An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA14-1264

                                  Filed: 21 July 2015

Pitt County, No. 08-CVD-3727

FRANCIS JOHN CARL WELCH, Plaintiff,

              v.

PEYTEN GWEN WILLEY, Defendant.


       Appeal by Defendant from order entered 3 July 2013 by Judge P. Gwynett

Hilburn in Pitt County District Court. Heard in the Court of Appeals 23 April 2015.


       No brief for the Plaintiff-Appellee.

       Teresa DeLoatch Bryant, for the Defendant-Appellant.


       DILLON, Judge.


       Peyten Gwen Willey (“Mother”) appeals from the trial court’s order granting a

motion to dismiss in favor of Francis John Carl Welch (“Father”). For the following

reasons, we reverse.

                                      I. Background

       Mother and Father are the biological parents of a minor child. Father sought

and obtained temporary custody of the child in 2008 based on Mother’s struggles with

addiction and associated risks of harm to the child. In 2009, Father was awarded

primary physical custody, and Mother was granted supervised visitation.
                                   WELCH V. WILLEY

                                   Opinion of the Court



      In 2013, Mother moved to modify the 2009 custody order, seeking greater

visitation based on changed circumstances. She alleged in her motion facts which

tended to show how she had changed for the better and that increased visitation with

her would be in the best interest of the child.

      In 2014, Mother’s motion came on for hearing in the district court. Father

orally moved to dismiss Mother’s motion for failure to allege specifically that the

changed circumstances alleged in her motion affected the child in a positive way. The

court granted the Father’s oral motion, entering an order dismissing Mother’s motion

without prejudice. Defendant entered written notice of appeal.

                                      II. Analysis

      Mother argues that the trial court erred in granting Father’s motion to dismiss

her motion seeking greater visitation.        Specifically, Mother contends that the

apparent basis for the court’s ruling – that she did not allege a causal connection

between the change of circumstances asserted and the welfare of her child – is not an

allegation that must be pleaded in a motion to modify custody. We agree.

      N.C. Gen. Stat. § 50-13.7(a) states that an order for custody may be modified

“upon motion in the cause and a showing of changed circumstances by either party or

any interested.” N.C. Gen. Stat. § 50-13.7(a) (2013). Our Supreme Court has held

that “changed circumstances” means those changes that affect the welfare of the




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                                   WELCH V. WILLEY

                                   Opinion of the Court



child, and that those changes can either adversely affect the child or benefit the child.

See Pulliam v. Smith, 348 N.C. 616, 618-19, 501 S.E.2d 898, 899 (1998).

      Regarding the motion that must be filed, Rule 7(b) of our Rules of Civil

Procedure states that the motion “shall be made in writing, shall state with

particularity the grounds therefor, and shall set forth the relief or order sought.”

      In the present case, Mother alleged that she had been “successful in dealing

with a substance abuse problem”; that she had completed an education program and

was gainfully employed; that she had a stable home environment; that the parties

had informally adjusted visitation by expanding the child’s visitation with Mother;

and that it would be in the best interests of the child to allow Mother greater

visitation. Nevertheless, the trial court concluded that “[Mother’s] failure to allege

additionally a causal connection between any asserted change in circumstance and

the impact, if any, on the welfare of the minor child, is fatal to [Mother’s] motion.”

We disagree. We believe, rather, that the contents of Mother’s motion adequately put

Father on notice as to the relief Mother was seeking and the grounds she was basing

it on. Mother is stating in her motion that she is in a much better place in her life;

that she can provide a good environment for the child during visitation; and that her

improvement is a beneficial change in circumstances for the child. Therefore, we hold

that the trial court erred in dismissing Mother’s motion. Accordingly, we reverse the

order of the trial court and remand the matter for a hearing on Mother’s motion.



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                                 WELCH V. WILLEY

                                 Opinion of the Court



                                  III. Conclusion

      The trial court’s order dismissing Defendant’s motion for failure to state a

claim upon which relief can be granted is reversed.

      REVERSED.

      Judges ELMORE and Judge GEER concur.

      Report per Rule 30(e).




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