An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-847


Filed: 1 June 2004


v .                         Harnett County
                            No. 01 CVD 1622

    Appeal by plaintiff from order entered 17 December 2002, nunc pro tunc, 23 July 2002, by Judge Albert A. Corbett, Jr., in Harnett County District Court. Heard in the Court of Appeals 1 April 2004.

    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.
    Judges McGEE and STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1
     For example, mother assigned as error the court's finding number 39 stating that the child's relationship with her stepmother was “very close.” However, this finding was also made in finding number 37, which was not contested on appeal.

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