Link to original WordPerfect file
Link to PDF file
How to access the above link?
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
DAVID KEITH EVANS, Plaintiff v. ANGELA CARTER EVANS, Defendant
Filed: 5 April 2005
1. Child Support, Custody, and Visitation--custody--primary residence
The trial court did not abuse its discretion by granting the parties joint legal custody of
their children, with the children's primary residence with plaintiff father, because: (1) there was
competent evidence that plaintiff was a primary source of care for the children; (2) although
defendant stated she had unpaid help in caring for the children, there was never any specific
evidence offered on this point; (3) although finding of fact seventeen erroneously stated that
defendant had severed her relationship with her own family when in fact evidence seemed to be
to the contrary, the relationship of defendant with her own family has little or no bearing on
whether it is in the best interest of the children to place physical custody with plaintiff or
defendant, and the trial court's conclusion of law regarding child custody was not dependent
upon this finding; (4) there was competent evidence that defendant mother had removed her
home from the community where the children have been raised; and (5) by placing the children
in the physical custody of plaintiff, the children remained in the home and in the community
where they had been raised, their paternal grandparents and one uncle lived close by and are
available to assist with the children, and plaintiff demonstrated he is capable of caring for the
children on a daily basis.
2. Divorce--divorce from bed and board--postseparation support--indignities
The trial court did not err by granting plaintiff husband's request for divorce from bed
and board and by denying defendant wife's claim for postseparation support, because: (1)
although defendant contends the trial court lacked jurisdiction to consider defendant's appeal
based on a mistake in designating only part of the pertinent order, it is readily apparent that
defendant was appealing from the order dated 18 December 2001 which addresses not only child
custody and support, but also postseparation support and divorce from bed and board; (2) the
evidence supported the findings with respect to the conduct to which defendant subjected
plaintiff, and those findings support its conclusion that such conduct amounts to indignities
entitling plaintiff to a judgment of divorce from bed and board; and (3) defendant was not
entitled to postseparation support based on her actions of subjecting plaintiff to indignities, her
forced removal of plaintiff from the marital home without justification, and her improper
3. Child Support, Custody, and Visitation--support--amount
The trial court did not abuse its discretion by requiring defendant wife to pay $379.80 per
month in child support, because the trial court reviewed the evidence established in Worksheet A
for child support obligation and calculated child support according to the presumptive
4. Evidence--intercepted sexually explicit emails--stored on home computer
The trial court did not err in an action for divorce from bed and board, postseparation
support, and child custody and support by overruling objections to the admission into evidence
of intercepted sexually explicit emails between defendant wife and another man, because: (1) the
emails were stored on and recovered from the hard drive of the family computer; (2) the emails
were not intercepted in violation of the Electronic Communications Privacy Act since they werenot intercepted at the time of transmission; and (3) defendant failed to preserve the issue of the
sufficiency of the foundation for admission of this evidence.
Appeal by defendant from order entered 18 December 2001 by
Judge Charles W. Wilkinson, Jr. in Granville County District Court.
Heard in the Court of Appeals 14 February 2005.
Currin & Dutra, LLP, by Amy R. Edge, Thomas L. Currin and Lori
A. Dutra, for plaintiff-appellee.
The Sandlin Law Firm, by Deborah Sandlin, for defendant-
MARTIN, Chief Judge.
In February 2001, plaintiff filed a complaint against
defendant seeking divorce from bed and board, child custody and
support, writ of possession, equitable distribution and attorney's
fees. Defendant filed an answer denying plaintiff's allegations
and asserting a counterclaim for divorce from bed and board,
custody and child support, alimony and post separation support,
equitable distribution, possession of the marital home, dismissal
of plaintiff's complaint, and attorney's fees. A series of motions
and orders regarding temporary custody and child support were filed
prior to the hearing on 7 August 2001.
The evidence tended to show that the parties were married on
11 February 1989 and two children were born of the marriage, Brent,
born in 1995, and Erica, born in 1998. The parties separated in
On 18 December 2001, the trial court entered an order awarding
plaintiff a divorce from bed and board, denying defendant's motionfor post-separation support, granting the parties joint legal
custody of the minor children with the primary physical residence
to be with plaintiff, and ordering that defendant pay $379.80 per
month child support. Defendant appealed from this order and on 17
June 2003 the Court of Appeals, finding the trial court's order did
not resolve the parties' claims for equitable distribution and
attorney's fees, dismissed the appeal as being interlocutory.
Evans v. Evans, 158 N.C. App. 533, 581 S.E.2d 464 (2003). The
parties proceeded to mediation on 18 November 2003, resolving the
issues of equitable distribution and alimony. Defendant now
appeals from the trial court's order entered 18 December 2001 on
the issues not resolved in mediation: divorce from bed and board,
post-separation support and child custody and support.
 The first issue on appeal is whether the trial court
abused its discretion in granting the parties joint legal custody
of the children, with the children's primary residence with the
plaintiff. The decision of the trial court as to child custody
should not be upset on appeal absent a clear showing of abuse of
discretion. Browning v. Helff
, 136 N.C. App. 420, 423, 524 S.E.2d
95, 97 (2000). Because the presiding judge has the unique
opportunity of seeing and hearing the parties, witnesses and
evidence at trial,
In re Peal
, 305 N.C. 640, 645, 290 S.E.2d 664, 667 (1982), the
court's findings of fact are conclusive on appeal if there is
competent evidence to support them. Id.
at 646, 290 S.E.2d at 668;Dixon v. Dixon,
67 N.C. App. 73, 76, 312 S.E.2d 669, 671-72 (1984).
Conclusions of law, however, are reviewable de novo. Browning
N.C. App. at 423
524 S.E.2d at 98. In making the custody
determination, the court shall consider all relevant factors and
grant custody to the party who will best promote the interest and
welfare of the child. N.C. Gen. Stat. § 50-13.2(a) (2003).
Defendant contends the trial court erred in making the
following findings of fact because they were not supported by the
7. The children of the parties have lived
their entire lives at the home at 408 High
Street, Oxford, N.C. 27565 and are enrolled in
school and pre-school programs in Oxford, N.C.
8. The plaintiff has been a primary source of
care and tuition for the minor children since
their birth, and has a significant extended
family in the immediate area of Granville
County. The Plaintiff has demonstrated his
desire and ability to provide excellent day to
day care for the children and to meet their
needs for essential services on a daily
routine ongoing basis. The children spend
significant time with their paternal
grandparents and have healthy and established
relationships with relatives and friends in
. . .
11. The defendant has voluntarily
substantially increased her living expenses
since the time of separation.
. . .
17. The defendant has severed her
relationships with the defendant's family, and
has removed her home from the community where
the children have been raised.
. . .
19. The defendant has no family or supportsystem in Raleigh.
At trial, plaintiff testified that the couple moved to High
Street, where he continues to live, just a few months after they
were married. Although defendant received temporary custody of the
children and lived with them in Raleigh, plaintiff kept the
children at his home on High Street in Oxford, from Friday at 3:00
p.m. until Sunday nights at 7:30 and then again from Monday at 3:00
p.m. until Tuesday morning at 7:30. Because the children lived in
Oxford for a significant amount of time each week and on a regular
basis, there is substantial evidence they lived their entire lives
in Oxford. According to plaintiff, Brent attended Wee School, a
pre-school in Oxford, for four years. Brent was enrolled to start
public school at West Oxford Elementary in August 2001. Erica
started Wee School in the fall of 2000. Accordingly, there was
sufficient evidence supporting finding of fact number seven.
Defendant misconstrues the first statement in finding of fact
number eight which states that plaintiff has been a primary source
of care for the children. It does not state that he has been the
primary care giver. Plaintiff has indeed been a primary source of
care for the children as he cared for the children while defendant
worked Friday through Monday at Hudson Belk, while defendant
traveled to fabric shows, and following their separation, while the
children stayed with him. Plaintiff bathed his children, fed them,
played with them, and got up in the middle of the night with them.
Plaintiff's parents, who both lived in Oxford and had a close
relationship with plaintiff and his children, testified they wouldcontinue to help plaintiff care for the children. We find
competent evidence to support finding of fact number eight.
Defendant testified that her expenses had increased by
$1600.00 since moving to Raleigh. Although defendant stated she
had unpaid help in caring for the children, there was never any
specific evidence offered on this point. Her parents, who live in
Knoxville, Tennessee, are unable to help except when they visit
approximately three times per year. Findings of fact numbered
eleven and nineteen are supported by competent evidence and are
With respect to finding of fact number seventeen, no evidence
was presented that defendant had severed her relationship with her
own family; in fact, the evidence seemed to be to the contrary.
There was evidence that defendant had withdrawn from plaintiff's
family and it appears that the trial court's reference to
defendant's family in the finding may have been inadvertent. In
any event, the relationship of defendant with her own family has
little or no bearing on whether it is in the best interest of the
children to place physical custody with plaintiff or defendant, and
the trial court's conclusion of law regarding child custody was not
dependent upon the finding. The second portion of finding of fact
number 17, that defendant has removed her home from the community
where the children have been raised, is supported by competent
evidence. Defendant gave her current address not as Oxford, but as
Raleigh, supporting the finding that she has removed her home from
the community where the children have been raised. By placing the children in the physical custody of plaintiff,
the children remained in the home and in the community where they
had been raised. Their paternal grandparents and one uncle live
close by and are available to assist with the children. Plaintiff
demonstrated he is capable of caring for the children on a daily
basis. The evidence presented at trial supports the trial court's
conclusion of law that it is in the best interest of the children
for plaintiff to have primary physical custody of the couple's
 Next, defendant asserts the trial court erred in granting
plaintiff's request for divorce from bed and board and denying her
claim for post-separation support. She also contends it was error
for the court to consider marital fault as a matter of law and to
find plaintiff suffered indignities rendering his life burdensome
First, we address plaintiff's assertion that this Court lacks
jurisdiction to review the trial court's denial of post-separation
support and the granting of plaintiff's request for a divorce from
bed and board. In the Notice of Appeal, filed on 12 December 2003,
defendant gives notice from the Order entered on December 18, 2001
in the District Court of Granville County, denying Defendant's
claim for child custody and child support. However, a mistake in
designating the judgment, or in designating the part appealed from
if only a part is designated, should not result in loss of the
appeal as long as the intent to appeal from a specific judgment canbe fairly inferred from the notice and the appellee is not misled
by the mistake. Von Ramm v. Von Ramm, 99 N.C. App. 153, 156-57,
392 S.E.2d 422, 424 (1990) (emphasis in original)(citations
omitted). Here, it is readily apparent that defendant is appealing
from the order dated 18 December 2001 which addresses not only
child custody and support but also post-separation support and
divorce from bed and board. Therefore, this Court has jurisdiction
to consider defendant's appeal of these additional issues.
Next we address the court's findings that defendant subjected
plaintiff to indignities making his life burdensome and his
condition intolerable. Our courts have declined to specifically
define indignities, Hall v. Mabe, 77 N.C. App. 758, 763, 336
S.E.2d 427, 430 (1985), preferring instead to examine the facts on
a case by case basis. Barwick v. Barwick, 228 N.C. 109, 112, 44
S.E.2d 597, 599 (1947). Indignities consist of a course of conduct
or repeated treatment over a period of time including behavior such
as unmerited reproach, studied neglect, abusive language, and
other manifestations of settled hate and estrangement. Chambless
v. Chambless, 34 N.C. App. 720, 722, 239 S.E.2d 624, 625 (1977)
Testimony at trial tended to show that defendant had condoms
in her purse, even though she and plaintiff had not used a condom
for about twelve years and the parties were no longer engaging in
sexual relations. Defendant engaged in sexually explicit e-mails
with a physician in Chapel Hill. She had plaintiff removed from
the marital home on two occasions by initiating Chapter 50Bdomestic violence proceedings against him which were subsequently
dismissed. When defendant left the house as a result of a court
order, she hid the computer, wrapped in bubble wrap and placed
under clothing, in the attic of the marital home. Plaintiff
returned to the house after defendant was ordered to leave, but
[i]t looked like a hurricane went through it, doors off the hinges
in the bathroom, closet doors laying in the floor, trash everywhere
on the floor, dust this thick on the molding behind the beds and
all. The cat's litter box had not been cleaned for two or three
weeks and there were dead, smelly fish in the fish tank.
During the last four or five years of their marriage,
defendant was hostile towards plaintiff and slapped him
approximately fifteen or twenty times. Without telling plaintiff
exactly where she was going, defendant took three trips, for three
or four nights each, during the eighteen months preceding
Grounds for divorce from bed and board include, inter alia,
when either party [o]ffers such indignities to the person of the
other as to render his or her condition intolerable and life
burdensome. N.C. Gen. Stat. § 50-7(4) (2003). The evidence fully
supports the trial court's findings with respect to the conduct to
which defendant subjected plaintiff, and those findings support its
conclusion that such conduct amounts to indignities. Therefore,
plaintiff was entitled to a judgment of divorce from bed and board.
The assignment of error is overruled.
Post-separation support is spousal support to be paid untilthe earlier of either the date specified in the order of
postseparation support, or an order awarding or denying alimony.
N.C. Gen. Stat. § 50-16.1A(4) (2003). A dependant spouse is
entitled to post-separation support if the court finds the
resources of the dependent spouse are not adequate to meet his or
her reasonable needs and the supporting spouse has the ability to
pay. N.C. Gen. Stat. § 50-16.2A(c)) (2003). Factors such as the
parties' standard of living, income, income earning abilities,
debt, living expenses and legal obligations to support other
persons are considered in determining the financial needs of the
parties. N.C. Gen. Stat. § 50-16.2A(b) (2003). In addition, the
judge shall consider marital misconduct by the dependent spouse,
occurring prior to or on the date of separation, and also any
marital misconduct by the supporting spouse. N.C. Gen. Stat. §
50-16.2A(d) (2003). Acts of marital misconduct include sexual
acts, N.C. Gen. Stat. § 14-27.1(4) (2003), voluntarily engaged in
with someone other than a spouse, N.C. Gen. Stat. § 50-16.1A(3)(a)
(2003) and [i]ndignities rendering the condition of the other
spouse intolerable and life burdensome. N.C. Gen. Stat. § 50-
The only findings made in reference to defendant being a
dependant spouse was in finding of fact number twenty which stated,
During the marriage of the parties, the plaintiff worked one or
more jobs, providing the majority of the income to the family. The
defendant also worked providing income to the family. The
findings did include, however, that defendant was now gainfullyemployed. In addition, there was evidence, as we have noted, of
marital misconduct amounting to indignities.
The trial court then made the following conclusion of law:
3. Prior to their separation the plaintiff
was a supporting spouse, however, because of
the actions of the defendant in subjecting the
plaintiff to indignities, her forced removal
of the plaintiff from the marital home without
justification, and her improper behavior she
is not entitled to post separation support.
This conclusion adequately explains that the trial court declined
to grant post-separation support, pursuant to N.C. Gen. Stat. § 50-
16.2A(d), because of marital misconduct.
 Defendant asserts the trial court erred in requiring her
to pay $379.80 per month in child support. The amount of child
support awarded is in the discretion of the trial judge and will
not be disturbed upon appeal absent a showing of abuse of
discretion. Dixon, 67 N.C. App. at 79, 312 S.E.2d at 673.
The trial court, in its findings of fact, incorporated by
reference Worksheet A, Child Support Obligation. Furthermore, at
trial, the following exchange occurred:
COURT: . . . And do you all want to figure out
what the child support guidelines would be
through _ after you get the income.
MR. CURRIN: We will do that, Your Honor.
We'll draw that and send it to Mr. Williamson
for his review before we present it to the
COURT: All right.
Defendant did not object to this agreement.
Worksheet A establishes the monthly gross income of each partyas well as the expenses as related to the children. After
reviewing the evidence presented in Worksheet A, and calculating
child support according to the presumptive guidelines, the court
determined that defendant should pay $379.80 per month in child
support. The trial court did not abuse its discretion in
determining defendant's child support obligations.
 In defendant's last argument, she contends the trial court
committed reversible error in overruling timely and continuing
objections to the admission into evidence of intercepted sexually
explicit e-mails between defendant and Dr. Mark Johnson, a Chapel
Hill physician. Defendant claims the e-mails, private
communications received from Dr. Johnson, were illegally
intercepted pursuant to 18 U.S.C. § 2511(1)(c) and (d) (2000),
which prohibits the disclosure or use of any electronic
communication that was intercepted in violation of the Electronic
Communications Privacy Act (ECPA). However, most courts examining
this issue have determined that interception under the ECPA must
occur contemporaneously with transmission. Fraser v. Nationwide
Mut. Ins. Co.
, 352 F.3d 107, 113 (3d Cir., 2004). Here, the e-
mails were stored on, and recovered from, the hard drive of the
family computer. The e-mails were not intercepted at the time of
transmission. Therefore, we hold the trial court did not admit the
evidence in violation of the ECPA.
At oral argument, defendant also contended that an
insufficient foundation had been established for admission of theevidence. This argument, however, was not preserved by defendant's
assignment of error, which stated only that the e-mails were
obtained in violation of state and federal law. N.C. R. App. P.
10(a) (2004); see Koufman v. Koufman
, 330 N.C. 93, 98, 408 S.E.2d
729, 731 (1991)(scope of review limited to those issues raised by
the assignments of error contained in the record on appeal).
The order from which defendant appeals is affirmed.
Judges McCULLOUGH and ELMORE concur.
*** Converted from WordPerfect ***