Peeples v. Peeples, 769 S.E.2d 846 (N.C. App., 2015)
Greg Wayne PEEPLES, Plaintiff
Amber B. PEEPLES, Defendant.
Court of Appeals of North Carolina.
Feb. 3, 2015.
Church Watson Law, PLLC, by Kary C. Watson and Julia A. Kirby, for plaintiff-appellant.
Horack Talley Pharr & Lowndes, P.A., by Christopher T. Hood and Elizabeth J. James, for defendant-appellee.
Greg Wayne Peeples (“Plaintiff”) appeals from order awarding the parties permanent joint custody of their minor child. We affirm.
I. Factual Background
Plaintiff and Amber B. Peeples (“Defendant”) were married on 2 June 2012 and separated on 20 December 2012. The parties procreated one minor child in 2010, T.P., prior to their marriage. Plaintiff has primary custody of an older minor child from a previous relationship. Defendant also has primary custody of an older minor child from a previous relationship.
Plaintiff and Defendant lived together for approximately four years until the date of separation. After separation, Defendant lived in three different residences. Since August or September 2013, Defendant has resided with her boyfriend, Gary Waller (“Mr.Waller”).
On 20 May 2013, Plaintiff filed a complaint seeking temporary and permanent custody of T.P. That same day, Judge Eddinger entered an Immediate Custody Order granting Plaintiff temporary immediate legal and physical custody of T.P. The order also awarded Defendant visitation rights as mutually agreed upon by the parties, subject to the condition that Defendant return T.P. to Plaintiff upon his demand. On 23 July 2013, Defendant filed an answer and counterclaim seeking primary custody of T.P.
On 22 November 2013, Rowan County Sheriff Chief Deputy David C. Ramsey (“Deputy Ramsey”) began investigating Defendant and Mr. Waller for purchasing large quantities of pseudoephedrine and providing it to a third person to manufacture methamphetamine. An anonymous tip alleged the manufacture of methamphetamine and the growing of marijuana at Mr. Waller’s residence.
Deputy Ramsey executed a search warrant of the residence and testified that “there was no indication that [he] could find that there was a [methamphetamine] lab at th[e] house.” Deputy Ramsey stated he found some materials in the residence that could alternatively be used for the manufacture of methamphetamine or legitimate household uses. Deputy Ramsey also testified that he “didn’t see anything unusual about the house.”
The parties’ competing permanent custody claims were heard on 29 January 2014 and 27 March 2014. On 16 May 2014, the trial court made findings of fact and conclusions of law and entered a custody order (“the Custody Order”) awarding the parties joint legal and physical custody of T.P.
Plaintiff gave timely notice of appeal to this Court.
Plaintiff argues that the trial court erred by (1) making inadequate findings of fact to support its conclusion that awarding joint custody was in the child’s best interests; and (2) failing to consider and resolve whether Defendant had engaged in the actions alleged by Plaintiff. Plaintiff also argues that the trial court abused its discretion in awarding joint custody of T.P. to both parties.
A. Adequacy of Findings of Fact
Plaintiff argues the trial court’s findings of fact and conclusions of law are inadequate to support its permanent custody order to award joint custody to the parties.
1. Standard of Review
“In a child custody case, the trial court’s findings of fact are conclusive on appeal if supported by substantial evidence, even if there is sufficient evidence to support contrary findings.” Peters v. Pennington, 210 N.C.App. 1 1213, 707 S.E.2d 724, 733 (2011) (citation omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith,300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980) (citations omitted). “In addition to evaluating whether a trial court’s findings of fact are supported by substantial evidence, this Court must determine if the trial court’s factual findings support its conclusions of law.” Shipman v. Shipman,357 N.C. 471, 475, 586 S.E.2d 250, 254 (2003) (citation omitted). “Absent a total lack of substantial evidence to support the trial court’s findings, such findings will not be disturbed on appeal.” Pulliam v. Smith,348 N.C. 616, 625, 501 S.E.2d 898, 903 (1998).
Further, when reaching a decision regarding child custody, “the trial court is vested with broad discretion.” Pulliam,348 N.C. at 624, 501 S.E.2d at 902 (citation omitted). The trial court “has the opportunity to see the parties in person and to hear the witnesses, and [its] decision ought not be upset on appeal absent a clear showing of abuse of discretion.” Id.at 625, 501 S.E.2d at 902 (citation and internal quotation marks omitted).
2. Findings of Fact
Plaintiff asserts that the following findings of fact were not supported by substantial evidence presented at trial:
14. That since the summer of 2013, Plaintiff has only allowed Defendant access to [T.P.] every other Saturday and Sunday from 9:00 am until 6:00 pm.
16. That a search warrant was executed on Waller’s home. There was no meth [sic] lab or marijuana growing in the home nor was any drug paraphernalia found. The house was in normal order with nothing unusual to Chief Deputy Ramsey.
18. That there is believable evidence to suggest that Waller was engaged in “smurfing”, providing pseudoephedrine to a third person to cook into methamphetamine. There is no believable evidence that Defendant or Waller are engaged in the direct manufacture of methamphetamine or are users of it or other illegal substances.
29. Both parents are fit and proper parents to exercise primary custody of [T.P.].
30. Both parents have homes that are appropriate to exercise primary custody of [T.P.].
Plaintiff also argues the trial court erroneously made the following conclusions of law:
3. That it is in the best interest of the minor child for the parties to exercise joint legal and physical custody of him.
4. That the terms of this Order are fair and reasonable and meet the reasonable needs of the minor child.
5. That both parties are capable of complying with the terms of this Order.
Plaintiff asserts that finding of fact 14 is unsupported because Defendant “did nothing to keep the minor child overnight.” Defendant testified at trial that she had requested overnight visits with T.P., but Plaintiff had refused. The transcript and record also show Defendant was abiding by a visitation schedule pursuant to the May 2013 Immediate Custody Order, which granted Plaintiff temporary sole custody of T.P. and awarded visitation rights to Defendant “as mutually agreed but she must return the child to the Plaintiff upon demand.” As such, finding of fact 14 is supported by sufficient evidence and is binding on appeal. Plaintiff’s argument is overruled.
Plaintiff next argues that “[t]he trial court failed to consider Deputy Ramsey’s testimony regarding his investigation of [Defendant] and Mr. Waller for their purchases of products used to make methamphetamine” and that the trial court erred in failing to find that Defendant was also engaged in “smurfing” in findings of fact 16 and 18.
Plaintiff argues the trial court erroneously found that there was nothing unusual at Mr. Waller’s and Defendant’s residence because (1) Deputy Ramsey found some materials that couldbe used for the production of methamphetamine; and (2) he discovered a trailer with a fictitious VIN plate parked behind Mr. Waller’s residence.
Deputy Ramsey testified that during the search of Mr. Waller’s and Defendant’s residence he did not find a methamphetamine lab nor any evidence of marijuana being grown in the house. He further testified that there were other household uses for the items that he found and that, specifically, he “didn’t see anything unusual about the house.” Deputy Ramsey also testified that the locked trailer bearing a fictitious VIN plate parked on the premises belonged to a third party, unrelated to the present proceedings.
The trial court is not required to make a finding of fact concerning every fact or assertion arising from the evidence. Dixon v. Gordon,–––N.C.App. ––––, ––––, 734 S.E.2d 299, 304 (2012) (citation omitted). The trial court need only make those findings of fact which are material to the resolution of the dispute at hand. Id.
Plaintiff argues the trial court erroneously “fail[ed] to find that there is believable evidence to suggest that [Defendant] was engaged in ‘smurfing’ “ in finding of fact 18. Plaintiff cites his own testimony that he did not remember Defendant purchasing or consuming Sudafed during the entirety of their relationship. Defendant testified that she had never used illegal drugs, nor did she have a criminal record. She further testified that she used Sudafed regularly for sinus issues.
It is the duty of the trial judge “to weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom.” In re Whisnant,71 N.C.App. 439, 441, 322 S.E.2d 434, 435 (1984). Finding of fact 18 is supported by substantial evidence in the record. Plaintiff’s argument is overruled.
Our review of the record and transcript supports a conclusion that substantial evidence supports findings of fact 16 and 18. That there may be evidence that contradicts finding of fact 16 is not fatal. “[T]he trial court’s findings of fact are conclusive on appeal if supported by evidence in the record, even if the evidence might also support a contrary finding.” Spoon v. Spoon,––– N.C.App. ––––, ––––, 755 S.E.2d 66, 69 (2014) (citation omitted). “[I]t is not for an appellate court to determine de novothe weight and credibility to be given to evidence disclosed by the record on appeal.” Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994) (citation omitted).
Plaintiff also argues that the evidence presented cannot support findings of fact 29 and 30—that both parents are fit and proper parents and both parents’ homes are appropriate to exercise primary custody of T.P. Our review of the record shows that it is replete with evidence to support these findings of fact.
We have held,
Credibility of the witnesses is for the trial judge to determine, and findings based on competent evidence are conclusive on appeal, even if there is evidence to the contrary. 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 party’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 defendant’s competent, and apparently credible, testimony and are thus binding on this Court.
Woncik v. Woncik,82 N.C.App. 244, 248, 346 S.E.2d 277, 279 (1986) (citations omitted). The trial court’s findings of facts were supported by substantial evidence contained in the record. These findings of fact adequately support the trial court’s conclusions of law. This argument is overruled.
B. Resolution of Facts Material to Custody Claims
Next, Plaintiff argues that the trial court erred by failing to consider and resolve several events which concerned him about Defendant’s ability to care for T.P. We disagree.
Pursuant to N.C. Gen.Stat. § 50–13.2, an order for custody can be made to the person who will best promote the interest and welfare of the child. Joint custody and any other custody award must include findings of fact which support such a determination of the child’s best interests…. These findings may concern physical, mental, or financial fitness or any other factors brought out by the evidence and relevant to the issue of the welfare of the child. However, the trial court need not make a finding as to every fact which arises from the evidence; rather, the court need only find those facts which are material to the resolution of the dispute. This is a discretionary matter with the court which can only be disturbed upon a clear showing of abuse of discretion.
Witherow v. Witherow,99 N.C.App. 61, 63, 392 S.E.2d 627, 629 (1990) (citations and internal quotation marks omitted).
In the Custody Order, the trial court found as follows:
22. That Defendant has always been a loving mother and was appropriate in the way she cared for all three boys. All three boys were attached to Defendant and showed her love and affection. Plaintiff used to travel with his employment and would be gone on the road for one to two days at a time. Defendant cared for the children alone during these times and met all their needs.
25. That Plaintiff ceased travelling for the business in June 2013 so he could be at home with his boys…. Plaintiff and the boys have a good relationship and they are affectionate with each other.
27. Plaintiff and Defendant have different parenting styles and each have individual strengths and weaknesses as a parent.
28. [T.P.] needs the love and affection of both parents and the opportunity to continue his bond with both of his half-brothers.
The trial court properly exercised its inherent discretion by weighing and considering all competent evidence before making its findings of the ultimate facts, which were material to the resolution of the parties’ competing custody claims. The trial court’s findings of fact support “[its] conclusion of law that custody of the child is awarded to the person [or persons] who will best promote the interest and welfare of the child.” Green v. Green,54 N.C.App. 571, 572, 284 S.E.2d 171, 173 (1981) (citations omitted). Further, by alleging that the trial court erred by failing to include certain evidentiary facts in the Custody Order, Plaintiff essentially asks this Court to “reweigh the evidence and reach a different conclusion on the facts than that deemed appropriate by the trial court.”Dixon,––– N.C.App. at ––––, 734 S.E.2d at 304 (citation and quotation marks omitted). “It is not the function of this Court to reweigh the evidence on appeal.” Garrett v. Burris,–––N.C.App. ––––, ––––, 735 S.E.2d 414, 418 (2012). Plaintiff’s argument is overruled.
C. Abuse of Discretion
Plaintiff’s final argument on appeal is that the trial court abused its discretion by entering a custody order that “is not supported by reason [and] creates an injustice.” In support of this argument, Plaintiff alleges that the trial court did not consider all evidence put forth and failed to make specific findings regarding the competent evidence.
Substantial evidence in the record supports the trial court’s findings of fact. These findings of fact are conclusive on appeal and support the trial court’s conclusion of law and ultimate award of joint custody. Plaintiff has failed to show the trial court abused its discretion in awarding joint custody to the parties.
D. Motion for Sanctions
Finally, we address Defendant’s motion for sanctions pursuant to Rule 34 of the North Carolina Rules of Appellate Procedure filed on 26 November 2014. Defendant asks this Court to impose sanctions against Plaintiff for “initiating and continuing this frivolous appeal.” Pursuant to Rule 34, this Court may impose sanctions “against a party or attorney or both when the court determines that an appeal or any proceeding in an appeal was frivolous[.]” N.C.R.App. P. 34(a). Rule 34(a) provides three grounds on which an appellate court may find an appeal is frivolous:
(1) the appeal was not well grounded in fact and was not warranted by existing law or a good faith argument for the extension, modification or reversal of existing law;
(2) the appeal was taken or continued for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(3) a petition, motion, brief, record, or other paper filed in the appeal was grossly lacking in the requirements of propriety, grossly violated appellate court rules, or grossly disregarded the requirements of a fair presentation of the issues to the appellate court.
Defendant contends: (1) Plaintiff has failed to present a substantive argument that the trial court erred; (2) Plaintiff’s appeal lacks a factual basis and fails to present a good-faith argument for extension, modification, or reversal of applicable law; and, (3) Plaintiff is pursuing this appeal for the improper purpose of harassing Defendant and needlessly increasing the cost of litigation.
Our review of the record shows Plaintiff’s appeal was not brought for an improper purpose. Plaintiff’s brief contains substantive arguments that the trial court erred. We deny Defendant’s motion for sanctions.
The trial court’s order awarding joint custody to the parties is affirmed. Defendant’s motion for sanctions is denied.
Judges ELMORE and DAVIS concur.
Report per Rule 30(e).
Appeal by plaintiff from order entered 16 May 2014 by Judge Beth Dixon in Rowan County District Court. Heard in the Court of Appeals 21 January 2014.