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. COA01-584
NORTH CAROLINA COURT OF APPEALS
Filed: 21 May 2002
SHERRI MOORE BROOKS,
Plaintiff,
v
.
Mecklenburg County
No. 99-CVD-4389 (ELL)
KELVIN RAYNARD BROOKS,
Defendant.
Appeal by plaintiff from order entered 3 January 2001 by Judge
Eric L. Levinson in Mecklenburg County District Court. Heard in
the Court of Appeals 18 February 2002.
A. Marshall Basinger, II, for plaintiff.
Tamela T. Wallace, for plaintiff.
Casstevens, Hanner & Gunter, by Dorian H. Gunter, for
defendant.
BIGGS, Judge.
Kelvin Raynard Brooks (defendant) and Sherri Moore Brooks
(plaintiff) were married on 18 April 1992. They lived together as
husband and wife until 30 January 1999, when they separated. One
child was born of this marriage on 29 July 1995.
Following their separation, on 19 March 1999, plaintiff filed
an action seeking child support, child custody, alimony and
equitable distribution. On 30 April 1999, the parties signed a
consent order giving plaintiff temporary custody of the minor child
and child support, and granting defendant visitation rights. On 21
May 1999, defendant filed an answer in which he counterclaimed for
permanent child custody and support. On 31 October 2000, a hearing was conducted on the parties'
separate claims for permanent child custody and child support. The
trial court entered an order on 3 January 2001, nunc pro tunc to 17
November 2000, awarding the parties joint legal custody and
defendant primary physical custody of the minor child. From this
order, plaintiff filed notice of appeal.
________________________
At the outset, we note that plaintiff appeals from a child
custody and support order that does not address her claims for
alimony or equitable distribution. Thus, this appeal is
interlocutory, since it did not resolve all of the parties' claims
arising out of this action. See generally, Embler v. Embler, 143
N.C. App. 162, 545 S.E.2d 259 (2001); Veazey v Durham, 231 N.C.
354, 57 S.E.2d 375 (1950). However, N.C.G.S. § 1-277 allows an
appeal to be taken from an order or judgment of a superior or
district court which affects a substantial right, or 'which
constitutes a final adjudication, even when that determination
disposes of only a part of the lawsuit.' Atassi v. Atassi, 117
N.C. App. 506, 509, 451 S.E.2d 371, 373 (quoting Oestreicher v.
Stores, 290 N.C. 118, 225 S.E.2d 797 (1976)) disc. review denied
340 N.C. 109, 456 S.E.2d 310 (1995); see also, N.C.G.S. § 1-277
(1999). In addition, this Court has held that a permanent child
custody order is a final order. Massey v. Massey, 121 N.C. App.
263, 465 S.E.2d 313 (1996). Therefore, because the trial court's
order of child custody and child support is a final judgment as to
those issues, it is immediately appealable. Plaintiff first assigns as error the trial court's award of
primary physical custody of the parties' minor son to defendant.
Specifically, plaintiff contends that the trial court made
insufficient findings of fact to support its conclusion that it is
in the best interest that defendant be awarded custody, and that
such award amounted to an abuse of discretion. We disagree.
North Carolina General Statute § 50-13.2 (1999), which governs
child custody cases, reads in pertinent part:
(a) An order for custody of a minor child
entered pursuant to this section shall award
the custody of such child to such person, . .
. as will best promote the interest and
welfare of the child. . . . In making 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,
755, 468 S.E.2d 454, 455 (1996) (citing Green v. Green, 54 N.C.
App. 571, 573, 284 S.E.2d 171, 173 (1981)). When the trial court
finds that both parents are fit and proper to have custody, but
determines that it is in the best interest of the child for one
parent to have custody, such determination will be upheld if it is
supported by competent evidence. Sain v. Sain, 134 N.C. App. 460,
517 S.E.2d 921 (1999); see also, Cantrell v. Wishon, 141 N.C. App.
340, 540 S.E.2d 804 (2000). This is true even where there is
evidence supporting contrary findings. In re Estate of Trogdon,330 N.C. 143, 409 S.E.2d 897 (1991); Dixon v. Dixon, 67 N.C. App.
73, 312 S.E.2d 669 (1984). Moreover, the trial judge is not
required to find all the facts shown by the evidence, but only
enough material facts to support the judgment. Buckingham v.
Buckingham, 134 N.C. App. 82, 516 S.E.2d 869 (1999) (citations
omitted).
In the case sub judice, plaintiff argues that the only best
interest findings by the court are Findings of Fact Numbers 10, 12
and 27. We disagree.
The trial court made the following pertinent findings of fact
in support of its determination that it is in the minor child's
best interest that physical custody be awarded to defendant:
8. Prior to the parties' separation and
subsequent to that time, both parties have
been extremely attentive to [the minor
child]'s physical and emotional needs. [The
minor child] has been particularly well cared
for by both parties and each has participated
in all aspects of [the minor child]'s life,
including his educational, religious and
personal needs. . . .
9. [The minor child] has a very loving
relationship with both Plaintiff and
Defendant.
10. Although Plaintiff has likely cared for
more of [the minor child]'s medical, dental
and physical needs, Defendant's slightly less
involved role in these areas is mitigated by
his additional, yet reasonable, work demands.
The parties had agreed to own and operate a
small business which caused Defendant to be
out of the home during some evenings and on
weekends, although Defendant sometimes took
the minor child with him to his office to care
for him when necessary and to give the
Plaintiff a break or other assistance.
. . . .
14. . . . Defendant maintains an appropriate
household and physical environment for [the
minor child]. Further, [the minor child] has
many friends and playmates in the neighborhood
where his father's home is located.
. . . .
16. Defendant has continued to have a close
relationship with Plaintiff's father and
brother, Mr. Stephen Moore. Defendant has
maintained consistent contact with Mr. Moore
in part so that Mr. Moore's child, [the minor
child]'s first cousin, can interact with [the
minor child] as much as possible, consistent
with his relationship with his cousin prior to
the parties' separation. Although Defendant
has had less time with [the minor child] than
the Plaintiff since the separation, Defendant
has made sure that [the minor child] interacts
with the Moore child more frequently than the
Plaintiff.
17. Defendant has maintained a close
relationship with the Plaintiff's family in
Charlotte and also maintained extensive
contact with his family outside the Charlotte
area. Defendant's family is very supportive of
the Defendant and very close to [the minor
child].
18. Defendant is sincerely interested in
continuing to foster [the minor child]'s
relationships with Plaintiff and both sides of
each party's family for the benefit of [the
minor child].
19. Since the separation of the parties,
Defendant has demonstrated that he is more
willing than the Plaintiff to assure that [the
minor child] has a healthy, consistent and
nurturing relationship and connection with
both parties' extended families.
20. Defendant has made genuine efforts to
nurture the relationship with [the minor
child] and the Plaintiff. He has seen to it
that [the minor child] calls his mother on
days when the child is in his care and has
made sure that [the minor child] has
appropriate Christmas gifts, Mother's Day
gifts, etc. for his mother.
21. Defendant has demonstrated that he is more
willing than the Plaintiff to assure that [the
minor child] has a healthy, consistent and
nurturing relationship with the other parent.
22. Defendant has amply demonstrated his
commitment to make sure that [the minor child]
is whole to the extent possible given the
separation of the Plaintiff and Defendant with
respect to his efforts to assist in [the minor
child]'s relationship with his mother, the
Plaintiff, and the extended families of both
parties.
. . . .
27. Defendant has not exposed [the minor
child] to dating partners since the
separation. . . . Plaintiff has exposed [the
minor child] to significant contact with her
dating partner . . . .
. . . .
29. Defendant's current employment affords him
some flexibility with respect to his parenting
responsibilities for [the minor child].
Defendant can sometimes work out of his home
as he is a computer programmer. Defendant does
not work on weekends and does not travel
except on occasion for continuing education
classes.
We conclude that these findings are supported by competent
evidence in the record and are, therefore, binding on appeal.
Further, we hold that these findings support the trial court's
conclusion that it is in the best interest of the child to award
custody to the defendant.
Moreover, we reject plaintiff's contention that the trial
court did not properly consider that the child resided with her
since separation, or that she was the primary caregiver. We agree
with plaintiff that the fact that the child has resided with her
since the parties' separation, as well as their respective childcare roles, are factors to be considered, like all other factors,
when deciding what is in the best interest of the child. Green v.
Green, 54 N.C. App. 571, 284 S.E.2d 171 (1981); see also, Evans v.
Evans, 138 N.C. App. 135, 530 S.E.2d 576 (2000). However, we
conclude that the trial court properly considered these factors in
its findings. Moreover, the law is clear that where the court's
findings are supported by competent evidence, as we have concluded
they are in this case, even the existence of conflicting evidence,
that might support contrary findings or an award of custody to
plaintiff, is not a basis to overturn the trial court's decision on
appeal. Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655 (1996).
Finally, plaintiff argues that the trial court's consideration
of the child's exposure to plaintiff's dating partner was
inappropriate. Our Court has held that the dating relationship of
one of the parties alone is insufficient to determine custody;
rather, it is a factor to be considered with all other factors.
Green, 54 N.C. App. at 574, 284 S.E.2d at 174. Based on the above,
we conclude that the court did not abuse its discretion in its
award of primary physical custody to defendant; accordingly, we
overrule each of plaintiff's assignments pertaining to that
determination.
II.
Plaintiff argues next that the trial court erred in denying
her motion for a new trial and her motion to stay execution of the
order. We disagree.
We note first that plaintiff, in her remaining assignment,violates N.C.R. App. P. 28(b)(5) which reads, [a]ssignments of
error not set in the appellant's brief, or in support of which no
reason or argument is stated or authority cited, will be taken as
abandoned. We will, however, exercise our discretion pursuant to
N.C.R. App. P. 2 and review the merit of this assignment.
While plaintiff sets forth five grounds for a new trial
pursuant to N.C.R. Civ. P. 59(a) in her motion for a new trial, she
specifically contends that, pursuant to Rule 59(a)(7), the trial
court's order was erroneous, inadequate and/or insufficient in
fact and in law to support the conclusion that calls for the change
of custody placement and lifetime living arrangement of this minor
child.
It is well settled that this Court's review of a trial judge's
discretionary Rule 59 ruling is strictly limited to the
determination of whether the record affirmatively demonstrates a
manifest abuse of discretion by the judge.
Worthington v. Bynum
and Cogdell v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602
(1982). Thus, 'an appellate court should not disturb a
discretionary Rule 59 order unless it is reasonably convinced by
the cold record that the trial judge's ruling probably amounted to
a substantial miscarriage of justice.'
Anderson v. Hollifield,
345 N.C. 480, 483, 480 S.E.2d 661, 663 (1997) (quoting
Campbell v.
Pitt County Memorial Hosp., 321 N.C. 260, 265, 362 S.E.2d 273, 275
(1987)).
Based on our review of the record, we conclude that the trial
court's order is supported by competent evidence and, thus, did notamount to a manifest abuse of discretion or a substantial
miscarriage of justice. Moreover, plaintiff offers no support for
her assertion that the trial court erred in denying her motion to
stay execution of the order, and we find none. Accordingly, this
assignment of error is overruled.
The order of the trial court is
Affirmed.
Chief Judge EAGLES and MCCULLOUGH concur.
Report per Rule 30(e).
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