Greer v. Greer

• Decision Date: 18 June 1969
• Docket Number: No. 6924SC203,6924SC203
• Citation: 5 N.C.App. 160,167 S.E.2d 782
• Court: North Carolina Court of Appeals
• Parties: Tom GREER, Plaintiff, v. Marion Allison GREER, Defendant, and Roby Greer and wife, Ruth G. Greer; and Robert L. Allison and wife, Lena R.Allison, Additional Defendants.

Page 782

167 S.E.2d 782

5 N.C.App. 160

Tom GREER, Plaintiff, v. Marion Allison GREER, Defendant, and Roby Greer and wife, Ruth G. Greer; and Robert L. Allison and wife, Lena R.Allison, Additional Defendants.

No. 6924SC203.

Court of Appeals of North Carolina.

June 18, 1969.

McElwee & Hall, by Jerone C. Herring, North Wilkesboro, and Stacy C. Eggers, Jr., Boone, for plaintiff appellant.

R. F. Crouse, Sparta, and Allen & Henderson, by H. F. Henderson, Elkin, for defendant appellees, Marion Allison Greer, Robert L. Allison and wife, Lena R. Allison.

MORRIS, Judge.

'When parents separate and later are divorced, '(t)he children of the marriage become the wards of the court and their welfare is the determining factor in custody proceeding. " In Re Custody of Ross, 1 N.C.App. 393, 161 S.E.2d 623. The guiding principle to be used by the court in a custody hearing is the welfare of the children involved. 'While 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.' In Re Custody of Pitts, 2 N.C.App. 211, 162 S.E.2d 524. G.S. § 50--13.2(a) provides: '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 statute became effective subsequent to the commencement of this action, however, the statute 'merely codified the rule which had been many times announced by the North Carolina Supreme Court to the effect that in custody cases the welfare of the child is the polar star by which the court's decision must ever be guided.' In Re Custody of Pitts, Supra.

Also, see Holmes v. Sanders, 243 N.C. 171, 90 S.E.2d 382, where the Supreme Court, in upholding the trial court's decision to award custody of a child to the grandparents, stated that the welfare of the child was the controlling consideration. These same parties were again before the Supreme Court in Holmes v. Sanders, 246 N.C. 200, 97 S.E.2d 683. In the second proceeding the trial court had found that the petitioner, the father, was a person of good reputation but that it would be in the best interest of the children to remain in the custody of their grandparents. The Supreme Court upheld this decision stating:

'There is plenary competent evidence to support Judge Bickett's findings of fact, and his findings of fact support his judgment. The findings of fact by Judge Williams and Judge Bickett clearly show there are substantial reasons to deprive petitioner of the custody of his child. Judge Bickett's judgment is in accord with our decisions that the child's welfare is the paramount consideration, and that a parent's love must yield to another if, after judicial investigation, it is...