Lewis v. Lewis, No. COA06-599
Benjamin Lewis (“Ben”) and Gina Lewis (“Gina”) married on January 1, 1994 and had two children. Ben and Gina divorced on August 17, 1998. On June 26, 1998, Ben and Gina executed a separation agreement wherein they agreed to exercise joint custody of the minor children. The separation agreement was incorporated in the divorce judgment and stipulated that the children would reside primarily with Gina and spend every other weekend and summer vacation with Ben. They further agreed that Ben would pay half of the children’s uninsured medical and dental expenses and $200.00 each month as additional child support to Gina. Both Ben and Gina went on to remarry, and as a result of Gina’s remarriage she moved to Yuma, Arizona. On August 14, 2000, Ben filed a motion in the cause seeking a modification of his visitation schedule with the minor children, asserting that a substantial change in circumstances had occurred due to Gina’s move to Arizona.
On October 5, 2000, the parties entered into a consent order that concluded a substantial change in circumstances that affected the welfare of the children had occurred. Therefore, Gina would have primary custody of the children, and Ben would have secondary custody of the children. The consent order also terminated Ben’s obligation to pay Gina $200.00 each month as additional child support. Then, on August 2, 2004, Gina filed a motion in the cause seeking an order modifying the consent order entered on October 5, 2000. Gina sought the court to calculate Ben’s child support obligation pursuant to the North Carolina Child Support Guidelines and modify the custodial schedule within her motion. On December 28, 2005, an order was entered by the trial court that ultimately concluded that Gina had not shown that there had been a substantial change in circumstances affecting the welfare of the children, warranting a modification of the consent order entered on October 5, 2000. However, the court ordered Ben to pay $100 monthly in child support and modified the parties’ custodial schedule. Gina appealed the trial court’s order contending that it was error for the trial court to conclude that the burden of proof of a substantial change in circumstances affecting the children’s welfare had not been met, but then to go on and modify Ben’s child support payments and the parties’ custodial schedule.
Issue: Was it an error for the trial court to modify the parties’ October 5, 2000 consent order after concluding that Gina had not met her burden of showing that the welfare of the children had been affected by a substantial change in circumstances?
Pursuant to North Carolina General Statute § 50-13.7(a) (2005), “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.” However, the party seeking the modification must prove that the substantial change in circumstances affects the welfare of the minor child and that a change to the custodial schedule is in the best interest of the minor child. Here, the court concluded that Gina had not met her burden of proving that the welfare of the children had been affected by a substantial change in circumstances yet went on to modify the custodial schedule. Additionally, North Carolina General Statue § 50-13.7(a) also provides that “[a]n order of a court of this State for support 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….” Similarly, the court concluded again that Gina had not met her burden of proving that the welfare of the children had been affected by a substantial change in circumstances with respect to child support yet went on to modify the child support portion of the consent order entered October 5, 2000 by ordering Ben to begin paying $100.00 per month. As a result, the Court of Appeals came to the conclusion that the trial court was in error by concluding that there was not a substantial change of circumstances and, at the same time, modifying the existing order with respect to child custody and child support. Therefore, the trial court’s order was remanded when the Court of Appeals reversed.