Henderson v. Henderson

Decision Date05 March 1996
Docket NumberNo. COA94-1347,COA94-1347
Citation121 N.C.App. 752,468 S.E.2d 454
CourtNorth Carolina Court of Appeals
PartiesNancy HENDERSON, Plaintiff, v. Frederick HENDERSON, Defendant.

Gerrans, Foster, & Kriss, P.A. by Jeannette P. Kriss, Kinston, for plaintiff-appellant.

Dixon, Doub, & Conner by Ernest L. Conner, Jr., Greenville, for defendant-appellee.

McGEE, Judge.

A trial judge is vested with wide discretionary power in custody proceedings. Green v. Green, 54 N.C.App. 571, 573, 284 S.E.2d 171, 173 (1981). "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." Id. Plaintiff argues the trial court erred by: 1) failing to make appropriate findings of fact regarding the alleged sexual abuse of the daughter; 2) allowing the guardian ad litem to testify as to her opinion regarding the abuse allegations; 3) relying on incompetent evidence to determine plaintiff's intent in taking the children to Pennsylvania; and 4) concluding it was in the best interests of the children for the defendant to have custody. After reviewing the record, we find the findings in this case are supported by competent evidence and the judgment is supported by the findings. We find no prejudicial error and affirm.

I.

Regarding the alleged sexual abuse of the daughter, plaintiff contends the trial court failed to resolve the evidence of the alleged sexual abuse in its findings of facts as required by law. See Dixon v. Dixon, 67 N.C.App. 73, 79, 312 S.E.2d 669, 673 (1984) (trial court is obligated to resolve any evidence of child abuse in its findings of facts). However, although the court did not make a finding as to whether the abuse did or did not occur, this issue is adequately addressed by the court's findings.

The trial court noted in finding of fact number 17 that the DSS investigation produced no evidence of sexual abuse and the abuse action had been dismissed. The court goes on to find in finding of fact number 47:

[T]his Court finds, based upon the testimony of Dr. Gregory Gridley [expert witness in psychology], and the report provided by Carolina Psychological Health Services ..., that the Defendant does not possess those characteristics which would cause one to believe that he was or is a person who would commit acts of sexual abuse as alleged by the Plaintiff.

(emphasis added). These findings sufficiently resolve the sexual abuse issue.

Plaintiff also contends the trial court erred in allowing the guardian ad litem to testify she felt there was no evidence to support plaintiff's allegations of sexual abuse. Plaintiff argues the guardian was not qualified to give such testimony. However, even if the testimony was inadmissible, plaintiff cannot show she was prejudiced by the evidence. "In a trial by a court without a jury, the erroneous admission of evidence will not ordinarily be held prejudicial, because it is presumed that the court did not consider the incompetent evidence." In re Peirce, 53 N.C.App. 373, 388, 281 S.E.2d 198, 207 (1981). Here, the order shows the trial judge based his findings of fact regarding the sexual abuse allegations upon the testimony of the expert witness in psychology and the report of Carolina Psychological Health Services. The court's findings are based upon competent evidence and are binding on this Court. The admission of the guardian's testimony, even if erroneous, was harmless error.

II.

Plaintiff assigns as error the trial court's finding of fact number 43, which reads: "If Plaintiff's removal of the children from North Carolina on or about February 23, 1994, without advising other interested persons, was not an intent by Plaintiff to remove the children from the Defendant, it was at best, an exercise in poor judgment by Plaintiff." Plaintiff contends the court erred by allowing the guardian ad litem to testify that she felt at the time, based on the facts and her own investigation, that plaintiff had fled with the children. Again, even if the admission of this testimony was error, there is other competent evidence supporting the trial court's findings.

The following evidence was presented at the hearing: 1) defendant testified he did not know plaintiff was taking the children to Pennsylvania; 2) plaintiff did not inform DSS or the guardian ad litem of the trip; 3) plaintiff did not advise her employer of the trip and did not report to work as scheduled; 4) plaintiff removed the furnishings from the marital home, just prior to the trip, in violation of a court order; 5) plaintiff's family members told the guardian ad litem they did not know her whereabouts; 6) during the trip, the children missed a scheduled visitation with the defendant, and the daughter missed a scheduled appointment with her psychotherapist at the county health department which plaintiff never cancelled; 7) plaintiff testified the son was too sick to attend school, but took him with her to Pennsylvania; and 8) plaintiff testified...

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3 cases
  • McConnell v. McConnell, COA01-1009.
    • United States
    • North Carolina Court of Appeals
    • August 6, 2002
    ...We disagree. It is well settled that the trial court is vested with broad discretion in child custody cases. Henderson v. Henderson, 121 N.C.App. 752, 468 S.E.2d 454 (1996). The decision of the trial court should not be upset on appeal absent a clear showing of abuse of discretion. Falls v.......
  • Ladhani v. Ladhani, No. COA03-613 (NC 5/18/2004)
    • United States
    • North Carolina Supreme Court
    • May 18, 2004
    .... . . are conclusive when supported by competent evidence, even when the evidence is conflicting.'" Henderson v. Henderson, 121 N.C. App.752, 756, 468 S.E.2d 454, 457 (1996) (citation omitted). "[I]t is within the trial court's discretion to determine the weight and credibility that should ......
  • Coombs v. Coombs
    • United States
    • North Carolina Court of Appeals
    • March 5, 1996

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