An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 defendantappellant.

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) 
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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.
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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 
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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.
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[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?
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[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.
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[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 
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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. § 7A27(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 
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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 
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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 
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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, 
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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).
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