Martin v. Martin
| Decision Date | 07 December 2004 |
| Docket Number | No. COA03-1303.,COA03-1303. |
| Citation | 167 NC App. 365,605 S.E.2d 203 |
| Parties | Jamie MARTIN, Plaintiff, v. Steven MARTIN, Defendant. |
| Court | North Carolina Court of Appeals |
Daniel J. Clifton, Charlotte, for defendant-appellant.
No brief filed for plaintiff-appellee.
On 15 November 2002, plaintiff filed a complaint and motion for domestic violence protective order against defendant for their son's protection, and the court granted a ten-day order ex parte. Following a hearing on 25 November 2002, the court granted the domestic violence protective order for one year. The order prohibited anyone from using physical discipline on the son, and prohibited defendant from possessing firearms for the duration of the order.
Also on 25 November 2002, plaintiff filed a complaint seeking child custody and support. That matter was consolidated with the domestic violence case protective order. On 31 March 2003, after a hearing, the court entered an order setting temporary child support. A permanent child custody and child support order was filed on 4 June 2003. This order prohibited defendant from owning or possessing any firearms until the children are emancipated or until further order. Defendant appeals. Plaintiff did not file a brief in this Court. For the reasons discussed below, we reverse. Defendant Steven Martin and plaintiff Jamie Martin married on 22 September 1995. They have two minor children, a son, C., born 2 January 1996, and a daughter, S., born 22 June 1998. After plaintiff and defendant separated in February 2000, defendant began living with Pam Whitty ("Ms. Whitty"). Plaintiff and defendant shared custody of the children, and Ms. Whitty sometimes cared for the children at defendant's home. These proceedings began after 14 November 2002, when Ms. Whitty spanked C. and injured him.
Defendant argues that the court exceeded its statutory authority in ordering that defendant not possess or own any firearms until the children are emancipated or until further order. We agree.
In the permanent custody and child support order filed 4 June 2003, the court made extensive findings of fact, only one of which pertains to defendant's possession of guns:
10. Father is a gun collector. When the DVPO was entered, eleven firearms were removed by the Sheriff's Department. When father had his guns, he kept them with him much of the time, including in his vehicle on errands with the children. Mother testified, and the court finds this more likely than not to be true, that he slept with a loaded handgun under his pillow (he denies this). He has continued to purchase gun parts, and knives, on Ebay. The DVPO will expire November 25, 2003 and unless it is renewed, father will have the opportunity to retrieve his firearms, upon filing a motion and getting a court order.
Although both defendant and Ms. Whitty testified that defendant never allowed a loaded gun to be "out in the open," and that he followed rules of gun safety, the court made no further findings about this matter. The court mentioned neither guns nor any threat or danger to the children's safety or well-being from defendant in its other findings and conclusions. Defendant contends that finding 10 alone does not support the court's order that:
9. Father shall not own or possess any firearms until the children are emancipated, or until further order. Should he file a motion for return of firearms in 02 CVD 20738, that motion shall be set for hearing before the undersigned.
We agree.
The standard of review of a child custody order is...
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...by substantial evidence, . . . [and] if the trial court's factual findings support its conclusions of law.'" Martin v. Martin, 167 N.C. App. 365, 367, 605 S.E.2d 203, 204 (2004)(quoting Shipman v. Shipman, 357 N.C. 471, 475, 586 S.E.2d 250, 254 (2003)(citations omitted)). North Carolina law......
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