Opinion
No. 07-957.
Filed March 4, 2008.
Stanly County No. 04CVD531.
Appeal by Defendant from judgment entered 15 November 2006 by Judge Tanya T. Wallace in Stanly County District Court. Heard in the Court of Appeals 6 February 2008.
Tucker Singletary, P.A., by William C. Tucker, for Plaintiff-Appellee. Gailor, Wallis Hunt, P.L.L.C., by Kimberly A. Wallis, and Jaime H. Davis, for Defendant-Appellant.
Roger Thomas (Plaintiff) and Elaine Thomas (Defendant) were married in 1993 and separated in May 2004. The parties have two children: Sara Kate, born 1999; and Henry, born 2002. On 17 May 2005 the trial court entered a child custody order granting legal and primary physical custody of the minor children to Plaintiff. Six months later Defendant filed a motion for change of custody, alleging a substantial change of circumstances since the entry of the court's initial custody order. A hearing was conducted in September 2006. At the end of Defendant's evidence, Plaintiff sought dismissal of Defendant's motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 41 (2007). From the trial court's order dismissing her motion for change of custody, Defendant timely appealed. We affirm.
Standard of Review
Defendant appeals from dismissal of her motion under N.C. Gen. Stat. § 1A-1, Rule 41(b), which provides in pertinent part:
. . . After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). . . .
"The proper standard of review for a motion for an involuntary dismissal under Rule 41 is (1) whether the findings of fact by the trial court are supported by competent evidence, and (2) whether the findings of fact support the trial court's conclusions of law and its judgment." Dean v. Hill, 171 N.C. App. 479, 483, 615 S.E.2d 699, 701 (2005) (citations omitted).
On review of a trial court's dismissal under Rule 41(b), the "trial court's findings of facts supported by substantial competent evidence are conclusive on appeal, even where there is conflict in the evidence." Smith v. Butler Mtn. Estates Property Owners Assoc., 324 N.C. 80, 85, 375 S.E.2d 905, 908 (1989) (citations omitted). "`The trial court's conclusions [of law], however, are completely reviewable.'" Beck v. Beck, 175 N.C. App. 519, 523, 624S.E.2d 411, 414 (2006) (quoting Baker v. Showalter, 151 N.C. App. 546, 549, 566 S.E.2d 172, 174 (2002)).
Defendant argues first that the trial court applied the wrong legal standard in its ruling on Plaintiff's dismissal motion. The court's order dismissing Defendant's motion for change of custody made nine detailed Findings of Fact and then stated:
Based upon the foregoing Findings of Fact, the Court makes the following:
CONCLUSIONS OF LAW . . .
2. Taking the evidence in the light most favorable to the defendant, the defendant has failed to show any substantial change of circumstances affecting the welfare of the minor children, either salutary or adverse, since the entry of the prior order warranting modification of their custody.
Based upon this Conclusion, the court held that: The motion of the defendant for modification of child custody is hereby involuntarily dismissed, with prejudice, at the close of the defendant's evidence.
Defendant correctly points out that the trial court applied the improper standard when it considered the evidence "in the light most favorable to the defendant." In ruling on a dismissal motion under Rule 41(b), the trial court must "`evaluate the evidence without any limitations as to the inferences which the court must indulge in favor of the plaintiff's evidence on a similar motion for a directed verdict in a jury case.'" Dealers Specialties, Inc. v. Housing Services, 305 N.C. 633, 638, 291 S.E.2d 137, 140 (1982) (quoting and adopting rule stated in Bryant v. Kelly, 10 N.C. App.208, 213, 178 S.E.2d 113, 116 (1970), rev'd on other grounds, 279 N.C. 123, 181 S.E.2d 438 (1971)). "Thus, the trial judge is not required to consider the evidence in the light most favorable to the [non-movant]." Pitt County v. Dejavue, Inc., ___ N.C. App. ___, ___, 650 S.E.2d 12, 19 (2007) (citations omitted). However, the trial court erred by imposing upon Plaintiff higher burden than is proper. Given that this error was in Defendants' favor, we cannot see how she was injured by the mistake. Defendant fails to allege any prejudice, and we find none. This assignment of error is overruled.
Defendant next argues that the Plaintiff "waived his right to move for an involuntary dismissal by offering the evidence of Mr. Taylor, prior to the Court's ruling on Plaintiff's motion to dismiss." To support this argument, Defendant cites only N.C. Gen. Stat. § 1A-1, Rule 41(b). However, Rule 41 provides that the trial court may "decline to render any judgment until the close of all the evidence." "When a motion to dismiss pursuant to 41(b) is made, the judge . . . must find facts for the purposes of review; however, he need not act at the close of plaintiff's evidence, but he should, except in the clearest cases, defer judgment until the close of all evidence.' Dealers Specialties, 305 N.C. at 640, 291 S.E.2d at 141 (citations omitted). Further, the order states that it is based on consideration of Defendant's evidence, and does not reference Plaintiff's evidence. This assignment of error is overruled.
Defendant next argues that certain of the court's findings of fact were not supported by the evidence. We disagree.
We first consider the trial court's findings of fact regarding events occurring between the entry of the initial custody order and the hearing. Defendant challenges the sufficiency of the evidence supporting the court's findings that "since the prior hearing of this matter in February and March, 2005:
. . . .
j. The defendant did not truly desire reconciliation with the plaintiff, seeking and participating in the counseling in order to avoid the consequences of the custody ruling and award; . . .
. . . .
u. Despite the allegations of the motion, the defendant has had substantial access to the children in school and Wee Care; . . .
The evidence supporting the court's finding number 5(j) that Defendant "did not truly desire reconciliation with the plaintiff" and participated in marriage counseling "to avoid the consequences of the custody ruling and award" includes the following:
1. Defendant's testimony that (1) she participated in marriage counseling because it was what she "needed to do and what was right to do"; but (2) her "emotions and heart" were not "in line with what I know I needed to do"; and (3) she "did not feel complete tenderness and warmth and affection" towards Plaintiff.
2. Defendant's testimony that (1) if the trial court had given her custody of the minor children in its initial custody order, she would have remained permanently in South Carolina, and (2) she only decided to move back to North Carolina when Plaintiff was given custody of the children.
3. Defendant's testimony that (1) she knew the sight of police officers at Plaintiff's house would be a professional embarrassment to him as a minister; (2) during the time they were in marriage counseling, Plaintiff specifically asked her not to have law enforcement officers come to his house; but (3) she did not honor his request, and asked the police department to send an officer to Plaintiff's house when she was removing her things from his house.
No evidence was presented suggesting that Plaintiff had threatened Defendant in any way.
The court's finding number 5(u) that "defendant has had substantial access to the children in school and Wee Care" is also supported by substantial competent evidence. Regarding Defendant's access to her daughter's public school, Defendant testified that she volunteered at the school once a week; that she usually ate lunch with her daughter on the days she volunteered; that after school she often waited with her daughter until the baby-sitter arrived; that she came with her daughter's class on most field trips; and that she was on the PTO council. Defendant also testified that she had a "very positive experience" as a school volunteer. Regarding her son's preschool, Defendant testified that the nursery program did not need volunteer help, that she attended the school's open house and fall festival, and that there were no other school events to which parents were invited.
Based upon the foregoing we conclude that both of these findings are supported by substantial competent evidence, and should be upheld. Defendant also argues that there was insufficient evidence to support the court's findings that "at the time of the prior hearing in February and March, 2005":
. . . .
f. The parties had communicated and interacted as necessary for the health and well-being of the children, and cooperated in the exchange of times to accommodate the schedules of the other party and the children;
. . . .
i. The defendant testified that she had ended her relationship with Kenton Yealy prior to the hearing.
Defendant contends that in its initial custody order the trial court made other findings "in direct contradiction" to these findings. She asserts that the court's finding that the parties had previously "communicated and interacted as necessary for the health and well-being of the children, and cooperated in the exchange of times to accommodate the schedules of the other party" is unsupported by substantial competent evidence, on the grounds that the court's initial order included a finding that:
38. The conduct of the defendant in seeking out Mr. Yealy, entering into a relationship with him, and moving to an area in close proximity to him evidences a pattern of instability and disruption to the welfare of Sara Kate and Henry. This pattern is further evidenced by the discontinuation of medication without consulting her physician[.] . . . The actions, conduct and behavior of the defendant since January, 2004, create substantial questions as to the soundness of her judgment[.] . . . . The unwillingness of the defendant to provide information to the plaintiff concerning the children since their separation . . . demonstrates an attitude of limited cooperation with plaintiff on issues involving the children and isolation of the plaintiff from the children. The defendant has clearly placed her own interests, ambitions and desires above the welfare and best interest of the children. . . .
(emphasis added). Defendant draws our attention to the underlined sentence in the court's earlier order. However, Defendant does not deny the truth of the court's finding that she and Plaintiff had communicated about their children.
We conclude that the court's previous finding that Defendant was "unwilling" to share information about the children does not invalidate or contradict its later finding that the parties had nonetheless been able to communicate as necessary regarding their children's health and visitation schedule. This contention is overruled.
Similarly, Defendant does not deny that, as found by the court, she testified at the initial hearing that she had ended her extramarital affair. However, she contends that this finding is unsupported by the evidence, on the grounds that other findings in the initial custody order suggest that the court did not believe Defendant's testimony on this issue. We have reviewed these findings and conclude they do not contradict the finding that Defendant testified at the first hearing that she had ended her affair. This assignment of error is overruled.
Defendant also challenges the sufficiency of the evidence supporting the court's findings of fact that:
. . . .
7. . . . There appear to be no adjustment difficulties for the children to the custody arrangement entered by the court in March, 2005.
. . . .
9. The defendant has not been denied any visitation provided in the order of this Court, and there are no efforts or conduct on the part of the plaintiff to damage or discourage such visitation and a good relationship between the defendant and minor children.
Regarding finding number seven (7), the only purported "adjustment difficulty" cited by Defendant rests on testimony by Carla Moore, a friend of Defendant's, that Defendant's younger child sometimes cried at the end of his weekend visitation with Defendant. There was no evidence that the child displayed anything more than the fussy behavior typical of a pre-school child changing from one setting or activity to another. And, Moore's testimony suggests that Defendant may have contributed to the child's distress:
Defendant also mentions her own testimony about her son crying at the end of visitation with her; however, this testimony was excluded by the trial court.
CARLA MOORE: . . . they'll come over and spend their last three hours with us, . . . and Henry, quite a few times, was really saddened that it was time to leave Mommy, that it was going to be time to leave Mommy, and she assured him that his dad loves him, . . . He just wanted to lay on his Mommy's lap.
The trial court, who was able to hear Ms Moore's tone of voice and observe her demeanor, might have concluded that Defendant's pointing out that it was "time to leave Mommy" was a ploy to dramatize the routine shift from one parent to the other. Additionally, Defendant testified that the children were often eager to return to their father at the end of her visitation weekends, which she attributed to speculation that Plaintiff had gifts waiting for the children when they returned.
Moreover, Defendant's own testimony was that the children had friends in her neighborhood and enjoyed church activities, and that her daughter had no behavior problems at school. Defendant presented several witnesses who also testified that her children were well-behaved and seemed well-adjusted and happy. We conclude that the court's finding was supported by substantial competent evidence, and that Defendant has identified no "adjustment difficulties" caused by the court-ordered custody arrangement. This assignment of error is overruled.
Defendant also challenges the evidentiary support for the trial court's finding that Plaintiff did not deny or discourage Defendant from exercising her right to visitation as provided in the custody order, and that Plaintiff had not engaged in efforts or conduct that discouraged Defendant's visitation or her relationship with the minor children. We disagree.
Defendant does not contend that Plaintiff has ever denied her the right to visitation under the custody order, and uncontradicted evidence showed that Plaintiff never interfered with Defendant's legal visitation rights. In fact, Defendant testified that on more than ten occasions Plaintiff allowed her additional time with the children, beyond what was legally required. We conclude that the court's finding that Defendant had not been denied her right to visitation is supported by substantial competent evidence.
Defendant also argues that the court's finding, that Plaintiff had not engaged in behavior that discouraged a good relationship between Defendant and her children, is not supported by substantial competent evidence. In support of her position, Defendant cites four instances of "conduct by Plaintiff" that she asserts was "intentionally designed or can reasonably be expected to damage or discourage a good relationship between the defendant and minor children." We next consider the behavior alleged by Defendant.
Defendant first argues that Plaintiff "arranged for a member of the church to supervise the Defendant performing routine care of her children." We conclude that the record does not support Defendant's characterization, and note that Defendant's own testimony regarding this incident was as follows: In June 2005 Defendant was living in South Carolina. The First Baptist Church in Albemarle, where Plaintiff served as minister, scheduled a summer children's program during a week when Defendant had custody of the children. Defendant asked Plaintiff if the children could stay at his home during this week to allow them to attend the program, and asked if she could "take care of them in [Plaintiff's] home." Plaintiff agreed to have the children at his home, but told Defendant he "did not want [her] to care for them in the house[.]" Defendant persisted, telling Plaintiff that if she could "just maybe help [him] get them dressed at night and bathe them and get them ready for bed" that after that she would "go and stay with a friend." Plaintiff agreed, and Defendant went to Plaintiff's house after the first night of the program.
When Defendant arrived at Plaintiff's house, the minor children were there with Plaintiff, as well as a married couple that Defendant knew from church, and a Mr. Taylor, the church's youth minister. Instead of starting bedtime preparations, Defendant took her daughter outside to "catch fireflies." When she came back inside the house, Mr. Taylor said something to the effect of "Let's get the show on the road; you go upstairs and bathe the kids." In response to this remark, Defendant told her daughter "I don't think Daddy wants me to remain right now" and asked her five year old daughter to choose between staying with her father or accompanying Defendant to a friend's house. Defendant testified that her daughter "made it clear" she wanted Defendant to bathe her, so Defendant stayed and got the children ready for bed. Mr. Taylor went upstairs with Defendant and stayed nearby while Defendant bathed and dressed the children.
Assuming, arguendo, that Mr. Taylor acted at Plaintiff's behest, we conclude that this incident demonstrates nothing improper on Plaintiff's part. The undisputed evidence is that Plaintiff agreed to allow the children in his house during a week when Defendant had custody, and even agreed that Defendant could attend to their bedtime routine at his home.
Only after Defendant started playing in the yard with her daughter did Mr. Taylor suggest it was time to "get the show on the road." It was Defendant who announced to her five year old that Plaintiff didn't want Defendant around. In this context, it would not be unreasonable if Plaintiff asked a neutral third party to accompany Defendant, in order to discourage any further dawdling or inappropriate remarks to the children.
Defendant also asserts that Plaintiff tried to discourage a good relationship between her and the children by employing a nanny. Defendant offers no support for her position that a custodial parent's use of day care constitutes an impediment to the non-custodial parent's relationship with her children, and we find none. Finally, Defendant argued that Plaintiff "depriv[ed] the Defendant of the opportunity to participate in child related activities" by failing to provide her with certain school bulletins or information. As discussed above, we conclude that Plaintiff did not prevent Defendant from engaging in normal parental activities at either child's school. This assignment of error is overruled. We have considered Defendant's remaining arguments and conclude they are without merit, and that the trial court's order dismissing Defendant's motion for change of custody should be
Affirmed.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).