Walker v. Walker

247 S.E.2d 615 (1978)

38 N.C. App. 226

Margaret WALKER v. Thomas J. WALKER.

No. 7715DC1009.

Court of Appeals of North Carolina.

October 3, 1978.

Latham, Wood & Balog, by James F. Latham, Burlington, for plaintiff-appellee.

Ross & Dodge, by Barton M. Menser, Graham, for defendant-appellant.

MARTIN, Judge.

Defendant objected to the admission of plaintiff's affidavit. Defendant's first and second assignments of error depend upon the correctness of this ruling. The first assignment of error is based upon the court's ruling in admitting the affidavit.

*616 The second challenges the findings of fact and conclusions of law in the court's judgment for the reason there is no evidence to support them other than plaintiff's affidavit. On this question, counsel for plaintiff and defendant rely upon In re Custody of Griffin, 6 N.C.App. 375, 170 S.E.2d 84 (1969). In Griffin, twenty-one affidavits were offered and the record does not disclose that these affiants were present in court. This Court held affidavits should not be received where there was a timely objection and the objecting party will be deprived of his right of cross-examination of the affiant. The Court further stated that upon objection affidavits should not be received without affording an opportunity for cross-examination.

Defendant in his brief states that plaintiff affiant was present for the hearing. He further states she was not made available to him for cross-examination. We do not conclude from Griffin, supra, that upon such objection the offering party must tender the affiant for cross-examination when the affiant is present in open court to the knowledge of the objecting party. By his failure to call affiant for cross-examination, defendant waived this right.

Defendant further contends the affidavit contains material irrelevant to the question of child support and prejudicial to defendant. Where it sits without a jury, the trial court is able to eliminate immaterial and incompetent testimony. It is presumed the court did so. 1 Stansbury's N.C. Evidence (Brandis Revision, 1973), § 4a. There is nothing in the record before us to indicate the experienced trial judge was influenced by incompetent evidence in his judgment. Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668 (1958).

Defendant's first and second assignments of error are overruled.

Defendant next contends error in determining the amount of child support. He asserts the court abused its discretion in applying G.S. 50-13.4(c) by failing to consider the estate, earnings, conditions and accustomed standard of living of the defendant. The determination of child support must be done in such way to result in fairness to all parties. Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976). The trial court found defendant earned salary of approximately $16,335.00 per year and also received reimbursement for lodging, food, telephone, and other expenses when travelling for his employer. His employer also provided an automobile and reimbursement for expenses in the use of it for business purposes. The court required defendant to pay mortgage payments of $243.00 per month, including taxes and insurance, and $250.00 monthly child support, and hospitalization insurance, medical and dental expenses of his minor child. The court allowed defendant possession of certain personal and household property and reviewed the financial requirements of the defendant. We find that the court complied with G.S. 50-13.4(c) and Beall. The assignment of error is overruled.

Defendant assigns as error the order of the court requiring defendant to pay partial attorney fees to plaintiff's counsel. Defendant contends the court failed to find facts as required by G.S. 50-13.6. This statute requires in a child support action a finding that defendant refused to provide support. Here, plaintiff sues for alimony, custody, and support. Plaintiff did not abandon her claim for custody of Tonya, and although plaintiff and defendant agreed plaintiff was a fit person to have custody, this was a matter for the court to decide. The court adjudicated the question of custody. In an action for custody and support, findings of fact are not required to sustain an award for counsel fees. Stanback v. Stanback, 287 N.C. 448, 215 S.E.2d 30 (1975); Goodson v. Goodson, 32 N.C.App. 76, 231 S.E.2d 178 (1977). There is ample evidence to support the trial court's order for counsel fees. The assignment is overruled.

The judgment appealed from is

Affirmed.

BROCK, C. J., and CLARK, J., concur.