An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-613


Filed: 18 May 2004


    v .                             Wilkes County
                                No. 02 CVD 580

    Appeal by plaintiff from order filed 27 September 2002 by Judge Jeanie R. Houston in Wilkes County District Court. Heard in the Court of Appeals 5 February 2004.

    Donna L. Shumate Attorney at Law, by Donna L. Shumate, for plaintiff-appellant.

    The Sandlin Law Firm, by Deborah Sandlin, for defendant- appellee.

    BRYANT, Judge.

    Altaf Ladhani (husband-plaintiff) appeals an order filed 27 September 2002 granting Farah Altaf Ladhani (wife-defendant) primary physical custody of their daughter.
    The parties were married in March 2001.   (See footnote 1)  A month thereafter, the couple moved from Richmond, Virginia to Wilkesboro, North Carolina. On 17 January 2002, their daughter was born. Shortly after the child's birth, plaintiff participated in a traditional rite of placing a small amount of honey in the child's mouth.Plaintiff did so over defendant's objection and warning about the danger of feeding honey to an infant. On the day following the ritual, the child appeared sick and was taken to a physician.
    On or about 27 March 2002, plaintiff traveled by automobile to New York for a job interview. During some of the days plaintiff was away from home, defendant's father came to the home to be with defendant and the child. One day after plaintiff's return home on 31 March 2002, the parties had a dispute to which police officers responded to the home at the request of defendant and her father. Plaintiff thereafter left the home to go to the magistrate's office, and returning later. In plaintiff's presence, defendant having packed her belongings and items for the child, left the home with her father and the child.
    On 5 April 2002, plaintiff filed a complaint requesting primary physical custody of the child and a motion for emergency relief requesting temporary and exclusive legal and physical custody of the child. The next day, the parties met and talked at the home of Salim and Yasmin Bhatia. After their meeting, the parties left the Bhatias' home unreconciled.
    In a 9 April 2002 ex parte order, the trial court awarded temporary joint custody to both parents. Subsequently, four separate orders awarding temporary joint custody were issued.
    In late May or early June of 2002, the parties met at Our House, a social services site in Wilkesboro, to allow defendant a visit with the child. Glenda Triplett (Triplett), a staff person at Our House, supervised the visit.    Six hearings on the issue of child custody were conducted between 25 June 2002 and 22 January 2003. In an order filed 27 September 2002, the trial court made findings of fact and conclusions of law and awarded primary physical custody of the child to defendant and visitation rights to plaintiff. Plaintiff appeals.


    The issues are whether the trial court erred in: (I) ruling on several evidentiary matters; (II) making certain findings of fact, namely 10, 12, 18, 21, 29, 32, and 41; and (III) concluding defendant, but not plaintiff, was a fit person to have primary physical custody of the child and that it was in the best interests of the child for her primary physical custody to be placed with defendant.
    Preliminarily, we note plaintiff has failed to comply with N.C.R. App. 28(b)(6) by not identifying the pages at which the assignments of error appear in the record on appeal and not appropriately referring to the record on appeal in the body of the argument in his brief to this Court. See N.C.R. App. P. 28(b)(6). We nevertheless elect to review plaintiff's arguments pursuant to N.C.R. App. P. 2.

    Plaintiff first argues the trial court erred in: (1) accepting Triplett, the staff person from Our House, as an expert in child care and allowing her to render an opinion on the effect of honey ingested by an infant; (2) admitting defendant's testimonyabout a statement by the child's physician regarding feeding honey to an infant; (3) admitting electronic mails (emails) allegedly sent by plaintiff; and (4) requiring plaintiff's witness to answer a question on the submissiveness of women in an Islamic culture.

    Plaintiff assigned error to the trial court's acceptance of Triplett as an expert in child care and allowing her to express an opinion on the effect of an infant's digestion of honey. Plaintiff also assigned as error defendant's hearsay testimony regarding statements by the child's physician as inadmissible hearsay.
    As plaintiff did not object to Triplett's qualifications as an expert before the trial court, his objection on appeal is therefore waived. See Statesville v. Cloaninger, 106 N.C. App. 10, 18, 415 S.E.2d 111, 116 (1992) (“[a]n objection to a witness's qualifications as an expert in a given field or upon a particular subject is waived if it is not made in apt time”). Plaintiff, moreover, did not object to defendant's testimony at the time it was made and thus has waived any error for appeal. See In re Rhyne, 154 N.C. App. 477, 481 n.1, 571 S.E.2d 879, 881 n.1 (2002) (failure to object to hearsay evidence constitutes waiver); N.C.R. App. P. 10(b)(1) (“[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make”).

    Plaintiff further assigns error to the trial court's admissionof email, allegedly sent by plaintiff to defendant and to others, on the ground of relevancy. In one particular email, plaintiff stated: “In court I will have to seek support from the devil to defend myself, and trust me, it is very easy in this country. . . . I may seek an arrest warrant against her and her family just to prove myself not guilty of her charges against me.” Because plaintiff objected before the trial court to this email only, we do not review any other emails for error. See N.C.R. App. P. 10(b)(1).
    “'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C.G.S. § 8C-1, Rule 402 (2003).
        “The primary purpose of impeachment is to reduce or discount the credibility of a witness for the purpose of inducing the jury to give less weight to his testimony in arriving at the ultimate facts in the case.” Any circumstance tending to show a defect in the witness's perception, memory, narration or veracity is relevant to this purpose.

State v. Ward, 338 N.C. 64, 97, 449 S.E.2d 709, 727 (1996) (citations omitted).
    The email at issue is relevant for impeachment purposes, as it tends to undermine plaintiff's earlier testimony regarding his calmness and lack of anger problems.   (See footnote 2)  In addition, plaintiff does not show he was prejudiced by the admission of the email. SeeState v. Wilson, 151 N.C. App. 219, 226, 565 S.E.2d 223, 228 (“'[t]he burden is on the party who asserts that evidence was improperly admitted to show both error and that he was prejudiced by its admission'”) (citation omitted), disc. review denied, 356 N.C. 313, 571 S.E.2d 215 (2002). Therefore, this assignment of error is overruled.
    Plaintiff also argues the trial court erred in requiring plaintiff's witness   (See footnote 3)  to answer a question on the submissiveness of women in an Islamic culture.   (See footnote 4) 
    During direct examination, plaintiff's witness was asked: “[D]o the Ladhani practice any, have any sort of practice, cultural or religious practice . . . that puts the wife in some sort of submissive position to the husband?” The witness answered: “No, not at all.” Subsequently, defendant's counsel cross-examined the witness as follows:
        Q.     You mentioned a few moments ago that your culture does not have women in a . . . submissive role. Now are you talking about your family in particular or are you talking about your culture in particular?

        A.    I'm talking on both, family and--culture . . . , like we're not submissive in the sense . . . like wearing veils or anything.
        Q.    Are you Islamic?

        A.    Yes.

        Q.    What was going on over there in Afghanistan? Isn't that an Islamic culture?
    Plaintiff objected to the last question before the trial court, which overruled the objection. On appeal, plaintiff argues the question was irrelevant. Regardless of whether the question was irrelevant, we see no error as plaintiff opened the door to the topic during his direct examination of the witness. See State v. Walters, 357 N.C. 68, 87, 588 S.E.2d 344, 355 (2003) (“[w]here one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially”). Accordingly, this assignment of error is without merit.

    Plaintiff also assigns error to the trial court's findings of fact 10, 12, 18, 21, 29, 32, and 41. Plaintiff argues these findings were not supported by competent evidence.
    As between parents, “[t]o support an award of custody, the judgment of the trial court should contain findings of fact which sustain the conclusion of law that custody of the child is awarded to the person who will 'best promote the interest and welfare of the child.'” Montgomery v. Montgomery, 32 N.C. App. 154, 157, 231 S.E.2d 26, 29 (1977) (citation omitted). “'The findings . . . are conclusive when supported by competent evidence, even when the evidence is conflicting.'” Henderson v. Henderson, 121 N.C. App.752, 756, 468 S.E.2d 454, 457 (1996) (citation omitted). “[I]t is within the trial court's discretion to determine the weight and credibility that should be given to all evidence that is presented during the trial.” Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994). With these guiding principles in mind, we review the findings of fact.
Finding of Fact 10

    Finding of fact 10 states: “[F]ollowing the birth of the minor child on January 17[], 2000, . . . [p]laintiff failed to see to it that . . . [d]efendant was provided with her post-natal checkup.” This finding is supported by competent evidence. Defendant testified that, for more than two months after the birth of the child, she had not had post-natal check-ups, which she felt were important and necessary to her health. On the day of the parties' separation, when defendant did not feel well, she asked plaintiff to take her to a physician. Defendant did “[n]othing[ because h]e was busy going to work.”
Finding of Fact 12

    Finding of fact 12 states: “Plaintiff had requested that . . . [d]efendant's father come to Wilkesboro to stay with . . . [d]efendant during . . . [p]laintiff's absence to New York, but . . . [p]laintiff left for New York without knowing whether . . . [d]efendant's father would be able to come to Wilkesboro to stay with . . . [d]efendant.” Defendant testified that two days before plaintiff left for New York, plaintiff had called defendant's father and asked him to come to the home to help defendant inplaintiff's absence. Defendant further testified that when plaintiff left for New York, the father was not at the home, and plaintiff told her he did not know whether the father would come. Accordingly, the finding is supported by competent evidence, notwithstanding contradictory testimony from plaintiff that the father had already arrived at the home when plaintiff left for New York.
Finding of Fact 18

    Finding of fact 18 states: “[U]pon [O]fficer [Christy] Cleary's arrival at the parties' residence on April 1[], 2002, . . . [p]laintiff was hostile toward the officer, and . . . [d]efendant was very frightened of . . . [p]laintiff and did not want either herself or the minor child to be left alone with . . . [p]laintiff.” This finding is also supported by competent evidence. Officer Cleary testified plaintiff was “hostile” “in his voice” to her when she “first got [to the home],” and that defendant informed the officer she was in fear for her life and her child's and “wanted to talk to [the officer] alone.”
Finding of Fact 21

    Finding of fact 21 states: “[D]uring the dispute of April . . . 1[], 2002, . . . [p]laintiff had been banging his head against the wall, crying and begging . . . [d]efendant to stay with him.” Defendant testified that on 1 April 2002, while her father was trying to get help from law enforcement, plaintiff “was banging his head against the wall.” Plaintiff testified that when Officer Cleary arrived, he went to the magistrate's office and cried beforethe magistrate. When he returned to the home, he repeatedly said to defendant, “Farah, please stay home. Do not leave.” Therefore, the finding is supported by competent evidence.
    Defendant argues the officers who responded to the home did not testify that defendant cried during the dispute. However, this evidence did not preclude the finding of his crying during the dispute. Furthermore, even assuming plaintiff's travel to and presence at the magistrate's office had not occurred during the dispute, “any discrepancies between proof and findings of fact were minor and non-prejudicial.” In re Clark, 72 N.C. App. 118, 125, 323 S.E.2d 754, 759 (1984). Plaintiff's emotional state at the time showed that he was excited and in distress. Plaintiff admitted he was “extremely nervous” when he came back from the magistrate's office, and a neighbor observed that plaintiff was “at the edge of crying” after defendant had left with the child.
Finding of Fact 29

    Finding of fact 29 states:
        Plaintiff admitted that he made no effort to contact any airlines, passenger ship-lines, law enforcement agencies in Pakistan, or consulates or embassies of either the United States or Pakistan, in either country, in order to investigate and/or prevent the realization of his belief that . . . [d]efendant was attempting to leave the United States and travel to Pakistan with the parties['] minor child, as he alleged in his [c]omplaint in support of his request for the emergency ex parte order previously entered by [the trial c]ourt.

    In his testimony, plaintiff only admitted to contacting the Embassy of Pakistan in the United States. The finding thus is notsupported by competent evidence. Nevertheless, the finding is not material to the trial court's conclusion on plaintiff's fitness for child custody purposes, as indicated below, and is to be disregarded. See In re Stancil, 10 N.C. App. 545, 549, 179 S.E.2d 844, 847 (1971) (immaterial findings of fact are to be disregarded).
Finding of Fact 32

    Finding of fact 32 states:
        Plaintiff had no valid reason in support of any good-faith belief that . . . [d]efendant was attempting, or even contemplating, to leave the United States and take the minor child to Pakistan or any other foreign nation. To the contrary, the evidence presented tends to indicate that if there is any danger that the minor child might be removed from the United States illegally, then . . . [p]laintiff would be more likely than . . . [d]efendant to take such illegal actions in as much as . . . [p]laintiff's own testimony indicates and demonstrates his willingness to violate very serious Federal and State laws.

    This finding is supported by competent evidence. Contrary to plaintiff's assertion, the sole fact that defendant's father planned to go to Pakistan could not give rise to a good-faith belief that defendant would attempt to take the child to Pakistan. In fact, plaintiff admitted he guessed defendant and the child left the home to go to the North Carolina cities of Greenville, Rocky Mount, or New Bern. Nevertheless, four days after the dispute, plaintiff filed an ex parte motion for emergency relief requesting temporary custody of the child. On the same day, at the end of the parties' meeting at the Bhatias' home, plaintiff threatened defendant, saying “I'll take your daughter away from you.” Furthermore, plaintiff had already violated the law when he entered the United States illegally as a teenager and worked in this country illegally before receiving a pardon. Defendant also testified she would be concerned about unsupervised child visitation by plaintiff because he could take the child to Pakistan. Accordingly, this assignment of error is overruled.
Finding of Fact 41

    Finding of fact 41 states:
        [D]uring the visit to “Our House” . . . [p]laintiff would only address . . . [d]efendant in a foreign language which could not be understood by . . . Triplett, though he demonstrated that he had the ability to communicate in English by his willingness to communicate with . . . Triplett in the English language.

    This finding is also supported by competent evidence. Triplett testified that initially when the parties were at Our House, “whenever there would be any speaking going on, it seemed to be pleasant and fine until the father spoke to the mother and then he would go from English to a different language.” The trial court further found, and plaintiff did not assign error to the finding, that subsequently “Triplett had to insist upon . . . [p]laintiff using the English language when addressing . . . [d]efendant in order to get him to do so.”
    Plaintiff did not assign error to other findings of fact, and they therefore are binding on appeal. See In re Calwell, 75 N.C. App. 299, 301, 330 S.E.2d 513, 515 (1985) (the trial court's findings are binding on appeal when they are not excepted to); N.C.R. App. P. 10(a) (“the scope of review on appeal is confined toa consideration of those assignments of error set out in the record on appeal”).

    Finally, plaintiff contends the trial court erred in concluding defendant, but not plaintiff, was a fit person to have the primary physical custody of the child, and that it was in the best interest of the child for her primary physical custody to be placed with defendant. We disagree.
    Child custody must be awarded “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). The trial court's conclusions of law, which must be supported by the findings of fact, are reviewable de novo. Browning v. Helff, 136 N.C. App. 420, 423, 524 S.E.2d 95, 98 (2000); see Montgomery, 32 N.C. App. at 157, 231 S.E.2d at 29. However, 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.    In this case, the trial court's conclusions are supported by its findings. The following findings demonstrate defendant's willingness and ability to care for the child and that it is in the child's best interest that she be in defendant's physical custody:
            35.    . . . Defendant treated the minor child with the love and affection to be expected of a new mother during the visit at “Our House[,”] . . . Triplett . . . testified that . . . [d]efendant looked as though “she could soak the child into her” during the visit;

            36.    . . . [D]uring the visit to “Our House” . . . [d]efendant showed great willingness to explain to . . . [p]laintiff what he needed to know and to do in order to properly care for the minor child while she was in . . . [p]laintiff's custody;

            . . . ;

            52.    . . . Defendant objected to the observance of th[e] tradition [of placing honey in the child's mouth] at the time and made her objection known to . . . [p]laintiff and his family members who were present at this event and informed them of the dangers posed by giving honey to a minor child under the age of one year, but that she was alone in her objection in this regard and that . . . [p]laintiff and his family over[]ruled her objection and gave honey to the minor child anyway. . . . ;

            . . . ;

            60.    . . . [I]f . . . [d]efendant should be awarded the primary physical custody of the minor child, then she intends to remain at home with the minor child and forego employment until the minor child is at least three (3) years of age.

    In his brief, plaintiff argues the trial court failed to consider the “important question about . . . [d]efendant's mental fitness to parent a minor child,” pointing to plaintiff's testimonyof defendant's “bouts of depression” and “a suicide attempt,” involving the taking of about fifteen Tylenol pills. We note that the trial court did not find defendant suffered from depression or had contemplated suicide in taking the pills. Based on the foregoing findings, we do not discern any abuse of discretion by the trial court concerning its conclusion of defendant's fitness and the child's best interest. See Pulliam, 348 N.C. at 631, 501 S.E.2d at 906; Peal, 305 N.C. at 646, 290 S.E.2d at 668.
    Moreover, the trial court's conclusion that it is not in the child's best interest for her primary physical custody to be placed with plaintiff is also supported by the following findings, to which plaintiff did not object:
            37.    . . . [D]uring the visit at “Our House[,”] . . . [p]laintiff, while obviously interested in learning and developing such skills and abilities and asking questions such as how to properly mix the child's formula, did not display the skills and abilities to be expected of a primary care-giver, nor did his questions indicate that he already had those skills and abilities. . . . The [c]ourt finds as a fact that . . . [p]laintiff does not have the necessary skills to be expected of one who has been the primary care-giver for a new- born, as alleged in his verified [c]omplaint;

            . . . ;

            51.    . . . Plaintiff and his sister-in- law . . . both admitted under oath that they had participated in a family/cultural/religious tradition wherein a small amount of honey was placed in the minor child's mouth shortly after the child's birth. The [c]ourt finds as a fact that this ritualistic practice did take place and that said practice presented a potentially fatal hazard to the minor child . . . ;

            . . . ;    
            54.    . . . [O]n the first occasion when the minor child was given back to . . . [d]efendant for a period of custody with . . . [d]efendant, after having been in the custody of . . . [p]laintiff for a number of weeks, there was a horrible rash present on the child's rectal and vaginal areas, as evidenced by photographs taken on the day of the exchange, which were admitted into evidence as exhibits . . . . Upon questioning about this rash, . . . [p]laintiff admitted that while he changes the minor child's diapers, he does “. . . not look down there” indicating to the [c]ourt a lack of proper attention on the part of . . . [p]laintiff during the diaper changing process. . . . Plaintiff could not look at the photographs of this rash on the witness stand when presented to him . . . , indicating that he himself found the photographs to be offensive;

            . . . ;

            56.    . . . Plaintiff has a lack of tolerance for loud noises . . . , and that he has tried to suppress the babbling of the minor child in the past. . . . Plaintiff's intolerance to noise was demonstrated by . . . [p]laintiff's numerous protestations to the [c]ourt from the witness stand when counsel for the [d]efense would speak to . . . [p]laintiff in a loud voice during cross- examination, . . . [p]laintiff working himself into a near frenzy on occasion due to the tone and level of the voice of counsel for the [d]efense, which tone and level of voice the [c]ourt does not find to have been either unusual or inappropriate in the context of cross-examinations.

    In addition, the trial court observed that plaintiff's hostility and expression of anger toward defendant during the 6 April 2002 dispute at the home of the Bhatias, as well as the dispute at Our House, helped raise concern over plaintiff's temper. Overall, the trial court's findings of fact support the conclusion that plaintiff is unfit to assume primary physical custody of thechild and it is not in the child's best interest for her custody to be placed with plaintiff.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
    Plaintiff's complaint stated the marriage date was 31 March 2001. In her answer, defendant stated the date as 30 March 2001. The trial court's order, in turn, noted the marriage date as 30 March but mistakenly listed the year as 2002.
Footnote: 2
    Plaintiff testified: “I always say everything very calm, very easy.” When asked whether he “ever had any types of problems with anger management,” he answered in the negative.
Footnote: 3
    The witness was plaintiff's sister-in-law (de fendant's sister), who has the same name as defendant.
Footnote: 4
    In his brief to this Court, plaintiff actually contends “[t]he trial court committed plain error.” The plain error principle, however, does not apply to child custody cases. In re Gleisner, 141 N.C. App. 475, 479, 539 S.E.2d 362, 365 (2000); see Wachovia Bank & Trust Co., N.A. v. Guthrie, 67 N.C. App. 622, 626, 313 S.E.2d 603, 606 (1984) (“the 'plain error' rule . . . appl[ies] only in criminal cases”).

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