Carpenter v. Carpenter

• Decision Date: 05 February 2013
• Docket Number: No. COA12–820.,COA12–820.
• Citation: 737 S.E.2d 783
• Parties: Jason Donald CARPENTER, Plaintiff, v. Jessica Delores CARPENTER, Defendant.
• Court: North Carolina Court of Appeals

737 S.E.2d 783

Jason Donald CARPENTER, Plaintiff,

v.Jessica Delores CARPENTER, Defendant.

No. COA12–820.

Court of Appeals of North Carolina.

Feb. 5, 2013.

Appeal by plaintiff from orders entered 6 January 2012 and 23 January 2012 by Judge C. Thomas Edwards in District Court, Catawba County. Heard in the Court of Appeals 10 January 2013.

Crowe & Davis, P.A., Conover, by H. Kent Crowe, for plaintiff-appellant.

LeCroy Law Firm PLLC by M. Alan LeCroy, Morganton, for defendant-appellee.

STROUD, Judge.

Jason Donald Carpenter (“plaintiff”) appeals from the permanent custody order entered 6 January 2012 awarding Jessica Carpenter (“defendant”) primary custody of their minor child, George,¹ and the trial court's order entered 23 January 2012, correcting various scrivener's errors in the initial order. The 23 January order was identical to the 6 January order other than the corrected scrivener's errors.

I. Procedural History

Plaintiff filed a complaint for child custody, child support, and divorce from bed and board in District Court, Catawba County on 12 May 2010. Defendant answered and filed counter-claims for the same causes of action, as well as post-separation support, alimony, and equitable distribution. After the parties failed to resolve the custody claims in mediation, the trial court held the custody hearing on 25 and 26 October 2011, completed the hearing on 7 and 9 November 2011, and announced the ruling on 10 November 2011. By order entered 6 January 2012, the trial court granted primary custody to defendant and secondary custody to plaintiff on a set schedule.

Plaintiff filed notice of appeal to this Court on 2 February 2012. The trial court entered an “Amended Child Custody and Child Support Order” on 23 January 2012, which makes minor and non-substantive changes to the 6 January 2012 order. As there was no motion to amend the order, it appears that the trial court amended the order ex mero motu. The Plaintiff filed another notice of appeal on 27 February 2012, noting appeal to both the original and amended orders. Despite the plaintiff's first notice of appeal, the trial court had jurisdiction to enter the Amended Order under N.C. Gen.Stat. § 1A–1, Rule 60(a)². We will therefore consider plaintiff's appeal based upon the 23 January 2012 amended order.

II. Custody Order

Plaintiff argues that the trial court failed to make sufficient findings of fact to support its conclusion that awarding primary custody of George to defendant was in the minor child's best interest. We agree.

In a child custody case, the trial court's findings of fact are conclusive on appeal if supported by substantial evidence, even if there is sufficient evidence to support contrary findings. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Unchallenged findings of fact are binding on appeal. The trial court's conclusions of law must be supported by adequate findings of fact.... Absent an abuse of discretion, the trial court's decision in matters of child custody should not be upset on appeal.

Peters v. Pennington, 210 N.C.App. 1, 13, 707 S.E.2d 724, 733 (2011) (citations and quotation marks omitted). Whether those findings of fact support the trial court's conclusions of law is reviewable de novo. Hall v. Hall, 188 N.C.App. 527, 530, 655 S.E.2d 901, 904 (2008).

Findings of fact regarding the competing parties must be made to support the necessary legal conclusions. These findings may concern physical, mental, or financial fitness or any other factors brought out by the evidence and relevant to the issue of the welfare of the child. However, the trial court need not make a finding as to every fact which arises from the evidence; rather, the court need only find those facts which are material to the resolution of the dispute.

Witherow v. Witherow, 99 N.C.App. 61, 63, 392 S.E.2d 627, 629 (1990) (citations and quotationmarks omitted), aff'd,328 N.C. 324, 401 S.E.2d 362 (1991).

Plaintiff does not challenge any of the trial court's findings of fact, so they are binding on appeal. Peters, 210 N.C.App. at 11–12, 707 S.E.2d at 733. Plaintiff's only argument on appeal is that the trial court made insufficient findings to support its conclusions of law. Plaintiff argues that the trial court failed to resolve the “questions raised by the evidence,” and that “[w]here the trial court appears to implicitly resolve issues raised by the testimony of the parties, but the resolution of those issues is not reflected in the findings of fact, the appellate court has no basis upon which to determine how the trial court reached its decision.”

Defendant's brief gives short shrift to Plaintiff's contentions, taking only 3 pages to present her argument that the trial court's findings are adequate to support the conclusions of law, relying entirely upon Hall v. Hall. Quoting Hall, 188 N.C.App. at 530, 655 S.E.2d at 904, defendant notes that “where the trial court ‘finds that both parties are fit and proper to have custody, but determines that it is in the best interest of the child for one parent to have primary physical custody, as it did here, such determination will be upheld if it is supported by competent evidence.’ ” Although this statement of the law is correct, Defendant's reliance on Hall is misplaced. In Hall, the defendant argued that

some of the trial court's findings of fact were “mere conclusions.” Specifically, defendant argue[d] that four of the trial court's findings of fact were not findings of fact, but mere conclusions. Assuming, arguendo, that those findings of fact were only conclusions, the record still contains findings of fact, not challenged by defendant or already determined to be supported by competent evidence by this Court, to support the trial court's “best interest” determination.

Id. at 532, 655 S.E.2d at 905. The Hall court then noted the specific findings of fact not challenged on appeal that would have supported the trial court's conclusions even in the absence of the contested findings. Id. at 532–33, 655 S.E.2d 901. The unchallenged findings of fact in Hall show quite clearly why the trial court concluded that an award of primary custody to the plaintiff was in the child's best interest.

Specifically, finding of fact number eight states that plaintiff “took the children for haircuts, bought their clothes and school supplies, volunteered at their school and was a room mother, and took the children on play dates.” The trial court also found that plaintiff took the children to the doctor and stayed home with them when they were ill. Finally, the trial [court] found as a fact that plaintiff took a six month leave of absence from her employment to stay with Christiana when she was born and a five month leave when Steven was born.

Contrary to these findings, the trial court found that defendant would only “occasionally take the children to the doctor, would sometimes attend birthday parties and would volunteer at school on occasion.” Moreover, “[d]efendant's work schedule was unpredictable and he was regularly out of town one to three nights each week.” The trial court also found that “[d]efendant countermanded [p]laintiff on a number of occasions when she ... was disciplining the children [,]” referred to Christiana as a “ ‘drama queen,’ ” and Steven as a “ ‘Mama's boy.’ ” Finally, the trial court found that “[d]efendant ‘body slammed’ the [p]laintiff 20 to 50 times during the marriage [, and] threatened to punch his brother-in-law in the nose.” Under N.C. Gen.Stat. § 50–13.2(a), a relevant factor in making a custody determination is “acts of domestic violence between the parties[.]” Under such circumstances, we cannot say that the trial court committed a manifest abuse of discretion in awarding plaintiff primary physical custody of the children. Although defendant argues that the trial court should have made less complimentary findings as to plaintiff, we are not in a position to re-weigh the evidence.

Id. (footnote omitted).

Defendant also incorrectly identifies the standard of review applicable to the issue of whether the findings of fact support the conclusions of law as abuse of discretion, arguing that “[t]here was obviously no manifest abuse of discretion on the trial court's part in awarding [George]'s primary custody to the Appellee/mother.” The proper standard of review is de novo: “Whether those findings of fact support the trial court's conclusions of law is reviewable de novo.” Id. at 530, 655 S.E.2d at 904 (citation omitted).

Although a custody order need not, and should not, include findings as to each piece of evidence presented at trial, it must resolve the material, disputed issues raised by the evidence.

[A] custody order is fatally defective where it fails to make detailed findings of fact from which an appellate court can determine that the order is in the best interest of the child, and custody orders are routinely vacated where the “findings of fact” consist of mere conclusory statements that the party being awarded custody is a fit and proper person to have custody and that it will be in the best interest of the child to award custody to that person. A custody order will also be vacated where the findings of fact are too meager to support the award.

Dixon v. Dixon, 67 N.C.App. 73, 76–77, 312 S.E.2d 669, 672 (1984) (citations omitted).

The quality, not the quantity, of findings is determinative. This custody order contains eighty findings of fact, but Plaintiff correctly notes that many of the findings of fact are actually recitations of evidence which do not resolve the disputed issues. The findings also fail to resolve the primary issues raised by the evidence which bear directly upon the child's welfare. As noted in Dixon,

the findings in a custody order “bearing on the party's fitness to have care, custody, and control of the child and the findings as to the best interests of the child must resolve all questions raised...