Harrell, In re
| Decision Date | 26 May 1971 |
| Docket Number | No. 712DC223,712DC223 |
| Citation | 11 N.C.App. 351,181 S.E.2d 188 |
| Court | North Carolina Court of Appeals |
| Parties | In re Kathy Lee HARRELL, James A. Harrell, Jr., and Laurie Dean Harrell, Minors. |
Frazier T. Woolard, Washington, for movant appellant.
Wilkinson & Vosburgh by James R. Vosburgh, Washington, for respondent appellee.
The exceptions in the record present the question of whether the findings of fact are supported by the evidence, and whether the facts found support the order continuing custody of James A. Harrell, Jr., in the father under the terms and conditions of the order entered by Judge Hubbard dated 19 October 1966.
The pertinent part of Judge Hubbard's order which petitioner seeks to have modified reads as follows:
'The court having heard the evidence of both parties and having had a conference with the parties and their counsel finds that the present interests of said minors will best be served by awarding their custody and control as set forth below in this order:
'It is ORDERED, ADJUDGED AND DECREED as follows:
G.S. § 50--13.7(a) reads as follows:
'An order of a court of this State for custody or support, or both, of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.'
Judge Ward's finding 'that there was not a sufficient change of circumstances shown which would justify a change in the custody order previously entered by Judge Hubbard in this cause', is conclusive and binding upon this court if supported by competent evidence. In re Bowen, 7 N.C.App. 236, 172 S.E.2d 62 (1970); Teague v. Teague, 272 N.C. 134, 157 S.E.2d 649 (1967).
In Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967), Justice Branch stated:
'When plaintiff moved that the original order be vacated and either modified or eliminated, he assumed the burden of showing that circumstances had changed between the time of the order and the time of the hearing upon his motion.'
'Changed circumstances' as used in the statute, § 50--13.7, means such a change as affects the welfare of the child. Crosby v. Crosby, Supra; Thomas v. Thomas, 248 N.C. 269, 103 S.E.2d 371; Neighbors v. Neighbors, 236 N.C. 531, 73 S.E.2d 153.
The evidence offered at the hearing before Judge Ward consisted of the oral testimony of the three children, the movant and her husband, and the father of the children, together with copies of the many orders entered by the three judges who had heard this case from time to time since 26 October 1961. The testimony related principally to a showing that the son, James A. Harrell, Jr., wished to leave his father's home to reside with his mother and to the fact that he had demonstrated his wishes by running away on two occasions from his father's home in...
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