An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-436


Filed: 18 May 2004


         v.                        Lincoln County
                                No. 02 CVD 257

    Appeal by plaintiff from order entered 9 December 2002 by Judge Larry J. Wilson in Lincoln County District Court. Heard in the Court of Appeals 12 April 2004.

    Thomas B. Kakassy for plaintiff-appellant.

    James T. Bowen for defendant-appellee.


    William R. Ledford, Jr. (“plaintiff”), appeals from an order of the trial court granting primary custody of the parties' minor child to Amber W. Ledford (“defendant”). Because the trial court's findings of fact are sufficient to support the custody order, we affirm the order of the trial court.
    On 7 March 2002, plaintiff filed a complaint seeking divorce from bed and board, child custody, child support, and equitable distribution. On the same date, an emergency ex parte order was entered granting plaintiff temporary custody of the parties' child. Defendant answered and counterclaimed for child custody and child support.
    The matters of child custody and child support came forhearing at the 30 October 2002 domestic session of Lincoln County District Court with the Honorable Larry J. Wilson presiding. By order filed 9 December 2002, the district court awarded plaintiff and defendant joint custody of their minor child with primary custody to defendant. Plaintiff filed notice of appeal on 18 December 2002.
    By his sole assignment of error, plaintiff contends that the district court's findings of facts are insufficient to support an award of primary custody to defendant. We disagree.
    The district court is obligated to 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) (2003). In making its determination, the paramount consideration must be “the welfare and needs of the child.” In re Peal, 305 N.C. 640, 645-46, 290 S.E.2d 664, 667-68 (1982). “[E]ven parental love must yield to the promotion of those higher interests.” Id. If supported by competent evidence, the district court's findings of fact are binding on appeal. Blackley v. Blackley, 285 N.C. 358, 362, 204 S.E.2d 678, 681 (1974). When competent evidence exists, the district court's determination will not be disturbed on appeal absent abuse of discretion. West v. Marko, 141 N.C. App. 688, 691, 541 S.E.2d 226, 229 (2001).
    Plaintiff has not specifically assigned as error that the findings of fact are unsupported by competent evidence. These findings are therefore presumed supported by competent evidence. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).     In its order, the district court made the following pertinent findings:
        8. That the parties separated on January 1, 2002, and have an arrangement whereas they each had custody of the child an equal amount of the time.

        9. That the Defendant mother, in order to train for her job in photography, moved to Florida with the intent of remaining a month or two. During this period of separation, the Plaintiff filed an action for temporary custody.

        10. The Plaintiff was awarded temporary custody by a court order which was non- prejudicial as to the final hearing of custody with the Defendant having limited visitation.

        11. The Court finds the Plaintiff was unnecessarily defensive of the child and not generous with visitation concerning the Defendant and that this was not in the best interest of the minor child.

        12. The Court finds that at best the Defendant was only able to see the child on every other weekend and was otherwise limited in her contact with her minor child.

        13. The Court finds that the arrangement following the temporary order up until the time of this hearing for child care of the minor child was in capable hands but said arrangements lessens the time which either parent may have exposure to his or her child. The Court finds that the paternal grandmother has done an excellent job with her grandson.

        14. Therefore, it is the Court's desire that both parents have the maximum contact with their minor child.

        . . . .

        17. The Court finds that both parents have adequate and suitable housing for their minor child. That the Plaintiff and the Defendant are well able to keep the child with him or her during the night time at their respectiveresidences. Both homes provide a good environment for the child and the child is surrounded by extended family that supports him and cares for him at all times at both parents' homes.

    Based on these findings the district court concluded that both parties were fit to exercise care, custody, and control of the child; and the best interests of the child would be served by awarding joint custody, with defendant having primary custody. It is clear that the findings support the trial court's decision to award joint custody to plaintiff and defendant with primary custody to defendant. Thus, plaintiff has failed to show an abuse of discretion of the trial court.
    Judges CALABRIA and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***