Ladhani v. Ladhani, No. COA03-613 (NC 5/18/2004)

• Decision Date: 18 May 2004
• Docket Number: No. COA03-613,COA03-613
• Court: North Carolina Supreme Court
• Parties: ALTAF LADHANI, Plaintiff, v. FARAH ALTAF LADHANI, Defendant.

Page 1

Unpublished Opinion

ALTAF LADHANI, Plaintiff, v. FARAH ALTAF LADHANI, Defendant.

No. COA03-613

Court of Appeals of North Carolina.

Filed May 18, 2004

This case not for publication

Wilkes County, No. 02 CVD 580.

Appeal by plaintiff from order filed 27 September 2002 by Judge Jeanie R. Houston in Wilkes County District Court. Heard in the Court of Appeals 5 February 2004.

Donna L. Shumate Attorney at Law, by Donna L. Shumate, for plaintiff-appellant.

The Sandlin Law Firm, by Deborah Sandlin, for defendant-appellee.

BRYANT, Judge.

Altaf Ladhani (husband-plaintiff) appeals an order filed 27 September 2002 granting Farah Altaf Ladhani (wife-defendant) primary physical custody of their daughter.

The parties were married in March 2001.¹ A month thereafter, the couple moved from Richmond, Virginia to Wilkesboro, North Carolina. On 17 January 2002, their daughter was born. Shortly after the child's birth, plaintiff participated in a traditional rite of placing a small amount of honey in the child's mouth.Plaintiff did so over defendant's objection and warning about the danger of feeding honey to an infant. On the day following the ritual, the child appeared sick and was taken to a physician.

On or about 27 March 2002, plaintiff traveled by automobile to New York for a job interview. During some of the days plaintiff was away from home, defendant's father came to the home to be with defendant and the child. One day after plaintiff's return home on 31 March 2002, the parties had a dispute to which police officers responded to the home at the request of defendant and her father. Plaintiff thereafter left the home to go to the magistrate's office, and returning later. In plaintiff's presence, defendant having packed her belongings and items for the child, left the home with her father and the child.

On 5 April 2002, plaintiff filed a complaint requesting primary physical custody of the child and a motion for emergency relief requesting temporary and exclusive legal and physical custody of the child. The next day, the parties met and talked at the home of Salim and Yasmin Bhatia. After their meeting, the parties left the Bhatias' home unreconciled.

In a 9 April 2002 ex parte order, the trial court awarded temporary joint custody to both parents. Subsequently, four separate orders awarding temporary joint custody were issued.

In late May or early June of 2002, the parties met at Our House, a social services site in Wilkesboro, to allow defendant a visit with the child. Glenda Triplett (Triplett), a staff person at Our House, supervised the visit. Six hearings on the issue of child custody were conducted between 25 June 2002 and 22 January 2003. In an order filed 27 September 2002, the trial court made findings of fact and conclusions of law and awarded primary physical custody of the child to defendant and visitation rights to plaintiff. Plaintiff appeals.

The issues are whether the trial court erred in: (I) ruling on several evidentiary matters; (II) making certain findings of fact, namely 10, 12, 18, 21, 29, 32, and 41; and (III) concluding defendant, but not plaintiff, was a fit person to have primary physical custody of the child and that it was in the best interests of the child for her primary physical custody to be placed with defendant.

Preliminarily, we note plaintiff has failed to comply with N.C.R. App. 28(b)(6) by not identifying the pages at which the assignments of error appear in the record on appeal and not appropriately referring to the record on appeal in the body of the argument in his brief to this Court. See N.C.R. App. P. 28(b)(6). We nevertheless elect to review plaintiff's arguments pursuant to N.C.R. App. P. 2.

I

Plaintiff first argues the trial court erred in: (1) accepting Triplett, the staff person from Our House, as an expert in child care and allowing her to render an opinion on the effect of honey ingested by an infant; (2) admitting defendant's testimonyabout a statement by the child's physician regarding feeding honey to an infant; (3) admitting electronic mails (emails) allegedly sent by plaintiff; and (4) requiring plaintiff's witness to answer a question on the submissiveness of women in an Islamic culture.

A

Plaintiff assigned error to the trial court's acceptance of Triplett as an expert in child care and allowing her to express an opinion on the effect of an infant's digestion of honey. Plaintiff also assigned as error defendant's hearsay testimony regarding statements by the child's physician as inadmissible hearsay.

As plaintiff did not object to Triplett's qualifications as an expert before the trial court, his objection on appeal is therefore waived. See Statesville v. Cloaninger, 106 N.C. App. 10, 18, 415 S.E.2d 111, 116 (1992) ("[a]n objection to a witness's qualifications as an expert in a given field or upon a particular subject is waived if it is not made in apt time"). Plaintiff, moreover, did not object to defendant's testimony at the time it was made and thus has waived any error for appeal. See In re Rhyne, 154 N.C. App. 477, 481 n.1, 571 S.E.2d 879, 881 n.1 (2002) (failure to object to hearsay evidence constitutes waiver); N.C.R. App. P. 10(b)(1) ("[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make").

B

Plaintiff further assigns error to the trial court's admissionof email, allegedly sent by plaintiff to defendant and to others, on the ground of relevancy. In one particular email, plaintiff stated: "In court I will have to seek support from the devil to defend myself, and trust me, it is very easy in this country. . . . I may seek an arrest warrant against her and her family just to prove myself not guilty of her charges against me." Because plaintiff objected before the trial court to this email only, we do not review any other emails for error. See N.C.R. App. P. 10(b)(1).

"`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C.G.S. § 8C-1, Rule 402 (2003).

"The primary purpose of impeachment is to reduce or discount the credibility of a witness for the purpose of inducing the jury to give less weight to his testimony in arriving at the ultimate facts in the case." Any circumstance tending to show a defect in the witness's perception, memory, narration or veracity is relevant to this purpose.

State v. Ward, 338 N.C. 64, 97, 449 S.E.2d 709, 727 (1996) (citations omitted).

The email at issue is relevant for impeachment purposes, as it tends to undermine plaintiff's earlier testimony regarding his calmness and lack of anger problems.² In addition, plaintiff does not show he was prejudiced by the admission of the email. See State v. Wilson, 151 N.C. App. 219, 226, 565 S.E.2d 223, 228 ("`[t]he burden is on the party who asserts that evidence was improperly admitted to show both error and that he was prejudiced by its admission'") (citation omitted), disc. review denied, 356 N.C. 313, 571 S.E.2d 215 (2002). Therefore, this assignment of error is overruled.

Plaintiff also argues the trial court erred in requiring plaintiff's witness³ to answer a question on the submissiveness of women in an Islamic culture.⁴

During direct examination, plaintiff's witness was asked: "[D]o the Ladhani practice any, have any sort of practice, cultural or religious practice . . . that puts the wife in some sort of submissive position to the husband?" The witness answered: "No, not at all." Subsequently, defendant's counsel cross-examined the witness as follows:

Q. You mentioned a few moments ago that your culture does not have women in a . . . submissive role. Now are you talking about your family in particular or are you talking about your culture in particular?

A. I'm talking on both, family and—culture . . . , like we're not submissive in the sense . . . like wearing veils or anything.

Q. Are you Islamic?

A. Yes.

Q. What was going on over there in Afghanistan? Isn't that an Islamic culture?

Plaintiff objected to the last question before the trial court, which overruled the objection. On appeal, plaintiff argues the question was irrelevant. Regardless of whether the question was irrelevant, we see no error as plaintiff opened the door to the topic during his direct examination of the witness. See State v. Walters, 357 N.C. 68, 87, 588 S.E.2d 344, 355 (2003) ("[w]here one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially"). Accordingly, this assignment of error is without merit.

II

Plaintiff also assigns error to the trial court's findings of fact 10, 12, 18, 21, 29, 32, and 41. Plaintiff argues these findings were not supported by competent evidence.

As between parents, "[t]o support an award of custody, the judgment of the trial court should contain findings of fact which sustain the conclusion of law that custody of the child is awarded to the person who will 'best promote the interest and welfare of the child.'" Montgomery v. Montgomery, 32 N.C. App. 154, 157, 231 S.E.2d 26, 29 (1977) (citation omitted). "' The findings . . . 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 be given to all evidence that is presented during the trial." Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994). With these guiding principles in mind, we review the findings of fact.

Finding of Fact 10

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