An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                  NO. COA13-803

                      NORTH CAROLINA COURT OF APPEALS

                           Filed: 18 February 2014


JOHN T. MOORE, JR.,
     Plaintiff,

      v.                                    Henderson County
                                            No. 05 CVD 2007
SUSAN J. MOORE,
     Defendant.


      Appeal by defendant from order entered 19 March 2013 by

Judge Mack Brittain in Henderson County District Court.                   Heard

in the Court of Appeals 10 December 2013.


      PRINCE, YOUNGBLOOD & MASSAGEE, PLLC, by Boyd B. Massagee,
      Jr., for plaintiff.

      Donald H. Barton, for defendant.


      ELMORE, Judge.


      On 4 February 2013, Susan J. Moore (defendant) filed a

motion for change of custody, praying the trial court to enter

an order granting her visitation with her minor children.                     In

response,    John   T.   Moore,    Jr.   (plaintiff)    filed    a   motion   to

dismiss pursuant to N.C.R. Civ. P. 12(b)(6).               On 19 March 2013,
                                       -2-
Judge Mack Brittain granted plaintiff’s motion and dismissed the

action, concluding as a matter of law that                   1) he was without

authority to modify the 28 June Order, and 2) that plaintiff

failed to allege in her motion for modification a substantial

change in circumstances sufficient to warrant modification of

the Order.     Defendant now appeals.            After careful consideration,

we reverse the trial court’s order and remand for further action

consistent with this opinion.

                              I.   Factual Background

    The parties to this action were married on 14 July 2001 and

separated    on   30   June   2012.        Two   children    were    born   of   the

marriage, the first in 2002 and the second in 2004.                     Plaintiff

initiated this action in 2005 seeking, inter alia, custody of

the children under Chapter 50 of the                 North Carolina         General

Statutes.

    The parties entered into their most recent child custody

consent order (the Order) on 28 June 2012, and it is the terms

of this Order that are relevant to this appeal.                        The Order

placed   the   minor    children      in   the   permanent    sole    custody    of

plaintiff with the marital home sequestered for the benefit of

plaintiff and the children.                The Order does not include any

findings of fact as to whether granting defendant visitation
                                      -3-
would be in the children’s best interests.                     In fact, it is

completely     silent     on   the   issue     of    visitation.       Defendant

reviewed the terms and thereafter signed the Order pro se.

      On 9 August 2012, defendant, through counsel, filed a Rule

60(b) motion to set aside the Order, alleging duress and undue

influence.      On   11   October    2012,   the      trial   court   denied   the

motion, concluding that defendant’s poor life choices, not any

improper action by plaintiff, led to the issuance of the Order.

Defendant neither timely appealed the entry of the June 2012

custody Order nor the trial court’s denial of her Rule 60(b)

motion.

                        II.    Motion for Change of Custody

      Defendant argues that the trial court erred in dismissing

her   motion   for   modification      of    custody.         Specifically,    she

contends that, on its face, her motion alleged a substantial

change in circumstances sufficient to allow for a hearing on the

merits.     We agree that the trial court erred; however, we reject

defendant’s argument.           The dispositive question before us is

whether the Order on which defendant’s motion for modification

of custody rests is permanent or temporary.

       We    have    classified      custody        orders    as   being   either

“temporary” or “permanent.”           However, the term “permanent” is
                                           -4-
slightly   misleading,          because      “[a]fter            an     initial   custody

determination, the trial court retains jurisdiction of the issue

of   custody     until    the   death      of     one       of   the    parties   or    the

emancipation of the youngest child.”                    McIntyre v. McIntyre, 341

N.C. 629, 633, 461 S.E.2d 745, 748 (1995).                           “[W]hether an order

is   temporary    or     permanent    in    nature          is   a     question   of   law,

reviewed on appeal de novo.”                Smith v. Barbour, 195 N.C. App.

244, 249, 671 S.E.2d 578, 582 disc. review denied, 363 N.C. 375,

678 S.E.2d 670 (2009) (emphasis added).                          “The same standards

that apply to changes in custody determinations are also applied

to changes in visitation determinations.”                         Simmons v. Arriola,

160 N.C. App. 671, 674, 586 S.E.2d 809, 811 (2003).

      Permanent child custody orders can only be modified if the

trial   court     finds    there     has    been        a    substantial      change    in

circumstances affecting the welfare of the child and that the

modification is in the           child’s         best interests.            Woodring v.

Woodring, ___, N.C. App. ___, ___, 745 S.E.2d 13, 18 (2013).

Alternatively, a temporary order may be modified solely upon the

trial court finding that such proposed modification is in the

“best interests of the child.”                  Arriola, 160 N.C. App. at 674,

586 S.E.2d at 811.         Thus, the party moving for modification of a
                                        -5-
temporary    order      need    not    allege        a    “substantial    change   in

circumstances.”       Id. at 674, 586 S.E.2d at 811.

     An order is temporary if it either (1) states a “clear and

specific reconvening time” that is reasonably close in proximity

to the date of the order; or (2) does not determine all the

issues    pertinent     to   the   custody      or       visitation   determination.

Brewer v. Brewer, 139 N.C. App. 222, 228, 533 S.E.2d 541, 546

(2000).     Temporary orders may become permanent by operation of

time. Anderson v. Lackey, 163 N.C. App. 246, 254–55, 593 S.E.2d

87, 92 (2004).          However, “a temporary custody order that does

not set an ongoing visitation schedule cannot become permanent

by operation of time.”             Woodring, ___ N.C. App. at ___, 745

S.E.2d at 19     (emphasis added).

    The granting of visitation rights is a judicial function

which may not be delegated to the custodial parent.                             In re

Custody of Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849

(1971). Accordingly, we charge the trial court with safeguarding

“[t]he feasible exercise of a parent’s right of visitation” by

including “a definite provision [for visitation] in the order or

decree of the court awarding the custody of the child to another

person.”    Id. at 550, 179 S.E.2d at 848; see also Brewington v.

Serrato,    77   N.C.    App.   726,    733,    336       S.E.2d   444,   449   (1985)
                                          -6-
(concluding that a general provision permitting visitation “at

such times as the parties may agree” cannot be sustained because

it    “effectively     gives    plaintiff       the   exclusive    power    to   deny

defendant reasonable visitation with the child by withholding

his     consent”);     Arriola,      supra,     (finding    that    the     parties’

initial custody order was not final because it failed to specify

visitation periods).

       In this case, the trial court did not include a visitation

provision in the Order and, therefore, it has not determined all

of    the    issues.     As    such,    the   Order   has   remained      temporary,

making the applicable standard of review the “best interests of

the child” standard, not a “substantial change in circumstances”

standard.        Arriola,     supra.      Accordingly,      defendant      was   only

required to allege that it was in the children’s best interests

to modify the Order to provide for visitation.                     She did so in

paragraph 3 of her motion:               she “has a suitable home for the

minor children and it would be in the best interest[s] of the

minor       children   that   they     have   visitation    with   their    mother.

Defendant is a fit and proper person to have visitation with the

minor children.”

       Contrary to Judge Brittain’s conclusion, the trial court

does, in fact, have authority to modify the Order.                   See Arriola,
                                         -7-
160 N.C. App. at 676, 586 S.E.2d at 812 (holding the district

court did not err in applying the “best interests of the child”

standard, instead of the “substantial change in circumstances”

standard, and in modifying the provisions of the temporary child

custody consent order).           We remand this case to the District

Court of Henderson County with instructions to conduct a hearing

and enter an order specifying reasonable visitation.                       Serrato,

77 N.C. App. At 733, 336 S.E.2d at 449 (remanding to district

court for modification of a temporary child custody order upon

concluding that “it was the duty of the trial judge to safeguard

defendant’s right to visitation by including a provision in the

order specifying visitation periods”).                    The trial court shall

utilize the “best interests of the child” standard to establish

reasonable        visitation.             Again,       barring       extraordinary

circumstances,      a   parent    should       not   be    denied   the    right   of

visitation.        However,      if    the     trial      court   determines   that

defendant should be denied reasonable visitation, the written

order shall include findings of fact specifying that defendant

is   unfit   to   visit   the    children       or   that    granting     visitation

rights would not be in the children’s best interests.                     N.C. Gen.

Stat. § 50–13.5(i) (2013).

                                      III. Conclusion
                                 -8-
    For the abovementioned reasons, the trial court erred in

dismissing plaintiff’s action.     The Order is a temporary child

custody order subject to modification by the trial court upon

finding that the proposed modification is in the children’s best

interests.   Accordingly, we reverse and remand to the trial

court for further action consistent with this opinion.



    Reversed and remanded.

    Judges McGEE and HUNTER concur.

    Report per Rule 30(e).
