Horton v. Horton

• Decision Date: 20 October 1971
• Docket Number: No. 7115DC522,7115DC522
• Citation: Horton v. Horton, 183 S.E.2d 794, 12 N.C.App. 526 (N.C. App. 1971)
• Parties: Peggy M. HORTON v. Robert Brodie HORTON.
• Court: North Carolina Court of Appeals

Page 794

183 S.E.2d 794

12 N.C.App. 526

Peggy M. HORTON v. Robert Brodie HORTON.

No. 7115DC522.

Court of Appeals of North Carolina.

Oct. 20, 1971 Certiorari Denied by Supreme Court Dec. 7, 1971.

Hoyle, Hoyle & Boone by E. E. Boone, Jr., and Timothy G. Warner, Greensboro, for plaintiff appellant.

Robert L. Satterfield and Charles B. Hodson, Hillsborough, for defendant appellee.

PARKER, Judge.

Appellant contends that the court erred in finding as a fact that 'since 1964 the plaintiff has made no effort to visit or see her minor child in accordance with the visitation rights set forth in the Order of the Honorable Leo Carr, dated February 18, 1964.' This finding was fully supported by competent evidence. Plaintiff's testimony that fear of contempt or possible criminal proceedings against her inhibited exercise of her visitation rights may explain, but does not negate, the finding to which she now excepts. Nor is the finding inconsistent with her testimony that she wrote to her daughter 'several times' and tried, but failed, to contact her by telephone; that she consulted an attorney in Florida; and that she employed an attorney in North Carolina who 'looked into this matter for me in 1965 or 1967.' In any event, inconsistencies in the evidence, if any, were for the trial court to resolve; its findings of fact based on competent evidence are conclusive on this appeal. Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871.

Appellant excepts certain of the court's findings of fact which were made on the basis of information obtained as result of a private examination of the child made by the trial judge in the absence of the parties and their attorneys. Had this been done without consent, it would have been error. Raper v. Berrier, 246 N.C. 193, 97 S.E.2d 782. However, the court's order finds as a fact, and on this appeal counsel for appellant admit, that the examination was made with consent of the parties and their attorneys. Having given consent to the court's action at the trial, appellant may not be heard to complain concerning it on this appeal.

Attached to the record on appeal is an affidavit of one of the attorneys who represented plaintiff at the trial. From the argument contained in their brief, it would appear that appellant's counsel desire this Court to make a factual finding from this affidavit to the effect that the trial judge had had additional interviews with the minor child, to which appellant had not consented, and that pending his decision he had 'discussed the matter' with the court investigator. From their argument, appellant's counsel apparently desire us to make the additional factual finding, or to draw the inference, that the trial judge's findings of fact were based at least in part on information obtained by him in a manner which...