Opinion
No. COA04-741
Filed 5 April 2005 This case not for publication
Appeal by defendant from an order entered 7 January 2004 by Judge Larry J. Wilson in Lincoln County District Court. Heard in the Court of Appeals 13 January 2005.
The Jonas Law Firm, P.L.L.C., by Johnathan L. Rhyne, Jr. and Jeremy S. Wilson, for plaintiff-appellee. Pendleton Pendleton, P.A., by Wesley L. Deaton and K. Clay Pendleton, for defendant-appellant.
Lincoln County No. 02 CvD 1082.
Laura Jo Moolenaar ("defendant") appeals the trial court's order granting Edward D. Moolenaar's ("plaintiff") motion pursuant to N.C.R. Civ. P. 59 for a new child custody hearing. Defendant presents the following issues for our consideration: Did the trial court erroneously grant a new hearing because (I) the evidence did not support any grounds for a new hearing; (II) plaintiff failed to object to the surprise and irregularities complained of; and (III) the trial court did not state in its order the particular ground upon which it was granting a new hearing. After careful review we affirm the trial court's order. Defendant and plaintiff were previously married and have two minor children. Both parties sought custody of their children, and in June 2003 a permanent custody hearing was held. Prior to the hearing, the court-appointed guardian ad litem conducted an investigation and prepared a report regarding her opinion as to which parent should have primary custody of the children. During the hearing, plaintiff called the guardian ad litem as a witness, and she was questioned about her opinion and how she conducted her investigation. When asked if she had spoken with anyone not listed in her report, the guardian ad litem stated she had spoken to a judge regarding her reasoning in a prior domestic violence proceeding involving plaintiff and defendant. After hearing from both parties, the trial court entered an oral order on 11 June 2003 granting the parties joint custody of the children, with defendant having primary custody and plaintiff having secondary custody with certain visitation privileges. The written order was entered on 6 November 2003 nunc pro tunc 11 June 2003.
After the conclusion of the hearing, plaintiff's counsel moved on 5 August 2003 to have all of the judges in Judicial District 27B and the guardian ad litem recused, and filed an amended motion for a new hearing based upon irregularity and surprise on 10 September 2003. On 17 September 2003, the trial court ordered the recusal of two judges and the guardian ad litem, and ordered the guardian ad litem's report stricken from the record. After a 14 November 2003 hearing on plaintiff's motion for a new hearing, the trial court ordered a new hearing on 7 January 2004. Defendant appeals. Defendant first contends the trial court did not have any evidence upon which it could grant a new hearing under Rule 59 or Rule 60. Defendant contends we should review this issue de novo, and reverse the trial court's grant of a new hearing.
"[A] motion for new trial is addressed to the sound discretion of the trial court, and its ruling will not be disturbed absent a manifest abuse of that discretion." Kinsey v. Spann, 139 N.C. App 370, 372, 533 S.E.2d 487, 490 (2000); see also Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982) (indicating a trial court's discretionary ruling to order a new trial pursuant to Rule 59 is reviewed for a manifest abuse of discretion). "However, where the motion involves a question of law or legal inference, our standard of review is de novo." Kinsey, 139 N.C. App. at 372, 533 S.E.2d at 490. Plaintiff moved for a new hearing pursuant to N.C. Gen. Stat. § 1A-1, Rule 59(a)(1) and Rule 59(a)(3). Both of these grounds are reviewed for an abuse of discretion. See Kinsey, 139 N.C. App. at 373, 533 S.E.2d at 490 (indicating an abuse of discretion standard applies to Rule 59(a)(1)); Watkins v. Watkins, 83 N.C. App. 587, 351 S.E.2d 331 (1986) (reviewing a Rule 59(a) motion based upon surprise under an abuse of discretion standard). Thus, we review the trial court's grant of a new hearing under a manifest abuse of discretion standard.
The trial court granted a new child custody hearing because it concluded an irregularity had occurred. Rule 59(a)(1) provides a new trial may be granted for "[a]ny irregularity by which any party was prevented from having a fair trial[.]" N.C. Gen. Stat. § 1A-1, Rule 59(a)(1) (2003). "This section provides wide latitude for the trial judge to award new trials, and it does not require that he set out grounds to support his order." Finance Corp. v. Mitchell, 26 N.C. App. 264, 267, 215 S.E.2d 823, 824-25 (1975). Although the trial court was not required to indicate the reasons for granting the new hearing, the trial court indicated it was granting a new hearing because: (1) a judge in a prior hearing ordered the recusal of the guardian ad litem and ordered the guardian ad litem's report stricken from the record, and (2) neither party appealed the 17 September 2003 order striking the guardian ad litem's report. Based upon these reasons, the trial court concluded these "circumstances constitute[d] an irregularity which could cause a reasonable person to perceive an appearance of impropriety, and to question whether that perception prejudiced the [p]laintiff." "It is within the sole discretion of the trial judge to determine whether to grant a Rule 59 motion for a new trial on the grounds of an irregularity." Edwards v. Hardy, 126 N.C. App. 69, 71, 483 S.E.2d 724, 726 (1997). Accordingly, we conclude the trial court did not abuse its discretion in granting a new child custody hearing.
Defendant also contends the trial court abused its discretion in granting a new hearing because plaintiff invited the error and failed to object to any surprise or irregularity during the hearing. The guardian ad litem was appointed by the trial court to assist the trial court in determining the best interests of the minor children. The guardian ad litem conducted an investigation, filed her report with the trial court on 23 May 2003, and served plaintiff and defendant with a copy of the report prior to the child custody hearing. The report did not list all of the people with whom the guardian ad litem spoke; however, neither party nor the trial court knew of the omission prior to the hearing. The fact that plaintiff called the guardian ad litem as a witness and asked her questions about her investigation does not mean plaintiff invited the error.
Plaintiff's failure to object and move that the report be stricken from the record does not preclude the trial court from granting a new hearing under the facts of this case because after the hearing, plaintiff moved to have the guardian ad litem recused and her report stricken from the record. Plaintiff's motion was granted on 17 September 2003 by a different judge, and neither party appealed. In its order granting the new hearing, the trial court concluded:
3. A judicial determination has been made that the Guardian's report was improper and should be stricken from the record and that the Guardian should be recused from this matter.
4. The foregoing circumstances constitute an irregularity which could cause a reasonable person to perceive an appearance of impropriety, and to question whether that perception prejudiced the Plaintiff.
Thus, the irregularity found by the trial court was the consideration of a report that had been stricken from the record. Therefore, under the facts of this case, plaintiff's failure to object during the hearing does not preclude the trial court from granting a new hearing.
Finally, defendant argues the trial court erroneously failed to state the legal or factual basis of its order. As previously stated, the trial court is not required to state the grounds upon which a new trial order is based. See Finance Corp. v. Mitchell, 26 N.C. App. at 267, 215 S.E.2d at 824-25. "While it has been suggested that discretionary new trial orders should include reasons as a matter of course, . . ., the law does not require them in the absence of a specific request." Edge v. Metropolitan Life Ins. Co., 78 N.C. App. 624, 626-27, 337 S.E.2d 672, 674 (1985); see also N.C. Gen. Stat. § 1A-1, Rule 52 (2003).
Accordingly, the trial court did not abuse its discretion in granting plaintiff a new child custody hearing. It is unnecessary to address defendant's arguments regarding the propriety of granting plaintiff a new hearing under Rule 60 as the trial court properly granted a new hearing under Rule 59.
Affirmed.
Judges BRYANT and JACKSON concur.
Report per Rule 30(e).