{ "id": 8915820, "name": "TIMOTHY LEE DREYER, Plaintiff v. RLENA MURPHY SMITH and JOHNNY HARDY SMITH, Defendants", "name_abbreviation": "Dreyer v. Smith", "decision_date": "2004-03-02", "docket_number": "No. COA03-286", "first_page": "155", "last_page": "160", "citations": [ { "type": "official", "cite": "163 N.C. App. 155" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "231 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "181", "parenthetical": "in child custody case, content of child's in-chambers testimony, although not in record, deemed to support findings" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 76", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548623 ], "year": 1977, "pin_cites": [ { "page": "80", "parenthetical": "in child custody case, content of child's in-chambers testimony, although not in record, deemed to support findings" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0076-01" ] }, { "cite": "218 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569369, 8569404, 8569324 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0396-02", "/nc/288/0396-03", "/nc/288/0396-01" ] }, { "cite": "215 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "882" } ], "opinion_index": 0 }, { "cite": "26 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553840 ], "pin_cites": [ { "page": "510-11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/26/0509-01" ] }, { "cite": "530 S.E.2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "81", "parenthetical": "\"As long as there is competent evidence to support the trial court's findings, its determination as to the child's best interests cannot be upset absent a manifest abuse of discretion.\"" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 538", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080722 ], "year": 2000, "pin_cites": [ { "page": "541", "parenthetical": "\"As long as there is competent evidence to support the trial court's findings, its determination as to the child's best interests cannot be upset absent a manifest abuse of discretion.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0538-01" ] }, { "cite": "261 S.E.2d 122", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573312, 8573253, 8573227, 8573293, 8573273 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0568-05", "/nc/298/0568-02", "/nc/298/0568-01", "/nc/298/0568-04", "/nc/298/0568-03" ] }, { "cite": "257 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "127" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 524", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555042 ], "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0524-01" ] }, { "cite": "530 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "578-79", "parenthetical": "citations omitted" }, { "page": "579" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 135", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078803 ], "year": 2000, "pin_cites": [ { "page": "139", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0135-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "330 S.E.2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4722697, 4725936, 4721340, 4722525, 4724158 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0612-03", "/nc/313/0612-05", "/nc/313/0612-01", "/nc/313/0612-02", "/nc/313/0612-04" ] }, { "cite": "325 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "266" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 372", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526819 ], "year": 1985, "pin_cites": [ { "page": "375-76" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0372-01" ] }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "731", "parenthetical": "\"the scope of review on appeal is limited to those issues presented by assignment of error in the record on appeal\"" }, { "page": "731" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "year": 1991, "pin_cites": [ { "page": "98", "parenthetical": "\"the scope of review on appeal is limited to those issues presented by assignment of error in the record on appeal\"" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] } ], "analysis": { "cardinality": 525, "char_count": 10537, "ocr_confidence": 0.761, "pagerank": { "raw": 1.5352224684947675e-07, "percentile": 0.6718550000405429 }, "sha256": "a017d3f110e5c353eff5c4ab1d6248aa05d63794cf80a9f78d00c0326e355324", "simhash": "1:c7eb72427275bcf5", "word_count": 1767 }, "last_updated": "2023-07-14T15:27:37.331987+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HUNTER concur." ], "parties": [ "TIMOTHY LEE DREYER, Plaintiff v. RLENA MURPHY SMITH and JOHNNY HARDY SMITH, Defendants" ], "opinions": [ { "text": "GEER, Judge.\nDefendant mother, Rlena Murphy Smith, appeals from the trial court\u2019s order modifying a prior custody order to provide that the minor children would reside primarily with their father, plaintiff Timothy Lee Dreyer. Because Ms. Smith has not assigned error to any of the trial court\u2019s findings of fact and because the trial court\u2019s conclusions of law were supported by those findings of fact, we affirm.\nUnder N.C.R. App. R 10(a), this Court\u2019s review is limited to those findings of fact and conclusions of law properly assigned as error. Koufman v. Koufman, 330 N.C. 93, 98, 408 S.E.2d 729, 731 (1991) (\u201cthe scope of review on appeal is limited to those issues presented by assignment of error in the record on appeal\u201d). \u201cWhere no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.\u201d Id. at 97, 408 S.E.2d at 731.\nMs. Smith did not specifically assign error to any of the trial court\u2019s findings of fact. Her sole assignment of error on this appeal states:\nThe trial court committed reversible error when it found that the Plaintiff had proffered sufficient evidence to show that there had been a material and substantial change of circumstances of the parties since entry of the last order that will likely have an [e]ffect on the children and a modification of the prior order would be of material benefit to the children and in the children\u2019s best interest.\n\u201cA single assignment [of error] generally challenging the sufficiency of the evidence to support numerous findings of fact, as here, is broadside and ineffective\u201d under N.C.R. App. P. 10. Wade v. Wade, 72 N.C. App. 372, 375-76, 325 S.E.2d 260, 266, disc. review denied, 313 N.C. 612, 330 S.E.2d 616 (1985). Because Ms. Smith has not properly assigned error to any specific findings of fact, those findings are binding on this Court.\nMr. Dreyer, appearing pro se, filed a complaint in Rockingham County District Court on 19 October 2001, asking to have primary custody of his children transferred to him. Ms. Smith and her husband, Johnny Hardy Smith, filed an answer on 16 November 2001, denying the material allegations of the complaint.\nAfter a bench trial, the trial court found the following facts. The parties, who were married in 1989 and separated in 1994, are the parents of two children: Andrew (age 13) and China (age 9). In 1996, the parties entered into a consent order that provided for joint custody of the children, with the children to reside with Ms. Smith 225 days per year and with Mr. Dreyer 140 days per year. Since the entry of that order, Ms. Smith has remarried and now lives with her new husband and his two sons, who are age 18 and age 16.\nWith respect to that marriage, the trial court found:\n5.The new husband drinks regularly. The children are exposed to drunken outbursts including cussing and punching walls. The children are allowed to ride in the car with her new husband while he is drinking. The youngest child, China, is afraid of the mother\u2019s new husband and would feel safer living with her father.\n6. The boys\u2019 room is in the basement of the house and has to be accessed by going outside. Andrew shares that room with his 16 year old step brother who is addicted to drugs and is able to go in and out of the room without the parents\u2019 knowledge. China is scared of her step brother.\nThe court also noted that both children \u201care doing miserable [sic] in school.\u201d The court ultimately found that Mr. Dreyer would be able to provide a more stable environment with fewer risks to the children\u2019s future development.\nBased on its findings of fact, the court concluded that \u201cthere has been a material and substantial change of circumstances of the parties since entry of the last order that will likely have an [e]fleet on the children and a modification of the prior order would be of material benefit to the children and in the children\u2019s best interests[.]\u201d Accordingly, the court modified the prior custody order, maintaining joint custody but providing that the children would reside primarily with Mr. Dreyer. Ms. Smith appeals from that order.\nThe only question properly before this Court is whether the trial court\u2019s conclusions of law are supported by the findings of fact. A court order for custody of a minor child \u201cmay be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party . . . .\u201d N.C. Gen. Stat. \u00a7 50-13.7(a) (2003). A trial court may not alter an existing custody order unless the court has determined \u201c(1) that there has been a substantial change in circumstances affecting the welfare of the child; and (2) a change in custody is in the best interest of the child.\u201d Evans v. Evans, 138 N.C. App. 135, 139, 530 S.E.2d 576, 578-79 (2000) (citations omitted). The court, however, \u201cneed not wait for any adverse effects on the child to manifest themselves before the court can alter custody.\u201d Id. at 140, 530 S.E.2d at 579.\nThis Court held in Evans that \u201cremarriage, in and of itself, is not a sufficient change of circumstance affecting the welfare of the child to justify modification of the child custody order without a finding of fact indicating the effect of the remarriage on the child.\u201d Id. See also Hassell v. Means, 42 N.C. App. 524, 531, 257 S.E.2d 123, 127 (\u201cRemarriage in and of itself is not a sufficient change of circumstance to justify modification of a child custody order.\u201d), disc. review denied, 298 N.C. 568, 261 S.E.2d 122 (1979). Here, however, the trial court made ample findings of fact describing the negative effect of Ms. Smith\u2019s remarriage on the children. We hold that these findings \u2014 setting forth the children\u2019s exposure to alcohol abuse, violent behavior, illegal drugs, and a risk of physical harm \u2014 support the trial court\u2019s conclusion that there has been a substantial change of circumstances affecting the welfare of the children.\nFurther, based on these findings, we hold that the trial court did not abuse its discretion in concluding that a change in custody was in the best interests of the children. Metz v. Metz, 138 N.C. App. 538, 541, 530 S.E.2d 79, 81 (2000) (\u201cAs long as there is competent evidence to support the trial court\u2019s findings, its determination as to the child\u2019s best interests cannot be upset absent a manifest abuse of discretion.\u201d).\nEven though she failed to assign error to the critical findings of fact, Ms. Smith further challenges the trial court\u2019s conclusion by contending that the evidentiary basis for those findings was provided during unrecorded in camera interviews of the children. Yet, this procedure was specifically requested by Ms. Smith\u2019s attorney. When Mr. Dreyer sought to call Andrew to the witness stand, the following colloquy occurred:\nThe Court: Did you want to do this in chambers?\nMr. Dreyer: Yes, sir.\n[Defendant\u2019s Attorney]: Yes, sir. I thought we were going to let you take the kids back to chambers, Judge. Do you agree to that?\nMr. Dreyer: Yes, sir.\nThe Court: Me and the clerk will go back in chambers and talk with the children one at a time. Do you agree to that?\n[Defendant\u2019s Attorney]: Yes, sir, Judge.\nMr. Dreyer: Yes, sir.\nThe Court: Mrs. Smith, do you agree to that?\nThe Defendant: Yes.\nIn accordance with the parties\u2019 agreement, Judge Stone then interviewed the children in chambers.\nBecause the record shows that Ms. Smith expressly consented to the in-chambers interviews of the children, she may not now assert that the procedure was error. Stevens v. Stevens, 26 N.C. App. 509, 510-11, 215 S.E.2d 881, 882 (where plaintiff ex-wife had not objected to in-chambers interview of child, she waived her \u201cright [to have] the judge consider nothing except evidence duly developed in open court[,]\u201d and was estopped from asserting it as error on appeal), cert. denied, 288 N.C. 396, 218 S.E.2d 470 (1975). Furthermore, given that defendant did not request at trial that the interviews be recorded, it is immaterial on appeal that the interviews were not recorded. The trial court\u2019s findings are still deemed supported by competent evidence: \u201cWhere there is evidence which does not appear in the record on appeal, it will be presumed that the evidence supports the trial court\u2019s findings of fact.\u201d Goodson v. Goodson, 32 N.C. App. 76, 80, 231 S.E.2d 178, 181 (1977) (in child custody case, content of child\u2019s in-chambers testimony, although not in record, deemed to support findings).\nBecause we hold that the trial court\u2019s findings of fact fully supported its conclusion that there had been a material and substantial change of circumstances of the parties and that it was in the best interests of the children to modify the custody order, we affirm.\nAffirmed.\nJudges McGEE and HUNTER concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "No brief filed on behalf of plaintiff-appellee.", "Eunice Jones O\u2019Beng, for defendant-appellant." ], "corrections": "", "head_matter": "TIMOTHY LEE DREYER, Plaintiff v. RLENA MURPHY SMITH and JOHNNY HARDY SMITH, Defendants\nNo. COA03-286\n(Filed 2 March 2004)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to assign error \u2014 findings of fact\nDefendant mother\u2019s failure to properly assign error in a child custody modification case to any specific findings of fact as required by N.C. R. App. R 10(a) means those findings are binding on the Court of Appeals.\n2. Child Support, Custody, and Visitation\u2014 modification\u2014 substantial change of circumstances \u2014 best interests of child\nThe trial court did not abuse its discretion by modifying a child custody order to provide that the minor children would reside primarily with plaintiff father, because: (1) there was a material and substantial change of circumstances of the parties including the negative effect on the children of defendant mother\u2019s remarriage by the children\u2019s exposure to alcohol abuse, violent behavior, illegal drugs, and a risk of physical harm; and (2) it was in the best interests of the children.\n3. Appeal and Error\u2014 preservation of issues \u2014 child custody modification \u2014 in-chambers testimony \u2014 failure to request recordation\nAlthough defendant mother contends the trial court erred in a child custody modification case by holding unrecorded in camera interviews of the children, this procedure of interviewing the children in-chambers was specifically requested by defendant\u2019s attorney and defendant did not request at trial that the interviews be recorded.\nAppeal by defendant Rlena Murphy Smith from order entered 23 July 2002 by Judge Richard W. Stone in Rockingham County District Court. Heard in the Court of Appeals 3 December 2003.\nNo brief filed on behalf of plaintiff-appellee.\nEunice Jones O\u2019Beng, for defendant-appellant." }, "file_name": "0155-01", "first_page_order": 185, "last_page_order": 190 }