Montgomery v. Montgomery

• Decision Date: 05 January 1977
• Docket Number: No. 7617DC576,7617DC576
• Citation: 32 N.C.App. 154,231 S.E.2d 26
• Court: North Carolina Court of Appeals
• Parties: Frank Moir MONTGOMERY v. Barbara Ann MONTGOMERY.

Page 26

231 S.E.2d 26

32 N.C.App. 154

Frank Moir MONTGOMERY v. Barbara Ann MONTGOMERY.

No. 7617DC576.

Court of Appeals of North Carolina.

Jan. 5, 1977.

John Edward Gehring, Walnut Cove, for plaintiff-appellant.

No brief filed for defendant-appellee.

CLARK, Judge.

This appeal raises the issue of whether the judgment of the trial court awarding custody, support payments, and visitation rights contains findings of fact and conclusions of law sufficient to sustain the awards.

The judgment of the trial court found, in part, the following:

'IV. Based upon the greater weight of the evidence, the finding of fact is that at and during the time of separation the wife herein, Barbara Ann Montgomery, was hospitalized and by necessity the husband, Frank Moir Montgomery, had the custody of the two (2) minor children and moved from Stokes County to Forsyth County.

V. That the wife, Barbara Ann Montgomery, has now recovered from her illness and is fully capable of caring for the children properly and is a fit and proper person to provide to wholesome home life that is conducive to the well-being of the minor children.

VI. The father has cared for the children during his former wife's illness and it is found as a fact that this has been satisfactory for the welfare of the children.

VII. Both children are regular in their attendance of school and the boy has made satisfactory progress in his school work and activities; the girl is an exceptional student and her school work has been highly satisfactory.

VIII. It was admitted by both parents during testimony that each was a fit and proper person to have custody of the children.'

In a proceeding for custody and support of a minor child, the trial court is required to 'find the facts specially and state separately its conclusions of law thereon and direct the entry of appropriate judgment.' G.S. 1A--1, Rule 52(a)(1). The trial court is required to find specific ultimate facts to support the judgment, and the facts found must be sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967); Savage v. Savage, 15 N.C.App. 123, 189 S.E.2d 545, Cert. denied, 281 N.C. 759, 191 S.E.2d 356 (1972). A 'conclusion of law' is the court's statement of the law which is determinative of the matter at issue between the parties. Peoples v. Peoples, 10 N.C.App. 402, 179 S.E.2d 138 (1971). A conclusion of law must be based on the facts found by the court and must be stated separately. Williams v. Williams, 13 N.C.App. 468, 186 S.E.2d 210 (1972). The conclusions of law necessary to be stated are the conclusions which, under the facts found, are required by the law and from which the judgment is to result. 89 C.J.S. Trial § 615b (1955).

To support an award of custody, the judgment of the trial court should contain findings of fact which sustain the conclusion of law that custody of the child is awarded to the person who will 'best promote the interest and welfare of the child.' G.S. 50--13.2. Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974); Williams v. Williams, 18 N.C.App. 635, 197 S.E.2d 629 (1973).

To support an award of payment for support the judgment of the trial court should contain findings of fact which sustain the conclusion of law that the support payments ordered are in 'such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, and other facts of the particular case.' G.S. 50--13.4(c). Crosby v. Crosby, supra; Williams v. Williams, 18 N.C.App. 635, 197 S.E.2d 629 (1973).

To support an award of visitation rights...