Pendergraft v. Pendergraft

• Decision Date: 16 October 1974
• Docket Number: No. 7421DC707,7421DC707
• Citation: 208 S.E.2d 887,23 N.C.App. 307
• Court: North Carolina Court of Appeals
• Parties: Ann D. PENDERGRAFT v. Robert L. PENDERGRAFT, Sr.

Page 887

208 S.E.2d 887

23 N.C.App. 307

Ann D. PENDERGRAFT v. Robert L. PENDERGRAFT, Sr.

No. 7421DC707.

Court of Appeals of North Carolina.

Oct. 16, 1974.

Wilson & Morrow by John F. Morrow, Winston-Salem, for plaintiff appellee.

Kennedy & Kennedy by Annie Brown Kennedy, Winston-Salem, for defendant appellant.

BALEY, Judge.

The evidence presented at the hearing in the trial court is not brought forward in the record and will be presumed to be sufficient to support the findings of fact. Carter v. Carter, 232 N.C. 614, 61 S.E.2d 711; Christie v. Powell, 15 N.C.App. 508, 190 S.E.2d 367, cert. denied, 281 N.C. 756, 191 S.E.2d 361. But defendant contends that the findings of fact are not sufficient to support the order of the court awarding custody of the children to the plaintiff, granting support for the children, and directing the payment of attorney fees.

'It is not necessary for the trial judge to make detailed findings of fact upon each item of evidence offered at trial. It is necessary, however, that he make the material findings of fact which resolve the issues raised. In each case the findings of fact must be sufficient to allow an appellate court to determine upon what facts the trial judge predicated his judgment.' Morgan v. Morgan, 20 N.C.App. 641, 642, 202 S.E.2d 356, 357.

Here there are extensive findings of fact showing the attention devoted by plaintiff to the needs of her children which support the conclusion that she was a fit and proper person to have their custody. The presence of another man upon occasional overnight visits was not found to be injurious to the children, and, in fact, his financial assistance in helping to make house payments and provide other support enabled plaintiff to meet necessary expenses.

The guiding principle to be used by the court in determining custody is the welfare of the children involved. Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221; 3 Strong, N.C.Index 2d, Divorce and Alimony, § 24. A parent who commits adultery does not by this fact alone become unfit to have custody of children. Savage v. Savage, 15 N.C.App. 123, 189 S.E.2d 545, cert. denied, 281 N.C. 759, 191 S.E.2d 356. The trial court has broad discretion in deciding individual cases of child custody. Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324. In this case the facts found fully support the award of custody.

The court found that the itemized monthly expenses of plaintiff in connection with the support of the minor children amounted to approximately $700.00 per month. The $40.00 per week paid by defendant pursuant to the deed of separation was clearly not adequate to provide for the needs of the children. Plaintiff had been hospitalized for surgery during the separation period and was not physically able to assume full-time employment. Her income was small and irregular and insufficient to defray these expenses. Defendant was found to be a healthy, able-bodied man, gainfully employed as a truck driver with Branch Motor Lines earning in excess of $14,000.00 in 1973. These findings of fact provide a...