                                NO. COA13-655

                   NORTH CAROLINA COURT OF APPEALS

                           Filed:    6 May 2014

JOEL W. THOMAS,
     Plaintiff,

    v.                                  Wake County
                                        No. 10 CVD 17772
HERLENE THOMAS,
     Defendant.


    Appeal by defendant from order entered 17 December 2012 by

Judge Debra S. Sasser in Wake County District Court.              Heard in

the Court of Appeals 6 January 2014.


    Gailor, Hunt, Jenkins, Davis, & Taylor, P.L.L.C., by Cathy
    C. Hunt and Jonathan S. Melton, for plaintiff-appellee.

    Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and
    Tobias S. Hampson, for defendant-appellant.


    McCULLOUGH, Judge.


    Defendant Herlene Thomas seeks review of a child custody

order, granting plaintiff Joel W. Thomas and defendant joint

legal custody, granting plaintiff primary physical custody, and

granting   defendant   secondary    physical    custody   of   their   minor

child.     For the reasons stated herein, we affirm the order of

the trial court.

                           I.      Background
                                -2-
       Plaintiff Joel W. Thomas and defendant Herlene Thomas were

married on 31 August 2001 and divorced on 31 July 2007.                              One

child was born of their marriage in 2004 (hereinafter “minor

child”).

       The parties’ first custody order was entered in California

on 27 April 2006 (“the 2006 Order”) and a second, supplementary

order    was      entered    in     California   on   18   July     2007   (“the    2007

Order”).       Both orders were registered in North Carolina on 21

October 2010 and 19 May 2011, respectively.

       On    14    July     2011,    plaintiff   filed     a    “Motion    to    Modify

Custody Order, Motion for Psychological Evaluation and Motion

for Custody Evaluation Pursuant to N.C. Gen. Stat. § 50-13.1 et

seq.; Rule 35.”           Plaintiff alleged that since the entry of the

2006    Order,      defendant       had    “refused   to   facilitate      the     minor

child’s visitation with Plaintiff,” resulting in a substantial

change in circumstances affecting the best interest and welfare

of     the   minor    child.          Furthermore,     plaintiff       alleged      that

“[d]efendant        has     shown     an   unwillingness       to   take   reasonable

measures to        foster a feeling of affection between the minor

child and Plaintiff and not to estrange the child from Plaintiff

or impair the [minor] child’s regard for Plaintiff.”

       On 10 October 2011, the trial court entered an “Order For

Custody Evaluation And Clarification of Existing Child Custody
                                    -3-
Order.”        The trial court found that “[g]iven the currently [SIC]

level of acrimony between the parties, the Court finds that a

good cause exists for ordering a custody evaluation.”

      On 14 November 2011, defendant filed a “Motion to Modify

Custody; Motion for Contempt; Motion in the Cause for Attorney’s

Fees;    Motion       to     Appoint    Parenting        Coordinator.”             Defendant

argued    that       since    the    2006     Order,     a    substantial      change      in

circumstances         affecting      the      welfare    of    the    minor    child       had

occurred       and   that     modification       of     custody      served    the    minor

child’s    best      interest.         Defendant        alleged,     inter    alia,    that

plaintiff fails to communicate with defendant in a collaborative

way     that     promotes      the     best    interest       of     the   minor     child,

plaintiff makes            false or empty promises to the minor child,

plaintiff and his current wife demean and disparage defendant in

the presence of the minor child, and that the terms of the 2006

Order and the 2007 Order were “vague, ambiguous, confusing, and

did not serve the minor child’s best interest[.]”

      Following a hearing held from 11 until 17 October 2012 on

each party’s motion to modify custody and several other motions

filed by both parties, the trial court entered a custody order

on 17 December 2012.            The custody order included 226 findings of

fact.          The   trial     court     concluded       that      there     had    been    a

substantial change in circumstances affecting the minor child,
                             -4-
warranting a modification of the 2006 and 2007 Orders.                             The

trial   court     further      concluded    that   it   would    be   in    the   best

interest of the minor child and would best promote the interest

and general welfare of the minor child if the parties had joint

legal   custody,       with    plaintiff    “having     final    decision     making

authority if the parties are unable to timely agree as to a

decision,       and    with    [p]laintiff       exercising     primary     physical

custody    of    the   minor    child,     and   with   [d]efendant        exercising

secondary physical custody[.]”

          Defendant appeals.

                              II.   Standard of Review

            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.   Substantial evidence is
            such relevant evidence as a reasonable mind
            might accept as adequate to support a
            conclusion.   Unchallenged findings of fact
            are binding on appeal.     The trial court’s
            conclusions of law must be supported by
            adequate findings of fact.

Peters v. Pennington, 210 N.C. App. 1, 12-13, 707 S.E.2d 724,

733 (2011) (citations omitted).

    “The trial court is vested with broad discretion in child

custody cases, and thus, the trial court’s order should not be

set aside absent an abuse of discretion.”                 Dixon v. Gordon, __

N.C. App. __, __, 734 S.E.2d 299, 304 (2012) (citation omitted).
                                           -5-
                                     III. Discussion

       Defendant presents the following issues on appeal: whether

the trial court (A) failed to make sufficient findings of fact

to support its conclusion of law that a substantial change in

circumstances had occurred; (B) erred in concluding that it was

in the best interest of the minor child to modify custody; and

(C)    erred    in     denying       the    motion   to     appoint    a   parenting

coordinator.

                 A.     Substantial Change in Circumstances

       Defendant argues that the trial court erred by failing to

make sufficient findings of fact to support its conclusion of

law    that    there    had    been    substantial      change    in   circumstances

affecting the minor child, thereby warranting a modification of

the    2006    and    2007    California      custody     orders.      Specifically,

defendant      contends       that    (i)    the   parties’      stipulation   to   a

substantial change in circumstances was invalid and ineffective,

and (ii) the trial court failed to make specific findings about

what circumstances had changed and what effect, if any, such

changed circumstances had on the minor child.                       We address each

argument in turn.

  i.     Stipulation as to “Substantial Change in Circumstances”

       Defendant argues that the trial court erred by making the

following finding of fact:                 “[t]he parties stipulate that there
                             -6-
has been a substantial change of circumstances since entry of

the California Orders for custody on April 27, 2006 and July 18,

2007.”

    At the beginning of the hearing, the following exchange

occurred:

            THE COURT: All right. Thank you. Um, before
            we get started, since each party has a
            Motion to Modified [sic] Custody on the
            calendar, are you interested in just having
            a   stipulation  that   there   has  been a
            substantial change in circumstances that
            would warrant a modification, such that I
            can focus my energies on best interests as
            opposed to, um, keeping tabs on whether
            there’s evidence of a substantial change?

            [Plaintiff:]      We would stipulate to that,
            Your Honor.

            [Defendant:]      Uh, yes, Your Honor, I think
            it’s clear.

            THE COURT: All right. All right. And I’m
            certain we’ll identify what those changes
            are.

    It is well established that a             “determination of whether

changed circumstances exist is a conclusion of law.”                    Head v.

Mosier,   197   N.C.   App.   328,   334,   677   S.E.2d   191,   196    (2009)

(citing Brooker v. Brooker, 133 N.C. App. 285, 289, 515 S.E.2d

234, 237 (1999)).        Our Court has held that “[s]tipulations as

to questions of law are generally held invalid and ineffective,

and not binding upon the courts, either trial or appellate.”                 In
                               -7-
re A.K.D., __ N.C. App. __, __, 745 S.E.2d 7, 9 (2013) (citation

omitted).

       Based     on    the     foregoing,       we    agree       with       defendant’s

contention that the parties’ stipulation as to a substantial

change in circumstances was invalid and ineffective.

 ii.    Findings to Support a Substantial Change in Circumstances

       Next, defendant argues that the trial court failed to make

sufficient      findings      of   fact   to    support     its    conclusion         that

“[t]here       has    been    a    substantial       change       in     circumstances

affecting the minor child which warrants a modification of the

2006 and 2007 California Custody Orders.”                   We are not persuaded

by defendant’s arguments.

       “It is well established in this jurisdiction that a trial

court may order a modification of an existing child custody

order   between       two    natural    parents      if   the   party        moving   for

modification shows that a ‘substantial change of circumstances

affecting      the    welfare      of   the    child’     warrants       a   change    in

custody.”       Shipman v. Shipman, 357 N.C. 471, 473, 586 S.E.2d

250, 253 (2003) (citations omitted).                      The modification of a

custody decree must be supported by findings of fact reflecting

the fulfillment of this burden.                See Tucker v. Tucker, 288 N.C.

81, 87, 216 S.E.2d 1, 5 (1975). “[T]he evidence must demonstrate

a connection between the substantial change in circumstances and
                              -8-
the welfare of the child, and flowing from that prerequisite is

the   requirement     that     the   trial       court   make   findings     of    fact

regarding     that   connection.”           Shipman,     357    N.C.   at   478,   586

S.E.2d at 255 (citation omitted).

              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 a child and those
              which will have adverse effects upon the
              child.

Hibshman v. Hibshman, 212 N.C. App. 113, 121, 710 S.E.2d 438,

443 (2011) (citations and quotation marks omitted).

      In the present case, the primary disputed issues regarding

the   minor    child’s    welfare         were    plaintiff’s     allegation       that

defendant      was   refusing        to     facilitate      the    minor     child’s

visitation with plaintiff, plaintiff’s allegation that defendant

was unwilling to take reasonable measures to foster a feeling of

affection     between    the   minor      child    and   plaintiff,     defendant’s

allegation that plaintiff failed to communicate with defendant

in a collaborative way, defendant’s allegations that plaintiff

makes empty promises to the minor child and makes disparaging

comments about defendant in the presence of the minor child, and

defendant’s allegation that the terms of the 2006 Order and the

2007 Order were confusing and ambiguous.                   Upon a review of the
                               -9-
226 unchallenged findings of fact made by the trial court, which

are binding on appeal, we find that the trial court sufficiently

resolved the issues at hand and demonstrated the existence of a

substantial change in circumstances and its effect on the minor

child, with those findings including the following:

         78.   For the most part, from 2006 until
               2010,    Defendant   consulted    with
               Plaintiff and kept Plaintiff informed
               about education and healthcare issues.
               Plaintiff did not question Defendant’s
               decisions as to these issues, and he
               deferred to her about decisions in
               these areas.

         79.   However,    after    Plaintiff    married
               Katrina [in November 2009], Defendant’s
               ability to emotionally divorce herself
               from Plaintiff became a barrier in
               Plaintiff’s   attempts   to   communicate
               with [the minor child]. For the first
               few    months    following    Plaintiff’s
               marriage to Katrina, Plaintiff could
               not get in touch with [the minor
               child].

         80.   While the parties’ relationship had
               been     dysfunctional      for     years,
               Defendant’s refusal to follow through
               on   the   Christmas   2009   visit   with
               Plaintiff and Plaintiff’s marriage to
               Katrina marked the beginning of a
               pattern of disruption in Plaintiff and
               the minor child’s relationship.

         . . . .

         105. Following Social Services involvement
              with the family [in 2011], Defendant
              engaged in a pattern of vindictive
              behavior with Plaintiff.
                    -10-

106. On February 4, 2011, Defendant was
     willfully hours late in having [the
     minor child] available for pick-up, and
     her communication with Plaintiff about
     this was spiteful and vindictive.   Due
     to Defendant’s purposeful tardiness to
     the custody exchange, Plaintiff was
     unable to exercise visitation with the
     minor child.

107. On   March   18,   2011,  Plaintiff   let
     Defendant know that he would be about
     20 minutes late for a pick-up, but
     Defendant did not have [the minor
     child]   there    for   a  late   pickup.
     Although Defendant told Plaintiff that
     she took [the minor child] to church,
     this was not true.        Again, due to
     Defendant’s    behavior   Plaintiff   was
     unable to exercise visitation with the
     minor child.

. . . .

110. Defendant has called Katrina a “b**ch”
     in front of [the minor child] . . . .
     Defendant lets her negative feelings
     toward Katrina interfere with [the
     minor    child’s]   relationship  with
     Plaintiff and Katrina. . . .

. . . .

112. Defendant has created the situation for
     a hostile relationship between [the
     minor child] and Katrina.

. . . .

121. By the terms of the 2011 [Order for
     Custody Evaluation and Clarification of
     Existing Child Custody Order], the
     Court sought to reduce conflict between
     the parties, especially conflict in
                     -11-
     front of the minor child.

. . . .

126. Despite the “clarifying” North Carolina
     custody order, Defendant continued to
     interfere with Plaintiff’s custodial
     time with [the minor child] throughout
     2012.

. . . .

137. Defendant has put a premium on the
     minor   child’s    activities   to   the
     detriment of Plaintiff’s relationship
     with the minor child. Defendant has
     used things such as a “pumpkin picking”
     trip at school as an excuse to limit
     Plaintiff’s visitation with [the minor
     child].    She has conditioned visits,
     requiring Plaintiff to agree to take
     [the minor child] to work with him
     during a visit instead of [the minor
     child]   being   allowed   to  stay   at
     Plaintiff’s home with Katrina. . . .

. . . .

150. Defendant’s   interference   with   [the
     minor child’s] contact with Plaintiff
     is having a detrimental impact on [the
     minor    child]   evidenced    by    the
     difficulties at custodial exchanges.

. . . .

155. Defendant either intentionally ignores
     the plain language of a Court Order or
     she is not capable of understanding
     plain language in a Court Order.

. . . .

196. [The   minor    child]  can   be   very
     manipulative.   He has likely developed
                                     -12-
                      this personality trait as a response to
                      the intense negative emotions that his
                      mother feels toward his father and that
                      his father feels toward his mother. He
                      does not feel that he can express love
                      for a parent except directly to that
                      parent.

              . . . .

              199. Defendant has,           either intentionally or
                   inadvertently,          engaged in conduct that
                   is alienating            [the minor child] from
                   Plaintiff. . .          .

              . . . .

              215. Defendant’s feelings of hurt and anger
                   toward Plaintiff interfere with her
                   ability to effectively co-parent with
                   Plaintiff.    The level of acrimony
                   between the parties has interfered in
                   their ability to co-parent [the minor
                   child].

       These numerous findings illustrate the fact that since the

entry of the 2006 Order and the 2007 Order, plaintiff’s marriage

to Katrina in 2009 has marked the beginning of a “pattern of

disruptive         behavior”      by   defendant    involving    the    relationship

between plaintiff and the minor child, significantly interfering

with    the        parties’      ability    to    co-parent,    and    detrimentally

affecting the welfare of the minor child.

       Accordingly,         we    hold     that    although    the    trial   court’s

finding       of     fact     regarding     the    parties’     stipulation    to   a

substantial change in circumstances was invalid and ineffective,
                              -13-
the trial court’s findings of fact were adequate to support its

conclusion of law that a substantial change in circumstances

affecting the minor child warranted a modification of the 2006

Order and the 2007 Order.

                    B.    Best Interest of the Minor Child

      Next, defendant challenges the trial court’s conclusion of

law number 6:

             6.   It is in the best interest of the minor
                  child,   and  would   best  promote   the
                  interest and general welfare of the minor
                  child, that the parties have joint legal
                  custody, with Plaintiff having final
                  decision making authority if the parties
                  are unable to timely agree as to a
                  decision, and with Plaintiff exercising
                  primary physical custody of the minor
                  child, and with Defendant exercising
                  secondary physical custody with the minor
                  child as set out hereinafter with more
                  specificity.

Specifically, defendant argues that the foregoing conclusion of

law is not supported by the findings of fact.               We disagree.

      Once    the     trial    court   concludes     that   there   has    been   a

substantial change in circumstances affecting the minor child

“it   may    modify      the   order   if   the   alteration   is   in    the   best

interests of the child.”               Peters, 210 N.C. App. at 13, 707

S.E.2d at 734.

             [A] custody order is fatally defective where
             it fails to make detailed findings of fact
             from which an appellate court can determine
                               -14-
           that the order is in the best interest of
           the child, and custody orders are routinely
           vacated where the "findings of fact" consist
           of mere conclusory statements that the party
           being awarded custody is a fit and proper
           person to have custody and that it will be
           in the best interest of the child to award
           custody to that person.      A custody order
           will also be vacated where the findings of
           fact are too meager to support the award.

Carpenter v. Carpenter, __ N.C. App. __, __, 737 S.E.2d 783, 787

(2013)   (citing   Dixon   v.   Dixon,    67   N.C.    App.    73,   76-77,   312

S.E.2d 669, 672 (1984) (citations omitted)).                  Findings of fact

“may concern physical, mental, or financial fitness or any other

factors brought out by the evidence and relevant to the issue of

the welfare of the child.”         Steele v. Steele, 36 N.C. App. 601,

604, 244 S.E.2d 466, 468 (1978).

       After thoroughly reviewing the trial court’s 17 December

2012   Custody   Order,    we   observe   that   the    following     pertinent

findings of fact allow our Court to determine whether a change

in custody is in the best interest of the minor child, and

adequately support the trial court’s conclusion of law number 6:

           111. It would be in [the minor child’s] best
                interest for Plaintiff, Defendant, and
                Katrina to positively co-parent [the
                minor child].

           . . . .

           150. Defendant’s  interference   with  [the
                minor child’s] contact with Plaintiff
                is having a detrimental impact on [the
                    -15-
    minor   child]   as  evidenced  by   the
    difficulties at custodial exchanges.

. . . .

154. Defendant is in need of therapy to
     address    deep     seated,    long-term
     unresolved issues arising from her
     relationship with Plaintiff and her
     failure to emotionally divorce herself
     from this relationship, and it is in
     [the minor child’s] best interest for
     Defendant to engage in such therapy.

. . . .

181. It would not be in [the minor child’s]
     best interest for either parent to exit
     [the minor child’s] life.       However,
     neither is maintaining the status quo
     in [minor child’s] best interest.

182. If [the minor child] were to live
     primarily with Plaintiff, [the minor
     child] would be moving to Suffolk,
     Virginia, where Plaintiff has lived
     since 2010.    Plaintiff is established
     in   this    community   and   has   an
     appropriate home for [the minor child].
     [The minor child] is comfortable in
     this home. . . .

. . . .

184. If [the minor child] were to live
     primarily with Plaintiff, Katrina would
     assist with [the minor child’s] care if
     Plaintiff was away for his military
     duties. Plaintiff’s parents are also in
     close proximity to Plaintiff.

. . . .

188. Plaintiff would likely facilitate an
     ongoing relationship between [the minor
                                 -16-
                  child] and Defendant, but the extent of
                  Plaintiff’s efforts would depend on
                  whether   Defendant   was  engaged   in
                  therapy.

             . . . .

             204. Plaintiff is the parent most likely to
                  encourage and support a relationship
                  between [minor child] and the other
                  parent.

             . . . .

             207. If   [the minor child] is left in
                  Defendant’s    primary   care,    it   is
                  unlikely that the dynamics between
                  Plaintiff    and    Defendant,    between
                  Defendant   and   Katrina,   or   between
                  Plaintiff and [the minor child] will
                  change,   and   it   is   possible   that
                  Plaintiff, in an effort to shield [the
                  minor child] from the conflict, will
                  sever his ties to [the minor child],
                  which would likely be devastating to
                  [the     minor     child’s]     emotional
                  development. . . .

             . . . .

             216. Given    the   parties’   dysfunctional
                  relationship history and the current
                  level of conflict between the parties,
                  unless   one  parent  is  given   final
                  decision making authority on important
                  issues, joint legal custody is not in
                  [the minor child’s] best interest in
                  light of the risk of delay in making
                  timely decisions[.]

      Thus, we hold that the trial court’s conclusion number 6 is

based on findings that clearly illustrate that it would be in

the   best    interest   of   the   minor   child   for   the   parties   to
                                    -17-
successfully     co-parent   and   that plaintiff    is   the    party   most

likely to facilitate a relationship between the minor child and

the other parent based on defendant’s past interference with the

minor   child    and   plaintiff’s   relationship.        Accordingly,    we

uphold the conclusion of the trial court.

          C.     Motion to Appoint a Parenting Coordinator

    In her last argument, defendant argues that the trial court

erred   by      failing   to   appoint    a   parenting         coordinator.

Defendant’s argument is based on the assumption that the trial

court “had the responsibility to require the parties to produce

evidence of their ability to pay a parenting coordinator if that

would be in the best interests of the child.”         We disagree.

    On 14 November 2011, defendant filed a motion to appoint a

parenting coordinator arguing that the current custody action

constituted a “high conflict” case pursuant to N.C. Gen. Stat. §

50-90(1), which defines a high-conflict case as:

             [a] child custody action involving minor
             children brought under Article 1 of this
             Chapter where the parties demonstrate an
             ongoing pattern of any of the following:
             a. Excessive litigation.
             b. Anger and distrust.
             c. Verbal abuse.
             d. Physical    aggression   or   threats  of
                 physical aggression.
             e. Difficultly    communicating   about  and
                 cooperating in the care of the minor
                 children.
             f. Conditions that in the discretion of the
                                  -18-
                 court warrant the appointment                    of       a
                 parenting coordinator.

N.C. Gen. Stat. § 50-90(1) (2013).              Pursuant to section 50-91 of

the North Carolina General Statutes, a parenting coordinator may

be appointed only if

           the [trial] court . . . makes specific
           findings [1] that the action is a high-
           conflict case, [2] that the appointment of
           the parenting coordinator is in the best
           interests of any minor child in the case,
           and [3] that the parties are able to pay for
           the cost of the parenting coordinator.

N.C. Gen. Stat. § 50-91(b) (2013).

    On 17 December 2012, the trial court denied defendant’s

motion,   finding      the   following:       “[t]his    is   a    high         conflict

custody   action.         However,    there      was    insufficient            evidence

concerning      the    parties’   present     ability    to   pay      a       parenting

coordinator.”

    Our review reveals that N.C. Gen. Stat. § 50-91 governs

what findings must be made only if the trial court, in its

discretion,      appoints    a    parenting     coordinator.           In      the   case

before    us,    the    trial     court   did    not    appoint        a       parenting

coordinator and defendant does not cite to any authority, nor

can we find any, imposing an affirmative duty on the trial court

to require parties to produce evidence of their ability to pay

for a parenting coordinator if one is not appointed.
                             -19-
    Furthermore, unchallenged findings suggest that the parties

more than likely lacked the ability to pay for a coordinator.

Particularly, the trial court found that plaintiff had not been

able to pay his attorneys’ fees on his own and owed in excess of

$70,000.00 toward his attorneys’ fees.                     Defendant, unable to

afford paying her legal fees, received funds from a church in

excess of $90,000.00.

                                    IV.   Conclusion

    Because      we     hold    that      the   trial     court   made    sufficient

findings    of   fact    to    support     its     conclusions    of     law   that   a

substantial      change        in     circumstances        had    occurred,       that

modification of custody was in the best interest of the minor

child,     and   that    the    trial      court    did    not    err    by    denying

defendant’s motion to appoint a parenting coordinator, we affirm

the 17 December 2012 Custody Order of the trial court.

    Affirmed.

    Chief Judge MARTIN and Judge ERVIN concur.
