stating that when the trial court sits as fact-finder, it is the sole judge of the credibility and weight to be given to -8- IN RE N.P. Opinion of the Court the evidence, and it is not the role of the appellate court to substitute its judgment for that of the trial court
How later courts described this case
- stating that when the trial court sits as fact-finder, it is the sole judge of the credibility and weight to be given to -8- IN RE N.P. Opinion of the Court the evidence, and it is not the role of the appellate court to substitute its judgment for that of the trial court
- recognizing that evidence that a child performs well in school in the custody of one parent may, in the discretion of the trial court, be a substantial change of circumstance supporting modification
- holding trial court did not err in finding that evidence of a spanking with a belt which left no more than temporary red marks and required no medical attention did not establish abuse of the child
- finding no conclusive evidence of abuse when there was no evidence presented that the spanking left more than temporary red marks
Written by the judges who cited it.
The opinion
TIMMONS-GOODSON, Judge,
concurring in part and dissenting in part.
I agree with the majority that the trial court properly denied defendant’s motions in limine and to modify custody. I disagree, *395 however, with the majority’s conclusion that defendant’s behavior did not constitute contempt as found by the trial court, and that the disposition by the trial court was impermissibly vague. I therefore dissent to the majority opinion in part.
The majority concludes that the custody provisions contained in the consent order between the parties place no affirmative duty on defendant. I disagree. The consent order places “exclusive care, custody, and control” of the children with plaintiff. The consent order further mandates that “neither party shall do anything to estrange either one or both of the children from the other party, and both parties will endeavor to raise the children with love and affection for each party.” The failure of either party to abide by the terms of the consent order was expressly subject to the contempt powers of the court.
As noted by the majority, this Court’s role on appeal of a contempt order is limited to a review of the evidence and findings “only for the purpose of passing on their sufficiency to warrant the judgment.” Clark v. Clark, 294 N.C. 554, 571 , 243 S.E.2d 129, 139 (1978). The evidence before the trial court tended to show, and the trial court so found, that on 2 May 2000, defendant “verbally abused the Plaintiff at a baseball game in the presence of the parties’ children and refused to allow her to get into her car with the children until [a third individual] intervened.” I conclude that this evidence adequately supports the trial court’s conclusion that defendant violated the terms of the consent order.
I further disagree with the majority’s conclusion that the trial court’s disposition was impermissibly vague. The trial court declared that, in order to purge himself of the contempt order, defendant could enroll in and complete an anger management class. The trial court further ordered defendant not to threaten, abuse, harass or interfere with the plaintiff or her custody of the children. Although the term “interfere with” is admittedly somewhat open to interpretation, the remaining conditions are perfectly plain, and the order as a whole is not so impermissibly vague as to require reversal. Compare Cox, 133 N.C. App. at 226, 515 S.E.2d at 65 (reversing as impermissibly vague an order of contempt requiring the defendant not to “punish either of the minor children in any manner that is stressful, abusive, or detrimental to that child”). I would therefore affirm the order of the trial court in its entirety.