Burns v. Burns

• Decision Date: 15 February 2011
• Docket Number: No. 07 CVD 49,NO. COA10-50,07 CVD 49,COA10-50
• Court: Court of Appeal of North Carolina (US)
• Parties: PHILLIP CHADLEY BURNS, Plaintiff, v. STACEY WILLIAMS BURNS, Defendant.

PHILLIP CHADLEY BURNS, Plaintiff,

v.STACEY WILLIAMS BURNS, Defendant.

No. 07 CVD 49

NO. COA10-50

NORTH CAROLINA COURT OF APPEALS.

Filed: February 15, 2011

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

Appeal by defendant from order entered 8 October 2008 by Judge Kevin Bridges in Anson County District Court. Heard in the Court of Appeals 15 September 2010.

Singletary & Webster, P.O., by John W. Webster, for plaintiff-appellee.

Jonathan McGirt, for defendant-appellant.

CALABRIA, Judge.

Stacey Williams Burns ("defendant")¹ appeals from an order awarding Phillip Chadley Burns ("plaintiff") (collectively "the parties") general care, custody, and control of the parties' two minor children, with specified visitation rights awarded to defendant. Defendant argues that the trial court erred as a matter of law and abused its discretion in refusing to award jointcustody, in failing to award defendant additional visitation rights, and in awarding "de facto grandparent custody." Furthermore, defendant contends that the order itself is defective because it fails to comply with the requirements of Rule 52(a)(1) of the North Carolina Rules of Civil Procedure. For the reasons stated below, we affirm in part and vacate and remand in part.

I. BACKGROUND

The parties were married on 13 February 1999. There were two children born of the marriage: "Rachael" and "Jackson" (collectively "the children").² The parties separated in April 2006 and were subsequently divorced.

Following the separation, the parties shared joint custody of the children. Since each party kept the children when the other was working, the arrangement provided nearly equal time with the children for both parties. Both parties worked irregular hours which included nights and weekends during the marriage and during the separation. When both parties worked, they relied on paternal and maternal grandparents to help with the children.

On 6 February 2007, plaintiff filed the instant action seeking "permanent care, custody and control" of the children. On 4 April 2007, defendant filed an answer and counterclaim seeking "primary" custody of the children. In addition to their own affidavits, the parties filed 24 additional affidavits from friends, family, andcoworkers to support their claims. The parties' grandparents were not joined as third parties or as intervenors in the instant case.

On 12 October 2007, the trial court entered a temporary custody order granting plaintiff custody of the children and visitation privileges to defendant. Unlike the prior schedule, the children stayed with plaintiff's parents when he was working rather than the previous arrangement when they would have stayed with defendant.

Beginning in January 2008 and continuing until 18 March 2008, the trial court heard testimony and arguments to determine permanent custody of the children. On 8 October 2008, the trial court entered the permanent order ("the permanent order") granting custody of the children to plaintiff and visitation privileges to defendant pursuant to the following schedule:

a. From Friday at 8:00 PM until the following Sunday at 8:00 PM on alternating weekends, beginning October 10, 2008;

b. From Sunday at 8:00 PM until the following Tuesday at 8:00 PM on alternating weeks beginning October 19, 2008;

c. From Wednesday immediately preceding Thanksgiving at 6:00 PM until the following Sunday at 6:00 PM in even-numbered years (The Plaintiff shall have this time in odd-numbered years notwithstanding the normal visitation schedule);

d. From Christmas Day at 2:00 PM until December 31 at 2:00 PM every year;

e. From Good Friday at 6:00 PM until Easter Sunday at 6:00 PM in odd-numbered years (The Plaintiff shall have this time in even-numbered years notwithstanding the normal visitation schedule);

f. On Mother's Day and Father's Day the minor children will spend time with the Honored parent from 9:00 AM until 8:00 PM (notwithstanding the normal visitation schedule);

g. For three (3) consecutive weeks in the summer beginning on Sunday at 8:00 PM three (3) weeks later, provided that the Defendant gives thePlaintiff at least thirty (30) days notice and that she not have the Independence Holiday two (2) years in a row. (The three (3) weeks in the summer shall be in the place of and not in addition to the regular visitation schedule);

h. On the birthdays of the minor children, the parent without physical custody at that time, shall enjoy at least two (2) hours with the Honored child on that day (notwithstanding the normal visitation schedule);

i. At such other times as the parties may mutually agree.

On 20 October 2008, defendant filed a Motion to Amend the permanent order pursuant to Rule 59 of the North Carolina Rules of Civil Procedure. Since the trial court denied this motion on 1 April 2009, defendant appeals the permanent order.

II. CHILD CUSTODY

A. Standard of Review

The standard of review for child custody orders is abuse of discretion. Martin v. Martin, 167 N.C. App. 365, 367, 605 S.E.2d 302, 304 (2004). This Court first determines whether a trial court's findings of fact are supported by substantial evidence, and then determines if the trial court's factual findings support its conclusions of law. Shipman v. Shipman, 357 N.C. 471, 474-75, 586 S.E.2d 250, 253-54 (2003). "'The decision of the trial judge regarding custody will not be upset on appeal absent a clear showing of abuse of discretion, provided that the decision is based on proper findings of fact supported by competent evidence.'" Jordan v. Jordan, 162 N.C. App. 112, 116-17, 592 S.E.2d 1, 4 (2004) (quoting Woncik v. Woncik, 82 N.C. App. 244, 247, 346 S.E.2d 277, 279 (1986)). "A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestlyunsupported by reason." Yurek v. Shaffer, 198 N.C. App. 67, 79, 678 S.E.2d 738, 746 (2009) (internal quotation and citation omitted).

B. Rule 52(a)(1)

Defendant argues that the trial court entered a defective order and erred as a matter of law by failing to comply with the requirements of N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) ("Rule 52(a)(1)"). Specifically, defendant asserts that the trial court's order "violat[es] the sequence prescribed by Rule 52(a)(1)" because the visitation schedule set forth in the decree does not follow the trial court's finding that additional visitation would be in the children's best interest. Defendant's argument is misplaced.

"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment." N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2008). "The purpose of [this] requirement.... is to allow a reviewing court to determine from the record whether the judgment-and the legal conclusions which underlie it-represent a correct application of the law." Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980). "The requirement for appropriately detailed findings is thus not a mere formality or a rule of empty ritual; it is designed instead 'to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system.'" Id. (quoting Montgomery v. Montgomery, 32 N.C. App. 154, 158, 231 S.E.2d 26, 29 (1977)).

Our courts have found child custody orders defective when they are devoid of findings of fact. See In re Moore, 8 N.C. App. 251, 254, 174 S.E.2d 137 (1970); Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26 (1977). In the instant case, however, the trial court made numerous detailed findings of fact.

"This Court has found that findings that merely recapitulate the testimony or recite what witnesses have said do not meet the standard set by [Rule 52(a)(1)]." Long v. Long, 160 N.C. App. 664, 668, 588 S.E.2d 1, 3 (2003). Findings that are "'mere recitations of the evidence and do not reflect the processes of logical reasoning'" are inadequate. Id. (quoting Williamson v. Williamson, 140 N.C. App. 362, 364, 536 S.E.2d 337, 339 (2001)). See Williamson, 140 N.C. App. at 364, 536 S.E.2d at 339 (A trial court's "repeated statements that a witness 'testified' to certain facts or other words of similar import... are mere recitations of the evidence and are not the ultimate facts required to support the trial court's conclusions of law regarding the needs of the parties."). Therefore, in the instant case, the trial court's "findings" which "recapitulate the testimony or recite what witnesses have said" will not be considered by this Court.

There were many other findings of fact which do support the trial court's conclusions of law. Defendant did not object to the following pertinent findings of fact:

16. The Defendant intends to change jobs and has already sought different employment but does not know if or when she will change jobs or what her work hours will be.

59. That after the Defendant stated she "ought to" burn the Plaintiff's house down, the exchange point [betweenplaintiff and defendant of the minor children] was changed to Wal-Mart in Wadesboro, North Carolina.

...

67. From the time the parties separated in April, 2006 until the entry of the Temporary Custody Order in November, 2007, the parties shared a near 50/50 joint custody arrangement, wherein the Plaintiff would keep the children when the Defendant was working and the Plaintiff wasn't otherwise working, and the Defendant would keep the children when the Plaintiff was working and the Defendant wasn't otherwise working. When both parties where [sic] working, the parties would rely on the paternal and maternal grandparents to help with the children.

...

71. In October 2007, since the entry of the Temporary Custody Order, the minor children were with the

...