Hall v. Hall

• Decision Date: 05 February 2008
• Docket Number: No. COA07-624.,COA07-624.
• Citation: 655 S.E.2d 901
• Court: North Carolina Court of Appeals
• Parties: Ronni Renee HALL, Plaintiff, v. Steven Harold HALL, Defendant.

655 S.E.2d 901

Ronni Renee HALL, Plaintiff, v. Steven Harold HALL, Defendant.

No. COA07-624.

Court of Appeals of North Carolina.

February 5, 2008.

Appeal by defendant from an order entered 3 August 2006 by Judge Joyce A. Hamilton in Wake County District Court. Heard in the Court of Appeals 28 November 2007.

Wake Family Law Group, by Julianne Booth Rothert and Marc W. Sokol, Raleigh, for plaintiff-appellee.

Kristoff Law Offices, P.A., by Sharon H. Kristoff, Clayton, for defendant-appellant.

HUNTER, Judge.

On 3 August 2006, an order for custody and divorce from bed and board was entered, awarding Ronni Renee Hall ("plaintiff") and Steven Harold Hall ("defendant") joint legal custody of the minor children. The order granted plaintiff primary physical custody and defendant secondary physical custody. The order further provided that plaintiff shall have decision-making authority regarding all issues affecting the minor children except for sports and extracurricular activities, which shall be decided jointly between the parties. If the parties are unable to reach a decision regarding sports and extracurricular activities, a parenting coordinator has decision-making authority. From this order, defendant appeals. After careful consideration, we affirm in part and reverse and remand in part.

Plaintiff and defendant were married on 17 May 1990. Two children, Christiana and Steven, were born of the marriage. The trial court found that plaintiff was "nurturing, listens to the children, and is more emotionally attuned to their needs than the [d]efendant." The trial court also found that during the parties' marriage, defendant was insensitive, controlling, and at times, "`body slammed'" plaintiff.¹

Prior to April 2004, the trial court found that plaintiff had contact with a married man, Russell Broadway ("Broadway"). When defendant was out of town, Broadway would come over to the parties' marital residence around midnight and stay for fifteen minutes. Plaintiff and Broadway exchanged emails and went on a picnic together. Plaintiff wrote Broadway a poem in which she described him as her "`favorite guy.'"

In April 2004, defendant discovered the relationship between plaintiff and Broadway. Although defendant did not suspect that plaintiff had committed adultery with Broadway, defendant told plaintiff and others that he would brand a letter "`A'" on her forehead. Plaintiff admitted that she was not truthful about her contact with Broadway.

Since April 2004, the trial court found that defendant became more involved with the children, working with them on homework, taking them to athletic events, cooking and cleaning for them, and regularly volunteering at their school. Defendant became particularly involved with both children in athletic events, but he has also participated in Indian Princesses and Indian Guides with the children and taught them to ride bicycles.

After attempting to work on their marriage, the parties ultimately separated on 21 September 2005.

Defendant presents two issues for this Court's review: (1) whether the trial court abused its discretion in making its custody decision; and (2) whether the trial court erred in determining decision-making authority over the children's activities.

I.

Defendant first argues that the trial court abused its discretion in awarding primary physical custody to plaintiff. We disagree.

Under N.C. Gen.Stat. § 50-13.2(a) (2005), the trial court is required to order custody of minor children to the person that "will best promote the interest and welfare of the child." The statute also mandates that the trial court "consider all relevant factors ... and ... make findings accordingly." Id.; see also In re Cox, 17 N.C.App. 687, 689, 195 S.E.2d 132, 133 (1973) ("in custody cases[,] the welfare of the child is the `polar star' by which the [trial] court's decision must be guided"). "[T]he 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). This Court has recognized that the trial judge is in the best position to make such a determination as he or she "can detect tenors, tones and flavors that are lost in the bare printed record read months later by appellate judges." Newsome v. Newsome, 42 N.C.App. 416, 426, 256 S.E.2d 849, 855 (1979). Accordingly, the trial judge is vested with broad discretion in custody cases and will not be overturned absent an abuse of discretion. In re Cox, 17 N.C.App. at 689, 195 S.E.2d at 133.

When 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. Sain v. Sain, 134 N.C.App. 460, 464, 517 S.E.2d 921, 925 (1999). A trial court's findings of fact in a bench trial have the force of a jury verdict and are conclusive on appeal if there is evidence to support them. Id. Whether those findings of fact support the trial court's conclusions of law is reviewable de novo. Id. We address the trial court's findings of fact and challenged conclusion of law in turn.

A.

Defendant argues that certain findings of fact made by the trial court were unsupported by competent evidence. We disagree and address each challenged factual finding in turn.

In relevant part, finding of fact number thirty-six states that plaintiff "left the marital residence [on 21 September 2005,] taking the children with her. Defendant did not see the children for perhaps 6 days after [p]laintiff moved out of the marital home, but was allowed to talk to them." Defendant argues that the undisputed evidence shows that plaintiff told defendant she was taking the children to visit her parents in Georgia, and made no mention of the fact she was leaving defendant and taking the children. Defendant makes only a conclusory argument that this alleged "wrongdoing" was relevant to the best interests of the children. We, as the trial court likely concluded, do not find defendant's factual arguments, even if true, to affect the best interest of the children. This is especially true here, where there were findings of fact, supported by competent evidence, of defendant "`body slamm[ing]'" plaintiff.

Defendant also argues that finding of fact number five is not supported by competent evidence. For the reasons discussed in footnote two of this opinion, we find defendant's arguments on this issue to be without merit as he has grossly mischaracterized the trial court's finding of fact on that issue.

Defendant next argues that finding of fact number ten, which states that defendant's work schedule was unpredictable while plaintiff generally worked at home and later at night so as to not impact the children, was not supported by competent evidence. Essentially, defendant argues that his work schedule is quite flexible and that he averaged traveling one night per week. Testimony at trial, however, suggested that defendant traveled between two and three nights a week before marital problems arose and that he traveled less after the marital problems. The trial court merely stated that defendant's schedule was unpredictable, which, from the testimony presented, was a reasonable finding. Thus, finding of fact number ten was supported by competent evidence.

Defendant's last argument with regard to the trial court's findings of fact, is that findings number sixteen and thirty-four set forth an erroneous timeline of events. We disagree.

In finding of fact sixteen, the trial court concluded that "[s]ince April of 2004, [d]efendant has worked with the children on their homework, taken them to numerous athletic and other activities, cooked and cleaned for them and has regularly volunteered at their school." Finding of fact thirty-four states that after learning about plaintiff's "inappropriate behavior" with another man, defendant "began to spend more time with the children, and stayed in town" more frequently. Defendant argues that these findings imply that he did not do the things listed in findings sixteen and thirty-four before April 2004. Regardless of the implication, there is competent evidence in the record to support such a finding that defendant became, according to testimony, more "visible" with the children after April 2004. Accordingly, the findings of fact challenged by defendant are supported by competent evidence and defendant's assignments of error as to those findings are rejected.

B.

Defendant's sole argument as to the trial court's conclusions of law is that the trial court erred in making the "best interest[] of the children" determination, as it was not supported by the trial court's findings of fact. We disagree.

Before awarding primary physical custody of a child to a particular party, the trial court must conclude as a matter of law that the award of custody to that particular party will be in the best interest of the child. N.C. Gen.Stat. § 50-13.2(a). Such a conclusion must be supported by findings of fact. In re Poole, 8 N.C.App. 25, 29, 173 S.E.2d 545, 548 (1970). "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." Steele v. Steele, 36 N.C.App. 601, 604, 244 S.E.2d 466, 468 (1978). "These findings cannot, however, be mere conclusions." Hunt v. Hunt, 112 N.C.App. 722, 728, 436 S.E.2d 856, 860 (1993).

In the instant case, defendant argues that some of the trial court's findings of fact were "mere conclusions." Specifically, defendant argues 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,...