Stanback v. Stanback , 31 N.C. App. 174 ( 1976 )

229 S.E.2d 693 (1976) 31 N.C. App. 174

Fred J. STANBACK, Jr.
v.
Vanita B. STANBACK.

No. 7619SC413.

Court of Appeals of North Carolina.

October 20, 1976.

Hudson, Petree, Stockton, Stockton & Robinson by Norwood Robinson and George L. Little, Jr., Winston Salem and Kluttz & Hamlin by Clarence Kluttz, Salisbury, for plaintiff-appellee.

Walser, Brinkley, Walser & McGirt by Walter F. Brinkley, Lexington, for defendant-appellant.

BRITT, Judge.

First, defendant contends the trial court committed error when it did not permit her "to offer full and complete evidence when the evidence she attempted to offer was both relevant and pertinent". We find no merit in this contention.

Under this contention defendant argues that in presenting her case it was necessary that she bring out many pertinent facts relating to the background of the long controversy between her and plaintiff; that the trial court demonstrated "an attitude of haste and intolerance" with respect to permitting her to testify fully and offer all necessary evidence. She cites instances in which the court interrupted her testimony with the admonition that she need not "go into that", that she should answer questions and not "ad-lib" or ramble, and the refusal to let her testify regarding an itemized list of her living expenses which she had prepared.

It is clear that the trial judge has the duty to supervise and control the trial of causes to prevent injustice to either party, Greer v. Whittington, 251 N.C. 630, 111 S.E.2d 912 (1960), and in discharging that duty the judge has large discretionary powers. Miller v. Greenwood, 218 N.C. 146, 10 S.E.2d 708 (1940). And it is the duty of the judge to control the examination and cross-examination of witnesses. Greer v. Whittington, supra.

The record in this case discloses that defendant's testimony on direct and redirect examinations consumes approximately thirty-eight pages and on cross-examination some twenty-eight pages. A careful review of the record leads us to conclude that His Honor did not unduly limit defendant's testimony.

Defendant contends the court erred in the manner in which it conducted the hearing. Specifically, defendant argues that the court prejudiced her cause when it required her witnesses to be sequestered but allowed certain of plaintiff's witnesses to testify in the presence of each other. This contention has no merit.

The assignment of error embodying this contention is supported by defendant's exception No. 6. The record discloses that defendant was the first witness to testify; that following her testimony there was a recess for lunch; that after the recess the trial judge made the following statement: "In the interest of the welfare of these children I think in my discretion I am going to hear and permit only the attorneys, the parties and their immediate families and, of course, court officials, to be present for the balance of the case." The hearing was then resumed in another courtroom with only those named by the court present. Defendant made no objection to the court's action.

The sequestration of witnesses rests in the sound discretion of the trial court. Berry Bros. Corp. v. Adams-Millis Corp., 257 N.C. 263, 125 S.E.2d 577 (1962). We perceive no abuse of discretion in this case. At the time defendant testified the court's sequestration order was not in effect, therefore, her witnesses were able to hear her testimony which, no doubt, outlined her contentions. Furthermore, the record fails to disclose which of plaintiff's witnesses were allowed to hear other witnesses' testimony or that defendant made any objection thereto.

In her third and fourth contentions defendant argues that the court erred in excluding competent evidence offered by her and in admitting incompetent evidence offered by plaintiff. These contentions have no merit.

Clearly the testimony which the court excluded were conclusions of the witnesses. As to the challenged testimony of plaintiff, assuming arguendo that it was incompetent, we perceive no prejudice to defendant. In a trial or hearing by the court without a jury, the rules of evidence are not so strictly enforced as in a jury trial and it will be presumed that the judge disregarded any incompetent evidence that may have been admitted unless it affirmatively appears that he was influenced thereby. 7 Strong, N.C. Index 2d, Trial § 57. There is no showing that the judge was influenced by the challenged testimony.

Defendant contends next that the court erred in making certain findings of fact and in its judgment relating to the custody of the children. We find no merit in this contention.

Defendant argues that the court should have made findings of fact as tendered by her. No useful purpose would be served in setting out here the findings made by the court and those proposed by defendant. It suffices to say that while the evidence might have supported the findings requested by defendant, it supported those found by the court. It is well settled that in a trial or hearing without a jury the findings by the court are conclusive if supported by any competent evidence, notwithstanding that there is evidence contra which would sustain findings to the contrary. 7 Strong, N.C. Index 2d, Trial § 58, page 379.

As to the judgment, while the findings of fact made by the court would support different provisions for dividing custody of the children between the parties, the decision was one for the trial judge to make. G.S. 50-13.2. The trial court and not the appellate court has the opportunity to observe the demeanor of the witnesses, hear their testimony and, in this case, confer privately with the children.

Defendant contends the court erred in its findings of fact relating to "the environment in which the three minor children of the parties would live while in the custody of plaintiff". This contention has no merit.

The evidence revealed that after the parties were divorced plaintiff remarried and that his present wife has two minor daughters who live in plaintiff's home. Defendant argues that while the evidence showed that plaintiff has a comfortable home that it is not sufficiently large to provide desirable accommodations for the two girls and plaintiff's three boys. While it is true that defendant's home would provide more room and less crowded accommodations than plaintiff's home, we think the findings made by the trial court are supported by the evidence.

Defendant contends the court erred in its findings relating to the responsibility of plaintiff to contribute for repairs and upkeep of the home where the children will reside with defendant.

The assignments of error embodying this contention are supported by Exceptions 21 and 23 which are to findings of fact 11 and 16; also Exception 29 which is that part of the judgment quoted in the early part of this opinion. In findings 11 and 16 the court found that defendant's home is in a poor state of repair, that major repairs are necessary to provide a suitable home for the boys when staying with defendant, but that she has incurred an indebtedness of $40,000 which is secured by a deed of trust on the home; that defendant is not qualified by training, education or experience to supervise the making of necessary repairs to the home; and that proper measures should be taken to insure that money provided by plaintiff for repairs and maintenance will be properly spent to the end that the house will be available and adequate until the youngest boy reaches age 18.

We conclude that the findings are supported by the evidence. As to the provisions of the judgment quoted above, providing for a trustee and imposing certain requirements on defendant, we hold that the trial judge exercised his lawful authority. Our statutory law and our case law provide trial judges with broad authority in making provision for the custody and support of minor children. Indicative of this are the numerous remedies set forth in G.S. 50-13.4, ending with subsection (11) which states that the specific enumeration of remedies shall not constitute a bar to remedies otherwise available.

Defendant contends that the court erred in that it failed to order plaintiff to pay a sufficient amount for the support and maintenance of the children. We find no merit in this contention. The trial court has wide discretion in determining the amount to be paid for the support of children and we perceive no abuse of discretion in this case.

Defendant contends the trial court erred in denying her motion for a new trial. It suffices to say that we have carefully considered this contention and find it also to be without merit.

Finally, defendant contends the court erred in signing the judgment for the reason that the conclusions of law and the mandate of the court were not based upon proper findings of fact which were supported by competent evidence. We find no merit in this contention but hold that the findings of fact were fully supported by the evidence, the conclusions of law were supported by the findings of fact and the conclusions of law provide sufficient basis for the judgment.

For the reasons stated, the judgment and order appealed from are

Affirmed.

PARKER and CLARK, JJ., concur.