Dixon v. Dixon

• Decision Date: 06 March 1984
• Docket Number: No. 834DC295,834DC295
• Citation: 67 N.C.App. 73,312 S.E.2d 669
• Court: North Carolina Court of Appeals
• Parties: William H. DIXON v. Anne C. DIXON.

Page 669

312 S.E.2d 669

67 N.C.App. 73

William H. DIXON v. Anne C. DIXON.

No. 834DC295.

Court of Appeals of North Carolina.

March 6, 1984.

Gene B. Gurganus, Jacksonville, for plaintiff-appellant.

Earl C. Collins, Jacksonville, for defendant-appellee.

VAUGHN, Chief Judge.

The primary issue in this appeal is as follows: In the 27 May 1982 order awarding custody of the minor child to the defendant, are the trial judge's findings of fact supported by competent evidence such that the award of custody will not be disturbed on appeal? After a careful examination of the evidence as set forth in the record, we are compelled to answer this question in the negative. The order must be vacated because important findings of fact are unsupported by the evidence, and because a crucial issue raised by the evidence and bearing directly upon the question of custody, that is, defendant's history of child abuse, was never adequately resolved by the trial court in its order.

The law in North Carolina regarding the awarding of custody of minor children was well-summarized by former Chief Judge Morris in Green v. Green, 54 N.C.App. 571, 284 S.E.2d 171 (1981):

G.S. 50-13.2(a) provides that an order for custody of a minor child "shall award the custody of such child to such person, ... as will, in the opinion of the judge, best promote the interest and welfare of the child." This provision codified the rule declared many times by the North Carolina Supreme Court that in custody cases the welfare of the child is the polar [sic] star by which the court's decision must be governed .... The judgment of the trial court should contain findings of fact which sustain the conclusion of law that custody of the child is awarded to the person who will best promote the interest and welfare of the child .... While the welfare of the child is always to be treated as the paramount consideration, ... wide discretionary power is vested in the trial judge .... The normal rule in regard to the custody of children is that where there is competent evidence to support a judge's finding of fact, a judgment supported by such findings will not be disturbed on appeal .... The facts found must be adequate for the appellate court to determine that the judgment is sustained by competent evidence, however ....

Id. at 572-3, 284 S.E.2d at 173. (citations omitted)

That the findings of the trial judge regarding custody and support are conclusive when supported by competent evidence, Hampton v. Hampton, 29 N.C.App. 342, 224 S.E.2d 197 (1976), is true even when the evidence is conflicting, Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967), the standard for disturbing the trial judge's decision on appeal being "a clear showing of abuse of discretion." King v. Demo, 40 N.C.App. 661, 668, 253 S.E.2d 616, 621 (1979). Put otherwise, 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, Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967), 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. See, e.g., Hunt v. Hunt, 29 N.C.App. 380, 224 S.E.2d 270 (1976); Austin v. Austin, 12 N.C.App. 286, 183 S.E.2d 420 (1971). A custody order will also be vacated where the findings of fact are too meager to support the award. Montgomery v. Montgomery, 32 N.C.App. 154, 231 S.E.2d 26 (1977).

A custody order may contain extensive findings of fact and still be fatally defective--when the findings of fact are not supported by the evidence. The 27 May 1982 order is defective in precisely that regard. Furthermore, the order fails to deal with evidence pertaining to defendant's history of child abuse, and an order for custody will also be deemed fatally defective when it fails to treat an important question raised by the evidence.

As to the first defect, an examination of the evidence adduced at the custody hearing reveals that a number of Judge Martin's findings of fact have no foundation in that evidence. For example, this Court finds no support for the findings concerning defendant's work schedule and housekeeping abilities, or for the finding that her enrollment in various parent training programs enhanced her parenting abilities, the evidence only showing that she took the courses. Nor is there support for the finding that the child is "active in school and in extracurricular activities," the child having been of pre-school age at the time of the custody hearings. These findings appear to be just the sort of "ritualistic recitations" discouraged by this Court in Montgomery v. Montgomery, supra.

In Green v. Green, supra, the court vacated a custody order where the court concluded after an examination of the record that a number of findings of fact were unsupported by the competent evidence, and that the remaining findings were insufficient to support the conclusion that it was in the child's best interest to award custody to her father. Likewise at bar, once the unsupported findings are removed from the court's consideration, the remaining findings of fact do not support the award of custody to the defendant.

As to the second ground on which the order can be vacated, 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 by the evidence pertaining thereto." In re Kowalzek, 37 N.C.App. 364, 370, 246 S.E.2d 45, 48 (1978). In Kowalzek, the court found that questions concerning the wife's leaving her husband and child, and her subsequent failure to inquire about her child for several months after being notified of her husband's death were not resolved in the order awarding her custody, and the order was vacated.

At bar, there is evidence that defendant abused the minor child. Plaintiff testified that defendant had started abusing the child when it was an infant, that he once observed her jabbing the child's buttocks with a diaper pin, and several times returned home from work to find defendant beating their child. Two former baby-sitters for the child gave testimony relating to the defendant's abuse of her child, and both of defendant's parents testified that defendant was too strict with her son, although they denied ever having seen evidence of...