Appeal by plaintiff from judgments filed 16 August 2002, 19
September 2002, and 8 October 2002 by Judge Jennifer M. Green in
Wake County District Court. Heard in the Court of Appeals 28
January 2004.
Carrie Gail Parker, pro se, for plaintiff-appellant.
Tharrington Smith, L.L.P., by Jaye Meyer and Jill Schnabel,
for defendant-appellee.
MARTIN, Chief Judge.
Plaintiff and defendant were married in 1991, separated in
1997, and divorced in 1998. They are the parents of three
children; Brittany, born 8 May 1987, Brad, born 25 February 1992,
and Elizabeth, born 17 May 1995. On 20 August 1997, plaintiff
filed a complaint and motion against defendant seeking a domestic
violence protective order. That same day, the trial court entered,
with the consent of both parties, a 10-day domestic violence
protective order stating, inter alia, that defendant “shall not
assault, threaten, abuse, follow, harass by telephone, visiting[sic] the home or workplace or other means, or interfere with
plaintiff.”
On 28 August 1997, plaintiff and defendant entered into a
consent order for child custody and support and agreed to dismiss
with prejudice, pursuant to Rule 41 of the North Carolina Rules of
Civil Procedure, all domestic violence claims pending between the
parties pursuant to G.S. § 50B. The consent order granted joint
legal custody of the minor children to both parties, with the
children primarily residing with plaintiff. Defendant was granted
visitation on alternating weekends and for half of all holiday and
school break times. The consent order also stated as follows:
8. This Order is entered without prejudice to
either party. Either party may move the Court
for a modification of the provisions of [this
order] without necessity of alleging a
substantial change of circumstances, and the
Court shall not be required to find a change
of circumstances as a prerequisite to
modification of the provisions . . . .
9. The claims and orders pertaining to
domestic violence and domestic violence
restraining orders and injunctions are hereby
dissolved. The provisions of this Consent
Order are entered pursuant to Chapter 50 of
the North Carolina General Statutes and shall
be continuing in effect until further orders
of the Court.
On 29 January 2002, defendant filed a motion to modify child
custody and child support, alleging a substantial change in
circumstances affecting the welfare of the minor children. On 29
May 2002, plaintiff filed a motion for a custody evaluation. The
trial court heard defendant's motion on 27 June 2002. On 7 August
2002, the trial court orally announced that it found a substantialchange in circumstances affecting the welfare of the minor children
sufficient to warrant placing primary custody of the two youngest
children, Brad and Elizabeth, with defendant and to warrant a
corresponding decrease in the amount of child support defendant was
paying to plaintiff. A written order was entered on 16 August
2002.
On 15 August 2002, plaintiff filed a complaint and motion for
a domestic violence protective order in Johnston County. The
complaint alleged that on 14 August 2002, when defendant had
attempted to pick up Brad for a visit pursuant to the newly
announced custody order, he assaulted the child by grabbing him by
the seat of his pants and ripping his underwear and by grabbing him
by his arm and shoving him down on the couch. The same day, a 10-
day ex parte domestic violence protective order was entered against
defendant in Johnston County. The defendant answered plaintiff's
complaint on 20 August 2002, admitting that defendant was forced to
restrain his son and during the altercation ripped his underwear,
but denying any charges of domestic violence. Defendant also moved
to change venue to Wake County, to consolidate the action with the
current Wake County domestic relations action, to continue the
matter until the defendant's preliminary motions had been ruled
upon, and for attorney fees. On 23 August 2002, plaintiff moved,
pursuant to Rule 59 of the North Carolina Rules of Civil Procedure,
to set aside the modification order entered 16 August 2002 and for
a new trial. The district court of Johnston County granted defendant's
motion to change venue to Wake County on 5 September 2002. On 19
September 2002, the Wake County District Court entered an order
denying plaintiff's motion for a new trial, granting defendant's
motion to consolidate, and reserving its ruling as to plaintiff's
motion for a custody evaluation until after the return hearing on
plaintiff's complaint and motion for a domestic violence protective
order.
Plaintiff's complaint and motion for a domestic violence
protective order was heard on 19 September 2002. In an order filed
8 October 2002, the trial court found as fact, inter alia:
15. This Court finds as fact that plaintiff
intentionally encouraged Brad to be angry at a
time when she should have been encouraging
Brad's relationship with his father and
acceptance of the new custody arrangements.
This Court further finds as fact that
plaintiff's insisting that defendant come into
her house on August 14, 2002 was a “set up.”
The Court finds that defendant did not commit
domestic violence on August 14, 2002, but that
he properly restrained Brad at a time when
plaintiff refused to help manage the child's
behavior. . . .
The court ordered that the 10-day ex parte domestic violence
protective order against defendant be dissolved, that the custody
order entered on 16 August 2002 remain unchanged, and that
plaintiff's request for a custody evaluation be denied. Plaintiff
gave notice of appeal from each of the foregoing orders.
_______________
The record on appeal contains fourteen assignments of error
and plaintiff presents arguments in support of each of them. Wehave carefully considered her arguments and, for the reasons stated
herein, affirm the trial court's order in all respects except for
its allocation of uninsured medical expenses.
First, plaintiff argues that the trial court erred by
excluding testimony during the child custody and support
modification hearing on 27 June 2002 regarding alleged acts of
domestic violence that occurred between the parties prior to the
initial August 1997 custody and support order. We reject her
argument.
It is well established that a child custody/child support
order may be modified only upon a showing of changed circumstances
by either party. N.C. Gen. Stat. § 50-13.7 (2003). This
requirement ensures that conduct and circumstances ruled upon in a
prior custody order are not relitigated in subsequent actions.
Newsome v. Newsome, 42 N.C. App. 416, 425, 256 S.E.2d 849, 854
(1979). In this case, the parties agreed, and an order was
entered, that the claims pertaining to domestic violence occurring
prior to August 1997 be dismissed with prejudice and that orders
entered with respect thereto be dissolved. Thus, the prior order
was
res judicata as to those claims.
Id.;
Owen v. Owen, 31 N.C.
App. 230, 231-233, 229 S.E.2d 49, 50-51 (1976)(conduct and
circumstances determined in a prior custody order may not be
relitigated during a hearing to modify that custody order).
Plaintiff argues that N.C. Gen. Stat. § 50-13.2(a) (2003),
which states that courts “shall consider all relevant factors
including acts of domestic violence between the parties” whenmaking child custody determinations, somehow supercedes this
general rule. When interpreting multiple statutes governing a
single subject, this Court must construe such statutes
in pari
materia in order to effectuate legislative intent and “to harmonize
them into one law on the subject.”
Brown v. Flowe, 349 N.C. 520,
523-24, 507 S.E.2d 894, 896 (1998). When G.S. § 15-13.2 and G.S.
§ 15-13.7 are read together, G.S. § 15-13.2 requires only
consideration of such relevant conduct and circumstances for
subsequent modification orders that have not been previously
decided or ruled upon in prior custody and support orders.
Plaintiff's first assignment of error is overruled.
Plaintiff next argues the trial court erred by not considering
the effect on the children of witnessing alleged domestic violence.
Plaintiff fails to point to any place in the record where the trial
court refuses to consider such evidence. Indeed, the record
indicates that the trial court admitted testimony regarding two
acts of domestic violence which allegedly occurred after the August
1997 custody and support order. While the trial court did not make
a finding regarding the first alleged act of domestic violence, it
did make a finding determining that the second alleged act of
domestic violence was without merit. We overrule plaintiff's
assignment of error.
See Witherow v. Witherow, 99 N.C. App. 61,
63, 392 S.E.2d 627, 629 (1990)(“[T]he trial court need not make a
finding as to every fact which arises from the evidence; rather,
the court need only find those facts which are material to theresolution of the dispute.”),
aff'd, 328 N.C. 324, 401 S.E.2d 362
(1991).
By her third, fourth, and eighth assignments of error,
plaintiff challenges the trial court's conclusions of law that
there was a substantial change in circumstances affecting the
welfare of the two youngest children, Elizabeth and Brad, and that
it was in the children's best interest to order a change in
custody. When reviewing an order modifying an existing child
custody order, this Court must determine whether there was
substantial evidence to support the trial court's findings of fact,
and whether those findings support its conclusions of law.
Shipman
v. Shipman, 357 N.C. 471, 474-75, 586 S.E.2d 250, 253-54 (2003).
With regard to the trial court's conclusions of law, our Supreme
Court has stated:
[T]he trial court must [first] determine
whether there has been a substantial change in
circumstances and whether that change affected
the minor child. Upon concluding that such a
change affects the child's welfare, the trial
court must then decide whether a modification
of custody was in the child's best interests.
If we determine that the trial court has
properly concluded that the facts show a
substantial change in circumstances has
affected the welfare of the minor child and
that modification is in the child's best
interests, we will defer to the trial court's
judgment and not disturb its decision . . . .
Id. at 475, 586 S.E.2d at 254.
After careful review, we conclude there is substantial
evidence in the record to support the trial court's findings that
for an extended period of time the parties did not follow the
schedule set out in the initial August 1997 custody order, butinstead the two younger children spent approximately one half of
their time with defendant; that plaintiff had significant time
restraints resulting from Brittany's horse-related activities and
the working of a second job; that plaintiff had exhibited signs of
depression and feelings of being overwhelmed; and that plaintiff
was unable to properly control her son, Brad, or control her temper
around her son.
Plaintiff points to a lack of findings by the trial court
regarding a change in the happiness or demeanor of her daughter
Elizabeth, and therefore, argues that the trial court's findings do
not support its conclusions regarding her welfare. We disagree.
“The welfare of the child in controversies involving custody is the
polar star by which the courts must be guided in awarding custody.”
Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E.2d 357, 361
(1968)(internal quotation omitted). When determining the welfare
of a child, the court must consider all the circumstances in a
case, not just the apparent demeanor of a child. The trial court's
findings regarding plaintiff's time restraints, her feelings of
depression and being overwhelmed, and her inability to control her
son, Brad, have a direct impact on the welfare of her daughter,
Elizabeth. We conclude that the trial court's findings support the
trial court's conclusion that there was a substantial change of
circumstances affecting the welfare of the minor children.
Plaintiff's assignments of error to the contrary are overruled.
Plaintiff next contends the trial court erred when it
determined that it was in the best interests of the minor children,Brad and Elizabeth, to reside primarily with defendant. She points
to allegations against defendant regarding acts of domestic
violence and his fitness as a parent, and argues that the trial
court's lack of findings regarding these specific allegations
support a reversal of the trial court's order.
“[T]he trial court need not make a finding as to every fact
which arises from the evidence; rather, the court need only find
those facts which are material to the resolution of the dispute.”
Witherow v. Witherow, 99 N.C. App. 61, 63, 392 S.E.2d 627, 629
(1990),
aff'd, 328 N.C. 324, 401 S.E.2d 362 (1991). The record
indicates that the trial court properly considered and rejected the
plaintiff's allegations of domestic violence in this case.
Furthermore, the trial court concluded, after considering all of
the evidence, that awarding primary custody to defendant was in the
two youngest children's best interest. After careful review, we
conclude that the trial court's findings support its conclusion,
and thus, we defer to the trial court's judgment and will not
disturb its decision.
In her seventh assignment of error, plaintiff contends the
trial court abused its discretion when it failed to give
considerable weight to the wishes of children of an appropriate
age. The wishes of a child of an appropriate age in a custody
dispute between parents are entitled to considerable weight.
Elmore v. Elmore, 4 N.C. App. 192, 197, 166 S.E.2d 506, 509 (1969).
“The expressed wish of a child of discretion is, however, never
controlling upon the court, since the court must yield in all casesto what it considers to be for the child's best interests,
regardless of the child's personal preference.”
Clark v. Clark,
294 N.C. 554, 577, 243 S.E.2d 129, 142 (1978)(internal quotation
omitted). The record indicates that the trial court heard and
properly considered testimony from both Brittany and Brad over the
course of this custody dispute. We find no abuse of discretion and
thus, overrule plaintiff's assignment of error.
Plaintiff argues, in her fifth assignment of error, that the
trial court erred by considering circumstances that no longer
existed at the time of the custody and support hearing.
Specifically, plaintiff asserts that by the time of the hearing,
her relationship with her son had improved dramatically, that
plaintiff was no longer working at night, that plaintiff had taken
steps to overcome her financial difficulties, and that she was no
longer overwhelmed or depressed. However, our Supreme Court has
held that “any past circumstance or conduct which could impact
either the present or the future of a child is relevant,
notwithstanding the fact that such circumstance or conduct did not
exist or was not being engaged in at the time of the custody
proceeding.”
Speagle v. Seitz, 354 N.C. 525, 531, 557 S.E.2d 83,
87 (2001),
cert. denied, 536 U.S. 923, 153 L. Ed. 2d 778, 122 S.Ct.
2589 (2002). Plaintiff's fifth assignment of error is overruled.
In her sixth assignment of error, plaintiff argues the trial
court erred when it made a finding of fact, based on calendars
submitted by the defendant, regarding the amount of time each child
spent with defendant. Plaintiff contends that the trial court'sreliance on such calenders constituted improper judicial notice
since the accuracy of the calenders were disputed at trial.
See
N.C. Gen. Stat. § 8C-1, Rule 201(b) (2003)(stating that a
judicially noticed fact must be one not subject to reasonable
dispute). However, the trial court did not take judicial notice of
the calenders, rather it determined, based on evidence presented by
defendant and not objected to by plaintiff, that the calendars were
adequate proof offered by defendant to prove the fact. A trial
court's findings of fact are conclusive on appeal if there is
substantial evidence to support them, even if the record could
sustain findings to the contrary.
Shipman v. Shipman, 357 N.C.
471, 474-75, 586 S.E.2d 250, 253-54 (2003). We hold the calenders
constituted substantial evidence to support the trial court's
finding of fact. Plaintiff's sixth assignment of error is
overruled.
In her ninth assignment of error, plaintiff contends the trial
court erred when it ordered both parties to provide equally for the
uninsured medical costs of the minor children. Child support
orders entered by a trial court will not be disturbed absent a
clear abuse of discretion.
Leary v. Leary, 152 N.C. App. 438, 441,
567 S.E.2d 834, 837 (2002). N.C. Gen. Stat. § 50-13.4(c)(2003)
provides:
Payments ordered for the support of a minor
child shall be in such amount as to meet the
reasonable needs of the child for health,
education, and maintenance . . . .
...
The court shall determine the amount of child
support payments by applying the presumptive
guidelines established pursuant to subsection
(c1) of this section. However, upon request of
any party, the Court shall hear evidence, and
from the evidence, find the facts relating to
the reasonable needs of the child for support
and the relative ability of each parent to
provide support. If, after considering the
evidence, the Court finds by the greater
weight of the evidence that the application of
the guidelines would not meet or would exceed
the reasonable needs of the child considering
the relative ability of each parent to provide
support or would be otherwise unjust or
inappropriate the Court may vary from the
guidelines.
The North Carolina Child Support Guidelines in effect at the time
of the entry of the modification order on 16 August 2002 stated:
Medical or dental expenses in excess of $100
per year and uncompensated by insurance should
be divided between the parties in proportion
to their respective incomes.
N.C. Child Support Guidelines, 2002 Ann. R. (N.C.) 33, 36
(superceded by amendments effective October 1, 2002).
In its order, the trial court found that plaintiff's monthly
income was less than half defendant's monthly income, yet still
ordered that the parties provide equally for the uninsured medical
costs of the minor children. Since there is no indication in the
record that defendant requested a deviation from the presumptive
guidelines and since the trial court made no findings regarding why
deviation from the presumptive guidelines in this case was
appropriate, the trial court abused its discretion when it ordered
both parties to provide equally for the uninsured medical costs ofthe minor children instead of in proportion to the parties'
respective incomes.
Plaintiff also argues in her ninth assignment of error that
the trial court erred when it failed to award plaintiff attorney
fees. N.C. Gen. Stat. § 50-13.6 (2003) permits the trial court to
award attorney fees under certain circumstances in actions for
custody and support of minor children. “A trial judge is permitted
to exercise considerable discretion in allowing or disallowing
attorney's fees in [such] cases.”
Warner v. Latimer, 68 N.C. App.
170, 176, 314 S.E.2d 789, 793 (1984). We discern no abuse of
discretion in this case.
In assignments of error numbered ten and eleven, plaintiff
argues the trial court erred when it awarded only one dependent
child tax deduction to plaintiff and when it calculated child
support for all three children using a Worksheet B. We reject
these contentions without discussion as they are completely lacking
in merit.
By her assignments of error numbered twelve and thirteen,
plaintiff contends that the trial court erred when it denied
plaintiff's motion for a new trial pursuant to Rule 59 of the North
Carolina Rules of Civil Procedure. “Our review of a trial court's
denial of a Rule 59 motion is limited to a determination of whether
the trial judge abused his discretion.”
Ollo v. Mills, 136 N.C.
App. 618, 624, 525 S.E.2d 213, 217 (2000). After careful review,
we find no abuse of discretion by the trial court. Plaintiff argues the trial court's refusal to allow direct
testimony regarding alleged acts of domestic violence by defendant
occurring prior to the initial August 1997 custody and support
order was error warranting a new trial because the testimony was
admissible to impeach defendant's testimony that he did not have an
anger management problem. A new trial may be granted based on an
error of law occurring at trial and objected to by the party making
the motion. N.C. Gen. Stat. § 1A-1, Rule 59(a)(8) (2003). In this
case, plaintiff cites G.S. § 8C-1, Rule 405 which provides: “[o]n
cross examination, inquiry is allowable into relevant specific
instances of conduct” where proof of a person's character is
relevant and admissible at trial. N.C. Gen. Stat. §8C-1, Rule
405(a) (2003). During her cross-examination of defendant,
plaintiff was permitted to question him about conduct allegedly
occurring prior to the August 1997 custody and support order.
Thus, plaintiff's contention of error is without merit.
Plaintiff also argues the trial court erred when it admitted
evidence, consisting of e-mail and photographs, which she contends
were unlawfully taken from her residence by defendant. A new trial
may be granted based on misconduct by a prevailing party. N.C.
Gen. Stat. §1A-1, Rule 59(a)(2) (2003).
We must first note that plaintiff did not object to these
exhibits and thus, has waived any argument regarding their
admission into evidence. Furthermore, plaintiff was given, and
took, full opportunity to explain and introduce evidence to the
court regarding her belief that defendant had unlawfully takenthese things from her home. Thus, the trial court's denial of a
new trial was neither a manifest abuse of discretion nor clearly
erroneous. Plaintiff's assignment of error is overruled.
Finally, plaintiff argues the trial court erred by denying her
motion for a child custody evaluation. Both the Rules of Evidence
and the Rules of Civil Procedure authorize and empower a trial
court to appoint, on its own motion or the motion of a party, an
expert to conduct a child custody evaluation. N.C. Gen. Stat. §§
1A-1, Rule 35(a) & 8C-1, Rule 706(a) (2003). However, it is clear
that the decision to either grant or deny such a motion is
discretionary and therefore, our review is limited to whether the
trial court abused its discretion in denying the motion.
See White
v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)(“It is
well established that where matters are left to the discretion of
the trial court, appellate review is limited to a determination of
whether there was a clear abuse of discretion.”).
In this case, the trial court conducted a full hearing where
both parties presented witnesses and evidence regarding whether
child custody should be modified, and from this hearing, made
thirty-one findings of fact regarding such evidence. Moreover, the
trial court also considered additional evidence presented during
plaintiff's motion for a new trial and during a hearing addressing
plaintiff's complaint and motion for a domestic violence protective
order. From such evidence, it is apparent that the trial court had
sufficient knowledge of the parties and the situation to make a
custody determination without the need for an independent custodyevaluation. Therefore, we discern no abuse of discretion in the
trial court's denial of plaintiff's motion to appoint an expert to
conduct a child custody evaluation in this case.
In summary, the trial court's orders are affirmed in all
respects except for that portion of the court's 16 August 2002
order allocating the children's uninsured medical expenses. As to
that issue, the order is reversed and this cause is remanded to the
trial court for entry of an order allocating the children's
uninsured medical expenses as provided by the applicable child
support guidelines.
Affirmed in part, reversed in part, and remanded.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
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