An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedu re.




               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA15-181

                                   Filed: 20 October 2015

Henderson County, No. 06 CVD 2004

JOHN LEROY ROBINSON, Plaintiff,

              v.

RACHEAL ELLEN CAIN, Defendant.


        Appeal by plaintiff from Order entered 19 August 2014 by Judge Emily G.

Cowan in Henderson County District Court. Heard in the Court of Appeals 24 August

2015.


        F.B. Jackson & Associates Law Firm, PLLC, by Angela S. Beeker, for plaintiff.

        No appellee brief filed.


        ELMORE, Judge.


        John Leroy Robinson (plaintiff) appeals from an order denying his motion to

modify child custody. Plaintiff argues that the trial court abused its discretion in

finding no changed circumstances warranted a modification of the existing child

custody order. We agree with plaintiff and remand for a new hearing on plaintiff’s

motion for modification.

                                      I. Background
                                   ROBINSON V. CAIN

                                    Opinion of the Court



      Plaintiff and Racheal Ellen Cain (defendant) are the natural parents of the

minor child. The child was born out of wedlock and has lived with defendant since

his birth in October 2006. Plaintiff and defendant have never lived together but

agreed between themselves how they would raise and support the child.

      On 5 June 2007, plaintiff filed a complaint in this action praying for the trial

court to enter a consent judgment of the parties relative to the support and

maintenance of the minor child. That same day, the trial court entered a consent

order and agreement granting defendant custody of the minor child, with reasonable

visitation for plaintiff, and ordering plaintiff to pay child support to defendant in the

amount of $1,500 per month. The 5 June 2007 Order included the following findings

of fact relevant to the issue of child custody:

             8. Neither of the parties has ever participated in litigation
             concerning custody of the Offspring. There has not been a
             custody proceeding concerning the Offspring in a court of
             this or any other state. No person has physical custody or
             claims to have physical custody of Offspring, other than the
             parties to this action. North Carolina is the home state of
             the Offspring (as “home state” is defined in G.S. 50A-2(5)
             of the General Statutes of North Carolina, and as
             interpreted by the case law of the State of North Carolina)
             and has been the home state of the Offspring since. It is in
             the best interest of Offspring that this court assume
             jurisdiction in that the Offspring and the parties have a
             significant connection with North Carolina (i.e., are and
             have been residents of the state) and there is available in
             North Carolina substantial evidence relevant to the
             Offspring’s present and future care, protection, training
             and personal relationships. Offspring are physically
             present in North Carolina. It appears that no other state


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                                 ROBINSON V. CAIN

                                  Opinion of the Court



             besides North Carolina would have jurisdiction of
             Offspring under the Uniform Child Custody Act.

             9. The parties have never lived together. Offspring has
             lived with Woman since his birth. Woman is a fit and
             proper person to have custody of Offspring, and it is in the
             best interest of Offspring to be placed in the custody of
             Woman, with reasonable visitation in Man.

      On 28 January 2013, plaintiff filed a motion in the cause requesting a

modification of the 5 June 2007 Order. Plaintiff’s motion was based on his contention

“[t]hat since the entry of the [5 June 2007 Order] there has occurred a substantial

and material change in circumstances affecting the best interest and general welfare

of the parties’ minor child . . . .” Plaintiff’s argument that changed circumstances

warranted a modification of the 5 June 2007 Order was based, in part, on the

following allegations: that defendant has denied plaintiff any input into the child’s

education and has refused to share with plaintiff any information concerning the

child’s educational needs, attendance, or progress in school; that, over plaintiff’s

objections, defendant continues to smoke in the child’s presence; that defendant

disconnected a smoke detector that the Department of Social Services for Henderson

County had installed in defendant’s home; that defendant refuses to allow plaintiff

any reasonable communication with the child by phone; that defendant has denied

plaintiff any reasonable overnight visitation with the child; that defendant has

recently been accused of having oxycodone, marijuana, methamphetamine, and drug

paraphernalia in her car when she was stopped by police in Rutherford County; and


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                                   ROBINSON V. CAIN

                                   Opinion of the Court



that defendant has threatened to remove the child from North Carolina and the

jurisdiction of the trial court.

        A subsequent motion by plaintiff to modify the 5 June 2007 Order followed on

18 June 2013. In addition to those circumstances alleged in his prior motion, plaintiff

alleged the following: that despite paying $1,500 per month in child support,

defendant has refused plaintiff visitation with the child; that defendant is on

probation for the possession of Schedule II and Schedule IV controlled substances;

that plaintiff has made a good faith effort to establish a proper relationship with the

child and wants the child to develop socially and academically; that defendant does

not have a fit and proper place to keep the child and is not a fit and proper person to

have legal custody of the child.

        Plaintiff’s motions were resolved by a second consent order entered 27 August

2013.    The 27 August 2013 Order adopted a handwritten “Memorandum of

Judgment/Order” that modified the custody of the minor child to joint legal custody,

awarded defendant primary physical custody, and specified a visitation schedule.

        On 30 May 2014, plaintiff filed a motion to modify the 27 August 2013 Order.

The motion was first argued, and evidence introduced, on 21 July 2014. The matter

was continued and ultimately concluded on 18 August 2014. On 19 August 2014, the

trial court entered an order denying plaintiff’s motion to modify the custody of the

minor child. Plaintiff filed a timely appeal from the 19 August 2014 Order.



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                                  Opinion of the Court



                                     II. Analysis

      On appeal, plaintiff argues that the trial court erred in denying his motion to

modify custody. Specifically, plaintiff contends that the trial court acted under a

misapprehension of the law and, therefore, abused its discretion in finding no change

in circumstances existed that would warrant a modification of the 27 August 2013

Order. Additionally, plaintiff maintains that the findings of fact in the 19 August

2014 Order are not supported by substantial evidence and, furthermore, the findings

of fact do not support the conclusions of law. We agree with plaintiff that the trial

court abused its discretion in denying plaintiff’s motion for modification of custody.

As this issue is dispositive, we need not address plaintiff’s second argument.

A. 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.

      “Absent an abuse of discretion, the trial court’s decision in matters of child

custody should not be upset on appeal.” Everette v. Collins, 176 N.C. App. 168, 171,



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                                  ROBINSON V. CAIN

                                  Opinion of the Court



625 S.E.2d 796, 798 (2006). “A [trial] court by definition abuses its discretion when

it makes an error of law.” Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392,

414 (1996), superseded in part on other grounds by statute, PROTECT Act of 2003,

Pub. L. No. 108-21, § 401, 117 Stat. 650, 670 (2003), cited with approval in State v.

Rhodes, 366 N.C. 532, 535–36, 743 S.E.2d 37, 39 (2013). “[F]indings made under a

misapprehension of law are not binding,” and “[w]hen faced with such findings, the

appellate court should remand the action for consideration of the evidence in its true

legal light.” Allen v. Rouse Toyota Jeep, Inc., 100 N.C. App. 737, 740, 398 S.E.2d 64,

65 (1990) (citing Dishman v. Dishman, 37 N.C. App. 543, 246 S.E.2d 819 (1978);

Hanford v. McSwain, 230 N.C. 229, 53 S.E.2d 84 (1949)).

B. Changed Circumstances Warranting Modification

      Plaintiff contends that the trial court acted under a misapprehension of the

law when it instructed the parties as follows:

             I’m looking for substantial change of circumstances since
             August of last year. You all have got—I’m trying to give you
             as much leeway as I can, but you all have got to keep me in
             that range, because that’s all I’m legally allowed to
             consider.
             ....

             The only thing I’m allowed to consider is what has
             happened since the last order because the first thing I have
             to find where I can consider anything at all is a substantial
             change of circumstances affecting the welfare of the child.
             And I have to go back to the last order on that. My
             understanding is the last order is August 2013.



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                                   ROBINSON V. CAIN

                                   Opinion of the Court



(emphasis added). Because the trial court had not previously made findings at the

time of the 27 August 2013 Order, plaintiff maintains that the court was allowed to

consider “as current” those facts that were in existence but not previously disclosed

to the court. Therefore, plaintiff argues, the trial court erred by limiting the evidence

and its findings to only those facts that had occurred since the 27 August 2013 Order.

      In North Carolina, a child custody order “may be modified or vacated at any

time, upon motion in the cause and a showing of changed circumstances by either

party . . . .” N.C. Gen. Stat. § 50-13.7(a) (2013). The “changed circumstances” analysis

generally involves a comparison between the current circumstances affecting the

welfare of the child and those that existed at the time of the previous order. See

generally 3 Suzanne Reynolds, Lee’s North Carolina Family Law § 13.106 (5th ed.

2014) (explaining the standard and process for modifying custody orders).           The

purpose of the rule is “to prevent relitigation of conduct and circumstances that

antedate the prior custody order.” Newsome v. Newsome, 42 N.C. App. 416, 425, 256

S.E.2d 849, 854 (1979) (citing Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332

(1965) (applying the “changed circumstances” requirement where a second judge

reached a different conclusion on the same facts only sixteen days after entry of the

first custody order)); see id. (“The rule prevents the dissatisfied party from presenting

those circumstances to another court in the hopes that different conclusions will be

drawn.”).



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                                   ROBINSON V. CAIN

                                   Opinion of the Court



      Plaintiff’s argument turns on whether the trial court may treat “as current”

those facts that existed at the time of the 27 August 2013 Order but were not disclosed

to the court. In support of his argument, plaintiff relies on Newsome, 42 N.C. App. at

424–27, 256 S.E.2d at 853–55. In Newsome, a separation agreement granting custody

to the plaintiff was incorporated by reference into a divorce decree. Id. at 424, 256

S.E.2d at 854. The trial court had “merely approved the contract made between the

parties”; the question of custody, however, had not been “litigated and decided by the

judge after hearing evidence tending to show the circumstances as they then existed

relating to the best interest of this child.” Id. The following year, the defendant filed

a motion to modify the custody order. Id. at 417, 256 S.E.2d at 849–50. The trial

court, concluding that changed circumstances warranted a modification, made

findings of fact that did not distinguish between circumstances as they existed before

and after the divorce decree. Id. at 423, 256 S.E.2d at 853. Affirming the trial court’s

decision, this Court explained that if the reason for the changed circumstances

requirement is to “prevent relitigation” of the facts existing at the time of the prior

order, “[i]t assumes . . . that such conduct has been litigated and that a court has

entered a judgment based on that conduct.” Id. at 425, 256 S.E.2d at 854. But

“[w]hen, . . . as in the present case, facts pertinent to the custody issue were not

disclosed to the court at the time the original custody decree was rendered, courts

have held that a prior decree is not res judicata as to those facts not before the court.”



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                                   ROBINSON V. CAIN

                                   Opinion of the Court



Id. (citations omitted). Newsome, therefore, represents a narrow exception to the

otherwise rigid rule regarding changed circumstances in child custody cases: the trial

court may treat “as current” those facts that were in existence but undisclosed at the

time of the last order to determine whether changed circumstances exist. Id. at 424,

256 S.E.2d at 854.

      Prior decisions of this Court have consistently relied on Newsome in similar

child custody cases. See, e.g., Woodring v. Woodring, ____ N.C. App. ____, ____, 745

S.E.2d 13, 20 (June 4, 2013) (No. COA12-679) (“[W]hen evaluating whether there has

been a substantial change in circumstances, courts may only consider events which

occurred after the entry of the previous order, unless the events were previously

undisclosed to the court.”); Ford v. Wright, 170 N.C. App. 89, 96, 611 S.E.2d 456, 461

(2005) (“As the trial court had already considered the parties’ past domestic troubles

and communication difficulties in the prior order, without findings of additional

changes in circumstances or conditions, modification of the prior custody order was

in error.”); Wehlau v. Witek, 75 N.C. App. 596, 598, 331 S.E.2d 223, 225 (1985)

(requiring a showing of changed circumstances where all facts relevant to issue of

custody were before the trial court at the time of the original custody order), overruled

on other grounds by Pulliam v. Smith, 348 N.C. 616, 620 & n.1, 501 S.E.2d 898, 900

& n.1 (1998).




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                                  ROBINSON V. CAIN

                                   Opinion of the Court



      We find Newsome to be controlling in the case sub judice and conclude that the

trial court acted under a misapprehension of the law with respect to the permissible

scope of evidence supporting its findings of fact in the 19 August 2014 Order. Plaintiff

directs our attention to the following findings of fact, to which he takes exception:

             12. The minor child is in first grade. The minor child is
             special needs (ADHD). His grades indicate that he needs
             intensive help in some of his classes. There is no evidence
             that this has not always been the case.
             ....
             19. The Woman is not working to any significant degree
             now and she was not at the time of the last order.

             20. The Woman is on probation and was at the time of the
             last order; she has passed all her drug screens.
             ....

             24. The Man and his family have more education than the
             Woman and her family. This was the case at that [sic] time
             of the last order as well. There is no evidence that anyone
             has gotten more education since the time of the last order
             (except the minor child).

             25. Since the entry of the last order; [sic] the Man has
             gotten remarried to a woman he had been dating since
             before the last order. She and the minor child have a good
             relationship and there is no evidence of any change with
             regards to the minor child since the dating relationship
             became a marriage.

Neither the 5 June 2007 Order nor the 27 August 2013 Order included findings

regarding the circumstances mentioned above. Nevertheless, the trial court appears

to conclude, for example, that because the minor child has always had special needs,

there has been no change in circumstances since the 27 August 2013 Order. This is


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                                  Opinion of the Court



exactly the type of reasoning that Newsome rejected. See Newsome, 42 N.C. App. at

426, 256 S.E.2d at 855 (“Surely it could not be said that the second judge is powerless

to act merely because the circumstances are the same in that the abuse is no greater

or the environment no worse than before.”). Contrary to the trial court’s assertion

that it could “only consider what has happened since the last order,” according to

Newsome the court could have considered “as current” those facts that existed but

were not disclosed to the court at the time of the 27 August 2013 Order. We conclude,

therefore, that the trial court abused its discretion in making the findings of fact

contained in its 19 August 2014 Order.

      As it is the trial court’s duty to examine the evidence and make findings of fact

and conclusions of law as to whether a substantial change of circumstances

warranting the modification of custody has occurred, we vacate the 19 August 2014

Order and remand for a new hearing on the issue of custody in accordance with this

opinion. See Woodring, ____ N.C. App. at ____, 745 S.E.2d at 20 & n.2 (vacating

custody order and remanding for a new hearing without addressing whether the error

was a sufficient basis to modify the order).

                                   III. Conclusion

      The trial court abused its discretion by acting under a misapprehension of law.

In making its findings of fact, the trial court was permitted to consider “as current”

those facts that were in existence but previously undisclosed at the time of the 27



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                                 Opinion of the Court



August 2013 Order. We vacate the 19 August 2014 Order and remand for a new

hearing on plaintiff’s motion to modify the 27 August 2013 Order.

      VACATED AND REMANDED.

      Chief Judge McGEE and Judge DAVIS concur.

      Report per Rule 30(e).




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