Custody of Stancil, In re

• Decision Date: 31 March 1971
• Docket Number: No. 7110DC101,7110DC101
• Citation: 179 S.E.2d 844,10 N.C.App. 545
• Parties: In re CUSTODY OF Brian Kelly STANCIL (69 J 206). In the Matter of CUSTODY OF Brian Kelly STANCIL (70 CVD 4024).
• Court: North Carolina Court of Appeals

Page 844

179 S.E.2d 844

10 N.C.App. 545

In re CUSTODY OF Brian Kelly STANCIL (69 J 206).

In the Matter of CUSTODY OF Brian Kelly STANCIL (70 CVD 4024).

No. 7110DC101.

Court of Appeals of North Carolina.

March 31, 1971.

W. A. Johnson, Lillington, for Jacqueline I. Stancil, appellant.

Ellis Nassif, and Boyce, Mitchell, Burns & Smith by F. Kent Burns, Raleigh, for Mrs. B. A. Porter, appellee.

MALLARD, Chief Judge.

Mrs. Stancil makes several assignments of error, among them being that the competent evidence does not support the findings of fact; that the trial judge failed to find the facts as shown by the evidence; that the conclusions of law are incorrect; that prejudicial error was committed in awarding custody of Brian to the paternal grandmother; that the trial judge committed prejudicial error in giving the grandmother the right to say when the mother could visit the child; and in entering and signing the judgment.

We do not deem it necessary for decision in this case to recapitulate the evidence. Suffice it to say that Brian, who was born 15 April 1960, testified that he was scared of his mother and expressed a preference to live with his grandmother, Mrs. B. A. Porter. A child's preference as to who shall have his custody is not controlling; however, the trial judge should consider the wishes of a ten-year-old child in making his determination. Kearns v. Kearns, 6 N.C.App. 319, 170 S.E.2d 132 (1969). In James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759 (1955), the rule is stated:

'Where one parent is dead, the surviving parent has a natural and legal right to the custody and control of their minor children. This right is not absolute, and it may be interfered with or denied but only for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it. (citations omitted)

The wishes of a child of sufficient age to exercise discretion in choosing a custodian is entitled to considerable weight when the contest is between parents, but is not controlling. Where the contest is between a parent and one not connected by blood to the child, the desire of the child will not ordinarily prevail over the natural right of the parent, unless essential to the child's welfare.' (citations omitted)

Under G.S. § 50--13.2(a), the trial judge, in a custody proceeding, shall award the custody of a minor 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. The statute expresses the policy of the State that the best interest and welfare of the child is the paramount and controlling factor to guide the judge in determining the custody of a child.

In Greer v. Greer, 5 N.C.App. 160, 167 S.E.2d 782 (1969), Judge Morris said:

'In upholding the order of the trial court we recognize that custody cases generally involve difficult decisions. The trial judge has the opportunity to see the parties in person and to hear the witnesses. It is mandatory, in such a situation, that the trial judge be given a wide discretion in making his determination, and it is clear that his decision ought not to be upset on appeal absent a clear showing of abuse of discretion.'

In the years 1969 and 1970, two different judges heard evidence on three different occasions relating to the custody of Brian and denied Mrs. Stancil custody. Mrs. Stancil contends that the trial judge committed error in not finding that she was a fit and suitable person to have the custody of Brian. We do not agree. In the judgment appealed from, the trial judge made extensive findings of fact, among which was the finding, based on competent evidence, that Mrs. Stancil was receiving medical treatment for mental disorders. The trial judge concluded that he was not able to find that Mrs. Stancil was a fit and suitable person to have custody of the child and that it was for the best interest and welfare of Brian that his custody be placed in the grandmother, Mrs. B. A. Porter.

Mrs. Stancil contends that some of the findings of fact are not supported by the evidence. We hold that in this case the Material facts found by the trial judge are supported by competent evidence. Immaterial findings of fact are to be disregarded. Widows Fund of Sudan Temple v. Umphlett, 246 N.C. 555, 99 S.E.2d 791 (1957). In Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967), it is said:

'The court's findings of fact as to the care and custody of children will not be disturbed when supported by competent evidence, even though the evidence be conflicting.'

Mrs. Stancil argues that the trial judge did not find the facts as shown by the evidence. The trial judge is not required to find All the facts shown by the evidence. Baillie Lumber Co. v. Kincaid Carolina Corp., 4 N.C.App. 342, 167 S.E.2d 85 (1969). It is sufficient if enough Material facts are found to support the judgment. 1 Strong, N.C. Index 2d, Appeal and Error, § 57, pp. 227, 228.

Mrs. Stancil contends that the conclusions of law set out in the judgment are not correct. After finding facts, a conclusion of law is a proposition arrived at by the application of rules of law to the facts. In 53 Am.Jur., Trial, § 1132, a conclusion of law is said to be '(t)he conclusions drawn by the trial court in the exercise of its legal judgment from the facts found by it * * *.' We are of the opinion that the conclusions of law stated are adequate and are supported by the evidence. These support the order awarding the custody of Brian to Mrs. B. A. Porter.

In 3 Lee, N.C. Family Law, § 224, p. 24 (3d Ed. 1963), it is said that '(w) here there are unusual circumstances and the best interests of the child justifies such action, a court may refuse to award custody to either the mother or father and instead award the custody of the child to grandparents or others.' We do not think that under the circumstances of this case, the trial judge abused his discretion in awarding custody to the paternal grandmother. No medical evidence was offered by either of the parties. It is observed that an order for the custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances. G.S. § 50--13.7.

Mrs. Stancil also contends (but cites no authority to support this contention) that the trial judge committed error in granting to Mrs. B. A. Porter the right to determine the times, places and conditions under which she could visit with Brian.

In 2 Nelson, Divorce and Annulment, § 15.26 (2d Ed.Rev. 1961), it is said:

'The right of visitation is an important, natural and legal right, although it is not an absolute right, but is one which must yield to the good of the child. A parent's right of access to his or her child will ordinarily be decreed unless the parent has forfeited the privilege by his conduct or unless the exercise...