Vuncannon v. Vuncannon

346 S.E.2d 274 (1986)

Jeanette Marie VUNCANNON v. Keith W. VUNCANNON, Jr.

No. 8519DC960.

Court of Appeals of North Carolina.

August 5, 1986.

*276 Ottway Burton, P.A. by Ottway Burton, Asheboro, for plaintiff-appellant.

No brief for defendant-appellee.

PARKER, Judge.

Plaintiff's first assignment of error is deemed abandoned because "[q]uestions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party's brief, are deemed abandoned." N.C.R.App.Proc. 28(a).

The only questions properly before this Court are whether the trial court erred in finding that the 22 April 1985 Order was not based on perjured testimony procured by the defendant and in modifying the 22 April 1985 Order.

Plaintiff's contention is that because she alleged in her motion that defendant suborned the perjured testimony of his daughter at the trial, that she is entitled to have that Order set aside pursuant to G.S. 1A-1, Rule 60(b)(3) on account of "a fraud practiced upon the court." The rule is well-established that a motion for relief under Rule 60(b) is addressed to the sound discretion of the trial court and appellate review is limited to determining whether the court abused its discretion. Sink v. Easter, 288 N.C. 183, 217 S.E.2d 532 (1975), In the Matter of Oxford Plastics v. Goodson, Jr., 74 N.C.App. 256, 328 S.E.2d 7 (1985), Wright and Miller, Federal Practice and Procedure (Civil) § 2857 (1973) and 7 Moore's Federal Practice 2d § 60.24[5]. Plaintiff advances no argument that the court abused its discretion in denying this motion, and our review of the record reveals no such abuse.

Defendant filed a motion in the cause in which he asked the court to review the previous Order in light of the fact that Jacqueline wished to reside with plaintiff. This motion, in conjunction with plaintiff's motion to have the previous Order set aside, raised the issue of "changed circumstances" as required by G.S. 50-13.7.

Judge Hammond, who originally heard this matter and entered the April custody Order, was also the judge who jointly heard plaintiff's motion to set aside the previous Order and defendant's motion in the cause. He alone was in the unique position of determining whether, in fact, there had been fraud under Rule 60(b)(3). Although he found that Jacqueline "was not entirely truthful when testifying in support of plaintiff's Motion ...," he also found that any discrepancies between Jacqueline's testimony were "not sufficient to effect [sic] this Court's decision concerning custody ... rendered on April 22, 1985." Judge Hammond clearly found that the discrepancies in Jacqueline's testimony did not amount to "fraud ... misrepresentation, or other misconduct of an adverse party."

The trial court's findings of fact modifying a child custody Order are conclusive on appeal if supported by competent evidence, Daniels v. Hatcher, 46 N.C.App. 481, 265 S.E.2d 429, disc. rev. denied, 301 N.C. 87 (1980), even though there is evidence to the contrary. In re Williamson, 32 N.C.App. 616, 233 S.E.2d 677 (1977). If the evidence supports the findings of fact and those findings of fact form a valid basis for the conclusions of law, the judgment will not be disturbed on appeal, Paschall v. Paschall, 21 N.C.App. 120, 203 S.E.2d 337 (1974), absent a clear showing of an abuse of discretion. Hensley v. Hensley, 21 N.C.App. 306, 204 S.E.2d 228 (1974).

Applying these principles, we are unable to say the court herein abused its discretion by failing to modify the previous custody Order and to place custody of Anthony with plaintiff based upon plaintiff's allegations of fraud. Although Jacqueline stated in her affidavit that she "swore falsely" at the prior hearing, and testified at the June hearing that she had previously lied to the court, her characterization of her previous representations are not necessarily controlling. Our review of her testimony at the June hearing does reveal certain discrepancies between that and the averments in her affidavit. However, no transcription was taken of the April hearing, and this Court is in no position to compare Jacqueline's *277 original testimony, her affidavit, and her subsequent testimony. In a custody proceeding, the credibility of witnesses is for the trial judge to weigh. Judge Hammond was in the best position to determine what effect, if any, these discrepancies had on his previous custody award, and plaintiff has wholly failed to show any abuse of discretion in the denial of her motion to have the previous Order set aside and in the court's decision to place custody of Jacqueline with her and to retain custody of Anthony in defendant.

The Order appealed from is

Affirmed.

HEDRICK, C.J., and WEBB, J., concur.