A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in
the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
NO. COA01-59
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NORTH CAROLINA COURT OF APPEALS
Filed: 19 March 2002
LISA NELSON HOLCOMB,
Plaintiff,
v
.
Wake County
No. 99 CVD 2171
RICHARD OWEN HOLCOMB,
Defendant.
Appeal by defendant from judgment entered 4 August 2000 by
Judge Fred M. Morelock in Wake County District Court. Heard in the
Court of Appeals 5 November 2001.
Gailor & Associates, P.L.L.C., by Carole S. Gailor and
Kimberly A. Wallis, for plaintiff.
Woodruff & Associates, by Carolyn J. Woodruff, for
defendant.
BIGGS, Judge.
Defendant appeals from judgment awarding plaintiff custody of
their four minor children. For the reasons herein, we affirm the
trial court.
Richard Owen Holcomb (defendant) and Lisa Nelson Holcomb
(plaintiff) were married on 8 June 1984, and lived together as
husband and wife until 15 February 1998 when they separated. Four
children were born of this marriage and all of the children were
minors at all times relevant to this action.
While married, plaintiff, defendant and their minor childrenwere active members of the Walnut Street Church of Christ.
However, on 15 February 1998, when plaintiff learned of defendant's
affair with a former employee and fellow church member, the couple
separated and plaintiff and the children began attending a
different church in Fuqua-Varina; defendant attended a church in
Cary. Plaintiff remained in the marital residence, while defendant
rented an apartment before moving into a rental home.
Despite efforts to reconcile, defendant and plaintiff were
unable to do so. On 25 February 1999, plaintiff filed for post-
separation support, permanent alimony, custody, child support,
equitable distribution and attorney fees. On 24 March 1999, the
trial court ordered defendant and plaintiff to mediate the issues
of child custody and/or visitation; however, they were unable to
reach an agreement. On 18 May 1999, the trial court ordered the
issues of child custody and/or visitation set for trial. On 28 May
1999, defendant and plaintiff divorced. On 6, 7, 8, 9, 14 and 15
December 1999, a hearing was held on the issue of custody.
On 4 August 2000, the trial court entered judgment for
permanent custody granting primary physical custody of the minor
children to plaintiff. Defendant gave written notice of appeal on
1 September 2000.
______________
North Carolina Gen. Stat. § 50-13.2 (1999) provides in
pertinent part,
(a) An order for custody of a minor child .
. . shall award the custody of such child to
such person, . . . as will best promote the
interest and welfare of the child. . . . Inmaking the determination, the court shall
consider all relevant factors . . . and shall
make findings accordingly. An order for
custody must include findings of fact which
support the determination of what is in the
best interest of the child. Between the
mother and father, whether natural or
adoptive, no presumption shall apply as to who
will better promote the interest and welfare
of the child.
A trial judge is vested with wide discretionary power in
custody proceedings. Henderson v. Henderson, 121 N.C. App. 752,
754, 468 S.E.2d 454, 455 (1996) (citations omitted). The welfare
of the child is the paramount consideration . . . in exercising
this discretion. Dean v. Dean, 32 N.C. App. 482, 483, 232 S.E.2d
470, 472 (1977) (quoting Blackley v. Blackley, 285 N.C. 358, 362,
204 S.E.2d 678, 681 (1994)). Where there is competent evidence to
support a judge's findings of fact, conclusions of law supported by
such findings will not be disturbed on appeal. Green v. Green, 54
N.C. App. 571, 284 S.E.2d 171 (1981); see also, In re Estate of
Trogden, 330 N.C. 143, 409 S.E.2d. 897 (1991).
I.
Defendant first contends that the trial court erred in
permitting questioning and testimony concerning the religious
beliefs and practices of the parents. We disagree.
We note, at the outset, that defendant has failed to preserve
objection to the questioning and testimony concerning the religious
beliefs and practices of the parents in violation of Rule 10(b)(1)
of the North Carolina Rules of Appellate Procedure. We will,
however, exercise our discretion under Rule 2 of the North Carolina
Rules of Appellate Procedure and review the merits of thisassignment.
In awarding custody, trial courts are permitted to consider an
array of factors in order to determine what is in the best interest
of the child. Phelps v. Phelps, 337 N.C. 344, 446 S.E.2d 17
(1994). The court must select an environment which will best
promote the full development of [the child's] physical, mental,
moral and spiritual development. Dean, 32 N.C. App. at 484, 232
S.E.2d at 472 (quoting Blackley, 285 N.C. at 362, 204 S.E.2d at
681). Thus, the factors considered by the court may include the
constitutionally protected choices or activities of the parents.
Phelps, 337 N.C. at 353, 446 S.E.2d at 22. The Court in Phelps
stated that [a] parent . . . has a fundamental constitutional
right to religious freedom under the First Amendment, yet judges
may consider the spiritual welfare of a child, as evidenced by the
attendance of church or participation in religious activities, in
reaching their decision on custody. Id. at 353, 446 S.E.2d at 22;
see also, Dean, 32 N.C. App. at 483-84, 232 S.E.2d at 471-72
(spiritual welfare is a factor that may be considered by the
court).
In the case sub judice, defendant challenges the following
findings of the trial court relevant to its inquiry into religion:
. . . .
17. Following defendant's public confession,
the plaintiff found it necessary to respond to
questions raised by the older children about
the substance of the defendant's confession.
Plaintiff tried to answer the children's
questions in an age-appropriate manner
consistent with her religious beliefs and
those of the children. While the defendanthas accused the plaintiff and the members of
the church which she currently attends, the
Fuquay-Varina Church of Christ, of
participating in alienating the children by
pointing out biblical passages, quoting
scripture to the children, or praying for him
all of which the defendant perceive[d] as
condemnatory of him, the [c]ourt finds that
after the separation the defendant has
attempted to distance himself from some of the
beliefs and principles of the Church he
embraced prior to the separation. The [c]ourt
finds that neither the plaintiff, nor members
of the church she attends, by the exercise of
their religious beliefs and principles have
attempted to or in fact have alienated any of
the children from the defendant.
. . . .
32. Both parties are members of the Church of
Christ although neither party continues to
worship at the church attended by the family
prior to the separation. The mother and
children attend the Church of Christ in Fuquay
Varina. The defendant use[] to attend service
at the Church of Christ in Fuquay Varina but
did not become a member and attends elsewhere.
The parties' exercise of their religious
beliefs, while having had an impact on the
children during the marriage and after the
separation, is not a factor in the court's
determination of the appropriate custodial
arrangement. The court has no preference for
either parties' choice or manner of exercising
his or her religious beliefs. The [c]ourt
finds that there is no causal relationship
between the religious practices of either
party and any actual or probable harm to any
of the children.
This Court has held that 'a limited inquiry into the
religious practices of the parties is permissible if such practices
may adversely affect the physical or mental health or safety of the
child, and if the inquiry is limited to the impact such practices
have upon the child.' In re Huff, 140 N.C. App. 288, 295, 536
S.E.2d 838, 843 (2000) (quoting Petersen v. Rogers, 111 N.C. App.712, 719, 433 S.E.2d 770, 775, rev'd on other grounds, 337 N.C.
397, 445 S.E.2d 901 (1994)), disc. review denied, 353 N.C. 374, 547
S.E.2d 9 (2001).
We conclude that the trial court's inquiry into defendant's
religion in the case sub judice, was not so extreme as to abridge
his religious freedom and was tailored to assess its impact on the
children's spiritual welfare.
Moreover, there is substantial evidence unrelated to the
religion of the parents to support the trial court's conclusion
that the best interests of the minor children require that
plaintiff be awarded the primary care and custody of them. Thus,
if there was error, we deem it harmless.
Accordingly, this assignment of error is overruled.
II.
Defendant next contends that the trial court committed
reversible error by purporting to grant both joint custody and sole
custody in the same order. We disagree.
North Carolina Gen. Stat. § 50-13.2(b) provides, in pertinent
part:
(b) An order for custody of a minor child may
grant joint custody to the parents, exclusive
custody to one person, . . ., or grant custody
to two or more persons, . . . . Any order for
custody shall include such terms, including
visitation, as will best promote the interest
and welfare of the child. . . . Absent an
order of the court to the contrary, each
parent shall have equal access to the records
of the minor child involving the health,
education, and welfare of the child.
In the case sub judice, the trial court ordered the following: 1. The plaintiff and defendant shall share
joint legal custody of the minor children . .
. .
2. The plaintiff shall have primary physical
custody of the minor children, who will have
their residence with her subject to
defendant's visitation. . . .
In addition, the trial court specifically provided in
paragraph 18 of its decree that while [e]ach party will have day
to day decision[] making authority with regard to routine matters
when the children are with the respective party, where the parties
are unable to agree on education, medical, dental, school
activities, sports and counseling, plaintiff will have the right
to make the final decision.
We find this order to be clear, unambiguous and consistent
with the court's findings. Further, we conclude that defendant's
reliance on Patterson v. Taylor, 140 N.C. App. 91, 95, 535 S.E.2d
374, 377 (2000), is misplaced. The Court in Patterson stated, that
because the issue before us arises out of a voluntary separation
agreement, our holding is limited to the interpretation of the term
[joint legal custody] in such an agreement. Here, no such
agreement is at issue.
Therefore, defendant's assignment of error is overruled.
III.
In defendant's next assignment of error he argues that the
trial court's findings of fact are not supported by competent
evidence, that the conclusions of law are not supported by the
findings and that the order is not supported by the court's
conclusions. We find no merit to this argument. The trial court made 42 specific Findings of Fact. Upon our
review of the record, we conclude that there is evidence in the
record to support the trial court's findings. Moreover, we are
bound by these findings even if there is evidence in the record to
support a contrary finding.
Adams v. Tessener, 354 N.C. 57, 550
S.E.2d 499 (2001). In addition, we hold that these findings form
a valid basis for the court's conclusions of law and its judgment.
Great deference must be given to the trial court to determine
which parent is in the best position to promote the best interest
of the children.
See generally, Elrod v. Elrod, 125 N.C. App. 407,
481 S.E.2d 108 (1997);
see N.C.G.S. § 50-32.2 (1999)
. We will not
upset the court's order absent an abuse of discretion which we hold
has not occurred in this case.
Accordingly, defendant's assignment is overruled and we affirm
the trial court.
Affirmed.
Chief Judge EAGLES and Judge MARTIN concur.
Report per Rule 30(e).
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