Horton v. Horton

183 S.E.2d 794 (1971) 12 N.C. App. 526

Peggy M. HORTON
v.
Robert Brodie HORTON.

No. 7115DC522.

Court of Appeals of North Carolina.

October 20, 1971. Certiorari Denied December 7, 1971.

Hoyle, Hoyle & Boone by E. E. Boone, Jr., and Timothy G. Warner, Greensboro, for plaintiff appellant.

Robert L. Satterfield and Charles B. Hodson, Hillsborough, for defendant appellee.

Certiorari Denied by Supreme Court December 7, 1971.

PARKER, Judge.

Appellant contends that the court erred in finding as a fact that "since 1964 the plaintiff has made no effort to visit or see her minor child in accordance with the visitation rights set forth in the Order of the Honorable Leo Carr, dated February 18, 1964." This finding was fully supported by competent evidence. Plaintiff's testimony that fear of contempt or possible criminal proceedings against her inhibited exercise of her visitation rights may explain, but does not negate, the finding to which she now excepts. Nor is the finding inconsistent with her testimony that she wrote to her daughter "several times" and tried, but failed, to contact her by telephone; that she consulted an attorney in Florida; and that she employed an attorney in North Carolina who "looked into this matter for me in 1965 or 1967." In any event, inconsistencies in the evidence, if any, were for the trial court to resolve; its findings of fact based on competent evidence are conclusive on this appeal. Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871.

Appellant excepts to certain of the court's findings of fact which were made on the basis of information obtained as result of a private examination of the child made by the trial judge in the absence of the parties and their attorneys. Had this been done without consent, it would have been error. Raper v. Berrier, 246 N.C. 193, 97 S.E.2d 782. However, the court's order finds as a fact, and on this appeal counsel for appellant admit, that the examination was made with consent of the parties and their attorneys. Having given consent to the court's action at the trial, appellant may not be heard to complain concerning it on this appeal.

Attached to the record on appeal is an affidavit of one of the attorneys who represented plaintiff at the trial. From the argument contained in their brief, it would appear that appellant's counsel desire this Court to make a factual finding from this affidavit to the effect that the trial judge had had additional interviews with the minor child, to which appellant had not consented, and that pending his decision he had "discussed the matter" with the court investigator. From their argument, appellant's counsel apparently desire us to make the additional factual finding, or to draw the inference, that the trial judge's findings of fact were based at least in part on information obtained by him in a manner which violated appellant's rights, citing In re Custody of Gupton, 238 N.C. 303, 77 S.E.2d 716. However, the Court of Appeals has jurisdiction to review upon appeal the decisions of the several courts of the General Court of Justice, "upon matters of law or legal inference," G.S. § 7A-26, and it is not the function of this Court to make findings of fact. Therefore, we cannot make the factual findings concerning the actions of the trial judge for which appellant's counsel now contend. Evidence properly in the record fully supports the findings of fact which the trial court made, and the record itself does not disclose that these findings were based even in part on information obtained by the trial judge in a manner violative of plaintiff's rights. The trial court's findings are conclusive on this appeal.

"Courts are generally reluctant to deny all visitation rights to the divorced parent of a child of tender age, but it is generally agreed that visitation rights should not be permitted to jeopardize a child's welfare." Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324. This Court has held that a parent's right of visitation should not be denied "unless the parent has by conduct forfeited the right or unless the exercise of the right would be detrimental to the best interest and welfare of the child." In re Custody of Stancil, 10 N.C.App. 545, 179 S.E.2d 844. In the case now before us, the trial judge has found on competent evidence that appellant was in contempt of court by reason of violating the order of 18 February 1964, in which she had been granted visitation rights. He has also found it to be for the best interest and general welfare of the child, that defendant be awarded exclusive custody. These findings are adequate to support the judgment.

Affirmed.

BRITT and MORRIS, JJ., concur.