An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA15-88

                                   Filed: 6 October 2015

Wilson County, No. 09 CVD 2139

CHRISTOPHER W. ABELLS, Plaintiff,

               v.

TIFFANY J. MARTIN (formerly Abells), Defendant.


        Appeal by defendant from orders entered 21 and 23 July 2014 by Judge John

J. Covolo in Wilson County District Court. Heard in the Court of Appeals 11 August

2015.


        No brief filed for plaintiff-appellee.

        Smith Debnam Narron Drake Saintsing & Myers, L.L.P., by Alicia Jurney, for
        defendant-appellant.


        BRYANT, Judge.


        Where the trial court made sufficient findings of fact to support its conclusions

of law that a motion to relocate the minor children and a motion to modify child

custody should be denied, we affirm the rulings of the trial court. Where the trial

court failed to make findings of fact as to the hourly rate, skills, and services of a

party’s attorney, we remand for the entry of these findings to support an award of

attorneys’ fees.
                                  ABELLS V ABELLS

                                  Opinion of the Court



      Plaintiff Christopher W. Abells and defendant Tiffany J. Martin (formerly

Abells) were married in 1996. Two minor children were born of the marriage. On 14

October 2009, plaintiff filed a complaint against defendant for temporary and

permanent child custody and support, and equitable distribution. Defendant filed an

answer and counterclaim for custody, child support, post-separation support,

alimony, and equitable distribution on 19 November.

      On 21 January 2010, the trial court entered an order granting primary custody

of the minor children to defendant and secondary custody to plaintiff. Defendant filed

a motion to relocate herself and the minor children to California, where defendant’s

fiancé resided, on 2 June 2011.     A formal order denying defendant’s motion for

relocation was entered 19 January 2012.

      In September 2012, both parties entered motions to modify child custody. After

conducting a hearing on the matter on 8—9 May 2014, the trial court, by order

entered 21 July 2014, denied both parties’ motions to modify child custody. The trial

court awarded attorneys’ fees to plaintiff. On 23 July 2014, the court filed an order

“[r]egarding [e]nrollment of [c]hildren in [s]chool and [t]ransportation.” Defendant

appeals.

                            ________________________________




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                                   Opinion of the Court



      Defendant raises three issues as to whether the trial court erred: (I) in denying

defendant’s request to relocate with the minor children; (II) in denying defendant’s

motion to modify child custody; and (III) in awarding attorneys’ fees to plaintiff.

                                                I

      Defendant argues that the trial court erred in denying her request to relocate

with the minor children. Specifically, defendant raises several arguments that the

trial court’s conclusions of law ruling that a relocation of the minor children to

California would not be in the children’s best interest were not supported by its

findings of fact. We disagree.

      “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) (citation omitted). “Substantial evidence has been defined as such relevant

evidence as a reasonable mind might accept as adequate to support a

conclusion.” McConnell v. McConnell, 151 N.C. App. 622, 626, 566 S.E.2d 801, 804

(2002) (citation and quotation omitted). “In a custody proceeding, the trial court's

findings of fact are conclusive on appeal if there is evidence to support them, even

though the evidence might sustain findings to the contrary.” Senner v. Senner, 161

N.C. App. 78, 83, 587 S.E.2d 675, 678 (2003) (citations omitted).



                                          -3-
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                                          Opinion of the Court



      Defendant contends the trial court erred in denying her motion to relocate the

minor children to California because the trial court’s conclusions of law were not

supported by its findings of fact. In its order denying defendant’s motion, the trial

court noted that plaintiff “regularly participates in the children’s school and

extracurricular activities”; “[t]he children have lived in the Wilson community

continuously since the year 2005, and are thriving in the Wilson community”; “[t]he

children have traveled to California only one time and do not know anyone [there]. .

. . The children have only been in the physical presence of [defendant’s fiancé] on

three different occasions”; and “[t]he children are excelling and thriving in their

current situation.”1 In addition, the trial court found:

                       21. The Court finds that the proposed relocation of
                the children to the . . . California area would constitute a
                substantial change in the circumstances of the minor
                children that would adversely affect their welfare, and that
                it is not in the best interest of the children to modify the
                existing visitation Order.

                       22. The Court finds that due to the excellent
                relationship that the children have with both of their
                parents, and due to their extensive and successful
                involvement in school and community activities, that the
                proposed relocation is unlikely to improve the lives of the
                children.

                       23. The Court questions the sincerity of [defendant]
                in seeking a relocation based on her contention that she is
                financially unable to provide for the children due to her
                failure to be employed full-time in that the Court believes


      1   The minor children did not testify or otherwise speak to the trial court.

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                                    Opinion of the Court



             [defendant] has not pursued full-time employment in this
             area vigorously.

                    24. Based on [plaintiff’s] extensive involvement in
             the children’s lives through his exercise of his existing
             visitation and his desire to have additional time with the
             children, the Court finds that [plaintiff] is sincere in
             resisting the relocation of the children.

                    25. The Court finds that it is very unlikely that a
             realistic visitation schedule can be arranged which will
             preserve and foster the parental relationship with
             [plaintiff] if the children are relocated to California.

                    26. The Court finds that the disadvantages to the
             children which would result due to the proposed relocation
             to California greatly outweigh any advantages.

                    27. The Court finds that due to the uncertainty of
             the relationship between [defendant] and [defendant’s
             fiancé], if the children relocated to California, it is not clear
             that they could be financially supported without a
             contribution from [plaintiff].

                    28. The Court finds that [defendant] offered to
             reduce child support and/or reduce or eliminate her claims
             for post separation support and alimony in exchange for
             the proposed relocation of the children to California, which
             proposal [plaintiff] has consistently and adamantly
             rejected.

Defendant’s contention that the trial court erred must fail. The trial court, upon

hearing the arguments of counsel and reviewing the record before it, made numerous

and specific findings of fact that the minor children would not benefit from a

relocation to California; these findings of fact then supported the court’s conclusions

of law that defendant’s motion for relocation should be denied. See Spoon v. Spoon,


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                                  Opinion of the Court



___ N.C. App. ___, ___, 755 S.E.2d 66, 69 (2014) (“[T]he trial court's findings of fact

are conclusive on appeal if supported by evidence in the record, even if the evidence

might also support a contrary finding.”).        Defendant’s argument is, therefore,

overruled.

                                          II

      Defendant next argues that the trial court erred in denying her motion to

modify child custody. We disagree.

                     The trial court has the authority to modify a prior
             custody order when a substantial change in circumstances
             has occurred, which affects the child's welfare. The party
             moving for modification bears the burden of demonstrating
             that such a change has occurred. The trial court's order
             modifying a previous custody order must contain findings
             of fact, which are supported by substantial, competent
             evidence. The trial court is vested with broad discretion in
             cases involving child custody, and its decision will not be
             reversed on appeal absent a clear showing of abuse of
             discretion. In determining whether a substantial change
             in circumstances has occurred: [C]ourts must consider and
             weigh all evidence of changed circumstances which effect
             or will affect the best interests of the child, both changed
             circumstances which will have salutary effects upon the
             child and those which will have adverse effects upon the
             child. In appropriate cases, either may support a
             modification of custody on the ground of a change in
             circumstances.

Karger v. Wood, 174 N.C. App. 703, 705—06, 622 S.E.2d 197, 200 (2005) (citations

and quotation marks omitted).




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                                  Opinion of the Court



      Defendant contends the trial court erred in denying her motion to modify child

custody, arguing that the trial court erred in not finding that the relocation of the

minor children to California would allow the children a better standard of living.

During the hearing, the trial court heard the testimony of plaintiff, defendant, and

defendant’s now-husband, as well as the testimony of various family and friends of

both parties. The testimony generally indicated that both plaintiff and defendant

were fit and proper parents and that the minor children were currently thriving

academically within their respective schools in Wilson. Defendant acknowledged that

the minor children were successful in their current schools, but testified that the

minor children would have access to a wider range of educational opportunities in

California; defendant presented to the trial court packets of information on the public

schools the minor children would be eligible to attend in California. Defendant

further testified that she felt that the minor children would do better if allowed to

relocate to California because the public schools in California are rated more highly

than the minor children’s current schools in Wilson.

      In its order, the trial court made numerous findings of fact regarding the roles

plaintiff and defendant have played regarding the welfare of the minor children. The

trial court then concluded that, despite each party’s contributions to the welfare of

the minor children, neither party had demonstrated a change in circumstances

sufficient enough to justify a change to the child custody order. On this record,



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                                   Opinion of the Court



because the trial court’s findings of fact were supported by competent evidence, which

in turn supported its conclusions of law, we cannot say the trial court abused its

discretion in denying defendant’s motion to modify child support. See Biggs v. Greer,

136 N.C. App. 294, 296–97, 524 S.E.2d 577, 581 (2000) (“Child support orders entered

by a trial court are accorded substantial deference by appellate courts and our review

is limited to a determination of whether there was a clear abuse of discretion[.] . .

. [T]he trial court's ruling will be upset only upon a showing that it was so arbitrary

that it could not have been the result of a reasoned decision.” (citation and quotation

omitted)). Accordingly, defendant’s argument is overruled.

                                           III

       Finally, defendant contends the trial court erred in awarding attorneys’ fees to

plaintiff.

       G.S. § 50-13.6, governing the award of attorney's fees in actions for custody and

support of minor children, provides:

             In an action or proceeding for the custody or support, or
             both, of a minor child, including a motion in the cause for
             the modification or revocation of an existing order for
             custody or support, or both, the court may in its discretion
             order payment of reasonable attorney's fees to an
             interested party acting in good faith who has insufficient
             means to defray the expense of the suit. Before ordering
             payment of a fee in a support action, the court must find as
             a fact that the party ordered to furnish support has refused
             to provide support which is adequate under the
             circumstances existing at the time of the institution of the
             action or proceeding; provided however, should the court


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                                   Opinion of the Court



             find as a fact that the supporting party has initiated a
             frivolous action or proceeding the court may order payment
             of reasonable attorney's fees to an interested party as
             deemed appropriate under the circumstances.

N.C. Gen. Stat. § 50-13.6 (2014). "Whether these statutory requirements have been

met is a question of law, reviewable on appeal." Hudson v. Hudson, 299 N.C. 465,

472, 263 S.E.2d 719, 724 (1980). Only when these requirements have been met does

the standard of review change to abuse of discretion for an examination of the amount

of attorney's fees awarded. Id.

      Defendant contends the trial court erred in awarding attorneys’ fees to plaintiff

because it erroneously found that defendant’s motion to modify child support was

frivolous. Defendant further argues that even if the trial court did not err in finding

her motion to modify child custody to be frivolous, the trial court “nevertheless failed

to make the findings of fact required for an award of counsel fees.”

      As stated above, a trial court may, in its discretion, award attorneys’ fees upon

a finding that an action is frivolous, or where it is determined that a party has acted

in good faith and is unable to defray the costs of litigation. N.C.G.S. § 50-13.6.

However,

             [b]efore awarding attorney's fees, the trial court must
             make specific findings of fact concerning:

             (1) the ability of the [interested party] to defray the cost of
             the suit, i.e., that the [interested party is] unable to employ
             adequate counsel in order to proceed as a litigant to meet
             the other litigants in the suit;


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                                   Opinion of the Court




             (2) the good faith of the [interested party] in proceeding in
             this suit;

             (3) the lawyer's skill;

             (4) the lawyer's hourly rate;

             (5) the nature and scope of the legal services rendered.

In re Scearce, 81 N.C. App. 662, 663—64, 345 S.E.2d 411, 413 (1986) (citations

omitted).

      In its order awarding attorneys’ fees to plaintiff, the trial court made findings

of fact that defendant had scheduled depositions of third parties “for the purpose of

harassing . . . Plaintiff in an effort to increase needlessly . . . Plaintiff’s litigation

expenses,” “Defendant’s Motion for Drug testing of . . . Plaintiff was not well-grounded

in fact and interposed for the purpose of harassing . . . Plaintiff and needlessly caused

an increase in . . . Plaintiff’s [litigation] expenses,” “[t]he acts of . . . Defendant in

causing her attorney to file the Motion to Modify Custody . . . constitutes repeated

and unwarranted litigation with the motive of interfering with . . . Plaintiff’s

visitation with the minor children,” and that defendant’s actions caused plaintiff to

“expend[] and incur[] substantial attorney fees necessary to defend against . . .

Defendant[].” The trial court then made the following conclusions of law:

             4. . . . Plaintiff does not have sufficient means to defray the
             expense of this litigation and: (a.) . . . Plaintiff was acting
             in good faith in defending against Defendant’s Motion for
             Modification of Custody; and, (b.) . . . Plaintiff was acting


                                          - 10 -
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                                     Opinion of the Court



              in good faith in prosecuting his Motion for Modification of
              Custody.

              5. . . . Defendant’s Motion to Modify Custody, wherein . . .
              Defendant requested that she and the minor children be
              allowed to locate their residence to California, constitutes
              a frivolous action.

The trial court then awarded plaintiff “an award of a portion of his attorney fees . . .

in the amount of $3,000.00.”

       Defendant’s contention that the trial court erred in its finding of fact that her

actions were frivolous is without merit. The trial court made sufficient findings of

fact to support its award of attorneys’ fees to plaintiff both on grounds that plaintiff

had acted in good faith and could not afford to defray the costs of litigation, and that

defendant’s actions against plaintiff were frivolous. However, defendant is correct in

her assertion that the trial court erred by not making findings of fact as to the skill,

hourly rate, and services rendered by plaintiff’s attorney in its award of attorneys’

fees to plaintiff. See id. Indeed, a review of the transcript indicates that although

plaintiff gave the trial court an affidavit as to plaintiff’s attorneys’ fees, the trial court

failed to incorporate any findings as to this affidavit in its order. As such, although

we find no abuse of discretion by the trial court in its award of attorneys’ fees to

plaintiff, we must remand this order to the trial court for entry of findings of fact as

required by N.C.G.S. § 50-13.6 to support the amount of the award of attorneys’ fees.

Id.



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                         ABELLS V ABELLS

                         Opinion of the Court



AFFIRMED IN PART; REMANDED IN PART.

Judges STEPHENS and DIETZ concur.

Report per Rule 30(e).




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