Lewis v. Lewis – Substantial Change in Circumstances

Defendant Mother appeals from the trial court’s order on child support and custody.  The Court of Appeals reverses and remands.

Plaintiff Father and Defendant Mother married on January 1, 1994.  The parties had two sons and separated on May 10, 1997.  The parties’ divorce judgment was filed on August 17, 1998, which incorporated their separation agreement.  The separation agreement provided a custodial schedule that directed the parties’ two sons to reside primarily with Defendant Mother and to spend every other weekend and summer vacation with Plaintiff Father.  The agreement further provided that Plaintiff Father would pay half of the children’s uninsured medical and dental expenses and $200.00 each month as additional child support.

Both Plaintiff Father and Defendant Mother eventually remarried.  Defendant Mother remarried and subsequently moved to Yuma, Arizona.  On August 14, 2000, Plaintiff Father filed a motion in the cause seeking a modification, asserting that Defendant Mother moving to Yuma, Arizona with the parties’ two sons represented a substantial change in circumstances.  On October 4, 2000, the parties entered a consent order concluding a substantial change in circumstances had occurred and the custody and visitation provisions were modified therein.

On August 2, 2004, Defendant Mother filed her own motion in the cause seeking an order modifying the consent order entered October 5, 2000.  Defendant Mother asserted that she frequently visited family members in New Bern, North Carolina, and was denied access to the children when they were with Plaintiff Father.  Defendant Mother also asserted that Plaintiff Father had not provided adequate support for the minor children.  After considering the evidence, the trial court concluded that there was no substantial change in circumstances, except that Plaintiff Father’s child support obligation should increase $100 per month to defray transportation expenses and that Defendant Mother should be afforded one weekend visitation with the minor children during the summer.

Defendant Mother contends it was error for the trial court to modify the existing order when it concluded, at the same time, that there had not been any substantial change in circumstances.  The trial court erroneously changed the existing custody and child support order after concluding that there had not been a showing of a substantial change in circumstances.  On remand, it is within the trial court’s discretion whether to receive additional evidence.