Child Support, Custody, and Visitation--custody--motion for new trial
The trial court did not abuse its discretion in a child custody case by awarding sole
custody of the children to defendant father and by denying plaintiff mother's motion for a new
trial, because: (1) plaintiff points to no evidence in the record contradicting the court's finding
that her adulterous relationship placed stress upon the children and was the primary cause of the
older child's emotional problems; (2) although plaintiff contends defendant's threats should have
been a factor in determining defendant's fitness to have custody of the children, plaintiff has not
included a transcript of testimony regarding the threats; and (3) plaintiff depended solely on
evidence that did not exist at the time of trial in her motion for a new trial, and this evidence is
not useful as a basis for granting a new trial since any evidence related to these allegations did
not exist at the time of trial.
Parker & Howes, PLLC, by David P. Parker, for plaintiff-
appellant.
Crosswhite, Edwards & Crosswhite, by Andrea D. Edwards, for
defendant-appellee.
ELMORE, Judge.
Ginger Faulkenberry (plaintiff) and Michael Faulkenberry
(defendant) were married on 19 September 1992. Two children were
born during the marriage. Both plaintiff and defendant were law
enforcement officers employed by the Charlotte-Mecklenburg Police
Department. By December 2000, plaintiff had developed an extra-
marital relationship with another law enforcement officer, Ronnie
Lowe. Plaintiff informed defendant of the affair and requested
that he leave the marital home. Defendant met with plaintiff'scounselor, Dr. Betty Russell, in an effort to keep the family
together. However, Dr. Russell suggested that defendant move out
of the home as a temporary solution to the parties' disagreement.
The parties separated on 21 January 2001. Following the divorce,
in April 2002, plaintiff married Ronnie Lowe. After the
separation, the parties shared custody of the children and spent
essentially equal time with them. However, on 6 November 2001,
plaintiff filed an action seeking, inter alia, sole custody of the
children. The district court awarded sole custody of the children
to defendant and granted plaintiff reasonable visitation
privileges. From the order of the district court entered 4 June
2003, plaintiff appeals.
First, plaintiff contends that the trial court abused its
discretion in awarding sole custody of the children to defendant.
Specifically, plaintiff argues the court erred in basing its
conclusions upon its training and experience in custody matters.
However, “[i]n child custody cases, where the trial judge has the
opportunity to see and hear the parties and witnesses, the trial
court has broad discretion and its findings of fact are accorded
considerable deference on appeal.” Smithwick v. Frame, 62 N.C.
App. 387, 392, 303 S.E.2d 217, 221 (1983) (citing Blackley v.
Blackley, 285 N.C. 358, 362, 204 S.E.2d 678, 681 (1974)).
Accordingly, the trial court's findings of fact in custody orders
are binding on the appellate courts if supported by competent
evidence. Id. Here, the court found that plaintiff and defendant had worked
out a shared custody arrangement but that plaintiff had expressed
her belief that the children needed a primary home. The court
agreed with plaintiff, “primarily based upon the Court's training
and experience in custody matters.” Plaintiff contends because the
court expressly found that both parties were fit and proper persons
to have custody , the court erred in awarding exclusive custody to
defendant. However, plaintiff points to no evidence in the record
contradicting the court's finding that plaintiff's adulterous
relationship placed stress upon the children and was the primary
cause of the older child's emotional problems.
According to the North Carolina Rules of Appellate Procedure,
“[i]f the appellant intends to urge on appeal that a finding or
conclusion of the trial court is unsupported by the evidence or is
contrary to the evidence, the appellant shall file with the record
on appeal a transcript of all evidence relevant to such finding or
conclusion.” N.C.R. App. P. 7(a)(1) (2004). This Court has
repeatedly noted that it is the appellant's duty to ensure that the
record is complete. See Pharr v. Worley, 125 N.C. App. 136, 139,
479 S.E.2d 32, 34 (1997); State v. Brown, 142 N.C. App. 491, 492-
93, 543 S.E.2d 192, 193 (2001); King v. King, 146 N.C. App. 442,
445-46, 552 S.E.2d 262, 265 (2001). Without evidence in the record
of error by a trial judge, the appellate court is not required to
and should not assume error on the part of the trial judge. Hicks
v. Alford, 156 N.C. App. 384, 390, 576 S.E.2d 410, 414 (2003). In
Hicks, appellant-mother argued insufficient evidence existed tosupport the trial court's findings that appellant's hostility and
animosity towards appellee-father was a substantial change of
circumstances that had a detrimental effect on the child and it was
therefore in the best interests of the child that appellee take
primary custody of the child. In overruling appellant's argument,
this Court noted that appellant failed to include in the record on
appeal a transcript of the evidence presented to the trial court on
the issue. Id. at 389-90, 576 S.E.2d at 414. The Court concluded
that “[w]ithout the transcript, we are unable to review
[appellant's] argument that the trial court erred in making
findings of fact that are unsupported by the evidence.” Id.
Here, we have no transcript in the record with which to
consider whether the finding that, from the court's training and
experience in custody matters, plaintiff's conduct added to the
stress on the children, that plaintiff's actions were the primary
cause of the older child's emotional problems, or that the children
need a primary home, as requested by plaintiff. The trial court
found the best interests of the children would be served by
awarding their exclusive care, custody, and control to defendant
because of plaintiff's introduction of Lowe to the children at an
early stage of her relationship with him and the effect that had,
especially on the older child. Without a record of the relevant
portions of the transcript, we are unable to conclude that the
trial court erred in making these findings. We also find no abuse
of discretion in the court's determination that awarding sole and
exclusive custody to defendant promoted the best interests of thechildren. When both parents have been deemed fit, the court must
make its custody determination based upon what is in the best
interests of the child. See N.C. Gen. Stat. § 50-13.2(a) (2003).
The trial court made its determination here, and plaintiff does not
present adequate information in the record to support a conclusion
that the trial court abused its discretion in doing so. King v.
Allen, 25 N.C. App. 90, 92, 212 S.E.2d 396, 397, cert. denied, 287
N.C. 259, 214 S.E.2d 431 (1975).
Next, plaintiff assigns error to finding of fact number 25, in
which the trial court found that while defendant admitted making
threats to plaintiff and Ronnie Lowe, no evidence existed that
either plaintiff or Lowe “believed the statements or were placed in
fear of Defendant. Both Plaintiff and Ronnie Lowe are law
officers, not regular private citizens.” Plaintiff contends the
threats should have been a factor in determining defendant's
fitness to have custody of the children. Here, again, plaintiff
has not included a transcript of testimony regarding the threats.
Without evidence in the record of error by a trial judge, neither
are we required to nor should we assume error on the part of the
trial judge. Hicks, 156 N.C. App. at 389-90, 576 S.E.2d at 414.
Because we cannot conclude that the trial court's finding was in
error, plaintiff's assignment of error is without merit.
Finally, plaintiff contends the trial court erred in denying
her motion for a new trial under Rule 59 of the North Carolina
Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 59(a)(4)
(2003) provides that a new trial may be granted if a party produces“[n]ewly discovered evidence material . . . which he could not,
with reasonable diligence, have discovered and produced at the
trial[.]” A motion for a new trial must be served no more than 10
days after entry of judgment. N.C. Gen. Stat. § 1A-1, Rule 59(b)
(2003). Rule 59 of the Federal Rules of Civil Procedure is
comparable to the North Carolina rule. Glen Forest Corp. V.
Bensch, 9 N.C. App. 587, 589, 176 S.E.2d 851, 853 (1970). The
phrase “newly discovered evidence” refers to evidence in existence
at the time of trial and of which the movant was excusably
ignorant. Campbell v. American Foreign S.S. Corp., 116 F.2d 926,
928 (2d Cir. 1941), cert. denied, 313 U.S. 573, 85 L. Ed. 1530
(1941). This limitation on newly discovered evidence has been
justified on the policy ground that, were evidence arising after
the time of trial to qualify as “newly discovered evidence,”
litigation would be never-ending. Id. (cited with approval in Cole
v. Cole, 90 N.C. App. 724, 728, 370 S.E.2d 272, 274, disc. review
denied, 323 N.C. 475, 373 S.E.2d 862 (1988)).
Here, plaintiff depended solely on evidence that did not exist
at the time of trial in her motion for a new trial. Between the
announcement of the trial court's ruling in open court after the
initial hearing and its entry of judgment, plaintiff's motion
alleges, inter alia, that defendant left his job as a police
officer, ceased cooperating with plaintiff on matters relating to
the children, and introduced the children to his girlfriend, with
whom neither child has a strong relationship. As any evidence
related to these allegations did not exist at the time of trial, itis therefore not useful as a basis for granting a new trial.
Further, a court's decision on a motion for a new trial under Rule
59 is not reviewable on appeal, absent a showing of abuse of
discretion. Blow v. Shaughnessy, 88 N.C. App. 484, 494, 364 S.E.2d
444, 449 (1988). We hold the trial court's denial of plaintiff's
motion for a new trial did not amount to an abuse of that court's
discretion.
Affirmed.
Judges WYNN and HUDSON concur.
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