             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-311

                              Filed: 18 October 2016

Onslow County, No. 14 CVD 1911

CHRISTOPHER SCOGGIN, Plaintiff,

            v.

FELICITAS B. SCOGGIN (now HAYES), Defendant.


      Appeal by defendant from order entered 8 September 2015 by Judge William

B. Sutton, Jr. in Onslow County District Court. Heard in the Court of Appeals 21

September 2016.


      The Armstrong Law Firm, P.A., by Eason Armstrong Keeney and L. Lamar
      Armstrong, Jr., for plaintiff-appellee.

      The Lea/Schultz Law Firm, P.C., by James W. Lea, III, for defendant-
      appellant.


      ZACHARY, Judge.


      Felicitas Hayes, formerly Felicitas Scoggin, (defendant), appeals from an order

that awarded Christopher Scoggin (plaintiff) primary custody of the parties’ four

children. On appeal, defendant argues that the trial court erred by entering a child

custody order that conflicted with oral statements that the court made during the

custody hearing, and that the trial court erred by finding that it was in the best

interest of the children for plaintiff to have their primary physical custody. We

conclude that the trial court had the authority to enter an order that was different
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                                   Opinion of the Court



from the court’s oral statements during the hearing, and that the trial court did not

err by awarding primary physical custody of the children to plaintiff.

                           I. Factual and Procedural Background

      The parties were married on 12 May 2003, separated on 6 March 2013,

divorced on 17 September 2013, and are the parents of four children, born in 2002,

2003, 2009, and 2010. At the time of their divorce, plaintiff and defendant were living

in California and were both serving in the United States Marine Corps. On 10 May

2013, the parties executed a settlement agreement providing that plaintiff and

defendant would share joint legal and physical custody of the children, with the

children alternating residence with each parent every other week. In June 2013,

plaintiff received military orders to report to Jacksonville, North Carolina, and on 21

June 2013, the parties modified their agreement in order to allow plaintiff to take the

children with him to North Carolina. During the following year, the children spent

periods of time with plaintiff, defendant, and with plaintiff’s parents.

      On 22 May 2014, plaintiff filed a motion for modification of child custody.

Plaintiff alleged that there had been a substantial change of circumstances in that

plaintiff and defendant had moved to North Carolina and Indiana, respectively, and

therefore could no longer adhere to the existing custody arrangement pursuant to the

terms of which the children spent alternate weeks with each parent. Plaintiff also

alleged that defendant had failed to comply with the parties’ agreement regarding



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child custody, and sought primary physical custody of the children. On 10 July 2014,

defendant filed a response and countermotion for primary physical custody of the

children, in which defendant alleged that plaintiff had failed to abide by the

requirements of the parties’ custody agreement.

      On 10 June 2015, the trial court conducted a hearing on the parties’ motions

for custody of the children. The trial court heard conflicting testimony from each

party regarding the other party’s lack of cooperation with their custody agreement.

At the close of the hearing, the trial judge spoke for several minutes about the

considerations that the court deemed important to the custody determination, and

stated that either party would be a fit and proper person to have custody of the

children. After reviewing in detail the facts that tended to support each party’s claim

for primary physical custody of the children, the trial court stated that the parties

would share joint legal custody of the children, with defendant having primary

physical custody and plaintiff having visitation rights. The court ended the hearing

by stating that “[t]his is a really hard decision” and that “I just hope and pray that

I’ve done the right thing.” The trial court did not ask counsel for either party to draft

an order reflecting the court’s decision.

      On 8 September 2015, the trial court entered an order for child custody. The

court awarded primary physical custody of the children to plaintiff, with defendant

to have “liberal visitation privileges,” and made findings that supported the court’s



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decision. The trial court’s findings also addressed the fact that its decision was

different from what the court had orally stated during the hearing:

             15. That the Court immediately following the
             closing arguments of counsel stated that this was a
             very close call in deciding custody and then rendered
             an oral pronouncement awarding the defendant
             primary custody with secondary custody being
             granted to the plaintiff.

             16. That the Court, following the trial after further
             deliberation and consideration, decided based on the
             facts contained in this order that it was in the best
             interests of the minor children to change and reverse
             the Custody pronouncement previously stated in
             Court and instead to direct custody as shown in this
             written order.

             17. That the Court notified counsel for both parties
             that it wanted to meet with them on the Monday
             following the trial and met with both counsel in
             Chambers, telephonically or in person on the
             following Wednesday, at which time the new and
             amended Order was pronounced by the Court.

             18. That no Order had been signed or rendered prior
             to the final pronouncement by the Court to the
             parties’ counsel in Chambers and this Order is the
             only written signed Order rendered in this case.

      Defendant appealed to this Court from the trial court’s order for child custody.

                                  II. Standard of Review

      The standard of review in child custody cases may be summarized as follows:

             The standard of review “when the trial court sits
             without a jury is whether there was competent
             evidence to support the trial court’s findings of fact


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             and whether its conclusions of law were proper in
             light of such facts.” “In a child custody case, the trial
             court’s findings of fact are conclusive on appeal if
             supported by substantial evidence, even if there is
             sufficient evidence to support contrary findings. . . .
             Unchallenged findings of fact are binding on
             appeal.” “Whether [the trial court’s] findings of fact
             support [its] conclusions of law is reviewable de
             novo.” “If the trial court’s uncontested findings of
             fact support its conclusions of law, we must affirm
             the trial court's order.”

Burger v. Smith, __ N.C. App. __, __, 776 S.E.2d 886, 888-89 (2015) (quoting Barker

v. Barker, 228 N.C. App. 362, 364, 745 S.E.2d 910, 912 (2013), Peters v. Pennington,

210 N.C. App. 1, 12-13, 707 S.E.2d 724, 733 (2011), Hall v. Hall, 188 N.C. App. 527,

530, 655 S.E.2d 901, 904 (2008), and Respess v. Respess, 232 N.C. App. 611, 614, 754

S.E.2d 691, 695 (2014) (internal quotation omitted)).

      In addition, “[i]t is a long-standing rule that the trial court is vested with broad

discretion in cases involving child custody.” Pulliam v. Smith, 348 N.C. 616, 624, 501

S.E.2d 898, 902 (1998) (citation omitted). “A trial court may be reversed for abuse of

discretion only upon a showing that its actions are manifestly unsupported by

reason[.]” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (citation

omitted). The rationale for this rule has been explained as follows:

             “[The trial court] has the opportunity to see the
             parties in person and to hear the witnesses, and [its]
             decision ought not be upset on appeal absent a clear
             showing of abuse of discretion.” “[The trial court] can
             detect tenors, tones, and flavors that are lost in the



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             bare printed record read months later by appellate
             judges.”

Surles v. Surles, 113 N.C. App. 32, 36-37, 437 S.E.2d 661, 663 (1993) (quoting Falls

v. Falls, 52 N.C. App. 203, 209, 278 S.E.2d 546, 551 (1981), superseded in part by

statute on other grounds as noted in Smith v. Smith, __ N.C. App. __, __, 786 S.E.2d

12, 22 (2016), and Newsome v. Newsome, 42 N.C. App. 416, 426, 256 S.E.2d 849, 855

(1979)).

       III. Trial Court’s Authority to Enter an Order that Differs from the Decision

                       Orally Pronounced by the Court at Trial

      At the end of the hearing on this matter, the trial court announced its intention

to award primary physical custody of the children to defendant.           Upon further

consideration, the trial court reached a contrary conclusion and determined that it

would be in the best interest of the children if primary physical custody of the children

was granted to plaintiff. Within a week of the hearing, the trial court informed the

parties of this change and of its intention to award primary physical custody of the

children to plaintiff. Approximately three months later, the trial court entered a

written order placing the children in the primary physical custody of plaintiff. On

appeal, defendant argues that the trial court lacked the authority to enter an order

that did not correspond to its oral statements in court. Simply put, defendant asserts

that, as a matter of law, the trial court may not change its mind between the end of

a trial or hearing and entry of the order determining the issues raised in that


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proceeding. In the alternative, defendant contends that the trial court’s power to

enter an order that differs from its statements in court depends upon the existence of

a substantial change of circumstances occurring between the date of the trial court’s

oral statements and the date that the court enters an order in a case. Defendant’s

arguments lacks merit.

      In support of her position, defendant cites this Court’s opinion in Edwards v.

Taylor, 182 N.C. App. 722, 727, 643 S.E.2d 51, 54 (2007), in which this Court noted

that a trial court has the authority to enter a written judgment that “conforms

generally” with its oral pronouncement. Defendant contends that this statement

necessarily implies its opposite - that the trial court does not have authority to enter

a written judgment that does not generally conform with its statements in court.

      Defendant does not cite any authority for this proposition. This issue was

recently addressed in In re O.D.S., __ N.C. App. __, 786 S.E.2d 410, disc. review

denied, __ N.C. __, __ S.E.2d __ (2016 N.C. LEXIS 691), in which this Court expressly

rejected the same argument made by defendant in the instant case. In O.D.S., a

petition was filed seeking to terminate the respondent’s parental rights on grounds

of neglect and dependency. At the end of the hearing on the petition, the trial court

stated that it found the existence of neglect as a ground for termination, and did not

discuss the issue of dependency. The trial court later entered a written order finding

the existence of both neglect and dependency as grounds for termination. On appeal,



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the respondent argued that “the trial court erred because, at the conclusion of the

adjudication portion of the hearing, the trial court did not orally state it was finding

dependency as a ground for termination, but included that ground in the written

order entered [after the hearing.]” O.D.S., __ N.C. App. at __, 786 S.E.2d at 412.

      The opinion issued by this Court in O.D.S. carefully reviewed the evolution of

our Rules of Civil Procedure regarding entry of judgment, noting that:

             Because many of our appellate decisions addressing
             these issues were based upon rules that have since
             changed, it is important to note how entry of
             judgment and notice of appeal from civil judgments
             have changed in light of revisions to Rule 58 of the
             North Carolina Rules of Civil Procedure, which
             became effective 1 October 1994 for “all judgments
             subject to entry on or after that date.” 1994 N.C.
             Sess. Laws, Ch. 594[.]

O.D.S. at __, 786 S.E.2d at 413. “Entry of judgment based upon oral rendition of

judgments is no longer allowed in civil matters; currently, judgments and orders are

only ‘entered when [they are] reduced to writing, signed by the judge, and filed with

the clerk of court.’ N.C. Gen. Stat. § 1A-1, Rule 58 (2015).” Id. The Court observed

that the statement in Edwards upon which the instant defendant relies was based

upon language in Morris v. Bailey, 86 N.C. App. 378, 389, 358 S.E.2d 120, 127 (1987),

and stated that “Morris [was] discussing a situation when an order was entered orally

in open court, then subsequently reduced to writing and filed. . . . Judgments and

orders in civil cases can no longer be entered in open court and, therefore, this portion



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of Morris is no longer relevant.” O.D.S. at __, 786 S.E.2d at 417. In O.D.S., this Court

held expressly that:

               Further, the holding in Edwards that “[i]f the
               written judgment conforms generally with the oral
               judgment, the judgment is valid[,]” Edwards, 182
               N.C. App. at 727, 643 S.E.2d at 54, does not
               command the converse, i.e. that any written
               judgment that does not generally conform with the
               oral judgment is necessarily invalid. Though there
               may be situations when this is true, we can find no
               opinion in which it has been held that the written
               and entered judgment must always generally
               conform with a prior oral rendition of that judgment
               in order to be valid. However, as noted above, there
               are plenary opinions in which our appellate courts
               have affirmed entered judgments and orders that do
               not conform to the associated orally rendered
               judgments and orders.

Id. (emphasis added). We conclude that O.D.S. is controlling on the issue of the trial

court’s authority to enter an order that conflicts with its oral statements in court, that

the court did not err by entering an order that reached a conclusion that differed from

its oral pronouncement, and that defendant’s arguments for a contrary result lack

merit.

             IV. Trial Court’s Determination of the Best Interests of the Children

         Defendant also argues that the trial court erred by awarding primary physical

custody of the children to plaintiff.    Defendant concedes that there had been a

substantial change of circumstances, but contends that there was “a mountain of

evidence” that made it “appropriate for the trial court to enter an order granting


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primary physical custody to [defendant].” However, as discussed above, “[i]f the trial

court’s uncontested findings of fact support its conclusions of law, we must affirm the

trial court’s order.” Respess, 232 N.C. App. at 614-15, 754 S.E.2d at 694 (quoting

Mussa v. Palmer-Mussa, 366 N.C. 185, 191, 731 S.E.2d 404, 409 (2012)). In this case

defendant neither challenges the evidentiary support for the trial court’s findings of

fact nor argues that the court’s findings do not support its conclusions of law. We

conclude that defendant has failed to make a persuasive argument that the trial court

erred by determining that it was in the best interest of the children for plaintiff to be

granted their primary physical custody.

      For the reasons discussed above, we conclude that the trial court did not err

and that its order should be

      AFFIRMED

      Judges ELMORE and ENOCHS concur.




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