An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-728
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 18 February 2014


BRADLEY JOAQUIN DEWITT,
     Plaintiff,

      v.                                      Transylvania County
                                              No. 12 CVD 426
LAURA ANNE DEWITT,
     Defendant.


      Appeal by defendant from order entered 21 December 2012 by

Judge    Mack   Brittain     in    Transylvania      County    District     Court.

Heard in the Court of Appeals 20 November 2013.


      No brief filed on behalf of plaintiff-appellee.

      Donald H. Barton, P.C., by Donald H. Barton, for defendant-
      appellant.


      HUNTER, JR., Robert N., Judge.


      Laura Anne Dewitt (“Defendant” or “Mother”) appeals from a

child custody order granting joint legal custody                     to her and

Bradley Joaquin Dewitt (“Plaintiff” or “Father”), as well as

primary    physical      custody     to   Mother     and   secondary      physical

custody to Father.        Mother argues that the trial court erred by:

(1) denying Mother’s proffer of Defendant’s Exhibit 1; and (2)
                                      -2-
closing the proceedings before Mother’s witness appeared.                   We

affirm.

                        I. Facts & Procedural History

      On 8 May 2012, Father filed a complaint for custody of the

parties’ minor child in Henderson County.            Following a motion to

transfer venue and a stipulation to venue, the case was removed

to Transylvania County.         The trial court heard testimony and

received    exhibits    from   both   parties   at   hearings    before    the

Honorable Mack Brittain in Transylvania County District Court on

22 October, 24 October, and 12 December 2012.              The trial court’s

uncontested findings of fact showed the following.

      Father and Mother met while both were serving in the United

States Navy and married on 12 February 2011.            Father’s duties in

the Navy required him to be away from home for “all but a few

months of the marriage.”        The parties separated on 29 November

2011.     On 17 January 2012, the parties’ minor child was born.1

      Mother had sole custody of the child from birth to the time

of the hearings.        Although Father sought to be a part of the

child rearing, Mother refused to allow him to participate except

for   hourly   visits   supervised     by   Mother   and    members   of   her



1
  Although the 21 December 2012 order mistakenly lists 7 January
2012, the pleadings and testimony of the parties make it clear
that 17 January 2012 is the child’s birthday.
                                  -3-
family.     At the time of the hearings, Mother lived with her

parents in Transylvania County and worked part time at the Food

Matters Market.       Father lived in San Diego, California and was

still on active duty with the United States Navy.              Father had

been paying $300 per month in child support and provided health

insurance   for   the   child.    The   trial   court   also   found   the

following undisputed facts:

            4. Father suffered with the abuse of alcohol
            during the marriage.     Father sought and
            completed counseling regarding his alcohol
            use/abuse and does not appear to continue
            the abuse of alcohol. Father has never used
            alcohol in the presence of the minor child
            and father’s past abuse of alcohol does not
            appear likely to effect the best interests
            of the minor child.     Mother has suffered
            with mental health issues, specifically
            depression, in the past.   Mother sought and
            completed counseling regarding her mental
            health issues and does not appear to suffer
            ongoing mental health issues. Mother’s past
            mental health issues do not appear to have
            effected the best interests of the minor
            child nor does it appear the past issues are
            likely to effect the child’s best interests
            in the future.

            . . . .

            11.   Mother alleged that father subjected
            mother to domestic violence during the
            marriage.    The Court is not able to
            determine whether or not domestic violence
            occurred between the parties.     Further,
            there has not been sufficient evidence to
            show that the child has been or will be
                                  -4-
         effected by       any   past   acts   of   domestic
         violence.

         12.    The parties have not been able to
         effectively communicate with one another
         regarding visitation or other issues related
         to the child.

    At the 24 October 2012 hearing, during Mother’s testimony,

her counsel offered into evidence Defendant’s Exhibit 1.       The

exchange was as follows:

         [Mother’s   Counsel:]   I  will   show   you
         Defendant’s Exhibit 1. Do you recognize that
         as a series of exchanges on a Facebook page?
         (Tenders)

         [Mother:] (Upon review) Yes, sir.

         [Mother’s Counsel:] What is this and how did
         you obtain it?

         [Mother:] This is a message between Brad and
         a woman, Ally Hoover. I obtained it through
         his -- accessing his Facebook page, as I
         knew all his passwords for his log-ins. When
         we were married, he gave me permission to
         log in to his accounts for various reasons.

         [Mother’s Counsel:] Now, what does Mr.
         Dewitt say in this series of exchanges
         concerning your getting out of the navy?

         [Father’s Counsel:] For the purpose of the
         record, Judge, I object based upon privacy
         when you get into somebody’s Facebook using
         their password.

         [The Court:] The objection is sustained.

         [Father’s Counsel:] Thank you.
                                       -5-
            [Mother’s Counsel:] Your Honor, Mr. Dewitt
            has already looked at this, identified, and
            agreed he made all these statements.

            [The Court:] The objection is sustained.

Mother did not make an offer of proof at that time or anytime

during the 24 October 2012 hearing.

    At     the   12   December   2012    hearing,      Mother   completed   her

testimony and her father, Alejandro Echeverry, testified on her

behalf.      After    Mr.   Echeverry’s       testimony,    Mother’s   counsel

requested    a    five-minute     recess       to      locate   the    maternal

grandmother of the child to testify as a witness.               The following

exchange    between    counsel   and    the    court    occurred   after    this

recess:

            [The Court:] You folks decided to have her
            away from here rather than have her here for
            court this morning. You indicated it would
            be five minutes, and then you’ve indicated
            it would be longer than that. Is there
            further evidence from Mom?

            [Mother’s   Counsel:]   Judge,  I   did   not
            indicate five minutes. What I said was that
            she was at home. I needed to have time to
            make a call to try to get her going. We did.
            She was going when I got the update. She’s
            en route right now. She’s actually in the
            car. She’ll arrive whatever time it takes to
            drive down here, normally about 20 minutes.

            [The Court:] Yes,          sir.    Is   there   further
            evidence from Mom?
                                -6-
         [Mother’s Counsel:] We would beg the Court’s
         indulgence for that witness. That’s our
         witness, Your Honor.

    The trial court did not directly address Mother’s counsel’s

request at that point, but instead moved on and asked whether

there was rebuttal evidence from Father.    Father then requested

a temporary custody order until the written order was issued.

    At that time, Mother’s counsel asked to make a proffer of

Defendant’s Exhibit 1.   The following exchange occurred:

         [Father’s Counsel]: It’s with an unrelated
         third party, Judge, who has not been here to
         testify.

         [Mother’s     Counsel]:      It’s    several
         communications between the plaintiff and
         someone else, and I simply want to have
         Defendant’s Exhibit 1 -- if Your Honor would
         admit it simply to put in the record to
         preserve that issue. I’m now asking the
         Court (inaudible) offer of proof.

         [The Court]: So after the close of the
         evidence, you’re desiring to make an offer
         of proof regarding an item of evidence that
         was not admitted; is that correct?

         [Mother’s Counsel]: Judge, you’re putting me
         in a position of arguing with the Court. I
         don’t want to do that. I didn’t close the
         evidence. I have another witness I want to
         call. You apparently ruled. You didn’t rule
         specifically. You just said, “We’re moving
         on.” But I have another witness. I never
         rested my case. You may be assuming that. I
         have not rested at this point. I’m making an
         offer of proof on Defendant’s Exhibit 1.
                                    -7-
           [The Court]: [Mother’s Counsel], I asked you
           several times if you had further evidence.
           The response every time was that some
           witness, that being the mother of the -- the
           maternal grandmother of the child, would be
           here from Connestee. We delayed the start of
           court this morning so you could call that
           witness so that witness could be here when
           she was called to take the witness stand. We
           then delayed court 30 minutes later for five
           minutes for you to check on her progress.
           You then reported that she was just leaving
           Connestee and it would be approximately 20
           minutes, is my recollection, until she would
           arrive. I can ask you 100 more times. If you
           don’t call a witness, I deem that you have
           no further evidence to present.

           [Mother’s Counsel]: Well, as I said, I can
           only    say   I  never   rested  my   case.
           (Inaudible), but I did not rest my case. I
           tender,    that is   an   offer of   proof,
           Defendant’s Exhibit 1 excluded (inaudible).
           That’s all.

           [The Court]: Motion to tender that is
           denied, and that the evidence in this case
           has been heard, the case is closed. I will
           ask you again the question that I asked that
           precipitated this which was whether or not
           you agree to or object to the Court
           considering temporary custody at this time.

Mother noted for the record that the hearing began about 9:00

a.m. and ended at 9:47 a.m.

    The trial court granted joint legal custody and granted

primary   physical   custody   to   Mother,   with   secondary   physical

custody to Father.     Father received custody for two weeks every

other month, with an additional week during the summer.            Father
                                         -8-
must pick up the child from Mother at the beginning of his

visitation, and Mother must pick up the child from Father at the

end   of       his   visitation.          When     the   minor      child       begins

Kindergarten, Father            will have custody for six weeks in the

summer and will alternate breaks and holidays with Mother.                         The

order also required Father to pay child support of $716 per

month.

      On 22 January 2013, Mother filed timely notice of appeal

with this Court.

                                     II. Jurisdiction

      As   a    final     judgment    from    a   district   court   in     a   civil

action, appeal lies with this Court under N.C. Gen. Stat. § 7A-

27(b)(2) (2013).

                                      III. Analysis

      Mother contends that the trial court erred by: (1) denying

Mother’s proffer of Defendant’s Exhibit 1; and (2) closing the

proceeding before Mother’s final witness appeared.                    We disagree

and affirm the trial court.

      Rule     43    of   our    Rules   of    Civil   Procedures    provides      as

follows:

               In an action tried before a jury, if an
               objection to a question propounded to a
               witness is sustained by the court, the court
               on request of the examining attorney shall
                                        -9-
              order a record made of the answer the
              witness would have given. . . . In actions
              tried without a jury the same procedure may
              be followed, except that the court upon
              request shall take and report the evidence
              in full, unless it clearly appears that the
              evidence is not admissible on any grounds or
              that the witness is privileged.

N.C. R. Civ. P. 43(c).            “Rule 43(c) thus requires the trial

court upon request, to allow the insertion of excluded evidence

in the record.”        Nix v. Allstate Ins. Co., 68 N.C. App. 280,

282, 314 S.E.2d 562, 564 (1984).              We recognize the importance of

allowing attorneys to make a proffer of evidence and that a

judge “should be loath to deny an attorney his right to have an

excluded answer placed in the record.”              Id. (quotation marks and

citation omitted).         In Nix, this Court found that the evidence

in question should have been admitted.               Id. at 283, 314 S.E.2d

at 564.    Because the proffer of testimony was excluded, however,

this Court was unable to determine whether the exclusion was

prejudicial and therefore remanded the case for a new trial.

Id. at 283, 314 S.E.2d at 564–65.

       Although we recognize the importance of allowing a proffer

of evidence, “[t]he trial judge . . . is not required to allow

insertion . . . in the record if it clearly appears that the

proffered testimony is not admissible on any grounds.”                 Id.; see

also   N.C.    R.   Civ.   P.   43(c)   (requiring    a   judge   to   accept   a
                                     -10-
proffer “unless it clearly appears that the evidence is not

admissible on any grounds”); see also Sheppard v. Sheppard, 38

N.C. App. 712, 714, 248 S.E.2d 871, 874 (1978) (“In actions

tried without a jury, such evidence need not be placed into the

record if it is clearly not admissible on any grounds.”).

      Unlike Nix, in the present case we do not see anything on

the face of the record that               indicates    Defendant’s Exhibit 1

should have been admitted, and Mother makes no such argument in

her brief.       We decline to order a new trial in the absence of

any argument that Defendant’s Exhibit 1 was admissible.                     To hold

otherwise    would   require   a    new    trial    any   time    a    trial   court

refused a proffer of evidence, even where the trial court found

the   evidence    was   inadmissible       and   the   appellant       presents   no

argument to the contrary.          Such a holding would be inconsistent

with Rule 43.      N.C. R. Civ. P. 43(c) (finding it unnecessary to

take a proffer where “it clearly appears that the evidence is

not admissible on any grounds”).

      Mother also argues that the trial court erred in closing

the proceedings prior to the arrival of one of her witnesses.

Mother   cites    generally    to    the    North      Carolina       Constitution,

Article I, Section 19, which states:

            No person shall be taken, imprisoned,                      or
            disseized of his freehold, liberties,                      or
                                       -11-
             privileges, or outlawed, or exiled, or in
             any manner deprived of his life, liberty, or
             property, but by the law of the land. No
             person shall be denied the equal protection
             of the laws; nor shall any person be
             subjected to discrimination by the State
             because   of   race,  color,  religion,   or
             national origin.

Mother asserts that the refusal of the trial court to allow more

time for the arrival of Mother’s witness deprived her of her

“right to due process and fundamental fairness in presenting

Defendant’s case.”

    Mother’s witness was not present when the hearing started

and was, according to Mother’s counsel, at home at the time of

the hearing.      After Mother presented all of her other evidence,

Mother’s     counsel    asked    for   a   five   minute      recess,    which    was

granted, and called the witness to “get her going.”                        Mother’s

counsel stated that it would take approximately 20 minutes for

the witness to arrive.           There was no reason given as to why the

witness was not present at the beginning of the hearing or why

Mother was waiting to have the witness “get going” until the

rest of the evidence had been presented.                      We see nothing in

these   facts    that    indicates     a   deprivation     of   due     process   or

fundamental fairness.

    Mother cites to two cases, the relevance and importance of

which   is      not     clear,    as   there      are    no     pinpoint    cites,
                                   -12-
parentheticals, or argument relating to the cases.                See Roanoke

Chowan Reg’l Hous. Auth. v. Vaughan, 81 N.C. App. 354, 358–60,

344   S.E.2d     578,   581–82    (1986)     (laying     out     due    process

requirements in the context of an eviction hearing);                   State v.

Tolley,   290    N.C.   349,   356–57,    226   S.E.2d    353,    361    (1976)

(upholding     the   trial   court’s   denial   of   a   continuance      in   a

criminal case where the defendant claimed the trial court denied

his right to compel out-of-state witnesses according to N.C.

Gen. Stat. § 15A-811 Et seq.).             “It is not the duty of this

Court to supplement an appellant’s brief with legal authority or

arguments not contained therein.”           Eaton v. Campbell, ___ N.C.

App. ___, ___, 725 S.E.2d 893, 894 (2012) (quotation marks and

citation omitted); see also Viar v. N.C. Dep’t of Transp., 359

N.C. 400, 402, 610 S.E.2d 360, 361 (2005).             Accordingly, we find

no basis for Mother’s claim that the trial court deprived Mother

of her rights to due process and fundamental fairness by failing

to leave the proceedings open.

                                 IV. Conclusion

      For the foregoing reasons, the order of the trial court is

      AFFIRMED.

      Judges ROBERT C. HUNTER and CALABRIA concur.

      Report per Rule 30(e).
-13-
