Greer v. Greer

167 S.E.2d 782 (1969)

5 N.C. App. 160

Tom GREER, Plaintiff, v. Marion Allison GREER, Defendant, and Roby Greer and wife, Ruth G. Greer; and Robert L. Allison and wife, Lena R. Allison, Additional Defendants.

No. 6924SC203.

Court of Appeals of North Carolina.

June 18, 1969.

*783 McElwee & Hall, by Jerone C. Herring, North Wilkesboro, and Stacy C. Eggers, Jr., Boone, for plaintiff appellant.

R. F. Crouse, Sparta, and Allen & Henderson, by H. F. Henderson, Elkin, for defendant appellees, Marion Allison Greer, Robert L. Allison and wife, Lena R. Allison.

MORRIS, Judge.

"When parents separate and later are divorced, `(t)he children of the marriage become the wards of the court and their welfare is the determining factor in custody proceedings.'" In Re Custody of Ross, 1 N.C.App. 393, 161 S.E.2d 623. The guiding principle to be used by the court in a custody hearing is the welfare of the children involved. "While this guiding principle is clear, decision in particular cases is often difficult and necessarily a wide discretion is vested in the trial judge. He has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion." In Re Custody of Pitts, 2 N.C.App. 211, 162 S.E.2d 524. G.S. § 50-13.2(a) provides: "An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will, in the opinion of the judge, best promote the interest and welfare of the child." This statute became effective subsequent to the commencement of this action, however, the statute "merely codified the rule which had been many times announced by the North Carolina Supreme Court to the effect that in custody cases the welfare of the child is the polar star by which the court's decision must ever be guided." In Re Custody of Pitts, supra.

Also, see Holmes v. Sanders, 243 N.C. 171, 90 S.E.2d 382, where the Supreme Court, in upholding the trial court's decision to award custody of a child to the grandparents, stated that the welfare of the child was the controlling consideration. These same parties were again before the Supreme Court in Holmes v. Sanders, 246 N.C. 200, 97 S.E.2d 683. In the second proceeding the trial court had found that the petitioner, the father, was a person of good reputation but that it would be in the best interest of the children to remain in the custody of their grandparents. The Supreme Court upheld this decision stating:

"There is plenary competent evidence to support Judge Bickett's findings of fact, and his findings of fact support his judgment. The findings of fact by Judge Williams and Judge Bickett clearly show there are substantial reasons to deprive petitioner of the custody of his child. Judge Bickett's judgment is in accord with our decisions that the child's *784 welfare is the paramount consideration, and that a parent's love must yield to another if, after judicial investigation, it is found that the best interest of the child is subserved thereby."

In the present case, the findings of fact, supported by the evidence, show that the parents of the two minor children agreed, prior to the institution of this action, that the grandparents would have custody of the children; that they have had custody since the separation in 1966 and that no complaint or criticism pertaining to the manner in which the children were being cared for had been brought to the attention of the court; and that the plaintiff, the father, will be a student at Wake Forest College, and his present wife resides in Greenville, North Carolina, where she holds a teaching position. The court found that the defendant, the mother of the children, resided in Sparta, North Carolina, and that she held a teaching position in Virginia.

We think these facts found by the trial court are sufficient to support his conclusion that now the best interest of the children would be served by placing them in the custody of their grandparents. Certainly, the two minor children have been in an emotional strain since the separation of their parents. Judge Bryson apparently felt that the welfare of the children at the present time would be served by leaving them with persons with whom they are familiar, and who have cared for them in a proper manner. As a student at Wake Forest University in Winston-Salem, the plaintiff of necessity will be away from home much of the time. His present wife teaches and thus will not be able to spend the time with the children which, apparently, Judge Bryson felt desirable. The defendant does not appeal from the order of Judge Bryson. In upholding the order of the trial court we recognize that custody cases generally involve difficult decisions. The trial judge has the opportunity to see the parties in person and to hear the witnesses. It is mandatory, in such a situation, that the trial judge be given a wide discretion in making his determination, and it is clear that his decision ought not to be upset on appeal absent a clear showing of abuse of discretion. In the order before us, we find no clear showing of an abuse of the discretion given a trial judge in a custody matter. The order is

Affirmed.

CAMPBELL and BROCK, JJ., concur.