Barnhill v. Barnhill

HEDRICK, Judge.

Defendant’s one assignment of error is set out in the record as follows:

1. That the trial court erred in ruling that Raymond Williams occupied and/or resided at the residence of Peggy Barnhill and the defendant submits that there was insufficient evidence submitted by the plaintiffs to prove by the greater weight of the evidence that Raymond Williams did either reside or occupy said residence.

This assignment of error purports to be based on exceptions to the court’s denial of defendant’s motion to dismiss, made at the close of plaintiffs’ evidence, and to the judgment, announced in open court. In a case tried before the judge without a jury the court is required to make findings of fact as provided in N.C. Gen. Stat. Sec. 1A-1, Rule 52(a), North Carolina Rules of Civil Procedure. An exception to the denial of a Rule 41(b) motion “does not raise the question of whether the particular findings made by the court are supported by the evidence, but only the question of whether any findings could be made from the evidence which would support a recovery.” Pegram-West, Inc. v. Homes, Inc., 12 N.C. App. 519, 525-26, 184 S.E. 2d 65, 69 (1971). See also Ayden Tractors v. Gaskins, 61 N.C. App. 654, 301 S.E. 2d 523 (1983). Defendant’s exception to the denial of her Rule 41(b) motion thus fails to raise the question of the sufficiency of the evidence to support the court’s findings of fact. Because defendant did not except to the court’s findings of fact, we will not review the evidence to see if it sufficiently supports the findings.

Defendant also excepted to entry of the judgment. Such an exception raises for review “the question whether the facts found support the conclusions of law and judgment entered.” Employers Insurance v. Hall, 49 N.C. App. 179, 180, 270 S.E. 2d 617, 618 (1980), cert. denied, 301 N.C. 720, 276 S.E. 2d 283 (1981). In her brief defendant contends that the court’s findings that Mr. Williams “occupied said dwelling with the Defendant . . . from the 16th day of December, 1981 to the 5th day of January, 1982 at which time [defendant] cooked his food, [and] washed his clothes,” that he “stayed overnight on at least one occasion,” and that he received mail addressed to him at defendant’s home were insufficient as a matter of law to support the court’s conclusion that Mr. Williams occupied defendant’s home “as a residence.” We do not agree. We think these findings provide ample support for the conclusions of law and judgment entered by the trial court.

While we affirm the judgment declaring defendant’s life estate forfeited, we note that our decision goes only to defendant’s use of the property as a matter of right; her permissive use of the property is in no way affected by our holding today.

Affirmed.

Judges Arnold and Phillips concur.