TIMOTHY LEE DREYER, Plaintiff, v. RLENA MURPHY SMITH and JOHNNY
HARDY SMITH, Defendants
2. Child Support, Custody, and Visitation--modification-_substantial change of
circumstances--best interests of child
The trial court did not abuse its discretion by modifying a child custody order to provide
that the minor children would reside primarily with plaintiff father, because: (1) there was a
material and substantial change of circumstances of the parties including the negative effect on
the children of defendant mother's remarriage by the children's exposure to alcohol abuse,
violent behavior, illegal drugs, and a risk of physical harm; and (2) it was in the best interests of
the children.
3. Appeal and Error--preservation of issues__child custody modification-_in-chambers
testimony--failure to request recordation
Although defendant mother contends the trial court erred in a child custody modification
case by holding unrecorded in camera interviews of the children, this procedure of interviewing
the children in-chambers was specifically requested by defendant's attorney and defendant did
not request at trial that the interviews be recorded.
No brief filed on behalf of plaintiff-appellee.
Eunice Jones O'Beng, for defendant-appellant.
GEER, Judge.
Defendant mother, Rlena Murphy Smith, appeals from the trial
court's order modifying a prior custody order to provide that the
minor children would reside primarily with their father, plaintiff
Timothy Lee Dreyer. Because Ms. Smith has not assigned error to
any of the trial court's findings of fact and because the trial
court's conclusions of law were supported by those findings of
fact, we affirm.
[1] Under N.C.R. App. P. 10(a), this Court's review is limited
to those findings of fact and conclusions of law properly assigned
as error. Koufman v. Koufman, 330 N.C. 93, 98, 408 S.E.2d 729, 731
(1991) ("the scope of review on appeal is limited to those issues
presented by assignment of error in the record on appeal"). "Where
no exception is taken to a finding of fact by the trial court, the
finding is presumed to be supported by competent evidence and is
binding on appeal." Id. at 97, 408 S.E.2d at 731.
Ms. Smith did not specifically assign error to any of the
trial court's findings of fact. Her sole assignment of error on
this appeal states:
The trial court committed reversible error
when it found that the Plaintiff had proffered
sufficient evidence to show that there had
been a material and substantial change of
circumstances of the parties since entry of
the last order that will likely have an
[e]ffect on the children and a modification of
the prior order would be of material benefit
to the children and in the children's best
interest.
"A single assignment [of error] generally challenging the
sufficiency of the evidence to support numerous findings of fact,
as here, is broadside and ineffective" under N.C.R. App. P. 10.
Wade v. Wade, 72 N.C. App. 372, 375-76, 325 S.E.2d 260, 266, disc.
review denied, 313 N.C. 612, 330 S.E.2d 616 (1985). Because Ms.
Smith has not properly assigned error to any specific findings of
fact, those findings are binding on this Court.
Mr. Dreyer, appearing pro se, filed a complaint in Rockingham
County District Court on 19 October 2001, asking to have primary
custody of his children transferred to him. Ms. Smith and her
husband, Johnny Hardy Smith, filed an answer on 16 November 2001,
denying the material allegations of the complaint.
After a bench trial, the trial court found the following
facts. The parties, who were married in 1989 and separated in
1994 , are the parents of two children: Andrew (age 13) and China
(age 9). In 1996, the parties entered into a consent order that
provided for joint custody of the children, with the children to
reside with Ms. Smith 225 days per year and with Mr. Dreyer 140
days per year. Since the entry of that order, Ms. Smith has
remarried and now lives with her new husband and his two sons, who
are age 18 and age 16.
With respect to that marriage, the trial court found:
5. . . . . The new husband drinks regularly.
The children are exposed to drunken outbursts
including cussing and punching walls. Thechildren are allowed to ride in the car with
her new husband while he is drinking. The
youngest child, China, is afraid of the
mother's new husband and would feel safer
living with her father.
6. The boys' room is in the basement of the
house and has to be accessed by going outside.
Andrew shares that room with his 16 year old
step brother who is addicted to drugs and is
able to go in and out of the room without the
parents' knowledge. China is scared of her
step brother.
The court also noted that both children "are doing miserable [sic]
in school." The court ultimately found that Mr. Dreyer would be
able to provide a more stable environment with fewer risks to the
children's future development.
Based on its findings of fact, the court concluded that "there
has been a material and substantial change of circumstances of the
parties since entry of the last order that will likely have an
[e]ffect on the children and a modification of the prior order
would be of material benefit to the children and in the children's
best interests[.]" Accordingly, the court modified the prior
custody order, maintaining joint custody but providing that the
children would reside primarily with Mr. Dreyer. Ms. Smith appeals
from that order.
[2] The only question properly before this Court is whether
the trial court's conclusions of law are supported by the findings
of fact. A court order for custody of a minor child "may be
modified or vacated at any time, upon motion in the cause and ashowing of changed circumstances by either party . . . ." N.C.
Gen. Stat. § 50-13.7(a) (2003). A trial court may not alter an
existing custody order unless the court has determined "(1) that
there has been a substantial change in circumstances affecting the
welfare of the child; and (2) a change in custody is in the best
interest of the child." Evans v. Evans, 138 N.C. App. 135, 139,
530 S.E.2d 576, 578-79 (2000) (citations omitted).
The court,
however, "need not wait for any adverse effects on the child to
manifest themselves before the court can alter custody." Id. at
140, 530 S.E.2d at 579.
This Court held in Evans that "remarriage, in and of itself,
is not a sufficient change of circumstance affecting the welfare of
the child to justify modification of the child custody order
without a finding of fact indicating the effect of the remarriage
on the child." Id. See also Hassell v. Means, 42 N.C. App. 524,
531, 257 S.E.2d 123, 127 ("Remarriage in and of itself is not a
sufficient change of circumstance to justify modification of a
child custody order."), disc. review denied, 298 N.C. 568, 261
S.E.2d 122 (1979). Here, however, the trial court made ample
findings of fact describing the negative effect of Ms. Smith's
remarriage on the children. We hold that these findings _ setting
forth the children's exposure to alcohol abuse, violent behavior,
illegal drugs, and a risk of physical harm _ support the trialcourt's conclusion that there has been a substantial change of
circumstances affecting the welfare of the children.
Further, based on these findings, we hold that the trial court
did not abuse its discretion in concluding that a change in custody
was in the best interests of the children. Metz v. Metz, 138 N.C.
App. 538, 541, 530 S.E.2d 79, 81 (2000) ("As long as there is
competent evidence to support the trial court's findings, its
determination as to the child's best interests cannot be upset
absent a manifest abuse of discretion.").
[3] Even though she failed to assign error to the critical
findings of fact, Ms. Smith further challenges the trial court's
conclusion by contending that the evidentiary basis for those
findings was provided during unrecorded in camera interviews of the
children. Yet, this procedure was specifically requested by Ms.
Smith's attorney. When Mr. Dreyer sought to call Andrew to the
witness stand, the following colloquy occurred:
THE COURT: Did you want to do this in
chambers?
MR. DREYER: Yes, sir.
[DEFENDANT'S ATTORNEY]: Yes, sir. I
thought we were going to let you take the kids
back to chambers, Judge. Do you agree to
that?
MR. DREYER: Yes, sir.
THE COURT: Me and the clerk will go back
in chambers and talk with the children one at
a time. Do you agree to that?
[DEFENDANT'S ATTORNEY]: Yes, sir, Judge.
MR. DREYER: Yes, sir.
THE COURT: Mrs. Smith, do you agree to
that?
THE DEFENDANT: Yes.
In accordance with the parties' agreement, Judge Stone then
interviewed the children in chambers.
Because the record shows that Ms. Smith expressly consented to
the in-chambers interviews of the children, she may not now assert
that the procedure was error. Stevens v. Stevens, 26 N.C. App.
509, 510-11, 215 S.E.2d 881, 882 (where plaintiff ex-wife had not
objected to in-chambers interview of child, she waived her "right
[to have] the judge consider nothing except evidence duly developed
in open court[,]" and was estopped from asserting it as error on
appeal), cert. denied, 288 N.C. 396, 218 S.E.2d 470 (1975).
Furthermore, given that defendant did not request at trial that the
interviews be recorded, it is immaterial on appeal that the
interviews were not recorded. The trial court's findings are still
deemed supported by competent evidence: "Where there is evidence
which does not appear in the record on appeal, it will be presumed
that the evidence supports the trial court's findings of fact."
Goodson v. Goodson, 32 N.C. App. 76, 80, 231 S.E.2d 178, 181 (1977)
(in child custody case, content of child's in-chambers testimony,
although not in record, deemed to support findings). Because we hold that the trial court's findings of fact fully
supported its conclusion that there had been a material and
substantial change of circumstances of the parties and that it was
in the best interests of the children to modify the custody order,
we affirm.
Affirmed.
Judges MCGEE and HUNTER concur.
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