McGraw v. McGraw

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1195
NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

DAVID L. MCGRAW,
Plaintiff,

v. Johnston County
No. 08 CVD 0985
HOLLY MCGRAW,
Defendant.

Appeal by Defendant from order entered 19 April 2013 by

Judge Paul A. Holcombe III in Johnston County District Court.

Heard in the Court of Appeals 5 March 2014.

Cranfill Sumner & Hartzog LLP, by Michelle D. Connell, for
Plaintiff.

Mast, Mast, Johnson, Wells & Trimyer, by Ron L. Trimyer,
Jr., for Defendant.

STEPHENS, Judge.

Procedural and Factual History

Plaintiff David L. McGraw and Defendant Holly McGraw were

married in November 2003, separated in March 2008, and

subsequently divorced. During their marriage, the parties had
 -2-
one child together (“the child”),1 born in 2004. After the

parties separated, Plaintiff filed an action for custody and

child support in March 2008. Following mediation, a document

stating that the parties had reached a full agreement regarding

custody was entered 24 April 2008. The agreement does not

appear in the record but the trial transcript suggests that the

parties essentially shared equal time with the child, with each

parent having custody for two days each week and on alternating

weekends. This arrangement appears to have continued until the

custody trial.2

Defendant remarried in 2009 and has two children with her

new husband. Plaintiff remarried in 2011. The parties attended

counseling concerning co-parenting the child, but experienced

friction regarding the roles played by the stepparents of the

child, particularly Defendant’s objection to the significant

involvement of Plaintiff’s new wife (“the stepmother”) with the

child. On 28 February 2012, Defendant filed an answer and

counterclaim for custody of the child. On 3 April 2012, the

parties entered into a temporary consent order sharing equal

1
In this opinion, we refer to the parties’ child as “the child”
in an effort to protect her identity.
2
The custody matter was heard during the 15 November 2012 and 1
February 2013 terms of the district court in Johnston County.
 -3-
time with the child. On 16 November 2012, an additional order

was entered regarding the child’s Thanksgiving and Christmas

custody schedule. After the matter had been heard in the trial

court, on 19 April 2013, the court entered an order giving

Plaintiff sole legal and primary physical custody of the child.

Defendant appeals.

Discussion

On appeal, Defendant argues that the trial court (1) made

legal conclusions not supported by sufficient findings of fact,

(2) abused its discretion in awarding sole legal and primary

physical custody to Plaintiff, (3) erred in failing to determine

there had been a substantial change in circumstances affecting

the child since entry of the parties’ mediated custody agreement

and April 2012 consent order, (4) erred in awarding sole legal

custody to Plaintiff contrary to its announcement of joint legal

custody in open court, and (5) erred in awarding physical

custody of the child’s softball medallion to Plaintiff. We

reverse and remand.

I. Standard of Review

In a child custody matter,

[t]he findings of fact are conclusive on
appeal if there is evidence to support them,
even if evidence might sustain findings to
the contrary. The evidence upon which the
 -4-
trial court relies must be substantial
evidence and be such relevant evidence as a
reasonable mind might accept as adequate to
support a conclusion. Absent an abuse of
discretion, the trial court’s decision in
matters of child custody should not be upset
on appeal. The trial court’s conclusions of
law and orders will not be reversed if
supported by the findings of fact.

Everette v. Collins, 176 N.C. App. 168, 170-71, 625 S.E.2d 796,

798 (2006) (citations omitted).

“Where [an appellant] fails to challenge any of the trial

court’s findings of fact on appeal, they are binding on the

appellate court[.]” Lewis v. Hope, __ N.C. App. __, __, 736

S.E.2d 214, 217-18 (2012). However, “[w]hether those findings

of fact support the trial court’s conclusions of law is

reviewable de novo.” Carpenter v. Carpenter, __ N.C. App. __,

__, 737 S.E.2d 783, 785 (2013) (citation omitted).

II. Sufficiency of the Trial Court’s Findings of Fact

Defendant argues that the trial court’s legal conclusions

are not supported by sufficient findings of fact. We agree.

Child custody determinations are governed by N.C. Gen.

Stat. § 50-13.2(a) (2013). Under that statute,

the trial court is required to order custody
of minor children to the person that will
best promote the interest and welfare of the
child. The statute also mandates that the
trial court consider all relevant factors .
. . and make findings accordingly. The
 -5-
trial court need not make a finding as to
every fact which arises from the evidence;
rather, the court need only find those facts
which are material to the resolution of the
dispute.

Hall v. Hall, 188 N.C. App. 527, 530, 655 S.E.2d 901, 903 (2008)

(citations, internal quotation marks, and brackets omitted).

“These findings may concern physical, mental, or financial

fitness or any other factors brought out by the evidence and

relevant to the issue of the welfare of the child.” Id. at 532,

655 S.E.2d at 905 (citations and internal quotation marks

omitted).

[A] custody order is fatally defective where
it fails to make detailed findings of fact
from which an appellate court can determine
that the order is in the best interest of
the child, and custody orders are routinely
vacated where the “findings of fact” consist
of mere conclusory statements that the party
being awarded custody is a fit and proper
person to have custody and that it will be
in the best interest of the child to award
custody to that person. A custody order
will also be vacated where the findings of
fact are too meager to support the award.

Dixon v. Dixon, 67 N.C. App. 73, 76-77, 312 S.E.2d 669, 672

(1984) (citations omitted; emphasis added). “The quality, not

the quantity, of findings is determinative.” Carpenter, __ N.C.

App. at __, 737 S.E.2d at 787. Crucially, the findings of fact
 -6-
must “resolve the primary issues raised by the evidence which

bear directly upon the child’s welfare.” Id. (emphasis added).

For example, in Carpenter, “[t]he primary disputed issues

regarding the child’s welfare . . . were [the] defendant’s

allegations of excessive alcohol consumption by [the] plaintiff,

conflicts in the parties’ parenting styles, and [the child’s]

resulting anxiety.” Id. Upon review, we noted that the custody

order made “findings regarding the evidence and contentions of

each party on these issues, but resolve[d] few of them.” Id.

Even where the order resolved disputed matters, it did so

“without relating the findings to [the child’s] needs or best

interest. It is difficult to discern the meaning of some of the

findings, or at least how the findings relate to the child’s

welfare.” Id. at __, 737 S.E.2d at 789. As a result, we

reversed and remanded to the trial court for “additional

findings of fact, as well as conclusions of law and decretal

provisions based upon those findings.” Id. at __, 737 S.E.2d at

790; see also In re Kowalzek, 37 N.C. App. 364, 370, 246 S.E.2d

45, 48 (vacating where disputed issues were not resolved in the

custody order), appeal dismissed and disc. review denied, 295

N.C. 734, 248 S.E.2d 863 (1978).
 -7-
In contrast, this Court found in Hall that the conclusions

of law regarding custody were sufficiently supported where the

trial court found

that [the] plaintiff took the children for
haircuts, bought their clothes and school
supplies, volunteered at their school and
was a room mother, and took the children on
play dates. The trial court also found that
[the] plaintiff took the children to the
doctor and stayed home with them when they
were ill. Finally, the trial court found as
a fact that [the] plaintiff took a six month
leave of absence from her employment to stay
with Christiana when she was born and a five
month leave when Steven was born.

Contrary to these findings, the trial court
found that [the] defendant would only
occasionally take the children to the
doctor, would sometimes attend birthday
parties and would volunteer at school on
occasion. Moreover, [the] defendant’s work
schedule was unpredictable and he was
regularly out of town one to three nights
each week. The trial court also found that
[the] defendant countermanded plaintiff on a
number of occasions when she was
disciplining the children, referred to
Christiana as a drama queen, and Steven as a
Mama’s boy. Finally, the trial court found
that [the] defendant body slammed the
plaintiff 20 to 50 times during the
marriage, and threatened to punch his
brother-in-law in the nose.

Id. at 532-33, 655 S.E.2d at 905 (internal quotation marks,

brackets, and ellipsis omitted). This Court held that those

findings, particularly the finding of domestic abuse, were
 -8-
sufficient to support an award of primary physical custody of

the children to Plaintiff. Id.

Here, each party raised issues related to the child’s

welfare. Defendant expressed concerns that the stepmother was

taking over Plaintiff’s parenting duties, that Plaintiff was not

responding in a timely fashion to emails from Defendant, and

that the child’s irritable bowel syndrome (“IBS”) was not being

properly handled by Plaintiff. Plaintiff testified that

Defendant’s multiple daily phone calls to the child were

interfering with his custodial time and stated that Defendant

was failing to adhere consistently to agreements and rules

regarding the child. The testimony from the parties, the

stepmother, and other witnesses also made clear that resentment

and ill-will between the parties and between Defendant and the

stepmother had led to friction, pettiness, poor communication,

and limited cooperation among the central adults in the child’s

life.

The trial court heard two days of testimony from some

eleven witnesses, including the parties, the stepmother,

Defendant’s new husband, the parties’ parenting counselor, and

various friends and acquaintances. The resulting custody order

includes the following findings of fact:
 -9-
1. Plaintiff and Defendant are currently
residents of North Carolina and had been
continuously for at least six months
immediately preceding the institution of
this action.

2. The parties were married on the 22nd day
of November[] 2003, separated on the 14th
day of March[] 2008, and subsequently
divorced.

3. One child was born to the parties . . .
[on] February 13, 2004.

4. The child currently resides in Johnston
County, North Carolina where the child has
resided continuously all of her life.
Neither party has participated as a party,
witness, or in any other capacity in any
other litigation concerning the custody of
the minor child in this or in any other
state. North Carolina is the home state of
the child.

5. Plaintiff married [the stepmother] on
January 30, 2011. Prior to the marriage,
[the stepmother] would spend significant
amounts of time at the home of . . .
Plaintiff, while the minor child was
present. Defendant married [her new
husband] in 2009. They have two children
from their marriage, . . . age 2 and . . .
age 8 months.

6. Plaintiff resides in the Antioch
community in a home suitable for the minor
child. Plaintiff’s parents reside close by
to Plaintiff. Defendant resided in Wilson
with her new husband for about 2 and ½
years. She recently moved to the
Micro/Selina area.

7. Plaintiff is employed at Interstate Glass
in Wilson, North Carolina. He has been so
 -10-
employed for 18 years. Defendant is
unemployed, and stays at home caring for her
and her husband’s children. She previously
worked at Food Lion, Pizza Inn, RBC Bank, KS
Bank and other entities. The [stepmother]
does not work outside the home but
participates in a business promoting go-kart
racing. Defendant’s spouse . . . works at
Credit Suisse in Durham.

8. The minor child has been diagnosed with
irritable bowel syndrome, which has been
treated.

9. The minor child attends Glendale-Kenly
Elementary school. She is in the third
grade. Her grades in school are excellent.
Defendant attends most of the school
functions and eats lunch with the child a
couple of times per week. Plaintiff is
unable to attend many school functions
because of his employment, but [the
stepmother] attends most of the school
functions.

10. The minor child participates in softball
and cheerleading. Plaintiff signed the
child up for softball without consulting
[]Defendant. Both Plaintiff and Defendant
attended her games and practices. The
parties had conflicts over who would have
possession of the child’s softball uniform
and medallions the child was awarded during
softball.

11. The child and parties have attended
counseling with Marlene Hubbell. Ms.
Hubbell worked with the parties to establish
rules for the minor child that would be
consistent in both homes.

12. Plaintiff and Defendant communicated
with each other over matters involving the
minor child by email. Defendant complained
 -11-
that Plaintiff often would not respond to
emails from []Defendant. Plaintiff
explained that he did not have access to his
personal email at his employment and would
usually respond to Defendant’s messages at
night.

13. Both parties have engaged in some
responses to communications that are
unfortunate and there is a breakdown in
communication between the parties. The
Court encouraged [the stepmother] and
[Defendant] to try to work together for the
best interest of the child. It is not in
the child’s best interest for [the
stepmother] and [Defendant] to not be able
to work together.

14. Plaintiff has allowed [the stepmother]
to assume some of the parenting
responsibilities in his household. [The
stepmother] should be allowed to fill that
role. Defendant’s husband . . . has chosen
to leave parenting to Defendant. Defendant
wants [the stepmother] to assume the same
role that [Defendant’s husband] has chosen.
How each party decides to allocate parenting
responsibilities during their custodial
periods is up to that party. The
step[]parents need to be allowed to fulfill
the parenting responsibilities delegated to
them by the spouse, and neither the party or
the step[]parent should be criticized on how
they choose to delegate those
responsibilities.

15. [The stepmother] signed the majority of
the child’s homework assignments. There was
nothing inappropriate with [the stepmother]
signing the child’s homework logs or other
documents that came home from the school.
The decision on who signs the homework log
for each custodial period[] is up to the
custodial parent. [The stepmother] may sign
 -12-
with []Plaintiff or in her individual
capacity.

16. Plaintiff has lived in the same house
for nine years, has had the same job for
eighteen years; Plaintiff has been taking
the child to Awana and sports activities;
Plaintiff provides more stability for the
minor child.

17. Plaintiff is a fit and proper person to
have the sole and exclusive care, custody
and control of the minor child, and it is in
the best interest of the minor child, and
will best promote her general welfare, for
her sole and exclusive care, custody and
control to be awarded to []Plaintiff herein.

18. Defendant is a fit and proper person to
exercise reasonable visitation privileges
set out below.

In sum, these findings reveal that (1) the child was doing well

in school at the time of the hearing under the shared-time

custody arrangement; (2) both Plaintiff’s and Defendant’s

current marriages provide one stay-at-home parent who is able to

attend most school functions; (3) both Plaintiff and Defendant

attend the child’s sports activities; (4) Plaintiff and

Defendant have been in conflict regarding communication and

possession of certain sports-related items; (5) Plaintiff signed

the child up for softball without discussing the matter with

Defendant; (6) Defendant eats lunch with the child at school

several times a week; (7) Defendant believes the stepmother is
 -13-
overly involved in the child’s care, schoolwork, and activities;

and (8) Plaintiff provides more stability for the child by

living in the same house near extended family and by having the

same job for many years.

Much like those found wanting in Carpenter, the majority of

these findings of fact merely recap the evidence and the

parties’ contentions without resolving key points of conflict.

Only finding of fact 14, wherein the court found that “[h]ow

each party decides to allocate parenting responsibilities during

their custodial periods [should be] up to that party[,]” and

finding of fact 16, in which the court found that Plaintiff

provides more stability for the child by living in the same

house and having the same job for many years, can be construed

as resolving disputed matters.

The court failed to make findings of fact which resolved

most of the critical disputes between the parties, including,

inter alia, who, if anyone, was at fault for communication

breakdowns and lack of cooperation; which party, if either, was

failing to consistently follow agreed-to rules and other

parenting procedures; and whether Defendant’s frequent phone

calls and emails were excessive and disruptive to Plaintiff’s

custodial time. Even the court’s finding of fact 16 regarding
 -14-
stability reflects a failure to resolve that issue based upon

the evidence presented. Neither party contended that the

other’s employment or residence was of significant concern in

connection with the child’s welfare. Rather, both focused on

the disruption to the child’s well-being caused by each other’s

different communication styles and lack of cooperation, and the

resulting tension and conflict to which the child was exposed.

As in Carpenter, “[i]t is difficult to discern the meaning

of some of the findings, or at least how the findings relate to

the child’s welfare.” See id. at __, 737 S.E.2d at 789. For

example, the court found that “[b]oth parties have engaged in

some responses to communications that are unfortunate and there

is a breakdown in communication between the parties” and further

found that Plaintiff signed the child up for softball without

consulting Defendant. These findings would appear to suggest

that Plaintiff, by acting unilaterally regarding the child’s

activities, is creating at least some of the communication

problems and friction between the parties; yet, the court

awarded sole custody to Plaintiff.

In addition to awarding sole physical and legal custody of

the child to Plaintiff, the order sets forth a detailed

visitation schedule for Defendant which includes a restriction
 -15-
that she join the child at school for lunch no more than once

per week, with the permitted lunches dropping to one every other

week the following school year. The order also provides

Plaintiff the sole and exclusive right to make all decisions

regarding “the physical appearance of the child, including

changes to the child’s hair, shaving, and piercings” and to

possess “[a]ll school awards and projects[.]” Nothing in the

court’s findings of fact explain such provisions, although we

note that the evidence at trial certainly revealed conflict

between Plaintiff and Defendant about Defendant’s involvement

with the child at school and regarding decisions about the

child’s personal grooming choices.

In sum, the “custody order is fatally defective [because]

it fails to make detailed findings of fact from which an

appellate court can determine that the order is in the best

interest of the child . . . [and because the existing] findings

of fact are too meager to support the award.” Dixon, 67 N.C.

App. at 76-77, 312 S.E.2d at 672 (citations omitted). As was

the case in Carpenter, we believe that the record contains

sufficient evidence on which to base findings of fact and

conclusions of law supporting a custody determination. The

trial court need not hold a new trial or take additional
 -16-
evidence, but must (1) determine the primary disputes related to

the child’s welfare, (2) consider the evidence presented at the

custody trial that concerns those disputes, and (3) make

findings of fact which resolve any conflicts in that evidence.

See Carpenter, __ N.C. App. at __, 737 S.E.2d at 785 (noting

that the findings of fact in a custody matter must “resolve the

primary issues raised by the evidence which bear directly upon

the child’s welfare”) (emphasis added).

Accordingly, we remand for entry of additional findings of

fact and for entry of such conclusions of law as those findings

support.3

Our decision to remand this case for further
evidentiary findings is not the result of an
obeisance to mere technicality. Effective
appellate review of an order entered by a
trial court sitting without a jury is
largely dependent upon the specificity by
which the order’s rationale is articulated.
Evidence must support findings; findings
must support conclusions; conclusions must
support the judgment. Each step of the
progression must be taken by the trial
judge, in logical sequence; each link in the
chain of reasoning must appear in the order
itself. Where there is a gap, it cannot be
determined on appeal whether the trial court
correctly exercised its function to find the
facts and apply the law thereto.

3
In light of our resolution of this issue, we need not address
Defendant’s remaining arguments on appeal.
 -17-
Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980).

REVERSED and REMANDED.

Judge BRYANT concurs.

Judge DILLON dissents by separate opinion.

Report per Rule 30(e).
 NO. COA13-1195

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

DAVID L. MCGRAW,
Plaintiff,

v. Johnston County
No. 08 CVD 0985
HOLLY MCGRAW,
Defendant.

DILLON, Judge, dissenting.

Because I believe that the trial court’s legal conclusions

are supported by sufficient findings of fact, I respectfully

dissent.

In this case, the father filed a complaint asking the trial

court to grant him custody of the child. The mother filed her

answer asking the trial court to grant her custody of the child.

Nothing in the record indicates that either party asked the

trial court to enter a permanent order granting joint custody.

Therefore, the trial court could not consider joint custody as

an option, but rather was required to determine whether it was

in the best interests of the child to award custody to the

father or to the mother. See N.C. Gen. Stat. § 50-13.2(a)

(2013) (providing that “[j]oint custody to the parents shall be

considered upon the request of either parent”).
 -2-
It is not always the case that custody is awarded based on

a finding that only one parent would be suitable. Rather, there

are situations where either parent might be suitable, but the

trial court must exercise its discretion to determine which

parent it would be in the best interests of the child to live

with. Our Supreme Court has held the following:

When the court finds that both [parents] are
fit and proper persons to have custody of
the children involved . . . and then finds
that it is to the best interest of the
children for [either the father or the
mother] to have custody of said children,
such holding will be upheld when it is
supported by competent evidence.

Hinkle v. Hinkle, 266 N.C. 189, 196, 146 S.E.2d 73, 78 (1966);

see also McRoy v. Hodges, 160 N.C. App. 381, 388, 585 S.E.2d

441, 445 (2003).

In the present case, the trial court ultimately granted

custody to the father. The trial court did not reach its

conclusion based on a determination that the mother would not be

a suitable custodian for her child or that she could not provide

her with a stable environment. Indeed, the trial court found

that the mother was actively engaged in her child’s life.

Rather, the trial court made its decision based on its

determination that living with her father would provide the

child with a more stable environment than would living with her
 -3-
mother. I do not believe that the trial court erred by

considering stability in determining the best interests of the

child in this case.

I believe the trial court made sufficient findings to

support its determination that living with the father would

provide more stability for the child. First, concerning the

fact that each parent had remarried and had new children, the

trial court found that the father’s new spouse was interested

and involved in helping raise the child (along with raising the

child’s half-siblings), whereas the mother’s new spouse had

indicated that he had no desire or willingness to be involved

with helping raise the child. Second, the trial court made

findings to suggest that the father’s means for providing for

the child were more stable than those of the mother.

Specifically, the trial court found that the father had

maintained the same job for eighteen years, whereas the mother

had held a number of jobs and was currently not in the

workforce. Third, the trial court found that the father had

stable housing, living in same home in Johnston County where the

parties had lived prior to their separation when the child was

four years old, whereas the mother had lived away from Johnston

County for just over two years with her new husband before
 -4-
moving back to Johnston County. Fourth, the trial court found

that the father’s parents – the child’s paternal grandparents –

live close to the father, indicating some sign of familial

stability.4

The majority focuses on the trial court’s failure to make

findings to resolve other “critical disputes” between the

parties. I believe the order demonstrates that the trial court

did consider other issues raised by the parties, though it based

its decision ultimately on which parent could provide a more

stable environment for the child. Specifically, the trial court

addressed the “communication breakdowns” between the parties,

finding that both parties bore some of the blame. The trial

court addressed the concern regarding the different parenting

styles of the parties, finding that, in this case, such matters

should be left to each parent during his or her custodial

period. The trial court addressed the mother’s concern

4
The majority construes the trial court’s findings that it based
its determination that the father would provide stability solely
on the findings that he had stable housing and stable
employment, findings which are contained in the same paragraph
as its determination that the father provides more stability for
the minor child. However, I believe the trial court’s
determination regarding stability is based not only on the
findings contained in that paragraph, but also on the findings
contained in the prior paragraphs of the order, as outlined
above.
 -5-
regarding the involvement of the stepmother in raising the child

by making findings regarding the nature and extent of her

involvement and finding that her involvement was appropriate.

The trial court addressed the mother’s concern that she had been

more involved with caring for a medical condition that the child

had experienced, finding that the medical condition had been

treated.

In conclusion, I would affirm the order of the trial court

granting custody to the father. See In re White, 262 N.C. 737,

739, 138 S.E.2d 516, 517 (1964) (holding that in a situation

where the evidence might “warrant, but not compel, the court to

find that either of the parties was proper and fit, and that the

best interest of the child would be served by awarding custody

to either[,] the findings made by the court are conclusive”).