{ "id": 4155151, "name": "RONNI RENEE HALL, Plaintiff v. STEVEN HAROLD HALL, Defendant", "name_abbreviation": "Hall v. Hall", "decision_date": "2008-02-05", "docket_number": "No. COA07-624", "first_page": "527", "last_page": "536", "citations": [ { "type": "official", "cite": "188 N.C. App. 527" } ], "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": "630 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635918 ], "weight": 7, "year": 2006, "pin_cites": [ { "page": "27" }, { "page": "28" }, { "page": "28", "parenthetical": "alteration in original" }, { "page": "28", "parenthetical": "alteration in original" }, { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/se2d/630/0025-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-91", "category": "laws:leg_statute", "reporter": "N.C. Gen. 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App.", "case_ids": [ 8523699 ], "year": 1993, "pin_cites": [ { "page": "728" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0722-01" ] }, { "cite": "244 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "468" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 601", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554924 ], "year": 1978, "pin_cites": [ { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0601-01" ] }, { "cite": "173 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "548" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 25", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8554622 ], "year": 1979, "pin_cites": [ { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0416-01" ] }, { "cite": "392 S.E.2d 627", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "629" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 61", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520983 ], "year": 1990, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0061-01" ] }, { "cite": "195 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "pin_cites": [ { "page": "133", "parenthetical": "\"in custody cases[,] the welfare of the child is the 'polar star' by which the [trial] court's decision must be guided\"" }, { "page": "133" } ], "opinion_index": 0 }, { "cite": "17 N.C. App. 687", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556723 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "689", "parenthetical": "\"in custody cases[,] the welfare of the child is the 'polar star' by which the [trial] court's decision must be guided\"" }, { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/nc-app/17/0687-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2005, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 820, "char_count": 22446, "ocr_confidence": 0.737, "pagerank": { "raw": 2.1502464519351298e-07, "percentile": 0.7684175795577272 }, "sha256": "a15062c4fca631a311fa43b94f6fe99a52ae90fed29c9e373105c19a0420bb99", "simhash": "1:87eb424632461e54", "word_count": 3579 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STROUD concur." ], "parties": [ "RONNI RENEE HALL, Plaintiff v. STEVEN HAROLD HALL, Defendant" ], "opinions": [ { "text": "HUNTER, Judge.\nOn 3 August 2006, an order for custody and divorce from bed and board was entered, awarding Ronni Renee Hall (\u201cplaintiff\u2019) and Steven Harold Hall (\u201cdefendant\u201d) joint legal custody of the minor children. The order granted plaintiff primary physical custody and defendant secondary physical custody. The order further provided that plaintiff shall have decision-making authority regarding all issues affecting the minor children except for sports and extracurricular activities, which shall be decided jointly between the parties. If the parties are unable to reach a decision regarding sports and extracurricular activities, a parenting coordinator has decision-making authority. From this order, defendant appeals. After careful consideration, we affirm in part and reverse and remand in part.\nPlaintiff and defendant were married on 17 May 1990. Two children, Christiana and Steven, were born of the marriage. The trial court found that plaintiff was \u201cnurturing, listens to the children, and is more emotionally attuned to their needs than the [defendant.\u201d The trial court also found that during the parties\u2019 marriage, defendant was insensitive, controlling, and at times, \u201c \u2018body slammed\u2019 \u201d plaintiff.\nPrior to April 2004, the trial court found that plaintiff had contact with a married man, Russell Broadway (\u201cBroadway\u201d). When defendant was out of town, Broadway would come over to the parties\u2019 marital residence around midnight and stay for fifteen minutes. Plaintiff and Broadway exchanged emails and went on a picnic together. Plaintiff wrote Broadway a poem in which she described him as her \u201c \u2018favorite guy.\u2019 \u201d\nIn April 2004, defendant discovered the relationship between plaintiff and Broadway. Although defendant did not suspect that plaintiff had committed adultery with Broadway, defendant told plaintiff \u00e1nd others that he would brand a letter \u201c \u2018A\u2019 \u201d on her forehead. Plaintiff admitted that she was not truthful about her contact with Broadway.\nSince April 2004, the trial court found that defendant became more involved with the children, working with them on homework, taking them to athletic events, cooking and cleaning for them, and regularly volunteering at their school. Defendant became particularly involved with both children in athletic events, but he has also participated in Indian Princesses and Indian Guides with the children and taught them to ride bicycles.\nAfter attempting to work on their marriage, the parties ultimately separated on 21 September 2005.\nDefendant presents two issues for this Court\u2019s review: (1) whether the trial court abused its discretion in making its custody decision; and (2) whether the trial court erred in determining decision-making authority over the children\u2019s activities.\nI.\nDefendant first argues that the trial court abused its discretion in awarding primary physical custody to plaintiff. We disagree.\nUnder N.C. Gen. Stat. \u00a7 50-13.2(a) (2005), the trial court is required to order custody of minor children to the person that \u201cwill best promote the interest and welfare of the child.\u201d The statute also mandates that the trial court \u201cconsider all relevant factors . . . and . . . make findings accordingly.\u201d Id.; see also In re Cox, 17 N.C. App. 687, 689, 195 S.E.2d 132, 133 (1973) (\u201cin custody cases[,] the welfare of the child is the \u2018polar star\u2019 by which the [trial] court\u2019s decision must be guided\u201d). \u201c[T]he 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.\u201d Witherow v. Witherow, 99 N.C. App. 61, 63, 392 S.E.2d 627, 629 (1990). This Court has recognized that the trial judge is in the best position to make such a determination as he or she \u201ccan detect tenors, tones and flavors that are lost in the bare printed record read months later by appellate judges.\u201d Newsome v. Newsome, 42 N.C. App. 416, 426, 256 S.E.2d 849, 855 (1979). Accordingly, the trial judge is vested with broad discretion in custody cases and will not be overturned absent an abuse of discretion. In re Cox, 17 N.C. App. at 689, 195 S.E.2d at 133.\nWhen the trial court finds that both parties are fit and proper to have custody, but determines that it is in the best interest of the child for one parent to have primary physical custody, as it did here, such determination will be upheld if it is supported by competent evidence. Sain v. Sain, 134 N.C. App. 460, 464, 517 S.E.2d 921, 925 (1999). A trial court\u2019s findings of fact in a bench trial have the force of a jury verdict and are conclusive on appeal if there is evidence to support them. Id. Whether those findings of fact support the trial court\u2019s conclusions of law is reviewable de novo. Id. We address the trial court\u2019s findings of fact and challenged conclusion of law in turn.\nA.\nDefendant argues that certain findings of fact made by the trial court were unsupported by competent evidence. We disagree and address each challenged factual finding in turn.\nIn relevant part, finding of fact number thirty-six states that plaintiff \u201cleft the marital residence [on 21 September 2005,] taking the children with her. Defendant did not see the children for perhaps 6 days after [p]laintiff moved out of the marital home, but was allowed to talk to them.\u201d Defendant argues that the undisputed evidence shows that plaintiff told defendant she was taking the children to visit her parents in Georgia, and made no mention of the fact she was leaving defendant and taking the children. Defendant makes only a conclusory argument that this alleged \u201cwrongdoing\u201d was relevant to the best interests of the children. We, as the trial court likely concluded, do not find .defendant\u2019s factual arguments, even if true, to affect the best interest of the children. This is especially true here, where there were findings of fact, supported by competent evidence, of defendant \u201c \u2018body slammfing]\u2019 \u201d plaintiff.\nDefendant also argues that finding of fact number five is not supported by competent evidence. For the reasons discussed in footnote two of this opinion, we find defendant\u2019s arguments on this issue to be without merit as he has grossly mischaracterized the trial court\u2019s finding of fact on that issue.\nDefendant next argues that finding of fact number ten, which states that defendant\u2019s work schedule was unpredictable while plaintiff generally worked at home and later at night so as to not impact the children, was not supported by competent evidence. Essentially, defendant argues that his work schedule is quite flexible and that he averaged traveling one night per week. Testimony at trial, however, suggested that defendant traveled between two and three nights a week before marital problems arose and that he traveled less after the marital problems. The trial court merely stated that defendant\u2019s schedule was unpredictable, which, from the testimony presented, was a reasonable finding. Thus, finding of fact number ten was supported by competent evidence.\nDefendant\u2019s last argument with regard to the trial court\u2019s findings of fact, is that findings number sixteen and thirty-four set forth an erroneous timeline of events. We disagree.\nIn finding of fact sixteen, the trial court concluded that \u201c[s]ince April of 2004, [djefendant has worked with the children on their homework, taken them to numerous athletic and other activities, cooked and cleaned for them and has regularly volunteered at their school.\u201d Finding of fact thirty-four states that after learning about plaintiff\u2019s \u201cinappropriate behavior\u201d with another man, defendant \u201cbegan to spend more time with the children, and stayed in town\u201d more frequently. Defendant argues that these findings imply that he did not do the things listed in findings sixteen and thirty-four before April 2004. Regardless of the implication, there is competent evidence in the record to support such a finding that defendant became, according to testimony, more \u201cvisible\u201d with the children after April 2004. Accordingly, the findings of fact challenged by defendant are supported by competent evidence and defendant\u2019s assignments of error as to those findings are rejected.\nB.\nDefendant\u2019s sole argument as to the trial court\u2019s conclusions of law is that the trial court erred in making the \u201cbest interest[] of the children\u201d determination, as it was not supported by the trial court\u2019s findings of fact. We disagree.\nBefore awarding primary physical custody of a child to a particular party, the trial court must conclude as a matter of law that the award of custody to that particular party will be in the best interest of the child. N.C. Gen. Stat. \u00a7 50-13.2(a). Such a conclusion must be supported by findings of fact. In re Poole, 8 N.C. App. 25, 29, 173 S.E.2d 545, 548 (1970). \u201cThese 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.\u201d Steele v. Steele, 36 N.C. App. 601, 604, 244 S.E.2d 466, 468 (1978). \u201cThese findings cannot, however, be mere conclusions.\u201d Hunt v. Hunt, 112 N.C. App. 722, 728, 436 S.E.2d 856, 860 (1993).\nIn the instant case, defendant argues that some of the trial court\u2019s findings of fact were \u201cmere conclusions.\u201d Specifically, defendant argues that four of the trial court\u2019s findings of fact were not findings of fact, but mere conclusions. Assuming, arguendo, that those findings of fact were only conclusions, the record still contains findings of fact, not challenged by defendant or already determined to be supported by competent evidence by this Court, to support the trial court\u2019s \u201cbest interest\u201d determination.\nSpecifically, finding of fact number eight states that plaintiff \u201ctook the children for haircuts, bought their clothes and school supplies, volunteered at their school and was a room mother, and took the children on play dates.\u201d The trial court also found that plaintiff ' took the children to the doctor and stayed home with them when they were ill. Finally, the trial found as a fact that plaintiff took a six month leave of absence from her employment to stay with Christiana when she was born and a five month leave when Steven was bom.\nContrary to these findings, the trial court found that defendant would only \u201coccasionally take the children to the doctor, would sometimes attend birthday parties and would volunteer at school on occasion.\u201d Moreover, \u201c[defendant's work schedule was unpredictable and he was regularly out of town one to three nights each week.\u201d The trial court also found that \u201c[d]efendant countermanded [p]laintiff on a number of occasions when she ... was disciplining the children[,]\u201d referred to Christiana as a \u201c \u2018drama queen,\u2019 \u201d and Steven as a \u201c \u2018Mama\u2019s boy.\u2019 \u201d Finally, the trial court found that \u201c[defendant \u2018body slammed\u2019 the [p]laintiff 20 to 50 times during the marriage [, and] threatened to punch his brother-in-law in the nose.\u201d Under N.C. Gen. Stat. \u00a7 50-I3.2(a), a relevant factor in making a custody determination is \u201cacts of domestic violence between the parties[.]\u201d Under such circumstances, we cannot say that the trial court committed a manifest abuse of discretion in awarding plaintiff primary physical custody of the children. Although defendant argues that the trial court should have made less complimentary findings as to plaintiff, we are not in a position to re-weigh the evidence.\nHere, even assuming the trial court erred in making the challenged findings of fact, the trial court\u2019s legal conclusion regarding the best interest of the children is supported by sufficient findings of fact. Accordingly, defendant\u2019s assignments of error as to this issue are rejected.\nII.\nDefendant\u2019s final argument is that the trial court erred in dividing decision-making responsibilities between the parties after awarding joint legal custody. We agree.\nThe trial court\u2019s order granted joint legal custody to both parties. Plaintiff, however, was to \u201chave decision-making authority regarding all issues affecting the minor children except for issues regarding sports and extracurricular activities],]\u201d Where the parties could not agree on issues related to sports and extracurricular activities, a parent coordinator would \u201chave decision-making authority on these issues.\u201d\n\u201cAlthough not defined in the North Carolina General Statutes, our case law employs the term \u2018legal custody\u2019 to refer generally to the right and responsibility to make decisions with important and long-term implications for a child\u2019s best interest and welfare.\u201d Diehl v. Diehl, 177 N.C. App. 642, 646, 630 S.E.2d 25, 27 (2006), see also 3 Suzanne Reynolds, Lee\u2019s North Carolina Family Law, \u00a7 13.2b, at 13-16 (5th ed. 2002) (legal custody includes \u201cthe rights and obligations associated with making major decisions affecting the child\u2019s life\u201d). As a general matter, the trial court has \u201cdiscretion to distribute certain decision-making authority that would normally fall within the ambit of joint legal custody to one party rather than another based upon the specifics of the case.\u201d Diehl, 177 N.C. App. at 647, 630 S.E.2d at 28. In order to exercise its discretion, however, the trial court must make \u201csufficient findings of fact to show that such a decision was warranted.\u201d Id.\nIn Diehl, the trial court granted joint legal custody to both parties, but\nthe court went on to award \u201cprimary decision making authority\u201d on all issues to Ms. Diehl unless \u201ca particular decision will have a substantial financial effect on [Mr. Diehl] . ...\u201d In the event of a substantial financial effect, however, the order still does not provide Mr. Diehl with any decision-making authority, but rather states that the parties may \u201cpetition the Court to make the decision . . . .\u201d\nId. at 646, 630 S.E.2d at 28 (alteration in original). As to the findings made to support such an abrogation of authority, the trial court in Diehl found that \u201c \u2018[t]he parties are currently unable to effectively communicate regarding the needs of the minor children.\u2019 \u201d Id. at 647, 630 S.E.2d at 28 (alteration in original). The Diehl trial court also made findings that\nMs. Diehl has occasionally found it difficult to enroll the children in activities or obtain services for the children when Mr. Diehl\u2019s consent was required, as his consent is sometimes difficult to obtain; and when John\u2019s school recommended he be evaluated to determine whether he suffered from any learning disabilities, Mr. Diehl refused to consent to the evaluation unless it would be completely covered by insurance.\nId. In that case, this Court reversed and remanded the trial court\u2019s decision, holding that findings related to failure to communicate and obtain consent when required are insufficient to abrogate a parent\u2019s decision-making authority when granting joint legal custody. Id. at 648, 630 S.E.2d at 29.\nDefendant argues that Diehl controls the instant case in that all of defendant\u2019s decision-making authority has been abrogated. Plaintiff counters that his authority has not been completely abrogated, as the parties are required to share decision-making responsibilities regarding the children\u2019s athletic and extracurricular activities. That said, were there to be an unresolvable dispute as to that issue, a parent coordinator would, like the trial court in Diehl, make the final decision.\nA careful reading of Diehl, however, reveals that this Court\u2019s ultimate holding was that upon an order granting joint legal custody, the trial court may only deviate from \u201cpure\u201d legal custody after making specific findings of fact. The extent of the deviation is immaterial, so while the order in Diehl is distinguishable from the one in the instant case in terms of the authority granted to the respective defendants, that is not the relevant inquiry. Accordingly, this Court must determine whether, based on the findings of fact below, the trial court made specific findings of fact to warrant a division of joint legal authority.\nIn this case, as in Diehl, the trial court concluded that defendant was a fit and proper person for joint legal custody. The trial court, however, made no findings that a split in the decision-making was warranted. Instead, the trial court made numerous findings regarding the parties\u2019 tumultuous relationship, which, as in Diehl, merely support the trial court\u2019s conclusion to award primary physical custody to plaintiff. Moreover, the trial court did not even make findings that this Court held to be insufficient on their own in Diehl, regarding inability to communicate, and av\u00e1ilability to consent. Accordingly, we reverse the trial court\u2019s ruling regarding the decision-making and remand for further proceedings regarding the issue of joint legal custody. On remand, the trial court may allocate decision-making authority between the parties again; however, were the court to do- so, it must set out specific findings as to why deviation from \u201cpure\u201d joint legal custody is necessary. Those findings must detail why a deviation form \u201cpure\u201d joint legal custody is in the best interest of the children. As an example, past disagreements between the parties regarding matters affecting the children, such as where they would attend school or church, would be sufficient, but mere findings that the parties have a tumultuous relationship would not.\nWe also address defendant\u2019s arguments concerning the use of a parenting coordinator to decide disputes that are unresolvable by the parties. Defendant argues that the trial court failed to follow the statutory mandates required before a parenting coordinator may be appointed. We agree.\nN.C. Gen. Stat. \u00a7 50-90 (2005) sets forth the statutory authority for parenting coordinators and defines the terms. Under N.C. Gen. Stat. \u00a7 50-91(b) (2005), a parenting coordinator may be appointed when \u201cthe [trial] court . . . makes specific findings [I] that the action is a high-conflict case, [2] that the appointment of the parenting coordinator is in the best interests of any minor child in the case, and [3] that the parties are able to pay for the cost of the parenting coordinator.\u201d Although there was evidence presented regarding all three issues, the trial court did not make specific findings as to each. Accordingly, upon remand, if the trial court decides the use of a parenting coordinator is appropriate, the findings required by N.C. Gen. Stat. \u00a7 50-91 must be made.\nIII.\nIn summary, we hold that the trial court did not abuse its discretion in awarding primary physical custody to plaintiff. We also find no error with the trial court\u2019s \u201cbest interest\u201d determination. Finally, we reverse and remand the trial court\u2019s order regarding the decision-making authority between the parties.\nAffirmed in part, reversed and remanded in part.\nJudges CALABRIA and STROUD concur.\n. Plaintiff described the \u201cbody slam[s]\u201d as an altercation in which defendant would invade her physical space as they were passing through a doorway wide enough for two people. Instead of making room for plaintiff, defendant would \u201cbody\u201d her out of the way. She also testified that defendant would physically hold her down on the bed so that she could not move when he was angry with her.\n. Defendant spends a significant portion of Ms brief devoted to the trial court\u2019s finding as to which party was the primary care giver. Defendant argues .that the trial court erred in determining that the mother was the primary care giver. Although defendant has not established how such a determination would require a remand, he has also grossly mischaracterized the trial court\u2019s finding on that issue. Specifically, the trial court found that during a six month period of time after Christiana\u2019s birth, the parties shared care taking responsibilities. The trial court found that when they were not sharing or rotating responsibilities, plaintiff \u201cwas the primary caregiver the rest of the time.\u201d TMs is not, as defendant contends, a finding that plaintiff was the primary caregiver of both cMldren at all times.\n. There is no presumption in favor of joint custody; however, it must be considered by the trial court upon the request of either parent. N.C. Gen. Stat. \u00a7 50-13.2(a). Thus, the trial court may grant legal custody only to one party, joint custody to both, or, if proper findings are made, joint legal custody with a split in decision-making authority.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Wake Family Law Group, by Julianne Booth Rothert and Marc W. Sokol, for plaintiff-appellee.", "Kristoff Law Offices, P.A., by Sharon H. Kristoff, for defendant-appellant." ], "corrections": "", "head_matter": "RONNI RENEE HALL, Plaintiff v. STEVEN HAROLD HALL, Defendant\nNo. COA07-624\n(Filed 5 February 2008)\n1. Child Custody, Support, and Visitation\u2014 custody \u2014 findings\nThe trial court did not abuse its discretion in a divorce action by awarding primary physical custody of the children to plaintiff mother. The court is required to order custody to the person who will best promote the interest and welfare of the children and must consider all relevant factors, but need only find those facts which are material. Here, the findings challenged by defendant are supported by competent evidence.\n2. Child Support, Custody, and Visitation\u2014 custody \u2014 best interest of the children\nThe trial court did not abuse its discretion in a child custody action in determining the best interest of the children. Even if the trial court erred in making challenged findings of fact, the court\u2019s conclusion regarding the best interest of the children is supported by sufficient findings of fact.\n3. Child Support, Custody, and Visitation\u2014 custody \u2014 decision-making responsibilities divided \u2014 findings required\nThe trial court erred when determining the custody of the children in a divorce action in its division of decision-making responsibilities. The court made no findings that a split in decision-making was warranted; on remand, the court may allocate decision-making authority between the parties, but must set out specific findings as to why deviation from pure joint legal custody is necessary.\n4. Child Support, Custody, and Visitation\u2014 custody \u2014 parenting coordinator\nThe trial court in a divorce action did not follow the statutory mandates required before a parenting coordinator may be appointed to decide disputes concerning the children. The findings required by N.C.G.S. \u00a7 50-91 must be made.\nAppeal by defendant from an order entered 3 August 2006 by Judge Joyce A. Hamilton in Wake County District Court. Heard in the Court of Appeals 28 November 2007.\nWake Family Law Group, by Julianne Booth Rothert and Marc W. Sokol, for plaintiff-appellee.\nKristoff Law Offices, P.A., by Sharon H. Kristoff, for defendant-appellant." }, "file_name": "0527-01", "first_page_order": 557, "last_page_order": 566 }