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NO. COA02-669
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2003
BENJAMIN FRANKLIN PASS,
Plaintiff
v
.
JACQUELINE ODETTE BECK,
Defendant
Appeal by defendant from orders entered 26 November 2001 and
28 March 2002 by Judge J.H. Corpening in New Hanover County
District Court. Heard in the Court of Appeals 12 February 2003.
Lea, Clyburn & Rhine, by James W. Lea, III, for plaintiff-
appellee.
Virginia R. Hager and Michelle D. Reingold, for defendant-
appellant.
CALABRIA, Judge.
Defendant appeals orders entered 26 November 2001 and 28 March
2002 granting defendant primary custody of, and plaintiff
visitation with, the parties' minor child. The November order also
denied defendant's petition to terminate plaintiff's parental
rights and dismissed defendant's complaint for a domestic violence
protective order. A hearing on these actions was held on 4 June,
5 June, 30 July and 31 July 2001 in the New Hanover County District
Court, the Honorable Judge J.H. Corpening (Judge Corpening)
presiding.
In the 26 November 2001 order, Judge Corpening found the
following facts pertinent to this appeal. The parties were
involved in a personal and business relationship from the mid-1980suntil 1994. In 1994, the parties ceased contact. Sometime
thereafter, the parties resumed their relationship. In 1996,
plaintiff and defendant again began working together at plaintiff's
business, they re-titled real estate in their joint names, and
plaintiff gave defendant stock in his business. By late 1997,
defendant had become extremely dissatisfied with the way the
Plaintiff conducted his business . . . [and] was attempting to hire
an attorney with regard to her perceived legal problems. On 24
December 1997, defendant sought counseling from Family Services
regarding verbal, emotional and financial abuse from the
Plaintiff. Defendant returned for additional counseling on 29
December 1997 and 6 January 1998. Defendant alleged that in early
January 1998, plaintiff raped her, and the minor child was thereby
conceived. The court found as fact:
the reports of the assault during [January
1998] are not believable based on the lack of
credibility of the Defendant and the
credibility of the Plaintiff and his
witnesses, in light of the financial disputes
existing between the parties and the actions
of the Defendant in the previous year
arranging for ownership in both the business
of the Plaintiff and the parties' real estate.
The court found defendant was not credible, in part, because she
maintained contact with plaintiff for two months following the
alleged assault. Moreover, although defendant had professed
herself to be a virgin, the court found by the greater weight of
the evidence that [defendant] in fact engaged in sexual contact in
the form of both oral sex and sexual intercourse with the Plaintiff
prior to January of 1998. The court found defendant's statementsregarding her virginity placed her in a position to fabricate a
story about being assaulted or raped when it was learned that she
had become pregnant.
The court found plaintiff and his witnesses credible.
Plaintiff testified he did not rape defendant, but that they were
involved in a consensual sexual relationship. Plaintiff's
witnesses testified they saw plaintiff and defendant in situations
that corroborated plaintiff's testimony. The court found as fact
that when plaintiff and defendant fought, defendant became
extremely angry, using harsh language and plaintiff was very
passive and rarely argumentative, and noted the credible
testimony does not support Defendant's contentions that he would
or had violently assaulted her. Based on these findings, the
court found as fact that [t]he birth of the minor child was not a
product of forcible rape, but consensual intercourse. The court
then concluded as a matter of law that Defendant has failed by the
greater weight of the evidence to establish that the birth of this
child was a product of forcible rape.
Regarding custody, the court concluded that both parties are
fit and proper persons to have the joint care, custody and control
of the minor child with the Defendant having primary custody and
the Plaintiff having secondary custody. The court ordered that
the parties share custody, with plaintiff being entitled to
visitation. The court ordered no contact until the parties met
with a psychologist, who would submit a report to the court with a
recommended graduated visitation schedule. On 28 March 2002, thecourt, having received a recommended schedule from the
psychologist, concluded as a matter of law that it was in the best
interest of the child to follow the visitation schedule set forth
by the psychologist and delineated in the order.
Defendant appeals both orders alleging the trial court erred
by (I) failing to make findings of fact and conclusions of law in
the November order that contact between the minor child and
plaintiff was in the best interests of the minor child; and (II)
finding the minor child was not conceived as a result of rape; and
(III) finding in the March order that it was in the best interest
of the minor child to have visitation with plaintiff.
We note, at the outset, [i]t is well settled that the trial
court is vested with broad discretion in child custody cases.
McConnell v. McConnell, 151 N.C. App. 622, 626, 566 S.E.2d 801, 804
(2002). A ruling committed to a trial court's discretion is to be
accorded great deference and will be upset only upon a showing that
it was so arbitrary that it could not have been the result of a
reasoned decision. White v. White, 312 N.C. 770, 777, 324 S.E.2d
829, 833 (1985).
I. November Order: Best Interests Determination
Defendant asserts the trial court erred, in the 26 November
2001 order, by not finding as fact or concluding as a matter of law
that visitation between the minor child and plaintiff was in the
best interests of the child. Defendant argues that [p]resumably,
then, the trial court never considered what is in the best interest
of the minor child. However, the transcript reveals JudgeCorpening specifically dictated: the order of custody will read as
follows: At this time both parents are fit and proper persons to
have custody of this child. It is in the child's best interests
for the mother to have [] primary custody. Judge Corpening
delayed a determination as to the best interests of the child
regarding visitation with her father, instead he required a
psychologist to make recommendations to the court regarding
visitation.
Visitation rights orders, along with other matters related to
child custody are governed by the standard of 'promot[ing] the
interest and welfare of the child.' Rawls v. Rawls, 94 N.C. App.
670, 676, 381 S.E.2d 179, 183 (1989) (quoting N.C. Gen. Stat.
50-13.2 (b) (1987)). In Rawls, as in the case at bar, the court
found it was in the best interests of the child for the mother to
exercise primary custody and the father was a fit and proper person
to exercise visitation rights. Due to the minimal contact between
father and child as of that time, the court, in both Rawls and this
case, sought the expertise of a third-party professional to assist
in the determination of the best interests of the child with
regards to visitation. Upon receiving that assistance, the court
in this case, in the 28 March 2002 order, made findings of fact
supporting the conclusion of law that [i]t is in the best interest
of the minor child that visitation be facilitated between [the
child and her father] in accordance with the schedule [recommended
by the psychologist]. Since the trial court did conclude that
visitation was in the child's best interests, and the findings offact support that conclusion, we hold the trial court did not abuse
its discretion in delaying determination of the best interests of
the child regarding visitation pending a recommendation from a
psychologist.
II. November Order: Finding of fact
Defendant asserts the trial court abused its discretion by
finding as fact that the minor child was not a product of forcible
rape, but consensual intercourse. We disagree.
'In child custody cases, where the trial judge
has the opportunity to see and hear the
parties and witnesses, the trial court has
broad discretion and its findings of fact are
accorded considerable deference on appeal. So
long as the trial judge's findings of fact are
supported by competent evidence, they should
not be upset on appeal.'
Westneat v. Westneat, 113 N.C. App. 247, 250, 437 S.E.2d 899, 900-
01 (1994) (quoting Smithwick v. Frame, 62 N.C. App. 387, 392, 303
S.E.2d 217, 221 (1983)). Therefore, the trial court's findings of
fact are conclusive if there is evidence to support them, even
though the evidence might sustain a finding to the contrary.
Raynor v. Odom, 124 N.C. App. 724, 729, 478 S.E.2d 655, 658 (1996).
In the case at bar there is competent evidence supporting the
trial court's finding of fact that the birth of the minor child
was not a product of forcible rape, but consensual intercourse.
Plaintiff testified:
Q: Frank,[defendant] has testified, I think,
that she was assaulted by you she told the
Sheriff's Department that the 12th; she's
testified it was either the 6th, 7th, or 8th,
that's my recollection. That's four different
dates she said. On any one of those days did
you ever forcefully assault this person thatyou thought you were going to marry or rape
her in any way?
A: No, I have not.
The court found as fact that plaintiff was a credible witness. The
court also found credible plaintiff's witnesses who, corroborating
plaintiff's testimony, testified that plaintiff and defendant
appeared to be involved in a sexual relationship and were planning
on getting married. The witnesses further testified the
relationship was volatile and described the arguments of the
parties as being extremely one sided with the Defendant becoming
extremely angry, using harsh language towards the Plaintiff to the
point that she would spit in his face. The court found [t]his
testimony does not support Defendant's contentions that [plaintiff]
would or had violently assaulted her. Moreover, the court found
defendant was not credible, in part, because cell phone records
indicate she initiated contact with plaintiff around the time of
the assault and for two months thereafter, she was seen around and
with plaintiff on his property, and she continued to accept
paychecks from the business. Since the trial court found plaintiff
and his corroborating witnesses credible and defendant not
credible, we are bound to conclude the trial court's decision is
not manifestly unsupported by reason and does not constitute an
abuse of discretion.
We note, however, that although there is competent evidence
supporting the trial court's finding of fact, the order was replete
with troubling findings. Most disturbing are the findings of the
court supporting the conclusion that defendant was not credible. The court based its finding, in part, on symptoms of defendant's
alleged post traumatic stress disorder (PTSD). An expert in
PTSD, who testified defendant suffered from the disorder, testified
that [i]ndividuals who go through a traumatic event . . .
experience a period of being in shock where one does not know their
surroundings, so it's not surprising that an individual would not
remember the exact date [of the traumatic event]. Although no
other experts testified, and the expert was not discredited on this
point, and the court made no finding indicating the expert was not
credible, the court nevertheless found defendant's allegations of
rape were not credible because she indicated at least four
different dates upon which the rape may have occurred. Moreover,
the court considered defendant not to be credible because,
immediately after the assault, she did not seek medical care, make
a police report, photograph her bruises, and only told her best
friend and her mother. Despite these findings, we are bound by the
standard of review, and in this case cannot hold the trial court's
decision was the result of an abuse of discretion.
III. March Order: Best Interests Determination of Visitation
Defendant asserts the trial court abused its discretion by
determining the best interest of the child is promoted by
visitation with plaintiff because of defendant's concerns for the
safety of her child. In determining best interests, the court
shall 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 partyand shall make findings accordingly. N.C. Gen. Stat. § 50-13.2(a)
(2001). Defendant argues the trial court did not adequately
consider defendant's concerns for safety of her child. We
disagree. The court, in dismissing the complaint for a domestic
violence protective order, specifically determined defendant had
failed to establish domestic violence occurred and had no reason to
fear plaintiff. Since the court determined that there was no act
of domestic violence, that the child was not a product of rape, and
no other safety concerns were raised, we cannot find the court
abused its discretion by ordering visitation between the minor
child and her father.
Affirmed.
Judges McCULLOUGH and TYSON concur.
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