              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-1049

                                Filed: 19 April 2016

Madison County, No. 07 CVD 211

KELLY RENEE DANCY, n/k/a KELLY RENEE LAUGHTER, Plaintiff,

             v.

ANTHONY SHANE DANCY, Defendant.


      Appeal by Plaintiff from order entered 2 July 2015 by Judge Hal G. Harrison

in Madison County District Court. Heard in the Court of Appeals 11 February 2016.


      Emily Sutton Dezio for Plaintiff-Appellant.

      No brief filed by Defendant-Appellee.

      HUNTER, JR., Robert N., Judge.


      Kelly Renee Dancy, now known as Kelly Renee Laughter (“Plaintiff”), appeals

from a district court order granting Anthony Shane Dancy (“Defendant”) increased

visitation with their daughter. We affirm the trial court.

                       I. Factual and Procedural History

      The parties were married in Marshall, North Carolina on 28 June 2003 and

lived together as husband and wife until 30 May 2006, at which time they separated

and Defendant moved to California. They had one daughter who was born on 2

September 2004.
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      On 30 May 2006, the parties executed a separation agreement that stated the

following:

             11. Joint Custody.
                    The parties shall share the joint legal care, custody,
                    and control of the minor child of the parties. The
                    Wife shall have the physical custody of said minor
                    child, subject to Husband’s rights of reasonable
                    visitation. The parties shall make every reasonable
                    effort to foster feelings of affection between
                    themselves and the child recognizing that frequent
                    and continuing association and communication of
                    both parties with a child is in the furtherance of the
                    best interests and welfare of the child. . . .

             13. Child Support Monetary Amount.
                   a. The Husband shall pay to Wife, as and for the
                   support of the minor child of the parties, the sum of
                   $265.00 per month . . . . Obligations to make the
                   payments as set forth in this section for the support
                   of a child shall cease when the child dies, reaches the
                   age of 18, enters in to marriage, becomes
                   emancipated, or ceases to be in the physical custody
                   of custodial parent. If, however, a child reaches the
                   age of 18, is unmarried and resides with custodial
                   parent [and] is a full-time high school student, said
                   support obligation shall continue as to said child,
                   until the child marries, no longer resides with
                   custodial parent, no longer is a full-time high school
                   student, completes the 12th grade [or] attains age
                   20, whichever shall first occur. . . .

                   c. Modification. The parties further acknowledge
                   that the child support required by this Agreement is
                   only subject to modification by a court of competent
                   jurisdiction upon a showing of substantial change of
                   circumstances.




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In addition to settling child custody and support, the parties settled their property

division in the agreement as well. The parties signed the agreement and filed it in

Madison County, North Carolina on 9 May 2007.

      Plaintiff and Defendant obtained an absolute divorce on 15 August 2007, and

the district court incorporated their settlement agreement into the divorce judgment.

On 12 July 2011, Plaintiff filed a “motion for immediate, temporary and modification

of permanent custody” and received an ex parte order granting her immediate

custody. At the return hearing on 18 July 2011, the parties entered into a consent

order that increased Defendant’s visitation time with the child and recited the

following:

             [T]his temporary agreement reached by and between the
             Parties is fair, just and reasonable and in the minor child’s
             best interest and should be adopted by the Court. . . .
             Primary physical placement of the minor child shall
             remain with the Plaintiff in this matter, subject to
             visitation with the Defendant as is set out herein. . . . The
             parties agree to hold open the hearing on temporary
             custody set for July 20, 2011 in Yancey County, while they
             meet to attempt further settlement negotiations on all
             outstanding issues.


      At the custody hearing on 8 September 2011, the trial court accepted the

consent order and issued an order entitled, “Order: Temporary and Permanent

Custody.” The trial court filed the order 14 September 2011 and found the consent

order provisions were in the best interests of the child and awarded primary physical



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custody to Plaintiff. Pursuant to the consent order, the trial court awarded Defendant

greater visitation during his military leave from 20 July 2011 to 24 July 2011, and

visitation on Sundays thereafter using cell phones, Skype, and other correspondence.

The order contemplated future visitation as follows:

             Provided the Defendant maintains regular Sunday contact
             with the minor child, then during the Summer of 2012, the
             Defendant shall exercise an uninterrupted period of
             visitation with the child, not to exceed two weeks, and
             which shall begin with two consecutive daytime visits from
             10:00 a.m. until 6:00 p.m. Said two-week visitation shall
             be exercised within the state of North Carolina and the
             Defendant shall provide the Plaintiff with two months’
             advance notice of the visitation dates[.]


      Three years later, on 24 September 2014, Defendant filed a verified motion for

permanent custody. Defendant alleged the following:

             6. That since the entry of [the 14 September 2011 order],
             the parties have continued Defendant’s visitation with the
             minor child as provided in said Order, through [S]ummer
             2012.

             7. That since [S]ummer 2012, the parties have continued
             Defendant’s visitation with the minor child on an ad hoc
             basis, to wit:
                    a. For [S]ummer 2013, Defendant was unable to
                    travel to North Carolina and Plaintiff refused to
                    allow the minor child to travel to California; and

                   b. For [S]ummer 2014, the minor child traveled to
                   California with her older half-sibling, who is not a
                   party to this action but is also a resident of the State
                   of North Carolina, and was also accompanied by
                   Defendant on both legs of the trip to and from


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                      California, for a period of approximately 15 days.

               8. That Defendant’s visits with the minor child have gone
               very well and that Defendant and the minor child desire to
               expand their visitations.

               9. That the custody order currently in effect does not
               provide for visitation between Defendant and the minor
               child beyond [S]ummer 2012.

               10. That the September 14, 2011 Custody Order is a
               temporary custody order in that said order did not
               determine all of the issues pertaining to child custody.

In his motion, Defendant sought to modify the child custody agreement to afford him

“substantial visitation” with his daughter, to account for the geographic distance

between the parties. The matter was set for the June 2015 calendar in Madison

County District Court.

         On 18 June 2015, the parties presented evidence and arguments to the trial

court.    The trial court entered a written order 2 July 2015 entitled, “Final and

Permanent Child Custody Order.” The order recited the following findings of fact and

conclusions of law:

                                  Findings of Fact
               1. Defendant’s Motion seeks to modify an existing
               temporary order and to establish a permanent child
               custodial arrangement. . . .

               6. A temporary custody order was entered on September
               14, 2011, which only provided a visitation arrangement
               through the summer of 2012. Thereafter the order did not
               set a custodial arrangement for the indefinite future.
               7. By mutual agreement of the parties, Defendant did
               exercise a period of visitation with the minor child, in

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California, during summer 2014. That visit went very well,
and the minor child was accompanied by her older half-
sister [].

8. For the summer 2014 visit, Defendant flew to North
Carolina to pick up the parties’ minor child and to
accompany her to California for the two-week visit, then
flew back with the minor child to return her to North
Carolina at the conclusion of the visit.

9. Both parties have a close, loving relationship with the
minor child. . . .

11. Since the summer 2014 visit, and until the present visit
for this Court hearing, Defendant’s contact with the child
has been limited to telephone calls and text messages.

12. Plaintiff is married and works as a house cleaner.
Plaintiff and her current husband are very fit and suitable
to share custody of the minor child.

13. Defendant is a retired U.S. Marine, is remarried, and
self-employed as an electrical contractor. Defendant is
very fit and suitable to share custody of the minor child.

14. It is in the best interests and welfare of the parties’
minor child that she have a permanent custodial
arrangement with the Defendant father.

15. It is in the best interests and welfare of the parties’
minor child that the parties share joint legal care, custody,
and control of the minor child.

                   Conclusions of Law
1. That this Court has jurisdiction over the persons of
Plaintiff, Defendant, and the parties’ minor child.

2. That it is in the best interests and welfare of the parties’
minor child that she have a permanent custodial
arrangement with the Defendant father.


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              3. That it is in the best interests and welfare of the parties’
              minor child that the parties share joint legal care, custody,
              and control of the minor child.

The trial court awarded primary physical custody to Plaintiff, ordered greater

visitation to Defendant on holidays and school breaks, and specified the terms of

visitation.

       Thereafter, Plaintiff timely filed her notice of appeal on 2 July 2015. She filed

her Appellant brief and settled the record. Defendant has not participated in this

appeal at all.

                               II. Standard of Review

       “When reviewing a trial court’s decision to grant or deny a motion for the

modification of an existing child custody order, the appellate courts must examine

the trial court’s findings of fact to determine whether they are supported by

substantial evidence.” Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253

(2003).   “In addition to evaluating whether a trial court’s findings of fact are

supported by substantial evidence, this Court must determine if the trial court’s

factual findings support its conclusions of law.” Id. at 475, 586 S.E.2d at 254.

       “Whether a district court has utilized the proper custody modification standard

is a question of law we review de novo.” Peters v. Pennington, 210 N.C. App. 1, 707

S.E.2d 724 (2011) (citations omitted). “Absent an abuse of discretion, the trial court’s




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decision in matters of child custody should not be upset on appeal.” Everette v.

Collins, 176 N.C. App. 168, 171, 625 S.E.2d 796, 798 (2006).

                                     III. Analysis

      Plaintiff contends the trial court committed error when it (1) found the 14

September 2011 order was a temporary order, and (2) failed to apply the correct

burden of proof. We disagree.

      Trial courts may issue child custody orders that are “temporary” or

“permanent.” Woodring v. Woodring, 227 N.C. App. 638, 642, 745 S.E.2d 13, 17

(2013). “The term ‘permanent’ is somewhat of a misnomer, because ‘after 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.’” Id.

(citations omitted).

      A party seeking modification of a permanent child custody order bears the

burden of showing “a substantial change in circumstances has occurred, which affects

the child’s welfare.” Karger v. Wood, 174 N.C. App. 703, 705, 622 S.E.2d 197, 200

(2005) (citation omitted). Conversely, “if a child custody order is temporary in nature

and the matter is again set for hearing, the trial court is to determine custody using

the best interests of the child test without requiring either party to show a substantial

change in circumstances.” Senner v. Senner, 161 N.C. App. 78, 80–81, 587 S.E.2d




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675, 677 (2003) (quoting LaValley v. LaValley, 151 N.C. App. 290, 292, 564 S.E.2d

913, 915 (2002)); see also Woodring, 227 N.C. App. at 643, 745 S.E.2d at 18.

      “A trial court’s designation of an order as ‘temporary’ or ‘permanent’ is neither

dispositive nor binding on an appellate court.” Woodring, 227 N.C. App. at 643, 745

S.E.2d at 18 (citation omitted). A child custody order is temporary if (1) it is entered

into without prejudice to either party; (2) it states a clear and specific reconvening

time in the order and the time interval time between the two hearings was reasonably

brief; or (3) the order does not determine all of the issues. Id. (citing Peters, 210 N.C.

App. at 13–14, 707 S.E.2d at 734); see also Senner, 161 N.C. App. at 81, 587 S.E.2d at

677. If a child custody order does not meet any of these criteria, it is permanent.

Peters, 210 N.C. App. at 14, 707 S.E.2d at 734.

      First, the 14 September 2011 custody order does not state it is entered into

with prejudice towards either party. However, we need not resolve this issue using

only this prong.

      Second, the 14 September 2011 order does not state a specific reconvening time

and date. This Court has held that a temporary order can be converted into a “final

order” when “neither party sets the matter for a hearing within a reasonable time.”

Senner, 161 N.C. App. at 81, 587 S.E.2d at 677 (citing Brewer v. Brewer, 139 N.C.

App. 222, 228, 533 S.E.2d 541, 546 (2000) (holding that one year between hearings is

too long in a case with no unresolved issues); LaValley, 151 N.C. App. at 293, n. 6,



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564 S.E.2d at 915, n.6 (holding twenty-three months is an unreasonable time between

hearings)). However, the passage of time alone will not convert a temporary order

into a permanent order. See Senner, 161 N.C. App. at 81, 587 S.E.2d at 677. In

Senner, this Court held that a twenty-month passage of time was not unreasonable

when the parties negotiated, albeit unsuccessfully, whether the child would move to

Texas, and whether they would share joint custody on an alternating two-week basis.

Id. In light of these ongoing negotiations, this Court held the plaintiff failed to show

the defendant’s twenty-month delay in filing a motion to modify was unreasonable.

Id. Senner is similar to the case sub judice, in that the 14 September 2011 order

never allowed the child to visit Defendant in California, yet the parties agreed to let

her travel to California in Summer 2014. Because the parties continued to agree

beyond the trial court’s 14 September 2011 order, we hold the order was not converted

into a permanent order.

      Third, the 14 September 2011 order does not resolve all of the issues. The

order does state in its preamble that the parties “hav[e] reached an agreement on all

pending custody issues and tendered this Consent Order to the Court.” However, this

Court has held that an order is temporary and does not resolve all issues when it fails

to address a party’s right to “ongoing visitation.” See Woodring, 227 N.C. App. at 644,

745 S.E.2d at 18 (the temporary 2010 order at issue “provided father with only three

specific instances of visitation in 2010” and “did not address father’s ongoing



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visitation[.]”); see also Smith v. Barbour, 195 N.C. App. 244, 671 S.E.2d 578 (2009).

Here, the 14 September 2011 order only allowed Defendant to visit his daughter in

person during his four-day military leave in July 2011, and again for two weeks

during Summer 2012, provided that he maintain regular Sunday contact with his

daughter and travel to North Carolina during Summer 2012.                Under this

arrangement, Defendant was only able to visit his daughter in person up to her eighth

birthday, leaving his ongoing visitation rights to be effectuated via Skype and phone

calls and texts. The 14 September 2011 order did not resolve all of the issues in this

case. Accordingly, we hold the order is temporary and the trial court correctly

proceeded to a best interests of the child analysis without burdening Defendant to

show a substantial change in circumstances.

      After de novo review of the record, we hold the trial court utilized the proper

custody modification standard—the best interests of the child analysis. The trial

court’s findings of fact supporting the custody modification are supported by

substantial evidence presented by the parties. The findings of fact support the

conclusion of law that the daughter’s best interests and welfare are best served with

a permanent custodial arrangement that includes substantial visitation with her

father, Defendant.

                                  IV. Conclusion

      For the foregoing reasons we affirm the trial court.



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AFFIRMED.

Judges STEPHENS and INMAN concur.




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