An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1333


Filed: 15 July 2003


v .                         Orange County
                            No. 01 CVD 384

    Appeal by defendant from order entered 19 June 2002 by Judge Alonzo Coleman in Orange County District Court. Heard in the Court of Appeals 10 June 2003.

    DVC Legal Services, Inc., by D. Melissa Averett for plaintiff- appellee.

    Everett Jerome Gardner, pro se.


    Defendant, Everett Jerome Gardner, appeals an order giving permanent sole custody of the minor children of the parties to plaintiff, Sharon Davis Gardner. For the reasons discussed herein, we affirm.
    A recitation of the facts is not necessary to an understanding of the issues presented.
    Defendant first argues that the trial court erred by denying his request for a jury trial pursuant to Rule 38 of the NorthCarolina Rules of Civil Procedure. “Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing[.]” N.C. R.C.P. 38(b) (emphasis added). “When a district court having jurisdiction of the matter shall have been established, actions or proceedings for custody and support of minor children shall be heard without a jury by the judge of such district court, and may be heard at any time.” N.C. Gen. Stat. 50-13.5(h) (2001). Thus, child custody and support are not issues triable by a jury. The trial court did not err by having a trial without a jury. This assignment of error is without merit.
    Defendant cited no legal authority for any of the arguments in his second, third and fourth assignments of error. They are therefore deemed abandoned pursuant to Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure.
    Defendant next argues that the trial court erred in allowing medical evidence without a proper foundation. At the custody hearing, counsel for plaintiff was making her opening statement when she referenced defendant's bipolar disorder, which had been referenced in previous court orders.
    Defendant contends that plaintiff's counsel improperly relied upon a statement by plaintiff, who was not sworn and did not testify at the trial, in violation of Rule 603 of the NorthCarolina Rules of Evidence when she brought up his medical condition. However, plaintiff's counsel did not rely on a statement by plaintiff when discussing defendant's medical condition. She relied on facts found in a previous court order. Further, control over opening statements rests within the sound discretion of the trial court. State v. Speller, 345 N.C. 600, 481 S.E.2d 284 (1997). Defendant did not object. He has failed to show an abuse of discretion. This assignment of error is without merit.
    Defendant's sixth assignment of error merely restates arguments previously made under assignments of error one and five. This assignment of error is also without merit.
    Panel consisting of:
    Chief Judge EAGLES, and Judges TYSON and STEELMAN
    Report per Rule 30(e).

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