Charett v. Charett

256 S.E.2d 238 (1979)

42 N.C. App. 189

Richard Lucian CHARETT v. Donna H. CHARETT.

No. 784DC1008.

Court of Appeals of North Carolina.

July 3, 1979.

*240 Ellis, Hooper, Warlick, Waters & Morgan by Lana Lee Starnes, Jacksonville, for plaintiff.

Gene B. Gurganus, Jacksonville, for defendant.

PARKER, Judge.

Plaintiff assigns error to the trial court's conclusion that "the plaintiff has failed to show that there has been a substantial and material change in circumstances since the court's order of 7 November 1975." The plaintiff contends that the facts found by the court compel a contrary conclusion. We do not agree.

*241 It is true that the specific facts found by the trial court in this case show some changes in the circumstances of the parties since entry of the prior custody award. The changes shown may even be sufficient to warrant a change in the custody order previously entered. See In re Custody of King, 11 N.C.App. 418, 181 S.E.2d 221 (1971); Elmore v. Elmore, 4 N.C.App. 192, 166 S.E.2d 506 (1969). In our opinion, however, the changes shown do not compel that conclusion. Where, as here, the changes in circumstances are such as to warrant but not compel a change in the custody award, the decision of the trial judge to modify or not to modify that award will not be disturbed on appeal. "The trial judge, who has the opportunity to see and hear the parties and the witnesses, is vested with broad discretion in cases involving custody of children." Blackley v. Blackley, 285 N.C. 358, 362, 204 S.E.2d 678, 681 (1974). The trial court's position in this regard is far superior to that of the appellate court which must base its decisions upon a cold record. The trial court's decision in this case, which in effect did give plaintiff custody of the child during specified periods of the year, was within the court's discretion and no abuse of that discretion has been shown. Plaintiff's assignment of error is overruled.

The defendant's primary contention in her appeal is that the trial court erred in modifying plaintiff's visitation rights upon a motion for change in custody. This assignment of error has no merit. Custody and visitation are two facets of the same issue. The issue of visitation was before the court upon plaintiff's motion for modification of the custody award on the basis of changed circumstances. This assignment of error is overruled.

Defendant also assigns error to the trial court's order compelling her to split the expense of the child's transportation for visitation purposes. We find that the order was within the trial court's discretion and did not constitute an abuse of discretion.

We have carefully considered all of defendant's remaining assignments of error and find no prejudicial error.

Neither party in this case is entirely satisfied with the order of the trial court. This is almost always true in a contested child custody matter. The courts, seeking always to advance the best interests of the child, can only make the best of a situation which is already sad and unpleasant for all concerned. This, the trial court has done in the present case. The order appealed from is

Affirmed.

ERWIN and HARRY C. MARTIN, JJ., concur.