Stanback v. Stanback

155 S.E.2d 221 (1967)

270 N.C. 497

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

No. 604.

Supreme Court of North Carolina.

June 20, 1967.

*226 Shuford, Kluttz & Hamlin, Salisbury, Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by Robert A. Melott, Winston-Salem, for plaintiff.

Kesler & Seay, Salisbury, Walser, Brinkley, Walser & McGirt, Lexington, George L. Burke, Jr., Salisbury, for defendant.

SHARP, Justice:

We first consider defendant's appeal. Five issues were submitted to the jury in plaintiff's action for divorce from bed and board. The first related to the marriage, which was admitted. The second, third, and fifth issues were answered in defendant's favor; the fourth, in plaintiff's. To obtain a divorce from bed and board, however, the law requires that defendant establish only one of the grounds specified in G.S. § 50-7. Defendant attacks, with 19 assignments of error, the judgment divorcing the parties. Necessarily, these assignments *227 relate only to the fourth issue. Although one or more of the others have substantial merit, it is necessary to consider only the ninth, which relates to the following portion of the judge's charge on the fourth issue:

The constant nagging and berating of the husband by the wife may, under a given factual situation, constitute indignities. A certain amount of nagging and fussing by one's wife is apparently a thing to be taken and borne as part of the "buyer-beware" marital burden of the male, but when the nagging and criticism of the husband continues practically daily for a long period of time, there is a point reached where patience is no longer a virtue, and the law should afford relief. As the Supreme Court of Georgia so well said, in WILKINSON against WILKINSON, quoting the trial judge: "From the days of Socrates and Xantippe, men and women have known what is meant by nagging, although philology cannot define it or legal chemistry dissolve it into its elements. Humor cannot soften or wit divert it. Prayers avail nothing and threats are idle. Soft words but increase its velocity and harsh ones its violence. Darkness has for it no terrors, and the long hours of the night draw no drapery of the couch around it. The chamber where love and peace should dwell becomes an inferno, driving the poor man to the saloon, the rich one to the club, and both to the arms of the harlot. It takes the sparkle out of the wine of life and turns at night into ashes the fruits of the labor of the day." And to this he might well have added the words of Solomon that "It is better to dwell in the corner of the housetop than with a brawling woman and in a wide house." (Italics ours.)

The foregoing excerpt from the charge is taken verbatim from 1 Lee, N.C. Family Law § 82, p. 316 (3d Ed., 1963). The portion in quotations is Judge Meldrim's familiar excursus on nagging, which, since Justice Hill of the Georgia Supreme Court included it in his opinion in Wilkinson v. Wilkinson, 159 Ga. 332, 339, 125 S.E. 856, 859, has often reappeared in the picturesque speech columns of both legal and popular periodicals. Judge Meldrim, however, when he delivered his animadversion upon nagging, was overruling a demurrer to a complaint in a divorce action. His philippic was never intended for use by a trial judge in instructing a jury in a jurisdiction where judges are circumscribed by a statute such as G.S. § 1-180. It was Justice Hill, who, after quoting Judge Meldrim, added the words of King Solomon which we have italicized above (Proverbs, 25:24). To the jury, however, it was Judge May who was superimposing Solomon's condemnation upon the excoriation which he had just quoted with approval from the Georgia court. The jurors most certainly understood that his Honor thought the reference to a "brawling woman" was applicable to defendant and that Judge Meldrim's were words "fitly spoken" of her. Defendant's Assignment of Error No. 9 is sustained.

G.S. § 1-180 imposes upon the trial judge the duty to state in a plain and correct manner the evidence given in the case and to declare and explain the law arising thereon, without expressing any opinion on the facts. State v. Benton, 226 N.C. 745, 40 S.E.2d 617. "There must be no indication of the judge's opinion upon the facts to the hurt of either party, either directly or indirectly, by words or conduct." Fourth Nat. Bank v. McArthur, 168 N.C. 48, 52, 84 S.E. 39, 41. When such an indication occurs, there must be a new trial. State v. Williamson, 250 N.C. 204, 108 S.E.2d 443; Withers v. Lane, 144 N.C. 184, 56 S.E. 855; Meadows v. Western Union Telegraph Co., 131 N.C. 73, 42 S.E. 534.

Defendant's Assignments of Error three, four, five, and six attack Judge May's judgment granting custody of the parties' two boys, Bradford and Lawrence, to plaintiff.

*228 The familiar rule is that "[t]he welfare of the child should be the paramount consideration which guides the court in making an award of custody." Gafford v. Phelps, 235 N.C. 218, 222, 69 S.E.2d 313, 316; 3 Lee, N.C. Family Law § 224 (1963); 2 Strong, N.C. Index, Divorce and Alimony § 24 (1959). Which of the two contending parents shall have the custody of their children is a question addressed to the discretion of the trial judge, who must decide the probative force of conflicting evidence and make the difficult and heartrending decision. Once he has made it, it will ordinarily be upheld if supported by competent evidence. Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73; Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133.

Defendant does not controvert this rule. Her contention is that, in awarding custody, the judge did not exercise his discretion, but acted upon the mistaken premiseas shown by his statement made upon the return of the verdictthat the former opinion in this case required him to award custody to the party who won the jury's verdict.

Patently, Judge Walker's order awarding exclusive custody to plaintiff was based upon his finding that defendant had consumed excessive amounts of alcohol over a long period of time. It is equally clear that Judge Gwyn's modification of that order was based on his finding that defendant "no longer indulged in the use of alcoholic beverages * * * and has regained her normal emotional equilibrium." In reversing Judge Gwyn's order as having been prematurely made, this Court, speaking through Higgins, J., said: "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." Stanback v. Stanback, 266 N.C. 72, 77, 145 S.E.2d 332, 335.

Determining the custody of minor children is never the province of a jury; it is that of the judge of the court in which the proceeding is pending. G.S. § 50-13; G.S. § 50-16; G.S. § 17-39; G.S. § 17-39.1; G.S. § 110-21(3); G.S. § 7-103. See 3 Lee, N.C. Family Law § 222 (1963). In the former opinion in this case, we did not say that the custody of the Stanback children depended upon the jury's findings upon the trial of the issues. The import of the statement therefrom quoted above is this: (1) Judge Walker's award of custody was made pendente lite upon facts which he found from the ex parte affidavits which were the evidence before him; (2) Between the date of Judge Walker's order and the trial, sufficient time would have elapsed to evaluate the permanency of the change which Judge Gwyn found had occurred; and (3) At the trial, the judge who heard and saw the witnesses was empowered to alter Judge Walker's order if, after considering all the circumstances and the evidence in the case, he should find a change of custody to be in the children's best interest.

The jury found that defendant never became an habitual drunkard. The judge was required to consider this finding and to evaluate it in its relation to all the other facts and circumstances bearing upon the question of custody. He apparently did consider it, for he found that defendant, as well as plaintiff, was a fit and suitable person to have custody and control of her children. Yet the judge was not required to award defendant the custody of the children upon her exoneration of the charge of habitual drunkenness any more than he was required to deprive her of custody because of the jury's answer to the fourth issue. The crucial question, the best interest of the children, remained for him to determine in the exercise of his sound judicial discretion.

The verdict in a divorce action can be an important factor in the judge's consideration of an award of custody, but it is *229 not legally controlling. It is merely one of the circumstances for him to consider, along with all other relevant factors. In 24 Am. Jur.2d, Divorce and Separation § 788 (1966), it is said that "a survey of the results of a large number of cases in the majority of states" reveals that the courts do not confine themselves to the practice of awarding custody to the innocent spouse in the divorce action. This is true, of course, because it is possible for a bad wife to be a good mother. By the same token, an erring husband can be a good father. Notwithstanding the misconduct of one of the parents in relation to the other, the welfare of their child may best be served by awarding its custody to the offending spouse where his or her fault does not reflect a present unfitness to raise the child. "This welfare can be determined to some extent by the comparative acts of the father and mother showing love and affection for it and a parental interest in its welfare." 24 Am.Jur.2d, Divorce and Separation § 788 (1966).

The judge's statement that he understood our former opinion to require the question of custody to be determined by the jury's verdict and thatalthough he would hear any further evidence either party desired to offerhe intended to be guided by the verdict, indicates that he was laboring under a misapprehension of the law. "And it is uniformly held by decisions of this Court that where it appears that the judge below has ruled upon matter before him upon a misapprehension of the law, the cause will be remanded to the Superior Court for further hearing in the true legal light." State v. Grundler, 249 N.C. 399, 402, 106 S.E.2d 488, 490; Capps v. Lynch, 253 N.C. 18, 22, 116 S.E.2d 137, 141.

Plaintiff argues, however, that the judgment indicates that the judge did, in fact, exercise his discretion in making the award of custody. Nothing contained therein, however, refutes the judge's statement that, despite his willingness to hear further evidence on the question, he intended to be guided by the jury's verdict in awarding custody, because he understood the former opinion to require him to be. His judgment is entirely consistent with his announced intention to award custody to the party who prevailed before the jury.

Since this case goes back for a trial de novo, there appears no immediate necessity to vacate Judge May's order of custody. Such a course would probably result in another hearing prior to the next jury trial of the action. In the absence of some showing of necessity for an earlier reconsideration, the order of May, J., will stand until the retrial. After the retrial, the presiding judge will consider the matter of custody de novo and enter the order which, under all the circumstances, he then deems to be in the best interest of the children involved.

PLAINTIFF'S APPEAL

Plaintiff states the single question posed by his appeal as follows: "Did the trial judge abuse his discretion by ordering that the plaintiff pay the sum of twenty thousand dollars ($20,000.00) as counsel fees for the defendant?" He further states that he "recognizes that the law is clear and well reasoned that the amount of attorneys' fees to be awarded to the wife in a divorce action is within the sound discretion of the trial judge and is unappealable except for abuse of discretion. Stadiem v. Stadiem, 230 N.C. 318, 52 S.E.2d 899 (1949)."

Plaintiff did not except to any of the findings of fact upon which Judge May made the challenged allowance. He excepted only to "the order that the plaintiff pay the sum of twenty thousand dollars as counsel fees for the defendant." The question presented, therefore, is whether the findings of fact support the order, oras plaintiff stateswhether Judge May abused his discretion. Putnam v. Triangle Publications, 245 N.C. 432, 96 S.E.2d 445; Merrell v. Jenkins, 242 N.C. 636, 89 S.E.2d 242; *230 1 Strong, N.C. Index, Appeal and Error § 22 (1957) and cases therein cited.

Stadiem v. Stadiem, supra, was an appeal by the defendant-husband from an allowance of fees made to the plaintiff's attorneys under G.S. § 50-16. After pointing out that, generally speaking, G.S. § 50-16 runs parallel with G.S. § 50-15 regarding allowances for attorneys' fees, the Court said:

"There are so many elements to be considered in an allowance of this kind;the nature and worth of the services; the magnitude of the task imposed; reasonable consideration for the defendant's condition and financial circumstance,these and many other considerations are involved. On this appeal the question before us is not whether the award may not have been larger than that anticipated or even usual in cases of that kind; but whether in consideration of the circumstances under which it was made it was so unreasonable as to constitute an abuse of discretion." Id. at 321, 52 S.E.2d at 901.

Considering the circumstances under which the award to defendant's counsel was made, we cannot say that it manifests an abuse of discretion. "The purpose of the allowance for attorney's fees is to put the wife on substantially even terms with the husband in the litigation." Harrell v. Harrell, 253 N.C. 758, 762, 117 S.E.2d 728, 731, 85 A.L.R.2d 795; Medlin v. Medlin, 175 N.C. 529, 95 S.E. 857. Upon the oral argument, counsel for plaintiff, answering a question from the court, said that Judge May had ascertained the amount of compensation which plaintiff's lawyers had received before he fixed the compensation for defendant's attorneys.

Defendant is a native of Nebraska; she has no relatives in this State. She owns no property and has no income. Her husband is a man of wealth and a member of a prominent and well-established North Carolina family. In this action, he seeks a decree which would relieve him of all obligation to support defendant and from all responsibility to her. In the beginning, at least, he sought to deprive her of all contacts with the children then born of the marriage. The ends of justice require that both sides of a controversy such as this be fully explored and presented to judge and jury before decision is made. Defendant was, and is, entitled to adequate representation. Such representation, under the circumstances disclosed here, is not always readily available to a wife. Many attorneys are reluctant to take domestic relations cases under any circumstances, for the demands which a bitterly contested divorce and custody case make upon the lawyers involved are time-consuming, strenuous, and tension-creating. This is more especially true of the demands which the penniless wife makes upon the time of her attorneys, for her dependence upon them is absolute. There are few lawyers who would be willing, or could afford, to take her case without the expectation of receiving adequate compensation in the endand recompense is frequently delayed.

After reading the 247 pages of record and briefs in the first appeal of this case and the 446 pages in this one, we are satisfied that the facts which Judge May found support his award.

The decision is this: The judgment awarding plaintiff a divorce from bed and board is vacated, and a new trial is ordered upon all issues arising upon the pleadings. The judgment awarding custody stands until the retrial of the issues unless, for good cause shown, earlier reconsideration should become necessary. After the retrial, the judge will consider the question of custody de novo. The judgment awarding defendant's attorneys compensation is affirmed.

On plaintiff's appeal

Affirmed.

On defendant's appeal

New trial.