Woncik v. Woncik

• Decision Date: 05 August 1986
• Docket Number: No. 8620DC119,8620DC119
• Citation: 82 N.C.App. 244,346 S.E.2d 277
• Court: North Carolina Court of Appeals
• Parties: Darlene WONCIK, v. Edward Daniel WONCIK.

Page 277

346 S.E.2d 277

82 N.C.App. 244

Darlene WONCIK, v. Edward Daniel WONCIK.

No. 8620DC119.

Court of Appeals of North Carolina.

Aug. 5, 1986.

As Corrected Aug. 15, 1986.

Howard, Howard, Morelock and From, P.A. by Robert E. Howard and John N. Hutson, Jr., Raleigh, for plaintiff-appellant.

Sharpe and Buckner by Richard G. Buckner, Rockingham, for defendant-appellee.

PARKER, Judge.

In any action concerning custody of the minor children of a marriage which has ended in divorce, the courts are to give paramount consideration to the best interests of the child. G.S. 50-13.2. See also, e.g., Wilson v. Williams, 42 N.C.App. 348, 256 S.E.2d 516 (1979). The trial judge is vested with broad discretion in child custody cases, and that discretion must be exercised to serve the welfare and needs of the children. Phillips v. Choplin, 65 N.C.App. 506, 309 S.E.2d 716 (1983). The decision of the trial judge regarding custody will not be upset on appeal absent a clear showing of abuse of discretion, provided that the decision is based on proper findings of fact supported by competent evidence. Comer v. Comer, 61 N.C.App. 324, 300 S.E.2d 457 (1983).

When the parties have entered into a consent order providing for the custody and support of their children, any modification of that order must be based upon a showing of a substantial change in circumstances affecting the welfare of the child. Harris v. Harris, 56 N.C.App. 122, 286 S.E.2d 859 (1982). The party moving for the modification of custody bears the burden of showing such a change in circumstances. Id.

In this case, the trial judge made the following key findings of fact as to changed circumstances:

8. After plaintiff met her present husband, problems began to develop with visitation. These problems were caused by the plaintiff's actions. These actions would have frustrated the visitation except for defendant's determination to maintain a relationship with the child. These acts have had the tendency to place the child in the middle of his parents' disputes. This is not in the best interest of the child....

9. After plaintiff married her present husband she began to engage in a course of conduct, along with her husband, that tended to reduce the status of the defendant in the eyes of the child,.... These types of behavior are not in the best interest of the child.

The judge listed examples of plaintiff's actions following each finding.

Plaintiff's principal challenges to these findings and to the order based thereon, is that they are unsupported by the evidence. However, as is true in most child custody cases, the determination of the evidence is based largely on an evaluation of the credibility of each parent. See Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967). Credibility of the witnesses is for the trial judge to determine, id., and findings based on competent evidence are conclusive on appeal, even if there is evidence to the contrary. Id. Here, each parent testified to his or her version of the events which led to the above crucial findings of fact. The fact that the trial judge believed one party's testimony over that of the other and made findings in accordance with that testimony does not provide a basis for reversal in this Court. The findings are based largely on defendant's competent, and apparently credible, testimony and are thus binding on this Court. Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974).

Plaintiff next asserts that, even if proper, the findings do not warrant the conclusion that there has been a substantial change of circumstances affecting the welfare of the child. Specifically, she contends that the trial judge was, in reality, attempting to punish her for actions interfering with visitation privileges, normally punishable by contempt of court.

Child custody cannot be used as a tool to punish an uncooperative parent. See Lee v. Lee, 37 N.C.App. 371, 246 S.E.2d 49 (1978). Standing alone, such interference would normally only warrant a contempt citation. However, where, as here, such interference becomes so pervasive as to harm the child's close relationship with the noncustodial parent, there can be a conclusion drawn that the actions of the custodial parent show a disregard for the best interests of the child, warranting a change of custody.

Some courts have held that interference with court-ordered visitation shows a lack of respect for judicial authority, calling into question the fitness of the custodial parent. See, e.g., Garrett v. Garrett 464 S.W.2d 740 (Mo.App.1971). See also 28 A.L.R. 4th 9 (1984), and cases cited therein. Under this theory, such interference alone is enough to warrant a change of custody, even without a showing of harm to the child, provided that the parent seeking custody is a fit and proper person to have custody. We are not prepared to adopt that far-reaching position. In this case, the evidence shows both interference with visitation rights as well as conduct undertaken deliberately to belittle the defendant in the mind of his child. The trial court made the specific conclusion, supported by the proper findings of fact, that these actions of the plaintiff affected the welfare of the child. Because the welfare of the child is the paramount concern in custody cases, see In re Peal, 305 N.C. 640, 290 S.E.2d 664 (1982), interference with visitation of the noncustodial parent which has a negative impact on the welfare of the child can constitute a substantial change of circumstances sufficient to warrant a change of custody.

Plaintiff's next assignment of error is that the trial judge erred in allowing Dr. Herman Staples, a child psychiatrist, to testify as an expert witness at the custody hearing. Plaintiff argues that Dr. Staples examined Eddie Woncik for only about an hour on one occasion in preparation for litigation. However, these factors go to the weight to be given Dr. Staples' testimony,...