NCBA Family Law Section

By Jeff RussellRebecca Poole and Jennifer Smith

Custody Modification; No Evidence Presented at Hearing

Farmer v. Farmer, No. COA16-760, (June 6, 2017)

Defendant–mother appealed from a custody modification order that set aside a prior custody modification order. Because the trial court took no evidence at the hearing and failed to make the proper analysis before modifying the prior custody order, the Court of Appeals vacated the custody modification order and remanded the case to the trial court.

There are two issues to note in this appeal: First, the Court of Appeals does not comment upon or engage in any analysis of whether the orders in the case are temporary or permanent in nature. The Court seems to assume that the orders are permanent, because it cites the two-step modification analysis for a permanent order (substantial change in circumstances/best interests). Second Judge Dillon dissents in part from the Court’s opinion concerning which of the parties’ prior custody orders should be in effect pending further hearings on the matter.

Equitable Distribution; Joinder of Necessary Parties

Blake J. Geoghagan v. Bernadette M. Geoghagan, No. COA16-766 (July 5, 2017)

Plaintiff Husband appeals from the trial court’s equitable distribution order because of the limits placed on his distributions and compensation from a corporation (BBPI) he jointly owned with his ex-wife. Plaintiff also appeals from an order denying his Rule 60 motion for relief from the equitable distribution order. The Court of Appeals vacated both orders and remanded for further proceedings.

Plaintiff argues that the order must be vacated because it commands the corporation and its subsidiary LLCs to refrain from taking certain actions without joining them as necessary parties to the proceeding. For example, the order required Plaintiff to pay a distributive award to Defendant, and until it was paid in full, Plaintiff could not receive compensation from the business in excess of $170,000 per year nor could he receive distributions. The Court of Appeals agreed and found that BBPI and its subsidiary LLCs were necessary parties to the action prior to entry of the order. Joinder of a necessary party is required of the trial court even if neither party requests the joinder. Therefore, the order is null and void due to the absence of necessary parties and the case was remanded for further proceedings.

Custody; Change of circumstances 

LaPrade v. Barry, No. COA16-11, (May 2, 2017) 

The Defendant appeals an order granting Plaintiff primary custody of the parties’ child. Because the trial court’s findings of fact support its conclusion of a substantial change of circumstances, which affect the child’s welfare due to father’s failure to communicate with the mother and interference with the child’s relationship with her mother, as well as mother’s positive changes in behavior, the Court of Appeals affirmed the trial Court’s decision.

This particular case has a long pattern custody conflict. An order was entered on Dec. 12, 2012 awarding father primary custody of the minor child due to mother repeatedly taking the child to the doctor and alleging abuse after visits with father despite no signs of abuse, an issue of domestic violence between mother and her husband, and the parties’ overall utter inability to work together for the benefit of child. In April, 2014 mother filed a Motion to Modify child custody.  On May 22, 2015 the trial court entered an order modifying and granting primary physical care and custody to mother and father appealed the decision. One of the findings of fact supporting the modification was that the Mother has failed to engage in the behavior that lead to her losing primary custody in the prior permanent child custody order.

The Court of Appeals makes note of the unusual way the Appellant addressed the issue of change of circumstances. Rather than directly challenging the sufficiency of the evidence to support the trial court’s conclusion of a substantial change of circumstances, he created a table of the transcript testimony, highlighting evidence he believes undermines the trial court’s findings of fact.  Father’s argument, with his table of testimony highlights, asks the Court of Appeals to reweigh the evidence in his favor, which they cannot and will not do.  Because father failed to challenge the trial court’s findings of fact as not supported by evidence, but instead argued for alternative findings, these findings are now binding upon the Court.