Meadows v. Meadows , 246 N.C. App. 245 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-527
Filed: 15 March 2016
Granville County, No. 13-CVD-44
MELISSA ALLISON MEADOWS, Plaintiff-Appellee
v.
BEN JAMIN HOWARD MEADOWS, II, Defendant-Appellant
v.
GLORIA MEADOWS, Intervenor
Appeal by defendant from order entered 16 September 2014 by Judge Carolyn
J. Yancey in Granville County District Court. Heard in the Court of Appeals 3
November 2015.
Batten Law Firm, P.C., by Holly W. Batten, for plaintiff-appellee.
Dunlow & Wilkinson, P.A., by John M. Dunlow, for defendant-appellant.
No brief for Intervenor.
CALABRIA, Judge.
Ben Jamin Meadows (“defendant”) appeals from an initial custody order
awarding primary and legal custody of Billy1 to Melissa Allison Meadows (“plaintiff”)
and supervised visitation to defendant. We affirm.
I. Background
1 A pseudonym is used to protect the minor’s identity.
MEADOWS V. MEADOWS
Opinion of the Court
Plaintiff and defendant (collectively, “the parties”) were married on 6 October
2007. The parties had one child, Billy, born on 30 September 2011. Defendant’s
mother, Gloria Meadows (“Intervenor”) provided substantial assistance in caring for
Billy for extended periods of time while plaintiff dealt with certain mental health
issues. After the parties separated on 14 January 2013, plaintiff and Billy lived with
plaintiff’s parents and continued living with plaintiff’s parents through the custody
and visitation hearings, which concluded on 5 August 2014.
Plaintiff filed a complaint on 14 January 2013 for post-separation support,
alimony, child custody, child support, and equitable distribution. On 22 January
2013, the parties agreed in a memorandum of order that plaintiff would have
temporary custody and defendant would have supervised visitation of Billy.
Intervenor filed an amended motion for intervention to “pursue a custody claim for
the minor child, or in the alternative, a claim for grandparent visitation.”2 In another
memorandum of order that modified the prior order, defendant was to have
supervised visitation with Billy for up to two hours each week at the Supervised
Visitation Center in Burlington, North Carolina.
Following hearings, the trial court entered an order on 16 September 2014
giving, inter alia, “primary legal and physical custody” of Billy to plaintiff, and
limiting defendant’s visitation rights to “supervised visitation at the [Family Abuse
2 Intervenor is not involved in this appeal.
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Services center (“FAS”)] in Burlington, North Carolina every other Sunday for up to
two (2) hours.” The trial court’s unchallenged findings of fact relevant to this appeal
are as follows:
38. The minor child herein is a well-adjusted toddler with
normal ailments as well as normal physical and emotional
development.
39. During his infancy years to current date, the minor
child has been surrounded by family who love and care for
him. As reasonably expected during Plaintiff’s manic
episodes, this same family came together to “assist” in
caring for the minor child. Their effort is a testament of
love and support rather than attempt to alienate the minor
child from either parent.
40. During the entire trial, the Defendant did not appear
nor did he provide any sworn testimony as to his own
fitness and best interests of the minor child herein.
41. . . . . The Defendant’s legal counsel has had ample
opportunity, however, [to] develop testimony and evidence
throughout these proceedings via Plaintiff’s and
Intervenor’s cases-in-chief. . . . [T]he [c]ourt was still left
without sufficient evidence of the Defendant’s character,
temperament and abilities to support and care for the
minor child herein.
42. At best attempt to deduce any evidence as to
Defendant’s parenting abilities, the [c]ourt considered the
verified pleadings of his own mother, the Intervenor[,]
wherein she alleged and subsequently testified about a
period of time when “That Defendant fully acquiesced in
Intervenor’s care of Little [Billy] and deferred principal
caregiving duties for the child to Intervenor.” Within the
same pleadings, the Intervenor alleged that her son was
“immature” and unable to adequately care for the minor
child herein.
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Opinion of the Court
43. Otherwise, the [c]ourt cannot assume facts not in
evidence of his fitness and ability to care for this toddler
beyond the existing “temporary” supervised visitation
schedule and how the Defendant interacts under strict
guidelines of a visitation agency such as FAS.
....
45. When Plaintiff separated from Defendant, Plaintiff
hired Derek Ellington with Ellington Forensics, Inc. to
inspect the parties’ computer and other hard drives for
evidence of [Defendant’s] infidelity.
46. Mr. Ellington regularly reviews photos and other data
images and is bound by N.C.G.S. § 66-67.4, which requires
any processor of photograph images or any computer
technician who, within the person’s scope of employment,
observes an image of a minor or a person who reasonably
appears to be a minor engaging in sexual activity shall
report the name and address of the person requesting the
processing of the film or owner of the computer to the Cyber
Tip Line at the National Center for Missing and Exploited
Children or to the appropriate law enforcement official in
the county in which the image or film was submitted.
47. After reviewing the content and data on one of the hard
drives, Mr. Ellington contacted Plaintiff’s counsel, and
Plaintiff’s counsel contacted Creedmoor Police
Department.
48. After reviewing a small sample of the images on the
hard drives, Detective Ricky Cates of the Creedmoor Police
Department issued a search warrant to seize the computer
and hard drives.
49. During his deposition on June 19, 2013, the Defendant
was specifically asked certain questions by Plaintiff’s
counsel regarding images on the computer and other hard
drives seized by the police, including questions about
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Opinion of the Court
creating pornographic images of children, and Defendant
refused to answer any of the questions pertaining to that
subject during . . . Defendant’s [d]eposition[].
50. Intervenor does not believe that Defendant has an issue
with child pornography and stated during her deposition
and under oath during her testimony herein that “She
would not believe it even if someone told her.”
51. Despite the [c]ourt’s previous instructions to supervise
the visits between the Defendant and minor child,
Intervenor admittedly did not follow the [c]ourt’s directive.
Her actions under the circumstances demonstrated
inconsistency with her verified pleadings of “abandonment,
neglect and unfitness” as it relates to Defendant.
52. The [c]ourt makes the determination that a
psychological evaluation of the Defendant is necessary
before unsupervised visitation occurs. The
evaluation/examination should include the [c]ourt’s entire
record for examination by a licensed psychologist.
53. Pursuant to a Memorandum of Judgment/Order
entered on April 16, 2013 the Defendant was allowed
certain visitation periods with the minor child that were to
be supervised by and occur at the Family Abuse Services
center (hereinafter FAS) in Burlington, Alamance County,
North Carolina[.]
54. In the interim, the [c]ourt makes the determination
that pending the [c]ourt’s receipt of Defendant’s evaluation
results, supervised visitation periods should continue at
FAS.
55. The [c]ourt makes the determination that the
supervised visitation schedule as provided in the April 16,
2013 Memorandum of Judgment/Order provides
reasonable visitation privileges for the Defendant absent
any evidence regarding his parenting abilities beyond the
said pre-existing temporary arrangements.
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Opinion of the Court
Based upon these findings, the trial court concluded in relevant part:
3. It is in the best interest of the minor child herein that
his primary legal and physical custody be with the
Plaintiff.
4. The Defendant is entitled to access and reasonable
visitation with his minor child unless this [c]ourt finds
Defendant has forfeited the privilege by his conduct or
unless the exercise of that privilege would injuriously affect
the welfare of the child. In re Custody of Stancil, 10 N.C.
App[.] 545, 179 S.E.2d 844 (1971).
Based upon these findings and conclusions, the trial court ordered in relevant
part:
1. Primary legal and physical custody of the minor child
. . . is hereby placed with Plaintiff subject to supervised
visitation with the Defendant herein.
2. The Defendant shall exercise supervised visitation at the
FAS in Burlington, North Carolina every other Sunday for
up to two (2) hours.
3. The Intervenor shall exercise visitation at such time as
the Plaintiff deems appropriate. Otherwise, Intervenor’s
claims for custody and/or visitation are hereby dismissed
and denied.
4. The Defendant shall attend and successfully complete a
mental health evaluation and follow any and all
recommendations from said evaluation. Further, a
licensed psychologist shall assess among other things, the
Defendant’s parenting abilities. The [c]ourt’s future review
and/or consideration of the Defendant’s increased
visitation shall require the [c]ourt’s receipt and review of
the Defendant’s psychological report and parenting
assessment.
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Opinion of the Court
5. While Plaintiff’s allegations of inappropriate conduct by
the Defendant, specifically child pornography, were not
substantiated herein[,] the [c]ourt hereby orders a
complete forensic evaluation of the offer of proof regarding
criminal investigations and material recovered from the
Defendant’s computer. The outcome of said evaluation
shall be a necessary condition of any pleading to modify the
supervised visitation herein.
Defendant appeals.
II. Analysis
On appeal, defendant contends the trial court erred by (1) failing to “make
detailed findings of fact to resolve a material, disputed issue raised by the evidence;”
(2) determining that defendant “failed to offer any direct competent evidence for the
court’s consideration;” and (3) denying defendant “reasonable visitation with
[defendant’s] minor child without finding that [defendant] was an unfit person to visit
with the child or that such visitation would injuriously affect the welfare of the child.”
We disagree.
A. Standard of Review
As an initial matter, “[t]he welfare of the child has always been the polar star
which guides the courts in awarding custody.” Pulliam v. Smith, 348 N.C. 616, 619,
501 S.E.2d 898, 899 (1998) (citation omitted). “Any order for custody shall include
such terms, including visitation, as will best promote the interest and welfare of the
child.” N.C. Gen. Stat. § 50-13.2(b) (2015). Further:
It is well settled that the trial court is vested with broad
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Opinion of the Court
discretion in child custody cases. The decision of the trial
court should not be upset on appeal absent a clear showing
of abuse of discretion. “Findings of fact by a trial court
must be supported by substantial evidence.” Substantial
evidence has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” “A trial court’s findings of fact in a bench trial
have the force of a jury verdict and are conclusive on appeal
if there is evidence to support them.” However, the trial
court’s conclusions of law must be reviewed de novo.
McConnell v. McConnell, 151 N.C. App. 622, 626, 566 S.E.2d 801, 804 (2002) (internal
citations omitted). Unchallenged findings of fact are binding on appeal. Thomas v.
Thomas, __ N.C. App. __, __, 757 S.E.2d 375, 378 (2014) (citation omitted).
In the conclusion of defendant’s brief, defendant purports to be challenging the
trial court’s findings of fact #40, #41, #42, #43, #44, #52, #54, and #55. However,
defendant only specifically argued in the body of his brief that findings of fact #41
and #44 were unsupported by competent evidence. The remaining findings that
defendant did not specifically argue lacked evidentiary support have been abandoned
and are binding on appeal. See In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403,
404-05 (2005) (deeming findings of fact binding, although specifically challenged on
appeal, because the party abandoned her appeal of those findings by “fail[ing] to
specifically argue in her brief that [the findings] were unsupported by evidence”); see
also N.C.R. App. P. 28(b)(6) (2015) (“Issues not presented in a party’s brief, or in
support of which no reason or argument is stated, will be taken as abandoned.”).
B. Findings of Fact Unsupported by Evidence
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Opinion of the Court
Defendant contends that two of the trial court’s findings of fact are not
supported by competent evidence. Specifically, defendant argues that there was no
competent evidence to support the portion of finding of fact #41 that states: “While
[defendant’s] attendance [at the hearing] was not required by any statute or legal
argument to the [c]ourt, he failed to offer any direct competent evidence for the
[c]ourt’s consideration[,]” and finding of fact #44, which states: “Other than the
information provided about his participation in visitation under supervised
conditions, the [c]ourt has not received any competent evidence as to his parental
abilities, responsibilities, and best interest of the minor child as it relates to the minor
child herein.”
In the instant case, defendant did offer competent evidence by introducing
testimony by Jennifer Stillman, Program Coordinator with FAS, as well as by
introducing the records and notes from FAS relating to defendant’s interaction with
Billy. According to this evidence, defendant acted appropriately when interacting
with Billy and never violated any FAS guidelines during supervised visitation. In
addition, defendant was deposed, and his deposition was admitted into evidence.
Although defendant never personally appeared at the hearing, he did offer competent
evidence by way of Stillman’s testimony, the FAS records, and his deposition.
However, even assuming, arguendo, that both findings are not supported by
competent evidence, it is of no consequence to the instant case. The remaining
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binding findings of fact, cited above, are sufficient to support the trial court’s
judgment and for our review of defendant’s additional arguments. See In re Custody
of Stancil, 10 N.C. App. 545, 549, 179 S.E.2d 844, 847 (1971) (“Immaterial findings of
fact are to be disregarded.” . . . . “It is sufficient if enough [m]aterial facts are found
to support the judgment.”). Therefore, we overrule defendant’s argument.
C. Failure to Resolve Material, Disputed Issues Raised by the Evidence
Defendant contends that the trial court erred by failing to make sufficient,
detailed findings of fact resolving the issues raised by the evidence of whether child
pornography was found on defendant’s computer. We disagree.
As defendant correctly points out,
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).
Defendant contends that the 16 September 2014 order did not resolve the issues
surrounding allegations that defendant was viewing and storing child pornography
on his computer.
In Dixon, this Court addressed a somewhat analogous situation as follows:
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Opinion of the Court
Plaintiff testified that defendant had started abusing the
child when it was an infant, that he once observed her
jabbing the child’s buttocks with a diaper pin, and several
times returned home from work to find defendant beating
their child. Two former baby-sitters for the child gave
testimony relating to the defendant’s abuse of her child,
and both of defendant’s parents testified that defendant
was too strict with her son, although they denied ever
having seen evidence of mistreatment. According to a
letter to the court from the Onslow County Department of
Social Services, which letter evaluated each parent’s
fitness for custody, the department had received three child
abuse reports on the defendant, two of which were
substantiated.
The only findings of fact potentially addressing the
defendant’s tendency to corporally punish her child in an
abusive way is the finding that defendant enrolled in two
courses designed to improve her knowledge and
understanding of how to cope with physiological,
psychological, nutritional and medical problems associated
with child rearing, and further findings that defendant
stated she now uses “less force” in dealing with her son,
and that she intends to continue whatever further training
might be necessary to make her a better mother.
Id. at 78, 312 S.E.2d at 672-73. The Dixon Court then reasoned:
Any evidence of child abuse is of the utmost concern in
determining whether granting custody to a particular
party will best promote the interest and welfare of the
child, and it is clear that the findings of fact at bar do not
adequately resolve the issue of child abuse raised by the
evidence in the record. We do not here imply that the
evidence establishes that defendant is currently abusing
her child, nor do we hold that any evidence of child abuse
means that the abusing parent has permanently forfeited
any right to ever gain custody. We do hold, however, that
the nature of child abuse, it being such a terrible fate to
befall a child, obligates a trial court to resolve any evidence
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Opinion of the Court
of it in its findings of fact. This was not done and the order
is therefore vacated and the case remanded for a new
hearing on the issue of custody.
Id. at 78-79, 312 S.E.2d at 673. When making custody determinations, it is
imperative that a trial court makes sufficient findings of fact concerning issues
related to the health and safety of the children involved. Whether a parent is viewing
and storing child pornography, akin to whether a parent is physically abusive, is
certainly critical to a trial court’s determination of whether to grant custody to a
particular party and is of the utmost concern to the health and safety of a child in
that parent’s control.
There are, however, major differences among the facts in Dixon and the facts
in the instant case. In Dixon, the trial court awarded custody of the child to the person
accused of the abuse and made no findings directly addressing the accusations of
abuse. Id. at 75, 312 S.E.2d at 671. In the instant case, the trial court did not award
custody, or even unsupervised visitation, of Billy to the parent accused of the
inappropriate conduct, and the trial court directly addressed the issue of the child
pornography allegations. The trial court found that, because defendant refused to
answer questions related to those allegations in his deposition, and because he failed
to testify or present any other evidence relevant to those allegations at the hearing,
the trial court had insufficient evidence from which to make a determination.
Because the trial court did not have all the information it required, due in part to
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Opinion of the Court
defendant’s decision not to fully participate in the proceedings, the trial court
continued to limit defendant’s visitation with the child to supervised visits at FAS.
The trial court clearly stated that it would revisit its imposition of limited supervised
visitation once defendant obtained a full “psychological report and parenting
assessment,” and when the trial court obtained a “complete forensic evaluation of the
offer of proof regarding criminal investigations and material recovered from . . .
[d]efendant’s computer[.]”
Furthermore, although “[a custody order] must resolve the material, disputed
issues raised by the evidence,” Carpenter v. Carpenter, 225 N.C. App. 269, 273, 737
S.E.2d 783, 787 (2013), “[a] trial court’s inability to determine the fitness of a parent
is an adequate basis for not awarding custody to that parent.” Qurneh v. Colie, 122
N.C. App. 553, 558, 471 S.E.2d 433, 436 (1996). The trial court’s findings of fact were
sufficiently detailed regarding the allegations of defendant’s use and possession of
child pornography, based upon the evidence the trial court had before it. Id. at 76-
77, 312 S.E.2d at 672. These findings are sufficient for our review of the trial court’s
best interests determination. Id. Therefore, we overrule defendant’s challenge.
D. Denial of Reasonable Visitation
Defendant contends the trial court erred in “denying [him] reasonable
visitation with the . . . child without finding that [he] was an unfit person to visit with
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the child or that such visitation would injuriously affect the welfare of the child.” We
disagree.
N.C. Gen. Stat. § 50-13.5(i) (2015) states:
In any case in which an award of child custody is made in
a district court, the trial judge, prior to denying a parent
the right of reasonable visitation, shall make a written
finding of fact that the parent being denied visitation rights
is an unfit person to visit the child or that such visitation
rights are not in the best interest of the child.
This Court has reasoned:
The right of visitation is an important, natural and legal
right, although it is not an absolute right, but is one which
must yield to the good of the child. A parent’s right of
access to his or her child will ordinarily be decreed unless
the parent has forfeited the privilege by his conduct or
unless the exercise of the privilege would injuriously affect
the welfare of the child, for it is only in exceptional cases
that this right should be denied. But when it is clearly
shown to be best for the welfare of the child, either parent
may be denied the right of access to his or her own child.
Stancil, 10 N.C. App. at 550, 179 S.E.2d at 848 (citation omitted). Defendant argues
that the trial court failed to find either that he had forfeited his rights to unsupervised
visitation, or that unsupervised visits would not be in Billy’s best interest. For this
reason, defendant contends, the trial court was without authority to impose the
restrictions on his visitation that were included in the 16 September 2014 order.
However, this Court has recognized that refusal by a parent to provide information
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that is necessary for a trial court to make custody-related determinations can serve
as a basis to deny that parent certain rights.
In Qurneh v. Colie, this Court addressed the impact of a natural parent
invoking his Fifth Amendment right against self-incrimination in the context of a
custody hearing:
The privilege against self-incrimination is intended to be a
shield and not a sword. Here, the plaintiff attempted to
assert the privilege as both a shield and a sword.
In an initial custody hearing, it is presumed that it is in the
best interest of the child to be in the custody of the natural
parent if the natural parent is fit and has not neglected the
welfare of the child. Plaintiff sought to take advantage of
this presumption by introducing evidence of his fitness.
See Wilson v. Wilson, 269 N.C. 676, 677, 153 S.E.2d 349,
351 (1967) (holding that in order to be entitled to this
presumption, the natural parent must make a showing
that he or she is fit). However, when the defendant sought
to rebut this presumption by questioning the plaintiff
regarding his illegal drug activity, the plaintiff asserted his
fifth amendment privilege. To allow plaintiff to take
advantage of this presumption while curtailing the
opposing party’s ability to prove him unfit would not
promote the interest and welfare of the child. N.C. Gen.
Stat. § 50-13.2(a)(1995).
122 N.C. App. 553, 558, 471 S.E.2d 433, 436 (1996) (some citations omitted). The
Qurneh Court went on to hold:
In a related argument, plaintiff contends that the trial
court improperly concluded that it could not determine
plaintiff’s fitness. A trial court’s inability to determine the
fitness of a parent is an adequate basis for not awarding
custody to that parent. In this State, evidence of a parent’s
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prior criminal misconduct is relevant to the question of the
parent’s fitness. Due to the plaintiff’s refusal to answer
questions regarding illegal drug use, trafficking and other
drug involvement, the trial court was unable to consider
pertinent information in determining plaintiff’s fitness. As
a policy matter, issues such as custody should only be
decided after careful consideration of all pertinent evidence
in order to ensure the best interests of the child are
protected. Plaintiff’s decision not to answer certain
questions relating to his past illegal drug activity by
invoking his fifth amendment privilege prevented the court
from determining his fitness and necessitated the
dismissal of his claim.
Id. at 558-59, 471 S.E.2d at 436 (citations omitted) (emphasis added).
In the instant case, as in Qurneh, defendant is attempting to use his
unwillingness to provide certain evidence to the trial court, mainly through his
refusal to testify regarding the child pornography allegations, as a means of attacking
the lack of such evidence to support the order. We hold that the trial court did not
err in making its visitation determinations based upon its inability to determine
defendant’s fitness as a parent. Id. We again note that the trial court has clearly
stated in its order that it will revisit the issue of visitation once defendant has
obtained a psychological evaluation and a parenting assessment, and once the court
obtains the results of “a complete forensic evaluation of the offer of proof regarding
criminal investigations and material recovered from [d]efendant’s computer.”
Therefore, defendant’s argument is overruled.
E. Correction of Clerical Error
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Defendant contends the trial court erred by reducing his supervised visitation
privileges to a greater degree than those privileges that the parties agreed to in the
16 April 2013 memorandum order. Specifically, defendant challenges the trial court’s
finding of fact #55, which provided that “the supervised visitation schedule as
provided in the April 16, 2013 Memorandum of Judgment/Order provides reasonable
visitation privileges for [defendant],” and its corresponding order that defendant
“shall exercise supervised visitation at the FAS in Burlington . . . every other Sunday
for up to two (2) hours.”
The 16 April 2013 visitation schedule provided for “supervised visitation for up
to two hours each week[.]” Those visits were ordered “every other Sunday and every
other Thursday so that [defendant] has up to two hours each week.” In its finding of
fact #55, the trial court determined that this schedule provided reasonable visitation
for defendant. However, the trial court ordered in the decretal portion of its order
that defendant “shall exercise supervised visitation at the FAS in Burlington, North
Carolina every other Sunday for up to two (2) hours.” Because we can discern no
reason why the trial court would restrict defendant’s visitation schedule any further,
we assume this item in the decretal portion of the trial court’s order was a clerical
error. Therefore, we remand this portion of the order for the limited purpose of
correcting this error.
III. Conclusion
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The trial court properly entered an initial custody order awarding primary and
legal custody of Billy to plaintiff and supervised visitation to defendant, until such
time as the court is able to gather more evidence of defendant’s parenting abilities.
First, even if the findings of fact challenged by the defendant were unsupported
by competent evidence, those findings were immaterial in light of the remaining
findings that were binding on appeal. Second, the trial court’s findings of fact relating
to the issue of child pornography were sufficiently detailed based upon the incomplete
evidence presented to the trial court, due in part to defendant’s inability to participate
in the proceedings. Although the issue of defendant allegedly viewing and storing
child pornography certainly is critical in determining Billy’s best interest, resolution
of this issue was not possible because the investigation was incomplete and defendant
refused to testify. The resolution of the issues raised by the allegations of child
pornography were not required prior to the trial court granting primary custody to
plaintiff and continued supervised visitation to defendant. Third, while defendant
was not required to attend the custody hearings, the trial court had authority to base
its custody determination in part on its inability to determine defendant’s fitness as
a parent, which was caused by defendant’s failure to participate fully in the
proceedings and, specifically, defendant’s refusal to answer questions regarding the
allegations of child pornography.
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Significantly, the trial court invited defendant to return to court for a
modification of the initial custody order once it was able to gather more evidence of
defendant’s character, temperament, and ability to support and care for Billy.
Defendant’s modification depends upon his completion of a mental health evaluation
and a parenting assessment. Another condition for the modification is a forensic
evaluation of the offer of proof regarding the criminal investigations of child
pornography and related material recovered from defendant’s computer. We affirm
the trial court’s initial custody order and remand for the limited purpose of correcting
a clerical error in its order to reflect the correct supervised visitation schedule of 16
April 2013.
AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR.
Judges BRYANT and ZACHARY concur.
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