Matter of Custody of Williamson

233 S.E.2d 677 (1977) 32 N.C. App. 616

In the Matter of the Custody of Elizabeth Harris WILLIAMSON et al.

No. 7615DC675.

Court of Appeals of North Carolina.

April 6, 1977.

Spears, Barnes, Baker & Boles by Robert F. Baker, Durham, for petitioner-appellant.

Graham, Manning, Cheshire & Jackson by Lucius M. Cheshire and David R. Frankstone, Hillsborough, for respondent-appellee.

PARKER, Judge.

Petitioner has made seven assignments of error. The first two are directed to the Court's actions in admitting certain evidence to which petitioner objected as hearsay. The remainder are directed to the Court's findings, or its failure to make findings, and to certain of the Court's conclusions in its judgment awarding custody of the two little girls to their mother.

The scope of appellate review of a trial court's judgment awarding custody of children is well settled in this State. "The court's findings of fact are conclusive if supported by any competent evidence, and judgment supported by such findings will be affirmed, even though there is evidence to the contrary, or even though some incompetent evidence may have been admitted." In re McCraw Children, 3 N.C.App. 390, 392, 165 S.E.2d 1, 3 (1969).

By his first assignment of error, petitioner challenges the Court's action in permitting Mrs. Patricia Keshen, an employee of the Orange County Department of Social Services, to testify at the hearing held in January 1976, concerning an opinion expressed to her by Dr. Sanders, a clinical child psychologist who had examined the children. The witness, over petitioner's objection, was permitted to testify that Dr. Sanders "felt that the children should stay in Chapel Hill with their mother." Petitioner contends that the admission of this testimony violated the hearsay rule. We find no prejudicial error. Dr. Sanders had herself testified at the hearing held on 20 June 1975 prior to the entry of the order awarding temporary custody. At that time she was presented and qualified, without objection, as an expert in the field of child psychology, and she was examined on both direct and cross-examination. The opinion which she expressed from the witness stand at that hearing was substantially the same as that attributed to her by the witness, Mrs. Keshen, in the testimony which is the subject of petitioner's first assignment of error. Under these circumstances we find no prejudicial error in the Court's action permitting the witness Keshen to testify concerning the opinion which had been expressed to her by Dr. Sanders, and petitioner's first assignment of error is overruled.

Petitioner's second assignment of error is directed to the Court's action in allowing introduction into evidence, over petitioner's objection, of certain portions of the report of an investigation made by the Orange County Department of Social Services. In the order dated 20 June 1975 awarding temporary custody, the Court had expressly directed that an investigation be made by the Orange County Department of Social Services. The report was dated 11 November 1975 and was prepared by Mrs. Patricia Keshen, the witness who testified at January 1976, hearing. The portions of the reports to which petitioner objected were those which he contends were based "on hearsay information between Mrs. Keshen and Dr. Sanders on matters pertaining to Mr. Williamson's fitness for custody of those children in Georgia." In his second assignment of error he contends that these portions of the report were hearsay, that they represented opinion not based on fact, that they were outside the scope of the investigation ordered by the Court to be performed by the Orange County Department of Social Services, and that the Court committed prejudicial error in admitting them in evidence. Again, we find no prejudicial error. The portions of the report to which petitioner now excepts were contained in three short paragraphs. In these, Mrs. Keshen set forth a series of questions which had been raised by Dr. Sanders concerning the possible reactions of petitioner's present wife, of her child by her own former marriage, and of the petitioner himself, if custody of the three children of petitioner and respondent should be granted the petitioner. These questions were inherent in the situation of the parties as shown by all of the evidence before the Court. The Court must have been fully aware of their existence quite apart from whether Dr. Sanders had expressed her concern as to them to Mrs. Keshen. This was a proceeding before the Court without a jury, and even to rule on petitioner's objection, it was necessary for the Court to read the report. Moreover, it would be fatuous even to suppose that the court had not already read the entire report, which had been prepared as result of the Court's prior order. We can perceive no prejudicial error in the Court's overruling petitioner's objection to the portions of the report which are the subject of petitioner's second assignment of error. That assignment of error is overruled.

Petitioner's third, fourth, and fifth assignments of error challenge certain of the Court's findings and conclusions. Specifically, in these assignments of error petitioner contends that the Court erred in finding that no bond exists between Cindy (the youngest child) and her father (the petitioner); in concluding that "[t]aking the girls from the mother would decimate her, the girls would know this, would rebel, and the father and step-mother simply could not handle them"; and in concluding that "[i]t is to the best interests of the girls, Harris and Cynthia, that their custody remain with the Mother under the supervision of the Orange County Department of Social Services." In cases involving custody of children, the trial judge, who has the opportunity to see and hear the parties and the witnesses, is vested with broad discretion. Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974). Therefore, so long as the trial judge's findings are supported by competent evidence, his decision should not be upset absent a clear showing of abuse of discretion. King v. Allen, 25 N.C.App. 90, 212 S.E.2d 396 (1975). We have carefully reviewed the record and find that there is competent evidence to support the challenged findings and the conclusions drawn therefrom by the trial judge in the present case. Some of the pertinent evidence presented reveals that although the younger girl, Cindy, was "affectionate" towards her father during two visits to Georgia, she is very happy at home, loves her mother, has a very close relationship with her older sister, Harris, and shares her sister's preferences in not wanting to move to Georgia. The evidence also reveals that Harris has a very close relationship with her mother and younger sister, that she appears to be happy and well-adjusted in her present situation, and that she has a great fear of being uprooted from her present home by being moved again. (During the time petitioner and respondent were married, the family had a long history of frequently being moved from place to place.) Although not controlling, the wishes of a child who has reached the age of discretion are entitled to consideration in awarding custody, "because the consideration of such wishes will aid the court in making a custodial decree which is for the best interests and welfare of the child." Brooks v. Brooks, 12 N.C.App. 626, 631, 184 S.E.2d 417, 420 (1971). We find no abuse of discretion and overrule petitioner's third, fourth, and fifth assignments of error.

In petitioner's sixth assignment of error, he contends the Court erred in awarding custody of the two little girls to their mother because the Court failed to find that she was a "fit and suitable" person to have custody. We find no reversible error in this regard. It is true that the order awarding custody of the two girls to their mother did not contain an express finding that she was a "fit and suitable" person for that purpose. However, it did contain an express finding that "[i]t is to the best interests of the girls, Harris and Cynthia, that their custody remain with the Mother under the supervision of the Orange County Department of Social Services." Implicit in this finding is that respondent-mother is a fit and suitable person to have custody of her daughters under the supervision of the County Department of Social Services. Cameron v. Cameron, 231 N.C. 123, 56 S.E.2d 384 (1949), cited by petitioner, did not hold that an order awarding custody is fatally defective if it fails to include an express finding that the person to whom custody is awarded is a fit and proper person. That case involved an appeal from orders entered in a divorce proceeding providing for alimony pendente lite and temporary custody of two small children. Our Supreme Court found error in the order awarding alimony pendente lite and held that the error was of such nature as would affect the whole proceeding. The opinion mentions that appellant had pointed out that the trial judge had "made no findings of fitness as to the plaintiff for the custody of the children under the challenging evidence of the defendant," but as to that matter, the opinion of the court simply states: "Apart from that we think the question of custody is so intimately connected with the other matters involved in the appeal that it should be left to a rehearing." 231 N.C. at 130, 56 S.E.2d at 389. It will thus be seen that our Supreme Court did not hold in Cameron v. Cameron, supra, that an express finding of fitness is an absolute essential to the validity of a custodial decree. The statement contained in Powell v. Powell, 25 N.C.App. 695, 698, 214 S.E.2d 808, 810 (1975), that "[s]uch a finding was necessary under the decision in Cameron v. Cameron," is not born out by a careful examination of the latter case. Moreover, in Powell v. Powell, supra, the trial judge had made an express finding that the parent to whom custody of the children was awarded was a fit and suitable person to have such custody; therefore, this Court in that case was not called upon to pass on the question with which we are now concerned. We now hold that, although it would be the better practice that an express finding of fitness be made, the absence of such an express finding will not be fatal where, as here, such a finding is implicit in the findings which the Court did make.

In his seventh and final assignment of error, petitioner contends the Court committed reversible error in denying his motion made under G.S. 1A-1, Rule 52(b), to make certain additional findings of fact. In arguing this assignment of error in his brief on this appeal, petitioner contends that certain of the specific findings of fact which the Court did make would compel an additional finding that the respondent-mother was not a fit and proper person to have custody of the two little girls. We do not agree. It is true that the evidence reveals, and the Court's specific findings indicate, that respondent has not always conducted herself in a responsible and exemplary manner. That the trial judge was keenly aware of this is shown by the conscientious way in which he evaluated the evidence and made detailed findings in this regard. "But in a custody proceeding it is not the function of the courts to punish or reward a parent by withholding or awarding custody of minor children; the function of the court in such a proceeding is to diligently seek to act for the best interests and welfare of the minor child." In re McCraw Children, supra 3 N.C.App. at 395, 165 S.E.2d at 5. The record now before us reveals that in this case the trial judge's overriding concern was the welfare and best interests of the children. His was a difficult task, and the entire record shows that he carried it out in a careful, considerate, and compassionate manner. He had the great advantage of seeing and listening to the parties and their witnesses, of being able to receive and evaluate the myriad intangible impressions which simply cannot be brought forward in a printed record. In cases such as this, there is seldom an entirely good and happy solution. The solution chosen by the trial judge in this case may well be the best one available. We find no error in the manner in which he arrived at it.

If in the future there shall be a change of circumstances affecting the welfare of the children such as to justify modification of the custodial orders previously entered, the matter can again be brought before the Court for review. In the orders from which the present appeal is taken, we find no error. Accordingly, they are

Affirmed.

MARTIN and ARNOLD, JJ., concur.