NO. COA03-79
Appeal by plaintiff from order filed 19 July 2002 by Judge
William A. Christian in Cumberland County District Court. Heard in
the Court of Appeals 19 November 2003.
Clifford Leon Lee, II, pro se plaintiff-appellant.
No brief filed for defendant-appellee.
BRYANT, Judge.
Clifford L. Lee, II (plaintiff) appeals from an order filed 19
July 2002 awarding primary child custody to Alisha Blackmon Lee
(defendant) and secondary custody to plaintiff.
The parties were married on 28 December 1990, and on 7 June
1992, Clifford Leon Lee, III was born to the marriage. The parties
separated on 28 July 2001, and plaintiff filed a complaint on 27
August 2001 seeking, inter alia, custody of the child. This matter
came for hearing at the 1 July 2002 and 2 July 2002 sessions of
court. In its order, the trial court awarded defendant primary
custody and plaintiff secondary custody to include reasonable
visitation rights.
_________________________
The sole issue on appeal is whether the trial court erred in
awarding defendant primary custody. Specifically, plaintiff argues
that it is in the child's best interest for plaintiff to be awarded
primary custody. Plaintiff concedes both parents can equally
provide love to the child. However, plaintiff contends that if
placed in his primary custody, the child would receive a better
education in North Carolina, proper discipline, and the best moral
foundation.
Pursuant to N.C. Gen. Stat. § 50-13.2(a), the district court
must award custody “to such person, agency, organization or
institution as will best promote the interest and welfare of the
child.” N.C.G.S. § 50-13.2(a) (2001). The trial court, which “has
the unique opportunity of seeing and hearing the parties,
witnesses, and evidence at trial, is vested with
broad discretion
in cases concerning the custody of children.”
In re Peal, 305 N.C.
640, 645, 290 S.E.2d 664, 667 (1982). Absent abuse of discretion,
the trial court's custody determination will not be disturbed.
Pulliam v. Smith, 348 N.C. 616, 631, 501 S.E.2d 898, 906 (1998);
see also Peal, 305 N.C. at 646, 290 S.E.2d at 668. In making the
custody determination, the paramount consideration involves “the
welfare and needs of
the child, not the persons seeking his or her
custody, and even parental love must yield to the promotion of
those higher interests.”
Peal, 305 N.C. at 645-46, 290 S.E.2d at
667-68 (affirming the trial court's decision giving custody of the
minor children to the father because, even though both parents wereequally fit, the children had a close relationship with the father
and the welfare of the children did not favor a split in custody)
(citations omitted).
In the instant case, plaintiff has not assigned as error the
district court's findings of fact. Therefore, these findings are
presumed supported by competent evidence.
Koufman v. Koufman, 330
N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (citations omitted). In
its order, the trial court made the following pertinent findings
defendant had: moved to the state of Alabama upon her separation
from plaintiff; secured a four-bedroom apartment and furnishings;
enrolled the child in a local public school where he makes
excellent grades; been cooperative in allowing plaintiff to visit
the child and has encouraged the father-son relationship; and taken
primary responsibility for the child's day-to-day care, including
food and clothing, homework preparation, bedtime rituals,
entertainment, and church activities. In addition, defendant's two
older brothers visit the child often and are positive male role
models in the child's life.
The trial court also found defendant is gainfully employed and
capable of providing the child with a safe environment and capable
of supporting his needs. Further, she was also found to be capable
of participating in the child's after-school extracurricular
activities. Moreover, the child has experienced no ill effects
from the move and has benefitted from his close association with
defendant's family. In its order, the trial court concluded that
although both parents are fit to provide care, control and custodyof the child, “it is [in] the best interest of the minor child that
[d]efendant be awarded primary custody and [p]lantiff be awarded
secondary custody.”
The trial court's decision is properly supported by the
findings, and we find no abuse of discretion. Plaintiff's
assignment of error is overruled.
Affirmed.
Chief Judge EAGLES and Judge LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***