Woncik v. Woncik, 82 N.C. App. 244

PARKER, Judge.

In any action concerning custody of the minor children of a marriage which has ended in divorce, the courts are to give paramount consideration to the best interests of the child. G.S. 50-13.2. See also, e.g., Wilson v. Williams, 42 N.C. App. 348, 256 S.E. 2d 516 (1979). The trial judge is vested with broad discretion in child custody cases, and that discretion must be exercised to serve the welfare and needs of the children. Phillips v. Choplin, 65 N.C. App. 506, 309 S.E. 2d 716 (1983). The decision оf the trial judge regarding custody will not be upset on appeal absent a clear showing of abuse of discretion, provided that the decision is based on propеr findings of fact supported by competent evidence. Comer v. Comer, 61 N.C. App. 324, 300 S.E. 2d 457 (1983).

When the parties have entered into a consent order providing for the custody and support of their children, any modification of that order must be based upon a showing of a substantial change in circumstances affecting the welfare of the child. Harris v. Harris, 56 N.C. App. 122, 286 S.E. 2d 859 (1982). The party moving for the modification of custody bears the burden of showing such a change in circumstances. Id.

In this case, the trial judge made the following ‍​​‌‌​​‌‌​​​​​​‌‌‌​‌‌‌‌​​​‌‌‌‌​‌‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌‍key findings of fact as to changed circumstanсes:

8. After plaintiff met her present husband, problems began to develop with visitation. These problems were caused by the plaintiffs actions. These actions would havе frustrated the visitation except for defendant’s determination to maintain a relationship with the child. These acts have had the tendency to place the child in the middle of his parents’ disputes. This is not in the best interest of the child ....

9. After plaintiff married her present husband she began to engage in a course of conduct, along with her husband, that tended to reduce the status of the defendant in the eyes of the child .... These types of behavior are not in the best interest of the child.

The judge listed examples of plaintiff’s actions following each finding.

Plaintiff’s principal challenges to these findings and to the order based thereon, is that they are unsupported by the evi dence. However, as is true in most child custody cases, the determination of the evidence is based largely on an evaluation of the credibility of each parent. See Crosby v. Crosby, 272 N.C. 235, 158 S.E. 2d 77 (1967). Credibility of the witnesses is for the trial judge to determine, id., and findings based on competent evidence are conclusive ‍​​‌‌​​‌‌​​​​​​‌‌‌​‌‌‌‌​​​‌‌‌‌​‌‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌‍on appeal, even if there is evidence to the contrary. Id. Here, each parent testified to his or her version of the events which led to the above crucial findings of fact. The fact that the trial judge believed one pаrty’s testimony over that of the other and made findings in accordance with that testimony does not provide a basis for reversal in this Court. The findings are based largely on defendаnt’s competent, and apparently credible, testimony and are thus binding on this Court. Blackley v. Blackley, 285 N.C. 358, 204 S.E. 2d 678 (1974).

Plaintiff next asserts that, even if proper, the findings do not warrant the conclusion that there hаs been a substantial change of circumstances affecting the welfare of the child. Specifically, she contends that the trial judge was, in reality, attempting to punish her for actions interfering with visitation privileges, normally punishable by contempt of court.

Child custody cannot be used as a tool to punish an uncooperative pаrent. See Lee v. Lee, 37 N.C. App. 371, 246 S.E. 2d 49 (1978). Standing alone, such interference would normally only warrant a contempt citation. However, where, as here, such interference becomes so pеrvasive as to harm the child’s close relationship with the noncustodial parent, there can be a conclusion drawn that the actions of the custodial parеnt show a disregard for the best interests of the child, warranting a change of custody.

Some courts have held that interference with court-ordered visitation shows a lack оf respect for judicial authority, calling into question the fitness of the custodial parent. See, e.g., Garrett v. Garrett, 464 S.W. 2d 74 (Mo. App. 1971). See also 28 A.L.R. 4th 9 (1984), and cases cited therein. Under this theory, such interference alone is enough to warrant a change of custody, even without a showing of harm to the child, provided that the parent seeking custody is a fit and proper person to have custody. We are not prepared to adopt that far-reaching position. In this case, the evidence shows both interference with ‍​​‌‌​​‌‌​​​​​​‌‌‌​‌‌‌‌​​​‌‌‌‌​‌‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌‍visitation rights as well as conduct undertaken deliberately to belittle the defendant in the mind of his child. The trial court made the specific conclusion, supported by the proper findings of fact, that these аctions of the plaintiff affected the welfare of the child. Because the welfare of the child is the paramount concern in custody cases, see In re Peal, 305 N.C. 640, 290 S.E. 2d 664 (1982), interferenсe with visitation of the noncustodial parent which has a negative impact on the welfare of the child can constitute a substantial change of circumstancеs sufficient to warrant a change of custody.

Plaintiffs next assignment of error is that the trial judge erred in allowing Dr. Herman Staples, a child psychiatrist, to testify as an expert witness аt the custody hearing. Plaintiff argues that Dr. Staples examined Eddie Woncik for only about an hour on one occasion in preparation for litigation. However, these factors go to the weight to be given Dr. Staples’ testimony, not its admissibility. Plaintiff also contends that the trial judge allowed defendant’s attorney to improperly examine Dr. Staрles by asking hypothetical questions not specifically related to Eddie and which assumed facts not yet in evidence. By consent of the parties, Dr. Staples testified first аt the hearing because of scheduling problems. Questions were asked which assumed facts which were later put into evidence by defendant. Assuming arguendo that there was error, we fаil to see the prejudice to plaintiff from this procedure, especially since the trial judge made no reference to Dr. Staples’ testimony in his order; thus, we may рresume that the testimony played no role in his decision. See Pritchard v. Pritchard, 45 N.C. App. 189, 262 S.E. 2d 836 (1980). The rule is that a trial judge sitting without a jury is presumed to have considered only the competent, admissible evidencе and to have disregarded any inadmissible evidence that may have been admitted. City of Statesville v. Bowles, 278 N.C. 497, 180 S.E. 2d 111 (1971). The assignment of error is overruled.

Plaintiff also assigns error to the ex parte order of 5 September 1985, terminating her visitation privileges pending a hearing. The hearing wаs held on 19 February 1986 at which time, plaintiffs visitation privileges were restored. The appeal from the 5 September order is, therefore, moot. However, plaintiff asserts that the provisions of the July custody order which empowered the judge to enter the 5 September order violate her due process rights and should be stricken from the оrder. The custody order provides:

Each of the parties is specifically directed not to do or • say anything either intended to, or likely to, discredit or diminish the other party in the eyes of the child and each of the parties is specifically ‍​​‌‌​​‌‌​​​​​​‌‌‌​‌‌‌‌​​​‌‌‌‌​‌‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌‍directed not to permit any other person to do or say anything in the presence or in thе hearing of the minor child intended to, or likely to, discredit or diminish the other party in the eyes of the child.

Should the plaintiff engage in any such conduct, or should she permit any othеr person to engage in any such conduct, the defendant is directed to forthwith terminate the plaintiffs visitation privileges with the minor child and to report the matter to this Court аnd plaintiffs visitation privileges shall be terminated pending a hearing for the plaintiff to show why she should not be adjudged in willful contempt of this Order.

The court has wide discretion to fashiоn an order which will best serve the interests of the child. In re Jones, 62 N.C. App. 103, 302 S.E. 2d 259 (1983). While a noncustodial parent has a right to reasonable visitation, that right is limited to avoid jeopardizing the child’s welfare. G.S. 50-13.5(i); Jones, supra. The trial judge had ample evidence before him to justify a conclusion that plaintiff had purposefully engaged in a course of conduct designed to alienate the child’s affections for his father, and that these actions were detrimental to the child’s welfare.

Plaintiff, relying on In re Stancil, 10 N.C. App. 545, 179 S.E. 2d 844 (1971), further argues that the order is an impermissible delegation of judicial authority. The order under scrutiny in this casе is, in our view, distinguishable from that in Stancil for the reason that the trial judge in Stancil left the time and length of visitation in the discretion of the custodial grandmother. In the instant case, the order is specific as to the time and duration оf the noncustodial parent’s visitations. The provision directing termination of the visitation privilege, pending a court hearing, applies only on the happening of а certain ‍​​‌‌​​‌‌​​​​​​‌‌‌​‌‌‌‌​​​‌‌‌‌​‌‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌‍condition and is designed to prevent a situation detrimental to the' child’s welfare from becoming more harmful before a court hearing can be scheduled. The judge did not abuse his discretion in fashioning an order designed to prevent further harm to the child from this type behavior. The assignment of error is overruled.

The order appealed from is

Affirmed.

Judges Arnold and Eagles concur.

Case Details

Case Name: Woncik v. Woncik

Court Name: Court of Appeals of North Carolina

Date Published: Aug 15, 1986

Citations: 82 N.C. App. 244; 346 S.E.2d 277; 8620DC119

Docket Number: 8620DC119

Court Abbreviation: N.C. Ct. App.