Opinion
No. COA12–733.
2013-05-7
Sandi Hill ODUGBA, Plaintiff, v. Edwin Egbegbemi ODUGBA, Defendant.
Edwin Egbegbemi Odugba, pro se. No appellee brief filed.
Appeal by defendant from judgment entered 17 October 2011 by Judge James A. Jackson in Gaston County Superior Court. Heard in the Court of Appeals 28 November 2012. Edwin Egbegbemi Odugba, pro se. No appellee brief filed.
BRYANT, Judge.
Where the trial court's findings of fact on key issues were mere recitations of witness testimony, we reverse and remand this matter to the trial court for proceedings not inconsistent with this opinion.
Facts and Procedural History
Plaintiff Sandi Hill Odugba and defendant Edwin Egbegbemi Ogduba were married on 23 June 1993 and separated on 12 October 2009. The parties had seven children. Plaintiff filed a complaint against defendant for child custody and child support; plaintiff also filed a motion for ex parte emergency temporary custody alleging that defendant posed a substantial risk of harm to the minor children. The trial court entered an emergency temporary custody order granting plaintiff the exclusive temporary care, custody, and control of the minor children. The trial court thereafter entered an order awarding temporary joint legal custody to both parties and awarding plaintiff temporary primary physical custody of the minor children.
On 18 March 2010, plaintiff filed another motion for ex parte emergency temporary custody, asking the trial court to award her sole legal custody of the minor children and to suspend defendant's court-ordered visitation. The trial court entered an emergency temporary custody order, finding that the “children were increasingly distressed after visitation with [defendant]” and that a NC Safety Assessment by the Gaston County Department of Social Services (DSS) found that defendant exhibited extreme verbal and physical abuse and exhibited hostile outbursts toward the children, that the children were fearful of defendant, and that there were reports of possible sexual abuse by defendant. The 18 March 2010 order granted plaintiff exclusive temporary care, custody, and control of the minor children, gave legal custody to plaintiff, suspended defendant's visitation with the minor children until further notice, ordered defendant to “not go about, assault, threaten, molest, harass, interfere with or bother the Plaintiff or the minor children in any way,” and prohibited defendant from going on the premises of plaintiff and minor children.
A hearing was held on 30 April 2010 for defendant to show cause, if any, why the temporary relief sought in plaintiff's emergency temporary custody order should not be continued pending the trial of this case. Although defendant had notice of the date and time of the hearing, defendant was not present. The trial court found that DSS' investigation of defendant regarding allegations of abuse and/or neglect was not complete and that defendant had not cooperated with DSS or acted in good faith during their investigation. Accordingly, on 6 May 2010, the trial court entered an order granting plaintiff full temporary physical and legal custody of the minor children to remain in effect until defendant fully cooperated with DSS.
On 4 August 2010, defendant filed a motion for visitation. Defendant also filed numerous other motions including a motion and order to examine and produce his DSS file, a motion for contempt against plaintiff and her attorney, and a motion for independent psychological examination of his minor children.
The trial court entered an order finding that Mecklenburg County DSS testified that based on the recommendations of the children's therapists, Mecklenburg DSS continued to recommend no contact between defendant and the minor children. The trial court ordered that there be no visitation or contact between the minor children and defendant until a 15 November 2010 hearing.
Following the 15 November 2010 hearing, defendant was granted supervised visitation and plaintiff retained full temporary physical and legal custody of the minor children. This order was to remain in effect until the full custody trial or until the case was removed from Gaston County to Mecklenburg County.
However, on 16 September 2011, an order was entered, postponing defendant's overnight secondary physical custody until he started family counseling with the children.
On 17 October 2011, the trial court entered judgment, granting legal and primary physical care, custody, and control of the minor children to plaintiff and setting out a schedule of defendant's periods of physical custody of the minor children. On that same day, defendant filed a motion for contempt against plaintiff, alleging a violation of a 17 June 2011 judgment and violation of the temporary postponement of overnight visitation. On 28 October 2011, defendant also filed a motion for contempt against plaintiff alleging a violation of the 17 October 2011 order.
On 23 December 2011, the trial court entered an order concluding that defendant should begin family therapy with the minor children as required by the 16 September 2011 Order and 17 October 2011 Custody Judgment; that defendant limit his secondary physical custody to supervised visitation until he complied with family therapy sessions; and that if defendant failed to return the minor children at 9 p.m. after his supervised visit, law enforcement would assist plaintiff in retrieving the children from defendant unless defendant could show he had sent proper reports of all seven children in family therapy to plaintiff's counsel, as ordered.
From the 17 October 2011 custody judgment, defendant appeals.
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Defendant presents the following issues on appeal: whether the trial court erred by (I) merely reciting witness testimonies in most of its findings of fact; (II) failing to make sufficient findings of fact to support its award of sole legal and physical custody to plaintiff; (III) entering finding of fact number 12; (IV) entering conclusions of law numbers 2, 6 and 14.
I and II
Defendant contends that the trial court erred in making findings of fact numbers nine, eleven, sixteen through nineteen, and twenty-one through twenty-eight because these findings were “mere recitation[s] of witness testimonies.” Defendant also argues the trial court erred by failing to make sufficient findings of fact to support its award of sole legal and physical custody to plaintiff. We agree.
Our review of a trial court's custody determination is limited to determining
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. We review the trial court's conclusions of law de novo. Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal. Facts found by the judge are binding upon this court if they are supported by any competent evidence notwithstanding the fact that the appellant has offered evidence to the contrary.
Heatzig v. MacLean, 191 N.C.App. 451, 454, 664 S.E.2d 347, 350 (2008) (citations omitted). In the instant case, however, we are unable to conduct a proper review for the following reasons.
First, we hold that several of the trial court's findings of fact are mere recitations of testimony. It is well established that “[r]ecitations of the testimony of each witness do not constitute findings of fact by the trial judge, because they do not reflect a conscious choice between the conflicting versions of the incident in question which emerged from all the evidence presented.” Moore v. Moore, 160 N.C.App. 569, 571–72, 587 S.E .2d 74, 75 (2003) (citations omitted). “If different inferences may be drawn from the evidence, the trial judge must determine which inferences shall be drawn and which shall be rejected.” In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365–66 (2000) (citation omitted). “They must be the specific ultimate facts ... sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence.” In re Anderson, 151 N.C.App. 94, 97, 564 S.E.2d 599, 602 (2002) (citations and quotation marks omitted).
In Moore, there was directly conflicting evidence regarding the allegations of sexual abuse by the plaintiff-father. “Therapists and social workers testified that the child disclosed instances of sexual abuse, while [the] plaintiff, his mother, and his two sisters testified that the alleged conduct did not and could not have happened.” Moore, 160 N.C.App. at 572, 587 S.E.2d at 76. Our Court reversed a trial court's order denying reinstatement of a father's visitation rights with his minor child, finding that “[w]here there is directly conflicting evidence on key issues, ... the trial court [failed to] make its own determination as to what pertinent facts [were] actually established by the evidence, rather than merely reciting what the evidence [tended] to show.” Id. at 572, 587 S.E.2d at 75 (citation omitted).
Our review of the instant case indicates that the challenged findings of fact recite the content of several of the witnesses' testimonies without reflecting which inferences the trial court chose to accept and which inferences it rejected. “This is indicated by the trial court's repeated statements that a witness ‘testified’ to certain facts or other words of similar import.” Id. (citation omitted). For example, the trial court's findings of fact numbers 23 and 26 state that “[d]efendant's numerous witnesses testified that Defendant was a good, demanding father for the children of the parties” and that “Bonnie Bosch, a former close friend of Plaintiff, testified that ... Defendant was a good husband and father and never complained about Plaintiff during their friendship[.]” These findings are inconsistent and conflict with the following findings of fact: finding of fact 16 states that “Collis Hill, Plaintiff's biological aunt and adoptive sister, testified ... that Plaintiff and Defendant's relationship had been problematic from the start”; finding of fact 17 states that “Nicole Kincaid testified that ... the marriage of Plaintiff and Defendant had been volatile from the beginning [and] that she had witnessed many occasions of Defendant's anger and yelling at plaintiff and the minor children”; and finding of fact 11 states that “[p]laintiff presented testimony of domestic violence by Defendant against plaintiff and his use of corporal punishment of all the minor children with the exception of the youngest, [Sally ].” The foregoing findings of fact illustrate the trial court's recitation of conflicting witness testimony on key issues without making its own determination.
Pseudonyms have been used throughout this opinion to protect the identities of the minor children.
Furthermore, the trial court made findings of fact such as 19 and 22 which merely summarize testimony without indicating what, if any, inferences were accepted or rejected by the trial court.
19. That sometime prior to the separation Plaintiff told [Rhonda, one of the parties' minor children,] that Defendant's verbal abuse toward Plaintiff was responsible for killing [Rhonda's] twin sibling in utero.
...
22. Plaintiff testified on direct and cross examination that she had worked as a stripper on one occasion during the September 2001–September 2002 time frame referenced above, that she was raped at a party during that time, that between August and October 2009 in order to pay bills she had moved approximately $8,000.00 from the joint account of the parties into a separate account, [etc. ....].
We note for the record that the recitation of testimony in terms of quantity was more negative toward plaintiff than defendant. For this reason among others it is incumbent upon the trial judge not only to make quantitative findings, but also qualitative and competent findings to support the judgment in such a way that a reviewing court can properly comprehend the basis for the judgment. There are more than 20 instances of conflicting testimony on key issues. The trial court failed to make proper and sufficient findings to support its conclusion of law that it is in the best interests of the minor children that legal and physical custody be placed with plaintiff. Accordingly, we reverse and remand for further findings of fact.
III and IV
Based on our dispositions on the foregoing issues, we do not reach defendant's remaining arguments.
Reversed and remanded. Judges CALABRIA and GEER concur.
Report per Rule 30(e).