Church v. Church , 119 N.C. App. 436 ( 1995 )

458 S.E.2d 732 (1995) 119 N.C. App. 436

William Bryant CHURCH, Jr., Plaintiff,
v.
Bea Jodi Reinhardt CHURCH, Defendant.

No. COA94-1063.

Court of Appeals of North Carolina.

July 5, 1995.

Vannoy, Colvard, Triplett & McLean by Howard C. Colvard, Jr., and Jay Vannoy, North Wilkesboro, for plaintiff-appellee.

Edward P. Hausle, P.A. by Edward P. Hausle, Greenville, for defendant-appellant.

EAGLES, Judge.

Defendant contends that the trial court erred in awarding plaintiff joint custody of the minor child. After careful review of the record and briefs, we affirm.

An order for the custody of a minor child should award custody to "such person... that will best promote the interest and welfare of the child." G.S. 50-13.2. An order awarding joint custody or any other child custody award must include findings of fact that support a determination of the child's best interest. Witherow v. Witherow, 99 N.C.App. 61, 63, 392 S.E.2d 627, 629 (1990). The trial court's decision must be based on the welfare of the child. The trial court's decision will not be disturbed on appeal absent abuse of discretion. Id. Defendant contends that the trial court erred in awarding joint custody, because although plaintiff testified that other parties would also care for the child in plaintiff's absence, none of the third parties who would be additional caretakers testified about their willingness or ability to care for the child. We disagree.

The trial court made the following pertinent findings of fact and conclusions of law:

8. Both parties are people of excellent character and have no convictions of any crimes, whatsoever. Both are very active in church activities. There was absolutely no evidence that either party has any problem with substance abuse, or that either party even consumes alcohol, drugs, or similar substances.

9. The evidence presented in this matter related solely to custody issues and not to the question of fault in the breakup of the parties' marriage.

....

BASED UPON THE FOREGOING FINDINGS OF FACT, the Court concludes as a matter of law, the following:

....

2. Both the plaintiff and the defendant are fit and proper persons to be awarded custody of the minor child in this action.

3. That it would promote the best interest of the minor child to award his joint custody to both of his parents.

The trial court's findings of fact in this regard are supported by competent evidence in the record. The trial court is not required to make a finding as to every fact that arises from the evidence but only to those facts which are material to the resolution of the dispute. Green v. Green, 54 N.C.App. 571, 573, 284 S.E.2d 171, 174 (1981).

We conclude that the trial court did not abuse its discretion in awarding joint custody to both parties. See Witherow v. Witherow, 99 N.C.App. 61, 392 S.E.2d 627 (1990); but see, Smith v. Burgess, 72 N.C.App. 340, 324 S.E.2d 53 (1985) (custody award to plaintiff vacated and remanded for finding as to whether disabled husband was willing or able to care for minor child while plaintiff was working).

We have reviewed defendant's remaining assignments of error and determined that they are without merit.

Affirmed.

WYNN and MARK D. MARTIN, JJ., concur.