IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-308

Filed 20 February 2024

Wake County, No. 17 CVD 164

JENNIFER C. DURBIN, Plaintiff,

v.

MATTHEW L. DURBIN, Defendant.

Appeal by Defendant from order entered 8 July 2022 by Judge Julie Bell in 

Wake County District Court. Heard in the Court of Appeals 1 November 2023. 

Jackson Family Law, by Jill Schnabel Jackson, for plaintiff-appellee.

Fox Rothschild LLP, by Kip D. Nelson and Jonathan L. Taggart, for defendantappellant.

MURPHY, Judge.

When ruling on a motion for the modification of child custody, the existence of 

an ongoing conflict or propensity for conflict between the parties that has persisted 

since the original custody order does not preclude a conclusion on behalf of the trial 

court that the ongoing conflict constitutes, or contributes to, a substantial change in 

circumstances affecting the welfare of the children. However, it is also not presumed 

from the mere existence of an ongoing conflict that the conflict adversely affects the 

children, especially where, as here, the trial court’s findings of fact actually suggest 

the children were relatively insulated from the conflict. As the trial court’s findings 

of fact in this case did not support its conclusion of law that a substantial change in 
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circumstances affecting the welfare of the children had occurred, we reverse the trial 

court’s modification order.

BACKGROUND

This case arises from an 8 July 2022 order of the trial court modifying child 

custody shared between Plaintiff, Jennifer Durbin, and Defendant, Matthew Durbin,

in response to Plaintiff’s 8 October 2021 motion. The order, which substantially 

rendered permanent the terms of two temporary child custody orders entered 12 

January 2022 and 9 February 2022, replaced the previously effective Consent Order 

for Child Custody and Child Support entered 30 October 2020. The original order 

provided, in relevant part, that Plaintiff and Defendant shared joint legal custody,

shared physical custody in roughly equal measures, shared a responsibility for 

communicating information pertaining to the children’s health, and expressly 

contemplated the children having routine medication. The original order further 

established an obligation to act in good faith to “enhance and nourish the relationship 

between each other and the children” and to avoid scheduling activities for the 

children during the other party’s custodial time. 

In addition to the original order, the parties entered into an Order Appointing 

Parenting Coordinator by Consent on 10 December 2020 appointing Tiffany Lesnik 

as the replacement for their original parenting coordinator, Dr. Kari Lenox. In the 

wake of her appointment, Defendant and Lesnik developed a contentious 

relationship, with Defendant moving on 30 April 2021 for the termination of Lesnik’s 
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appointment and for review of her decision as to the reallocation of custody in the 

summer of 2021 to accommodate Plaintiff’s vacation plans. The trial court denied 

both motions, and conflict between Lesnik and Defendant seemingly continued 

through October of the same year, with Defendant continually alleging Lesnik’s

preferential treatment of Mother.

On 8 October 2021, Plaintiff made a Motion to Modify Child Custody, citing, 

inter alia, Defendant’s interference with the children’s therapy appointments and 

insufficient attentiveness to the children’s medical needs as the basis for 

modification. After entering the two aforementioned temporary orders on 12 January 

2022 and 9 February 2022, the trial court entered its Order Modifying Child Custody 

on 8 July 2022, which severely decreased Defendant’s time with the children and 

delegated “final decision-making authority” on all major parenting decisions to 

Plaintiff:

FINDINGS OF FACT

1. Plaintiff is a resident of Wake County, North Carolina.

2. Defendant is a resident of Wake County, North Carolina.

3. [] Plaintiff and [] Defendant were married to each other 

on [26 May] 2007 and separated from each other on or 

about [23 September] 2016.

4. There were two children born of the marriage, . . . born 

[10 December] 2008[] and . . . [8 September] 2010.

5. A permanent custody order was entered on [30 October] 

2020.
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6. The parties’ first parent coordinator was Dr. Kari Lenox.

7. Tiffany Lesnik was appointed the Parent Coordinator on 

[15 December] 2020. Her term expired on [15 December] 

2021.

8. On [24 September] 2021, the PC filed a report to the 

Court detailing numerous problems with the current 

custody order and requesting an expedited hearing.

9. After a hearing on [27 October] 2021, the Court entered 

a temporary custody order giving [] Plaintiff sole legal 

custody and primary physical custody, with [] Defendant 

exercising alternate-weekend visitation.

10. A second Parent Coordinator report was filed on [8 

December] 2021.

11. After a hearing on [10 January] 2022, the Court entered 

a new temporary custody order and appointed Lisa 

LeFante as the new Parent Coordinator on [9 February]

2022.

12. There is an ongoing conflict between the parties that is 

interfering with important decisions being made that affect 

the health, education and welfare of the minor children.

13. The case continues to be a high-conflict and the parties 

have had three different parent coordinators.

14. [] Defendant at times will refuse to respond to 

Plaintiff's requests for information in a timely manner.

15. During Ms. Lesnick’s tenure as PC, [] Defendant 

refused or delayed providing information that the PC 

requested, and he was hostile and behaved inappropriately 

in his responses to the PC. Specifically:

a. On or about [9 April] 2021, the PC contacted []

Defendant and asked for some basic information about 

his positive COVID test, including when he tested 
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positive, whether anyone else lived with him, and if 

anyone in his home had tested positive. The PC’s 

questions were reasonable under the circumstances.

b. Defendant reacted with hostility, refusing to respond 

to the questions, demanding to know why she needed 

medical information, accusing the PC of breaching his

trust, calling her questions “bizarre,” and accusing the 

PC of colluding in a “witch hunt” with Plaintiff.

c. Defendant ultimately provided answers to the PC’s 

questions after several days, but his delay in responding 

was unreasonable and his hostile response was

inappropriate.

d. On [23 September] 2021, [] Defendant contacted []

Plaintiff claiming he was dealing with a “behavioral 

issue” with [the parties’ elder son] and wanting to review 

the phone and text logs for [that son’s] phone.

e. When the PC contacted the parties and asked Mr. 

Durbin to provide some information on what the 

“behavioral issue” was so that the parties could address 

it in a uniform manner, Defendant refused to provide 

any information. Further, Defendant’s response on [24 

September] 2021, at 9:40 a.m., was hostile, telling the 

PC neither she [n]or Plaintiff were “ready for coparenting,” accusing the PC of lying, and threatening to 

“limit or cease [his elder son’s] cell phone usage” if he 

didn’t get what he wanted.

16. Both minor children attend therapy. [The parties’ elder 

son] sees Dr. Brian Mackey and [the parties’ younger son]

sees Dr. Jennifer Hayden. Both children have good 

relationships with their therapists.

17. There were substantial problems with scheduling 

regular therapy for the minor children for several months 

in 2020. Defendant was uncooperative with both Dr. Lenox 

and Ms. Lesnick in the PC’s attempts to ensure that [the 

parties’ elder son] was receiving regular therapy.

18. The current PC, Lisa LeFante, did not testify that 

problems continued under her tenure with Defendant 

making sure that [the parties’ elder son] attended regular 
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therapy.

19. Both Dr. Mackey and Dr. Hayden testified that the 

scheduling problems were resolved and that [] Defendant 

now brings both children to therapy and seems supportive 

of their treatment.

20. Over Plaintiff’s objections, [] Defendant began 

requiring the children to speak with Plaintiffs estranged 

mother, who lives in California and suffers from severe 

mental illness.

21. There has been an ongoing dispute between the parties 

about the children’s medical conditions and the consistent 

administration of prescribed medications. Specifically:

a. [The parties’ elder son] has asthma and serious 

allergies requiring him to use inhalers on a regular basis 

and to carry an EpiPen and emergency inhaler at all 

times. [The elder son’s] medication is kept in a blue bag 

that he carries with him at all times.

b. [] Plaintiff and her husband testified that they have 

been in [the elder son’s] presence when he was with []

Defendant on several occasions and they did not see the

medication bag, so they presumed that it was not with 

[him]. Defendant testified that the bag was always 

there, but sometimes it was in a backpack. The Court 

does not have sufficient information to determine 

whether the medication was present or not.

c. [] Plaintiff had contacted the PC on more than one 

occasion to voice concerns about Defendant’s failure to 

administer the child’s medication as prescribed.

d. Plaintiff and her husband testified that on at least 4 

occasions, when [the parties’ elder son] returned from 

visits with Defendant, that the count on his inhaler 

(which has a dosage counter on the medication) was 

inconsistent with the number of doses he should have 

taken while in Defendant’s custody.

e. [] Defendant offered no explanation, but it appears to 

the Court that he takes a “hands off” approach and lets 

[the parties’ elder son] regulate his own medication.

f. The Court finds that, in light of [the elder son’s]
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medical condition, it is in the child’s best interest for 

both parents to take responsibility for making sure that 

he takes his medicine consistent with the doctor’s 

recommendations and not leave it to the child to be 

responsible for his own medications.

g. On [29 July] 2021, the PC issued a directive on the 

medication issue. The email said, in relevant part, “I am 

going to ask you both to keep a medication

administration chart while [your elder son] is with you 

that will indicate: The medication administered, the 

amount, the date and the time.”

h. Despite [the elder son’s] diagnosed medical problems, 

and the PC’s directive, the conflict over the child’s 

medication continued. Defendant did not maintain the 

medication log, made the child maintain the medication 

log, told Plaintiff and the PC that the child (who is 12) 

was responsible for his own medication, and argued with 

both Plaintiff and PC in multiple emails rather than 

simply make sure [the elder son] received his medication 

and maintaining the log so that both parents could make 

sure that they were consistent and coordinated in their 

administration of medication for [him].

i, [The parties’ younger son] broke his arm while ziplining.

22. Defendant did not cooperate with Ms. Lesnik’s 

directives regarding [his elder son’s] medication.

23. Plaintiff wanted to get the children vaccinated for Covid 

19. [] Defendant disagreed and wanted to speak to the 

children’s pediatrician and allergist.

24. Defendant received recommendations from the 

pediatrician (Dr. Fennell) regarding the Covid vaccine. 

Defendant’s recollection of the doctor’s recommendations, 

and what he told Plaintiff about it, were different from 

what the doctor had actually said and provided in 

correspondence to Defendant. This caused further conflict 

between the parties and substantially delayed Plaintiff's 

ability to get the kids vaccinated.
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25. Defendant schedules extracurricular activities during 

Plaintiff's custodial time without her consent.

26. Plaintiff frequently presumes any delay of information 

or mistake in providing information is intentional on the 

part of [] Defendant. While the Court believes that delays 

and mistakes by Defendant in providing information to 

Plaintiff creates more conflict between the parties, so does 

Plaintiff's presumption.

27. The amount of conflict between the parties is not in the 

children’s best interest, but neither party seems capable of 

reducing the conflict.

28. Since the entry of the [12 January] 2022, temporary 

order, there have been fewer custodial exchanges between 

the parties. The reduction in exchanges has helped reduce 

some of the conflict between the parties.

29. Defendant and his mother both testified that the boys 

seem “sad” to him. However, [the parties’ elder son] is

doing so well in therapy that he can decrease the frequency 

of his appointments.

30. Plaintiff and her husband testified to very positive 

relationships with the children.

31. [] Plaintiff has remarried . . . . Her new husband has a 

very positive and close relationship with the children.

32. The Court finds that the above listed findings 

constitute a substantial change in circumstances

warranting the entry of a temporary custody order 

modifying the terms of the October 2020 Permanent 

Custody Order.

CONCLUSIONS OF LAW

1. The parties are properly before the Court and that the 

Court has jurisdiction over the parties and the subject 

matter herein and there exist facts justifying this Court to 
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assume jurisdiction to determine the custody of the minor 

children.

2. North Carolina is the home state of the minor children.

3. Pursuant to N.C.G.S. § 50-13.7, since the entry of the 

last custody order there has been a substantial change in 

circumstances that adversely affects the minor children 

and a modification of the permanent custody order is 

warranted.

4. This Order is in the best interests of the minor children.

5. Both parties have the ability to comply with the terms 

and conditions contained herein.

6. Findings of Facts that are more appropriately considered 

Conclusions of Law are incorporated by reference as if fully 

set forth herein.

IT IS THEREFORE ORDERED, ADJUDGED AND 

DECREED as follows:

1. The permanent custody order is modified as follows:

a. The parties shall continue to share joint legal custody, 

The parties shall in good faith confer and attempt to 

mutually agree on major decisions affecting the

children’s health, education and welfare. In the event 

the parties are unable to reach mutual agreement on a 

major decision, [] Plaintiff shall have final decisionmaking authority. Day-to-day decisions shall be made 

by the custodial parent.

b. [] Plaintiff shall exercise primary physical custody and 

[] Defendant shall have visitation as follows:

i. Defendant shall have custody of the minor children 

on alternate weekends from the end of school Friday 

until the beginning of school Monday morning.

ii. In the event one child does not have school on a 

custodial exchange day (either Friday or Monday), the 

parties shall exchange custody of both children—the 

child who is in school and the child who is not in 
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Opinion of the Court

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school—at 5 p.m. on that regular exchange day.

c. Therapy: The minor children shall continue in therapy 

at 3C Family Services until such time as their individual 

therapists release each child from therapy. Neither

parent shall take any action to terminate or interfere in 

the therapeutic relationship. In addition:

i. The parents may participate in the children’s 

therapy as directed by the individual therapist.

ii. The children’s individual therapists shall 

recommend the frequency and duration of 

appointments for each child and the parties shall 

comply with the recommendation.

iii. Appointments shall be scheduled for each child to 

comply with the therapist’s recommendations, 

regardless of whose custodial time the appointment 

may fall on. The custodial parent shall transport the 

child to and from the therapy appointment as 

scheduled. In the event there is a dispute between 

the parties on the day or time a therapy appointment 

is to be scheduled, the Parent Coordinator shall 

determine the time and date of the appointment.

d. Medication: The parties shall comply with the Parent 

Coordinator’s directive on medication for the children. 

Specifically, the parties shall maintain a medication log 

for [the parties’ elder son] as outlined in the [24 August] 

2021, directive issued by the Parent Coordinator. 

Neither parent shall make the child complete the log, or 

make the child responsible for maintaining his own 

medication schedule. Both parents shall ensure that the 

children take any and all medication as prescribed by 

their respective medical providers, including but not 

limited to making sure that Epipens and inhalers are 

available to the child as directed by the physician(s).

e. The parents shall subscribe to Our Family Wizard 

within 5 days of entry of this order. All communication 

between the parties shall be through Our Family Wizard

and all medical appointments and extracurricular 

activities shall be placed on the OFW calendar. In the 

event of an emergency involving a child, the parties may

text one another.

f. [] Defendant shall not threaten, insult or harass the 
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Parent Coordinator, and shall not use abusive language 

in his communication with her (i.e., calling her a liar). 

Neither party shall record the Parent Coordinator.

2. Holiday Custodial Schedule. The holiday/summer 

custodial schedule as outlined herein shall supersede the 

regular custodial schedule listed above. After the 

holiday/summer schedule concludes, the regular custodial 

schedule listed above shall continue as if the 

holiday/summer schedule never occurred. While [the 

parties’ younger son] remains enrolled at The Raleigh 

School, the parties shall use [] The Raleigh School calendar 

to determine the dates of the holidays referenced in 

provisions (3a) to (3f), below. Once [the parties’ younger 

son] is no longer attending The Raleigh School, the parties 

shall use the WCPSS calendar to determine the dates of 

holidays and school breaks.

. . . .

3. Transportation. Each parent will be responsible for 

picking up the children at school, the residence of the other 

parent, or child’s activity to begin his or her custodial time 

with the children.

4. Lisa LeFante shall remain the parent coordinator until 

the expiration of her term. Either party may ask for the 

reappointment of Ms. LeFante or another parent 

coordinator at the expiration of her term.

5. Medical Emergencies. In the event of a medical 

emergency, the party who is with the minor child shall 

promptly notify the other parent as soon as it is practicable 

to do so. If any injury, accident or health-related problem 

arises which necessitates the hospitalization of the child, 

both parties shall have the right to visit the child at 

reasonable times for reasonable periods of time. Defendant 

and Plaintiff shall promptly notify the other of any serious 

illness and/or injury to the child which requires medical 

attention. Each party shall inform the other of any medical 

or health problems which arose while the child is in the
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physical custody of one of the parents.

6. Both parents shall provide each other with any 

medication which the child is taking at the time of the 

transfer of physical custody of the child and they shall 

provide each other with sufficient information to allow the 

other party to obtain refills of that medication, if

appropriate.

7. Non-disparagement. [] Defendant and Plaintiff each will 

endeavor, in good faith, to enhance and nourish the 

relationship between each other and the children. Each 

party will attempt to foster feelings of affection between 

the child(ren) and the other party, and neither party shall 

do anything to estrange the child(ren) from the other party

or to injure the child(ren)’s opinion of the other party in any 

manner. Neither party shall disparage the other parent 

within hearing of the minor children or allow any third 

party to do so. Neither party shall discuss the litigation 

with the children.

8. Child-Related Activities and Appointments. Each party 

shall provide to the other party information concerning a 

child’s activities and each shall encourage participation by 

the other parent. Neither party shall schedule activities 

for a child during the other party’s custodial time without 

prior consent, and any programs or enrollments by a child 

which may involve significant time commitments by the 

other parent shall be agreed upon in advance. If one parent 

schedules an appointment (medical, therapy, school 

conference, etc.) for a child, that parent shall immediately 

notify the other parent so that parent may attend.

9. Access to Information. Both parents shall have equal 

access to all personnel at the school and shall be permitted 

to communicate directly with those persons without 

interference by the other parent. It is the responsibility of 

each parent to obtain report cards and interim grade 

reports directly from the school and not rely on the other 

parent. For any written documents for which there cannot 

be duplication (school work, progress chart, weekly folders, 
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and the like) the parent in possession shall make copies for 

the other parent of any and all important documents and/or 

documents with deadlines. Both parents shall have equal 

access to all opportunities for field trips, chaperoning, 

parent participation at school functions, PTA and the like, 

and no parent shall interfere with the other parent’s right 

or ability to participate.

10. Telephone and Electronic Contact. Each parent shall 

be entitled to communicate with the children via telephone, 

email, text, IM, Skype, twitter, Facebook or any other ageappropriate electronic means. All such communication 

shall be at reasonable times and at reasonable periods of 

the day.

11. Records. Each parent shall be entitled to immediate 

access to any third-party records and information 

pertaining to the child including, but not limited to, 

medical, dental health, school or educational records.

12. Travel. Should either parent plan to take the child out 

of North Carolina, that parent shall inform the other fortyeight (48) hours in advance of the planned travel and shall 

inform the other of the destination, address and telephone 

number; in the event such travel is not planned in the 48-

hour time frame, the traveling parent shall inform the 

other immediately at the time the plans are made. Should 

cither parent wish to take a child out of the country, that 

parent shall inform the other 30 days in advance of the 

planned travel and shall fully inform the other parent of 

the complete itinerary of the travel and provide contact 

information, including telephone numbers. Both parents 

shall cooperate in obtaining passports for the children. At 

the request of the traveling parent, the non-traveling 

parent shall execute any consent forms or other written 

documents necessary.

13. Relocation. Should either party decide to relocate 

outside of Wake County or more than 20 miles from his or 

her current residence, that party shall notify the other at 

least 90 days in advance of such a move, or if relocation is 
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likely to occur in less than 90 days, the party wishing to 

relocate shall notify the other within twenty-four hours of 

being informed (or making a decision) that relocation must 

or is likely to occur. If the relocation takes a parent thirty 

(30) or more miles from his or her current residence, the 

children shall remain in the physical custody of the nonrelocating parent pending further agreement of the parties 

or entry of a court order. Both parties will discuss changes 

in the custodial schedule that will benefit the children. In 

the event the parties cannot agree upon changes to the 

custodial schedule, the parties shall participate in 

mediation as soon as practicable after the notice, but 

within 30 days from the notice of relocation. In the event 

no agreement is reached in mediation, but as soon as 

practicable following the declaration of an impasse, but 

within thirty (30) days, the parties shall participate in 

arbitration regarding the custody issue, as set out herein.

14. All PC Directives previously issued and not otherwise 

modified by the provisions of this order shall remain in 

effect.

15. This cause is retained by the Court for entry of further 

Orders.

Defendant timely appeals from the 8 July 2022 order.

ANALYSIS

Defendant argues the trial court erred in entering its 8 July 2022 order because 

no substantial change in circumstances affecting the children’s wellbeing existed, 

because modification was not in the best interests of the children, and because the 

order improperly delegated de facto sole custody to Plaintiff. As we agree the order 

was not entered pursuant to a substantial change in circumstances affecting the 

children’s wellbeing, we reverse.
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When reviewing the modification of a child custody order, we “must examine 

the trial court’s findings of fact to determine whether they are supported by 

substantial evidence.” Shipman v. Shipman, 357 N.C. 471, 474 (2003) (citations 

omitted). Unopposed findings of fact “are presumed to be supported by the evidence 

and are binding on appeal,” James v. Pretlow, 242 N.C. 102, 104 (1955) (marks and 

citations omitted), while conclusions of law are reviewed de novo. In re C.B.C, 373 

N.C. 16, 19 (2019). Whether a substantial change in circumstances has occurred and 

whether that change affected the minor children are conclusions of law and must be 

supported by the trial court’s findings of fact. Shipman, 357 N.C. at 475; see also Cox 

v. Cox, 238 N.C. App. 22, 26 (2014) (“The trial court’s conclusions of law must be 

supported by adequate findings of fact.”). 

Here, the trial court’s findings of fact begin with general observations that this 

case is, and continues to be, high-conflict. The order then notes that a variety of 

conflicts and developments have occurred since the entry of the 2020 order: the 

management of the case shifting between three separate parenting coordinators;

defendant responding slowly to requests for information by Plaintiff and one of the 

parenting coordinators; “hostile” behavior by Defendant toward the same parenting 

coordinator; Defendant exposing the children to Plaintiff’s estranged mother, the 

boys’ maternal grandmother; an ongoing dispute as to the administration of the eldest 

child’s asthma medication; the parties’ younger son having broken his arm;

Defendant having scheduled activities during Plaintiff’s custodial time; Defendant 
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and Plaintiff disagreeing as to the appropriateness of the children receiving Covid 

vaccines; Plaintiff remarrying; and Plaintiff assuming bad faith on the part of 

Defendant.1 The order then notes that the decreased reduction in custodial changes 

since the entry of the 12 January 2022 temporary order “has helped reduce some of 

the conflict between the parties,” concludes as a matter of law that a substantial 

change in circumstances affecting the children had occurred, and orders, inter alia, 

that Defendant’s custodial time be permanently reduced to alternate weekends and 

that Plaintiff have “final decision-making authority” on “major decisions affecting the 

children’s health, education and welfare.”

Accepting, as we must, the trial court’s unchallenged finding of fact, see James, 

242 N.C. at 104, we do not believe the trial court’s findings of fact actually 

demonstrated a substantial change in circumstances affecting the welfare of the 

children. At the threshold, we note that the absence of meaningful findings as to the 

circumstances as they existed at the time of the 30 October 2020 consent order makes 

our review difficult, as we cannot determine with certainty what the circumstances,

as the trial court determined them to be, were at the time of that order. Cf. Benedict 

v. Coe, 117 N.C. App. 369, 377 (1994) (“[T]he [modified order] contains no findings as 

to the existing circumstances [at previous points in time]. It contains no findings of 

1 The order also notes that Defendant was “uncooperative” with the parenting coordinator’s 

requests that the eldest child regularly attended therapy. However, further findings of fact clarify 

that this problem had been resolved at the time of the order’s entry.
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changed circumstances since these dates.”), disapproved of on other grounds by 

Pulliam v. Smith, 348 N.C. 616 (1998); see also Woodring v. Woodring, 227 N.C. App. 

638, 645 (2013) (marks and citations omitted) (“[W]hen evaluating whether there has 

been a substantial change in circumstances, courts may only consider events which 

occurred after the entry of the previous order, unless the events were previously 

undisclosed to the court.”). Nonetheless, our review of the record and the findings in 

the modified order present us with information sufficient to make a determination on 

the question of whether a substantial change in circumstances affecting the welfare 

of the children occurred.

In determining whether the trial court’s findings of fact support a substantial 

change in circumstances affecting the welfare of the children, we review two of our 

recent custody modification cases, Smith v. Dressler, __ N.C. App. __ (2023), and 

Conroy v. Conroy, __ N.C. App. __ (2023), which are particularly instructive, as both 

cases turned on the issue of whether a substantial change in circumstances had 

occurred. In Smith, the trial court had entered a modified custody order concerning 

the parties’ minor child, citing among the purportedly changed circumstances that 

the plaintiff had “married, given birth to a child, been honorably discharged from the 

Air Force, returned to North Carolina, acquired a home in Wilson, gained proximity 

to and more support from her family, and been re-employed by Pfizer,” as well as that 

the defendant did not schedule visitation time with some members of the plaintiff’s 

family. Smith, __ N.C. App. at __. The trial court also noted that the minor child had 
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received a number of injuries while under the defendant’s supervision—injuries the 

plaintiff alleged indicated abuse or neglect on the part of the defendant—and that the 

defendant had not disclosed a potential Covid infection. Id. at __. We also noted that

“CPS [] found no evidence of abuse after investigating [the] [f]ather at [the] [m]other’s 

behest,” which was a factor the trial court had used when deciding whether a 

substantial change in circumstances had occurred. Id. at __.

We vacated and remanded the order on the basis that no substantial change of 

circumstances existed. Id. at __. The plaintiff’s marriage, new child, discharge from 

the Air Force, and changes in living arrangements and employment had already been 

disclosed to the trial court prior to the entry of the previously-effective custody order; 

therefore, they did not qualify as substantially changed circumstances since the entry 

of the prior order. Id. at __ (“[T]he trial court erred when it considered and reevaluated events which were disclosed to and considered by the trial court prior to 

the entry of the First Custody Order.”) (citing, inter alia, Woodring, 227 N.C. App. at

645, and Ford v. Wright, 170 N.C. App. 89, 96 (2005)). Considering only the 

remaining changes in circumstances—the injuries to the child alleged to constitute 

abuse or neglect—we rejected the plaintiff’s argument that a substantial change in 

circumstances affecting the welfare of the child had occurred, noting the absence of 

evidence that the injuries to the child were the product of abuse or neglect. Id. at __. 

Moreover, we further remarked that, even if we considered the evidence previously 

disclosed and addressed in the prior order, that information would not have been 
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sufficient to constitute a substantial change in circumstances affecting the welfare of 

the child. Id. at __.

By contrast, in Conroy v. Conroy, the trial court’s findings of fact supporting a 

substantial change in circumstances included an escalating pattern of the plaintiff’s 

increasingly erratic behavior. While the trial court found that the plaintiff “expressed 

significant disdain and contempt for [any] person that she apparently perceived to be 

‘against’ her,” Conroy, __ N.C. App. at __, the primary thrust of the trial court’s order 

concerned her extreme behaviors toward her children and the defendant. These 

behaviors included blaming her thirteen-year-old daughter for issues raised to the 

trial court; speaking about the defendant in expletives in the presence of the children;

preventing the children going on a pre-planned trip with the defendant by locking 

them inside the home; threatening to call the police on the defendant while her 

daughter was riding to soccer practice with the defendant; attempting, in bad faith, 

to have the defendant ejected from one of their children’s basketball games; cursing 

at, and taking the call phone of, one of her children’s friends for remarks made in the 

wake of the November 2020 presidential election2; destroying the children’s 

2 For more complete context, the entirety of the trial court’s finding of fact with respect to 

this incident was as follows:

Following the election of Joe Biden in November 2020, [the plaintiff] 

became offended by a comment made by one of [her son]’s friends. [The 

plaintiff] responded by telling the child in the presence of her own 

minor children that he had “no friends;” by calling him names, 

including a “little shit;” and by confiscating and keeping the child’s cell 
DURBIN V. DURBIN

Opinion of the Court

- 20 -

electronics in front of them as a means of punishment; choking her daughter;

encouraging the children to bully one another; and engaging in otherwise excessive 

corporal punishment. Id. at __. 

Although the plaintiff in Conroy argued that these behaviors did not constitute 

a substantial change in circumstances because her interpersonal relationships had 

always been poor and her behavior toward the defendant had been “erratic and 

unpredictable” since at least the entry of the original custody order, id at __, we held 

that the parties’ “continued communication problems and their failure or inability to 

cooperate and co-parent constituted a substantial change.” Id. at __. In doing so, we 

relied primarily on the following excerpt from Laprade v. Barry:

It is beyond obvious that a parent’s unwillingness or 

inability to communicate in a reasonable manner with the 

other parent regarding their child’s needs may adversely 

affect a child, and the trial court’s findings abundantly 

demonstrate these communication problems and the 

child’s resulting anxiety from her father’s actions. While 

father is correct that this case overall demonstrates a 

woeful refusal or inability of both parties to communicate 

with one another as reasonable adults on many occasions, 

we can find no reason to question the trial court’s finding 

that these communication problems are presently having a 

negative impact on [the minor child’s] welfare that 

phone. Bizarrely, [the plaintiff] brought this child’s mother[] . . . in to 

testify on her behalf. [The mother] testified that her son was so afraid 

of [the plaintiff] after the [i]ncident that her husband had to go to [the 

plaintiff’s] home to retrieve their son’s cell phone on their son’s behalf. 

Throughout her own and [the other mother’s] testimony, [the plaintiff]

completely failed to recognize any problem with her own behavior 

(directed at a child) and, instead, blamed said child for “provoking” her.

Conroy, __ N.C. App. at __.
DURBIN V. DURBIN

Opinion of the Court

- 21 -

constitutes a change of circumstances. In fact, it is 

foreseeable the communication problems are likely to affect 

[the minor child] more and more as she becomes older and 

is engaged in more activities which require parental 

cooperation and as she is more aware of the conflict 

between her parents. Therefore, we conclude that the 

binding findings of fact support the conclusion that there 

was a substantial change of circumstances justifying 

modification of custody.

Laprade v. Barry, 253 N.C. App. 296, 303-04 (2017) (emphasis in original) (citing 

Shipman, 357 N.C. at 473-75); id. at __.

To be sure, the facts of this case fall in a gray area between Smith and Conroy. 

Like the plaintiff in Smith, Plaintiff’s arguments to the trial court included a range 

of allegations that Defendant had mishandled the health of one of the children, 

including allegedly unsafe conduct during the height of the pandemic. Smith, __ N.C. 

App. __. And, also as in Smith, a contributing factor in the trial court’s conclusion 

that a substantial change affecting the welfare of the children had occurred was 

Plaintiff’s remarriage. Id. at __. However, these circumstances alone, especially in 

the absence of a finding of the remarriage’s impact on the minor children’s wellbeing, 

does not constitute a substantial change in circumstances.3 See id. at __; see also 

Hassell v. Means, 42 N.C. App. 524, 531 (“Remarriage in and of itself is not a sufficient 

change of circumstance to justify modification of a child custody order.”), disc. rev. 

denied, 298 N.C. 568 (1979); Kelly v. Kelly, 77 N.C. App. 632, 636 (1985) (“Remarriage 

3 We also note that the Plaintiff’s remarriage had occurred in March 2019, well before the entry 

of the October 2020 consent order.
DURBIN V. DURBIN

Opinion of the Court

- 22 -

without a finding of fact indicating the effect of remarriage on a child is not a 

sufficient change of circumstance to justify modification of a child custody order.”). 

Moreover, like in Smith, ordinary injury and response to common illness are not 

themselves sufficient to constitute a substantial change in circumstances affecting 

the wellbeing of the children. Smith, __ N.C. App. at __. 

Meanwhile, this case also shares a number of salient features with Conroy, 

most notably in the trial court’s observation of deteriorating communication between 

the parties. Defendant, like the plaintiff in Conroy, has, according to the trial court’s 

findings, developed a contentious relationship with, and wariness of, other 

participants in the case,4 see Conroy, __ N.C. App. __, and has reacted negatively

toward them on a number of occasions. Similar to the findings of fact in Conroy, the 

trial court described decision-making conflicts over major parenting decisions 

between the parties as “ongoing” and noted the “case continue[d] to be high-conflict”; 

however, unlike in Conroy, a significant portion of the negative communications 

4 Including, perhaps, the trial court:

[DEFENDANT’S COUNSEL:] . . . I’m going to implore you to please, 

you know, give Mr. -- give what Mr. Durbin says a fair shake. I know 

that he’s been in front of you several times and you’ve been very 

displeased with him in past hearings, but I’m asking for you to let that 

go for a little bit, listen to what he says, and take it seriously. Thank 

you.

THE COURT: For the record, the Court will note that the court listens 

to all parties in every hearing, takes everything’ seriously, and makes

decisions upon the evidence. So the Court will take exception to the 

statement otherwise.
DURBIN V. DURBIN

Opinion of the Court

- 23 -

noted by the trial court in its findings of fact were directed at, or involved, the 

parenting coordinator. Also unlike in Conroy, no specific findings linked the parties’ 

negative communication to the wellbeing of the children; and, in fact, the instances 

of conflict actually discussed by the trial court all appear to have been 

communications to which the children were not privy. But see Conroy, __ N.C. App. 

at __ (noting among the trial court’s findings of fact that the plaintiff’s “significant 

disdain and contempt for” others, including that voiced in front of the minor children,

involved in the case resulted in direct distress to—and, at times, punishment of—the

minor children); Laprade, 253 N.C. App. at 301 (noting among the trial court’s 

findings of fact that the defendant’s behavior toward the child with relation to the 

parties’ conflicts led to high anxiety in the parties’ minor child). 

Indeed, the only findings directly concerning the children’s wellbeing with 

relation to the parties’ conflicts were the broad observations in findings 27 through 

29.

5 These findings, however, relate to the reduction in conflict between the parties

5 These findings read, in full, as follows:

27. The amount of conflict between the parties is not in the children’s 

best interest, but neither party seems capable of reducing the conflict.

28. Since the entry of the [12 January] 2022, temporary order, there 

have been fewer custodial exchanges between the parties. The 

reduction in exchanges has helped reduce some of the conflict between 

the parties.

29. Defendant and his mother both testified that the boys seem “sad” 

to him. However, [the parties’ elder son] is doing so well in therapy 

that he can decrease the frequency of his appointments.
DURBIN V. DURBIN

Opinion of the Court

- 24 -

and not to any specific impact on the wellbeing of the children, limiting the relation 

between the two to a cursory note about conflict not being in the children’s best 

interest. The only finding of the three involving the wellbeing of the children pertains 

to the eldest son’s progress in therapy—treatment which, by the trial court’s own 

findings, was supported without conflict by both parties as of the time of the order’s 

entry. 

While it may be “obvious that a parent’s unwillingness or inability to 

communicate in a reasonable manner with the other parent regarding their child’s 

needs may adversely affect [the] child,” see Laprade, 253 N.C. App. at 303, it is also 

not to be presumed from the mere existence of an ongoing conflict that the conflict 

adversely affects the child, especially where the trial court’s findings of fact actually 

suggest the children were relatively insulated from the conflict. This is especially 

true where, as here, both boys are active teenagers approaching adulthood, can 

articulate their preferences for themselves, and can take far more responsibility for 

their activities and schedules than a younger child could. 

Nor is it the case that conflict between a party and a prior parenting 

coordinator necessarily constitutes a substantial change in circumstances affecting 

the welfare of the child. Parenting coordinators serve an important function on behalf 

of our courts, see generally N.C.G.S. § 50-92 (2023), but they are, ultimately, 
DURBIN V. DURBIN

Opinion of the Court

- 25 -

susceptible to human error and bias, especially when their station requires involving 

themselves in their assignees’ emotionally-charged conflicts. Such susceptibility is 

especially present when a disparity exists in the parents’ ability to manage the optics 

of the communications to which the parenting coordinator is exposed and

advantageously leverage the necessary, yet inorganic, rules of engagement presented 

by court-ordered custodial arrangements. For this reason, conflict between a party 

and a parenting coordinator is not per se evidence of impact on minor children whose 

custody is involved in that case. Were it otherwise, a trial court may be tempted to 

modify a custody order out of mere logistical convenience to itself and its coordinator

appointees, rather than acting with due concern for a disfavored parent’s 

“fundamental right to make decisions concerning the care, custody, and control of his 

or her children . . . .” Adams v. Tessener, 354 N.C. 57, 60 (2001) (marks omitted) 

(quoting Troxel v. Granville, 530 U.S. 57, 66 (2000)). 

The trial court’s conclusion that “there has been a substantial change in 

circumstances that adversely affects the minor children” is not supported by its 

findings of fact; we therefore reverse the trial court’s modification order. Ford, 170 

N.C. App. at 96. Having so held, Defendant’s arguments as to the best interests of 

the children and the legal status of the custodial arrangement ordered by the trial 

court are moot. Roberts v. Madison Cty. Realtors Ass’n, Inc., 344 N.C. 394, 398-99 

(1996) (marks and citations omitted) (“A case is moot when a determination is sought 

on a matter which, when rendered, cannot have any practical effect on the existing 
DURBIN V. DURBIN

Opinion of the Court

- 26 -

controversy.”)

CONCLUSION

The trial court’s modification of child custody was not supported by a 

substantial change in circumstances affecting the children’s wellbeing, and we 

therefore reverse the order of the trial court. Ford, 170 N.C. App. at 96.

REVERSED.

Judge TYSON concurs.

Judge COLLINS dissents by separate opinion.
No. COA23-308–Durbin v. Durbin

COLLINS, Judge, dissenting.

I would affirm the trial court’s order granting primary decision-making 

authority and primary physical custody to Plaintiff. I therefore respectfully dissent.

I. Background

Plaintiff and Defendant were married on 26 May 2007. They had two children 

together, Charles, born in 2008, and Timothy, born in 2010.6 On 23 September 2016, 

the parties separated. They entered into a consent order for child custody and child 

support on 9 February 2017 (“Initial Consent Order”) wherein they agreed to share 

legal and physical custody of the children and to various other custody terms.

Plaintiff filed a motion to modify child custody on or around 27 October 2020. 

The trial court entered a consent order on 30 October 2020 (“Permanent Custody 

Order”) maintaining all the terms of the Initial Consent Order but adding a term 

specifically providing for the appointment of a parenting coordinator. The parties 

entered into a consent order on 15 December 2020 appointing Tiffany Lesnik (“PC” 

or “Parenting Coordinator”) as their parenting coordinator for a one-year term. The 

parties gave the PC authority over the following: transition time/pickup/delivery; 

sharing of vacations and holidays; method of pickup and delivery; transportation to 

and from visitation; participation in child care/daycare and baby-sitting; bed time; 

diet; clothing; recreation; before and after school activities; extracurricular activities; 

6 We use pseudonyms to protect the identities of the minor children. See N.C. R. App. P. 42.
DURBIN V. DURBIN

COLLINS, J., dissenting.

2

discipline; health care management; alterations in schedule which do not 

substantially interfere with the basic time share agreement; participation in 

visitation, including significant others and relatives; telephone contact; alterations to 

appearance, including tattoos or piercings; the children’s passports; and education.

Defendant filed motions on 30 April 2021 to modify or terminate the PC’s 

appointment as their parenting coordinator and for an expedited review of two of the 

PC’s decisions concerning the parties’ summer 2021 custodial schedule. In June 2021, 

Defendant filed a motion for attorney’s fees and for apportionment of the PC’s fees 

between the parties. Defendant’s motions came on for hearing on 8 July 2021. The 

trial court entered an order on 2 August 2021 finding, in pertinent part:

10. Defendant testified that approximately eight (8) 

parenting coordinator decisions made between January 14, 

2021 and April 13, 2021 created unnecessary confusion and 

conflict between the parties. Additionally, the decisions 

concerning the 2021 summer schedule created an unequal 

distribution of days between the parties which Defendant 

testified was not the intent of the Custody Order because 

the Custody Order intends the parties to share equal 

physical custody of their minor children.

. . . .

13. The Parent Coordinator’s decisions were based on 

rational and reasonable consideration of the children’s best 

interests, and the Parent Coordinator communicated with 

the children’s school, both parents, and the minor child’s 

therapist in reaching her decisions.

14. The Parent Coordinator’s decisions did not 

substantially alter the time-sharing arrangement set forth 

in the custody order.

15. The Court finds the parenting coordinator’s March 1, 
DURBIN V. DURBIN

COLLINS, J., dissenting.

3

2021 decision concerning Father’s Day weekend and the 

alterations to the custodial schedule during the summer of 

2021 were reasonable.

16. The parties are high conflict.

17. The parties will benefit from the continued services of 

a parenting coordinator. . . .

The trial court thus declined to modify the PC’s decisions, denied Defendant’s 

motion to modify or terminate the PC’s appointment, dismissed Defendant’s motion 

for attorney’s fees, and held Defendant responsible for the PC’s fees related to the 

hearing.

The PC filed a Parenting Coordinator’s report7 (“first report”) on 24 September 

2021,8 alleging problems with the current custody arrangement, requesting a change 

in custody, suggesting that Defendant undergo a psychological evaluation, and 

requesting an expedited hearing. A hearing on the report was set for 27 October 

2021.

On 8 October 2021, Plaintiff filed a motion to modify child custody, seeking to 

modify the Permanent Custody Order.

7

“The parenting coordinator may file a report with the court regarding any of the following: 

(1) The parenting coordinator’s belief that the existing custody order is not in the best interests of the 

child. (2) The parenting coordinator’s determination that the parenting coordinator is not qualified to 

address or resolve certain issues in the case. (3) A party’s noncompliance with a decision of the 

parenting coordinator or the terms of the custody order. (4) The parenting coordinator’s fees as set 

forth in G.S. 50-95. (5) The parenting coordinator’s request that the parenting coordinator’s 

appointment be modified or terminated.” N.C. Gen. Stat. § 50-97(a) (2021).

8 The PC’s first report is not in the record.
DURBIN V. DURBIN

COLLINS, J., dissenting.

4

Defendant filed a Motion for Psychological Evaluation on 19 October 2021, 

moving for an order requiring Plaintiff to submit to a psychological evaluation. 

Defendant alleged that the PC had filed a report “suggest[ing] Defendant should 

undergo a psychological evaluation” but that “Plaintiff exhibits many behaviors that 

are to the detriment of the minor children, and Defendant’s ability to co-parent with 

her” and the “[PC] is, for some reason, hyper focused on Defendant, and refuses to 

hold Plaintiff accountable for any of her erratic and harmful behavior.”

The PC’s first report came on for hearing on 27 October 2021. On 8 December 

2021, the PC filed a second Parenting Coordinator’s report (“second report”) with the 

court detailing problems with the Permanent Custody Order and requesting an 

expedited hearing.

9 The PC’s appointment as the parties’ Parenting Coordinator 

expired on 15 December 2021. The second report came on for hearing on 10 January 

2022. 

By order entered 11 January 2022, the trial court appointed Lisa Lefante as 

the parties’ parenting coordinator for a term of two years. The order noted that the 

parties had not consented to the appointment of a parenting coordinator, that the 

matter was a high-conflict case, and that the appointment of the parenting 

coordinator was in the best interests of the children. The second parenting 

9 The PC’s second report is not in the record.
DURBIN V. DURBIN

COLLINS, J., dissenting.

5

coordinator had the same scope of authority as the PC, with the addition of authority 

over the minor children’s therapy.

The following day, 12 January 2022, the trial court entered a Temporary Order 

for Child Custody (“First Temporary Order”) based upon its hearing of the PC’s first 

report. The trial court found, in relevant part, as follows:

8. There is an ongoing conflict between the parties that is 

interfering with important decisions being made that affect 

the health, education and welfare of the minor children.

9. On or about April 9, 2021, the PC contacted the 

Defendant and asked for some basic information about his 

positive COVID test, including when he tested positive, 

whether anyone else lived with him, and if anyone in his 

home had tested positive. The PC’s questions were 

reasonable under the circumstances.

10. Defendant reacted with hostility, refusing to respond to 

the questions, demanding to know why she needed medical 

information, accusing the PC of breaching his trust, calling 

her questions “bizarre,” and accusing the PC of colluding in 

a “witch hunt” with Plaintiff.

11. Defendant ultimately provided answers to the PC’s 

questions after several days, but his delay in responding 

was unreasonable and his hostile response was 

inappropriate.

12. On September 23, 2021, the Defendant contacted the 

Plaintiff claiming he was dealing with a “behavioral issue” 

with [Charles] and wanting to review the phone and text 

logs for [Charles’s] phone.

13. When the PC contacted the parties and asked Mr. 

Durbin to provide some information on what the 

“behavioral issue” was so that the parties could address it 

in a uniform manner, Defendant refused to provide any 

information. Further, Defendant’s response on September 

24, 2021, at 9:40 a.m., was hostile, telling the PC neither 
DURBIN V. DURBIN

COLLINS, J., dissenting.

6

she [n]or Plaintiff were “ready for co-parenting,” accusing 

the PC of lying, and threatening to “limit or cease 

[Charles’s] cell phone usage” if he didn’t get what he 

wanted.

14. Defendant’s response was unproductive and hostile and 

the Court has serious concerns about his ability to coparent 

with the Plaintiff.

15. There are issues with the children attending therapy as 

recommended. Specifically:

a. The minor children are both in therapy at 3C 

Family Services. [Charles’s] therapist is Brian 

Mackey. [Timothy’s] therapist is Jennifer Hayden. 

Both children have attended therapy regularly for 

over a year and both children have a good rapport 

with their individual therapists.

b. Dr. Mackey, [Charles’s] therapist, had 

recommended that [Charles] attend therapy weekly. 

[Charles] suffers from anxiety.

c.

d. There have been ongoing problems scheduling 

appointments for [Charles] during the Defendant’s 

custodial time going back to October 2020. The 

Defendant complained about appointments being 

scheduled during his custodial time or scheduled 

during school hours.

e. As a result of the conflict, [Charles] had numerous 

cancelled therapy appointments during 2021 and as 

of the hearing date, half of all remaining therapy 

appointments were cancelled for the rest of the year.

f. Defendant was previously held in contempt for 

interfering with the children’s therapy.

g. The Court finds that it is immaterial whose 

custodial time the children’s therapy appointments 

are scheduled on, so long as the children are 

receiving therapy as directed by the therapists.

16. There has been an ongoing dispute between the parties 
DURBIN V. DURBIN

COLLINS, J., dissenting.

7

about the children’s medical conditions and the consistent 

administration of prescribed medications. Specifically:

a. [Charles] has asthma and serious allergies 

requiring him to use inhalers on a regular basis and 

to carry an Epipen at all times.

b. The Plaintiff had contacted the PC on more than 

one occasion to voice concerns about Defendant’s 

failure to administer the child’s medication as 

prescribed.

c. On July 29, 2021, the PC issued a directive on the 

medication issue. The email said, in relevant part, “I 

am going to ask you both to keep a medication 

administration chart while [Charles] is with you 

that will indicate: The medication administered, the

amount, the date and the time.”

d. Despite [Charles’s] diagnosed medical problems, 

and the PC’s directive, the conflict over the child’s 

medication continued. Defendant did not maintain 

the medication log, made the child maintain the 

medication log, told Plaintiff and the PC that the 

child (who is 12) was responsible for his own 

medication, and argued with both Plaintiff and PC 

in multiple emails rather than simply make sure 

[Charles] received his medication and maintaining 

the log so that both parents could make sure that 

they were consistent and coordinated in their 

administration of medication for [Charles].

e. Defendant’s refusal to comply with the PC’s 

directive had an adverse effect on [Charles’s] health 

and was not in the child’s best interest.

17. The minor children attend two different schools. 

[Charles] attends Oberlin Middle School while [Timothy] 

attends The Raleigh School. The schools operate on two 

slightly different schedules when it comes to teacher 

workdays and holidays so that there are instances when 

one child does have school and the other does not on a 

specific day or days.

18. While the order is clear that the Raleigh School 
DURBIN V. DURBIN

COLLINS, J., dissenting.

8

calendar controls for determining holiday and vacation 

days for the children, there have been repeated disputes 

and problems with determining custodial exchange times 

and days. This conflict over the school schedules has served 

to increase the conflict between the parties.

19. The Defendant has been hostile to the Parent 

Coordinator. He has frequently resorted to calling her a 

liar, threatened to file grievances with the State Bar, has 

responded to the PC’s questions about mundane issues 

with transcripts of prior court hearings and claims that the 

PC has lied, misled the court, colluded with Plaintiff and 

Plaintiff’s counsel.

20. Defendant’s aggressive and hostile responses to the PC 

are inappropriate. The Court previously found that the PC 

was acting appropriately and was to remain in place until 

the end of her appointed term. The PC is due cooperation 

and respect from both parties, and the appropriate 

response of a party to a disagreement with the PC is to 

bring it to the Court, not to attempt to threaten and 

intimidate the Parent Coordinator.

21. The parties[’] inability to communicate with one 

another effectively make it appropriate to require them to 

utilize Our Family Wizard for all non-emergency 

communications.

22. The Court finds that the above listed findings 

constitute a substantial change in circumstances 

warranting the entry of a temporary custody order 

modifying the terms of the October 2020 Permanent 

Custody Order.

Upon these findings, the trial court concluded that “it is appropriate and in the 

best interests of the minor children to enter a temporary custody order.”10 The trial 

10 See N.C. Gen. Stat. 50-97(d) (2021) (“The court, after a hearing on the parenting 

coordinator’s report, shall be authorized to issue temporary custody orders as may be required for a 

child’s best interests.”).
DURBIN V. DURBIN

COLLINS, J., dissenting.

9

court thus ordered, in pertinent part, as follows: the parties continue to share joint 

legal custody but Plaintiff shall have final decision-making authority; Plaintiff have 

primary physical custody and Defendant have visitation “on alternate weekends from

the end of school Friday until the beginning of school Monday morning”; the parties 

comply with the PC’s directive on the children’s medication; and Defendant not to 

threaten, insult, or harass the PC, and not to use abusive language in his 

communication with her. Any provisions of the Permanent Custody Order and PC 

directives not modified by the First Temporary Order remained in effect.

The trial court entered another Temporary Order for Child Custody (“Second 

Temporary Order”) on 9 February 2022, based on the 10 January 2022 hearing on the 

PC’s second report. The trial court found, in relevant part, as follows:

9. At the prior hearing on the Parent Coordinator’[s] first 

report to the Court, the Court found that the Defendant 

was aggressive and threatening toward the Parent 

Coordinator and ordered him to stop using hostile language 

and threatening the PC.

10. Following the hearing on the first PC report the 

Defendant took the following actions:

a. Defendant filed a bar grievance against the 

Parent Coordinator[.]

b. Defendant, through counsel, undertook extensive 

discovery including requests for production of 

documents requiring the Parent Coordinator to 

spend more than 10 hours producing hundreds of 

pages of emails, including all her emails with the 

Defendant.

c. Defendant’s counsel noticed the Parent 

Coordinator to appear and testify at a deposition. 
DURBIN V. DURBIN

COLLINS, J., dissenting.

10

Counsel would not provide the Parent Coordinator, 

whose term had expired, why having her sit for a 

deposition would be productive.

d. Defendant threatened to file a motion for 

sanctions against the Parent Coordinator.

e. Immediately after the last hearing, the Defendant 

informed the minor children of changes in the 

custodial schedule prior to any order having been 

submitted, causing distress to the children. He did 

not inform the Plaintiff in advance that he was going 

to tell the children about the litigation.

11. The Defendant has been intent on getting the Parent 

Coordinator removed, beginning with his Motion to Modify 

or Terminate Parent Coordinator’s Appointment filed on 

April 30, 2021.

12. The Defendant’s actions, including those actions by and 

through counsel, directed at the Parent Coordinator are, in 

the Court’s view, retaliatory.

13. While the Parent Coordinator has done an excellent job 

in her role, the Court is concerned that because of the 

Defendant’s tactics and animosity, she cannot be effective 

in her role going forward. The Court also does not want to 

expose the Parent Coordinator to further retaliatory 

actions by the Defendant.

. . . .

20. There is an ongoing conflict between the parties that is 

interfering with important decisions being made that affect 

the health, education and welfare of the minor children.

21. The Court finds that the above listed findings 

constitute a substantial change in circumstances 

warranting the entry of a temporary custody order 

modifying the terms of the October 2020 Permanent 

Custody Order.

Based upon its findings, the trial court concluded that it was appropriate and 

in the best interests of the minor children to enter a temporary custody order. The 
DURBIN V. DURBIN

COLLINS, J., dissenting.

11

trial court maintained the custody provisions from the First Temporary Order but 

modified the parenting coordinator.

Plaintiff’s motion to modify the Permanent Custody Order came on for hearing 

on 3 March 2022. By order entered 8 July 2022 (“Order on Appeal”), the trial court 

concluded that there had been a substantial change in circumstances that adversely 

affected the minor children since entry of the Permanent Custody Order, and that 

modification of the Permanent Custody Order was warranted.

The trial court made 32 findings of fact, some with sub-findings; the relevant 

findings of fact are recited above by the majority. Upon its conclusion that there had 

been a substantial change in circumstances adversely affecting the minor children 

since entry of the Permanent Custody Order, and that a modification of the 

permanent custody order was warranted, the trial court essentially ordered the 

custody terms of the First Temporary Order and the Second Temporary Order become 

permanent.

Defendant appealed.

II. Analysis

Defendant argues that the trial court erred by concluding that there was a 

substantial change of circumstances affecting the welfare of the children and that 

modification was in the best interest of the children, and by awarding primary 

decision-making authority to Plaintiff.

It is well established in this jurisdiction that a trial 
DURBIN V. DURBIN

COLLINS, J., dissenting.

12

court may order a modification of an existing child custody 

order between two natural parents if the party moving for 

modification shows that a substantial change of 

circumstances affecting the welfare of the child warrants a 

change in custody. The party seeking to modify a custody 

order need not allege that the change in circumstances had 

an adverse effect on the child. While allegations 

concerning adversity are acceptable factors for the trial 

court to consider and will support modification, a showing 

of a change in circumstances that is, or is likely to be, 

beneficial to the child may also warrant a change in 

custody.

. . . .

The trial court’s examination of whether to modify 

an existing child custody order is twofold. The trial court 

must determine whether there was a change in 

circumstances and then must examine whether such a 

change affected the minor child. If the trial court concludes 

either that a substantial change has not occurred or that a 

substantial change did occur but that it did not affect the 

minor child’s welfare, the court’s examination ends, and no 

modification can be ordered. If, however, the trial court 

determines that there has been a substantial change in 

circumstances and that the change affected the welfare of 

the child, the court must then examine whether a change 

in custody is in the child’s best interests. If the trial court 

concludes that modification is in the child’s best interests, 

only then may the court order a modification of the original 

custody order.

When reviewing a trial court’s decision to grant or 

deny a motion for the modification of an existing child 

custody order, the appellate courts must examine the trial 

court’s findings of fact to determine whether they are 

supported by substantial evidence. Substantial evidence is 

such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion.

. . . .
DURBIN V. DURBIN

COLLINS, J., dissenting.

13

In addition to evaluating whether a trial court’s 

findings of fact are supported by substantial evidence, this 

Court must determine if the trial court’s factual findings 

support its conclusions of law. With regard to the trial 

court’s conclusions of law, our case law indicates that the 

trial court must determine whether there has been a 

substantial change in circumstances and whether that 

change affected the minor child. Upon concluding that 

such a change affects the child’s welfare, the trial court 

must then decide whether a modification of custody was in 

the child’s best interests. If we determine that the trial 

court has properly concluded that the facts show that a 

substantial change of circumstances has affected the 

welfare of the minor child and that modification was in the 

child’s best interests, we will defer to the trial court’s 

judgment and not disturb its decision to modify an existing 

custody agreement.

Shipman v. Shipman, 357 N.C. 471, 473-75, 586 S.E.2d 250, 253-54 (2003) (quotation 

marks, brackets, and citations omitted).

A. Change of Circumstances

When considering a party’s request to modify a custody order, “courts must 

consider and weigh all evidence of changed circumstances which affect or will affect 

the best interests of the child, both changed circumstances which will have salutary 

effects upon the child and those which will have adverse effects upon the child. In 

appropriate cases, either may support a modification of custody on the ground of a 

change in circumstances.” Pulliam v. Smith, 348 N.C. 616, 619, 501 S.E.2d 898, 899 

(1998). Where “the effects of the change on the welfare of the child are not 

self-evident,” it “necessitate[s] a showing of evidence directly linking the change to 

the welfare of the child[,]” and requires that “the trial court make findings of fact 
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COLLINS, J., dissenting.

14

regarding that connection.” Shipman, 357 N.C. at 478, 586 S.E.2d at 255, 256 

(emphasis omitted).

Defendant argues that no evidence was presented and no findings of fact were 

made to establish the circumstances that existed in October 2020 when the Initial 

Custody Order was entered. I agree with the majority that “the Record and the 

findings in the [Order on Appeal] present us with information sufficient to make a 

determination on the question of whether a substantial change in circumstances 

affecting the welfare of the child occurred.” Therefore, I too reject Defendant’s 

argument.

Defendant next argues that there was no substantial change in circumstances. 

I disagree with Defendant’s argument and the majority’s analysis on this issue.

The trial court’s findings show a high level of conflict between the parties, 

primarily caused by Defendant, that has interfered with important actions being 

taken and important decisions being made, which has negatively affected the health 

and welfare of the minor children. Defendant has been uncooperative and hostile 

toward Plaintiff: Defendant refused to timely respond to Plaintiff’s request for 

information; Defendant began having the children speak with Plaintiff’s estranged 

mother, over Plaintiff’s objections; Defendant failed to timely administer Charles’s 

asthma medication and then refused to keep a medication chart detailing the amount, 

the date, and the time of Charles’s medication administration to ensure Charles 

received his medication; Defendant misrepresented to Plaintiff what the doctor’s 
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COLLINS, J., dissenting.

15

recommendation was regarding the children’s COVID vaccines, delaying them 

getting vaccinated; and Defendant failed to communicate with Plaintiff before 

scheduling the children’s activities during Plaintiff’s custodial time. 

Similarly, Defendant was uncooperative and hostile toward the PC: Defendant 

refused or delayed in responding to the PC’s request for information, including 

refusing to respond to the PC’s request for basic information regarding his positive 

COVID test; Defendant refused to provide the PC with information regarding his 

son’s alleged “behavior issue” and instead told her that neither she nor Plaintiff were 

“ready for co-parenting”; Defendant was uncooperative with the PC’s attempts to 

ensure that Charles was receiving regular therapy; and Defendant refused the PC’s 

directive to keep a medication chart to ensure that Charles timely and consistently 

received his asthma medication. 

The findings show that Defendant’s uncooperative and hostile behavior has 

negatively affected the children: Charles did not appropriately receive his asthma 

medication when with Defendant; Defendant’s refusal to keep a medication chart to 

help ensure that Charles consistently received his medication put Charles’s health at 

risk; the children were delayed in receiving their COVID vaccinations; both children 

are in therapy; and there were difficulties scheduling Charles’s therapy. 

Furthermore, as noted in prior cases, conflict between parents affect children 

differently as they become older, involved in more activities, and are more aware of 

the conflicts:
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COLLINS, J., dissenting.

16

It is beyond obvious that a parent’s unwillingness or 

inability to communicate in a reasonable manner with the 

other parent regarding their child’s needs may adversely 

affect a child, and the trial court’s findings abundantly 

demonstrate these communication problems and the 

child’s resulting anxiety from her father’s actions. While 

father is correct that this case overall demonstrates a 

woeful refusal or inability of both parties to communicate 

with one another as reasonable adults on many occasions, 

we can find no reason to question the trial court’s finding 

that these communication problems are presently having a 

negative impact on Reagan’s welfare that constitutes a 

change of circumstances. In fact, it is foreseeable the 

communication problems are likely to affect Reagan more 

and more as she becomes older and is engaged in more 

activities which require parental cooperation and as she is 

more aware of the conflict between her parents. Therefore, 

we conclude that the binding findings of fact support the 

conclusion that there was a substantial change of 

circumstances justifying modification of custody. This 

argument is overruled.

Laprade v. Barry, 253 N.C. App. 296, 303-04, 800 S.E.2d 112, 117 (2017) (emphasis 

and citation omitted); see also Shell v. Shell, 261 N.C. App. 30, 37, 819 S.E.2d 566, 

572 (2018) (“Here, the trial court specifically noted the changes in communication 

and cooperation since the 2012 order. Although the parties had always had trouble 

communicating, Father had become even less willing to cooperate with Mother.”).

There is no support for the majority’s assertion that “the trial court’s findings 

of fact actually suggest the children were relatively insulated from the conflict” and 

it is naïve to think that the children have been or could be insulated from this conflict. 

Joint decision making and shared custody–with the children frequently going back 

and forth between parents–requires a high level of parental cooperation. Just as in 
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COLLINS, J., dissenting.

17

Laprade, “it is beyond obvious” here that the high level of conflict caused by 

Defendant has taken its toll on the children’s welfare, including directly impeding 

Plaintiff’s ability to parent and co-parent the children. Laprade, 253 N.C. App. at 

303-04, 800 S.E.2d at 117. Furthermore, just as in Laprade, it is foreseeable that the 

conflict is likely to continue to affect the children more and more as they become older. 

Id. at 304, 800 S.E.2d at 117.

The trial court also made findings of fact regarding circumstances that 

positively affected the children. Since the entry of the First Temporary Order, 

wherein Plaintiff was given primary custody of the children and Defendant given 

alternate weekend visitation, “there have been fewer custodial exchanges between 

the parties. The reduction in exchanges has helped reduce some of the conflict 

between the parties.” Furthermore, Charles “is doing so well in therapy that he can 

decrease the frequency of his appointments.” Additionally, Plaintiff has remarried, 

and her new husband has “very positive relationships with the children.” These 

findings show the “changed circumstances which [had] salutary effects” on the 

children. Pulliam, 348 N.C. at 619, 501 S.E.2d at 899.

The findings of fact are amply supported by the record evidence, including: the 

hearing testimony; court filings included in the record on appeal, including the Initial 

Consent Agreement, Permanent Custody Order, First Temporary Order, and Second 

Temporary Order; and the documentary exhibits, including numerous emails 

between the parties and between parties and the PC.
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COLLINS, J., dissenting.

18

The majority suggests that the conflict between the Defendant and the PC may 

have been a result of the PC’s “error and bias” and that Plaintiff manipulated the 

communications with the PC to Plaintiff’s advantage.11 Essentially, the majority lays 

the blame for Defendant’s conduct on Plaintiff. There is no basis in the record to 

support the majority’s position and the majority’s conjecture was soundly rejected by 

the trial court in its intermediate orders, none of which are challenged on appeal.

“[I]n custody cases, the trial court sees the parties in person and listens to all 

the witnesses.” Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499, 503 (2001) 

(citation omitted). With this perspective, the trial court is able “to observe the 

demeanor of the witnesses and determine their credibility, the weight to be given 

their testimony and the reasonable inferences to be drawn therefrom.” Yurek v. 

Shaffer, 198 N.C. App. 67, 80, 678 S.E.2d 738, 747 (2009) (citations omitted). This 

opportunity of observation “allows the trial court to detect tenors, tones and flavors 

that are lost in the bare printed record read months later by appellate judges.” 

Adams, 354 N.C. at 63, 550 S.E.2d at 503 (quotation marks and citations omitted).

11 The majority writes, “Parenting coordinators serve an important function on behalf of our 

courts, see generally N.C.G.S. § 50-92 (2021), but they are, ultimately, susceptible to human error 

and bias, especially when their station requires involving themselves in their assignees’ emotionallycharged conflicts. Such susceptibility is especially present when a disparity exists in the parents’ 

ability to manage the optics of the communications to which the parenting coordinator is exposed 

and advantageously leverage the necessary yet inorganic rules of engagement presented by courtordered custodial arrangements.”
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COLLINS, J., dissenting.

19

The record in this case includes evidence of Defendant’s disruptive 

litigiousness and the trial court’s orders consistently rejecting Defendant’s claims. 

Defendant filed a motion on 30 April 2021 to review two of the PC’s decisions. 

Defendant also filed a motion to modify or terminate the PC’s appointment. 

Defendant then filed a motion for attorney’s fees and to apportion the PC’s fees 

between the parties. At the hearing on his motions, “Defendant testified that 

approximately eight (8) parenting coordinator decisions made between January 14, 

2021 and April 13, 2021 created unnecessary confusion and conflict between the 

parties. Additionally, the decisions concerning the 2021 summer schedule created an 

unequal distribution of days between the parties . . . .” The trial court, in denying 

Defendant’s motions, found that the PC’s decisions were “based on rational and 

reasonable consideration of the children’s best interests” and “did not substantially 

alter the time-sharing arrangement set forth in the custody order,” and that the 

parties would continue to benefit from the continuing services of a parenting 

coordinator.

The PC filed a report on 24 September 2021 detailing numerous problems with 

the permanent custody order and suggesting that Defendant receive a psychological 

evaluation. In response, Defendant moved the trial court to order Plaintiff to undergo 

a psychological evaluation, alleging that “Plaintiff exhibits many behaviors that are 

to the detriment of the minor children, and Defendant’s ability to co-parent with her,” 

and that “[a]n evaluation of Plaintiff would substantially assist the Court in its 
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COLLINS, J., dissenting.

20

determination of whether Plaintiff is a fit and proper person to parent the minor 

children.”

After a hearing on 27 October 2021 on the PC’s first report, Defendant engaged 

in the following litigation, characterized as “retaliatory” by the trial court: Defendant 

filed a bar grievance against the PC; Defendant undertook extensive discovery 

requiring the PC to spend more than 10 hours producing hundreds of pages of emails, 

including all her emails with the Defendant; Defendant noticed the PC to appear and 

testify at a deposition; and Defendant threatened to file a motion for sanctions against 

the PC. Also, immediately following that hearing, Defendant unilaterally informed 

the minor children of changes in the custodial schedule prior to any order having been 

submitted, causing distress to the children. The trial court found that Defendant 

“was aggressive and threatening toward the Parent Coordinator” and “ordered 

[Defendant] to stop using hostile language and threatening the PC.”

The trial court’s First Temporary Order, issued after a hearing on the PC’s first 

report, made numerous findings regarding Defendant’s hostile and disruptive 

behavior which negatively affected the children’s physical and mental health, most of 

which were included in the Order on Appeal. 

These intermediate orders, none of which are challenged on appeal, establish 

that Defendant’s pattern of litigious, uncooperative, and hostile conduct, and 

Defendant’s refusal to cooperate with the PC, adversely affected the children’s health, 
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COLLINS, J., dissenting.

21

and that Defendant’s involvement of the children in the litigation caused distress to 

the children.

Furthermore, the findings of fact supported the trial court’s conclusions of law 

that since the entry of the last custody order there has been a substantial change in 

circumstances that adversely affects the minor children and a modification of the 

permanent custody order is warranted.

Defendant argues essentially that because this case has always been high 

conflict and because he has always been difficult, there has been no substantial 

change in circumstances. However, the findings of fact do not evidence a mere 

continuation of conflict and Defendant’s poor behavior; the findings show an increase 

in both, starting after entry of the Permanent Custody Order and continuing to 

escalate until the entry of the First Temporary Order changing the terms of the 

custody. Moreover, even if this case presented merely a sustained high level of 

conflict caused by Defendant’s continuous difficult behavior over a period of time, the 

effect of the conflict and behavior has led to a substantial change in the parenting 

coordinator’s and Plaintiff’s ability to deflect and absorb such conflict and ensure the 

health and well-being of the children. This substantial change has negatively 

affected the children.

B. Best Interests

“Upon determining that a substantial change in circumstances affecting the 

welfare of the minor child occurred, a trial court must then determine whether 
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COLLINS, J., dissenting.

22

modification would serve to promote the child’s best interests.” Shipman, 357 N.C. 

at 481, 586 S.E.2d at 257 (citation omitted). Trial courts are “vested with broad 

discretion in custody cases and will not be overturned absent an abuse of discretion.” 

Hall v. Hall, 188 N.C. App. 527, 530, 655 S.E.2d 901, 903 (2008) (citation omitted). 

As detailed above, the trial court’s findings of fact are supported by substantial 

record evidence. Moreover, the findings of fact amply support its conclusion of law 

that modification of the Permanent Custody Order would serve the children’s best 

interests.

C. Primary Decision Making

“[North Carolina] trial courts have wide latitude in distributing 

decision-making authority between the parties based on the specifics of a case.” 

Peters v. Pennington, 210 N.C. App. 1, 17, 707 S.E.2d 724, 736 (2011) (citation 

omitted). The trial court’s deviation from pure joint legal custody is reviewed on 

appeal for abuse of discretion, but “a trial court’s findings of fact must support the 

court’s exercise of this discretion.” Id.

Here, the trial court ordered as follows:

The parties shall continue to share joint legal custody. The 

parties shall in good faith confer and attempt to mutually 

agree on major decisions affecting the children’s health, 

education and welfare. In the event the parties are unable 

to reach mutual agreement on a major decision, the 

Plaintiff shall have final decision-making authority. 

Day-to-day decisions shall be made by the custodial parent.
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COLLINS, J., dissenting.

23

This decision was supported by sufficient findings of fact to show that such a 

decision was warranted, namely, Defendant’s extensive history of misconduct and 

refusal to cooperate with Plaintiff and the PC. As discussed above, the trial court 

made findings of fact detailing past conflict between the parties which illustrate 

Defendant’s hostility and refusal to cooperate and the effect Defendant’s misconduct 

had on the minor children.

Defendant has failed to show that the trial court’s decision giving final 

decision-making authority to Plaintiff on major issues involving the children was 

manifestly unsupported by reason or that it could not have been the result of a 

reasoned decision. Accordingly, I would hold that the trial court did not err.