James v. Pretlow

• Decision Date: 13 April 1955
• Docket Number: No. 315,315
• Citation: 242 N.C. 102,86 S.E.2d 759
• Parties: Carolyn Christle (Pretlow) JAMES, Petitioner, v. Ruth Raines PRETLOW, Respondent.
• Court: North Carolina Supreme Court

Page 759

86 S.E.2d 759

242 N.C. 102

Carolyn Christle (Pretlow) JAMES, Petitioner, v. Ruth Raines PRETLOW, Respondent.

No. 315

Supreme Court of North Carolina.

April 13, 1955

Luther Hamilton and Luther Hamilton, Jr., Hamilton & Phillips, Moorehead City, for plaintiff, appellant.

Rountree & Rountree, Wilmington, for respondent, appellee.

PARKER, Justice.

Petitioner's sole exception is to the signing of the judgment. Therefore, her assignment of error, based on this exception, presents one question for decision: whether the facts found by the Judge are sufficient to support the judgment. Warshaw v. Warshaw, 236 N.C. 754, 73 S.E.2d 900; Glace v. Pilot Throwing Co., 239 N.C. 668, 80 S.E.2d 759; Wyatt v. Sharp, 239 N.C. 655, 80 S.E.2d 762; Donnell v. Cox, 240 N.C. 259, 81 S.E.2d 664.

The Judge's findings of fact not having been excepted to 'are presumed to be supported by the evidence and are binding on appeal.' Donnell v. Cox, supra.

Where on 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. Latham v. Ellis, 116 N.C. 30, 20 S.E. 1012; In re Turner, 151 N.C. 474, 66 S.E. 431; Atkinson v. Downing, 175 N.C. 244, 95 S.E. 487; Brickell v. Hines, 179 N.C. 254, 102 S.E. 309; Clegg v. Clegg, 186 N.C. 28, 118 S.E. 824; In re Shelton, 203 N.C. 75, 164 S.E. 332; 67 C.J.S., Parent and Child, § 11, page 637. See Wall v. Hardee, 240 N.C. 465, 82 S.E.2d 370.

This Court said in Tyner v. Tyner, 206 N.C. 776, 175 S.E. 144, 146: 'In determining the custody of children, their welfare is the paramount consideration. Even parental love must yield to the claims of another, if, after due judicial investigation, it is found that the best interest of the children is subserved thereby.'

Courts should ever bear in mind that a child 'over whom * * * immortality broods like the day' is 'father of the man,' and his happiness and welfare is a matter of prime consideration.

However, courts should never lightly disregard the legal rights of parents, or a surviving parent, nor should their natural and emotional ties with their children be overlooked. '* * * the law seeks to work in harmony with nature, and to continue those ties which bind man to his own flesh * * *.' Morris v. Grant, 196 Ga. 692, 27 S.E.2d 295, 296.

'In order to justify depriving a parent of the custody of a child in favor of third persons there must be substantial reasons or, as various courts have put it, the reasons must be real, cogent, weighty, strong, powerful, serious, or grave.' 67 C.J.S., Parent and Child, § 12, page 651.

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. 39 Am.Jur., Sec. 21; 67 C.J.S., Parent and Child, § 12c.

The case of Harris v. Harris, 115 N.C. 587, 20 S.E. 187, 188, involved the custody of a 9 1/2 year old boy between the mother and father of the child. The Court said: 'What the preferences of the child were is not found as a fact, though this has weight always with a court in such cases, according to the age and intelligence of the child.'

Chief Justice Pearson said for the Court in Spears v. Snell, 74 N.C. 210: 'The boy during a long residence in the family of his grandfather and uncle has formed attachments and associations which he is unwilling to sever. At the age of thirteen, a minor has a right to have his wishes and feelings taken into consideration, whether in the choice of a master as an apprentice, or of a guardian to whom his estate and person are to be committed, or of a friend who, without respect to the want of an estate, will undertake to provide for his maintenance and education, to prevent his being put out as an apprentice, as in our case.' This Court reversed the lower court holding that the facts of the case 'show beyond all question that it is for the interest of the boy to remain with his uncle,' and not to be given to the custody of his stepfather or mother.

The Judge found that the father, mother and stepmother of these two children, some four days...