Falls v. Falls, 8010DC502
| Decision Date | 02 June 1981 |
| Docket Number | No. 8010DC502,8010DC502 |
| Citation | 52 N.C.App. 203,278 S.E.2d 546 |
| Parties | Mary Cooper FALLS v. Ralph L. FALLS, Jr. |
| Court | North Carolina Court of Appeals |
Hunter, Wharton & Howell by John V. Hunter, III, Raleigh, for defendant-appellant.
Kimzey, McMillan & Smith by James M. Kimzey, Raleigh, for plaintiff-appellee.
The husband assigns as error the trial court's failure to make "a positive determination of the visitation rights of the (husband)," and the court's failure to include "positive provisions to assure that visitation would occur." The husband argues that the portion of the trial court's Order which leaves his visitation rights "in the hands of the children themselves..., is incongruous" with the court's conclusion "that both the (wife) and (husband) are fit and proper persons to have joint custody of the children."
The trial court made a positive determination of the husband's visitation rights. Conclusion of Law Number 1, which we find to be based upon proper findings of fact, is dispositive of this issue.
Both the (wife) and the (husband) are fit and proper persons to have joint custody of the minor children subject to the following conditions and restrictions; but the children's best welfare will be served by the (wife) having the ultimate right to control and supervise the children including first authority as to their physical presence at her home and final authority as to major decisions concerning their physical, mental, educational and social welfare and well being. The (husband) is to be consulted on all major decisions concerning the children's well being as well as have the physical presence of the children as is hereafter set forth upon the consent and willingness of the children to be with the (husband) .... (Emphasis added.)
The "conditions and restrictions" which are set forth in sub-parts (a) and (b) of Conclusion of Law Number 1, actually grant the husband liberal visitation rights he has custody of the children during the first and third weekends of each month, one afternoon each week, four consecutive weeks during the summer, Easter vacation in odd-numbered years, every other Thanksgiving and Christmas, and any other time as agreed to by the parties. The husband can, in effect, visit the children at any time as long as it does not conflict with the family's routine, cause chaos, or is against the children's wishes. The Record on Appeal indicates that two of the children, Cooper and Ralph, were visiting the husband at and during the time of the trial. The husband's contention that he has been denied visitation, and his characterization of the "joint custody" provision as "sole custody" is without merit. The husband has not been denied custody or access to the children, although restrictions have been placed on his right of visitation.
When severe restrictions are placed on the right of visitation, G.S. 50-13.5(i) requires the trial judge to make findings of fact supported by competent evidence which warrant the restrictions. In re McCraw Children, 3 N.C.App. 390, 165 S.E.2d 1 (1969). Specifically, the statute provides:
(I)n any case in which an award of child custody is made in a district court, the trial judge, prior to denying a parent the right of reasonable visitation, shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child.
No one questions the existence, nor for that matter the soundness, of the well-recognized principle of law that the trial court has broad discretion in matters of child custody and visitation. The general rule is thus stated in Brooks v. Brooks, 12 N.C.App. 626, 630, 184 S.E.2d 417, 420 (1971):
The guiding principle to be used by the court in a custody hearing is the welfare of the child or children involved. While this guiding principle is clear, decision in particular cases is often difficult and necessarily a wide discretion is vested in the trial judge. He has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion. (Citation omitted.)
Although there was evidence at trial that both the husband and the wife were competent adults who loved their children, there was also evidence of considerable physical violence between the wife and the husband which one or more of the children witnessed or in which one or more of the children participated. There was also considerable evidence of physical and mental abuse by the husband toward the children. The trial court found from the evidence that the husband had been abusive toward the wife and the children, that the children were afraid of the husband, and consequently conditioned the husband's visitation rights on the consent of the children. In this we find no abuse of discretion.
Moreover, "(t)he wishes of a child of sufficient age to exercise discretion in choosing a custodian is entitled to considerable weight when the contest is between the parents, but is not controlling." Hinkle v. Hinkle, 266 N.C. 189, 197, 146 S.E.2d 73, 79 (1966). This court has previously held that a trial judge could consider the wishes of a ten-year-old child when making a determination of custody. In re Custody of Stancil, 10 N.C.App. 545, 179 S.E.2d 844 (1971). The three children in this case are all of sufficient age to exercise discretion. Cooper is seventeen and is clearly old enough to make intelligent choices. Lulu is fourteen and was described as the smartest of the three. And, Ralph is eleven and was described at trial as being very bright.
On the issue of custody and visitation, the trial court made extensive findings of fact based on competent evidence, and those findings are conclusive on appeal.
Shepperd v. Shepperd, 38 N.C.App. 712, 248 S.E.2d 871 (1978), cert. denied, 296 N.C. 586, 254 S.E.2d 34 (1979); Jarmon v. Jarmon, 14 N.C.App. 531, 188 S.E.2d 647, cert. denied, 281 N.C. 622, 190 S.E.2d 465 (1972); Brooks v. Brooks; In re Custody of Stancil; Hinkle v. Hinkle.
The husband argues that the court failed to make findings and conclusions about his living expenses, net income, and ability to provide support. We have reviewed the findings, and they sufficiently detail the husband's needs, fixed expenses and income to support the conclusions reached. Indeed, the trial court made extensive findings of the husband's gross and net spendable income; his debt and loan payments; and what the court termed, his lavish expenditures on himself and his children. By way of example, the court found that the husband paid taxes on an income of $134,370 for the 1978 tax year; that the husband owned, what the court concluded to be an excessive amount of, life insurance ($800,000); that the husband spent over $3,000 in acquiring, restoring and repairing his three convertible automobiles, spent over $2,000 during a six-month period on clothes, and spent over $3,000 on decorations and furnishings for his four-bedroom house. By way of further example, the court found that the husband spent "extravagant" sums of money on his children as he saw fit, while paying an inadequate sum to the wife for the children's basic needs. This was evidenced by the fact that he bought a fur coat valued at $977 for his oldest daughter, Cooper; bought rings from Tiffany's in New York valued at $250 each for his daughters, Cooper and Lulu; gave $300 to his son Ralph so he could buy Cooper and Lulu presents; and took Ralph on a fishing trip valued at $800. The husband presented evidence of his debt payments, and from his testimony the court arrived at, and found as a fact that the husband had, a $4,500 per month net spendable income. The findings and conclusions detailing the husband's expenses, net income, and ability to provide support to his children are sufficient and binding on us on appeal.
The husband contends that the court's exclusion of evidence offered by him, tending to show that the $1,000 per month alimony provision in the Separation Agreement was actually meant as child support, was error. According to the husband, the trial court not only precluded him from testifying about the parties' intent, but also excluded two letters from the wife's former attorney to the husband's former attorney which clearly demonstrate that the Separation Agreement was signed at a time when the wife was willing to waive all rights to alimony in exchange for child support in the amount of $500 per month, per child. (One of the excluded letters was dated a few days before the Separation Agreement and constituted the wife's counter-proposal for settling the parties' differences.)
On this issue, the husband first argues that, because this action for child support was brought less than eight months after the parties had entered into a written separation agreement, the court under Fuchs v. Fuchs, 260 N.C. 635, 639, 133 S.E.2d 487, 491 (1963) must indulge the presumption that child support payments pursuant to a separation agreement are just and reasonable. The Fuchs court actually held that custody and support provisions in a separation agreement are not binding on the court.
The provisions of a valid separation agreement, including a consent judgment based thereon, cannot be ignored or set aside by the court without the consent of the parties. Such agreements,...with respect to marital rights, however, are not final and binding as to the custody of minor children or as to the amount to be provided for the support and education of such minor children. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118.
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