the monies paid for the support and maintenance of the minor children born of the marriage shall be reduced and the sum paid by party of the first part to party of the second part for support and maintenance of the said minor children shall be THREE HUNDRED FIFTY DOLLARS ($350.00) per month. Said payment shall continue until such time as the said children attain majority or are otherwise emancipated. Provided, however, that upon the attainment of majority or emancipation of either of the children born of the marriage of the parties, the child support payment provided herein shall be prorataly reduced and shall thereafter continue at the lower rate until the attainment of majority or emancipation of the other child born of the marriage of the parties." The whole tenor of these portions of the agreement suggests a long period of time including "that in the event the residences should change such that they are separated by a distance of more than 150 miles, the parties agree to arrange specific periods of visitation, including the summer months and Thanksgiving, Easter and Christmas." There is not any language suggesting that the children would not live with defendant. To us, the provisions for support are also permanent: "Said payment shall continue until such time as the said children attain majority or are otherwise emancipated." The agreement does not provide for any change of living conditions other than visitation. The terms worked out by the parties were incorporated in the divorce decree as set out above. To us, this implies that the court approved the terms, although the court did not enter an order that they be *127 performed. This adds further to defendant's contentions that the agreement relating to custody is permanent in nature. We note that this agreement has been followed by the parties since June 1975. For the trial court to treat this agreement in the manner it did at this late date will discourage parties from entering into custody agreements. Parents are in a better position on most occasions to provide custody arrangements for their children as here. We hold this assignment of error has merit. Defendant contends that plaintiff, the moving party, has the burden of showing that there has been a substantial change of circumstances affecting the welfare of his children, and he has failed to meet such burden. Plaintiff contends that the court was correct when it concluded that there had been a substantial change in the circumstances since the entry of the separation agreement. In Blackley v. Blackley, 285 N.C. 358, 362, 204 S.E.2d 678, 681 (1974), our Supreme Court held as follows: "The entry of an Order in a custody matter does not finally determine the rights of parties as to the custody, care and control of a child, and when a substantial change of condition affecting the child's welfare is properly established, the Court may modify prior custody decrees. G.S. 50-13.7; Teague v. Teague, 272 N.C. 134, 157 S.E.2d 649; In re Herring, 268 N.C. 434, 150 S.E.2d 775; Stanback v. Stanback, [266 N.C. 72, 145 S.E.2d 332] supra; Thomas v. Thomas, [259 N.C. 461, 130 N.E.2d 871] supra; In re Means, 176 N.C. 307, 97 S.E. 39. However, the modification of a custody decree must be supported by findings of fact based on competent evidence that there has been a substantial change of circumstances affecting the welfare of the child, and the party moving for such modification assumes the burden of showing such change of circumstances. Shepherd v. Shepherd, 273 N.C. 71, 159 S.E.2d 357; Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77; and Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227. These rules of law must be applied in conjunction with the well-established principle that the trial judge's findings of fact in custody Orders are binding on the appellate courts if supported by competent evidence. Teague v. Teague, supra; Thomas v. Thomas, supra; see also, G.S. 1A-1, Rule 52(c)." The trial court concluded as a matter of law (in part) as follows: "That although the separation agreement did not give either party custody, there have been substantial changes in circumstances since the execution of said agreement in that the children have obtained more maturity, the distance between the parties has been increased to such an extent that the ability of the children to see the plaintiff has been greatly changed and each party has remarried." Two of the changes of circumstances are mutual. Each party has remarried. Remarriage in and of itself is not a sufficient change of circumstance to justify modification of a child custody order. See King v. Allen, 25 N.C.App. 90, 212 S.E.2d 396, cert. denied, 287 N.C. 259, 214 S.E.2d 431 (1975). The distance between the parties has been increased to such an extent that the ability of the children to see the plaintiff has been greatly changed. However, the distance would be the same for either party who has visitation rights to see the children. See Searl v. Searl, 34 N.C.App. 583, 239 S.E.2d 305 (1977). To us, it is obvious that growing children will "obtain more maturity." As used in G.S. 50-13.7, "changed circumstances" means such a change as affects the welfare of the child. In re Harrell, 11 N.C.App. 351, 181 S.E.2d 188 (1971). We fail to find a sufficient change of circumstances within the meaning of G.S. 50-13.7 to warrant or justify a change in the custody of the children in this case. "A child's preference as to who shall have his custody is not controlling; however, the trial judge should consider the wishes of a ten-year-old child in making his determination." In re Custody of Stancil, 10 N.C. App. 545, 548, 179 S.E.2d 844, 846 (1971). Judgment reversed. PARKER, J., concurs. *128 MITCHELL, Judge, concurring: During oral arguments before us in this case, we were informed by counsel for both parties that the defendant and her husband changed their circumstances by moving to North Carolina and entering the practice of law here after the entry of the judgment of the trial court before us on appeal. This change in the circumstances of the parties could not, of course, have been made known to or considered by the trial court and is not reflected in the record before us. Although I concur in the opinion in this case, I would additionally point out that nothing in the opinion should be construed as limiting the right of either party to return to the trial court in an effort to show changed circumstances arising after the entry of the trial court's order of 4 October 1978 and affecting the welfare of the minor children of the parties. See Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871 (1963); Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857 (1962); Owen v. Owen, 31 N.C.App. 230, 229 S.E.2d 49 (1976).