Appeal by defendant from order entered 22 July 2003 by Judge
Ted Royster in Davidson County District Court. Heard in the Court
of Appeals 16 February 2005.
Cunningham & Crump, P.L.L.C., by R. Flint Crump, for
plaintiff-appellee.
David A. Perez for defendant-appellant.
GEER, Judge.
Defendant Amy Lyn Kilian appeals from the trial court's
Permanent Custody Order, granting joint custody of the parties'
minor child to defendant and plaintiff Ricky Leonard Kilian.
Defendant's arguments on appeal are founded almost entirely on
defendant's contention that the trial court should have found her
evidence more credible than that of plaintiff. Because we may not
reweigh the evidence on appeal and the trial court's findings of
fact are binding if supported by competent evidence, we affirm. We
do not, however, address defendant's arguments regarding the trial
court's award of custody during the summer of 2003 as that issue is
now moot.
Facts
Plaintiff and defendant married on 7 September 1991, separated
on 4 February 2000, and divorced on 14 August 2001. On 16 May
2001, plaintiff filed a complaint seeking joint custody of the
parties' minor child and alleging that defendant was unreasonably
denying him access to the child. On 26 June 2001, defendant filed
an answer and counterclaim seeking sole custody of the child and
denying plaintiff's allegations.
On 6 August 2001, the trial court entered an Order for
Temporary Visitation and Support, awarding plaintiff temporary
visitation with the child every other weekend and at such other
times as could be mutually agreed upon by the parties. On 4
November 2002, the trial court entered a second order that modified
the terms of the 2001 Temporary Visitation and Support Order to
provide that the parties would share temporary physical custody on
a week-to-week basis during the summer months beginning 2 June
2002.
The hearing on permanent custody was held on 10 June 2003 and
the court entered a Permanent Custody Order on 22 July 2003. Among
its 49 findings of fact, the court found that defendant had
attempted to alienate the child from plaintiff, had unreasonably
restricted plaintiff from visitation with the child, did not inform
plaintiff of her intention to move to Iredell County, and
unilaterally enrolled the child in daycare as part of that move.
Based on its findings, the court concluded that both plaintiff and
defendant were fit and proper persons to have custody of the child. The trial court further concluded that the child's best interests
would be served by placing her in the joint care, custody, and
control of plaintiff and defendant. Defendant timely filed a
notice of appeal from this order on 20 August 2003.
I
Defendant first assigns error to the admission into evidence
of a photocopied application to the Triplett Child Care Development
Center in Iredell County. Plaintiff offered the application as
evidence of parental alienation and to support his contention that
defendant had moved to Iredell County and had enrolled the child in
daycare without his knowledge. The application to enroll the
parties' child in the child care facility (1) did not list
plaintiff's name as a parent, but rather listed defendant's new
husband as the child's father/guardian; and (2) was dated 14 May
2001, at a time when plaintiff contended he knew nothing about
defendant moving. The trial court admitted the application into
evidence, but limited its use to proving parental alienation.
Defendant argues that admission of the photocopy violated the "best
evidence rule."
Rule 1002 of the Rules of Evidence, familiarly known as the
"best evidence rule," provides that "[t]o prove the content of a
writing . . ., the original writing . . . is required except as
otherwise provided in these rules or by statute." Rule 1003,
however, specifies that "[a] duplicate is admissible to the same
extent as an original unless (1) a genuine question is raised as to
the authenticity of the original or (2) in the circumstances itwould be unfair to admit the duplicate in lieu of the original."
A "duplicate" includes a photocopy. N.C.R. Evid. 1001(4).
Since defendant does not argue that admission of the photocopy
was unfair under the circumstances, the photocopied application was
inadmissible under Rules 1002 and 1003 only if there was a genuine
question raised as to the authenticity of the original. We note
that the trial court conditioned admission of the application on a
later determination of authenticity. At no time, however, did
defendant challenge the original application's authenticity.
During defendant's testimony, she identified her own signature on
the photocopied application and explained how and why her husband's
name appeared in the space provided for the child's
father/guardian. Since the exceptions to Rule 1003 do not apply,
the trial court did not err in admitting the photocopied
application.
II
Defendant next challenges four of the trial court's findings
of fact as unsupported by the evidence presented at trial:
10. On May 26, 2001, the Defendant moved
to Mooresville, Iredell County, North Carolina
with the minor child. The Defendant did not
inform the Plaintiff of her intention to move
to Iredell County and subsequent to that move,
the Defendant unilaterally enrolled the minor
child in daycare. The Defendant listed her
then boyfriend, Brittan Stepanek, as the
Father/Guardian on the daycare application
dated May 14, 2001. Mr. Stepanek was neither
the father nor the guardian of the minor child
and the Plaintiff/biological father's name was
not listed anywhere on the application.
11. Despite the Court's order dated
April 29, 2002 which granted one half of theSummer months in 2002 to the Plaintiff, the
Defendant unreasonably restricted the
Plaintiff from the minor child. The Defendant
refused to allow the Plaintiff his visitation
because the Plaintiff did not provide the
Defendant with the phone number to the minor
child's daycare provider even though the
Defendant had the Plaintiff's home phone
number, cell phone number and work number.
The Defendant has also unreasonably restricted
the Plaintiff's visitation by stating that he
could not have the minor child on days he had
to work during his court ordered time.
. . . .
37. The Court finds that although the
Defendant is a fit and proper person to have
primary physical custody of the minor child,
through her actions she has attempted to
alienate the minor child from her father, the
Plaintiff.
. . . .
39. The minor child has spent the
majority of her time with the Defendant, but
this fact is primarily due to the Defendant
denying the Plaintiff access to the child.
The Court feels it could possibly be traumatic
to the minor child if her current schedule is
abruptly and drastically changed.
A trial court is given broad discretion in child custody matters
and its findings of fact will be upheld if supported by substantial
evidence. Shipman v. Shipman, 357 N.C. 471, 474-75, 586 S.E.2d
250, 253-54 (2003). "Substantial evidence" is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion. Id. at 475, 586 S.E.2d at 254.
Each of the above findings of fact is supported by evidence
offered by plaintiff. Defendant argues, however, that the trial
court erred in overlooking her testimony, in finding the
plaintiff's testimony more credible, or in failing to accept herassessment of her actions as reasonable. These arguments go to
questions of the weight to be afforded evidence and evaluations of
credibility _ questions that rest solely within the province of the
trial judge. Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17,
25 (1994). "The fact that the trial judge believed one party's
testimony over that of the other and made findings in accordance
with that testimony does not provide a basis for reversal in this
Court." Woncik v. Woncik, 82 N.C. App. 244, 248, 346 S.E.2d 277,
279 (1986).
Because each of the above findings of fact is supported by
competent evidence, those findings are binding on appeal even
though defendant may have offered evidence to the contrary.
III
Finally, defendant argues that the trial court abused its
discretion in ordering that the child be placed immediately in the
physical custody of plaintiff for the entire summer of 2003,
without allowing defendant any visitation with the child during
that time. Defendant contends that the order was both punitive and
contrary to the best interest of the child.
We decline to address this issue because it is now moot. This
portion of the trial court's order applied only to the summer of
2003. Beginning in the summer of 2004 and continuing for each
summer thereafter, the order granted plaintiff custody of the child
with visitation granted to defendant every other weekend.
Defendant does not challenge those provisions for the summer. As
a result, any ruling that this Court might make regarding thesummer of 2003 arrangements would be entirely academic. Since
defendant has offered no argument why this issue is not moot, we
decline to address this assignment of error.
See Woncik, 82 N.C.
App. at 249, 346 S.E.2d at 281 (holding that an appeal from an
order terminating visitation privileges pending a hearing was moot
because the hearing had been held and privileges restored);
Smithwick v. Frame, 62 N.C. App. 387, 391, 303 S.E.2d 217, 220
(1983) (declining to review a temporary custody order rendered moot
by entry of a permanent custody order).
Affirmed.
Judges MCGEE and TYSON concur.
Report per Rule 30(e).
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