Goodson v. Goodson

• Decision Date: 05 January 1977
• Docket Number: No. 7619DC524,7619DC524
• Citation: 231 S.E.2d 178,32 N.C.App. 76
• Parties: Donald F. GOODSON, Jr. v. Paulette GOODSON (Aistrop).
• Court: North Carolina Court of Appeals

Page 178

231 S.E.2d 178

32 N.C.App. 76

Donald F. GOODSON, Jr. v. Paulette GOODSON (Aistrop).

No. 7619DC524.

Court of Appeals of North Carolina.

Jan. 5, 1977.

Fletcher L. Hartsell, Jr., Concord, for plaintiff-appellant.

Davis, Koontz & Horton by James C. Davis, Concord, for defendant-appellee.

CLARK, Judge.

Plaintiff first assigns error to that part of the order awarding custody to the defendant, contending that he was prevented from establishing a substantial change in circumstances. Plaintiff contends that the judge erred in ruling that the current husband of the defendant, Michael Aistrop, was not a hostile witness, in sustaining objections to material leading questions asked of Aistrop, and in refusing to allow answers to those questions to be entered in the record. Although we agree that the trial judge erred in these rulings and we do not condone his conduct, we find that plaintiff was not harmed by the errors.

The courts of this State have long held that in cases involving the custody of children, the trial judge is vested with broad discretion since he is in a position to see and hear the parties and witnesses. Tucker v. Tucker, 288 N.C. 81, 216 S.E.2d 1 (1975). The welfare of the child is the paramount consideration that must guide the court in exercising this discretion. Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974). The modification of a custody decree must be supported by findings of fact based on competent evidence that there has been a substantial change in circumstances which has affected the welfare of the child. Shepherd v. Shepherd, 273 N.C. 71, 159 S.E.2d 357 (1968).

The plaintiff's claim for custody was based in part upon allegations that his child, Scott, had been physically abused by Aistrop. Plaintiff's leading questions of Aistrop, to which objections were sustained were designed to elicit information on the frequency and severity of corporal punishment administered to Scott by Aistrop.

In the context of leading questions, a hostile witness is one whose sympathies lie with the opponent's cause. 3 Wigmore, Evidence § 774 (Chadbourn Rev. 1970). Aistrop was the husband of the woman whose interests were at issue in the action. His conduct formed a material part of the opposing party's claim. He testified that he 'want(ed) her to keep custody of Scott.' In these circumstances the trial court erred in ruling that Aistrop was not a hostile witness and in denying plaintiff his right under G.S. 1A--1, Rule 43(b) to ask a hostile witness leading questions. 1 Stansbury, N.C.Evidence § 31, p. 85 (Brandis Rev. 1973). The trial court further erred in refusing to permit counsel to insert in the record the answers to the questions to which objections had been sustained. State v. McPherson, 276 N.C. 482, 172 S.E.2d 50 (1970).

However, we find that the plaintiff was not prejudiced by these errors. The trial court found as a fact that there had been no substantial change in circumstances to warrant a change in custody. The order discloses

'That at the request of the plaintiff, and without objection by the defendant, the Court took the minor child into chambers and talked to him for some period of time in regard to the allegations of the plaintiff that the defendant's present husband, Michael Aistrop, had beaten the child.'

The content of the examination in chambers does not appear in the record. However, it does appear that the subject was the allegation that Aistrop had beaten the child. This was also the subject of those questions about which the trial court committed error.

Where there is evidence which does not appear in the record on appeal, it will be presumed that the evidence supports the trial court's findings of fact. Carter v. Carter, 232 N.C. 614, 61 S.E.2d 711 (1950); Cobb v. Cobb, 10 N.C.App. 739, 179 S.E.2d 870 (1971). The trial judge investigated the allegation of physical abuse in ascertaining whether these had been a substantial change in circumstances which affected the welfare of the child. We find no merit in this initial assignment of error.

Plaintiff next assigns error to the findings of fact he had custody of the child after the defendant came to get him on 21 March 1976, and when the police picked the child up on 22 March 1976, and to the conclusion of law that he was in contempt for refusing to return the child to the defendant. Defendant's testimony was that the grandmother refused to return the child, and that defendant did not see the child until she picked him up at the police station. No evidence in the record identifies the person from whom the police got the child, nor establishes that plaintiff had custody of Scott during this period. The question of the sufficiency of the evidence to support the trial court's findings of fact may be raised on appeal. Little v. Little, 9 N.C.App. 361, 176 S.E.2d 521 (1970). A finding by the court which is not supported by the evidence is not binding on appeal. Schloss v. Hallman, 255 N.C. 686, 122 S.E.2d 513 (1961). Where there are insufficient findings to support an order, the cause must be remanded. Bank v. Insurance Co., 265 N.C. 86, 143 S.E.2d 270 (1965); Smith v. Smith, 248 N.C. 194, 102 S.E.2d 868 (1958); Boswell v. Boswell, 241 N.C. 515, 85 S.E.2d 899 (1955); Peoples v. Peoples, 10 N.C.App. 402, 179 S.E.2d 138 (1971).

Plaintiff next assigns error to that part of the order finding him in contempt for failure to pay child support. In order to hold a parent in contempt for failure to pay child support in accordance with a decree, the failure must be wilful. In order to find the failure wilful, there must be particular findings of the ability to pay during the period of delinquency. Smith v. Smith, supra. Plaintiff contends that there is insufficient evidence to find that the failure was wilful. We disagree. there was evidence, and the court so found as a fact, that plaintiff had been regularly employed during the entire period of delinquency and was presently able to comply with the order of the court. We find no merit in this assignment of error.

Plaintiff next assigns error to the order that he pay the full $1320.00 arrearage in child support. Plaintiff contends that he is entitled to credit against his obligation under the order for certain expenses incurred for clothing, food, recreation, and medical treatment. No cases were cited to the Court nor have any been found in which our courts have either denied or allowed credit for such voluntary expenditures. There is a clear division of authority in other...