               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-1167

                                  Filed: 2 August 2016

Guilford County, No. 11 CVD 8432

BRYANT HATCHER, Plaintiff,

              v.

RENEE MATTHEWS, Defendant.


        Appeal by plaintiff from order entered 27 April 2015 by Judge Michelle

Fletcher in Guilford County District Court. Heard in the Court of Appeals 11 April

2016.


        Samuel S. Spagnola for plaintiff-appellant.

        No brief filed on behalf of defendant-appellee.


        DAVIS, Judge.


        Plaintiff Bryant Hatcher (“Hatcher”) appeals from a custody order determining

that the best interests of his children required that they remain in the primary

physical custody of their mother, Defendant Renee Matthews (“Matthews”). After

careful review, we vacate the order and remand for further proceedings.

                                 Factual Background

        Hatcher and Matthews were married in 1998 and divorced in 2009. Following

their divorce, the Circuit Court of Fairfax County, Virginia entered an order

captioned “Final Custody Order” (the “Virginia Order”) on 10 December 2010 giving

Matthews sole legal custody and primary physical custody of their children and
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                                       Opinion of the Court



specifying regular visitation periods for Hatcher.1 The order was registered in North

Carolina on 22 July 2011.

       Upon Matthews’ 26 August 2011 motion filed in Guilford County District Court

for an emergency ex parte custody order, the trial court entered an emergency custody

order on 30 August 2011 and then a temporary custody order on 23 November 2011,

adjusting Hatcher’s visitation pending a new custody hearing. On 20 April 2012,

Hatcher filed a motion to modify custody.               In his motion, he provided factual

allegations in support of his assertion that Matthews had “done everything in her

power to completely alienate any form of a relationship between [him] and the minor

children[.]” He also claimed that because no final custody order had ever been

entered in the case he was not required to show a substantial change in circumstances

in order to modify custody. However, he contended that even assuming such a finding

was, in fact, necessary, Matthews’ recent conduct constituted a substantial change in

circumstances.

       After the issuance of two temporary orders by the trial court, a hearing was

held beginning 29 January 2015 before the Honorable Michelle Fletcher in Guilford

County District Court. At the hearing, the trial court heard testimony from each of




       1 We note that the Virginia Order references an earlier custody order entered January 2009 in
which the same Virginia trial court had placed sole legal custody and primary physical custody with
Matthews. While the January 2009 order is not contained in the record on appeal, its absence does
not preclude us from addressing the issues raised in this appeal.

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the parties and admitted into evidence a child custody evaluation that had been

conducted at the court’s direction.

      The trial court issued a new custody order on 27 April 2015, which (1) gave the

parties joint legal custody of the children; (2) determined that it was “in the best

interests of the minor children that their primary [physical] custody remain with

[Matthews]”; and (3) adjusted Hatcher’s visitation rights with the children. Hatcher

filed a timely notice of appeal.

                                         Analysis

      On appeal, Hatcher argues that the trial court erred in awarding primary

physical custody to Matthews because (1) its findings of facts did not support its legal

conclusion that the best interests of the children would be served by Matthews

retaining primary physical custody; and (2) at least one of its findings of fact was not

supported by competent evidence in the record.

      “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). If so, we “must determine if the trial court’s factual findings support its

conclusions of law.” Id. at 475, 586 S.E.2d at 254. The issue of whether a trial court

has utilized the correct legal standard in ruling on a request for modification of



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custody is a question of law that we review de novo. Peters v. Pennington, 210 N.C.

App. 1, 13, 707 S.E.2d 724, 733 (2011).

      N.C. Gen. Stat. § 50-13.7(b) addresses the modification of out-of-state custody

orders.

             [W]hen an order for custody of a minor child has been
             entered by a court of another state, a court of this State
             may, upon gaining jurisdiction, and a showing of changed
             circumstances, enter a new order for custody which
             modifies or supersedes such order for custody.

N.C. Gen. Stat. § 50-13.7(b) (2015).

      However, this requirement that a party seeking modification of custody must

show a substantial change in circumstances applies only when the preexisting

custody order is a permanent (or final) order rather than merely a temporary one.

                    If a child custody order is final, a party moving for
             its modification must first show a substantial change of
             circumstances. If a child custody order is temporary in
             nature . . . the trial court is to determine custody using the
             best interests of the child test without requiring either
             party to show a substantial change of circumstances.

LaValley v. LaValley, 151 N.C. App. 290, 292, 564 S.E.2d 913, 914-15 (2002) (internal

citations and footnote omitted).

      The issue of whether an order is temporary or final in nature is a question of

law that is reviewed de novo on appeal. Smith v. Barbour, 195 N.C. App. 244, 249,

671 S.E.2d 578, 582 (2009). An order is temporary “if either (1) it is entered without

prejudice to either party; (2) it states a clear and specific reconvening time in the


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                                  Opinion of the Court



order and the time interval between the two hearings was reasonably brief; or (3) the

order does not determine all the issues.” Id. (citation, quotation marks, and brackets

omitted). If an order does not meet any of these criteria, it is considered permanent.

Peters, 210 N.C. App. at 14, 707 S.E.2d at 734. A trial court’s designation of an order

as “temporary” or “permanent” is not dispositive or binding on an appellate court.

Smith, 195 N.C. App. at 249, 671 S.E.2d at 582.

       In determining whether the trial court conducted the correct legal analysis in

its 27 April 2015 order, we must first determine whether the Virginia Order was a

temporary or permanent custody order. Based on the factors set out above, we

conclude that the Virginia Order was a permanent custody order as it (1) was not

entered into without prejudice to either party; (2) did not state a reconvening time;

and (3) determined all of the issues, including legal and physical custody and ongoing

visitation.

       Thus, because the Virginia Order was a permanent custody order, the trial

court was required to engage in a two-step analysis in addressing Hatcher’s motion

to modify custody. First, the court had to determine whether a substantial change in

circumstances affecting the welfare of the children had occurred. If — and only if —

the trial court expressly found such a change in circumstances was it then permitted

to determine whether a modification of custody would be in the best interests of the

children. See West v. Marko, 141 N.C. App. 688, 690-91, 541 S.E.2d 226, 228 (2001)



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(“Permanent custody orders can only be modified by first finding that there has been

a substantial change of circumstances affecting the welfare of the child. Once the

trial court makes the threshold determination that a substantial change has

occurred, the trial court then must consider whether a change in custody would be in

the best interests of the child.” (internal citations omitted and emphasis added)).

       “There are no exceptions in North Carolina law to the requirement that a

change in circumstances be shown before a custody decree may be modified.”

Hibshman v. Hibshman, 212 N.C. App. 113, 124, 710 S.E.2d 438, 445 (2011) (citation

and emphasis omitted).       As such, “the trial court commits reversible error by

modifying child custody absent any finding of substantial change of circumstances

affecting the welfare of the child.” Cox v. Cox, __ N.C. App. __, __ 768 S.E.2d 308, 316

(2014) (citation omitted).

      We conclude that the trial court here did not apply the correct legal standard

in that it conducted a best interests analysis without first determining whether a

substantial change in circumstances had occurred. The court’s 27 April 2015 order

contains no findings regarding a change in circumstances and instead proceeds

straight into a best interests analysis. Moreover, the trial court’s order, without

explanation, purported to change the children’s legal custody — which the Virginia

Order had vested solely with Matthews — to joint legal custody between Matthews

and Hatcher.



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      In his brief to this Court, Hatcher acknowledges that the trial court would have

been required to find a substantial change in circumstances before modifying custody

and that its order did not expressly do so. He argues, however, that Raynor v. Odom,

124 N.C. App. 724, 478 S.E.2d 655 (1996), supports his contention that “a trial court

need not use the term ‘substantial change of circumstances’ for a substantial change

of circumstances to exist and to be documented in the court’s order.”

      However, Hatcher misreads our decision in Raynor. In that case, the issue was

whether “the properly supported legal conclusion of the trial court that the natural

mother is an unfit parent satisf[ied] the statutory requirement of finding a change in

circumstances . . . .” Id. at 733, 478 S.E.2d at 661. We held that

             [u]nder the [initial custody order] plaintiff was found to be
             a fit and proper parent; therefore, a finding of unfitness in
             a subsequent order is a substantial change in
             circumstances. Furthermore, because the standard for
             finding unfitness is much higher than the standard for
             finding a change in circumstances, it would seem absurd
             for a finding of unfitness to not be considered a change of
             circumstances . . . .

Id. at 734, 478 S.E.2d at 661.

      Thus, the trial court’s specific finding in Raynor that the mother had become

unfit to serve as a parent to her child constituted such a fundamental change in

circumstances that an explicit supplemental finding that there had been a

“substantial change in circumstances” was unnecessary. In the present case, Hatcher




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has failed to identify any portion of the trial court’s order containing a finding as to

Matthews comparable to the one in Raynor.

       Therefore, because the trial court applied an incorrect legal standard in its 27

April 2015 order, we must vacate the order and remand for further proceedings. See

Decker v. Homes, Inc./Constr. Mgmt. & Fin. Grp., 187 N.C. App. 658, 661, 654 S.E.2d

495, 498 (2007) (“We hold that the trial court applied an incorrect legal standard in

ruling on this motion and we remand this portion of the case for further

proceedings.”); Parsons v. Pantry, Inc., 126 N.C. App. 540, 543, 485 S.E.2d 867, 869

(1997) (reversing and remanding “for findings and conclusions using the proper

standard”); see also McMillan v. Town of Tryon, 200 N.C. App. 228, 238, 683 S.E.2d

747, 754 (2009) (“[W]e remand the matter to the trial court for imposition of the

proper standard of review . . . .”).

       On remand, we direct the trial court to enter a new order containing express

findings as to whether a substantial change in circumstances has occurred. If the

court determines that a substantial change has, in fact, occurred, then a best interests

analysis will be necessary.2 If, conversely, the trial court finds that no substantial

change in circumstances has occurred, then modification of custody would be




       2   Because of our holding that the trial court failed to apply the correct legal standard, we
decline to address Hatcher’s arguments regarding whether competent evidence supported the trial
court’s findings of fact and whether those findings supported its conclusions of law.

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                                 Opinion of the Court



inappropriate. We leave it to the trial court’s discretion whether the receipt of new

evidence and a new hearing are required.

                                    Conclusion

      For the reasons stated above, we vacate the trial court’s 27 April 2015 order

and remand for further proceedings not inconsistent with this opinion.

      VACATED AND REMANDED.

      Chief Judge McGEE and Judge STEPHENS concur.




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