Opinion
No. 04-413.
Filed January 3, 2006.
Davidson County No. 01 CVD 1473.
Appeal by defendant from order entered 22 July 2003 by Judge Ted Royster in Davidson County District Court. Heard in the Court of Appeals 16 February 2005.
Cunningham Crump, P.L.L.C., by R. Flint Crump, for plaintiff-appellee. David A. Perez for defendant-appellant.
Defendant Amy Lyn Kilian appeals from the trial court's Permanent Custody Order, granting joint custody of the parties' minor child to defendant and plaintiff Ricky Leonard Kilian. Defendant's arguments on appeal are founded almost entirely on defendant's contention that the trial court should have found her evidence more credible than that of plaintiff. Because we may not reweigh the evidence on appeal and the trial court's findings of fact are binding if supported by competent evidence, we affirm. We do not, however, address defendant's arguments regarding the trial court's award of custody during the summer of 2003 as that issue is now moot.
Facts
Plaintiff and defendant married on 7 September 1991, separated on 4 February 2000, and divorced on 14 August 2001. On 16 May 2001, plaintiff filed a complaint seeking joint custody of the parties' minor child and alleging that defendant was unreasonably denying him access to the child. On 26 June 2001, defendant filed an answer and counterclaim seeking sole custody of the child and denying plaintiff's allegations.
On 6 August 2001, the trial court entered an Order for Temporary Visitation and Support, awarding plaintiff temporary visitation with the child every other weekend and at such other times as could be mutually agreed upon by the parties. On 4 November 2002, the trial court entered a second order that modified the terms of the 2001 Temporary Visitation and Support Order to provide that the parties would share temporary physical custody on a week-to-week basis during the summer months beginning 2 June 2002.
The hearing on permanent custody was held on 10 June 2003 and the court entered a Permanent Custody Order on 22 July 2003. Among its 49 findings of fact, the court found that defendant had attempted to alienate the child from plaintiff, had unreasonably restricted plaintiff from visitation with the child, did not inform plaintiff of her intention to move to Iredell County, and unilaterally enrolled the child in daycare as part of that move. Based on its findings, the court concluded that both plaintiff and defendant were fit and proper persons to have custody of the child. The trial court further concluded that the child's best interests would be served by placing her in the joint care, custody, and control of plaintiff and defendant. Defendant timely filed a notice of appeal from this order on 20 August 2003.
I
Defendant first assigns error to the admission into evidence of a photocopied application to the Triplett Child Care Development Center in Iredell County. Plaintiff offered the application as evidence of parental alienation and to support his contention that defendant had moved to Iredell County and had enrolled the child in daycare without his knowledge. The application to enroll the parties' child in the child care facility (1) did not list plaintiff's name as a parent, but rather listed defendant's new husband as the child's father/guardian; and (2) was dated 14 May 2001, at a time when plaintiff contended he knew nothing about defendant moving. The trial court admitted the application into evidence, but limited its use to proving parental alienation. Defendant argues that admission of the photocopy violated the "best evidence rule."
Rule 1002 of the Rules of Evidence, familiarly known as the "best evidence rule," provides that "[t]o prove the content of a writing . . ., the original writing . . . is required except as otherwise provided in these rules or by statute." Rule 1003, however, specifies that "[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." A "duplicate" includes a photocopy. N.C.R. Evid. 1001(4).
Since defendant does not argue that admission of the photocopy was unfair under the circumstances, the photocopied application was inadmissible under Rules 1002 and 1003 only if there was a genuine question raised as to the authenticity of the original. We note that the trial court conditioned admission of the application on a later determination of authenticity. At no time, however, did defendant challenge the original application's authenticity. During defendant's testimony, she identified her own signature on the photocopied application and explained how and why her husband's name appeared in the space provided for the child's father/guardian. Since the exceptions to Rule 1003 do not apply, the trial court did not err in admitting the photocopied application.
II
Defendant next challenges four of the trial court's findings of fact as unsupported by the evidence presented at trial:
10. On May 26, 2001, the Defendant moved to Mooresville, Iredell County, North Carolina with the minor child. The Defendant did not inform the Plaintiff of her intention to move to Iredell County and subsequent to that move, the Defendant unilaterally enrolled the minor child in daycare. The Defendant listed her then boyfriend, Brittan Stepanek, as the Father/Guardian on the daycare application dated May 14, 2001. Mr. Stepanek was neither the father nor the guardian of the minor child and the Plaintiff/biological father's name was not listed anywhere on the application.
11. Despite the Court's order dated April 29, 2002 which granted one half of the Summer months in 2002 to the Plaintiff, the Defendant unreasonably restricted the Plaintiff from the minor child. The Defendant refused to allow the Plaintiff his visitation because the Plaintiff did not provide the Defendant with the phone number to the minor child's daycare provider even though the Defendant had the Plaintiff's home phone number, cell phone number and work number. The Defendant has also unreasonably restricted the Plaintiff's visitation by stating that he could not have the minor child on days he had to work during his court ordered time.
. . . .
37. The Court finds that although the Defendant is a fit and proper person to have primary physical custody of the minor child, through her actions she has attempted to alienate the minor child from her father, the Plaintiff.
. . . .
39. The minor child has spent the majority of her time with the Defendant, but this fact is primarily due to the Defendant denying the Plaintiff access to the child. The Court feels it could possibly be traumatic to the minor child if her current schedule is abruptly and drastically changed.
A trial court is given broad discretion in child custody matters and its findings of fact will be upheld if supported by substantial evidence. Shipman v. Shipman, 357 N.C. 471, 474-75, 586 S.E.2d 250, 253-54 (2003). "Substantial evidence" is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. at 475, 586 S.E.2d at 254.
Each of the above findings of fact is supported by evidence offered by plaintiff. Defendant argues, however, that the trial court erred in overlooking her testimony, in finding the plaintiff's testimony more credible, or in failing to accept her assessment of her actions as reasonable. These arguments go to questions of the weight to be afforded evidence and evaluations of credibility — questions that rest solely within the province of the trial judge. Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994). "The fact that the trial judge believed one party's testimony over that of the other and made findings in accordance with that testimony does not provide a basis for reversal in this Court." Woncik v. Woncik, 82 N.C. App. 244, 248, 346 S.E.2d 277, 279 (1986).
Because each of the above findings of fact is supported by competent evidence, those findings are binding on appeal even though defendant may have offered evidence to the contrary.
III
Finally, defendant argues that the trial court abused its discretion in ordering that the child be placed immediately in the physical custody of plaintiff for the entire summer of 2003, without allowing defendant any visitation with the child during that time. Defendant contends that the order was both punitive and contrary to the best interest of the child.
We decline to address this issue because it is now moot. This portion of the trial court's order applied only to the summer of 2003. Beginning in the summer of 2004 and continuing for each summer thereafter, the order granted plaintiff custody of the child with visitation granted to defendant every other weekend. Defendant does not challenge those provisions for the summer. As a result, any ruling that this Court might make regarding the summer of 2003 arrangements would be entirely academic. Since defendant has offered no argument why this issue is not moot, we decline to address this assignment of error. See Woncik, 82 N.C. App. at 249, 346 S.E.2d at 281 (holding that an appeal from an order terminating visitation privileges pending a hearing was moot because the hearing had been held and privileges restored); Smithwick v. Frame, 62 N.C. App. 387, 391, 303 S.E.2d 217, 220 (1983) (declining to review a temporary custody order rendered moot by entry of a permanent custody order).
Affirmed.
Judges McGEE and TYSON concur.
Report per Rule 30(e).