              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-523

                                Filed: 19 March 2019

Mecklenburg County, No. 16 CVD 543 (SPS)

LORA ANN STERN, Plaintiff,

             v.

GARY ROSS STERN, Defendant.


      Appeal by defendant from order entered 22 September 2017 by Judge Sean P.

Smith in District Court, Mecklenburg County. Heard in the Court of Appeals 14

November 2018.


      James, McElroy & Diehl, P.A., by Preston O. Odom, III, Jonathan D. Feit, and
      Haley E. White, for plaintiff-appellee.

      Weaver & Budd, Attorneys at Law, PLLC, by Jennifer L. Fleet, for
      defendant-appellant.


      STROUD, Judge.


      Father appeals from an order granting Mother’s “motion to deny” his motion

to modify custody. Because the trial court must consider the allegations of Father’s

motion for modification of custody as true, it erred by dismissing Father’s motion for

failure to state a claim upon which relief could be granted. The trial court considered

matters outside of the pleadings, evidence, and record to make a determination that

it would deny Father’s motion if a hearing were held. We therefore must reverse the

trial court’s order and remand for a hearing on Father’s motion.
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                                       Opinion of the Court



                                       I.   Background

       This case arises out of a prolonged dispute between Mother and Father. They

have one child, and custody of that child is the subject of this appeal. A permanent

custody trial was held in January 20171 before the Honorable Alicia D. Brooks. Judge

Brooks announced her ruling at the end of the trial, but the Permanent Custody

Order was not entered until 29 March 2017; the findings were necessarily based upon

the evidence presented and circumstances existing in January 2017. One of the

primary factual issues in the trial was the parties’ difficulties in sharing physical

custody of the child. In particular, Father was employed by Skechers, and his work

required him to travel out of town frequently—over 100 nights per year in 2015, and

approximately 40 nights in 2016, and Father anticipated traveling the same amount

in 2017. Because his travel schedule was irregular, he often requested to change

existing plans for visitation, while Mother wanted to keep a regular visitation

schedule.    The parties’ communications about the schedule changes were often

acrimonious. The Permanent Custody Order awarded Mother primary physical and

legal custody and set out a detailed secondary custodial schedule for Father.

       Father filed a motion to modify the Permanent Custody Order on 18 April 2017

and Mother filed a “motion to deny” and for Rule 11 sanctions on 5 May 2017. Father


1 The transcript of the custody hearing states the hearing was held on 16 January 2017. The
Permanent Custody Order and parties’ briefs state the hearing was held on 6 January 2017. The date
of the hearing does not make a difference for this appeal, but the trial court should base its
determination of the change of circumstances from the actual date of the January custody hearing.

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filed a reply on 26 May 2017 and also requested sanctions and attorney’s fees. On 19

June 2017, the Honorable Sean P. Smith held a hearing on several pending motions,

including a motion for a Temporary Parenting Arrangement.2 Father presented

testimony during this portion of the hearing. After Father’s testimony, near the end

of the hearing, the trial court took up the issue of the “motion to deny” Father’s motion

for modification of custody.             Without hearing further evidence regarding the

allegations of the motion to modify, the trial court considered the motion based upon

the pleadings and arguments of counsel. Judge Smith did not rule on the motion to

deny during the hearing but indicated that he wanted to talk to Judge Brooks before

making his ruling. Later on 19 June 2017, the trial court indicated via email that he

was granting Mother’s “motion to dismiss.” The trial court’s order granting Mother’s

motion was entered on 22 September 2017, and Father timely appealed.

                                           II. Jurisdiction

          Father’s brief states that the ground for appellate review is:

                  Judge Smith’s 20 September 2017 Order, granting
                  Plaintiff’s Motion to Deny Defendant’s Motion for
                  Modification of Child Custody is a final judgment. Appeal
                  therefore lies with the Court of Appeals pursuant to N.C.
                  Gen. Stat. § 7A-27(b)(2).

Mother argues Father’s appeal should be dismissed as interlocutory because “claims

for PSS, alimony, and equitable distribution indisputably remain pending for



2   The parties also had pending issues of equitable distribution, post separation support, and alimony.

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resolution below.” Mother is correct that there are other pending claims in the same

action, but N.C. Gen. Stat. § 50-19.1 permits this appeal:

             Notwithstanding any other pending claims filed in the
             same action, a party may appeal from an order or judgment
             adjudicating a claim for absolute divorce, divorce from bed
             and board, child custody, child support, alimony, or
             equitable distribution if the order or judgment would
             otherwise be a final order or judgment within the meaning
             of G.S. 1A-1, Rule 54(b), but for the other pending claims
             in the same action.

N.C. Gen. Stat. § 50-19.1 (2017) (emphasis added). The trial court’s order “would

otherwise be a final order . . . within the meaning of G.S. 1A-1, Rule 54(b)” because it

is a final determination of the custody claim.            Accordingly, the trial court’s 22

September 2017 order is reviewable.

                               III. Standard of Review

      The parties disagree on whether Mother’s “motion to deny” was a motion to

dismiss or a motion for summary judgment. The “motion to deny” did not cite to any

Rule of Civil Procedure and did not identify any specific legal basis for denial of the

motion to modify. The trial court did not indicate that it considered matters outside

the pleadings, so it did not treat the motion as a motion for summary judgment. See

Carolina Bank v. Chatham Station, Inc., 186 N.C. App. 424, 427, 651 S.E.2d 386, 388

(2007). This Court has stated that “[d]ismissal of a motion to modify child support

when only the allegations in the motion and the court file are considered by the trial

court is a summary procedure similar to judgment on the pleadings.” Devaney v.


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Miller, 191 N.C. App. 208, 212, 662 S.E.2d 672, 675 (2008). “A trial court’s ruling on

a motion for judgment on the pleadings is subject to de novo review on appeal.”

Samost v. Duke Univ., 226 N.C. App. 514, 517, 742 S.E.2d 257, 259 (2013), aff’d, 367

N.C. 185, 751 S.E.2d 611 (2013).

              [T]he trial court is required to view the facts and
              permissible inferences in the light most favorable to the
              nonmoving party. All well pleaded factual allegations in
              the nonmoving party’s pleadings are taken as true and all
              contravening assertions in the movant’s pleadings are
              taken as false.     All allegations in the nonmovant’s
              pleadings, except conclusions of law, legally impossible
              facts, and matters not admissible in evidence at the trial,
              are deemed admitted by the movant for purposes of the
              motion.

Id.

       Here, Wife’s “motion to deny” simply denied the allegations of Father’s motion

and alleged that there had been no substantial change of circumstances since entry

of the Permanent Custody Order. At the end of the hearing, the trial court stated it

was considering the motion as a motion to dismiss “for essentially failing to state a

claim upon which relief may be granted” which refers to the standard set by N.C.

Gen. Stat. §1A-1, Rule 12(b)(6). The trial court’s order on appeal did not include any

findings of fact but states as the basis for its ruling as follows:

              Defendant/Father’s Motion for Modification of Child
              Custody fails to allege any substantial change in
              circumstance affecting the welfare of the minor child as
              required by N.C.G.S. § 50-13.7, fails to show a genuine
              issue as to any material fact, and should be denied.


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       Since the parties treated the “motion to deny” as a motion to dismiss under

Rule 12(b)(6), and the trial court also treated it as such, we will treat the trial court’s

order on the “motion to deny” as an order dismissing Father’s motion under N.C. Gen.

Stat. §1A-1, Rule 12(b)(6). But whether considered as a motion for judgment on the

pleadings or as a motion to dismiss under Rule 12(b)(6), our standard of review is the

same: we review the ruling de novo and we consider Father’s allegations in the motion

to modify “as true” and determine whether the allegations “are sufficient to state a

claim upon which relief may be granted under some legal theory.” Newberne v. Dep’t

of Crime Control & Pub. Safety, 359 N.C. 782, 784, 618 S.E.2d 201, 203 (2005).

                      IV. Substantial Change of Circumstances

       “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) (quotation marks omitted).

                    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


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             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 at 253.

      Father’s motion for modification of child custody alleged that his work schedule

was a significant factor in the prior order’s determination of custody and visitation.

The evidence at the January 2017 hearing showed that Father traveled over 100

nights per year in 2015 and approximately 40 nights in 2016 and Father anticipated

traveling the same amount in 2017, and, as a result, the parties had great difficulty

in communicating and arranging changes to the custody schedule. Judge Brooks

announced her ruling at the end of the January hearing and as to Father’s travel

schedule, she stated:

                    That because of his work schedule, the ·father has
             -- does -- had limited -- had limitations on his contact
             because of his work schedule; that he was -- did travel --
             does continue to travel quite a bit as a ·result of his
             position; that it was the decision ·throughout the decision
             that mom would be a stay-at-home mom and therefore that
             was an agreement that the parties had.

      The written order was not entered until 29 March 2017. Based upon the

evidence presented in January 2017, the trial court made the following findings

regarding Father’s work schedule and availability of both parents to care for the child:



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8.     During the marriage, Defendant/Father regularly
travelled for work.

9.    Because of his travel schedule, Defendant/father
had some limitations on his contact with the minor child
during the marriage.

10.   After the date of separation, Defendant/Father
obtained a new position with his employer that allowed
him to travel less frequently. However, Defendant/Father
continues to travel on a somewhat varying schedule.

11.    Since the date of separation, the parties have had
extreme difficulty agreeing on a physical custody schedule.
Plaintiff/Mother desired a set schedule that would provide
stability   and    structure    for  the    minor    child.
Defendant/Father refused to agree to a set schedule and
demanded a flexible, month-to-month custody schedule in
accordance with his travel schedule.

12.    The parties have been unable to effectively co-parent
and communicate with one another since the date of
separation on a myriad of issues pertaining to the minor
child.

13.    To avoid conflict, Plaintiff/Mother often acquiesced
to Defendant/Father’s demands for a month-to-month,
joint custody schedule.

14.    Prior to the date of separation, Plaintiff/Mother
enrolled the minor child in therapy in anticipation of the
issues that arise with separation and custodial transitions.
Plaintiff/Mother had concerns due to particular behavior
exhibited by the minor child which suggested she may be
struggling to adjust to the schedule.

....

17.   The minor child thrives on structure and consistency
and it is in her best interests to have a set custodial


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             schedule and a primary residence with limited custodial
             transitions.

             18.   Plaintiff/Mother has been the minor child’s primary
             caregiver and the parent primarily responsible for
             attending to the minor child’s physical, emotional,
             psychological, and educational needs for the majority of the
             minor child’s life.

The Primary Custody Order’s decree set forth a detailed schedule of regular alternate

weekend and holiday visitation for Father and also included provisions to address his

potential unavailability due to his travel schedule:

             6.    If changes are needed in the regular schedule,
             arrangements will be made in advance and will be
             mutually agreed upon by both parties. In the event that
             both parties cannot agree to a proposed change, the
             schedule set forth herein will remain in effect.

             7.    In the event Defendant/Father must travel or be
             otherwise unavailable for more than twenty four (24) hours
             during his custodial time, he shall first offer
             Plaintiff/Mother the right of first refusal to care for the
             minor child with advance notice to Plaintiff/Mother as soon
             as possible before allowing a third-party to care for the
             minor child.

      In his motion for modification of custody, Father alleged several factors as

substantial changes of circumstances affecting the best interests of the child which

would justify modification of the order, but the most salient factor he alleged was the

change in his employment status and thus availability to care for the child:

             11.   Since Her Honor’s Ruling on January 6, 2017,
             granting Mother primary physical and legal custody of the
             minor child, there has been a substantial and material


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            change in circumstances affecting the welfare of the minor
            child, so as to authorize this Court to modify the Order.
            Specifically, but not limited to the following, Father shows
            unto the Court as follows:

                   a.     Since Her Honor’s Ruling, Father’s position
            with Skechers U.S.A., Inc., has been dissolved, thereby
            terminating Father’s employment with Skechers U.S.A.,
            Inc. As such, Father is no longer required to travel. Father
            is therefore available and able to care for the minor child
            on an equal basis with Mother.

Father also alleged Mother was having difficulty in getting off work to care for the

child, and she was struggling with her role as primary custodian:

                   f.   Upon information and belief, Mother has, and
            will continue to struggle with being the minor child’s
            primary custodian. Father shows unto the Court as
            follows:

                          i.      Rather than Mother caring for the
            minor child while the minor child is in her care, Mother has
            asked Father on numerous occasions since Her Honor’s
            Ruling to take the minor child to various appointments,
            care for the minor child when she was sick, and the like.
            While Father has been more than happy and willing to
            assist in caring for the minor child’s every need, on the rare
            occasion when Father could not accommodate Mother’s
            requests, Mother has expressed her frustration to Father
            when he was unable to care for the minor child during
            Mother’s custodial time.

                         ii.   Further, Mother has already utilized
            the majority of her paid time off (PTO). In short, Mother
            has complained to Father that once her PTO is exhausted,
            Mother will lose approximately Two-Hundred Dollars
            ($200.00 USD) per day, which will ultimately trickle down
            and have a potentially negative impact on the minor child.
            Upon information and belief, and as a result of said


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             financial consequence, Mother has expressed her
             frustration to Father on the rare occasion when Father was
             unable to oblige Mother’s request(s).

             12.   As a result of Father’s unemployment, many of the
             factual circumstances existing at the time of the Court’s
             Ruling are no longer applicable.

      In response to Father’s motion for modification, Mother filed a “Motion to Deny

and Motion for Sanctions.” She alleged that Father’s motion was filed “just twenty

(20) days after” the Permanent Custody Order was entered. She also alleged Father’s

Motion “fails to allege any substantial change in circumstances affecting the welfare

of the child warranting the modification of the Order,” and that his motion was not

grounded in fact or warranted by existing law. She requested denial of Father’s

motion and sanctions under Rule 11.

      Mother emphasizes the brief time since the custody order was entered, as she

did below, arguing that Father’s motion to modify was filed only 20 days after entry

of the Permanent Custody Order and that it was simply too soon for there to have

been any substantial change in circumstances. Essentially, she argues that the date

of entry of the order controls. But Mother’s argument ignores the fact that the

Permanent Custody Order was based upon the evidence and circumstances existing

as of January 2017. It is unfortunately not unusual for there to be a substantial delay

between a hearing and the entry of a written order based on that hearing. Since the

trial court can consider only the evidence presented at the hearing, it is impossible



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for the trial court to consider changes in circumstances after the close of the hearing

but before the entry of the written order. Crews v. Paysour, ___ N.C. App. ___, ___,

821 S.E.2d 469, 472 (2018) (“The order . . . can address only the facts as of the last

date of the evidentiary hearing because that is the only evidence in the record.”).

Thus, the relevant dates for determining whether a change of circumstances has

occurred is from the date of the hearing in January 2017, to the date the motion to

modify was filed, 18 April 2017.

       Further, the length of time that has passed after entry of a custody order,

standing alone, does not control whether there may have been a substantial change

of circumstances. See N.C. Gen. Stat. § 50-13.7(a) (2017) (“Subject to the provisions

of G.S. 50A-201, 50A-202, and 50A-204, an order of a court of this State for custody

of a minor child may be modified or vacated at any time, upon motion in the cause

and a showing of changed circumstances by either party or anyone interested.”

(emphasis added)). Some major changes in the life of the parents or child may take

place very suddenly, such as onset of a serious illness, injury in an accident, or loss

of a job. Some changes may happen more slowly. But the timing of the change in

circumstances does not determine as a matter of law whether it is substantial or

whether it has an effect on the welfare of the child.      See id. In this case, the

circumstance in question was Father’s job and the effect of his work travel schedule

on his availability to care for the child.



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      Based upon the findings of the Permanent Custody Order, Father’s travel

schedule was a significant factor in the trial court’s decision. We must base our

determination upon the record and transcript before us, and the Permanent Custody

Order has findings which are the basis for the custody arrangement. But we note

that the trial court informed the parties that it would take the ruling under

advisement to consult Judge Brooks to see how much impact Father’s travel schedule

had on her decision in the Permanent Custody Order:

                    THE COURT: Right. Okay. Let me make it clear
             to everyone, this is my decision, okay, I’ll be deciding this
             issue whether to grant this motion to dismiss the motion to
             modify filed by Mr. Stern. That said, I think it is also
             appropriate that I confer with Judge Brooks because she’s
             the one who heard this custody case, and she made this
             decision that two months and 23 days after she announced
             her decision in court a motion to modify was filed. So I’m
             going to talk to her. I’m going to hear what she has to say
             about the case and about this allegation of the move or just
             I guess granted to be true, that this loss of employment by
             Mr. Stern and what effect that had, if it were to occur in
             the future, had upon her analysis of the case. But,
             ultimately, I’m just going to hear from her, I’m going to talk
             to her in chambers, and I’m going to make the decision
             about whether legally this motion to modify should proceed
             or it should be dismissed for essentially failing to state a
             claim upon which relief can be granted.

      We first note that this Court can review the order only based upon the record

before us, and whatever Judge Brooks may have told Judge Smith about her

impressions of the case is simply not before us. We also note that the trial court is

required to rule upon the evidence and arguments presented at the hearing. The trial


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court did not take the allegations of Father’s motion for modification as true. Instead,

the trial court determined the credibility and weight of Father’s allegations based

upon its outside discussion with Judge Brooks. In deciding a motion to dismiss under

Rule 12(b)(6), the trial court does not have the authority to judge the credibility and

merits of the allegations, nor does this Court have the authority to conduct de novo

review based upon any information outside the record. See Hensey v. Hennessy, 201

N.C. App. 56, 67-68, 685 S.E.2d 541, 549 (2009) (“Although we appreciate the trial

court’s concern for judicial economy, a judge’s own personal memory is not evidence.

The trial court does not have authority to issue an order based solely upon the court’s

own personal memory of another entirely separate proceeding, and it should be

obvious that the evidence which must be taken orally in open court must be taken in

the case which is at bar, not in a separate case which was tried before the same judge.”

(quotation marks omitted)).

      Taking the allegations of Father’s motion as true and in conjunction with the

findings of fact in the Permanent Custody Order, Father was working for Skechers

at the time of the prior hearing and was traveling out of town frequently for his work.

His travel schedule was irregular, and he and Mother had serious difficulties in

communicating and making arrangements for changes in the child’s schedule, to the

child’s detriment.   According to the Permanent Custody Order, Father’s work

schedule was a significant factor in the custodial schedule. Mother denies this, but



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the Permanent Custody Order’s findings indicate otherwise, and our review is limited

to determining whether Father’s motion was “sufficient to state a claim upon which

relief may be granted under some legal theory.” Newberne, 359 N.C. at 784, 618

S.E.2d at 203.

      We understand that the trial court’s motives were good: judicial economy and

avoidance of another custody hearing with its inevitable emotional and financial costs

to both parties as well as the child. As the trial court stated,

             [L]et’s address it now and get to this issue as opposed to a
             hearing where at the end of your evidence on the motion to
             modify after a day, two days worth of evidence, I sit there
             and I say what I could have said here today.

Perhaps the trial court would have made the same decision after a full hearing, and

perhaps will make the same decision on remand, but any trier of fact, judge or jury,

must keep an open mind and consider the evidence and arguments presented by each

party before making a decision. The trial court can dismiss a motion under Rule

12(b)(6) only if the motion to modify has not stated any facts or law which could

support the claim, and here, Father’s motion to modify did allege at least one

substantial change of circumstances which would directly affect the child by entirely

changing his availability to care for the child.          The trial court may ultimately

determine that other factors outweigh the change in Father’s availability, but this

factual issue cannot be decided on a motion to dismiss under the standards set by

Rule 12(b)(6).


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       Taking all of his allegations as true and considering the findings of fact in the

Permanent Custody Order, Father’s work schedule was an important factor in the

Permanent Custody Order’s provisions regarding physical custody and the visitation

schedule. In addition, Father’s availability to care for the child could certainly affect

the welfare of the child. After a hearing on the merits, the trial court may make the

same decision, but that decision must be based upon appropriate findings of fact and

conclusions of law. We need not address Father’s remaining argument since we must

reverse on his first issue.

                                    V.   Conclusion

       For the foregoing reasons we reverse the trial court’s order dismissing Father’s

motion for modification of custody, and we remand to the trial court to hold a hearing

on the merits of his motion.

       REVERSED AND REMANDED.

       Judges DIETZ and MURPHY concur.




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