Opinion
No. COA10-1243
Filed 21 June 2011 This case not for publication
Appeal by plaintiff from orders entered 3 June 2010 by Judge Meredith A. Shuford in Cleveland County Superior Court. Heard in the Court of Appeals 13 April 2011.
Bradley E. Howe for plaintiff-appellant. No appellee brief filed.
Cleveland County No. 09 CVD 1971.
Where the denial of plaintiff's Rule 60 motion was based on evidence presented at the temporary custody hearing, the trial court judge did not err by recusing herself after denying plaintiff's motion. Where defendant's counsel advocated for her client during the hearing on plaintiff's motion to recuse and Rule 60 motion, defendant's counsel's comments did not amount to hearsay. Where the trial court's findings of fact in the order denying plaintiff's Rule 60 motion were supported by competent evidence, plaintiff's argument has no merit. Where the trial court's conclusions of law are supported by its findings of fact, the order of the trial court is affirmed.
Facts and Procedural History
Bradley E. Howe (plaintiff) and Correna Christine Howe (defendant) were married on 23 June 2007 and have a minor child together. On 5 August 2009, plaintiff filed a complaint alleging that defendant left their marital residence with their minor child on 10 May 2009. Plaintiff sought custody, post separation support, and medical coverage and requested, among other things, that he be granted joint custody of their minor child. On 25 August 2009, defendant filed an answer and counterclaim, requesting permanent primary custody of their minor child and equitable distribution. Defendant also filed a motion for an expedited hearing to determine the custody of their minor child.
Following a 3 September 2009 hearing on defendant's motion for an expedited hearing, the trial court entered a temporary order granting defendant primary custody of the minor child and granting plaintiff visitation with the minor child. In February 2010, plaintiff also filed a motion for relief from judgment or order pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b) requesting that the 3 September 2009 custody order be set aside due to Judge Shuford's prejudicial gender bias. In April 2010, plaintiff also filed a motion to recuse Judge Shuford, stating that
[t]he Plaintiff fears and believes that he has not nor will not receive a fair and impartial hearing and determination of any and all matters concerning the above cause in court if the cause is heard and determined by the Honorable Meredith A. Shuford one of the judges of this court, because of her prejudicial derogatory gender slurs with the Bailiff in reference to the Plaintiff after her ruling on the MOTION FOR EXPEDITED CUSTODY HEARING on 3 September 2009[.]
Plaintiff alleged that during the 3 September hearing, the following exchange occurred between the bailiff and Judge Shuford, which was noted on audio transcripts and later transcribed:
Bailiff: Was I reading that guy wrong? He's very dumb very [pauses] to you?
Judge Shuford: Yes [laughing] he is cree-eepy [emphasis on creepy]
Bailiff: I wouldn't trust him with my dog, much less my child.
Judge Shuford: I, I think — the way he talked about himself in the third person the whole time [laughter].
In June 2010, Judge Shuford entered an order finding the following, in pertinent part:
It further appearing to the Court that in the transcript there is a showing that the undersigned [(Judge Shuford)], after the full hearing on [3 September 2009] and following the dictation of the Order of Temporary Custody, the undersigned referred to the Plaintiff as being "creepy." . . .
The Court further finds that although the statement concerning the Plaintiff is in the record, such statement is not an opinion of the Plaintiff which preceded the hearing of the matter, and therefore, the opinion formed by the undersigned was after a full hearing of the facts of the case and making a decision in the best interest of the child involved.
That the Order entered by the Court gave the Plaintiff reasonable and standard visitations with the child which were appropriate and fitting to the evidence heard by the undersigned . . .
The Order entered herein is a Temporary Order and a full custody hearing is still available to the parties.
The trial court denied plaintiff's Rule 60 motion stating "that there was no just cause shown for relief" and that "[b]ased upon fairness and the administration of justice as to further proceedings in this matter the undersigned does recuse herself from participation in any and all other litigation between these parties." From this order, plaintiff appeals.
On appeal, plaintiff raises the following four issues: whether the trial court erred (I) by ruling on plaintiff's Rule 60 motion when Judge Shuford had recused herself; (II) by admitting a hearsay statement from defendant's attorney as to the thoughts and state of mind of Judge Shuford at the time of ruling on the temporary custody order; (III) by making findings of fact that were not supported by competent evidence; and (IV) by concluding that there was no just cause shown for relief from the operation of the temporary custody order.
I
Plaintiff first argues that it was error for Judge Shuford to rule upon plaintiff's Rule 60 motion after she had recused herself. Plaintiff contends that once Judge Shuford granted plaintiff's motion to recuse, she was disqualified from further proceedings pursuant to Canon 3(c)(1) and 3(c)(ii) of the North Carolina Code of Judicial Conduct.
Under N.C. Gen. Stat. 15A-1223(b) "[a] judge, on motion of the State or the defendant, must disqualify himself from presiding over a criminal trial or other criminal proceeding if he is: (1) [p]rejudiced against the moving party or in favor of the adverse party[.]" The Code of Judicial Conduct provides that:
[o]n motion of any party, a judge should disqualify himself/herself in a proceeding in which the judge's impartiality may reasonably be questioned, including but not limited to instances where . . . [t]he judge has a personal bias or prejudice concerning a party.
Code of Judicial Conduct, Canon 3(C)(2010).
After Judge Shuford ruled to deny plaintiff's Rule 60 Motion, Judge Shuford considered plaintiff's motion to recuse and concluded that "in full fairness and in the interest of justice the undersigned elects to recuse herself from any other and further proceedings in this matter." Judge Shuford made the following finding of fact:
that although the statement concerning the Plaintiff is in the record, such statement is not an opinion of the Plaintiff which preceded the hearing of the matter, and therefore, the opinion formed by the undersigned was after a full hearing of the facts of the case and making a decision in the best interest of the child involved.
Under Rule 60 of the North Carolina Rules of Civil Procedure "[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding" for reasons such as mistake, newly discovered evidence, or "any other reason justifying relief from the operation of the judgment." N.C. Gen. Stat. § 1A-1, Rule 60 (2009). "[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." McKyer v. McKyer, 182 N.C. App. 456, 459, 642 S.E.2d 527, 529-30 (quoting Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975)).
In the instant case, plaintiff's argument notwithstanding, we do not discern any evidence that Judge Shuford's custody decision was prejudiced against a party or that her impartiality was questionable at the time the custody order was entered. The trial court found that the temporary custody order "gave the Plaintiff reasonable and standard visitations with the child which were appropriate and fitting to the evidence heard by [the trial court]" and the evidence in the record supports this finding. Therefore, based on a careful review of the record, we hold that Judge Shuford's denial of plaintiff's Rule 60 Motion was not an abuse of discretion or "so arbitrary that it could not have been the result of a reasoned decision." Crocker v. Roethling, 363 N.C. 140, 163, 675 S.E.2d 625, 641 (2009) (citation omitted).
II
In plaintiff's second argument, he contends that at the 3 September 2009 hearing, defendant's attorney made a statement "as to the state of mind of [J]udge Shuford at the time of ruling [that] amounted to testimony by proxy as to Judge Shuford's thoughts, reasoning and state of mind that were within her own knowledge of the Plaintiff at the time she rendered her judgment[,]" and is therefore, considered hearsay. Plaintiff's argument is without merit.
On 17 May 2010, Judge Shuford heard plaintiff's Motion to Recuse and Rule 60 Motion. During the hearing, plaintiff argues that defendant's counsel committed hearsay during the following exchange between defendant's counsel and the trial court:
[Defendant's counsel]: Your honor I, I would not um, have any argument about recusal however, on setting the order aside I do have because there's no evidence before this court that you had any prior knowledge of this man, that you have had any contact with him, his record, his reputation, of anything you knew about him proceeding this trial we had . . . I would argue that any opinion that you formed of him or any remarks you made about the case were made and formed during what your [sic] seeing and hearing from the . . . presentation of the evidence, the demeanor of the witnesses, the attitude of the witnesses etcetera. So your, if you have any prejudice it was not before the fact but was developed in the course of hearing evidence. . . .
You [sic] opinions if any were formed on what you saw and heard observed with your own eyes and the evidence that was enlisted from the witnesses and after that fact you had to have an opinion about. You, you had to form an opinion about the person, about the circumstances and about the safety of the child. . . .
I would ask you not to set the order aside. It's not based on anything you came into this courtroom, any pre existing attitude, it's what you heard from the bench at the time.
"Hearsay" is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2009) (emphasis added). Defendant's counsel was not testifying at this hearing, but merely advocating his client's position requesting the court to deny plaintiff's motion for recusal. Defendant's counsel's statement does not constitute hearsay and plaintiff's argument is overruled.
III
Plaintiff contends several findings of fact made by the trial court in the June 2010 order were not supported by competent admissible evidence.
"If the court's factual findings are supported by competent evidence, they are conclusive on appeal, even though there is evidence to the contrary. In reviewing the court's factual findings, we `presume[] that the judge disregarded any incompetent evidence.'" Lagies v. Myers, 142 N.C. App. 239, 246-7, 542 S.E.2d 336, 341 (2001) (citations omitted).
Plaintiff first contends that there was no competent evidence supporting the trial court's finding regarding the effect of Judge Shuford's reference to plaintiff as being "creepy." The trial court's finding of fact was stated as follows:
The Court further finds that although the statement concerning the Plaintiff is in the record, such statement is not an opinion of the Plaintiff which preceded the hearing of the matter, and therefore the opinion formed by [Judge Shuford] was after a full hearing of the facts of the case and making a decision in the best interest of the child involved.
After careful review of the record, we hold that Plaintiff's argument is without merit.
During a 17 May 2010 hearing on plaintiff's motion to recuse and Rule 60 motion, Judge Shuford stated the following, in pertinent part:
[I]t is clear to me my decision regarding placing the primary custody with the mother and granting [plaintiff] visitation was based upon the actions of the parties prior to the separation regarding care for the child, . . . the actions of [plaintiff] and taking the child from [defendant] at a public park and keeping . . . the child from defendant. As well as . . . the allegations regarding the conditions of the home when the parties were all living together and . . . the evidence that was presented regarding [plaintiff's] refusal to obtain proper plumbing[.]
The trial court's finding that the temporary custody order was made subsequent to a full hearing on the case and was based on the best interest of the child, was supported by the evidence in the record. As such, this finding is conclusive on appeal.
Plaintiff next argues that it was error for the trial court to find it gave plaintiff "reasonable and standard visitations with the child which were appropriate and fitting to the evidence heard by [Judge Shuford] which included weekend visitations and such other time as the parties may agree." Plaintiff takes the literal meaning of this finding and argues that he is unable to find under statutes governing custody and visitation, any "standard of visitation appropriate to a set of evidence." His argument is misplaced.
The word "standard" is defined as "[a] model accepted as correct by custom, consent, or authority" or "[a] criterion for measuring acceptability, quality, or accuracy." Black's Law Dictionary, 7th edition (p. 1412-13). "Any order for custody shall include such terms, including visitation, as will best promote the interest and welfare of the child." N.C.G.S. § 50-13.2(b) (2009). Before entering the temporary custody order, the trial court heard competent evidence to support allowing defendant to have primary custody of the minor child from May to August 2009. The trial court also found that during this time period, plaintiff had visitation rights that were consistent with prior occasions based on an agreement the parties had arranged at an earlier time. Based on evidence provided at the hearing, the trial court determined "[that] it would be in the best interest of the minor child, . . . that the minor child be placed in the primary care, custody and control of the Defendant with the Plaintiff having certain times of visitation with the child[.]" Because we find plaintiff's argument to be without merit, it is overruled.
Plaintiff challenges the trial court's intervention when it sua sponte disallowed a question by plaintiff by stating "that question . . . draws [] a legal conclusion, you don't have to answer." Plaintiff argues, without any authority in support of his proposition that, the trial court's intervention was "improper and an injustice[.]" However, the trial judge has a "paramount duty . . . to supervise and control the course of a trial so as to prevent injustice. In discharging this duty, the court possesses broad discretionary powers sufficient to meet the circumstances of each case." State v. Ward, 364 N.C. 157, 165, 694 S.E.2d 729, 733-34 (2010) (citation omitted). "A trial judge is clothed with the inherent authority and discretion to supervise and control a trial because of his learning and integrity, and because of the superior knowledge which his presence at the participation in the trial gives him over any other forum." Id. at 165, 694 S.E.2d at 734. Because the trial court acted within its inherent authority to prohibit improper questions, plaintiff's argument is overruled.
Last, plaintiff argues that the trial court erred by finding "there has not been a sufficient reason justifying relief from operation of the Order entered in this matter [under Rule 60.]" As previously stated, Rule 60 provides that "[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding" for reasons such as mistake, newly discovered evidence, or "any other reason justifying relief from the operation of the judgment." N.C.G.S. § 1A-1, Rule 60. Plaintiff's Rule 60 motion alleged that Judge Shuford's "prejudicial gender bias" affected her ruling. However, because we have held the court's finding that the statement regarding plaintiff as "creepy" was not an opinion of plaintiff that preceded the custody hearing, and that its temporary custody order made subsequent to a full hearing on the case and in consideration of the best interests of the minor child was conclusive on appeal, we also hold that there was competent evidence to support the trial court's findings and conclusion to deny plaintiff's Rule 60 Motion. Accordingly, plaintiff's arguments must fail.
IV
In plaintiff's final argument on appeal, he contends that the trial court's conclusions of law are unsupported by its findings of fact and that the denial of plaintiff's Rule 60 motion was in error. Specifically, plaintiff attempts to incorporate all his arguments discussed in I, II, and III and contends that "there exists no competent findings of fact in this matter to support denial of the Plaintiff's [Rule 60] motion for relief."
"The standard of review on appeal . . . is whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment." Curran v. Barefoot, 183 N.C. App. 331, 334, 645 S.E.2d 187, 190 (2007) (citation omitted). "When competent evidence supports the trial court's findings of fact and the findings of fact support its conclusions of law, the judgment should be affirmed in the absence of an error of law." Id. "In the absence of a specific assignment of error, a trial court's findings of fact are deemed to be supported by competent evidence and are conclusive on appeal." In re L.O.K., 174 N.C. App. 426, 428, 621 S.E.2d 236, 238 (2005) (citation omitted).
We held above that there was competent evidence to support the finding by the trial court that the statement made by Judge Shuford referring to plaintiff as "creepy" was not an opinion that preceded the temporary custody hearing and that the temporary order was made based on the facts of the case presented at the hearing. This finding is deemed to be conclusive on appeal. Because plaintiff based his Rule 60 Motion on Judge Shuford's supposed "prejudicial gender bias," his argument is necessarily overruled. The trial court did not err by denying his Rule 60 Motion because there is no reason "justifying relief from the operation of the judgment." N.C.G.S. § 1A-1, Rule 60. For the foregoing reasons, the trial court's order is affirmed.
Affirmed.
Judges HUNTER, ROBERT C. and MCCULLOUGH concur.
Report per rule 30(e).