EDWARD D. MOOLENAAR,
Plaintiff
v
.
Lincoln County
No. 02 CvD 1082
LAURA JO MOOLENAAR,
Defendant
The Jonas Law Firm, P.L.L.C., by Johnathan L. Rhyne, Jr. and
Jeremy S. Wilson, for plaintiff-appellee.
Pendleton & Pendleton, P.A., by Wesley L. Deaton and K. Clay
Pendleton, for defendant-appellant.
HUNTER, Judge.
Laura Jo Moolenaar (“defendant”) appeals the trial court's
order granting Edward D. Moolenaar's (“plaintiff”) motion pursuant
to N.C.R. Civ. P. 59 for a new child custody hearing. Defendant
presents the following issues for our consideration: Did the trial
court erroneously grant a new hearing because (I) the evidence did
not support any grounds for a new hearing; (II) plaintiff failed to
object to the surprise and irregularities complained of; and (III)
the trial court did not state in its order the particular ground
upon which it was granting a new hearing. After careful review we
affirm the trial court's order. Defendant and plaintiff were previously married and have two
minor children. Both parties sought custody of their children, and
in June 2003 a permanent custody hearing was held. Prior to the
hearing, the court-appointed guardian ad litem conducted an
investigation and prepared a report regarding her opinion as to
which parent should have primary custody of the children. During
the hearing, plaintiff called the guardian ad litem as a witness,
and she was questioned about her opinion and how she conducted her
investigation. When asked if she had spoken with anyone not listed
in her report, the guardian ad litem stated she had spoken to a
judge regarding her reasoning in a prior domestic violence
proceeding involving plaintiff and defendant. After hearing from
both parties, the trial court entered an oral order on 11 June 2003
granting the parties joint custody of the children, with defendant
having primary custody and plaintiff having secondary custody with
certain visitation privileges. The written order was entered on 6
November 2003 nunc pro tunc 11 June 2003.
After the conclusion of the hearing, plaintiff's counsel moved
on 5 August 2003 to have all of the judges in Judicial District 27B
and the guardian ad litem recused, and filed an amended motion for
a new hearing based upon irregularity and surprise on 10 September
2003. On 17 September 2003, the trial court ordered the recusal of
two judges and the guardian ad litem, and ordered the guardian ad
litem's report stricken from the record. After a 14 November 2003
hearing on plaintiff's motion for a new hearing, the trial court
ordered a new hearing on 7 January 2004. Defendant appeals. Defendant first contends the trial court did not have any
evidence upon which it could grant a new hearing under Rule 59 or
Rule 60. Defendant contends we should review this issue de novo,
and reverse the trial court's grant of a new hearing.
“[A] motion for new trial is addressed to the sound discretion
of the trial court, and its ruling will not be disturbed absent a
manifest abuse of that discretion.” Kinsey v. Spann, 139 N.C. App
370, 372, 533 S.E.2d 487, 490 (2000); see also Worthington v. Bynum
and Cogdell v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982)
(indicating a trial court's discretionary ruling to order a new
trial pursuant to Rule 59 is reviewed for a manifest abuse of
discretion). “However, where the motion involves a question of law
or legal inference, our standard of review is de novo.” Kinsey,
139 N.C. App. at 372, 533 S.E.2d at 490. Plaintiff moved for a new
hearing pursuant to N.C. Gen. Stat. § 1A-1, Rule 59(a)(1) and Rule
59(a)(3). Both of these grounds are reviewed for an abuse of
discretion. See Kinsey, 139 N.C. App. at 373, 533 S.E.2d at 490
(indicating an abuse of discretion standard applies to Rule
59(a)(1)); Watkins v. Watkins, 83 N.C. App. 587, 351 S.E.2d 331
(1986) (reviewing a Rule 59(a) motion based upon surprise under an
abuse of discretion standard). Thus, we review the trial court's
grant of a new hearing under a manifest abuse of discretion
standard.
The trial court granted a new child custody hearing because
it concluded an irregularity had occurred. Rule 59(a)(1) provides
a new trial may be granted for “[a]ny irregularity by which anyparty was prevented from having a fair trial[.]” N.C. Gen. Stat.
§ 1A-1, Rule 59(a)(1) (2003). “This section provides wide latitude
for the trial judge to award new trials, and it does not require
that he set out grounds to support his order.” Finance Corp. v.
Mitchell, 26 N.C. App. 264, 267, 215 S.E.2d 823, 824-25 (1975).
Although the trial court was not required to indicate the reasons
for granting the new hearing, the trial court indicated it was
granting a new hearing because: (1) a judge in a prior hearing
ordered the recusal of the guardian ad litem and ordered the
guardian ad litem's report stricken from the record, and (2)
neither party appealed the 17 September 2003 order striking the
guardian ad litem's report. Based upon these reasons, the trial
court concluded these “circumstances constitute[d] an irregularity
which could cause a reasonable person to perceive an appearance of
impropriety, and to question whether that perception prejudiced the
[p]laintiff.” “It is within the sole discretion of the trial judge
to determine whether to grant a Rule 59 motion for a new trial on
the grounds of an irregularity.” Edwards v. Hardy, 126 N.C. App.
69, 71, 483 S.E.2d 724, 726 (1997). Accordingly, we conclude the
trial court did not abuse its discretion in granting a new child
custody hearing.
Defendant also contends the trial court abused its discretion
in granting a new hearing because plaintiff invited the error and
failed to object to any surprise or irregularity during the
hearing. The guardian ad litem was appointed by the trial court to
assist the trial court in determining the best interests of theminor children. The guardian ad litem conducted an investigation,
filed her report with the trial court on 23 May 2003, and served
plaintiff and defendant with a copy of the report prior to the
child custody hearing. The report did not list all of the people
with whom the guardian ad litem spoke; however, neither party nor
the trial court knew of the omission prior to the hearing. The
fact that plaintiff called the guardian ad litem as a witness and
asked her questions about her investigation does not mean plaintiff
invited the error.
Plaintiff's failure to object and move that the report be
stricken from the record does not preclude the trial court from
granting a new hearing under the facts of this case because after
the hearing, plaintiff moved to have the guardian ad litem recused
and her report stricken from the record. Plaintiff's motion was
granted on 17 September 2003 by a different judge, and neither
party appealed. In its order granting the new hearing, the trial
court concluded:
3. A judicial determination has been
made that the Guardian's report was improper
and should be stricken from the record and
that the Guardian should be recused from this
matter.
4. The foregoing circumstances
constitute an irregularity which could cause a
reasonable person to perceive an appearance of
impropriety, and to question whether that
perception prejudiced the Plaintiff.
Thus, the irregularity found by the trial court was the
consideration of a report that had been stricken from the record.
Therefore, under the facts of this case, plaintiff's failure toobject during the hearing does not preclude the trial court from
granting a new hearing.
Finally, defendant argues the trial court erroneously failed
to state the legal or factual basis of its order. As previously
stated, the trial court is not required to state the grounds upon
which a new trial order is based. See Finance Corp. v. Mitchell,
26 N.C. App. at 267, 215 S.E.2d at 824-25. “While it has been
suggested that discretionary new trial orders should include
reasons as a matter of course, . . . , the law does not require
them in the absence of a specific request.” Edge v. Metropolitan
Life Ins. Co., 78 N.C. App. 624, 626-27, 337 S.E.2d 672, 674
(1985); see also N.C. Gen. Stat. § 1A-1, Rule 52 (2003).
Accordingly, the trial court did not abuse its discretion in
granting plaintiff a new child custody hearing. It is unnecessary
to address defendant's arguments regarding the propriety of
granting plaintiff a new hearing under Rule 60 as the trial court
properly granted a new hearing under Rule 59.
Affirmed.
Judges BRYANT and JACKSON concur.
Report per Rule 30(e).
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