TIMOTHY McKYER,
Plaintiff,
v
.
Mecklenburg County
No. 00-CVD-9237
FONTELLA McKYER
Defendant.
Marnite Shuford, for plaintiff-appellee.
Michelle D. Reingold, for defendant-appellant.
WYNN, Judge.
The two minor children of Timothy and Fontella McKyer are the
subject of this appeal; following their marital separation, the
trial court awarded Timothy McKyer custody of the children.
Although Fontella McKyer makes several arguments on appeal, the
essence of her appeal is whether the trial court erred in making
the determination that Timothy McKyer “is a fit and proper person
to have the custody, care and control of the two children and it is
in the best interest of the children that he become the primary
caregiver.” On review of the record, we find no abuse of
discretion by the trial judge in ordering primary custody with the
father. The McKyers married in 1991; their two children were born in
1995 and 1998. Timothy McKyer played professional football for
twelve years with seven different National Football League teams.
The couple moved to Charlotte, North Carolina in 1995, while he
played for the Carolina Panthers and later for the Atlanta Falcons
and Denver Broncos. In October 1995, Fontella McKyer's mother,
Mary Gray, moved into the marital home to help in the care of the
McKyers' first child.
When Timothy McKyer stopped playing football after the 1997-
1998 season, Fontella McKyer started working part-time as a
receptionist with a local insurance company. In the meantime,
Timothy McKyer hired an agent to help him find employment in
communications as a radio host or football commentator.
In May 2000, the couple separated by agreement with Timothy
McKyer moving out of the marital home and Fontella McKyer remaining
in it. Their minor children also remained at the martial home
although the separation agreement did not address custody.
In June 2000, Timothy McKyer brought this action seeking
primary custody of the two minor children; however in October 2000,
the trial court, by ex parte order, granted Fontella McKyer
temporary custody of the children and instructed Timothy McKyer to
pay child and post-separation support. Following a full hearing in
April 2001, the trial court awarded primary custody of the minor
children to Timothy McKyer with visitation rights for Fontella
McKyer. From that order, Fontella McKyer appeals.
-------------------------------------------------- The issue on appeal is whether the appellate record shows that
the trial judge abused his discretion by awarding custody of the
two minor children to the father. We answer: No, because even
though there is evidence to sustain findings to the contrary, the
record shows competent evidence to support the trial court's
findings. Adams v. Tessener, 354 N.C. 57, 63, 500 S.E.2d 499, 503
(2001) (“the trial court's findings of fact are conclusive on
appeal if there is competent evidence to support them, even though
the evidence might sustain findings to the contrary”).
As between natural parents, a trial court must award custody
of children to the parent that it determines “will best promote the
interest and welfare of the child.” N.C. Gen. Stat. § 50-13.2(a)
(2001). In making that determination, statutory law requires the
trial court to: “consider all relevant factors including acts of
domestic violence between the parties, the safety of the child, and
the safety of either party from domestic violence by the other
party and shall make findings accordingly.” N.C. Gen. Stat. § 50-
13.2 (a). In short, under North Carolina law, the findings by the
trial court must “support the determination of what is in the best
interest of the child.” Id. Moreover, as between natural parents,
“no presumption shall apply as to who will better promote the
interest and welfare of the child”. Id.
The trial court's findings “may concern physical, mental, or
financial fitness or any other factors brought out by the evidence
and relevant to the issue of the welfare of the child.” Steele v.
Steele, 36 N.C. App. 601, 604, 244 S.E.2d 466, 468 (1978). It is not necessary for the trial judge to
make detailed findings of fact upon each item
of evidence offered at trial. It is necessary,
however, that he make the material findings of
fact which resolve the issues raised. In each
case the findings of fact must be sufficient
to allow an appellate court to determine upon
what facts the trial judge predicated his
judgment.
Morgan v. Morgan, 20 N.C. App. 641, 642, 202 S.E.2d 356, 357
(1974); See also Adams, 354 N.C. at 63, 500 S.E.2d at 503; Williams
v. Pilot Life Ins. Co., 288 N.C. 338, 342, 218 S.E.2d 368, 371
(1975)); In re Orr, 254 N.C. 723, 726, 119 S.E.2d 880, 882 (1961).
However, because the trial judge is in a position to observe those
vitally interested, examine the evidence and render justice on all
the facts, we ordinarily consider the findings of the trial court
to be conclusive on appeal if supported by competent evidence. See
Tyner v. Tyner, 206 N.C. 776, 780-81, 175 S.E. 144, 147 (1934).
Consequently, because the trial judge has that opportunity to see
and hear the parties and witnesses in person, our Courts have long
recognized it as “mandatory, in such a situation, that the trial
judge be given a wide discretion in making his determination,” and
therefore, “his decision ought not be upset on appeal absent a
clear showing of abuse of discretion.” Greer v. Greer, 5 N.C.
App. 160, 163, 167 S.E.2d 782, 784 (1969).
In this case, Fontella McKyer argues the trial judge abused
his discretion by making findings of fact that “overlooked”
relevant evidence she claims shows she should have been awarded
custody. She argues that the “overlooked” evidence of Timothy
McKyer's physical, verbal and emotional abuse of her, necessitateda determination that it was in the best interest of the children to
be placed with her. However, although the trial court did not make
a finding as to whether the abuse did or did not occur, this issue
is adequately addressed by the trial court's findings.
In its findings, the trial court acknowledged that marital
problems occurred prior to the separation and incorporated several
of the instances in its findings of facts. For example, the trial
court specifically found that:
10. By February 1999 the fact that husband
was no longer playing football or earning the
salary of a professional athlete affected the
emotional relationship between the parties.
They began arguing about money and household
expenses. Husband had decided that he could
no longer afford to pay his mother-in-law
$600.00 per month and provide her with free
room and board. He also believed that her
presence adversely affected his role as the
head of the household, but he never
specifically requested that she move out of
the marital home.
11. Between February 1999 and May 9, 2000,
husband engaged in behavior that was
destructive to the marital relationship. On
February 4, 1999, husband grabbed wife in such
a manner as to cause her physical harm in the
presence of the younger son. He began using
the home computer in such a way to allow wife
to discover that he was searching in foreign
countries for a new, more submissive wife on
the Internet. Husband allowed at least one
woman to respond to his computer solicitations
by writing to him at his home address with
reckless disregard as to whether wife would
discover the letter. Husband would
purposefully leave home just before wife
arrived from work and remain away until late
at night. Husband prepared a “divorce
worksheet” that he left for wife to discover
in the home office. This behavior was
designed to be cruel and to make wife's life
unbearable to the point that she would agreeto separation of the parties.
These findings show that the trial judge considered the evidence
presented by Fontella McKyer but in his discretion, he decided that
the findings did not compel the award of custody to her. Since
the record shows that he considered the evidence presented by
Fontella McKyer, we can find no abuse of discretion by the trial
judge in deciding to give more weight to other evidence presented.
Fontella McKyer further argues that the trial court did not
fully consider her evidence showing Timothy McKyer's arrest for
assault and communicating threats against her mother and sister,
which she again contends showed that the best interest of the
children was to be placed with her. However, the record shows that
there was conflicting testimony regarding the incident that led up
to the charges against Timothy McKyer. The trial court found that:
on May 11, 2000 husband appeared at the
marital home without prior notice during the
middle of the day while wife was at work and
the children were in the care of wife's
mother. Husband demanded that he be allowed
to take the children with him for the
remainder of the afternoon. This behavior
caused a physical confrontation between
husband, wife's mother and wife's sister that
resulted in husband being arrested for
assault. This incident and the hostile
emotional state of husband during this time
period caused substantial and possibly
irreparable damage to husband's relationship
to his mother-in-law. The evidence about
this particular incident does not establish
that either child was harmed either
emotionally or physically during the incident.
Notwithstanding, the conflicting evidence of this incident
from the testimony of Timothy McKyer, Ms. Gray and her daughter,Fontella McKyer contends that the trial court failed to follow
Adams v. Tessener, 354 N.C. 57, 550 S.E.2d 499 (2001), in which the
biological father lost his presumptive rights as the natural parent
because of criminal convictions including driving an automobile
with no insurance or registration, driving while his license was
revoked, appearing drunk and disruptive in a public place, and two
counts of careless and reckless driving. However, unlike the
father in Adams, Timothy McKyer was found not guilty on the charges
brought by Ms. Gray and her daughter; indeed, the record does not
indicate that Timothy McKyer had any record of criminal
convictions.
Significant to our holding that the trial court did not abuse
his discretion in this case, we note that the trial judge made
extensive and detailed findings covering evidence that supported
custody for and against the husband. The findings demonstrate that
the trial judge considered all of the evidence presented but chose
to exercise his discretion by weighing the evidence in favor of the
husband. For example, the trial court made the following findings
of fact that:
9. Throughout 1998, husband concentrated on
maintaining his physical fitness regimen in
hopes that he would be offered a contract. By
December 1998 husband concluded that a team
would not employ him. At husband's
insistence, wife obtained a job with an
insurance company as a receptionist. Wife's
mother took on more responsibility with
respect to the two children while the wife
worked. Although husband did not have full-
time employment, he did not take on more
responsibility for the care of the children,
preferring to spend his time racing
motorcycles and engaging in other recreationalactivities.
16. After the parties separated, husband
began exhibiting for the first time a keen and
sincere interest in his two sons. He
developed more interest and concern about the
older son's educational progress to the extent
that he was able to uncover the fact that the
child had a developmental disability that
would require professional treatment. Husband
took both children with him on a trip to Texas
to visit his relatives, including his mother.
He began insisting on being able to visit the
children more often as the “Interim Separation
Agreement” contained no provisions concerning
custody, child support or visitation
privileges. . .
17. Husband now maintains a very flexible
schedule that allows him to be available for
childcare most of the day every day. He is
able to establish a class schedule that allows
him to spend a majority of the day with the
children. He has purchased a four-bedroom
home near the church that wife attends. The
home is fully furnished with bedrooms for both
children. Husband's efforts since the date of
separation to become a more involved parent
have been clumsy and have at times exhibited
his inexperience with the responsibility of
the daily care of the children. However,
husband's efforts have been sincere and have
not resulted in any physical or emotional harm
to the children.
18. Wife's role as the primary care giver to
the children has changed as she has taken on
the responsibilities of full-time employment.
While she describes her employer as sensitive
to her role as a parent, her schedule is
clearly not as flexible as that of the husband
at this time. Wife relies on her mother to
provide substantial assistance in caring for
the children. However, wife's mother has no
legal or financial obligation to continue her
role as the children's “nanny.” Given the
fact that she has maintained a separate
household in Texas, there is a substantial
likelihood that she will return to Texas once
the marital home is sold. Moreover, the
continued involvement of the wife's mother as
a primary caregiver for the children is asource of disruption and conflict to the
family and further efforts to maintain her
present role may result in harm to the
children's relationship to the father.
19. Husband is a fit and proper person to
have the primary care, custody and control of
the two children and it is in the best
interest of the children that he become the
primary caregiver at this time and under the
present circumstances.
20. Wife is a fit and proper person to have
regular visitation with the children and it is
in the best interest of the children that she
have liberal visitation as she develops her
own economic and emotional independence.
21. It is not in the best interest of the
children that their primary care be arranged
in such that wife and her mother are the
primary custodians with husband having a
limited role in the life of these two
children.
22. Prior to the date of separation, wife was
clearly a dependent spouse as she clearly
earned little or no income and lived a
lifestyle based upon husband's income that in
1992 was in excess of $1,000,000.00. However,
both parties anticipated and expected that
their lifestyle would change dramatically once
husband's football career ended and the family
had to depend on his ability to earn a living
in other ways. Wife currently has and will
have monthly expenses of $3365.54 regardless
of whether the children continue to live
primarily with her. However, this includes
$555.00 that wife spends each month on the car
payment for a luxury automobile that wife
purchased after the parties separated, a
“mortgage payment” of $1424.38 and
expenditures for the maintenance of the
marital home that the parties agree is worth
or than $600,000.00 Wife testified that she
intends to move into a substantially less
expensive home once the marital home is sold
and these monthly expenses will decrease
substantially. Wife presently has a net
income of $2104.00 and is maintaining health
insurance for both children. Wife is a
dependent spouse and is need of financialsupport from husband.
23. At the time of trial, husband did not
have any full-time employment but was making
reasonable efforts to obtain training and
experience that would aid him in maximizing
his future earning potential either in
professional sports broadcasting, motivational
speaking or as a coach and teacher. As was
his plan before his football career ended,
husband is supporting himself and his family
by depleting his savings and relying on his
investment and endorsement income that does
not exceed $15,000.00 per year. Husband is
not voluntarily reducing or minimizing his
income to avoid his financial obligations to
his family.
24. At the time of trial the marital home has
not yet been sold but the parties have
property with a net value of nearly
$1,000,000,00, which awaits disposition
pursuant to claims for equitable distribution.
In light of wife's testimony about her
intention to move to a less expensive house in
a community that is about twenty-five miles
from husband's present home, the Court cannot
yet determine the reasonable financial needs
of wife or the ability of husband to pay
alimony or attorney's fees until this Court
determines equitable distribution issues.
Husband is not seeking child support at this
time.
These findings broadly recognized evidence showing that Timothy
McKyer's behavior was not at all times exemplary; however, we can
find no abuse in the trial judge's discretion to find that: “ Husband
is a fit and proper person to have the primary care, custody and
control of the two children and it is in the best interest of the
children that he become the primary caregiver at this time and
under the present circumstances.” Indeed, in determining custody,
misconduct or perceived misconduct, it is not enough alone to deny
custody to a party. See In re Pitts, 2 N.C. App. 211, 162 S.E.2d524 (1968). Moreover, even if this Court in considering the
evidence in the cold record on appeal would reach a different
result, it is not our role to weigh the evidence, as long as there
is sufficient evidence to support the trial court's findings and
there is not clear abuse of discretion, we must uphold the trial
court's findings of facts. Since the record shows evidence to
support the trial judge's findings, those findings are conclusive
on appeal even though the evidence might sustain a finding to the
contrary. See Raynor v. Odom, 124 N.C. App. 724, 728, 478 S.E.2d
655, 658 (1996).
In light of our conclusion that the trial court's findings are
supported by competent evidence even though such evidence could also
sustain a contrary finding, we summarily reject the additional
challenges to the findings by the trial court. Accordingly, we find
no abuse of discretion by the trial judge in awarding custody to
Timothy McKyer.
Affirmed.
Judges HUNTER and CAMPBELL concur.
Report per Rule 30(e).
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