Summary
holding the trial court erred in modifying custody of a child when "[t]he only finding of change in circumstances as to [the minor child] was that defendant [had moved to] Mecklenburg County, North Carolina"
Summary of this case from Fields v. FieldsOpinion
No. 7226DC775
Filed 22 November 1972
1. Divorce and Alimony 24 — custody order — sufficiency of findings and evidence Order awarding custody of two children of the parties to the mother with visitation privileges to the father was supported by sufficient findings of fact based on competent evidence.
2. Divorce and Alimony 24 — modification of custody order — change of conditions — change of residence A finding that the mother "is now residing in Mecklenburg County, North Carolina" is not a finding of a substantial change of circumstances that will support the modification of a child custody order. G.S. 50-13.7.
APPEAL by plaintiff from Belk, District Judge, 27 March 1972 Session of MECKLENBURG District Court.
Edwards and Millsaps by Joe T. Millsaps for plaintiff appellant.
Farris, Mallard Underwood by E. Lynwood Mallard for defendant appellee.
This is an action for custody of children brought by plaintiff husband against defendant wife.
In his complaint filed 28 February 1972 plaintiff in pertinent part alleges: Plaintiff and defendant were married to each other on 29 November 1963. Three children were born to the marriage, namely, Leslie Jane, age 8, Bruce, age 7, and Amy, age 4. On 29 June 1971 defendant abandoned plaintiff by leaving their home in Charlotte and taking the children to New York where she began living with another man. The custody of Bruce has been previously granted to plaintiff under an order of the Mecklenburg District Court. Defendant is an unfit person to have custody of the children.
In her answer, defendant admitted the marriage and that custody of Bruce had been awarded to plaintiff. She denied that plaintiff is Leslie Jane's natural father but alleged that plaintiff had adopted her. Defendant pleaded a counterclaim in which she set forth her contentions as to the parties' marital troubles; she further alleged that she had returned to Charlotte to live and that the best interest of all three children would be promoted by awarding their custody to her. She asked for custody of the three children and that plaintiff be required to contribute to their support.
Following a hearing the court entered an order finding, among other things, that both plaintiff and defendant "are fit and proper persons to have the care and custody" of the children but their best interest and welfare would be promoted by awarding their custody to defendant. The order awarded custody of all three children to defendant, with visitation privileges to plaintiff, and required that plaintiff, beginning in June 1972, pay $300.00 per month as support for the benefit of the three children.
Plaintiff appealed from the order.
We hold that the part of the order awarding custody of Leslie Jane and Amy to defendant with visitation privileges to plaintiff is supported by sufficient findings of fact based on competent evidence. Since the trial judge has the opportunity to see the parties in person and to hear the witnesses, it is mandatory that the trial judge be given wide discretion in making a determination as to custody, and that determination will not be upset on appeal absent a clear showing of abuse of discretion. In re Custody of Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971). No abuse of discretion is made to appear here.
As to that part of the order awarding custody of Bruce to defendant, we hold that the court erred. The pleadings and the evidence established, and the court found as a fact, that Bruce's custody was awarded to plaintiff by an order of Mecklenburg District Court dated 26 August 1971. To modify or vacate an order of a court of this State providing for the custody of a minor child, there must be a showing of changed circumstances, G.S. 50-13.7, and the change of circumstances must be substantial. Rothman v. Rothman, 6 N.C. App. 401, 170 S.E.2d 140 (1969). The only finding of change of circumstances as to Bruce was that "defendant is now residing in Mecklenburg County, North Carolina." We hold that this was not a substantial change of circumstances.
It would appear that any proceedings to determine Bruce's custody should be by motion in the cause in which his custody was previously awarded to plaintiff. G.S. 50-13.7.
Obviously, the $300.00 per month plaintiff is required by the order to pay for support of the children is based on the assumption he would be contributing to the support of three children. In view of our ruling as to Bruce, that part of the order providing for $300.00 monthly payments is vacated and the cause is remanded for further proceedings on that question.
As to custody of Leslie Jane and Amy, the order is affirmed.
As to custody of Bruce, the order is vacated.
As to amount of child support, the order is vacated and cause remanded.
Chief Judge MALLARD and Judge BROCK concur.