*1 COURT OF APPEALS Newsome Newsome orders. Petitioner’s classroom aide testified petitioner Bobby Baker in of her orders. whipped principal’s violation Hear- .sources, say independent evidence from two was which not im- peached, subjected indicates that Annette Rush was also to punishment in of corporal Principal Crosby’s violation orders. We find that the was Superior concluding Court correct that the of finding Board’s insubordination was based on substantial evidence. We need not the pass question whether the evidence grounds of the other three was A finding substantial. 115-142(e)(l) grounds evidence of of the listed under G.S. was where, here, justifies substantial dismissal as the teacher was note, notified that dismissal was based on that We ground. however, is that there in insubordination, substantial evidence the record sup- that, port the Board’s findings addition peti- of guilty tioner inadequate performance, duty, of neglect failure to comply requirements of Board.
The Superior September Court’s 27 1977 order affirming of order the Charlotte-Mecklenburg Board of Education’s Oc- tober order petitioner’s terminating employment Affirmed.
Judges and Erwin concur. Hedrick
CHERYL L. v. WILLIAM NEWSOME SHUFORD NEWSOME
No. 788DC795 (Filed 1979) July Alimony 25.7; 11; § § § 1. Divorce and separa- Husband and Wife 6.2— Infants agreement awarding custody incorporation tion divorce into decree—no — judicial finding changed determination circumstances—no circumstances necessary custody for modification of agreement custody separation granting Where a aof minor child to its decree, incorporated question mother in a divorce reference but the custody litigated hearing was not and decided the court after evidence tending relating to show the as circumstances then existed to the best in- child, necessary terest of was not court to find substantial child, modify custody of circumstances in order and the court opinion promoted could enter such order which in its best the in- terest and welfare of the child. COURT OF v. Newsome *2 25.11; Alimony custody § § 2. Divorce and 6.3— from Infants of mother to father support finding There was an abundance of evidence to the trial court’s placed that the in which had her minor child environment mother was interest, not in the child’s best and the court did not abuse its discretion in custody awarding of the child to its father. Judge dissenting. Clark Jones,
APPEAL from Judge. Judgment entered Court, April County. in District Heard in the Court WAYNE May of 1979. Appeals Plaintiff an appeals custody from order awarding plaintiffs child, Amy, and defendant’s minor to defendant. Defendant filed a motion in the cause seeking on March 1978.
Plaintiff and defendant were separated in September, October, 1977. divorced in A separation agreement granting custody Amy to plaintiff incorporated by was reference the divorce decree. Neither the separation agreement nor the divorce decree was included in the record on this appeal.
A hearing on defendant’s motion was held on March 1978. Defendant’s evidence tends to show that is presently living he parents Wayne with his in a three-bedroom home near Memorial If Hospital custody Amy, in Goldsboro. he is she will granted live with him and his Defendant and were parents. living in a three-bedroom house on Salem prior Church Road their mother, separation. Plaintiff’s Mrs. Langly, lived with them. left, woman, When defendant another Virginia Gooding, who by Wayne County employed Department then the of Social Serv- ices, bedroom, plaintiff. Langly moved in with occupied one another, Amy and plaintiff Virginia together Gooding slept a double bed in the third bedroom. divorce, Amy
At the plaintiff, the time of moved Mulberry to a apartment two-bedroom Street. Defendant Amy go pick up would there to for her visits. He testified that drawn, always were and there drapes apartment dark read, “by only.” were which appointment notices on door mid-November, About defendant discovered that Mulberry moved residence. phone from the Street He tried to went no one. He called apartment plaintiff’s found COURT OF APPEALS
place of employment, Community Development School in Goldsboro, and was told that she was no longer employed. He call- ed Gooding’s employer and was told that she also was no longer He employed. paid support payment which was due to the clerk of court because he was unable locate his wife or his child.
Plaintiff called defendant week later to tell him that she had moved to Winston-Salem. He received a letter from her which Amy stated that a day was in care center and gave their address. Defendant went to that home in December to visit week after birthday. He described it as a small house located on the end of the street. Plaintiff and Virginia Gooding were living *3 together in that house. Defendant’s opportunity to visit with his child became more difficult after plaintiff moved.
Defendant testified that it was after his divorce that he received information to the support allegations in his motion for was, custody. His motion in part, as follows:
“9. Shortly after entry the decree], divorce the [the the said Virginia Gooding simultaneously ter- Goldsboro, Carolina, minated their employment in North surreptitiously Winston-Salem, moved their residence to Carolina, North without notice to the family. defendant his or For of time period the plaintiff refused any to divulge child, details the concerning whereabouts of the minor whereabouts, own her own employment, her place of residence, other details of vital concern to the defend- ant the concerning minor child. believes,
10. The defendant is informed and and upon such information and belief alleges, that the plaintiff has engaged in an illicit homosexual with the relationship said Virginia Gooding; and has conducted said homosexual rela- in the tionship presence and on the premises occupied minor child. The defendant further alleges on information and belief that the homosexual activities of the plaintiff are health, detrimental to the safety, welfare and general well- child; being of the minor and that it would be in the best in- terest of said minor child that she be removed from the of, activities, presence or association with such placed of the defendant.”
Newsome v. mother, she was living testified that Langly, plaintiffs Salem at the time of and defendant on Church Road with to Mrs. originally belonged Lang- their The house had separation. soon ly. moved into the bedroom with Virginia Gooding bed. Mrs. pair after defendant moved out. The shared double the locks keys plaintiff changed to all of the locks but Langly and the entryway on the to the room she shared with baby’s that Mrs. was unable to enter. Mrs. Langly bedroom so testified, as follows: Langly part, also of the minor
“Virginia gradually bathing took over child.
I had a chance Virginia Gooding aiding to observe several She the bath of the minor child occasions. child, lay dry she towel the child in front of would would say we She would the bottle of vaseline fireplace. get your She use her fore- are to use creme. would going night area back and forth when genital She would rub her finger. rash apparent there was no on this child. diaper [*] [*] [*] I described. I I saw Ms. this act that Gooding perform liberties, indecent sexual seduc- don’t know if she called it was; me I greatly. I don’t know what it it disturbed tion. *4 if my and as she’d it she acted daughter mentioned her. just do. It was a normal for nothing thing [*] [*] [*] I my I tried to daughter. I what have seen with reported Gooding it with her. Virginia have a conversation about Also would em- had a bronchial trouble this winter she lot of her in the when she tak- brace the child kiss mouth antibiotics, infection. out of work because of her bronchial ing my Virginia Gooding
During daughter the time that bedroom, I with were the same tried to discuss that using were a Cheryl, anything. she discuss There lot wouldn’t . . . M.S. magazines, magazines. of
[*] [*] [*] I I discuss with her but was not able to. tried to anywhere her. couldn’t with get COURT OF
[*] [*] [*] My had a condition. She was out of work daughter phlebitis rub her Gooding legs. a while. Ms. would 1976, my and Ms. daughter Gooding
In November of took They City during told me went to New York trip. . . . Holidays. They days. were six gone around Thanksgiving [T]hey wearing wedding rings. were both
[*] [*] [*] hands, They bands their wearing gold right were both hand right counting be the third not finger would I jewelry. They saw these both pieces the thumb. both of I my me. daughter rings looked alike to asked about the several times but there was never concrete answer.” try Mrs. out Langly moved but continued to to communicate Finally, she her a in which daughter. with her wrote letter she out, year pointed things, just other how earlier among plaintiff Virginia Gooding being gross described as person hairy and unshaven disturbed and her armpits legs, plaintiff who husband with unwelcome visits. She tried to out long point child, Amy, the harassment and ridicule the have would to endure lifestyle. because Plaintiff was plaintiffs unresponsive. Richards, co-worker, Mrs. plaintiff’s Elizabeth former had a testified that she conversation with August September homosexuality. concerning plaintiff’s Virginia had called Richards and asked that she tell the not homosexuality. plaintiff’s school officials about Mrs. Richards told she would tell because good homosexuality teacher and did not affect her work. Mrs. Richards and discussed the problems homosexuals have society. with relatives and Plaintiff ad- dealing unequivocally mitted she was a Plaintiff homosexual. also talked with Mrs. Richards occasion she was en- problems on another about a homosexual. countering
Mrs. Richards and her husband in mid- helped plaintiff move *5 lawyer November. Plaintiff stated her had her told not to she moving. tell defendant that Mrs. Richards testified that Amy was a mother and she had plaintiff good good to a relation- Amy ship with her. was well cared for. v. Newsome him lived with that defendant testified
Defendant’s father during periods. visit the visitation Amy to brought and often an or two between only have her for hour Defendant would He was not she went to bed. and the time he off work got time If defend- Amy adores her father. overnight. her keep to allowed would not ob- Amy, Mr. and Mrs. Newsome custody of ant gets her as They would raise Amy in their home. ject having They object allowing plain- would not had their own children. The Newsomes attend visitation Langly rights. and Mrs. tiff in Goldsboro. church mother for good is testified that
Mr. Newsome as spent with her. Defendant Amy relationship a good has father would. Amy separation his prior much time with Newsome, mother, Amy and her testified that Mrs. Defendant’s was granted If defendant relationship. have a great father and Mrs. Langley allow custody, Newsomes would is over- Mrs. Newsome thinks privileges. visitation nothing mother. She knows good otherwise is but possessive and Gooding. between relationship about the Amy live that if came to was recalled and testified Defendant him, visit. He and Mrs. Langly welcome plaintiff with he would Amy in his hobbies be to include Amy willing and would loves extend Defendant has tried to his interests. up some of give been an battle. In uphill but it has his privileges visitation Amy. home for provide good he could general, Amy was born on tends to show that Plaintiff’s evidence with in Winston-Salem presently living 1974. She is December Amy Amy backyard. has has a fenced-in large in a which house is lives with them Virginia her own room. Residential Care is for Horizons working Plaintiff unemployed. County and moved to Wayne job Gooding quit Center. in a Amy. presently with plaintiff Winston-Salem day care group day prior situation because the care private Amy. relationship many good She has children. too that de- She testified being denied a homosexual. Plaintiff a rumor to the effect her that he had heard fendant had told started Langly Plaintiff believes that was a she homosexual. this rumor Mrs. Richards about Plaintiff talked with this rumor. Richards dis- Plaintiff and Mrs. letter. Langly’s and about Mrs. *6 COURT OF APPEALS homosexuality cussed in but general plaintiff. never talked about only The Mrs. information Richards could have given school was that there was a rumor was a plaintiff that homosexual. Gooding Plaintiff did not that had called Mrs. know Richards and homosexuality asked she not report plaintiff’s that to the school. Plaintiff stated that she has not separation dated since her Amy. because she wants be with She to admitted that she and Ms. Gooding purchased in New but rings York denied that were She wedding rings. admitted that she and Gooding in spent “cohabited the same bed” nights double claimed she Amy that had no other beds and insisted that have her own She in sleep room. refused to her mother’s room old Salem Road after Langly Church left because would it be traumatic. There also was no bed because Mrs. Langly taken saw the furniture. Plaintiff was psychologist because she going through a difficult her period separation her accusing Her mother was her parents. potential father of sexual Amy. molestation of plain- moved with them because help very tiff needed with the bills. She was supportive plain- during period. tiff this difficult Winston-Salem, job
When learned of her she gave employer twenty-seven days’ Goldsboro notice. Plaintiff did job not write defendant about her new and did call not him because told her he not call him at his On parents’ home. Winston-Salem, day moved she tried to call defendant at his several office times. He either taking any out finally calls. She contacted him and told him that she and were in Winston-Salem but that she did telephone not know her number or address. Defendant indicated that there were no prob- lems other than that his were parents upset that she had moved. She him later wrote as to her address. She give also called to him gave the exact She telephone location. him her number but asked private remain because she had receiving been lot of Winston-Salem, harassing plaintiff’s calls. Prior moving Amy every Friday defendant saw for about She two hours. denied unreasonable of his limitation visitation privileges. of plaintiff’s
Several friends testified that had good with the child and she relationship good mother. None them knowledge admitted to of a homosexual relationship
Newsome v. present did not Plaintiff Gooding. and Virginia between by the court. testimony for consideration Gooding’s *7 substantially in evidentiary fact findings of made judge The label he did not that except defendant’s evidence with accordance His as homosexual. Virginia Gooding relationship plaintiff’s following: facts included ultimate findings of both the “23. evidence presented The has in fact that the plaintiff tends to show defendant child, Amy Franklin minor a mother to the good been Newsome, very sufficiently for the has provided in that she child. for said minor requirements needs and physical finds that the environment 24. The Court further raised is not conducive or being child is now which the minor years; a such tender of minor raising beneficial to the the ex- did not discover finds that the defendant and further February 1978. until such environment istence of L. Cheryl finds that the plaintiff, 25. The further Court Newsome, and is interested who cares for loving mother said minor child. of the well-being in the of Mr. and finds that the home 26. The further Court defendant, Newsome, ais of the parents R. George minor child. raising environment for the proper fit and defendant, Newsome, S. is desirous of 27. William The care, above named custody and control of the obtaining child, Mr. and Mrs. R. Newsome George and the said minor ability their to the best of to assist the defendant willing are care, custody the minor and control of for the providing child.” has been as a matter of law that there
The court concluded entry of the Oc- since the of circumstances substantial tober, 1977, a fit and ruled that defendant was decree. He divorce care, Amy custody and control of have the proper person have visitation proper person fit plaitniff be kept the child should expressly provided privileges He, therefore, awarded Virginia Gooding. presence out of the plaintiff. privileges defendant and visitation custody of plaintiff appeals. this judgment From COURT OF APPEALS Pfefferkorn, & Cooley, by William G. Jim D. Pfefferkorn Elliot, Cooley, J. Wilson Parker and Robert M. plaintiff ap-
pellant. Warren, Walker, Taylor, Walker, Jr., Kerr & by Robert D. appellee. for defendant
VAUGHN, Judge. [1] Much of the argument in the briefs is directed to whether there was evidence of substantial change of circumstances so as to warrant a modification of the earlier “decree of custody.” Neither the separation agreement nor the divorce decree was amade part of the record on appeal. We are only advised “the divorce decree incorporated the separation agreement by *8 indication, however, reference.” There is no that the question of custody was litigated by decided after judge hearing evidence tending show the they circumstances as then existed relating therefore, to the best interest of this child. It appears, merely that the court approved the contract made between the clear, however, parties. It is may “Parties never withdraw children from the protective supervision of the court.” Bunn v. Bunn, 67, 69, (1964). 262 136 S.E. N.C. 2d 240 agreement
“No
or contract between husband and wife
will serve
deprive
the court of its inherent as well as
statutory authority to protect
the interests and provide for
the welfare of infants. They may bind
themselves
separate
agreement
or
a consent
. . .
judgment
cannot
thus withdraw children of the marriage from the protective
custody of the court.
. . . The child is not a party to such
agreement and the parents
away
cannot contract
jurisdic-
tion
always
of the court which is
alert in the discharge of its
duty toward its wards —the children of the State whose per-
sonal
property
or
interests require
...
protection.
In such
case the welfare of the child is the paramount consideration
to which even parental
yield,
love must
and the court will authority
suffer its
in this regard to be either withdrawn or
by any
curtailed
act of
parties.”
v.
Story
Story,
N.C.
(citations
114, 116,
(1942)
omitted).
[2] The statute
requires
the
judge
shall award “the
custody
of such child
such person, agency,
organization or institution as
will, in the
judge,
opinion
best
promote
interest and
50-13.2(a)
added).
welfare of the child.” G.S.
(emphasis
The judge
obviously entered the order that
in his
his
judgment
opinion
is, therefore,
was in the best interest of the child. The question
whether
in the appellate
we
division must reverse that judgment
that,
law,
and hold
as a matter of
the trial judge was obliged to
have reached a
opinion.
custody
different
Decisions in
cases are
easy.
never
trial
The
has the
judge
opportunity
parties
to see the
tenors,
and to
person
hear the witnesses. He can detect
tones
and flavors that are lost in the bare printed
read
record
months
later
His
appellate judges.
decision should not be reversed in
absence of
clear
of abuse
showing
In re
of discretion.
Pitts,
(1968):
Custody
162 S.E.
App.
N.C.
2d 524
“When the court finds that
parties
both
proper
are fit and
involved,
persons
custody
have
of the children
as it did
here, and thus finds
to the best
interest of the
children,
children for the father to have
of said
such
holding will be
when it
upheld
is supported
competent
Hinkle,
189, 196,
evidence.” Hinkle v.
(1966).
266 N.C.
critical would The evidence in the child’s best interest. the child is not may that the It well be stronger findings. much supported have the child as much future embarrassment spare judge struggled possible. Affirmed. concurs.
Judge Carlton dissents.
Judge Clark dissenting.
Judge Clark
filed a verified motion for
9
1978 defendant
On October
1 September
had on
alleging
appeal
dismissal of
and had not re-
a weekend visitation
1978 taken the
for
order,
and that
child as
the court
provided
turned the
return
had taken and would not
had informed defendant that she
in the
allegations
Plaintiff’s counsel
responded
the child.
hearsay. The motion was denied on
were unsubstantiated
motion
true
has violated
30
1978. If the
are
allegations
October
14-320.1,
I
felony.
stay
appellate proceedings
vote
G.S.
determina-
of fact
for
findings
the trial court .for
remove to
v.
facts found. See Jones
light
matters
tion of custodial
(1891).
457,
Cotten,
S.E. 161
N.C.
Further,
because it
majority opinion
I
agree
do not
of the divorce
provisions
relative to the
assumptions
is based on
was not in the record on
custody
though the decree
decree
State
law of this
ignores the established
and because
appeal,
decree,
standards
and to the
modification of
relative to
support
conclusions of law which should
of fact and
findings
50-13.7(a); Blackley v.
custody. See G.S.
adjudication
an
(1974);
358,
Shepherd
2d 678
S.E.
Blackley,
N.C.
Steele,
(1968);
Hi-Fort, Inc. v. Burnette
601,
(1978);
Owen,
No. 7830SC716 (Filed 1979) July 6.1; Registration § § 1. improperly admissibility Deeds 5— acknowledged deed— by against party claiming descent improperly acknowledged registered An deed not inadmissible in partition against proceeding party claiming an interest in the land de- scent, purchaser since an heir is not a protection for value entitled to the recording act. 47-18. G.S. § property ground 2. 1— necessary Partition location of property question necessary ground Location of on the was not partition proceeding petitioner superior this since did not seek to show title to only respondent to establish its status as a showing tenant in common itself, petitioner chain of title challenge into did not respondent’s status as cotenant.