Flanders v. Gabriel , 110 N.C. App. 438 ( 1993 )

429 S.E.2d 611 (1993) 110 N.C. App. 438

Angela Brown Gabriel FLANDERS, Plaintiff,
v.
Joel Parks GABRIEL, Defendant.

No. 9219DC473.

Court of Appeals of North Carolina.

June 1, 1993.

Susan V. Thomas, Charlotte, for plaintiff-appellee.

Helms, Cannon, Hamel & Henderson, P.A., by Thomas R. Cannon and William B. Hamel, Charlotte, for defendant-appellant.

WELLS, Judge.

On appeal, defendant contends that the trial court erred when it awarded custody of Jacob to plaintiff, the child's mother. In Witherow v. Witherow, 99 N.C.App. 61, 392 S.E.2d 627, affirmed, 328 N.C. 324, 401 S.E.2d 362 (1991), this Court addressed the appropriate standard of appellate review to be implemented when reviewing a trial court's custody order. The Witherow court wrote:

The "welfare of the child is the paramount consideration which must guide the Court ..." in its decision. Blackley v. Blackley, 285 N.C. 358, 362, 204 S.E.2d 678, 681 (1974). Findings of fact regarding the competing parties must be made to support the necessary legal conclusions. Steele v. Steele, 36 N.C.App. 601, 244 S.E.2d 466 (1978). "These findings may concern physical, mental, or financial fitness or any other factors brought out by the evidence and relevant to the issue of the welfare of the child." Id. at 604, 244 S.E.2d at 468. However, the 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. Green v. Green, 54 N.C.App. 571, 284 S.E.2d 171 (1981). This is a discretionary matter with the court which can only be disturbed upon "``a clear showing of abuse of discretion.'" Dixon v. Dixon, 67 N.C.App. 73, 76, 312 S.E.2d 669, 672 (1984). (Citation omitted.)

In the case at bar, defendant first contends that the trial court erred by finding facts that were not supported by the evidence. "Where trial is by judge and not by jury, the trial court's findings of fact have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary." In re Estate of Trogdon, 330 N.C. 143, 409 S.E.2d 897 (1991). Specifically, defendant objects to the trial court's following findings of fact:

9. That the Defendant has made allegations of sexual abuse of the minor child of the parties against the present husband of the Plaintiff, Steve Flanders; that said allegations have not been substantiated by evidence at this hearing.

. . . . .

11. That the best interests of the minor child require that he be allowed to remain in a stable, continuous environment; the home he has with the Plaintiff and her present husband appears to be such a stable environment.

12. That the Plaintiff is a fit and proper person to have custody of the said minor child and it would be in the best interests of the said minor child that the Plaintiff be granted such custody.

13. That the Defendant is a fit and proper person to have visitation rights with his minor child.

As Judge Wynn's dissent aptly emphasizes, there was substantial evidence from which the trial court could have found that Jacob had been mistreated by his stepfather. The evidence as to whether he had been sexually abused was conflicting. Those conflicts were for the trial court to resolve. In support of the trial court's finding that the plaintiff and her present husband offer a stable and continuous environment, there was evidence that the child had resided with his mother since the parties separated and that the child had developed a routine and would be best served by not disrupting that routine or uprooting the child from his present home. In support of the trial court's finding that the plaintiff is a fit and proper person to have custody is plaintiff's history of providing care for the child and the Department of Social Services' investigation reports, finding that the child has not been neglected or abused. While defendant assigned error to the trial court's finding that defendant is fit to have visitation rights with the child, defendant's history of successful visitation in the past supports the trial court's finding that defendant is a fit and proper person to enjoy visitation in the future. In the case at bar, as in most custody hearings, evidence was presented to the trial court which could have supported contrary findings. Nonetheless, there was sufficient competent evidence to support the trial court's findings of fact.

Next, defendant contends that the trial court failed to make sufficient findings of fact concerning the best interest of the child. While there may well have been other evidence which helped the trial court determine that the best interest of the child was served by granting plaintiff custody, the trial court's finding of fact that plaintiff offered a stable and continuous environment for the child constitutes sufficient findings of fact to tip the scales in plaintiff's favor and support the trial court's conclusion that it is in the best interest of the child for plaintiff to be granted custody.

After carefully reviewing defendant's remaining arguments, we find them to be without merit.

Affirmed.

GREENE, J., concurs.

WYNN, J., dissents in a separate opinion.

WYNN, Judge dissenting.

The guiding light in child custody proceedings is the best interest of the child. Our General Assembly codified this principle in Section 50-13.2(a) of the North Carolina General Statutes which provides:

An order for custody of a minor child entered into pursuant to this section shall award custody of such child to such a person, agency, organization, or institution as will, in the opinion of the Judge, best promote the interests and welfare of the child. An order awarding custody must contain findings of fact which support the determination by the Judge of the best interests of the child. N.C.Gen.Stat. § 50-13.2(a) (Cum.Supp. 1984).

In the subject case, the trial court apparently relied upon the two determinations by the Department of Social Services in making the finding of fact that allegations of the step-father's sexual abuse of the minor child had not been substantiated. However, the trial judge further found that the step-father had agreed to refrain from helping the child with his toileting, touching the child's private parts and using choke holds on the child. Additionally, the record contains an interview summary with the five-year-old child in which the child states that the step-father "thumps me on my penis" and pulls on his penis "real hard". The child stated that this conduct happens "a lot," usually after he goes to the bathroom.

The record further contains the testimony summary of Dr. Sara H. Sinal, an associate professor of pediatrics at Bowman Gray School of Medicine at Baptist Hospital in Winston-Salem. Her specialty is child abuse cases. She testified that the minor child was brought to her attention by an emergency room physician who had seen the minor and was concerned about bruises and injuries that he discovered. She examined the child, reviewed the medical records and concluded that "the child had sustained too many unexplained or poorly explained injuries, and it was my opinion that it was highly suspicious that he had been a victim of child abuse".

The child's statements, Dr. Sinal's testimony, and the physical evidence, when coupled with the agreement of the step-parent not to commit inappropriate acts with the child, is evidence of child abuse which must not be ignored by the trial court even when the Department of Social Services makes its own determination that the allegations are unsubstantiated. The trial court's order, in my opinion, fails to reflect a consideration of this evidence. I, therefore, would remand this cause to the trial court for a consideration of the evidence which tends to indicate that the minor child was abused.