                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-1171

                                  Filed: 15 May 2018

Wake County, No. 11 CVD 14976

JAMIE LUNSFORD MASTNY, Plaintiff,

               v.

CHAD JOSEPH MASTNY, Defendant.


        Appeal by defendant from order entered 17 May 2017 by Judge Christine M.

Walczyk in Wake County District Court. Heard in the Court of Appeals 18 April

2018.


        Laura C. Brennan for plaintiff-appellee.

        Tharrington Smith, LLP, by Steve Mansbery and Jeffrey R. Russell, for
        defendant-appellant.


        TYSON, Judge.


        Defendant appeals from an order modifying custody of his minor child. We

reverse the order and remand.

                                    I. Background

        This appeal is before this Court a second time. Mastny v. Mastny, __ N.C. App.

__, 796 S.E.2d 402, 2017 N.C. App. LEXIS 101 (2017) (unpublished) (hereinafter

“Mastny I”).        Jamie Lunsford Mastny (“Plaintiff”) and Chad Joseph Mastny
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(“Defendant”) originally settled the custody arrangements for their minor child,

Tyler, by entering into a consent order in 2012.

      This order entitled Defendant to “alternating weekend visitation from

Thursday at the recess of school until Monday morning” when Tyler would return to

school. On the weeks Defendant did not have weekend visitation, he was entitled to

overnight visitation on Thursdays.       Additionally, Defendant was granted two

“floating days” per month for visitation. Each party was guaranteed one week of

vacation with Tyler in the summer.

      Between 2013 and 2015, both Defendant and Plaintiff sought to modify the

custody arrangement. The use and scheduling of the “floating days” was at issue in

each motion for modification. The trial court first mandated make-up visitation days

for Defendant in 2013, since Plaintiff had allegedly denied his exercise of these

floating visitation days seven times without reason.

      In the 2015 order modifying custody, the trial court eliminated these “floating

days” from the custody schedule. During the school year, Defendant was entitled to

an alternating weekend visitation spanning from the end of the school day on Friday

to the beginning of school on Monday. Summer visitation was to follow an alternating

week schedule.

      Defendant appealed the 2015 order to this Court. In Mastny I, this Court

reversed the portions of the 2015 order that had modified the custody schedule from



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the prior consent order, and remanded to the trial court. Mastny, 2017 N.C. App.

LEXIS 101 at *26. Upon remand, the trial court was ordered to

             revisit the question of whether there has been a significant
             change of circumstances affecting Tyler’s welfare and, if so,
             whether modification of the custody provisions of the prior
             consent order would be in Tyler’s best interest. If the trial
             court decides that modification of the custody provisions of
             the prior consent order are warranted, it shall demonstrate
             through sufficient additional relevant findings of fact that
             there is a nexus between any change in circumstances and
             Tyler’s welfare, and that any particular modifications of
             the custody portions of the prior consent order are in
             Tyler’s best interest.

Id. (emphasis supplied).

      Upon remand, the trial court did not receive or hear any additional evidence.

On 17 May 2017, the trial court entered an order modifying child custody that

contained additional findings of fact and conclusions of law, but retained the identical

custody schedule from 2015. Defendant timely appealed.

                                    II. Jurisdiction

      An appeal of right lies to this Court from a child custody order entered in a

district court pursuant to N.C. Gen. Stat. § 7A-27(b)(2) (2017).

                                       III. Issues

      Defendant argues the trial court erred by failing to follow the mandates of

Mastny I by: (1) making certain findings of fact; (2) failing to make sufficient findings

of fact to support conclusion of law #4; (3) failing to show modification was in the best

interests of Tyler and in response to the substantial changes; (4) reducing Defendant’s

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physical custody time; and, (5) failing to promote the policy of the State articulated

in N.C. Gen. Stat. § 50-13.01.

                                      IV. Analysis

                                 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) (citation omitted). “[T]he 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.” Peters v. Pennington, 210 N.C. App. 1, 12-13, 707 S.E.2d 724, 733

(2011). Conclusions of law must be supported by the findings of fact. Id. “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, 625 S.E.2d 796, 798

(2006) (citation omitted).

                                  B. Findings of Fact

       Defendant argues insufficient evidence supports Findings of Fact 24(j), 24(g),

15A(a), 15A(b), 15A(c), 15A(e), 16A, 17A, and 27. Plaintiff only addresses Finding of

Fact 24(j) in her brief.

              Finding of Fact 24 states, in relevant part:



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             24. Since the entry of this Order, there has been a
             substantial change of circumstances justifying this court to
             assume jurisdiction to modify the August 13, 2012 Order
             as it relates to the custodial schedule in that:

                                          ....

                    (g) Plaintiff sometimes requires Tyler to facetime
                    with his father outside;

                                          ....

                    (j) Defendant has inappropriate boundaries
                    concerning Plaintiff. Following the first day of trial
                    and after learning Plaintiff’s salary at Trinity
                    Academy, Defendant called Plaintiff’s boss to ask
                    him to give her a raise. Defendant had previously
                    asked Plaintiff’s employer for information on the
                    tuition discount Plaintiff was entitled to as a result
                    of her employment at Trinity.          This behavior
                    undoubtedly put the Plaintiff’s employment at
                    Tyler’s school, and the family’s financial security, at
                    risk[.]

      Finding of Fact 24(j) was partially included in the 2015 modification order,

with the final sentence being added upon remand. We previously found “Defendant’s

having ‘inappropriate’ boundaries concerning Plaintiff could theoretically affect

Tyler’s welfare, but there are no findings of fact supporting any conclusion that this

has happened.” Mastny I, 2017 N.C. App. LEXIS 101 at *23.

      Plaintiff argues the effects of Defendant’s actions are “self-evident” requiring

no “evidence directly linking the change to the effect on the child.” In re A.C., __ N.C.

App. __, __, 786 S.E.2d 728, 743 (2016) (citation and internal quotation marks

omitted).   Whether or not Defendant’s actions contacting Tyler’s school were

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inappropriate, it cannot be presumed, and is hardly “self-evident,” that Defendant’s

contacting Plaintiff’s employer “undoubtedly” jeopardized Plaintiff’s position at the

school or placed the “family’s financial security [] at risk.” No new evidence was

offered at the hearing upon remand. This finding is unsupported by any substantial

evidence. See Shipman, 357 N.C. at 474, 586 S.E.2d at 253.

      Finding of Fact 24(g) is also not supported by competent evidence. Finding

24(g) was slightly modified from the 2015 order, where it was labeled 15(g) and read:

“Plaintiff does not allow [Tyler] to facetime with Defendant in her residence; rather,

she makes the minor child go outside to facetime with Defendant.” This Court

previous found “substantial record evidence” to support the 2015 finding. Mastny,

2017 N.C. App. LEXIS 101 at *12. As no new evidence was taken or received upon

remand, no evidence supports the change of Plaintiff “making” Tyler go outside to

facetime with his father to “sometimes requir[ing]” Tyler to go outside. It is unclear

why the trial court altered this Finding of Fact.

      A similar change in the Findings of Fact from the 2015 order can be seen in

Finding 17A, which reads:

             17[A]. As stated previously, there have been disagreements
             about the floating days which have prevented the
             Defendant from having the children for specific events such
             as the family wedding and NC State football games.
             Plaintiff has sometimes been inflexible on these matters.
             She has also made the child talk with his father outside the
             house on occasion. Despite these things, Plaintiff is less



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             likely, based on the evidence presented, to involve the
             children directly in the parties’ conflict.

This finding not only reiterates the new, occasional nature of Plaintiff requiring Tyler

to speak to his father outside, but also modified the related finding from the 2015

order, which read:

             16. Plaintiff has unreasonably denied Defendant extra
             custodial time with the children for specific events and
             refused to modify the schedule that would have provided
             the children with experiences with Defendant such as the
             family wedding and NC State football games.

Upon remand, and without additional evidence to support the change, the trial court

now finds Defendant was “prevented . . . from having the children for specific events”

because the Plaintiff “has sometimes been inflexible,” whereas previously the trial

court had found Plaintiff’s denial of these requests unreasonable.          There is no

substantial evidence to support the changes in Finding of Fact 17A. We will consider

in greater detail below the trial court’s conclusion that the Plaintiff is less likely to

involve the children in the parties’ conflict.

      Finding of Fact 15A reads in relevant part:

             15[A]. These changes have affected Tyler negatively in the
             following ways:

                     (a) Because the parties communicate ineffectively
                     and cannot agree on floating days, Tyler has missed
                     certain sporting, cultural and family events such as
                     NC State Football games and an out-of-state
                     wedding[.]



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                   (b) There are no consistent rules or expectations
                   between homes concerning the use of phones, on-line
                   gaming, and television and movie viewing. This
                   makes it difficult for Tyler, an eight year old boy
                   [now ten years old], who is going back and forth
                   between homes regularly[.]

                   (c) Tyler is aware of his parent’s conflict.

                                            ....

                   (e) Because the parties do not communicate
                   effectively and there are multiple exchanges during
                   the school week, Tyler has not had things for school
                   such as uniforms and supplies for classroom projects
                   and/or activities.

Substantial record evidence supports Findings 15A(a), (c), and (e). There is evidence

to support the lack of consistent rules as indicated in Finding 15A(b). We return to

these Findings as they relate to the nexus between the substantial change and Tyler’s

welfare and best interests, below.

      No substantial evidence supports Finding of Fact 16A:

             16[A]. The changes have affected Tyler positively in the
             following ways:

                   (a) Due to Plaintiff’s new work schedule at the child’s
                   school, Plaintiff is able to be involved with the
                   children’s educational pursuits on a daily basis.
                   This has proved beneficial to Tyler to have a parent
                   employed at his school as evidenced by his good
                   grades.




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No evidence or prior findings tends to show Tyler was doing poorly in school prior to

Plaintiff’s employment therewith, nor is there evidence that his good grades are

related to his mother’s employment at the school.

       Finding of Fact 27 is most appropriately considered as a conclusion of law, and

is discussed below.

 C. Nexus Between Changed Circumstances; Effect on Welfare and Best Interests

       Defendant argues the trial court failed to find facts showing the required nexus

between the changed circumstances and Tyler’s welfare, and erred by concluding:

              4. Modification of the child custody provisions set forth in
              the Consent Order is in Tyler’s best interest, promotes his
              best interest, and directly addresses needs indicated by the
              substantial changes in circumstances affecting Tyler’s best
              interest.

       “The trial court’s examination of whether to modify an existing child custody

order is twofold. The trial court must determine whether there was a change in

circumstances and then must examine whether such a change affected the minor

child.” Shipman, 357 N.C. at 474, 586 S.E.2d at 253. The trial court can only modify

an existing order after it determines the change affected the child’s welfare and

modification is in the child’s best interests. Id.

       “[Be]fore a child custody order may be modified, the evidence must

demonstrate a connection between the substantial change in circumstances and the

welfare of the child, and flowing from that prerequisite is the requirement that the

trial court make findings of fact regarding that connection.” Id. at 478, 586 S.E.2d at

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255 (citation omitted).    Upon remand, the trial court attempted to meet this

requirement through modifying the wording of the findings it had previously made

in 2015, but failed to follow the mandate we prescribed in Mastny I.

      The modification in Finding 17A, “Plaintiff is less likely, based on the evidence

presented, to involve the children directly in the parties’ conflict,” is unsupported by

the evidence. The trial court attempted to soften its findings concerning Plaintiff’s

behavior in order to “shoehorn” this finding and tie the changed circumstances to

Tyler’s welfare. The 2015 and 2017 modifications removed the conflict over the

“floating days,” but it appears Plaintiff would be less likely to involve the children in

the conflict only because she would not be provided an opportunity to unreasonably

deny Defendant access to the children, as she had in the past.

      We previously discussed how Finding of Fact 15A, related to the 2015

modification:

             Finding[] 15A(a) . . . involve[s] Plaintiff’s unwillingness to
             allow Defendant access to Tyler for specific events. To the
             extent Plaintiff’s unwillingness in this regard constituted
             a substantial change that affected Tyler’s welfare, it was a
             change of Plaintiff’s making, and the 21 December 2015
             modification order does not address this situation. The
             concerns implicit in findings 15A(c) and (d) are likewise not
             addressed by the 21 December 2015 order. Rearranging the
             custody schedule will not serve to make rules between the
             two homes more consistent, nor remove Tyler from the
             “middle” of any conflicts between Plaintiff and Defendant,
             with the possible exception that removal of the “floating”
             days dispenses with one source of prior conflict.
                                          ....


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             In finding 15A(e) the trial court found that “[t]he children
             have not had things for school such as uniforms and
             supplies for classroom projects and/or activities.” By
             reducing the number of times Tyler changes custody during
             the school year to once every two weeks instead of once
             every week, the trial court has reduced the chances that
             Tyler might not have access to certain items he needs for
             school because they have been left at the other parent’s
             home. However, we do not find that this benefit is enough
             to support a conclusion that modifying the consent order in
             the manner done in the 21 December 2015 order was in
             Tyler’s best interest. While it may well be correct . . . that
             “[a] specific and detailed custody order will reduce the
             conflict between the parties[,]” we hold there are
             insufficient findings of fact concerning how the trial court’s
             modifications will reduce conflict between Plaintiff and
             Defendant to such an extent that the modifications made
             were in Tyler’s best interest.

Mastny, 2017 N.C. App. LEXIS 101 at *22-24. This reasoning from Mastny I equally

applies to the current appeal.

      Finding of Fact 27 appears to have been drafted by the trial court as a way to

remedy the errors in the 2015 order. Finding 27 states:

             27. It is in the best interest of the minor child that the
             number of back and forth exchanges during the school year
             be reduced and that Tyler has a more consistent “home
             base” during the school year. This will enable Tyler to have
             more consistent rules and expectations at home during the
             school year, and reduce the number of times he is missing
             equipment or school supplies. It is [i]n Tyler’s best interest
             that the “home base” be Plaintiff’s home for the following
             reasons:

                   a. Plaintiff is employed at the children’s school and
                   has more time to spend with the [sic] Tyler during
                   the work/school week;


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                    b. Plaintiff is able to transport Tyler to and from
                    school daily;

                    c. Tyler’s time in the care of Defendant’s employees
                    and at Defendant’s office will be reduced;

                    d. Tyler will have regular and consistent time with
                    Reagan; and

                    e. Plaintiff is less likely to involve the children in the
                    conflict between the parties.

Again, no finding shows how changing custody would make the rules between the

homes more consistent, nor does the reduction of the number of times he may be

missing something for school justify a change in custody. See id.

      Plaintiff’s employment at the children’s school does not have any bearing on

Tyler’s custody, nor does it support a conclusion that Plaintiff’s home is a more

appropriate “home base.” No evidence suggests Defendant has had any issue with

taking the children to or from school. The fact that Defendant employs a caretaker

for the children while he finishes his workday does not support a conclusion that his

home is not appropriate for weekday visitation. In fact, the record shows the children

attend after-school care or activities while Plaintiff also finishes her workday at the

school.

      “There are no findings, and there is no evidence, that Tyler will be afforded

more opportunities to spend time with Reagan as a result of the modification[.]” Id.

at *23. As stated above, the evidence does not support the conclusion that Plaintiff

is less likely to involve the children in the parties’ conflict. “In short, these findings

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of fact do not support a conclusion that the modification of the existing custody

consent order, in the manner ordered by the trial court, served to promote Tyler’s best

interests.” Id.

       The trial court failed to follow and apply the mandate set forth in Mastny I. As

before,

              the trial court’s findings of fact are not sufficient to
              demonstrate the nexus between the change of
              circumstances and any effect on Tyler’s welfare. Further,
              the 21 December 2015 order [and the 2017 order on
              remand] fails to demonstrate that the particular remedy
              chosen – a significant reduction in Defendant’s custodial
              time for nine months with an increase in Defendant’s
              custodial time for three months – addresses the concerns
              raised in light of any change in circumstances.

Id. at *25.

       We reverse the 2017 order and remand. In light of our holding, we do not

address Defendant’s argument concerning the policy of N.C. Gen. Stat. § 50-13.01

(2017).

                                    V. Conclusion

       The holding in Mastny I was clear: the trial court had failed to find a nexus

between the changed circumstances and Tyler’s welfare, and failed to support its

conclusion that the specified modification addressed the changes and was in Tyler’s

best interest. See Mastny, 2017 N.C. App. LEXIS 101 at *25-26. This Court also

provided detailed guidance based upon Shipman, 357 N.C. at 474, 586 S.E.2d at 253.

Instead of making findings upon remand to demonstrate the nexus between the

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substantial changes and Tyler’s welfare, the trial court merely rearranged and

reworded its previous order, bringing the same failures to this Court for a second

time.

        It appears the trial court did not reconsider its conclusion there had been a

substantial change. It may still do so upon this remand. If the court still concludes

a substantial change has occurred, the trial court must make the required findings of

fact to demonstrate how the substantial change affects Tyler’s welfare.           If a

substantial change did not occur, or if it did occur, but it did not affect the child’s

welfare, “the court’s examination ends, and no modification can be ordered.”

Shipman, 357 N.C. at 474, 586 S.E.2d at 253.

        If the trial court finds a substantial change occurred that affected Tyler’s

welfare, the trial court must then determine if the proposed modification is in Tyler’s

best interest and is in response to the identified substantial changes. All of these

findings must be supported by substantial evidence in the record. As several years

have passed since a full evidentiary hearing was conducted in this matter, new and

additional evidence may be presented upon remand.

        This Court previously reversed portions of the 2015 order and remanded. The

trial court subsequently entered the 2017 order, presently before us, which is

indistinguishable in substance from the 2015 order. We reverse the 2017 order,

effectively putting the parties back under the initial 2012 consent order.



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      We again remand to the trial court for additional findings and conclusions

consistent with this opinion and the prior mandate set forth in Mastny I. Any

visitation due to Defendant under the 2012 consent order, but missed due to

Plaintiff’s actions and the trial court’s 2015 and 2017 orders, must be credited and

provided to Defendant upon remand. It is so ordered.

      REVERSED AND REMANDED.

      Judges ELMORE and ZACHARY concur.




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