Opinion
No. 03-477
Filed March 16, 2004 This case not for publication
Appeal by plaintiff from judgments filed 16 August 2002, 19 September 2002, and 8 October 2002 by Judge Jennifer M. Green in Wake County District Court. Heard in the Court of Appeals 28 January 2004.
Carrie Gail Parker, pro se, for plaintiff-appellant. Tharrington Smith, L.L.P., by Jaye Meyer and Jill Schnabel, for defendant-appellee.
Wake County No. 97 CVD 9606.
Plaintiff and defendant were married in 1991, separated in 1997, and divorced in 1998. They are the parents of three children; Brittany, born 8 May 1987, Brad, born 25 February 1992, and Elizabeth, born 17 May 1995. On 20 August 1997, plaintiff filed a complaint and motion against defendant seeking a domestic violence protective order. That same day, the trial court entered, with the consent of both parties, a 10-day domestic violence protective order stating, inter alia, that defendant "shall not assault, threaten, abuse, follow, harass by telephone, visiting[sic] the home or workplace or other means, or interfere with plaintiff."
On 28 August 1997, plaintiff and defendant entered into a consent order for child custody and support and agreed to dismiss with prejudice, pursuant to Rule 41 of the North Carolina Rules of Civil Procedure, all domestic violence claims pending between the parties pursuant to G.S. § 50B. The consent order granted joint legal custody of the minor children to both parties, with the children primarily residing with plaintiff. Defendant was granted visitation on alternating weekends and for half of all holiday and school break times. The consent order also stated as follows:
8. This Order is entered without prejudice to either party. Either party may move the Court for a modification of the provisions of [this order] without necessity of alleging a substantial change of circumstances, and the Court shall not be required to find a change of circumstances as a prerequisite to modification of the provisions. . . .
9. The claims and orders pertaining to domestic violence and domestic violence restraining orders and injunctions are hereby dissolved. The provisions of this Consent Order are entered pursuant to Chapter 50 of the North Carolina General Statutes and shall be continuing in effect until further orders of the Court.
On 29 January 2002, defendant filed a motion to modify child custody and child support, alleging a substantial change in circumstances affecting the welfare of the minor children. On 29 May 2002, plaintiff filed a motion for a custody evaluation. The trial court heard defendant's motion on 27 June 2002. On 7 August 2002, the trial court orally announced that it found a substantialchange in circumstances affecting the welfare of the minor children sufficient to warrant placing primary custody of the two youngest children, Brad and Elizabeth, with defendant and to warrant a corresponding decrease in the amount of child support defendant was paying to plaintiff. A written order was entered on 16 August 2002.
On 15 August 2002, plaintiff filed a complaint and motion for a domestic violence protective order in Johnston County. The complaint alleged that on 14 August 2002, when defendant had attempted to pick up Brad for a visit pursuant to the newly announced custody order, he assaulted the child by grabbing him by the seat of his pants and ripping his underwear and by grabbing him by his arm and shoving him down on the couch. The same day, a 10-day ex parte domestic violence protective order was entered against defendant in Johnston County. The defendant answered plaintiff's complaint on 20 August 2002, admitting that defendant was forced to restrain his son and during the altercation ripped his underwear, but denying any charges of domestic violence. Defendant also moved to change venue to Wake County, to consolidate the action with the current Wake County domestic relations action, to continue the matter until the defendant's preliminary motions had been ruled upon, and for attorney fees. On 23 August 2002, plaintiff moved, pursuant to Rule 59 of the North Carolina Rules of Civil Procedure, to set aside the modification order entered 16 August 2002 and for a new trial. The district court of Johnston County granted defendant's motion to change venue to Wake County on 5 September 2002. On 19 September 2002, the Wake County District Court entered an order denying plaintiff's motion for a new trial, granting defendant's motion to consolidate, and reserving its ruling as to plaintiff's motion for a custody evaluation until after the return hearing on plaintiff's complaint and motion for a domestic violence protective order.
Plaintiff's complaint and motion for a domestic violence protective order was heard on 19 September 2002. In an order filed 8 October 2002, the trial court found as fact, inter alia:
15. This Court finds as fact that plaintiff intentionally encouraged Brad to be angry at a time when she should have been encouraging Brad's relationship with his father and acceptance of the new custody arrangements. This Court further finds as fact that plaintiff's insisting that defendant come into her house on August 14, 2002 was a "set up." The Court finds that defendant did not commit domestic violence on August 14, 2002, but that he properly restrained Brad at a time when plaintiff refused to help manage the child's behavior. . . .
The court ordered that the 10-day ex parte domestic violence protective order against defendant be dissolved, that the custody order entered on 16 August 2002 remain unchanged, and that plaintiff's request for a custody evaluation be denied. Plaintiff gave notice of appeal from each of the foregoing orders.
The record on appeal contains fourteen assignments of error and plaintiff presents arguments in support of each of them. Wehave carefully considered her arguments and, for the reasons stated herein, affirm the trial court's order in all respects except for its allocation of uninsured medical expenses.
First, plaintiff argues that the trial court erred by excluding testimony during the child custody and support modification hearing on 27 June 2002 regarding alleged acts of domestic violence that occurred between the parties prior to the initial August 1997 custody and support order. We reject her argument.
It is well established that a child custody/child support order may be modified only upon a showing of changed circumstances by either party. N.C. Gen. Stat. § 50-13.7 (2003). This requirement ensures that conduct and circumstances ruled upon in a prior custody order are not relitigated in subsequent actions. Newsome v. Newsome, 42 N.C. App. 416, 425, 256 S.E.2d 849, 854 (1979). In this case, the parties agreed, and an order was entered, that the claims pertaining to domestic violence occurring prior to August 1997 be dismissed with prejudice and that orders entered with respect thereto be dissolved. Thus, the prior order was res judicata as to those claims. Id.; Owen v. Owen, 31 N.C. App. 230, 231-233, 229 S.E.2d 49, 50-51 (1976) (conduct and circumstances determined in a prior custody order may not be relitigated during a hearing to modify that custody order).
Plaintiff argues that N.C. Gen. Stat. § 50-13.2(a) (2003), which states that courts "shall consider all relevant factors including acts of domestic violence between the parties" whenmaking child custody determinations, somehow supercedes this general rule. When interpreting multiple statutes governing a single subject, this Court must construe such statutes in pari materia in order to effectuate legislative intent and "to harmonize them into one law on the subject." Brown v. Flowe, 349 N.C. 520, 523-24, 507 S.E.2d 894, 896 (1998). When G.S. § 15-13.2 and G.S. § 15-13.7 are read together, G.S. § 15-13.2 requires only consideration of such relevant conduct and circumstances for subsequent modification orders that have not been previously decided or ruled upon in prior custody and support orders. Plaintiff's first assignment of error is overruled.
Plaintiff next argues the trial court erred by not considering the effect on the children of witnessing alleged domestic violence. Plaintiff fails to point to any place in the record where the trial court refuses to consider such evidence. Indeed, the record indicates that the trial court admitted testimony regarding two acts of domestic violence which allegedly occurred after the August 1997 custody and support order. While the trial court did not make a finding regarding the first alleged act of domestic violence, it did make a finding determining that the second alleged act of domestic violence was without merit. We overrule plaintiff's assignment of error. See Witherow v. Witherow, 99 N.C. App. 61, 63, 392 S.E.2d 627, 629 (1990) ("[T]he trial court need not make a finding as to every fact which arises from the evidence; rather, the court need only find those facts which are material to theresolution of the dispute."), aff'd, 328 N.C. 324, 401 S.E.2d 362 (1991).
By her third, fourth, and eighth assignments of error, plaintiff challenges the trial court's conclusions of law that there was a substantial change in circumstances affecting the welfare of the two youngest children, Elizabeth and Brad, and that it was in the children's best interest to order a change in custody. When reviewing an order modifying an existing child custody order, this Court must determine whether there was substantial evidence to support the trial court's findings of fact, and whether those findings support its conclusions of law. Shipman v. Shipman, 357 N.C. 471, 474-75, 586 S.E.2d 250, 253-54 (2003). With regard to the trial court's conclusions of law, our Supreme Court has stated:
[T]he trial court must [first] determine whether there has been a substantial change in circumstances and whether that change affected the minor child. Upon concluding that such a change affects the child's welfare, the trial court must then decide whether a modification of custody was in the child's best interests. If we determine that the trial court has properly concluded that the facts show a substantial change in circumstances has affected the welfare of the minor child and that modification is in the child's best interests, we will defer to the trial court's judgment and not disturb its decision. . . .
Id. at 475, 586 S.E.2d at 254.
After careful review, we conclude there is substantial evidence in the record to support the trial court's findings that for an extended period of time the parties did not follow the schedule set out in the initial August 1997 custody order, butinstead the two younger children spent approximately one half of their time with defendant; that plaintiff had significant time restraints resulting from Brittany's horse-related activities and the working of a second job; that plaintiff had exhibited signs of depression and feelings of being overwhelmed; and that plaintiff was unable to properly control her son, Brad, or control her temper around her son.
Plaintiff points to a lack of findings by the trial court regarding a change in the happiness or demeanor of her daughter Elizabeth, and therefore, argues that the trial court's findings do not support its conclusions regarding her welfare. We disagree. "The welfare of the child in controversies involving custody is the polar star by which the courts must be guided in awarding custody." Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E.2d 357, 361 (1968) (internal quotation omitted). When determining the welfare of a child, the court must consider all the circumstances in a case, not just the apparent demeanor of a child. The trial court's findings regarding plaintiff's time restraints, her feelings of depression and being overwhelmed, and her inability to control her son, Brad, have a direct impact on the welfare of her daughter, Elizabeth. We conclude that the trial court's findings support the trial court's conclusion that there was a substantial change of circumstances affecting the welfare of the minor children. Plaintiff's assignments of error to the contrary are overruled.
Plaintiff next contends the trial court erred when it determined that it was in the best interests of the minor children, Brad and Elizabeth, to reside primarily with defendant. She points to allegations against defendant regarding acts of domestic violence and his fitness as a parent, and argues that the trial court's lack of findings regarding these specific allegations support a reversal of the trial court's order.
"[T]he trial court need not make a finding as to every fact which arises from the evidence; rather, the court need only find those facts which are material to the resolution of the dispute." Witherow v. Witherow, 99 N.C. App. 61, 63, 392 S.E.2d 627, 629 (1990), aff'd, 328 N.C. 324, 401 S.E.2d 362 (1991). The record indicates that the trial court properly considered and rejected the plaintiff's allegations of domestic violence in this case. Furthermore, the trial court concluded, after considering all of the evidence, that awarding primary custody to defendant was in the two youngest children's best interest. After careful review, we conclude that the trial court's findings support its conclusion, and thus, we defer to the trial court's judgment and will not disturb its decision.
In her seventh assignment of error, plaintiff contends the trial court abused its discretion when it failed to give considerable weight to the wishes of children of an appropriate age. The wishes of a child of an appropriate age in a custody dispute between parents are entitled to considerable weight. Elmore v. Elmore, 4 N.C. App. 192, 197, 166 S.E.2d 506, 509 (1969). "The expressed wish of a child of discretion is, however, never controlling upon the court, since the court must yield in all casesto what it considers to be for the child's best interests, regardless of the child's personal preference." Clark v. Clark, 294 N.C. 554, 577, 243 S.E.2d 129, 142 (1978) (internal quotation omitted). The record indicates that the trial court heard and properly considered testimony from both Brittany and Brad over the course of this custody dispute. We find no abuse of discretion and thus, overrule plaintiff's assignment of error.
Plaintiff argues, in her fifth assignment of error, that the trial court erred by considering circumstances that no longer existed at the time of the custody and support hearing. Specifically, plaintiff asserts that by the time of the hearing, her relationship with her son had improved dramatically, that plaintiff was no longer working at night, that plaintiff had taken steps to overcome her financial difficulties, and that she was no longer overwhelmed or depressed. However, our Supreme Court has held that "any past circumstance or conduct which could impact either the present or the future of a child is relevant, notwithstanding the fact that such circumstance or conduct did not exist or was not being engaged in at the time of the custody proceeding." Speagle v. Seitz, 354 N.C. 525, 531, 557 S.E.2d 83, 87 (2001), cert. denied, 536 U.S. 923, 153 L.Ed.2d 778, 122 S.Ct. 2589 (2002). Plaintiff's fifth assignment of error is overruled. In her sixth assignment of error, plaintiff argues the trial court erred when it made a finding of fact, based on calendars submitted by the defendant, regarding the amount of time each child spent with defendant. Plaintiff contends that the trial court's reliance on such calenders constituted improper judicial notice since the accuracy of the calenders were disputed at trial. See N.C. Gen. Stat. § 8C-1, Rule 201(b) (2003) (stating that a judicially noticed fact must be one not subject to reasonable dispute). However, the trial court did not take judicial notice of the calenders, rather it determined, based on evidence presented by defendant and not objected to by plaintiff, that the calendars were adequate proof offered by defendant to prove the fact. A trial court's findings of fact are conclusive on appeal if there is substantial evidence to support them, even if the record could sustain findings to the contrary. Shipman v. Shipman, 357 N.C. 471, 474-75, 586 S.E.2d 250, 253-54 (2003). We hold the calenders constituted substantial evidence to support the trial court's finding of fact. Plaintiff's sixth assignment of error is overruled.
In her ninth assignment of error, plaintiff contends the trial court erred when it ordered both parties to provide equally for the uninsured medical costs of the minor children. Child support orders entered by a trial court will not be disturbed absent a clear abuse of discretion. Leary v. Leary, 152 N.C. App. 438, 441, 567 S.E.2d 834, 837 (2002). N.C. Gen. Stat. § 50-13.4(c)(2003) provides:
Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance. . . .
. . .
The court shall determine the amount of child support payments by applying the presumptive guidelines established pursuant to subsection (c1) of this section. However, upon request of any party, the Court shall hear evidence, and from the evidence, find the facts relating to the reasonable needs of the child for support and the relative ability of each parent to provide support. If, after considering the evidence, the Court finds by the greater weight of the evidence that the application of the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate the Court may vary from the guidelines.
The North Carolina Child Support Guidelines in effect at the time of the entry of the modification order on 16 August 2002 stated:
Medical or dental expenses in excess of $100 per year and uncompensated by insurance should be divided between the parties in proportion to their respective incomes.
N.C. Child Support Guidelines, 2002 Ann. R. (N.C.) 33, 36 (superceded by amendments effective October 1, 2002).
In its order, the trial court found that plaintiff's monthly income was less than half defendant's monthly income, yet still ordered that the parties provide equally for the uninsured medical costs of the minor children. Since there is no indication in the record that defendant requested a deviation from the presumptive guidelines and since the trial court made no findings regarding why deviation from the presumptive guidelines in this case was appropriate, the trial court abused its discretion when it ordered both parties to provide equally for the uninsured medical costs of the minor children instead of in proportion to the parties' respective incomes.
Plaintiff also argues in her ninth assignment of error that the trial court erred when it failed to award plaintiff attorney fees. N.C. Gen. Stat. § 50-13.6 (2003) permits the trial court to award attorney fees under certain circumstances in actions for custody and support of minor children. "A trial judge is permitted to exercise considerable discretion in allowing or disallowing attorney's fees in [such] cases." Warner v. Latimer, 68 N.C. App. 170, 176, 314 S.E.2d 789, 793 (1984). We discern no abuse of discretion in this case.
In assignments of error numbered ten and eleven, plaintiff argues the trial court erred when it awarded only one dependent child tax deduction to plaintiff and when it calculated child support for all three children using a Worksheet B. We reject these contentions without discussion as they are completely lacking in merit.
By her assignments of error numbered twelve and thirteen, plaintiff contends that the trial court erred when it denied plaintiff's motion for a new trial pursuant to Rule 59 of the North Carolina Rules of Civil Procedure. "Our review of a trial court's denial of a Rule 59 motion is limited to a determination of whether the trial judge abused his discretion." Ollo v. Mills, 136 N.C. App. 618, 624, 525 S.E.2d 213, 217 (2000). After careful review, we find no abuse of discretion by the trial court. Plaintiff argues the trial court's refusal to allow direct testimony regarding alleged acts of domestic violence by defendant occurring prior to the initial August 1997 custody and support order was error warranting a new trial because the testimony was admissible to impeach defendant's testimony that he did not have an anger management problem. A new trial may be granted based on an error of law occurring at trial and objected to by the party making the motion. N.C. Gen. Stat. § 1A-1, Rule 59(a)(8) (2003). In this case, plaintiff cites G.S. § 8C-1, Rule 405 which provides: "[o]n cross examination, inquiry is allowable into relevant specific instances of conduct" where proof of a person's character is relevant and admissible at trial. N.C. Gen. Stat. § 8C-1, Rule 405(a) (2003). During her cross-examination of defendant, plaintiff was permitted to question him about conduct allegedly occurring prior to the August 1997 custody and support order. Thus, plaintiff's contention of error is without merit.
Plaintiff also argues the trial court erred when it admitted evidence, consisting of e-mail and photographs, which she contends were unlawfully taken from her residence by defendant. A new trial may be granted based on misconduct by a prevailing party. N.C. Gen. Stat. § 1A-1, Rule 59(a)(2) (2003).
We must first note that plaintiff did not object to these exhibits and thus, has waived any argument regarding their admission into evidence. Furthermore, plaintiff was given, and took, full opportunity to explain and introduce evidence to the court regarding her belief that defendant had unlawfully takenthese things from her home. Thus, the trial court's denial of a new trial was neither a manifest abuse of discretion nor clearly erroneous. Plaintiff's assignment of error is overruled.
Finally, plaintiff argues the trial court erred by denying her motion for a child custody evaluation. Both the Rules of Evidence and the Rules of Civil Procedure authorize and empower a trial court to appoint, on its own motion or the motion of a party, an expert to conduct a child custody evaluation. N.C. Gen. Stat. §§ 1A-1, Rule 35(a) 8C-1, Rule 706(a) (2003). However, it is clear that the decision to either grant or deny such a motion is discretionary and therefore, our review is limited to whether the trial court abused its discretion in denying the motion. See White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) ("It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion.").
In this case, the trial court conducted a full hearing where both parties presented witnesses and evidence regarding whether child custody should be modified, and from this hearing, made thirty-one findings of fact regarding such evidence. Moreover, the trial court also considered additional evidence presented during plaintiff's motion for a new trial and during a hearing addressing plaintiff's complaint and motion for a domestic violence protective order. From such evidence, it is apparent that the trial court had sufficient knowledge of the parties and the situation to make a custody determination without the need for an independent custodyevaluation. Therefore, we discern no abuse of discretion in the trial court's denial of plaintiff's motion to appoint an expert to conduct a child custody evaluation in this case.
In summary, the trial court's orders are affirmed in all respects except for that portion of the court's 16 August 2002 order allocating the children's uninsured medical expenses. As to that issue, the order is reversed and this cause is remanded to the trial court for entry of an order allocating the children's uninsured medical expenses as provided by the applicable child support guidelines.
Affirmed in part, reversed in part, and remanded.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).