Opinion
No. COA03-79
Filed 2 December 2003 This case not for publication
Appeal by plaintiff from order filed 19 July 2002 by Judge William A. Christian in Cumberland County District Court. Heard in the Court of Appeals 19 November 2003.
Clifford Leon Lee, II, pro se plaintiff-appellant. No brief filed for defendant-appellee.
Cumberland County No. 01 CVD 6645.
Clifford L. Lee, II (plaintiff) appeals from an order filed 19 July 2002 awarding primary child custody to Alisha Blackmon Lee (defendant) and secondary custody to plaintiff.
The parties were married on 28 December 1990, and on 7 June 1992, Clifford Leon Lee, III was born to the marriage. The parties separated on 28 July 2001, and plaintiff filed a complaint on 27 August 2001 seeking, inter alia, custody of the child. This matter came for hearing at the 1 July 2002 and 2 July 2002 sessions of court. In its order, the trial court awarded defendant primary custody and plaintiff secondary custody to include reasonable visitation rights.
The sole issue on appeal is whether the trial court erred in awarding defendant primary custody. Specifically, plaintiff argues that it is in the child's best interest for plaintiff to be awarded primary custody. Plaintiff concedes both parents can equally provide love to the child. However, plaintiff contends that if placed in his primary custody, the child would receive a better education in North Carolina, proper discipline, and the best moral foundation.
Pursuant to N.C. Gen. Stat. § 50-13.2(a), the district court must award custody "to such person, agency, organization or institution as will best promote the interest and welfare of the child." N.C.G.S. § 50-13.2(a) (2001). The trial court, which "has the unique opportunity of seeing and hearing the parties, witnesses, and evidence at trial, is vested with broad discretion in cases concerning the custody of children." In re Peal, 305 N.C. 640, 645, 290 S.E.2d 664, 667 (1982). Absent abuse of discretion, the trial court's custody determination will not be disturbed. Pulliam v. Smith, 348 N.C. 616, 631, 501 S.E.2d 898, 906 (1998); see also Peal, 305 N.C. at 646, 290 S.E.2d at 668. In making the custody determination, the paramount consideration involves "the welfare and needs of the child, not the persons seeking his or her custody, and even parental love must yield to the promotion of those higher interests." Peal, 305 N.C. at 645-46, 290 S.E.2d at 667-68 (affirming the trial court's decision giving custody of the minor children to the father because, even though both parents were equally fit, the children had a close relationship with the father and the welfare of the children did not favor a split in custody) (citations omitted).
In the instant case, plaintiff has not assigned as error the district court's findings of fact. Therefore, these findings are presumed supported by competent evidence. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (citations omitted). In its order, the trial court made the following pertinent findings defendant had: moved to the state of Alabama upon her separation from plaintiff; secured a four-bedroom apartment and furnishings; enrolled the child in a local public school where he makes excellent grades; been cooperative in allowing plaintiff to visit the child and has encouraged the father-son relationship; and taken primary responsibility for the child's day-to-day care, including food and clothing, homework preparation, bedtime rituals, entertainment, and church activities. In addition, defendant's two older brothers visit the child often and are positive male role models in the child's life.
The trial court also found defendant is gainfully employed and capable of providing the child with a safe environment and capable of supporting his needs. Further, she was also found to be capable of participating in the child's after-school extracurricular activities. Moreover, the child has experienced no ill effects from the move and has benefitted from his close association with defendant's family. In its order, the trial court concluded that although both parents are fit to provide care, control and custody of the child, "it is [in] the best interest of the minor child that [d]efendant be awarded primary custody and [p]lantiff be awarded secondary custody."
The trial court's decision is properly supported by the findings, and we find no abuse of discretion. Plaintiff's assignment of error is overruled.
Affirmed.
Chief Judge EAGLES and Judge LEVINSON concur.