Story v. Story

291 S.E.2d 923 (1982)

Lynda Warskow STORY v. Richard Darrell STORY.

No. 8126DC714.

Court of Appeals of North Carolina.

June 1, 1982.

*926 Reginald L. Yates, Charlotte, for defendant appellant.

James V. Campbell, II, Charlotte, for plaintiff appellee.

BECTON, Judge.

Defendant excepts and assigns error to the award of custody, both temporary and permanent, and child support, in the form of sequestration of the home, to plaintiff. We address the dispositive issues.

We agree with the trial court's award of temporary custody to plaintiff; however, that award cannot be sustained on the basis of Chapter 50B of the North Carolina General Statutes. This Chapter authorizes the district courts to enter such temporary orders as may be necessary to protect a spouse or a minor child from domestic violence. G.S. 50B-3(a)(2) and (4) provide that such protective orders may grant possession of the residence to a spouse, award temporary custody of minor children and order either party to make payments for the support of the minor children. These provisions are not applicable to the present case because Chapter 50B did not become effective until 1 October 1979 and applies only to acts of domestic violence occurring on or after that date. The acts of violence alleged in plaintiff's Complaint all occurred prior to its filing in June 1979.

We sustain the award of temporary custody under other statutory provisionsG.S. 50-13.5(c)(2) and (d)(2)which give the district courts jurisdiction to enter temporary custody and support orders for minor children. Such temporary orders may even be entered ex parte and prior to service of process or notice. Brandon v. Brandon, 10 N.C.App. 457, 179 S.E.2d 177 (1971). Affidavits may be used as a basis for such temporary orders. In Re Custody of Griffin, 6 N.C.App. 375, 170 S.E.2d 84 (1969).

In the present case, the trial court had before it plaintiff's verified Complaint and verified Answer to defendant's Counterclaim setting forth facts sufficient to support the trial court's conclusion that the best interests of the child would be served by placing temporary custody of the child with plaintiff. Defendant's Answer and Counterclaim, on the other hand, were unverified, and defendant had failed to respond to plaintiff's discovery efforts. Although it would have been better for the court to set out specific findings of fact, rather than simply stating that the order was based upon a consideration of the record before it, we nevertheless affirm the award of temporary custody in view of the court's conclusion, based upon and supported by that record, that the best interests of the child would be served by placing temporary custody with plaintiff. Cf. MacKenzie v. MacKenzie, 21 N.C.App. 403, 204 S.E.2d 561 (1974) (trial court may exercise jurisdiction to award temporary custody only and defer to another state court's determination of permanent custody).

While the findings of the trial court are sufficient to support an order of temporary custody, they are not sufficient to support an order of permanent custody. The law is clear in this State that a judgment awarding permanent custody must contain findings of fact in support of the required conclusion of law that custody has been awarded to the person who will best promote the interest and welfare of the child. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26 (1977). "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." Steele v. Steele, 36 N.C.App. 601, 604, 244 S.E.2d 466, 468 (1978). Further, an award of permanent custody may not be based upon affidavits. In Re Griffin. Although plaintiff's verified Complaint alleged facts which tended to show that plaintiff is a fit and proper person to have permanent custody of the child, a more reliable form of evidence would have been plaintiff's sworn testimony, subject to cross examination by defendant's attorney. Such testimony was particularly necessary in this case in view of plaintiff's admission, in her Answer to defendant's Counterclaim, to past acts of erratic and emotional behavior on her part. The trial court erred in failing to hear any testimony in the matter and in failing to make any findings of fact to sustain its conclusion that the best interests and welfare of the child would be served by granting permanent custody to plaintiff.

Plaintiff argues in her brief that no findings of fact were required to support the custody award because it was entered in conjunction with the trial court's order for sanctions against defendant. Plaintiff relies upon G.S. 1A-1, Rule 37(b)(2) which empowers a trial judge, as a sanction for a party's failure to make discovery, to take as established those facts which the party failed to disclose, to refuse to allow the disobedient party to oppose designated claims, to dismiss the proceeding or any part thereof and to render a judgment by default against the disobedient party. Plaintiff contends that because defendant's failure to respond to discovery or to be present at the custody hearing precluded any inquiry into his fitness for custody, his financial ability or the needs of the child, the trial court properly dismissed defendant's counterclaim for custody, refused to allow defendant to oppose plaintiff's claim for custody, and awarded custody to plaintiff. We cannot agree with this argument. Even if the trial court exercised the Rule 37 options alleged by plaintiff, the paramount question of the best interests of the child remained unanswered. Dismissing defendant's counterclaim for custody and refusing to allow him to oppose plaintiff's custody claim did not resolve the issue of plaintiff's fitness to have custody or obviate the need for a hearing and findings of fact on that issue. Cf. Bowes v. Bowes, 43 N.C.App. 586, 259 S.E.2d 389 (1979), disc. rev. denied, 299 N.C. 120, 262 S.E.2d 5 (1980) (sufficient findings of fact made to support increase in alimony to plaintiff following entry of default against defendant for failure to respond to plaintiff's request for admissions).

This Cause is remanded for the trial court's reconsideration of the issue of permanent custody. Pending the trial court's appropriate disposition of permanent custody, that portion of the order awarding temporary custody is affirmed. The judgment below is

Affirmed in part, modified in part, and remanded.

WELLS and HILL, JJ., concur.