TERRY BRYSON,
Plaintiff
v
.
Harnett County
No. 01 CVD 1622
RONALD BRYSON,
Defendant
Staton, Perkinson, Doster, Post & Silverman, by Jonathan
Silverman, for plaintiff-appellant.
Hayes, Williams, Turner, & Daughtry, P.A., by Parrish Hayes
Daughtry, for defendant-appellee.
CALABRIA, Judge.
Terry Bryson (“mother”) appeals the trial court's order
granting primary physical custody of her daughter (“child”) to the
child's father, Ronald Bryson (“father”). Mother asserts the trial
court erred by: failing to determine the best interests of the
child; making certain findings of fact; failing to make other
findings of fact; failing to properly weigh the recommendation of
a psychologist as contained in his child custody evaluation;
engaging in questioning of the parties; and granting father
custody. We affirm the order of the court.
Mother and father were married in 1994, the child was born in
1995, and the parties separated three months later. In 1996, father was awarded visitation following a custody dispute in
Maryland. Shortly thereafter, mother took the child and moved
away. Over the next three years, father attempted to locate mother
and his child. He continuously paid child support and sent gifts
to his child through mother's parents, but they refused to furnish
father with any information. Finally, three years after mother
left, father hired a private investigator who found mother and the
child. Father filed a petition for contempt. On 26 April 2000,
the mother appeared, and the Maryland court found mother in
contempt of the custody order for intentionally keeping the minor
child from the father for all periods after June 1997.
In July 2000, father was awarded temporary custody of the
child and mother was awarded visitation. In 2001, these orders
were registered with our courts, and mother moved for primary
physical custody. Eventually the parties entered into a consent
order granting father temporary physical custody, mother
visitation, and requiring a psychological evaluation. In 2002, the
court held a hearing to determine child custody and support. The
court awarded primary physical custody to father with visitation
rights and child support obligations to mother. Mother appeals.
I. Questioning of the parties
Mother first asserts the trial court erred by engaging in
questioning of the parties. Indeed, the court asked questions to
clarify the testimony of mother, father and stepmother and engaged
in questioning the psychologist, mother and father. Our Rules of
Evidence provide: “[t]he court may interrogate witnesses, whethercalled by itself or by a party.” N.C. Gen. Stat. § 8C-1, Rule
614(b) (2003). When sitting with a jury, the court must be
cautious not to express an opinion as to the evidence or
credibility of the witness. State v. Smarr, 146 N.C. App. 44, 48,
551 S.E.2d 881, 884 (2001); N.C. Gen. Stat. § 8C-1, Rule 614
(comment). However, this proceeding was without a jury, and
accordingly, there is no concern any opinions expressed or implied
by the court by its questioning of the witnesses resulted in any
improper influence. Since the rules plainly provide for the
court's actions, we do not find error.
II. Findings of Fact by the court
Mother next asserts the trial court erred by making certain
findings of fact. “When reviewing a child custody order, we are
bound by the trial court's findings of fact so long as those
findings are supported by competent evidence.” Lamond v. Mahoney,
159 N.C. App. 400, 403, 583 S.E.2d 656, 658 (2003). Even if the
evidence would have supported a finding to the contrary, “'[t]he
trial judge's decision will not be upset, in the absence of a clear
abuse of discretion[.]'” Raynor v. Odom, 124 N.C. App. 724, 729,
478 S.E.2d 655, 658 (1996) (quoting Sheppard v. Sheppard, 38 N.C.
App. 712, 715, 248 S.E.2d 871, 874 (1978)). Moreover, “[w]here 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.” Koufman v. Koufman, 330 N.C. 93, 97, 408
S.E.2d 729, 731 (1991). Finally, we need not consider every
finding of fact because it is well established that in non-jurytrials “where there are sufficient findings of fact based on
competent evidence to support the trial court's conclusions of law,
the judgment will not be disturbed because of other erroneous
findings which do not affect the conclusions.” In re Estate of
Pate, 119 N.C. App. 400, 403, 459 S.E.2d 1, 2 (1995); accord In re
Custody of Stancil, 10 N.C. App. 545, 549, 179 S.E.2d 844, 847
(1971) (a judgment “is sufficient if enough material facts are
found to support [it]”). Mother assigned as error eighteen of the
sixty findings of fact. We consider only those findings material
to the judgment.
Initially, we note some of the findings that she asserted were
not supported by the evidence are repeated in other findings of
fact which were not excepted to on appeal. Accordingly, since the
findings to which no exception is taken are binding on appeal, we
need not address those duplicated findings.
(See footnote 1)
We address the
remaining material findings of fact.
First, mother asserts the trial court erred in making findings
of fact regarding her moving with the child, the events of the
following three years and the extensive litigation in Maryland.
The court found as fact:
24. That originally in 1996, the Defendant
[Father] was forced to file in Maryland a
lawsuit to receive any visitation rights
unsupervised by the Plaintiff [Mother]. After
extensive litigation, and upon gaining these
visitation rights, visitations were set to begraduated by Consent Order to overnight visits
over the course of some period of time. The
evening before the Defendant's first overnight
visitation, the Plaintiff called the Defendant
and told him that the visitation would not
occur and that she had taken the minor child
and left the state of Maryland. This was the
last telephone call the Defendant received
from the Plaintiff. Approximately three years
later the Defendant finally found the
Plaintiff and child and caused contempt papers
to be served on her.
25. The Defendant had, over the course of the
three years that the Plaintiff hid the minor
child from him, continuously looked for the
Plaintiff and the minor child. The Defendant
had also continuously paid child support and
he had continuously sent gifts and letters to
the minor child. The Defendant did all of
this correspondence through the Plaintiff's
parents who were, outside of child support,
completely financially supporting the
Plaintiff. The Plaintiff's parents made
certain that the Plaintiff received all the
money, cards and gifts that the Defendant had
sent; however, they would not give the
Defendant any information on where the
Plaintiff was located although they had full
knowledge of her whereabouts and the minor
child's whereabouts. The Plaintiff's parents
have actively conspired with the Plaintiff in
keeping the minor child away from the
Defendant. The Plaintiff lived on cash only,
lived with other people, including her sister,
or in apartments not in her name, and
maintained only a cellular phone in someone
else's name. Her parents were in regular
contact with her and knew her whereabouts and
how to contact her at all times. The
Plaintiff's parents not only helped her hide
from the Defendant but also made sure she
received all the child support the Defendant
sent to their home. They refused to ever tell
the Defendant where his child was.
The material facts in these findings are amply supported by
testimony of both mother and father. Mother testified that just
prior to father's first scheduled overnight visitation, andfollowing lengthy court action ending in a consent order, she
“panicked and . . . made a bad decision” and moved to New
Hampshire. She explained that her parents always knew where she
was, and father's gifts and child support were forwarded to her via
her parents. Father testified that he asked mother's parents where
his child was, but they refused to tell him. He further testified
that with the assistance of two attorneys and a private
investigator, he finally found his child after three years and
immediately served contempt papers on mother. Father explained
that it took so long to find mother because mother lived under her
sister's name so “there was no proof of her nowhere” and no “paper
trail” to follow. While there are some details in the findings of
fact which were not readily apparent in our review of the
transcript, none of these details are material, and the substantive
portions of these findings of fact are supported by the evidence.
Mother argued the court improperly considered the prior events
and litigation because it was unnecessary for this child custody
determination. We disagree. “[I]t is not improper for a trial
court to take judicial notice of earlier proceedings in the same
cause. [And therefore, w]hen a trial judge is attempting to
evaluate what is in the best interests of the child . . . it is an
undue restriction to prohibit the trial judge's consideration of
the history of the case on record.” Raynor, 124 N.C. App. at 728,
478 S.E.2d at 657 (internal citations omitted). We hold
accordingly. Mother also asserts the court erred in finding the three years
the child was separated from her father were “detrimental.” As we
have previously discussed, the evidence amply supports the findings
of fact that mother moved with the child and kept her whereabouts
secret from father for three years. Therefore, we cannot find the
court abused its discretion in determining mother's unilateral
choice to keep the child from an active and loving father was
detrimental to the child and not in the child's best interests.
Moreover, father testified that when the child was found she
“couldn't spell three letter words,” could not read, and “she had
no interaction with other kids” because the mother “didn't believe
kids should have social interaction until six or seven [years
old].” The court's finding is also amply supported by this
evidence.
Next, mother asserts the trial court's findings with respect
to her interactions with the child were not supported by the
evidence. We disagree. The court found that mother was
excessively volunteering at her daughter's school, since she was
there daily and often ate breakfast with the child. The court
found this behavior was “disrupting the minor child's schooling and
[was] extremely disruptive and not in the best interest of the
minor child's education or welfare.” Mother did not dispute that
she volunteered in her daughter's class every morning. As
demonstrated by exhibits, during this period the child was unable
to complete a number of her morning assignments. Father testified
that after mother's volunteering was limited by a court order toonce a week, the child's “grades skyrocketed.” Accordingly, we
find competent evidence supports the court's findings of fact.
The court further found mother routinely interrupted the
child's ball games and such conduct is detrimental to the child.
Father testified that because the children are required to be on
the bench during the games, he and his wife, who assists with the
games, have to “tell [the children] to go get back on the bench”
when they wander off during games, but that before and after the
game the child may visit with her mother. Mother testified that
since the child had been yelled at for coming to see her during the
game, “she's afraid to come near me” but that “she kind of looks at
me on the sly and she'll wave.” None of this testimony supports
the conclusion that mother instigated her child's disobedience with
the policy that the children must remain on the bench during the
games; therefore, it does not support the court's finding of fact.
However, this finding of fact is extraneous because “enough
material facts are found to support the judgment[.]” Stancil, 10
N.C. App. at 549, 179 S.E.2d at 847 (emphasis omitted).
Accordingly, we find no reversible error here. Id. We note the
same is true for the court's finding that pictures of father's home
were introduced and that mother's parents testified but were not
credible. Indeed, no photographs are evident from the record nor
is any testimony from mother's parents. Nevertheless, such
findings are immaterial to the court's determination.
The court found mother repeatedly required court orders to
change visitation schedules whereas father has been “veryreasonable” in accommodating mother's parents in their visits to
North Carolina. Mother testified that this was true, but explained
that once “he didn't carry through with his end of the bargain”
and, therefore, she could not trust him unless it was in a court
order. This finding of fact is supported by the evidence, and even
though the evidence may have supported a more detailed finding
explaining the justification for mother's requirement, we are bound
by the court's determination.
The court summarily found as fact that it was concerned about
mother acting in the child's best interests “given her reckless
disregard of the minor child's emotional growth, need for
stability, and constant disruptions to the minor child's daily
activities.” This finding is amply supported by competent
evidence, the detailed findings contested above, as well as other
findings of fact not contested on appeal; therefore, we find no
error here.
Lastly, mother asserts the court held an “unfair bias” against
her. This is a weighty charge, and one without basis in fact.
Mother points to findings where father's behavior is deemed
“reasonable” while her actions are considered “disruptive” and
“overprotective.” As we have discussed previously, there is ample
support for these determinations. For example, mother noted, the
court found mother unreasonably called her child every day and
expected her child to speak to her. Mother testified she calls
every day, and father testified that when the child refuses to talk
to her that mother responds by badgering the child. The evidencetherefore supports this finding of fact. We find no basis for
mother's assignments of error regarding material findings of fact,
and accordingly affirm these portions of the court's order.
III. Findings of Fact not made by the court
Mother argues the trial court erred by failing to make
findings of fact that were supported by the evidence. However, a
“'trial judge is not required to find all the facts shown by the
evidence[,]'” rather “the judge must find at least enough 'material
facts to support the judgment.'” Lamond v. Mahoney, 159 N.C. App.
400, 407, 583 S.E.2d 656, 661 (2003) (quoting Stancil, 10 N.C. App.
at 549, 179 S.E.2d at 847 (emphasis in original) and Green v.
Green, 54 N.C. App. 571, 575, 284 S.E.2d 171, 174 (1981) (emphasis
in original)). We find the majority of the facts mother raises on
appeal are immaterial. Mother asserts the court erred in failing
to find that: father did not add mother to the school enrollment
forms until she moved to North Carolina; father's phone blocks
unsolicited calls and therefore she can only contact child from her
home phone; the teachers made positive comments about mother's
volunteering; the relationship between mother and stepmother; the
mother's commitment to her child as demonstrated by her move to
North Carolina; father is presently in his fourth marriage; mother,
stepmother and child had a heated argument about mother petting
child's new kittens; father passing requests to change visitation
through child; and mother's “reasonableness.” We fail to see how
any of these findings, many of which relate to conflicting
evidence, could constitute reversible error.IV. Recommendation of the psychologist
Mother asserts the trial court erred by failing to properly
weigh and consider the recommendation of the psychologist as
contained in the child custody evaluation. “[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). The trial court made a finding of fact containing nine
enumerated reasons for rejecting the psychologist's recommendation
of joint custody. We can find no error.
V. Best Interests Determination
Mother asserts the trial court failed to determine the best
interests of the child. The trial court found as fact “[t]he best
interests of the minor child would be promoted by both parties
complying with the terms and conditions as set forth herein.”
Nevertheless, mother argues the court failed to determine what
arrangement would serve the child's best interests because there
were no other findings regarding best interests and the trial court
made comments during the hearing that the court, and the court
alone, would “straighten all this out.” We disagree; the finding
of fact by the court plainly indicates that its order constituted
the scheme it believed would serve the best interests of the child.
Moreover, the comments cited by mother do not disturb this
conclusion. Accordingly, we find the court complied with our law
requiring entry of an order awarding such custody “as will bestpromote the interest and welfare of the child.” N.C. Gen. Stat. §
50-13.2(a) (2003).
VI. Ultimate Custody Determination
Finally, mother asserts the trial court erred in granting
father custody because “all” the evidence supports the conclusion
that the parties could successfully share custody and they should
have had the opportunity to do so. We disagree. As the court
found, the history of betrayal, communication challenges, and
difficulty working together demonstrates that joint custody “would
create more instability for the minor child” and therefore is not
in her best interests. Since the court's order is amply supported
by findings of fact which are supported by competent evidence, we
are bound to affirm the order of the court.
Affirmed.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).
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