King v. Demo

253 S.E.2d 616 (1979)

40 N.C. App. 661

James Edwin KING, III v. Rebecca Faye King DEMO.

No. 7826DC551.

Court of Appeals of North Carolina.

April 17, 1979.

*619 Hicks & Harris by Richard F. Harris, III, Charlotte, for plaintiff-appellee.

Walter C. Benson, Charlotte, for defendant-appellant.

CARLTON, Judge.

The defendant first contends that the trial court improperly exercised jurisdiction. We do not agree.

This action was commenced on 22 December 1977 by the plaintiff. On that date, the minor child was physically present in North Carolina.

The applicable statute is G.S. 50-13.5(c)(2). That statute provides in part as follows:

(2) The courts of this State shall have jurisdiction to enter orders providing for the custody of a minor child when: a. The minor child resides, has his domicile, or is physically present in this State . . . . (Emphasis added.)

Cases decided under G.S. 50-13.5(c)(2) have established that the minor child's physical presence in this State is sufficient to confer jurisdiction upon the courts to modify foreign custody decrees. See Pruneau v. Sanders, 25 N.C.App. 510, 214 S.E.2d 288 (1975), cert. denied, 287 N.C. 664, 216 S.E.2d 911 (1975); Spence v. Durham, 16 N.C.App. 372, 191 S.E.2d 908, revd. on other grounds, 283 N.C. 671, 198 S.E.2d 537 (1973); cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473 (1974); 5 Strong, N.C. Index 3d, Divorce and Alimony, § 26.3, p. 372.

In the case at bar, the trial court properly exercised jurisdiction and the denial of the defendant's motion to dismiss on jurisdictional grounds was proper.

The defendant next contends that the plaintiff failed to meet the burden of proving a sufficient change of circumstances to warrant a modification of the Colorado custody order pursuant to G.S. 50-13.7(b). That statute provides as follows:

(b) When an order for custody or support, or both, of a minor child has been entered by a court of another state, a court of this State may, upon gaining jurisdiction, and upon a showing of changed circumstances, enter a new order for support or custody which modifies or supersedes such order for custody or support.

The party moving for modification of a custody order has the burden of showing that there has been a substantial change of circumstances affecting the welfare of the child. King v. Allen, 25 N.C.App. 90, 212 S.E.2d 396 (1975), cert. denied, 287 N.C. 259, 214 S.E.2d 431 (1975). The defendant contends that the plaintiff relied on various incidents of corporal punishment against the minor child by Mr. Demo as constituting "changed circumstances." She argues that the incidents complained of all occurred prior to the 1973 Colorado custody order and were therefore considered by the Colorado court in entering its order awarding custody to the defendant and were not properly before the North Carolina court.

The trial judge however, in his findings of fact, based his decision to modify the custody order on the specific belt beating incident of December 1977, other incidents of abuse occurring within the last three years, the child's fear of Mr. Demo, the child's desire to reside with the plaintiff and the plaintiff's remarriage. There is ample evidence from the record to support the judge's findings in this case. The plaintiff has met the burden of proving changed circumstances and this assignment of error is therefore overruled.

The defendant's next assignment of error is that the trial judge improperly admitted evidence as to the prior arrest record and abusive behavior of Mr. Demo. We do not agree.

On cross-examination of the defendant, the following exchange took place:

Q. You know he has been tried a couple of times for assault, don't you, and disorderly conduct? *620 A. No, I don't know about that. Q. You don't know anything about that? A. No, I don't. Objection. Objection overruled.

After this exchange, the defendant testified without objection that, "I have taken out an assault warrant against him once or twice in January or February of 1977."

During cross-examination of a neighbor of the defendant, this exchange took place:

Q. Your are aware that Mr. Demo has struck his wife before, are you not? A. Yes, I am.

Prior to this dialogue, other evidence was admitted without objection or exception concerning Mr. Demo striking his wife.

In Shelton v. R. R., 193 N.C. 670, 139 S.E. 232 (1927) Justice Brogden, speaking for the Court, stated the well established rule that when evidence is admitted over objection, but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost.

Even had the benefit of the objection not been lost, the evidence of Mr. Demo's arrest and physical abuse would be relevant and admissible in this child custody proceeding. "One of the commonest methods of impeachment is by showing that the witness's character is bad, . . . or by eliciting on cross-examination specific incidents of the witness's life tending to reflect upon his integrity or general moral character." 1 Stansbury, N.C. Evidence 2d (Brandis Rev. 1973), § 43, p. 122. Bad moral character, including specific instances of misconduct, may be established through cross-examination as a ground for impeachment. 1 Stansbury, N.C. Evidence 2d (Brandis Rev. 1973), § 42, p. 121. The character of Mr. Demo was more than a collateral issue in this child custody proceeding. His presence and conduct in defendant's home had a direct bearing on the child's environment and welfare. Having testified at the hearing that the child received bruises from playing and not from any blows he dealt, his testimony was subject to impeachment as any other witness's testimony would be.

We agree with defendant, however, that there are insufficient findings to support the trial court's denial to her of any visitation privileges with the child during the three-year period of her residency in Japan. The findings are sufficient to support the other restrictions on visitation ordered by the trial court, i. e., limiting the visits to Mecklenburg or Alamance counties, providing that the child not be in the presence of Mr. Demo, requiring the child to sleep in his father's or paternal grandparents' home, preventing defendant from removing the child from either county or the state for any reason, and providing that plaintiff or someone designated by him be with the child and defendant during visits except for reasonable daylight hours. Such restrictions are consistent with the trial court's findings and are obviously designed to assure compliance with the two major thrusts of the order, to wit, that plaintiff have sole custody of the child and that the child not be subjected to further physical abuse by Mr. Demo.

However, the denial of visitation between mother and child under the restrictions stated for a three-year period is wholly inconsistent with the trial court's findings and with established law.

Unless the child's welfare would be jeopardized, courts should be generally reluctant to deny all visitation rights to the divorced parent of a child of tender age. Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967); In re Custody of Stancil, 10 N.C.App. 545, 179 S.E.2d 844 (1971).

Moreover, G.S. 50-13.5(i) provides as follows:

In any case in which an award of child custody is made in a district court, the trial judge, prior to denying a parent the right of reasonable visitation, shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit to child or that such visitation rights are not in the best interest of the child. (Emphasis added.)

In the case at bar, the trial court clearly failed to meet the requirements of the italicized *621 portion of the statute. To the contrary, the trial court made, in part, the following findings:

18. The defendant loves her son and no evidence is before this Court of any physical abuse of the minor child by the defendant. 26. The defendant is a fit and proper person to have custody of the minor child. 36. The defendant is a caring and loving mother. 38. It would not be in the best interests of the minor child for there to be visitation rights with the minor by the defendant in Japan. (Emphasis added.) The court then made, in part, the following conclusions of law: 5. The defendant is a fit and proper person to have custody of said minor child and to have visitation privileges with said minor child.

In the dispositive portion of the order, the court ordered, in part, as follows:

5. The defendant shall have no visitation privileges from June 1, 1978, until the defendant returns to the United States from Japan, but the defendant shall have the right to contact said minor child by telephone or letter and said contact shall not be limited or infringed upon by the plaintiff.

Since there are no findings of fact or conclusions of law to support the dispositive provision of number 5 above, the order must be remanded for further proceedings to comply with G.S. 50-13.5(i) with respect to that portion of the order above.

The defendant next contends, in a broadside assignment of error, that the trial court's remaining findings of fact are not supported by the evidence. The findings of the trial judge, who has the opportunity to see and hear the witnesses, are binding on appellate courts if supported by competent evidence. Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1924). Upon a review of the record, we hold that the findings of the trial judge are supported by competent evidence.

The decision of the trial judge in child custody proceedings ought not to be upset on appeal absent a clear showing of abuse of discretion. See In re Mason, 13 N.C.App. 334, 185 S.E.2d 433 (1971), cert. denied, 280 N.C. 495, 186 S.E.2d 513 (1972). Except as stated with respect to visitation rights, we find no error in the trial judge's exercise of discretion.

Defendant's remaining assignment or error is not argued in her brief, therefore that assignment of error is deemed abandoned under Rule 28(b)(3) of the North Carolina Rules of Appellate Procedure.

The order appealed from is

Affirmed in part, vacated in part and remanded.

VAUGHN and HEDRICK, JJ., concur.