Toney v. Toney

323 S.E.2d 434, 72 N.C. App. 30, 1984 N.C. App. LEXIS 3982
CourtCourt of Appeals of North Carolina
DecidedDecember 18, 1984
DocketNo. 8429DC29
StatusPublished

This text of 323 S.E.2d 434 (Toney v. Toney) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Toney v. Toney, 323 S.E.2d 434, 72 N.C. App. 30, 1984 N.C. App. LEXIS 3982 (N.C. Ct. App. 1984).

Opinions

BRASWELL, Judge.

Defendant-mother appeals from certain portions of an order concerning the custody and support of the parties’ minor children, [31]*31Bruce and Bryan. Specifically she appeals from the portions of the order which granted custody of Bryan to his father, the plaintiff, and which made her solely responsible for the support and maintenance of Bruce, the minor child placed in her custody. She brings forth and argues three questions on appeal. She contends the court erred by basing its decision in part upon the finding of fact that due to the defendant’s objection the court did not interview Bryan; by failing to make adequate and detailed findings of fact to support the award of the custody of Bryan to the plaintiff; and by making inadequate findings of fact to support the conclusion that she be solely responsible for the support of the child in her custody. We disagree and affirm the trial court’s judgment.

On 10 June 1973, plaintiff and defendant were married. Two minor children, Bryan and Bruce, were born of the marriage. On 5 February 1983, the parties separated when defendant moved, with the minor children, to her parents’ home in Chowan County. On 28 June 1983, plaintiff obtained physical custody of Bryan. On 8 July 1983, plaintiff filed this action seeking custody of both minor children and seeking an order requiring his wife to provide support for the children. On 22 August 1983, defendant answered seeking a divorce from bed and board, custody of the minor children, and an award of attorney’s fees.

On 23 August 1983, a hearing was held on the complaint and counterclaim. At the hearing, when informed that a court reporter was not available, the parties stipulated that the court should hear the actions and determine all issues presented. Following the hearing the court made extensive findings of fact. Based upon these findings of fact the court awarded primary custody of Bryan to the plaintiff, and primary custody of Bruce to the defendant. The court further decreed that each party should be solely responsible for the support of the minor child within their custody. From that portion of the order, awarding the custody of Bryan to the plaintiff and making the defendant responsible for the support of Bruce, the defendant has appealed.

First, defendant argues the court erred by making the following finding of fact:

XXII. That both Plaintiff and Defendant testified that Bryan Toney was mature and intelligent for his age, but in[32]*32asmuch as the defendant objected to this Court interviewing said Bryan Toney, this Court declined to do so.

She argues that she had a constitutional right to prevent the court from privately interviewing Bryan, and that her exercise of this right should not prejudice her right to custody of the minor child. Defendant has failed to show that this finding was a basis for the court’s conclusion that it would be in Bryan’s best interest to place his custody with his father. We hold the words used by the judge only serve to report the bare facts of what occurred, and do not reflect any interference with defendant’s constitutional rights. The record is instead replete with other findings which show that other factors were the basis of the order. For failure to show any prejudicial error, the assignment of error is overruled.

Next, defendant argues that the court’s conclusion that awarding the plaintiff Bryan’s custody would be in the child’s best interest was not supported by adequate and detailed findings of fact. In custody cases, the court’s order must contain findings of fact which are sufficient to sustain the court’s conclusions that the award will best promote the interest and welfare of the minor child. Such findings must be supported by competent evidence. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E. 2d 26 (1977). Where the testimony offered at the hearing, as in this case, is not brought forward in the record “it must be presumed that the findings of fact are supported by competent evidence.” Carter v. Carter, 232 N.C. 614, 616, 61 S.E. 2d 711, 713 (1950). See also Bethea v. Bethea, 43 N.C. App. 372, 258 S.E. 2d 796 (1979), disc. rev. denied, 299 N.C. 119, 261 S.E. 2d 922 (1980). The following pertinent findings of fact appear in the record.

XVII. That since June 28, 1983, until this date, Bryan Toney has continually resided with the Plaintiff in Rutherford County, North Carolina and Bruce Toney has continually resided with the Defendant in Chowan County, North Carolina.
XVIII. That both Plaintiff and Defendant exercised substantial and important care and responsibility for both minor children since birth; that both Plaintiff and Defendant were active in their church, Bethel Baptist Church, during the course of their marriage.
[33]*33XIX. That the house where the Plaintiff now resides is the former marital domicile, and is situate on approximately nine acres of land in the country, has three bedrooms, is a modern livable home, has a basketball goal, concrete driveway, color television and that only the Plaintiff and Bryan Toney have resided here since June 25, 1983; that Bryan Toney has his own bedroom in this residence.
XX. That the home where the Defendant has resided since February 5, 1983 is an old home, but recently renovated, is also situate on a large tract of land in Chowan County, North Carolina, has four bedrooms, (however, the two bedrooms located upstairs are currently being used for storage and only the two bedrooms downstairs are being used for sleeping), and that Defendant and Bruce Toney sleep in one downstairs bedroom and Defendant’s parents sleep in the other downstairs bedroom.
* * * *
XXIII. That both Plaintiff and Defendant testified that the other party was a fit and proper parent at all times during the course of their marriage, but each parent testified that it was in the best interest of said minor children for custody to be placed with them.
XXIV. . . . That Plaintiffs working hours are from 7:30 a.m. until 8:00 p.m. for three consecutive days followed by four days vacation then the same working hours for four consecutive days followed by three days vacation. That when Plaintiff is at work, Bryan Toney is cared for by Plaintiffs parents, whose land adjoins the land of the former marital domicile. That both Plaintiff and Defendant testified that Plaintiffs parents, Bryan Toney’s paternal grandparents, were fit and proper persons to have the care and custody and supervision of either of the minor children.
XXV. That although the Defendant is employed on the first shift at Carter’s, Inc., due to the company’s extra business, she has actually worked the second shift approximately eighty per cent of the time since becoming employed at Carter’s, Inc. in May 1983.
[34]*34XXVI. That Defendant’s parents are both employed on a first shift, and Bruce Toney is placed in a nursery day care center each weekday morning in Edenton, North Carolina.
XXVII. That Bryan Toney was enrolled in the first grade at a Rutherford County elementary school during the 1982-83 school year, when on February 5, 1983, without prior notice, Defendant removed said child to Chowan County and entered said child in a Chowan County elementary school to complete that school year.

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Related

Montgomery v. Montgomery
231 S.E.2d 26 (Court of Appeals of North Carolina, 1977)
Coble v. Coble
268 S.E.2d 185 (Supreme Court of North Carolina, 1980)
Bethea v. Bethea
258 S.E.2d 796 (Court of Appeals of North Carolina, 1979)
Carter v. Carter
61 S.E.2d 711 (Supreme Court of North Carolina, 1950)

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Bluebook (online)
323 S.E.2d 434, 72 N.C. App. 30, 1984 N.C. App. LEXIS 3982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toney-v-toney-ncctapp-1984.