White v. White

Annotate this Case

369 S.E.2d 92 (1988)

Delores WHITE v. Anthony J. WHITE.

No. 8712DC1013.

Court of Appeals of North Carolina.

June 21, 1988.

*94 Hedahl & Radtke by Debra J. Radtke, Fayetteville, for plaintiff-appellant.

No brief for defendant-appellee.

ORR, Judge.

Plaintiff contends that the trial court erred by concluding that there had been a substantial change in circumstances which affected the welfare of the child which warranted a modification of custody. The basis of plaintiff's contention is that the findings of fact do not support that conclusion, *95 and thus the trial court erred by ordering custody transferred to defendant.

Under N.C.G.S. § 50-13.7(a) "an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested."

It is well established law in this state that a substantial change in circumstances affecting the welfare of a child must be supported by findings of fact based on competent evidence. See e.g. Tucker v. Tucker, 288 N.C. 81, 216 S.E.2d 1 (1975); Kelly v. Kelly, 77 N.C.App. 632, 335 S.E.2d 780 (1985). The "trial judge's findings of fact in custody Orders are binding on the appellate courts if supported by competent evidence." Blackley v. Blackley, 285 N.C. 358, 362, 204 S.E.2d 678, 681 (1974) (emphasis supplied and citations omitted).

The trial court is in the best position to determine what is in the best interests of the child. Wehlau v. Witek, 75 N.C.App. 596, 599, 331 S.E.2d 223, 225 (1985) (citations omitted). It is a difficult determination and one made by observing the witnesses and weighing the evidence.

We believe that the trial court had sufficient evidence to support its findings of fact and that those findings supported the trial court's conclusion of law. The evidence before the court was uncontested. Plaintiff admitted that she has had two illegitimate children since her divorce from defendant (Finding of Fact No. VIII) and that she currently has insufficient income to provide for herself and three children (Finding of Fact No. IX).

We hold that these findings are sufficient for the trial court to conclude that there was a substantial change in circumstances under N.C.G.S. § 50-13.7 and that the trial court did not err in transferring custody of the minor child to defendant.

The birth of two additional children within two years to an unmarried woman clearly constitutes a substantial change of circumstances. In addition, plaintiff's loss of her job and the resulting financial strain further supports such a finding. Plaintiff testified that she can provide for the children. However, the trial court found that the weight of the evidence was otherwise, and no additional proof of financial or other resources other than child support was introduced by plaintiff.

From the evidence before us, the trial court properly concluded that the welfare of the minor child in question would be "adversely affected unless the custody provision is modified...." Daniels v. Hatcher, 46 N.C.App. 481, 483, 265 S.E.2d 429, 431 (1980) (citation omitted).

There was evidence that the minor child was becoming difficult to control and was not receiving adequate supervision from plaintiff. Further, the evidence established that plaintiff could not meet the financial needs of herself and three children on $333 a month.

Plaintiff argues that she is being denied custody of her child because defendant has a greater income. We disagree. Defendant's income and stable home environment simply provide part of the basis for determining that the child's best interests and welfare will be promoted by awarding custody to defendant.

Collectively, the evidence supports the findings and the findings support the conclusions of law. Woncik v. Woncik, 82 N.C.App. 244, 346 S.E.2d 277 (1986).

Affirmed.

HEDRICK, C.J., and JOHNSON, J., concur.