Custody of Cox, In re

• Decision Date: 28 March 1973
• Docket Number: No. 7319DC176,7319DC176
• Citation: 195 S.E.2d 132,17 N.C.App. 687
• Court: North Carolina Court of Appeals
• Parties: In the Matter of the CUSTODY of Melvin Lee COX, Jr., et al.

Page 132

195 S.E.2d 132

17 N.C.App. 687

In the Matter of the CUSTODY of Melvin Lee COX, Jr., et al.

No. 7319DC176.

Court of Appeals of North Carolina.

March 28, 1973 Certiorari Denied by Supreme Court June 1, 1973.

Bell, Ogburn & Redding by Deane F. Bell, Asheboro, for petitioner-appellee.

Ottway Burton, Asheboro, for respondent-appellant.

MORRIS, Judge.

G.S. § 50--13.2(a) provides as follows:

'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 provision became effective in 1967 and codified the rule enunciated many times by the North Carolina Supreme Court that in custody cases the welfare of the child is the 'polar star' by which the court's decision must be guided. In re Custody of Pitts, 2 N.C.App. 211, 162 S.E.2d 524 (1968).

Also, '(w)hile 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.' Pitts, supra, p. 212, 162 S.E.2d p. 525.

With these principles in mind we examine respondent's contention on appeal that the trial judge erred in refusing to return custody of her two minor children in light of the evidence presented at the hearing of 28 September 1972.

In the findings of fact in the order appealed from, the trial judge referred to the order of 31 August 1972 and stated that the court had found as a fact that it was to the best interest and welfare of the children that custody be awarded to the Department of Social Services and that the basis of that finding was grounded upon competent evidence at the hearings. It is clear from the record that the judge hearing the matter on 28 September 1972 was also the judge who heard the matter on 31 August 1972. It is also clear, therefore, that after considering the evidence presented at the hearing of 28 September 1972, the trial judge concluded that no competent evidence had been presented sufficient to warrant the entry of an order changing custody of the children. The court had the opportunity to see the parties in person and to observe their demeanor. His decision ought not to be upset absent a clear showing of abuse of discretion. None has been shown.

Respondent next contends that the trial court erred in refusing to award her counsel fees for the prosecution of this custody action and in refusing to tax the court costs against petitioner father. G.S. § 50--13.6 provides the following:

'Counsel fees in actions for custody and support of minor children.--In an action or proceeding for the custody or support, or both, of a minor child the court may in its discretion allow reasonable attorney's fees to a dependent spouse, as defined in G.S. 50--16.1, who has insufficient means to defray the expenses of the suit.'

'Dependent spouse' as defined in G.S. § 50--16.1(3) 'means a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other...