Smithwick v. Frame

• Decision Date: 07 June 1983
• Docket Number: No. 8211DC638,8211DC638
• Citation: 303 S.E.2d 217,62 N.C.App. 387
• Court: North Carolina Court of Appeals
• Parties: Douglas R. SMITHWICK v. Lawrence FRAME and wife, Lorraine Frame.

Page 217

303 S.E.2d 217

62 N.C.App. 387

Douglas R. SMITHWICK v. Lawrence FRAME and wife, Lorraine Frame.

No. 8211DC638.

Court of Appeals of North Carolina.

June 7, 1983.

Bain & Capps by Edgar R. Bain and Elaine F. Capps, Lillington, for defendants-appellants.

HILL, Judge.

The 9 December 1981 Order, finding defendants in contempt, is challenged by defendants on the grounds that the court lacked jurisdiction under G.S. 5A-23 to consider the issue of contempt. The contempt order reserved punishment of defendants until final disposition of the child custody matter. In its 21 December 1981 order, disposing of the child custody matter, the court, at the request of plaintiff, elected not to punish defendants for contempt. Since defendants suffered no injury or prejudice as a result of the contempt order, their exceptions thereto and assignment of error are moot and will not be considered by us.

The 9 December 1981 Order awarding temporary custody of the minor child to plaintiff is challenged by defendants on the grounds that the evidence does not support the findings of fact made by the trial court. Any objections that defendants may have had to this order, interlocutory on its face, were made moot by the 21 December 1981 Order awarding plaintiff permanent custody of his minor child. We therefore will not consider them.

We move now to a consideration of defendants' challenge to the trial court's Order of 21 December 1981. Defendants' several exceptions and assignments of error in this regard present the question of whether the trial court's findings of fact and conclusions of law are supported by competent evidence.

Defendants first take issue with those portions of the trial court's findings of fact that the best interest of the child would be served by placing him in the custody of plaintiff-father. We note that defendants do not contest the sufficiency of the evidence to support the trial court's findings. Rather, defendants argue that certain countervailing evidence of record precludes the findings made.

In support of their argument, defendants refer us to the record and cite therein several instances of plaintiff's prior conduct. These instances involve plaintiff's criminal record of shooting into a room occupied by his minor son, shooting into an automobile, and shoplifting. Defendants also cite an occasion when the child, after a visit with his father, allegedly was found to have marijuana seeds and a pipe in his pockets. At the hearing, plaintiff did not deny his criminal record, but did deny that he had ever had marijuana in the presence of his child.

Defendants correctly point out that issues of witness credibility are to be resolved by the trial judge. It is clear beyond the need for multiple citation that the trial judge, sitting without a jury, has discretion as finder of fact with respect to the weight and credibility that attaches to the evidence. e.g. Coble v. Coble, 300 N.C. 708, 268 S.E.2d 185 (1980). The findings of fact made by the trial court are regarded as conclusive on appeal if they are supported by competent evidence. Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967). In child custody cases, the paramount consideration of the court is the welfare of the child. Williams v. Williams, 18 N.C.App. 635, 197 S.E.2d 629 (1973). The welfare of the child is the "polar star" that guides the court in the exercise of its discretion. In re Moore, 8 N.C.App. 251, 174 S.E.2d 135 (1970). The trial court's judge's discretion with regard to the weight and credibility of the evidence is bolstered by its responsibility for the welfare of the child. In child custody cases, where the trial judge has the opportunity to see and hear the parties and witnesses, the trial court has broad discretion and its findings of fact are accorded considerable deference on appeal. Id. Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974). So long as the trial judge's findings of fact are supported by competent evidence, they should not be upset on appeal. In re Moore, supra.

Defendants contend that the favored status of the natural parent in child custody cases interfered with the court's judgment regarding the credibility of certain testimony by plaintiff to the point that the trial judge abused his discretion. Based on our reading of the record and of the "example" set forth in defendants' brief, this contention is patently groundless.

Moreover, defendants' argument appears to be premised in part on the theory that evidence of past acts tending to show plaintiff's unfitness as a parent precludes a finding of present fitness. While evidence of past acts is relevant, the court's primary concern, as noted above, is with the continuing welfare of the child. "A judgment awarding custody is based upon the conditions found to exist at the time it is entered." Stanback v. Stanback, 266 N.C. 72 at 76, 145 S.E.2d 332 at 335 (1965). This requires a prospective outlook by the court. In this regard, evidence of past acts is a factor to be considered, but is not necessarily dispositive. Almond v. Almond, 42 N.C.App. 658, 257 S.E.2d 450 (1979). Here, while the evidence does not show that plaintiff has been "a paragon of fatherly love and care," Thomas v. Thomas 259 N.C. 461 at 467, 130 S.E.2d 871 at 876 (1963), it does support the court's findings of present fitness and we will not disturb them.

Defendants next argue that there is not sufficient evidence to support the trial court's findings of fact regarding the physical accommodations at the home of Annie Smithwick, plaintiff's mother, where the child would be spending part of his time. Apparently contending that each finding of fact must be directly supported by competent record evidence, defendants have misconstrued the fact-finding function of the trial court. The trial court's role as a finder of fact was recently discussed by our Supreme Court in Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982):

Rule 52(a) [requiring the trial court, when sitting without a jury, to make findings of fact] does not of course require the trial court to recite in its order all evidentiary facts presented at the hearing. The facts required to be found specially are those ultimate facts from which it can be determined whether the findings are supported by the evidence and whether they support the conclusions of law reached.

Id. at 451, 290 S.E.2d at 657. In defining "ultimate facts," the Court relied on Woodward v. Mordecai, 234 N.C. 463, 67 S.E.2d 639 (1951) where the Supreme Court said:

Ultimate facts are those found in that vaguely defined area lying between evidential facts on the one side and conclusions of law on the other. [citations.] In consequence, a line of demarcation between ultimate facts and legal conclusions is not easily drawn. [citation.] An ultimate fact is the final resulting effect which is reached by processes of logical reasoning from the evidentiary facts. [citations.]

Id. at 472, 67 S.E.2d at 645.

Ultimate facts may be established by evidence that is direct and conclusive, requiring no more of the finder of fact than that it find the evidence credible. On the other hand, ultimate facts may depend on one or more circumstantial evidentiary facts which, even if wholly credible, would require the finder of fact to draw inferences therefrom in order to so find. Professor Brandis denominates such inferences "permissive presumptions." Brandis, N.C.Evidence § 215 (1982).

While there is no evidence that directly supports the trial court's...