              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-496

                               Filed: 15 January 2019

Duplin County, No. 05 CVD 1072

KRISTI LYNNE DEAN WALSH, Plaintiff,

             v.

KENNETH RAY JONES, II, Defendant.


      Appeal by plaintiff from order entered 3 August 2017 by Judge Carol A. Jones

in District Court, Duplin County. Heard in the Court of Appeals 28 November 2018.


      Sumrell, Sugg, Carmichael, Hicks and Hart, P.A., by William C. Coley, III, for
      plaintiff-appellant.

      White & Allen, P.A., by David Jarvis Fillippeli, Jr. and Ashley Fillippeli
      Stucker, for defendant-appellee.


      STROUD, Judge.


      Plaintiff-mother appeals an order modifying custody of the parties’ daughter

by allowing defendant-father to resume visitation with the child several years after

a custody order which “immediately and permanently suspended and terminated” all

visitation and contact of any sort with defendant-father. Where the trial court made

extensive unchallenged findings of fact of the positive changes in Father’s life since

the prior order and determined these changes justify a modification of custody, the

trial court did not abuse its discretion in modifying the custody order to allow a

gradual resumption of visitation with Father.

                                    I.     Background
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                                          Opinion of the Court



          Plaintiff-mother and defendant-father are the parents of Tammy, born in

2004.1 Mother and Father were living together when Tammy was born but stopped

living together on 24 September 2005 due to Father’s domestic violence. An order

was entered in the domestic violence case which granted primary custody of Tammy

to Mother and gave Father specific visitation. On 7 December 2005, Mother filed a

complaint for custody and child support in this case, alleging Father had committed

domestic violence against her, was abusing illegal drugs, and could not control his

anger. On 30 January 2006, an order was entered suspending Father’s visitation

because he had tested positive for use of methamphetamine and marijuana and a

referral was made to the Department of Social Services (“DSS”).

          On or about 27 March 2006, the trial court entered a consent order in the

custody case allowing Father to resume visitation. This order noted that Father had

repeatedly passed his drug tests but required him to continue drug testing in the

discretion of DSS, to meet with DSS personnel by June 2006 to review the case, and

urged Father to participate in an anger management course. In April and May, 2007,

Father filed motions for modification of visitation alleging that in late March 2007,

DSS prevented Father from having any contact with Tammy based upon Mother’s

report of inappropriate touching of Tammy by Father. Father further alleged DSS

had completed its investigation of Mother’s report as of 26 April 2007 and he had one



1   A pseudonym is used to protect the identity of the minor involved.

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                                  Opinion of the Court



visit with Tammy, supervised by his parents, but another report of inappropriate

touching was made to DSS on 3 May 2007, ceasing his visitation again.

      On 23 August 2007, the trial court entered an order including detailed findings

regarding Father’s drug abuse and anger issues. In the August 2007 order, the trial

court found it had “grave concerns about the Defendant’s usage of controlled

substances, his anger related issues, and his judgment/decision making process” and

ordered that he have no contact with Tammy until he complied with the order’s

provisions. Father was required to submit to drug testing and could not resume

visitation unless he was clean for three consecutive weeks; this order set a review

hearing for September 2007.     The trial court held a review hearing in September

2007 and entered an order again requiring drug testing and allowing conditional

supervised visitation if he was in compliance. Another review order was entered in

May 2008 which again required drug testing and further noted that Father could file

for a modification after three consecutive weeks of clean drug tests.

      In March 2010, Mother filed a motion for modification of custody and

emergency relief asking to terminate Father’s visitation because he had been charged

with felony possession of methamphetamine and other drug-related crimes. Mother

alleged Father was not living with his parents, who had supervised his visitation, and

was not getting drug tests as ordered. The trial court entered an emergency order

suspending Father’s visitation. After several continuances, the trial court heard



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                                  Opinion of the Court



Mother’s motion and entered an order in October 2010. The 2010 custody order

included detailed findings regarding Father’s drug abuse and his guilty plea to some

of the criminal charges. The trial court found Father was not a fit and proper person

to have visitation or contact of any kind with Tammy. The order granted sole legal

and physical custody to Mother and provided

             that all visitation(s), association(s), and/or contact(s),
             including without limitation opportunities for same, of any
             kind and description, by and between the Defendant and
             the minor child, [Tammy], shall be and same is/are
             immediately and permanently suspended and terminated.
             That, further, neither Defendant nor any person/agent
             acting on his behalf shall visit, associate with and/or
             contact, or attempt to visit, associate with and/or contact,
             in any manner, fashion or way, the minor child or anyone
             having legal and authorized possession of said child. That
             any rights, legal or otherwise, of any kind or description
             that Defendant heretofore had relative to visiting or having
             contact, of any kind or description, with the parties’ minor
             child, [Tammy], are hereby and shall be immediately
             terminated and ended; and, Defendant shall have no
             further contact of any kind or description with the said
             child.

      In August 2016, Father filed a motion in the cause to modify custody alleging

a substantial change in circumstances. Father alleged he had been released from

prison in December 2015. While in prison, he had participated in DART, NA, and AA

and continued to pay child support. On post-release supervision, all of his drug tests

were negative; he was residing with his mother and intended to continue doing so;




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                                          Opinion of the Court



and he felt remorse for his past decisions.             Father asked to resume visitation with

Tammy.

          Mother filed a response to Father’s motion, asking that his motion be “denied”

and “dismissed[;]” her response did not cite any specific rule supporting dismissal.

In January 2017, the trial court began the hearing on Father’s motion for

modification but after hearing part of the evidence suspended the hearing and

entered an order requiring the parties to participate in a “Best Interest Evaluation”

regarding custody and visitation, to be performed by Dr. Jerry Sloan. The custody

hearing later resumed and was completed in June 2017.

          On 3 August 2017, the trial court entered an order modifying custody. The

order includes detailed findings of fact regarding the prior orders and history.

Findings 11 through 29 address the substantial changes in circumstances regarding

Father’s cessation of drug abuse and improvements in problem areas noted in the

prior orders. Other findings noted that Mother opposed resumption of visitation and

that Mother claimed Tammy did not want to visit with Father and was upset by the

prospect of visitation.2 The order allowed Father to resume visitation on a schedule

of gradually increasing visitation, starting with supervised visits. The order also

required Father to participate in individual, group, and family therapy to address his

reintegration into Tammy’s life. Mother appeals from the August 2017 order.



2   Tammy testified in chambers, and there is no record of her testimony.

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                                   Opinion of the Court



                             II.    Denial of Motion to Dismiss

      Mother contends that “the trial court erred by not granting plaintiff’s Rule

41(b) motion for involuntary dismissal at the close of the defendant’s evidence and

also at the close of all of the evidence.” (Original in first letter caps.) Mother argues

that Father’s evidence showed no change of circumstances which affects the interests

of the minor child because he cannot prove there is any potential benefit to Tammy

from a resumption of a relationship with Father.

      We first note that because the trial court is the trier of fact in a custody trial,

and the trial court is vested with broad discretion in this type of case, our appellate

courts generally disfavor dismissal of a custody action under Rule 41(b):

             Dismissal under Rule 41(b) is left to the sound discretion
             of the trial court. In a Rule 41(b) context, the trial judge
             may decline to render any judgment until the close of all
             the evidence, and except in the clearest cases, he should
             defer judgment until the close of all the evidence.

Beck v. Beck, 175 N.C. App. 519, 523, 624 S.E.2d 411, 414 (2006) (citations, quotation

marks, and brackets omitted). Since the trial court must make findings of fact to

support an order under Rule 41(b), there is little practical or legal difference between

an order dismissing a motion to modify custody under Rule 41(b) and an order

denying a party’s claim for modification of custody. See Helms v. Rea, 282 N.C. 610,

619, 194 S.E.2d 1, 7 (1973) (“There is little point in such a motion at the close of all

the evidence, since at that stage the judge will determine the facts in any event.”



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                                   Opinion of the Court



(citation quotation marks, and ellipses omitted)); see also Hill v. Lassiter, 135 N.C.

App. 515, 517-18, 520 S.E.2d 797, 800 (1999) (“If the trial court grants a defendant’s

motion for involuntary dismissal, he must make findings of fact and failure to do so

constitutes reversible error. Such findings are intended to aid the appellate court by

affording it a clear understanding of the basis of the trial court’s decision, and to make

definite what was decided for purposes of res judicata and estoppel. Finally, the

requirement of findings should evoke care on the part of the trial judge in

ascertaining the facts.” (citations omitted)).   Whether the trial court is ruling on a

motion to dismiss under Rule 41(b) or ruling on the substantive claim for modification

of custody, the trial court is doing essentially the same thing; in both instances, the

trial court must evaluate the evidence to determine whether the motion to modify

custody has merit and must make findings of fact.

             On a motion to dismiss pursuant to Rule 41(b), the trial
             court is not to take the evidence in the light most favorable
             to plaintiff. Instead, the judge becomes both the judge and
             the jury and he must consider and weigh all competent
             evidence before him. The trial court must pass upon the
             credibility of the witnesses, the weight to be given their
             testimony and the reasonable inferences to be drawn from
             them.
                    A dismissal under Rule 41(b) should be granted if
             the plaintiff has shown no right to relief or if the plaintiff
             has made out a colorable claim but the court nevertheless
             determines as the trier of fact that the defendant is entitled
             to judgment on the merits.

Id. at 517, 520 S.E.2d at 800 (citations and quotation marks omitted).



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                                      Opinion of the Court



      We review the trial court’s denial of Mother’s motion to dismiss for abuse of

discretion, see Beck, 175 N.C. App. at 523, 624 S.E.2d at 414, and we also review the

trial court’s determination of the motion to modify custody for abuse of discretion.

See generally Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 (2003)

(“Our trial courts are vested with broad discretion in child custody matters.”). Since

we must consider the trial court’s findings of fact and conclusions of law to review

both issues, we will proceed to address the substantive issue of modification of

custody.

                               III.      Modification of Custody

      Mother contends the trial court erred in determining there was a substantial

change of circumstances to justify the modification of custody. In Shipman, our

Supreme Court stated that “[i]t 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.” Id. at

473, 586 S.E.2d at 253 (citations and quotation marks omitted). The change in

circumstances may have either an adverse or beneficial effect on the child. See id. at

473-74, 586 S.E.2d at 253 (“The party seeking to modify a custody order need not

allege that the change in circumstances had an adverse effect on the child. While

allegations concerning adversity are acceptable factors for the trial court to consider



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                                    Opinion of the Court



and will support modification, a showing of a change in circumstances that is, or is

likely to be, beneficial to the child may also warrant a change in custody.” (citations,

quotation marks, and brackets omitted)).         The trial court must first determine if

there has been a substantial change in circumstances and if so, the trial court must

consider the effect on the child and if a modification is in the child’s best interests:

                    As in most child custody proceedings, a trial court’s
             principal objective is to measure whether a change in
             custody will serve to promote the child’s best interests.
             Therefore, if the trial court does indeed determine that a
             substantial change in circumstances affects the welfare of
             the child, it may only modify the existing custody order if
             it further concludes that a change in custody is in the
             child’s best interests.
                    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. If the trial court concludes
             either that a substantial change has not occurred or that a
             substantial change did occur but that it did not affect the
             minor child’s welfare, the court’s examination ends, and no
             modification can be ordered. If, however, the trial court
             determines that there has been a substantial change in
             circumstances and that the change affected the welfare of
             the child, the court must then examine whether a change
             in custody is in the child’s best interests. If the trial court
             concludes that modification is in the child’s best interests,
             only then may the court order a modification of the original
             custody order.

Id. at 474, 586 S.E.2d 250, 253 (citations omitted).

      We review an order for modification of custody to determine if the findings of

fact are supported by substantial evidence and if the conclusions of law are supported


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                                   Opinion of the Court



by the findings; the trial court determines the credibility and weight of the evidence.

See id. at 474-75, 586 S.E.2d at 253-54 (“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. Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion. Our

trial courts are vested with broad discretion in child custody matters. This discretion

is based upon the trial courts’ opportunity to see the parties; to hear the witnesses;

and to detect tenors, tones, and flavors that are lost in the bare printed record read

months later by appellate judges. Accordingly, should we conclude that there is

substantial evidence in the record to support the trial court’s findings of fact, such

findings are conclusive on appeal, even if record evidence might sustain findings to

the contrary.” (citations and quotation marks)). If the findings of fact and conclusions

of law are supported, then we review the trial court’s decision regarding custody for

abuse of discretion. See generally id. at 474, 586 S.E.2d at 253.

A. Findings of Fact and Conclusions of Law

      Mother challenges only two of the trial court’s findings of fact as unsupported

by the evidence, numbers 58 and 60:

                   58.   That there has been a substantial and
             material change in circumstances warranting the court in
             modifying the previous order of this court.



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                                   Opinion of the Court



                       ....

                    60.    That the Defendant is a fit and proper person
             to have visitation with the minor child and it is in the best
             interests of and will best promote the general health,
             education and welfare of the minor child that she have
             visits with the Defendant.

All of the other findings of fact are binding upon this Court. See In re S.C.R., 198

N.C. App. 525, 532, 679 S.E.2d 905, 909 (2009) (“[T]he trial court’s findings of fact to

which an appellant does not assign error are conclusive on appeal and binding on this

Court.”). Mother also challenges two of the trial court’s conclusions of law:

             2.     There has been clear and convincing evidence of a
             substantial and material change in circumstances
             warranting the court in modifying the previous order of
             this court as outlined hereinbelow.

             ....

             4.     That the Defendant is a fit and proper person to have
             the visitation with the minor child and it is in the best
             interests of and will best promote the general health,
             education and welfare of the minor child that she have
             visits with the Defendant.

      In reality, these “findings of fact” and “conclusions of law” say the same thing

and are best characterized as conclusions of law. See In re Everette, 133 N.C. App.

84, 85, 514 S.E.2d 523, 525 (1999) (“[A]ny determination requiring the exercise of

judgement, or the application of legal principles is more properly classified as a

conclusion of law.”)    Further,

             [t]he labels “findings of fact” and “conclusions of law”


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                                          Opinion of the Court



                employed by the trial court in a written order do not
                determine the nature of our review. If the trial court labels
                as a finding of fact what is in substance a conclusion of law,
                we review that “finding” de novo.

Westmoreland v. High Point Healthcare, Inc., 218 N.C. App. 76, 79, 721 S.E.2d 712,

716 (2012) (citations omitted).

        Although Mother did not challenge the trial court’s findings of fact regarding

the positive changes in Father and his life, her argument asks this court to reweigh

the evidence, but we do not have this authority.3 For example, Mother argues that

Father’s “evidence in this case does not eliminate anger issues from his lifestyle and

does not equate to a substantial change in circumstance” and that Father may have

been lying about his abstinence from drugs and alcohol.                    But the trial court found

that Father completed the DART program; took various educational classes;

consistently passed drug tests; stopped consuming drugs and alcohol; regularly

attended church and participated in community service projects; became a member

of a volunteer fire department; paid child support from his disability payment; did

not have “any dealings with any of his pre-incarceration associates[;]” and lives with

his mother who is a registered nurse. The trial court also made findings regarding




3 The trial court here even concluded there was “clear and convincing evidence” of the substantial
change in circumstances, although only a preponderance of the evidence is required. See Speagle v.
Seitz, 354 N.C. 525, 533, 557 S.E.2d 83, 88 (2001) (“[T]he applicable standard of proof in child custody
cases is by a preponderance, or greater weight, of the evidence.”). Although the higher standard of
proof was not required, see generally id., the trial court did not err by noting its analysis of the weight
of the evidence.

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                                   Opinion of the Court



defendant’s love for his child and desire to be involved in her life in a positive manner.

None of these findings of fact were challenged as unsupported by the evidence. The

trial court assessed the credibility of Father’s evidence regarding his cessation of drug

abuse and changes to the problems in his life which led to his loss of visitation

originally and determined that his evidence was convincing.

B.    Effect on the Child’s Welfare

      Mother argues that “even if there was a change in circumstances [Husband]

has failed to show that it has affected [Tammy’s] welfare.” (Original in first letter

caps.) Mother contends that even if Father has reformed, Father cannot show that

his sobriety and stability will have a beneficial effect on Tammy. We addressed a

similar argument in Shell v. Shell, where the mother lost custody of the children

because of her substance abuse, unstable housing, and failure to provide a safe home

for the children. See Shell v. Shell, ___ N.C. App. ___, ___, 819 S.E.2d 566, 569 (2018).

Four years later, the trial court determined that the positive changes in her life were

substantial changes in circumstances affecting the welfare of the children and

modified the custody order. See id. at ___, 819 S.E.2d at 569-70. On appeal, the

father argued that the mother’s positive changes did not affect the welfare of the

children:

                    Father also contends that even if Mother’s sobriety
             is a change of circumstances, it has no effect on the
             children. This argument is difficult to understand, since
             Father contended—quite correctly—in 2012 that Mother’s


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                                    Opinion of the Court



              substance abuse was still having detrimental effects on the
              children, even after she had been sober for a few months.
              Her life was still unstable, even if she was not actively
              using drugs or alcohol. Considering the other findings in
              the order regarding the positive changes in Mother’s life
              which have accompanied her sobriety, this argument is
              entirely without merit. The trial court’s order includes
              many     findings     detailing   these  effects—Mother’s
              involvement with the children, her ability to provide a
              home and support them, and her becoming a caring parent
              instead of a selfish and unreliable one.

Id. at ___, 819 S.E.2d at 571-72 (citation omitted).

       Here too, the trial court made findings regarding many positive changes in

Father’s life and determined that Tammy would benefit from resumption of her

relationship with him. In any order changing a custodial schedule, to some extent

the trial court must predict the effect the change will have on the child, especially

when a parent has had no contact with the child for an extended period of time.

Before Tammy resumes a relationship with Father, no one can know exactly how it

will affect her, but based upon the trial court’s findings of fact, the trial court did not

abuse its discretion by concluding that Father’s positive changes are beneficial for

Tammy.

C.     Best Interests

       Mother also contends that “even if there was a change in circumstances which

affected the welfare of [Tammy], there is insufficient evidence to support a finding

that modifying the custody order by granting [Father] visitation with [Tammy] is in



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                                   Opinion of the Court



the child’s best interest.” (Original in first letter caps.) This argument is similar to

the last but is based primarily upon Mother’s evidence of Tammy’s negative emotions

and behaviors since finding out Father may be returning to her life. The trial court

did not overlook these concerns but made findings of fact about them and addressed

them by ordering a gradual resumption of visitation and requiring Father to

participate in individual and joint therapy to assist in this transition. A child’s

potential difficulty in resuming a relationship with a parent who has been absent

from her life does not mean that the trial court cannot order a resumption of

visitation. Even if Tammy stated a desire not to resume a relationship with Father,

the trial court does not have to accede to her wishes. See Mintz v. Mintz, 64 N.C. App.

338, 340-41, 307 S.E.2d 391, 393 (1983) (“If the child is of the age of discretion, the

child’s preference on visitation may be considered, but his choice is not absolute or

controlling.”). The trial court did not abuse its discretion in concluding it is in

Tammy’s best interests to resume visitation with Father.

                                  IV.     Conclusion

      We affirm.

      AFFIRMED.

      Judges DIETZ and MURPHY concur.




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