Sherrill v. Sherrill ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-429
Filed: 15 December 2020
Rowan County, No. 17 CVD 824
JAY FRANKLIN SHERRILL, Plaintiff,
v.
LINDA ANN SHERRILL, Defendant.
Appeal by defendant from order entered 20 December 2018 by Judge Charlie
Brown in District Court, Rowan County. Heard in the Court of Appeals 13 November
2019.
Hick McDonald Noecker LLP, by David W. McDonald, for plaintiff-appellee.
Fox Rothschild LLP, by Michelle D. Connell, for defendant-appellant.
STROUD, Judge.
Mother appeals from a permanent custody order granting sole legal and
physical custody to Father, with no visitation for Mother. Because the trial court’s
findings of fact do not support its conclusion that Mother is not a fit and proper person
to have custody or visitation of her minor child, we must reverse and remand for
further proceedings and entry of a new order.
I. Background
SHERRILL V. SHERRILL
Opinion of the Court
Mother and Father married in November 2003 and in June 2004, Henry,1 the
parties’ only child, was born. After he was injured in an automobile accident in 2004,
Father began sleeping separately from Mother in a different bedroom. Because of
health issues earlier in life, Henry slept in the bed with Mother, and this continued
until 2016. Both parties acknowledged the sleeping arrangements were a source of
conflict in their marriage.
The parties separated in March 2017, when Mother left the parties’ marital
home. Father and Henry continued to live in the marital home. After separation,
Mother continued to take Henry to school each day. On 6 April 2017, Father filed a
complaint for custody and child support. Father also filed an ex parte motion for
temporary custody, based upon his allegation that Mother had told him “she will take
the minor child from him and that he will never see the minor child again.” The trial
court granted the ex parte temporary custody order and set a hearing to determine
whether to continue the temporary order. During the return hearing on the ex parte
motion, Henry talked to the judge in his chambers, and for the first time, he disclosed
Mother had improperly touched him on or about 26 November 2016. Based upon this
disclosure, the incident was reported to DSS and law enforcement. The allegations
were investigated twice by DSS and were unsubstantiated, and the District
Attorney’s Office declined to prosecute. On 17 May 2017, the trial court entered a
1 We use a pseudonym to protect the privacy of the minor child.
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temporary custody order which granted Father full legal and physical custody of
Henry. Mother consented to pay child support.
The permanent custody trial was held on 20 March, 22 March, and 4 April
2018. At the beginning of the trial, the parties agreed to allow Henry to testify in
chambers with only their counsel present. The permanent custody order was entered
on 20 December 2018 and found relevant to the issue on appeal:
19. That the reported touching by [Mother] of the minor child
occurred around Thanksgiving of 2016. The first report by
the minor child of any alleged touching occurred at the
hearing on April 18, 2017.
20. That [Mother] was the primary parent involved with the
minor child and his medical, school, and extracurricular
activities prior to [Father’s] injury in 2014. [Father]
admits he worked “long hours” with NASCAR until his
injury when the minor child was ten years of age. [Mother]
often took the minor child to educational and recreational
events, including the North Carolina Transportation
Museum, Carowinds, Discovery Place, Whitewater Park,
Tiger World wildlife preserve, Harlem Globetrotters
basketball games, Ringling Brothers Circus events,
Carolina Panthers football games, Catawba College
football games, Kannapolis Intimidators minor league
baseball games, NASCAR Hall of Fame and races, monster
truck shows, zoo, air shows, train excursions, museums,
library, church, ball practice, go-kart race tracks,
swimming pools and lakes, and more. [Mother’s] Exhibits
11, 12, and 13 are incorporated by reference.
21. That [Mother] took the minor child to the large majority of
his doctor and dental appointments.
22. That [Mother] attended the large ·majority of the minor
child’s basketball and baseball games for years. The
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maternal grandmother and uncle also attended many of
the minor child’s basketball and baseball games.
23. That [Mother] has maintained health insurance for years
on the minor child.
24. That [Mother] pays Four Hundred Fourteen Dollars and
Fifty Cents ($414.50) per month in child support for the
minor child and is current in her child support obligation.
25. That [Mother] took the minor child to school every day
prior to entry of the Temporary Custody Order signed on
April 6, 2017 (filed April 7, 2017).
26. That since the entry of the Temporary Order on April 18,
2017, [Mother] has sent four or five letters to the minor
child as well as a cell phone, clothes, gift cards, money, a
wallet, and miscellaneous items. These letters and gifts
have been sent over time, including the minor child’s
birthday and Christmas. [Mother]’s Exhibits 3 and 4 are
incorporated by reference.
27. That on October 29, 2017, [Mother], after sharing her
inability to talk to the minor child, sent an email to the
minor child’s teacher seeking help from a tutor for the
minor child. [Mother’s] Exhibit 5 is incorporated herein by
reference.
28. That during the marriage [Mother] established a college
fund for the minor child.
29. That prior to the parties’ separation, the minor child had
a good relationship with the maternal grandparents and
uncle, spending quality time with them on many occasions.
30. That [Mother] attended counseling post-separation with
Jabez Family Outreach to address issues between her and
the minor child.
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31. That [Mother] has a suitable and appropriate three
bedroom, two-bath home.
32. That on April 6, 2017, [Father] filed a Complaint for
Custody and Child Support and an Ex Parte Motion for
Temporary Custody to Maintain Status Quo.
33. That on April 6, 2018, an Ex Parte Custody Order was
signed by The Honorable Kevin Eddinger (filed on April 7,
2018), which placed the immediate temporary ex parte
legal and physical care, custody, and control of the minor
child with [Father] and set the matter on for hearing on
April 18, 2017.
34. That on April 18, 2017, [Mother] filed an Answer and
Counterclaim for custody and child support.
35. That upon the call of the matter on April 18, 2017, for
hearing on the Ex Parte Custody Order, the parties and
their attorneys stipulated that the minor child could testify
in chambers before the presiding judge, The Honorable
Marshall Bickett.
36. That while testifying in chambers, with both attorneys
present, the minor child disclosed that his mother, the
[Mother] in this action, had touched him inappropriately.
37. That following the minor child’s testimony, the parties and
their attorneys signed a Temporary Memorandum of
Judgment/Order which slated that [Father] shall have full
legal and physical care, custody, and control of the minor
child [Henry] and that given the circumstances of this case
referral to custody mediation is not appropriate. That the
Temporary Memorandum of Judgment/Order was filed on
April 18, 2017 (formal Order filed May 17, 2017).
38. That the issues raised by the minor child’s testimony were
reported to law enforcement and to the Rowan County
Department of Social Services.
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Opinion of the Court
39. That law enforcement conducted an investigation, and the
Rowan County Department of Social Services conducted an
investigation.
40. That in conjunction with the Rowan County Department
of Social Services’ investigation, the minor child was
referred to the Terrie Hess House Child Advocacy Center
where he gave an interview and it was recommended that
the minor child talk to a therapist to assist him in dealing
with the [Mother] inappropriately touching him. That the
basis for the referral to the therapist was that the minor
child’s mother had touched his penis.
....
43. That the Rowan County Department of Social Services
conducted an investigation on the reported touching of the
minor child. The case was not substantiated. A later
complaint was lodged against [Mother] which was also not
substantiated. [Mother’s] Exhibits 1 and 2 are
incorporated by reference.[2]
44. That no juvenile neglect or abuse proceeding was initiated
by the Rowan County Department of Social Services
against the [Mother] on behalf of the minor child.
45. That following a complaint, the Rockwell Police
Department conducted an investigation on the reported
touching of the minor child. [Mother] made a voluntary
statement to the police. The Rowan County District
Attorney’s Office was contacted and declined prosecution.
46. That no 50B was filed by [Father] on behalf of the minor
child against [Mother].
47. That the parties were experiencing marital disharmony
during the relevant time periods related to the reported
2 These exhibits are letters from DSS stating, “the case was unsubstantiated.”
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touching of the minor child, including from Thanksgiving
of 2016 until the hearing on April 18, 2017.
48. That the minor child was a “very sick baby” requiring the
use of a nebulizer “50% to 60% of the time.” The minor
child began sleeping with [Mother] as an infant.
49. That prior to the parties’ separation [Father] and [Mother]
slept in separate bedrooms, and [Mother] had the minor
child sleep in the same bed with her regularly and
frequently. [Mother] referred to this time as their “cuddle
time,” “snuggles,” and “snuggle time.”
50. That [Father] and [Mother] argued over the minor child
sleeping in the same bed with [Mother] as [Father] objected
to that arrangement.
51. That [Mother] admitted in her testimony that she touched
the minor child’s penis when he was in the bed with her.
52. That on the night of the touching, the minor child was
wearing sweatpants.
53. That the [Mother] explained in her testimony that while
touching the minor child’s penis she thought she was
petting a cat or a dog.
54. That the [Mother] told a neighbor, Mona Bisnette, that
She had been accused of improperly touching the minor
child; that she was mortified; and that she thought she was
touching a dog.
55. That following the incident of [Mother] touching the minor
child’s penis, the minor child refused to sleep in the same
bed with [Mother]. [Mother] started yelling at the minor
child and punishing the minor child by taking away his
play station and other items. That [Mother] acknowledged
that she was yelling at the minor child “a lot the last week
before the date of separation.”
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56. That prior to the parties’ separation [Mother] made
inappropriate comments to [Father] about the minor
child’s genital size.
The order concluded Mother “is not a fit and proper person to have custody of the
minor child” and granted “permanent full legal and physical care, custody, and
control” to Father. The order directs that Mother “shall not have visitation with the
minor child at this time.” The order also does not recommend or direct Mother to
engage in counseling or order any other method by which she may be able to resume
some form of visitation or communication with Henry. Mother timely appealed.3
II. Required Findings
Mother argues the “trial court’s conclusion of law that Ms. Sherrill is not a fit
and proper person to have custody or any visitation with the minor child is not
supported by competent evidence or findings of fact.”
A. Standard of Review
The standard of review “when the trial court sits
without a jury is ‘whether there was competent evidence to
support the trial court’s findings of fact and whether its
conclusions of law were proper in light of such facts.’” “In a
child custody case, the trial court’s findings of fact are
conclusive on appeal if supported by substantial evidence,
even if there is sufficient evidence to support contrary
findings . . . . Unchallenged findings of fact are binding on
appeal.” “Whether [the trial court’s] findings of fact
support [its] conclusions of law is reviewable de novo.” “‘If
the trial court’s uncontested findings of fact support its
conclusions of law, we must affirm the trial court’s order.’”
3 Initially, Father did not have appellate counsel and was referred to the North Carolina Appellate
Pro Bono Program.
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In addition, “[i]t is a long-standing rule that the trial
court is vested with broad discretion in cases involving
child custody.”
Burger v. Smith, 243 N.C. App. 233, 236, 776 S.E.2d 886, 888-89 (2015) (alterations
in original) (citations omitted).
B. Findings of Fact
Most of the trial court’s findings of fact are not challenged on appeal and thus
are binding on this Court. Peters v. Pennington, 210 N.C. App. 1, 13, 707 S.E.2d 724,
733 (2011) (“Unchallenged findings of fact are binding on appeal.” (citing Koufman v.
Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991))). Mother challenges portions
of Findings of Fact 51, 53, 55, and 56:
51. That [Mother] admitted in her testimony that she
touched the minor child’s penis when he was in the bed
with her.
....
53. That the [Mother] explained in her testimony that
while touching the minor child’s penis she thought she
was petting a cat or a dog.
....
55. That following the incident of [Mother] touching the
minor child’s penis, the minor child refused to sleep in
the same bed with [Mother]. [Mother] started yelling at
the minor child and punishing the minor child by taking
away his play station and other items. That [Mother]
acknowledged that she was yelling at the minor child “a
lot the last week before the date of separation.”
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Opinion of the Court
56. That prior to the parties’ separation [Mother] made
inappropriate comments to [Father] about the minor
child’s genital size.
C. Sufficiency of the Evidence to Support Finding No. 51
Mother argues the trial court’s conclusions are not supported by the findings
of fact. She also challenges the trial court’s findings of fact to the extent that they
find she touched Henry’s penis. Her argument is based primarily upon Finding No.
51, “That [Mother] admitted in her testimony that she touched the minor child’s penis
when he was in the bed with her.” (Emphasis added.) Her argument also
encompasses portions of Finding No. 53 (“[Mother] explained in her testimony that
while touching the minor child’s penis”) and Finding No. 55 (“following the incident
of the [Mother] touching the minor child’s penis”). We will first address the findings
of fact.
Mother argues the only evidence of any inappropriate touching was her own
testimony. To the extent Finding No. 51 could be interpreted as a finding of a direct,
unclothed touching, or even an intentional touching, Mother is correct that her
testimony does not support such a finding, although we will address Father’s
argument regarding Henry’s testimony below. In her testimony, Mother described
the incident as an accidental touching on top of a blanket and outside of the child’s
pants. Finding No. 52 seems to accept Mother’s claim that any touching was outside
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the clothing: “That on the night of the· touching; the minor child was wearing
sweatpants.”
Despite Finding No. 52, Mother argues the trial court’s Finding No. 51 could
be interpreted as a finding she had directly and intentionally touched the child’s
penis. She argues this difference is “incredibly significant,” and she is correct. The
first, an unintentional touching outside of the clothing not motivated by sexual intent,
is neither child abuse nor a crime. The second—an intentional touching underneath
the clothing or an intentional touching with sexual intent—could easily be child abuse
and potentially a felony. And if the incident was accidental, one accidental touch
would not justify granting Father sole legal and physical custody and entirely cutting
off all visitation between Mother and Henry.
The other evidence in our record is either consistent with Mother’s testimony
or does not address how the touching incident occurred. Kim Lance, a licensed
marriage and family therapist, testified regarding her therapy with Henry, which
started on 11 May 2017, upon referral from Terrie Hess House. She testified the
“basis of that referral” was “[t]hat his mother had touched his penis,” and her therapy
was focused upon that particular issue. Ms. Lance did not testify regarding what
Henry had disclosed to her in their fourteen therapy sessions, based upon Mother’s
objection to this testimony. Father’s counsel asked Ms. Lance about what Henry had
said, resulting in these objections and rulings:
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Opinion of the Court
Q. Ms. Lance, in the 14 times that you’ve met with [Henry],
has he discussed with you what he has said occurred to
him--
MR. DAVIS: Objection.
Q. -- or happened to him?
THE COURT: She’s not an expert. Can’t use it as the basis
of her foundation. Okay.
MS. SMITH: Be corroborative of his testimony, Your
Honor.
...
MR. DAVIS: We don’t know that.
THE COURT: -- his -- his testimony by the stipulation
of the parties was confidential and not reduced as findings.
MS. SMITH: Thank you.
THE COURT: Objection sustained. . . . I -- I’ve considered
it as testimony. I know it’s testimony. Y’all were there
when I heard it and -- and whether you know from the
record and your prep of this witness about whether that
testimony that we heard, that confidential testimony that
we heard, is consistent with her experience may be grounds
for you to question, but you’re not going -- it would be
improper for you to have her tell us what -- what [Henry]
said at this point as corroboration at least.[4]
(Emphasis added.)
4 Since trial counsel for both parties were in chambers during the child’s testimony, they would have
been aware if the child testified to a direct touching or some other action which may constitute sexual
abuse. But the trial court forbade trial counsel from telling anyone what the child said, and both
parties have different attorneys on appeal, so we assume that they also do not know what the child
said.
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Ms. Lance testified about her therapy with Henry and that he had been
“specific in his conversations . . . related to his mom[.]” Ms. Lance provided her
therapy records to DSS on 8 August 2017. The therapy records were not presented
as evidence at trial, even for in camera review.
Mona Bisnette, a neighbor who lived next door to the parties since 2002, also
testified. Her grandson played with Henry so she saw him frequently and she was
“on a friendly basis” with Mother. Mother talked to her “several times” regarding the
parties’ marital difficulties and their separation. She testified that Mother contacted
her about the allegations against her around April of 2017. Mother told Ms. Bisnette
[t]hat she had been accused of inappropriate touching
with [Henry] and that they were -- [Henry] and her were in
her room in her bed and that she said she had
accidentally touched him and that she was mortified and
he laughed.
Q. That’s what she told you?
A. Yes, ma’am.
Q. What did you ask her about that or say in response to
that?
A. I just -- we just briefly just discussed it. . . . She didn’t
go into great detail and I didn’t ask to be told the details of
it.
Q. Did she say to you anything about what she thought she
was doing or touching?
A. That she was touching one of their cats.
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Q. Okay. Did she say specifically she thought she was
petting a cat?
A. I believe it was a dog.
Q. You thought dog? Okay. Did she -- I don’t want to put
words in your mouth. Did she say that, did she say petting
a dog? Or what did she say?
A. She thought she was touching the dog.
Thus, Mother’s argument that the only evidence of any inappropriate touching
was her own testimony is essentially correct, although again, this argument does not
take the child’s testimony in chambers into account. But in Finding No. 51, to the
extent the trial court found Mother “admitted in her testimony” any sort of
inappropriate intentional touching, the finding is not supported by the evidence.
Mother did not “admit” to any inappropriate, intentional, or sexually motivated
touching. Ms. Lance did not testify regarding any details of the incident, and Ms.
Bisnette’s testimony about Mother’s prior statements to her was consistent with
Mother’s trial testimony that the touching was accidental and outside of the child’s
clothing. Ms. Lance had provided her therapy records to DSS during its
investigations, and neither DSS nor law enforcement found sufficient evidence to
pursue legal action regarding child abuse or a criminal prosecution. Although we
recognize the legal standards and burden of proof are different for an adjudication of
abuse and a criminal prosecution than a custody determination, in this case, we are
dealing with one discrete incident in November 2016. The incident was either an
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Opinion of the Court
accidental touch or sexual abuse, and Mother “admitted” an accidental touching
outside of the clothing but not an intentional or improper touching. Thus, Finding
No. 51, as well as the portions of Findings No. 53 and 55 which seem to be based upon
No. 51, are not supported by the evidence.
D. Sufficiency of Evidence to Support Finding 56
Mother also challenges Finding No. 56, that “[Mother] made inappropriate
comments to [Father] about the minor child’s genital size” for similar reasons. This
finding addresses a discussion between Mother and Father, not the child’s testimony
of the touching incident. Neither party contends the child’s testimony is relevant to
this finding. The evidence supports a finding that Mother commented regarding the
child’s development, although it is not apparent why the comment was
“inappropriate.” Father testified:
We were standing in the hallway of the house and she came
out and told me that [Henry] had hair down there on his
private parts and how big his penis was.
Q. She said that specifically?
A. Yes, ma’am.
Q. Can you tell me approximately when that was before
you separated?
A. That was right in January [of 2017].
....
Q. Okay. What, if anything, prompted that statement? I
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mean, were y’all talking about anything like that?
A. No, ma’am.
Q. What did you say back to her?
A. I asked her what she was doing looking at [Henry’s]
private parts and that I thought that was uncalled for.
And--
Q. What did she –
A. -- I was in shock. I mean, I just -- it just sort of blew my
mind and I was like -- I couldn’t believe it that she just
came out and said that.
Mother also testified about this comment. She testified at length regarding
interviews she gave to both DSS and law enforcement.
Q: Did you acknowledge to the detective in your
investigation that you did comment to your husband about
your son’s, specifically, his genital area?
A. I did. I was in shock. I did not know that he had become
a man and that he had reached puberty.
Q. What did you say to [Father] and when was that?
A. I -- I don’t really recall what time frame it was. I just
know that he was coming out of my bathroom. They
must’ve been getting ready for baseball, because they were
both taking showers at the same time. He dropped his
towel by accident. He got embarrassed. He left. I looked
away. And I made a comment holy cow, I didn’t know that
my son is a little man now. I had no idea. And that he had
reached puberty.
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Based on the trial court’s Finding No. 56 and the evidence from both parties,
it is not clear what the trial court meant by characterizing Mother’s comments as
“inappropriate.” Parents sometimes discuss the physical development of their
children, with no sexual intent or connotation. Based upon the findings and all of the
evidence, Mother made these comments only to Father and not to the child or in the
child’s presence. And although these comments occurred before the parties’
separation and Father knew this comment when he filed the complaint, Father made
no allegations of sexual misconduct in his complaint for child custody or in his motion
for emergency ex parte temporary custody. The only basis for his emergency motion
was his concern that Mother may take Henry and Father “will never see the minor
child again.” The trial court’s Finding No. 56 is supported by the evidence to the
extent that Mother commented regarding the child’s development. Since the trial
court determines the weight and credibility of the evidence, Phelps v. Phelps, 337 N.C.
344, 357, 446 S.E.2d 17, 25 (1994), the trial court has the discretion to characterize
the comment as “inappropriate,” but this finding also fails to resolve the crucial
factual issue as to Mother’s alleged sexual misconduct.
E. Waiver of Findings Regarding Child’s Testimony
Father’s primary response to Mother’s arguments regarding the findings of
fact is that the parties waived findings of fact and agreed for the trial court to speak
to Henry in chambers and off the record. Father is correct that Mother waived the
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right to have the child testify in open court and to have a record of the child’s
statements to the trial court. Father is also correct that the parties agreed the trial
court would not tell the parties what Henry said and would not make detailed
evidentiary findings regarding his in-chambers testimony. But regardless of Henry’s
testimony, Finding No. 51 specifically addresses Mother’s testimony, not other
evidence presented in or out of the courtroom. No matter what the child disclosed in
chambers, the only finding of fact regarding the touching is specifically based upon
Mother’s testimony, and this finding is not supported by her testimony.
Had the trial court made a clear ultimate finding characterizing the touching
as an intentional inappropriate touching, Father is correct that Mother would be
unable to argue the finding was not supported by the evidence, since she agreed for
Henry to testify in chambers with no record of his testimony. Kleoudis v. Kleoudis,
___ N.C. App. ___, ___, 843 S.E.2d 277, 283 (2020) (“An ultimate fact is the final
resulting effect which is reached by processes of logical reasoning from the
evidentiary facts.” (quoting Quick v. Quick, 305 N.C. 446, 451-52, 290 S.E.2d 653,
657-58 (1982))). This sort of ultimate finding need not identify the particular evidence
supporting it. Id. But the trial court did not make any ultimate finding which
resolves the issue, and we must consider whether the findings support the trial
court’s conclusions of law. Mother did not waive findings of fact entirely and she did
not waive having conclusions of law based upon the trial court’s findings.
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Father argues Mother waived not just the right to have Henry’s testimony on
the record, but also that she waived findings of fact. The trial court’s order notes the
agreement as follows:
AND IT APPEARING to the Court that at the call of
this matter for trial the parties and their attorneys
stipulated that the minor child at issue could testify in
chambers and that his testimony would be considered by
the Court and his credibility weighed by the Court as part
of the Court’s final decision and Order with the parties’
stipulation that specific findings of fact were waived and
confidential[.]
At the beginning of the trial, after some discussion of how to proceed with
Henry’s testimony, the trial court summarized the parties’ agreement to the
satisfaction of both parties:
All right. So the features, as I understand them, of
your agreement are I’ll be back there. The attorneys will
be back there. Your son will answer questions asked by
your attorneys. He’ll have a chance to volunteer anything
they don’t ask. Anything he tells me, I’ll consider, I’ll weigh
it along with all the other evidence that will be received
after that. He doesn’t need to decide what’s going to
happen. That’s my job.
But I have to assess what weight to give his
testimony, but here’s the key: what he says to me is not
going to be in any final order. It’s just to be considered by
me, because it’s -- what he says is going to be confidential.
And so what he says can’t be relayed to you by the
attorneys, by your attorneys. So you can ask them. They
can’t tell you. And they’re officers of the Court and they’re
going to follow that rule.
Now, your son, if he wants to tell you, that’s -- that’s
up to him. I -- I - I can’t put a gag order on him. But it
would be inappropriate for you to ask him. All right?
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So the confidentiality, waiving specific written
findings of fact, featuring that I will consider his comments
and what weight to give his testimony, along with other
relevant testimony yet to be offered. Is that your
agreement?
MS. SHERRILL: Yes.
MR. SHERRILL: Yes.
Father argues that because Mother agreed for Henry’s testimony to be
unrecorded and to waive findings of fact regarding his testimony, Mother has waived
appellate review of the trial court’s findings or their sufficiency to support the trial
court’s conclusions of law, or that Mother invited any error by the trial court. He
contends that Mother’s
argument that “at trial, the only first-hand testimony given
about the events of Saturday morning 26 November 2016
came from Defendant Mother, Linda Ann Sherrill”,
Appellant’s Brief, p. 16, is not an accurate representation
of the details of the trial. While the court followed the
stipulation of the parties and did not include a description
or evaluation of the unrecorded testimony of the minor in
chambers, this Court must presume that the child gave
testimony about this incident, including the likelihood that
the child gave testimony that conflicted sharply with the
self-serving testimony of Mrs. Sherrill. Findings of fact by
the trial court are presumed to be supported by sufficient
evidence, unless the appellant can show the absence of
supporting evidence. See Clark v. Clark, 23 N.C. App. 589,
209 S.E.2d 545 (1974) (courts will bind the parties to their
agreements).
We first note that the trial court’s description of the parties’ agreement, which
both parties indicated was correct, did not entirely waive findings of fact to support
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Opinion of the Court
the custody determination, as did the parties in Clark v. Clark, 23 N.C. App. 589, 209
S.E.2d 545 (1974). They also did not agree for the trial court to make conclusions of
law unsupported by any findings of fact. They agreed to confidentiality for what
Henry actually said in chambers. Specifically, the trial court summarized the
agreement: “but here’s the key: what he says to me is not going to be in any final
order.” (Emphasis added.)
Findings of fact are not supposed to be recitations of testimony, nor must
orders include detailed evidentiary findings. See Schmeltzle v. Schmeltzle, 147 N.C.
App. 127, 130, 555 S.E.2d 326, 328 (2001) (“There are two kinds of facts, evidentiary
facts and ultimate facts. Evidentiary facts are ‘those subsidiary facts required to
prove the ultimate facts.’ Ultimate facts are “the final facts required to establish the
plaintiff’s cause of action or the defendant’s defense . . . .” (alteration in original)
(citations omitted)). The trial court is required only to make findings of ultimate fact
sufficient to support its conclusions of law and sufficient to allow appellate review.
N.C. Gen. Stat. § 1A-1, Rule 52(a)(1). In In re Anderson, this Court reversed and
remanded the trial court’s order because its findings were recitations of evidence
which did not resolve the issues of fact:
The trial court’s findings of fact, in large part, amount to
mere recitations of allegations and provide little support
for the conclusions of law.
In all actions tried upon the facts without a
jury or with an advisory jury, the court shall
find the facts specially and state separately
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Opinion of the Court
its conclusions of law thereon and direct the
entry of the appropriate judgment.
N.C. Gen. Stat. § 1A–1, Rule 52(a)(1) (2001). Rule 52(a)
requires three separate and distinct acts by the trial court:
(1) find the facts specially; (2) state separately the
conclusions of law resulting from the facts so found; and (3)
direct the entry of the appropriate judgment. Thus, the
trial court’s factual findings must be more than a recitation
of allegations. They must be the “specific ultimate facts . .
. sufficient for the appellate court to determine that the
judgment is adequately supported by competent evidence.”
“Ultimate facts are the final resulting effect reached by
processes of logical reasoning from the evidentiary facts.”
In summary, while Rule 52(a) does not
require a recitation of the evidentiary and
subsidiary facts required to prove the
ultimate facts, it does require specific findings
of the ultimate facts established by the
evidence, admissions and stipulations which
are determinative of the questions involved in
the action and essential to support the
conclusions of law reached.
151 N.C. App. 94, 96-97, 564 S.E.2d 599, 601-02 (2002) (alteration in original)
(citations omitted).
The parties’ agreement that the trial court need not make specific findings of
fact regarding what the child said does not eliminate the need for ultimate findings,
as findings of fact should not be recitations of testimony. See Appalachian Poster
Advert. Co. v. Harrington, 89 N.C. App. 476, 479, 366 S.E.2d 705, 707 (1988) (Mere
recitations “do not reflect the ‘processes of logical reasoning’ required by G.S. 1A–1,
Rule 52(a)(1).”). “The findings should resolve the material disputed issues, or if the
trial court does not find that there was sufficient credible evidence to resolve an issue,
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Opinion of the Court
should so state.” Carpenter v. Carpenter, 225 N.C. App. 269, 279, 737 S.E.2d 783, 790
(2013) (citing Woncik v. Woncik, 82 N.C. App. 244, 248, 346 S.E.2d 277, 279 (1986)).
Most of the trial court’s other findings, particularly No. 53 and 54, also seem
consistent with Mother’s testimony, although we also note that No. 53 is a recitation
of testimony. In re M.R.D.C., 166 N.C. App. 693, 699, 603 S.E.2d 890, 894 (2004)
(“Recitations of the testimony of each witness do not constitute findings of fact . . . .”
(quoting Moore v. Moore, 160 N.C. App. 569, 571-72, 587 S.E.2d 74, 75 (2003))). As a
recitation, it does not resolve the factual issue presented to the trial court. Id. In
particular, Finding 53 is quite important:
53. That the [Mother] explained in her testimony that
while touching the minor child’s penis she thought she
was petting a cat or a dog.
This finding is supported by the evidence, since Mother did explain the incident this
way. But we cannot tell if the trial court accepted Mother’s explanation as credible,
or if the trial court determined this was an excuse for Mother’s inappropriate actions
and was not credible. If Mother thought she was petting a cat or dog—and this
finding seems to indicate she did—Mother’s touching was an unfortunate accident.5
If the trial court believed Mother was lying about how the touching occurred and her
intent, this would support a finding of inappropriate sexual conduct.
III. Conclusions of Law
5 Mother testified that the family had cats and dogs, and both sometimes slept with her and Henry.
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Opinion of the Court
Mother argues that the findings of fact do not support the trial court’s
conclusions of law. The trial court made these conclusions of law:
4. That [Mother] is not a fit and proper person to have custody
of the minor child, and it is not in the best interests of the
minor child for his custody to be placed with [Mother].
5. That [Mother] is not a fit and proper person to have
visitation with the minor child, and it is not in the best
interests of the minor child to have visitation with
[Mother].
We have already determined that Finding No. 51 and portions of Findings 53
and 55 were not supported by the evidence, so we will disregard those findings. As
noted above, the remaining findings do not resolve the crucial factual dispute
regarding the nature of the touching- accidental or intentional and sexually
inappropriate.
The other unchallenged findings of fact regarding Mother are mostly positive.
The uncontested findings show that Mother was Henry’s primary caretaker for most
of his life and was active in supporting his education and sports activities. She had
provided for him financially both before and after the separation. She attended
counseling as recommended to address the issues arising from the alleged touching.
She has a suitable home. There are no other findings of fact which would support a
conclusion of law that Mother is not a fit and proper person to have custody or at least
some form of visitation with the child.
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Opinion of the Court
The trial court made findings of fact regarding both parties’ homes, health, and
employment as well as the child’s education, health, and extracurricular activities.
Although some of the trial court’s findings regarding Father were positive, many of
the trial court’s findings regarding father are negative or, at least, raise concerns.
For example, he had serious anger issues which resulted in him yelling at Henry’s
middle school basketball coach and subsequently getting barred from all the home
and away basketball games for the rest of the season. Father also suffers from chronic
nerve pain and “takes a number of narcotic, muscle relaxer, analgesic, pain, and
mental health medications.” But considering all of the findings, there is no apparent
reason Mother would be denied any sort of visitation with Henry based upon the
single alleged touching in November 2016. This is not a case with evidence of a
pattern of sexual abuse or misconduct by Mother. Since the trial court’s findings did
not clearly identify why it found Mother unfit even to have supervised visitation or
limited contact with the child, the order left her with no way to correct whatever error
caused her to lose custody.
Since the trial court’s findings cannot support its conclusion that Mother is
unfit to have custody or visitation with Henry, the findings also cannot support the
trial court’s conclusion that visitation with Henry is not in his best interest. In
addition, the trial court did not include any provisions requiring Mother to attend
therapy or note any actions Mother may take to be able to resume visitation. Since
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Opinion of the Court
the order does not determine exactly what Mother did wrong, it gives her no direction
on what she may need to do resume visitation with Henry. Because we have
concluded the trial court’s findings do not support its conclusions that Mother is not
a fit and proper person to have custody or visitation with Henry and that it is not in
his best interest for mother to have custody or visitation, we must reverse the trial
court’s order and remand for further proceedings.
IV. Conclusion
Because the trial court failed to make adequate findings of fact to support its
conclusions of law that Mother is not a fit and proper person to have custody or
visitation of Henry and that custody and visitation with Mother are not in his best
interest, we reverse and remand for a new order with additional findings resolving
the crucial disputes of fact. On remand, the trial court may, but is not required to,
rely upon the existing record, including its recollection of Henry’s testimony in
chambers and, in accord with the parties’ agreement, should not make detailed
evidentiary findings regarding his testimony, but the trial court must clearly make
ultimate findings of fact to support the conclusions of law. In its discretion, the trial
court may also receive additional evidence on remand.
REVERSED AND REMANDED.
Judges MURPHY and BROOK concur.
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