Domestic Relations – Parent & Child – Custody Modification – Changed Circumstances – Factors

Wolgin v. Wolgin (Lawyers Weekly No. 11-07-1232, 20 pp.) (Cheri Beasley, J.) Appealed from Durham County District Court. (William A. Marsh, J.) N.C. App. Click here for the full-text opinion.

Holding: The trial court clearly considered not only the parties’ disagreements regarding custody but also the effect on the parties’ children of the defendant-mother’s unilateral transfer of the children from their Durham County schools to schools in Wake County and her decision to put the children into extracurricular activities farther away from the plaintiff-father.

We affirm the custody modification and denial of the mother’s motion for a new trial.

Evidence

The defendant-mother argues that the trial court arbitrarily imposed limitations on the presentation of evidence. We disagree.

The length of the trial was discussed at pre-trial conferences, and both parties agreed to a two-day trial. The court inquired as to the ability of both parties to present evidence within a two-day time frame, and neither party objected during pre-trial conferences.

The court made several references to the time constrictions during the trial. At the close of the mother’s evidence, she made no objection to time limits enforced by the trial court on the second day of trial.

The trial court was presented with adequate evidence to make a determination as to whether modification of the custody order was appropriate.

The trial court did not abuse its discretion by designating two days for trial.

Even though the trial court admitted that it would not review all 562 of the parties’ email correspondences, the court said, “I will be able to ascertain the tone and tenor by looking at a representative portion of the e-mails, so don’t think I’m not going to look at them at all.” The trial court properly exercised its authority to limit the presentation of cumulative evidence.

Accordingly, the trial court did not abuse its discretion by reviewing a representative portion of the e-mail correspondences.

Custody Modification

The mother argues that, because the trial court found the parties had disagreements which impacted the children and the mother made unilateral decisions, the trial court changed custody to punish the mother. The mother’s argument is meritless.

Child custody cannot be used as a tool to punish an uncooperative parent. However, where such interference becomes so pervasive as to harm the child’s close relationship with the noncustodial parent, the court can conclude that the custodial parent’s actions show a disregard for the best interests of the child, warranting a change of custody.

The trial court did not merely consider the parties’ disagreements but also considered the effect of those disagreements on the children and their well-being.

The trial court found that the change in school had a detrimental effect on the parties’ daughter Hannah’s social adjustment, as her teachers in Durham had begun to successfully address improvements in Hannah’s social interaction with her peers.

Additionally, the trial court did not conclude that a substantial change of circumstances existed merely because of the parties’ disagreements; instead, the court found that the parties’ disagreements had a profound effect on Hannah’s mental health due to the mother’s refusal to allow a therapist to address Hannah’s mental health needs.

Further, the trial court found that the parties’ inability to effectively communicate for the benefit of the children hindered the children’s religious growth.

The children’s lack of participation in holiday celebrations was not a change of circumstances from the original custody order. The schedule from that 2007 order awarded the mother physical custody during the specified holidays.

However, while there was no actual change in circumstances from the 2007 order as to the plaintiff-father’s religious observances, the trial court considered the children’s “increased age” and ability “to more fully participate in and understand [religious] activities” and “the parties’ inability to cooperate to change their schedule” to accommodate religious observances. Thus, the finding of a substantial change in circumstances is supported by the evidence.

The trial court further found that the children’s participation in extracurricular activities at locations that were inconvenient for the father constituted a substantial change in circumstances that affected the welfare of the children. We agree.

As the trial court had, in its 2007 order, considered that visitation with the father was in the children’s best interest, the fact that the mother was unyielding in determining the location and time of extracurricular activities focuses on the inconvenience to the father only to the extent that the father’s time spent with the children would necessarily be curtailed (i.e., for the father’s travel time to the event). As the children benefit from time spent with their father, the trial court properly determined that the mother’s arrangements are not in the best interest of the children.

Finally, the mother argues that the trial court’s consideration of factors such as her relocation and remarriage, and the children’s school transfer are

“impermissible factors.” We disagree.

We reject the notion that the trial court should have been restricted to certain “permissible factors” in its determination. We conclude there was no error as to the factors that the trial court used to make its determination.

The mother further argues that because she and her husband moved to Wake County, regardless of the father’s wishes to keep the children enrolled in the Durham School System, the children’s residency with the mother necessitated the school system change. As school systems are accustomed to accommodating children who are in the joint custody of their parents and to accommodate children with mental or emotional problems, it is not uncommon for school systems to accommodate transfer requests.

Affirmed.