Stanback v. Stanback

145 S.E.2d 332 (1965)

266 N.C. 72

Fred J. STANBACK, Jr. v. Vanita B. STANBACK.

No. 603.

Supreme Court of North Carolina.

December 15, 1965.

*333 From the order, the plaintiff appealed.

Kluttz & Hamlin, by Clarence Kluttz, Salisbury, Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by Norwood Robinson, and Robert A. Melott, Winston-Salem, for plaintiff appellant.

Kesler & Seay, by Thomas W. Seay, Jr., Salisbury, Walser, Brinkley, Walser & McGirt, by Walter F. Brinkley, Lexington, George L. Burke, Jr., Salisbury, for defendant appellee.

*334 HIGGINS, Justice.

The only question now presented for decision is the validity of the order entered by Judge Gwyn on June 19, 1965, modifying Judge Walker's custody order of April 26, 1965. In divorce actions, whether for the dissolution of the marriage or from bed and board, the court in which the action is brought acquires jurisdiction over the custody of the unemancipated children of the parties. Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879. The jurisdiction continues even after divorce. Reece v. Reece, 231 N.C. 321, 56 S.E.2d 641. The children of the marriage become the wards of the court and their welfare is the determining factor in custody proceedings. Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133. As children develop their needs change; nevertheless, the needs must be supplied by the parent whose ability to supply them may change. For these reasons orders in custody proceedings are not final.

Ordinarily, there is no appeal from one Superior Court to another. Neighbors v. Neighbors, 236 N.C. 531, 73 S.E.2d 153. In matters of law or legal inference the appeal must be from the Superior Court to the Supreme Court. However, because of the court's paramount regard for the welfare of children whose parents are separated, the court, for their benefit, and upon proper showing, may modify or change a custody award. Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871; Smith v. Smith, 241 N.C. 307, 84 S.E.2d 891; Cameron v. Cameron, 232 N.C. 686, 61 S.E.2d 913.

In this case Judge Walker, on April 22, 1965, entered his custody order based upon the verified pleadings and the affidavits submitted by both parties. In the complaint the plaintiff alleged his fitness and the defendant's unfitnes for the children's custody. The plaintiff's affidavits43 in numbertended to support the allegations of his complaint. The defendant's answer alleged her fitness and the plaintiff's unfitness for custody. Her affidavitsfour in numbertended to support her claim. Dr. Green, her personal physician since January, 1963, and Dr. Corpening, who had treated the children, made affidavit that they had never observed any signs of alcoholism or lack of proper care for the children. Judge Walker made the findings set out in the statement of facts and entered his order awarding custody to the plaintiff. In addition to custody, the court awarded the home to the defendant and required the plaintiff to pay $100.00 a week alimony and the expenses incident to keeping up the house. The court also awarded defendant's attorneys $2,000.00.

Sixteen days subsequent to Judge Walker's order the defendant made a motion in the cause before Judge Gwyn, "(T)hat the court investigate and consider in this matter * * * the custody (of the two children) and make such order as to the court seems just and proper and for the best interest of the infants * * *" The plaintiff, by motion, challenged the jurisdiction of Judge Gwyn upon the ground that Judge Walker had decided the controversy and that a change in condition was not alleged and had not taken place.

Judge Gwyn conducted a hearing upon the basis of the pleadings, the affidavits before Judge Walker, and in addition 18 new affidavits filed by the plaintiff and 38 filed by the defendant. Among the new affidavits introduced by the defendant were three from New York doctors specializing in psychiatry. Drs. Sullivan, Rule, and Lipton examined the defendant on May 27 in New York. Each gave as his opinion on the basis of this examination that the defendant is well able to care for her children. Dr. Sullivan stated: "On the basis of facts made known to me I find her well able to look after her children." However, affiant also stated: "No specific psychiatric diagnosis can be arrived at. There is certainly no clear cut indication of paranoid psychosis."

*335 Dr. Rule stated: "There is, of course, no history suggestive of psychotic depressive process, although she had had two full time pregnancies and is at the present in the late stages of the third. There is no slowing nor any evidence of manic agitation. The behavior she describes, including the cutting of a pair of her husband's pants indicates no deep rooted psychotic trend."

Dr. Lipton said: "There is no indication of any severe neurotic or psychiatric process."

A fair analysis of the evidence before Judge Walker emphasizes its sharply conflicting character. The affidavits of the three doctors from New York, on the basis of their single examination, do not disclose that any change had taken place in the defendant's condition between April 22, 1965 and the date of their examination on May 27, 1965. The tenor of those affidavits follows that expressed by Dr. Green and Dr. Corpening which were considered by Judge Walker. There is no evidence the fitness or unfitness of either party had changed between the hearings. There is no evidence the needs of the boys had changed during that time, or that they were not properly cared for by the father.

A judgment awarding custody is based upon the conditions found to exist at the time it is entered. The judgment is subject to such change as is necessary to make it conform to changed conditions when they occur. In a bitter controversy between separated parents over the custody of children, one is usually dissatisfied with the award. The aggrieved party, however, must appeal to the Supreme Court, or must wait for a more favorable factual background in which to demand another hearing by motion in the cause. "It may be well to note, that on a hearing of this kind, the judgment is not intended to be a final determination of the rights of the parties touching the care and control of the child, but, on a change of conditions, properly established, * * * the question may be further heard and determined." In Re Means, 176 N.C. 307, 97 S.E. 39. The pleadings and the affidavits show the intense bitterness existing between the parents of the two boys whose custody is here involved. Whether the one or the other should be awarded exclusive custody, or whether in the light of the background the boys should be required to switch from one to the other each week, are matters of grave concern that the courts, both trial and appellate, may not view lightly.

This controversy illustrates the difficulty of determining disputed facts from ex parte affidavits. When this case is heard on the merits, where the witnesses are before the court and subject to cross-examination, the findings thus established will, or may, justify a change in the order. Judge Gwyn's finding of changed conditions is not supported by the evidence. Absent evidence of change he was without authority to modify Judge Walker's order. A famous Civil War Cavalry hero, asked to explain his successful battle tactics, replied, "Git thar fust." In this case Judge Walker "got thar fust."

Reversed.