IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-909

Filed 7 November 2023

Halifax County, No. 18CVD180

HUNTER LEE SMITH (Now known as HUNTER SMITH WILLETTE), Plaintiff,

v.

REID ALAN DRESSLER, Defendant.

Appeal by defendant from judgment entered 20 January 2022 by Judge Teresa

R. Freeman in Halifax County District Court. Heard in the Court of Appeals 9 August 

2023.

Tharrington Smith, LLP, by Jeffrey R. Russell, for the plaintiff-appellee.

Wyrick, Robbins, Yates & Ponton, LLP, Charles W. Clanton, K. Edward Greene, 

and Jessica B. Heffner, for the defendant-appellant.

TYSON, Judge.

Reid Alan Dressler (“Father”) appeals an order modifying child custody entered 

on 20 January 2022, which granted Hunter Lee Smith (“Mother”) primary legal 

custody of Mother’s and Father’s minor child. We vacate the trial judge’s order and 

remand for entry of an order concluding a substantial change in circumstances was 

not shown.

I. Background

Mother and Father are the parents of minor child, W.D., born on 14 September 
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2017. See N.C. R. App. P. 42(b) (pseudonyms and initials used to protect the identity 

of minors). Mother and Father began a romantic relationship in August 2016, while 

both were undergraduate students at North Carolina State University, which 

resulted in W.D. being conceived. After W.D.’s birth, Mother’s and Father’s 

relationship deteriorated and ultimately ended. 

Mother filed a complaint for Child Custody and Child Support on 2 March 

2018. At that time, Mother was residing in her parents’ home in Halifax County. 

After a hearing was held in April, the trial court awarded temporary primary custody 

to Mother on 24 May 2018. Three hearings were held to modify the Order for 

Temporary Custody and Child Support between July 2018 and June 2019, but the 

order was only changed to grant Father additional visitation. The Honorable W. 

Turner Stephenson, III, (“Judge Stephenson”) presided over the trial and hearings.

Mother informed Father on 20 October 2019 that she had joined the United 

States Air Force and would be leaving for basic training in Texas in approximately 

one week.

On 1 November 2019, Father filed a Motion for Temporary Custody and to 

Present New Evidence. Father asserted Mother “misled” Father regarding her 

current employment and pretended she was still employed at Braswell Family 

Farms. He also included information about Mother’s failure to inform Father she had 

enlisted in the military until approximately one week prior to departing from the 

state.
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Mother filed a motion to stay the proceedings on 18 November 2019 pursuant 

to section 3932 of the Servicemember Civil Relief Act. See 50 U.S.C. § 3932. The trial 

court postponed the hearing because “it did not have jurisdictional authority to 

proceed as [Mother] was in basic training and thus was an active-duty member of the 

United States Air Force.” The trial court re-scheduled a hearing for 16 March 2020, 

but the hearing did not occur due to COVID-19 protocols.

The trial court granted the motion to reopen the evidence and heard testimony 

from both parties on 15 June 2020. The trial court orally granted Father primary 

custody of W.D. and visitation with Mother when she exercised military leave. The 

order, however, was not written, signed, and entered until over six months later on

22 January 2021 (“First Custody Order”).

Mother was stationed at McGuire Air Force Base in New Jersey when the 

evidentiary hearing was held on 15 June 2020. Shortly after the hearing, Mother 

married Dylan Willette (“Stepfather”) on 18 September 2020, who also served in the 

Air Force. Sometime in late July or August 2020, Mother and Stepfather conceived 

a child, who was due in May of 2021. Mother and Stepfather returned to North 

Carolina and held a wedding ceremony with Mother’s family and W.D. on 10 October 

2020.

When Mother returned to duty in New Jersey at the end of October, Mother’s 

superior informed her she was eligible for discharge due to her pregnancy. On 30 

October 2020, Mother’s honorable discharge from the military was approved. 
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Mother’s official date of separation was listed as 20 December 2020, as Mother had 

accumulated twenty-five days of leave. Mother used her twenty-five days towards 

her “terminal leave” and permanently moved back to North Carolina on 25 November 

2020.

When the evidentiary hearing was held on 15 June 2020, Father lived in 

Hampstead, in Pender County, but he presented evidence indicating he had 

purchased land in Burgaw and planned to build a house. In fall 2020, Father and 

W.D. often stayed in Clayton with Father’s parents while his house was being built. 

When Father and W.D. were not staying with Father’s parents, they lived in a twobedroom guest house owned by Father’s paternal aunt and uncle. Father’s home in 

Burgaw was completed in July 2021. From July 2021 until January 2022, Father 

and W.D. lived Burgaw, where W.D. attended pre-kindergarten classes.

Mother’s and Father’s counsels communicated with each other and the trial 

court, and they entered several motions between the evidentiary hearing held on 15 

June 2020 and the entry of the order issued on 22 January 2021. After the hearing, 

“counsel for [each of] the parties had agreed that each would write the trial judge in 

support of their contentions” and to propose orders based upon Judge Stephenson’s 

oral rendition of the order at trial.

Father’s trial counsel sent the proposed custody order on 25 September 2020

to: Judge Stephenson, Mother’s counsel, and the trial court administrator. The 

proposed order was in a “redline format showing the differences remaining between 
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counsel as to the language of the order.”

Father’s proposed custody order contained the following language:

2. [Father] is granted primary physical custody of the 

aforesaid minor child.

3. [Mother] shall have visitation with the aforesaid minor 

child away from the residence of [Father] as follows:

a. She may have a two-week visit with the child 

from Saturday, July 18, 2020[,] until August 1, 2020. 

The child will be flown to the nearest safe airport 

near the residence of [Mother] by [Father] and the 

child will be returned by [Father] to RaleighDurham Airport to the custody of [Father] at the 

conclusion of said visitation. Said visitation will 

begin at the time a morning flight can be arranged 

to Philadelphia or whatever major airport is closest 

to Joint Base McGuire and is deemed the safest for 

transportation of a child. The flight shall leave from 

Raleigh-Durham Airport. The parties will equally 

split the cost of the child’s airline tickets and will 

each be responsible for the cost of their own tickets.

b. In addition to the two[-]week visitation period 

granted to [Mother] above for the remainder of this 

year and in years to come [Mother] is granted 

visitation with her child whenever she is on “Military 

Leave” or at other times when has [sic] the ability to 

return to North Carolina while still serving in the 

United States Military. When the [Mother] is on 

leave, she should give [Father] as much notice as 

reasonably possible but in no event less than fortyeight hours’ notice of her intent to exercise visitation 

with her child in the State of North Carolina. 

[Father] is to be given priority for all holiday periods 

of Thanksgiving, Easter, Fourth of July, and Labor 

Day if [Mother] can arrange leave for those periods. 

As to the Christmas holiday, [Father] shall have the 

child with him every Christmas Eve from 6:00 
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o’clock P.M. until 12:00 noon on Christmas Day. 

Other than this part of the Christmas holiday, 

[Mother] may have the child with her during this 

holiday period whenever she can arrange leave.

. . .

g. As long as [Mother] gives the required 48 

hours’ notice of her intent to exercise military leave 

visitation with her son this visitation will be 

preemptive, and she shall be entitled to said 

vacation unless the child is ill except for Christmas 

Eve and Christmas Day as set forth above.

When [Mother] exercises the military leave 

visitation or at any other times when she can return 

to North Carolina for visitation with the minor child 

while still serving in the United States Military 

Service, she shall inform [Father] where she will be 

staying with the minor child and provide an 

emergency address for contact.

In exercising military leave or at any other 

times when she can return to North Carolina for 

visitation with the minor child while still serving in 

the United States Military Service, [Mother] is free 

to choose the time she may come but she may not 

visit more than every other weekend unless it is in 

connection with Labor Day, Fourth of July, Easter, 

Thanksgiving or Christmas and New Year’s 

vacation which are special times and are set forth 

above.

(emphasis supplied).

While Father’s proposed order was pending before the court, Mother filed a 

purported Rule 59 Motion on 20 November 2020. Mother sought temporary custody

of W.D. and to present new evidence, because the trial judge had not entered the 

proposed custody order sent to him on 25 September 2020. Mother’s new evidence 
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included the following allegations: Mother had married Stepfather in September 2020 

and was expecting a child in May 2021; Mother was being honorably discharged from 

the Air Force at the end of 2020; Mother owned a home in Wilson County and planned

to move into the home on 25 November 2020; and, Mother had contacted her former

employer, Pfizer, to discuss gaining re-employment in Rocky Mount.

On 7 December 2020, Father filed a motion for entry of the proposed custody 

order orally announced after the hearing on 15 June 2020. Father attached a revised 

copy of the proposed custody order, which was nearly identical to the version sent to 

the trial court on 25 September 2020, except Father deleted the redlined comments 

and renumbered certain facts and conclusions that were nonsequential in the 

previous draft. Father also attached a notice of hearing for 21 December 2020. 

Father’s motion also provided the following assertions:

11. Again, as she has frequently done in this case, [Mother]

lied to [Father] as on November 16, 2020, [Mother] verified 

a motion to introduce “allegedly” newly discovered evidence 

in this case and seeking a new custody order granting 

custody of the aforesaid minor child to [Mother]. She did 

not discuss or tell [Father] that she had sworn to said 

motion on November 16, 2020 or that the same had been 

filed on November 20, 2020 by her attorney. [Father] did 

not find out about the motion until the undersigned 

attorney returned from his Thanksgiving vacation and 

notified [Father] of the existence and filing of said motion 

on November 30, 2020.

12. Moreover, unlike she stated she would do, [Mother] did 

not and has not returned the minor child to the custody of 

the [Father] and for a period of three days would not even 

tell [Father] where his son was, how his son was doing 
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physically or mentally, or when she was leaving for North 

Carolina. Indeed, during this period between Wednesday, 

November 25, 2020, ·and Friday, November 27, 2020, 

[Mother] would not respond to any attempted 

communication from [Father]. Then from Saturday, 

November 28, 2020, until Monday, November 30, 2020, 

[Mother] would not respond to any communication 

attempted by [Father].

13. On November 30, 2020, [Mother] advised the [Father] 

in writing that she had been “legally advised to ignore you 

{sic [Father]} as long as possible.”

14. When the [Father] pointed out the exact wording of the 

proposed Judgment herein and pointed out the 

pronouncement of Judge Stephenson, [Mother] replied in 

text that “that was never filed or signed by a Judge and it 

is not an order. I am not going to argue with you over texts. 

I would be more than happy to go over a new schedule for 

both of us to spend time with [W.D.]. For now, I am going 

to enjoy my time with him. Please let me know when you 

would like to discuss this schedule.”

No order was entered regarding whether Mother’s motion for temporary 

custody and to present new evidence was granted or denied. The record also does not 

indicate whether the scheduled hearing on Father’s motion for entry of the First 

Custody Order was held. The trial court, however, entered the First Custody Order

granting primary custody to Father and visitation to Mother on 22 January 2021.

While the findings of facts and conclusions of law contained in the twenty-two 

pages of the First Custody Order are identical to the draft order sent to the trial court 

on 25 September 2020, the trial court significantly modified the visitation orally 

announced at trial on 15 June 2020 and explained: “The Court with the consent of 
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the parties having determined that the visitation originally announced in open court 

on June 15, 2020[,] is no longer in the best interest of the child, determines that 

[Mother] shall have visitation with the aforesaid minor child away from the residence 

of [Father.]” On appeal, both Mother and Father assert the changes to the visitation 

rendered on 15 June 2020 were not literally consented to.

The trial court’s First Custody Order entered on 22 January 2021 included the 

following language, which was never consented to by the parties, orally announced at 

trial, or included in the proposed draft order sent to the trial court on 25 September 

2020 or in Father’s Motion for Entry of Order:

3b. [Mother] shall have additional visitation privileges 

with the aforesaid minor child away from the residence of 

[Father] as follows:

1. Every other weekend during the public school 

system year of the child as hereinafter defined from 

Friday beginning a[t] 7:00 P.M. until the following 

Sunday at 7:00 P.M. Said visitation is to begin on 

Friday the 5th day of February 2021 and every other 

weekend thereafter;[ ]however if [Mother’s] work 

schedule is such she has to work on said weekend, 

then her every other weekend visitation will begin 

on Friday February 12th 2020 at 7:00 P.M. until the 

following Sunday and every other weekend 

thereafter.

2. During the Christmas season of each even 

numbered year from 2:00 P.M. on Christmas Day 

until 6:00 P.M. on the day before the public school 

system of the county wherein[ ]the minor child 

resides (hereinafter the school system) resumes 

after Christmas vacation and during the Christmas 

season of each odd numbered year from 6:00 P.M. on 
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the day that the school system adjourns for the 

Christmas holiday until 2:00 PM on Christmas Day.

[Father] shall have the custody of the child 

during the Christmas season of each odd numbered 

year from 2:00 P.M. on Christmas Day until 6:00 

P.M. on the day before the school system resumes 

after Christmas vacation and during the Christmas 

season of each even numbered years from 6:00 P.M. 

on the day the school system adjourns for the 

Christmas holiday until 2:00 P.M. on Christmas 

Day.

The intention of this Order is that the parties 

should alternate their respective halves of the 

Christmas holiday.

3. During the Thanksgiving holiday for each odd 

numbered year from 6:00 P.M. on the day school 

recess[es] for the school holiday until 6:00 P.M. on 

the day before school resumes at the expiration of 

the holiday.

[Father] shall have the minor child with him 

during the Thanksgiving holiday of each even 

numbered year.

4. During the spring break holiday of each even 

numbered year from 6:00 P.M. on the day school 

recesses for the holiday until 6:00 P.M. on the day 

before school resumes at the expiration of the 

holiday.

[Father] will have the child with him during 

the spring break holiday of each odd numbered year.

5. [Mother] shall always have Mother’s Day 

Weekend and [Father] shall always have Father’s 

Day Weekend regardless of the every other weekend 

schedule.

6. During the summer vacation of the child from 

the county school system, the parties will alternate 

weeks with the child’s summer vacation beginning 

on the last Friday after school adjourns for the 
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summer at 6:00 P.M. and continuing to the following 

Friday until 6:00 P.M.

During odd numbered years, [Mother] will 

have the first week and [Father] will have the next 

week[,] and they will then alternate weeks until the 

last Friday before school resumes from summer 

break at 6:00 P.M. at which time the weekend 

visitation will resume. Although the summer 

vacation[,] as does the other holiday visitation 

periods[,] controls weekend visitation, the parties 

will not change the count or progression of weekend 

visitation so it will remain constant and known to 

the child even though not exercised during summer 

holiday visitations. Thus, the parties shall simply 

refer to a calendar and know when to resume the 

weekend visitation at the conclusion of the summer 

vacation. Summer vacation will be deemed to end 

on the last Friday on the summer vacation period 

before the School System resumes.

During even numbered years, [Father] shall 

have the first week and [Mother] shall have the next 

week and they shall then alternate weeks until the 

last Friday before school resumes from summer 

break at 6:00 P.M. at which time the weekend 

visitation will resume.

7. If the parties elect not to have a joint birthday 

party for the minor child during odd numbered years 

when the child’s birthday is during a weekday[,] the 

child will celebrate his birthday with [Mother] and 

during even numbered years with [Father] from the

time school is out until 8:00 P.M. During the years 

when the child’s birthday does not fall on a weekend, 

the parent not with the child may celebrate the 

child’s birthday the day before from the time school 

is out until 8:00 P.M.

If the child’s birthday falls on a weekend, then 

the child shall be with the parent whose weekend it 

is and the other parent may have the child to 

celebrate his birthday from 12:00 P.M. to 8:00 P.M. 

on the child’s birthday during that weekend.
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. . . 

9. The provisions for Christmas, Thanksgiving, 

Spring Break, Mother’s Day, Father’s Day, 

birthdays, and summer override the weekend 

visitation privileges granted herein. When there is 

a conflict of either party’s visitation i.e., Christmas, 

Thanksgiving, Spring Break, Mother’s Day, Father’s 

Day, birthdays, or summer with weekend visits, 

then the weekend visitations will not occur, will not 

be made up[,] and will be subordinated to and not 

occur during these other special periods.

4. The party having the child with him or her will allow 

the child to have telephone, FaceTime, Skype, Zoom, or 

other communication, if available, with the other parent 

one time per day between 5:00 P.M. and 6:00 P.M. The 

parties shall exchange phone numbers to facilitate the 

ability of the parties to contact the child by phone, 

FaceTime, or Skype.

5. When either party has the aforesaid child in his or 

her physical custody and either party plans to be away 

from home with the child for a period of more than 48 

hours, then he or she will provide all travel arrangement 

information including the times of travel and the places to 

which travel is being made to the other party.

6. If the child has scheduled academic, athletic, or 

other events[,] the parent having physical custody will 

make sure that the child attends these activities.

7. Each party will make certain that any prescribed 

medication for the minor child accompanies the child when 

the child goes to visit [Mother] and the same is returned 

with the child to [Father].

8. The parties shall meet and exchange the child on the 

occasion of each visitation at 1103 North Breazeale Ave, 

Mount Olive NC 28365. Either party may use a family 
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member related by blood or marriage to provide 

transportation for the child.

9. Each party will notify the other party of any 

emergency concerning the child as soon as reasonably 

possible.

10. If the child is ill, [Father] will let [Mother] know and 

if this illness impedes a regular weekend visitation[,] then 

said visitation may be made up the next weekend even if 

this results in two (2) weekends in a row for [Mother].

11. If [Mother] has an emergency arise or should some 

other events arise which means that she cannot exercise 

her visitation with the minor child, she must let [Father] 

know this as soon as reasonably possible.

Notably, all references to W.D.’s visitation with Mother being related to her serving 

in the military or while she was exercising “military leave” were removed from the 

trial court’s entered First Custody Order.

W.D. injured his right leg while jumping on a trampoline at Father’s parents’ 

home on Christmas Day in December 2020. Father notified Mother about the injury.

Mother took W.D. to an orthopedist on 26 December 2020, who diagnosed W.D. with 

a probable fracture in his tibia. Mother reported W.D.’s injuries to Child Protective 

Services (“CPS”). 

CPS notified Father they had commenced an investigation concerning W.D.’s

leg injury in January 2021, along with five other alleged instances of cuts, scrapes, 

bruises, and a possible tooth injury. An independent medical examination prompted 

by CPS initially noted evidence of potential neglect and abuse. Upon further review, 
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however, the same medical examiner “altered the diagnosis to state that significant 

child neglect cannot be made in this case.”

Mother filed a motion on 25 February 2021 to modify the First Custody Order, 

alleging a substantial change in circumstances had occurred. W.D. was three years 

old when Mother filed the motion. Hearings were held on 29 and 30 June 2021, 5 

August 2021, 14 September 2021, and 19 October 2021. At those hearings, Mother 

produced evidence tending to show several circumstances had changed since the 15 

June 2020 hearing. 

The alleged changed circumstances largely mirrored the assertions Mother 

had included in the purported Rule 59 Motion filed on 20 November 2020, i.e., Mother 

had married another man, was expecting another child, was medically discharged 

from the military, and was moving from New Jersey back to North Carolina. The 24 

February 2021 motion also included allegations W.D. had sustained injuries while in 

Father’s care and allegations Father had deliberately concealed certain cold 

symptoms before testing positive for COVID-19.

On 20 January 2022, the court found a substantial change in circumstances 

had occurred. The court modified the existing child First Custody Order, granted 

primary custody to Mother, and awarded visitation to Father. Father appeals from 

the trial court’s order (“Second Custody Order”) filed on 20 January 2022.

II. Jurisdiction

Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(2) (2021). 
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III. Modification of an Existing Custody Order

Father asserts the trial court erred by finding a substantial change in 

circumstances had occurred to support a modification of custody and erred in 

awarding primary custody to Mother. Father argues the trial court improperly 

considered evidence of events, which had occurred prior to and were accounted for in

the First Custody Order entered on 22 January 2021. Father further argues the trial 

court’s findings were insufficient to support its conclusions of law.

A. Standard of Review

“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.” Shipman v. Shipman, 357 N.C. 471, 474, 586 S.E.2d 250, 253 

(2003) (citation omitted).

A trial court may not modify a permanent child custody order unless it finds a 

substantial change in circumstances has occurred and exists, which affects the 

welfare of the child. Simmons v. Arriola, 160 N.C. App. 671, 674, 586 S.E.2d 809, 811 

(2003). Whether a substantial change in circumstances exists for the purpose of 

modifying a permanent child custody order is a legal conclusion. Spoon v. Spoon, 233 

N.C. App. 38, 43, 755 S.E.2d 66, 70 (2014). “Conclusions of law are reviewed de novo

and are subject to full review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 

(2011) (citations omitted).
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Wide discretion is vested in the trial judge when awarding primary custody of 

a minor child. Shamel v. Shamel, 16 N.C. App. 65, 66, 190 S.E.2d 856, 857 (1972). 

“It is well established that where matters are left to the discretion of the trial court, 

appellate review is limited to a determination of whether there was a clear abuse of 

discretion.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). “A trial 

court may be reversed for abuse of discretion only upon a showing that its actions are 

manifestly unsupported by reason[,]” or has misapprehended and committed an error 

of law. Id.

B. Analysis

1. Previously Disclosed Circumstances

A substantial change of circumstances is required to be shown by the movant

before the trial court may modify a permanent custody order. This burden of proof is 

required to prevent dissatisfied parties from relitigating a permanent custody order 

in another court in hopes of reaching a different conclusion. Newsome v. Newsome, 

42 N.C. App. 416, 425, 256 S.E.2d 849, 854 (1979) (“The rule prevents the dissatisfied 

party from presenting those circumstances to another court in the hopes that 

different conclusions will be drawn.”). “A trial court may order the modification of an 

existing child custody order if [the movant proves and] the court determines that 

there has been a substantial change of circumstances affecting the child’s welfare and 

that modification is in the child’s best interests.” Spoon, 233 N.C. App. at 41, 755 

S.E.2d at 69 (citation omitted); N.C. Gen. Stat. § 50-13.7 (2021). “[W]hen evaluating 
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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.” Woodring v. Woodring, 227 N.C. App. 638, 

645, 745 S.E.2d 13, 20 (2013) (emphasis supplied) (citation and internal quotation 

marks omitted).

Our threshold inquiry is whether the events that occurred between 15 June 

2020, the day the evidentiary hearing was held and rendition of the order, and 22 

January 2021, the day the First Custody Order was entered, were previously 

disclosed to and considered by the trial court. Id. at 645-46, 745 S.E.2d at 20. Father 

argues a significant portion of the assertions and evidence Mother included only one

month later in her 24 February 2021 motion to modify the First Custody Order was

previously disclosed, considered and addressed by the trial court, and the same 

evidence cannot be used to support a finding that a substantial change had occurred.

The First Custody Order entered in January 2021 contains findings that were 

disclosed to the trial court before entry of the First Custody Order. Mother’s Rule 59 

motion to present new evidence, filed 20 November 2020, asserted Mother: had been 

recently married, was expecting a child, was honorably discharged from the Air Force, 

planned to return to North Carolina, owned a home in Wilson, and hoped to gain reemployment with Pfizer. 

Mother also expressed her dissatisfaction with Father’s compliance with 

Mother’s preferred visitation schedule between W.D. and her parents, W.D.’s 
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maternal grandparents.

In the Second Custody Order entered in January 2022, the trial court relied 

upon assertions contained in Mother’s 20 November 2020 Rule 59 motion to support 

its finding that a substantial change had occurred. The trial court found Mother 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.

The trial court also cited Mother’s dissatisfaction with Father’s decision to 

refrain from scheduling visitation with certain members of Mother’s family. Before 

Mother returned to North Carolina, she asserted Father would bring W.D. to his 

maternal grandfather’s house, but not to his maternal grandmother’s house or his 

maternal aunt’s house. Notably, Mother’s desire for W.D. to spend time separately 

with both of her parents and her maternal aunt was not contained in the First

Custody Order, but instead was a self-asserted expectation.

This court has held that when evaluating whether a substantial change in 

circumstances has occurred, a trial court “may only consider events which occurred 

after the entry of the previous order, unless the events were previously undisclosed to 

the court.” Id. at 645, 745 S.E. 2d at 20 (emphasis supplied) (citation omitted).

Here, the trial court erred when it considered and re-evaluated events which 

were disclosed to and considered by the trial court prior to the entry of the First

Custody Order. Id.; Lang v. Lang, 197 N.C. App. 746, 750, 678 S.E.2d 395, 398 (2009) 
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(explaining a trial court properly considered only those events which occurred after 

the entry of the prior custody order when concluding whether a change of 

circumstances had occurred); Ford v. Wright, 170 N.C. App. 89, 96, 611 S.E.2d 456, 

461 (2005) (“As the trial court had already considered the parties’ past domestic 

troubles and communication difficulties in the prior order, without findings of 

additional changes in circumstances or conditions, modification of the prior custody 

order was in error.”). 

Any evidence contained in Mother’s Rule 59 motion was previously disclosed

to and addressed by the trial court, as is demonstrated by the record before us and in 

the First Custody Order itself. That order provides the trial judge considered 

evidence and the numerous changes in Mother’s status, which had occurred after the 

15 June 2020 hearing. 

Further, the First Custody Order reveals the trial court clearly considered 

Mother’s discharge from the military and relocation to North Carolina, because the 

trial court: completely removed all references to Mother visiting with the child while

serving in the military or while on “military leave”; included an exact address for 

Mother and Father to exchange W.D.; and provided an extensive, alternating summer 

break and holiday schedule. 

When comparing the proposed custody order submitted to the trial court on 25 

September 2020, which reflected the oral decretal on 15 June 2020, to the First 

Custody Order entered on 22 January 2021, the changes are striking and evident the 
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trial judge considered and addressed Mother’s marriage, pregnancy, discharge from 

the military, and relocation to North Carolina. 

The trial court had already considered Mother’s changes in her circumstances 

through the end of 2020 and could not use these factors again as a basis to support a 

finding and conclusion a substantial change in circumstances had occurred in its 

entry of the Second Custody Order. Id.

2. Substantial Change in Circumstances

Father further argues the remaining evidence before the trial court did not 

support a substantial change in circumstances to justify modification of the First 

Custody Order. The only assertions the trial court had not previously considered to 

trigger a change in the First Custody Order were the injuries W.D. had sustained and 

the way Father had handled his COVID-19 infection in April 2021.

The trial court noted injuries W.D. had purportedly received over the two 

years while in Father’s custody to constitute a substantial change:

• W.D. fell, scraped his side, and had minor bruising on his leg.

• W.D. fractured his tibia while jumping on the trampoline with his

paternal uncle on Christmas Day.

• W.D. slipped on a rug while running in the bathroom, hit his face on the 

toilet or wall, and injured his tooth.

• W.D. fell outside on a concrete patio, which caused a bloody nose and

scabbing and bruising on his knees, legs, and bottom.
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• W.D. scratched his leg when jumping into a pool.

• W.D. bumped heads with another child in the pool, injuring his nose.

Expert evidence was entered at trial to address whether W.D. was either

neglected or abused. Father testified W.D. was a “wide open four[-]year[-]old little 

boy who[ ] climbs, jumps[,] and falls” and any injuries were the result of “normal wear 

and tear.” W.D.’s pediatrician testified he noticed various cuts and bruises on W.D.

since June 2020, but they were “not abnormal and didn’t cause [him] any concern.”

W.D.’s pre-kindergarten teacher was questioned about a black eye W.D. 

allegedly presented with at school, but she could not recall whether W.D. had ever 

sustained a black eye. W.D.’s daycare teacher similarly testified she never observed 

anything concerning regarding W.D.’s health, and volunteered she is a “mandatory 

reporter.” CPS also found no evidence of abuse after investigating Father at Mother’s 

behest.

The trial court also found Father had a runny nose and mild headache before 

W.D.’s weekend visitation with Mother ended on 4 April 2021 and had failed to inform 

Mother. Father subsequently tested positive for COVID-19. Father did not disclose 

he had tested positive until the day before Mother’s next weekend visit, which began 

on 16 April 2021. Father testified he did not inform Mother about his positive test 

earlier, because he was “out of quarantine” by the time he met with Mother to 

exchange W.D. He was not in W.D.’s presence until he had passed his isolation 

period.
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A “determination of whether changed circumstances exist is a conclusion of 

law.” Head v. Mosier, 197 N.C. App. 328, 334, 677 S.E.2d 191, 196 (2009) (citing 

Brooker v. Brooker, 133 N.C. App. 285, 289, 515 S.E.2d 234, 237 (1999)). “[C]ourts 

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.” Metz v. Metz, 138 N.C. App. 538, 540, 530 S.E.2d 79, 81 (2000). 

Even where a substantial change of circumstances is shown, the court must 

still consider whether the change affected the welfare of the child and if a change in 

custody is in the child’s best interest. Shipman, 357 N.C. at 474, 586 S.E.2d at 253.

Mother relies on Shipman and argues the trial court’s findings should be 

upheld, even if they do not “present a level of desired specificity,” because the effects 

of the changes on the welfare of W.D. are self-evident and supported by some 

evidence. Id. at 479, 586 S.E.2d at 256. 

She also asserts the combination of W.D.’s purported injuries, Father’s 

handling of his COVID-19 infection, and her change in familial status and relocation 

to North Carolina collectively affected W.D.’s welfare, which is “self-evident.” Id.

Father argues evidence of Mother’s re-marriage and newborn child, even if 

these facts were undisclosed or not considered before entry of the First Custody 

Order, does not constitute a substantial change. Father cites Hassell v. Means, 42 

N.C. App. 524, 531, 257 S.E.2d 123, 127 (1979) (“Remarriage in and of itself is not a 
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sufficient change of circumstance to justify modification of a child custody order.”

(citation omitted)) and Kelly v. Kelly, 77 N.C. App. 632, 636, 335 S.E.2d 780, 783

(1985) (explaining the birth of new child does not constitute a substantial change).

The evidence previously disclosed and addressed in the prior order, and which

the trial court relied upon, does not support a conclusion that a substantial change 

occurred. See Shipman, 357 N.C. at 478, 586 S.E.2d at 255. (“As our appellate case 

law has previously indicated, before a child custody order may be modified, the 

evidence must demonstrate a connection between the substantial change in 

circumstances and the welfare of the child, and flowing from that prerequisite is the 

requirement that the trial court make findings of fact regarding that connection.” 

(citing Carlton v. Carlton, 145 N.C. App. 252, 262, 549 S.E.2d 916, 923 (Tyson, J., 

dissenting), rev’d per curiam per dissent, 354 N.C. 561, 557 S.E.2d 529 (2001), cert. 

denied, 536 U.S. 944, 153 L.Ed.2d 811 (2002)).

The evidence failed to establish W.D. was abused or neglected while in Father’s 

care. Father enrolled W.D. in a private day care and pre-kindergarten programs, and 

Father adequately provided and cared for W.D. as his primary caretaker for several 

years. His pediatrician and both of W.D.’s teachers testified. Similarly, this Court 

has never held the failure to inform another parent of a potential viral infection 

constituted a substantial change, and more particularly of contacts outside of any 

quarantine period.

A trial court may not modify an existing custody order unless a substantial 
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change in circumstances has occurred and been proven by the movant. Spoon, 233 

N.C. App. at 41, 755 S.E.2d at 69. The trial court’s conclusion that a substantial 

change in circumstances had occurred is unsupported and is vacated. This erroneous 

conclusion was the basis for the trial court to amend the First Custody Order and to 

enter the Second Custody Order in 2022. We need not address Father’s remaining 

argument that the trial court abused its discretion by granting Mother primary legal 

custody of W.D., as this argument is moot.

IV. Conclusion

The trial court improperly considered previously disclosed, considered, and 

addressed events when issuing the Second Custody Order in January 2022. 

Woodring, 227 N.C. App. at 646, 745 S.E.2d at 20; Lang, 197 N.C. App. at 750, 678 

S.E.2d at 398; Ford, 170 N.C. App. at 96, 611 S.E.2d at 461. Without the previously 

considered evidence, the trial court’s findings were inadequate to support a

conclusion that a substantial change in circumstances had occurred. Shipman, 357 

N.C. at 478, 586 S.E.2d at 255; Spoon, 233 N.C. App. at 41, 755 S.E.2d at 69. 

We vacate the trial court’s conclusion that a substantial change in 

circumstances had occurred and the award of primary custody of W.D. to Mother. We

remand for further findings and conclusions in accordance with this opinion.

The parties are free to pursue custody mediation pursuant to N.C. Gen. Stat.

§ 7A-494 (2021) or the need for appointment of a parenting coordinator pursuant to 

N.C. Gen. Stat. § 50-90 to 100 (2021) to decrease potential conflicts, recalcitrant
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conduct, and further litigation. It is so ordered.

VACATED AND REMANDED.

Judge CARPENTER and Judge FLOOD concur.