Perdue v. Perdue, 8521DC70

• Decision Date: 17 September 1985
• Docket Number: No. 8521DC70,8521DC70
• Citation: 76 N.C.App. 600,334 S.E.2d 86
• Parties: Karen Flippen PERDUE v. Michael Lynn PERDUE.
• Court: North Carolina Court of Appeals

Page 86

334 S.E.2d 86

76 N.C.App. 600

Karen Flippen PERDUE v. Michael Lynn PERDUE.

No. 8521DC70.

Court of Appeals of North Carolina.

Sept. 17, 1985.

Wolfe and Collins by John G. Wolfe, III, Kernersville, for defendant-appellant.

WEBB, Judge.

This appeal brings to the Court a question as to whether there has been a sufficient change in circumstance to return the custody of the parties' child to the plaintiff. G.S. § 50-13.7(a) provides in part, "an order of a court of this State for custody 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." The appellant, relying on Harris v. Harris, 56 N.C.App. 122, 286 S.E.2d 859 (1982) and Daniels v. Hatcher, 46 N.C.App. 481, 265 S.E.2d 429, disc. rev. denied, 301 N.C. 87 (1980) argues that the courts of this state "have expanded the statutory language of G.S. 50-13.7(a)" to require for a change in custody not only a change in circumstance as stated in the statute but a change in circumstance which will adversely affect the child if custody is not changed. There is language to this effect in the cases cited by the defendant and in other cases. See Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978); Tucker v. Tucker, 288 N.C. 81, 216 S.E.2d 1 (1975); and Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974). We believe this language must be interpreted in the light of a maxim of these cases that a district court judge has a broad discretion in determining custody. In this case it is evident the court felt in the summer of 1983 that except for the plaintiff's problem with alcohol the best interest of the child would be served by continuing custody with the plaintiff. When the plaintiff's problem was ameliorated this change in circumstance removed the obstacle to making it in the child's best interest to be with her mother. In the summer of 1984 the best interest of the child would be served by awarding custody to the plaintiff. This means the change of circumstance is such within the meaning of the language of the cases that the child will be adversely affected if custody is not changed.

We believe we are bound by Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973) to hold that the findings of fact support the district court's order in this case. One of the facts in that case which our Supreme Court held supported a finding of change in circumstance sufficient for an order for change of custody was that the mother had been emotionally unstable at the time of the hearing at which she was deprived of custody but was emotionally stable at the time of the hearing at which custody was returned to her. In this case the child was taken from the mother because of her problem with alcohol. When the court found this problem had been alleviated it could under Spence return the custody of the child to the plaintiff.

We hold that on the facts found in this case the court did not abuse its discretion.

Affirmed.

BECTON, J., concurs.

MARTIN, J., dissents.

BECTON, Judge, concurring in the result.

Although technicalists could argue that the trial court was overly concerned with the "best interest of the mother," in my view, the record supports the trial court's determination to reinstate custody to the mother. After all, the father was essentially given temporary custody for the 1983-84 school year, the trial court specifically noting that the mother could request a hearing "in June of 1984 after the coming school year, to determine what is then in the best interest of the minor child." And, to me, that seems imminently practical, considering (a) that the mother had exercised either joint or sole custody of the six-year-old child during the child's first five years; and (b) that the only reason the custody order was amended was because of the mother's alcoholism.

I do not believe a person's temporary incapacitation because of physical problems or sickness should evoke a different response than temporary incapacitation due to alcoholism. Significantly, in addition to finding that the mother had "adequate facilities ... to afford generous care and love and affection for the minor child," the trial court, even when it granted the father custody "was of the opinion that [the mother] ... was making an effort to control her [alcohol] problem and had made substantial progress but a sufficient time had not elapsed to demonstrate that it was in the best interest of the child to award ... custody to [the] mother." Finally, the decretal portion of the order reinstating custody in the mother is supported by what the trial court labels as finding of fact and conclusion of law number 7:

7. The finding in the 15 August 1983 order that both parties were fit and suitable parents remains undisturbed but the accomplishments of the child's mother since that time constitute a material change of circumstances affecting the welfare of the child and justify a reinstatement of the custody provisions contained in the 13 April 1981 divorce judgment, it being in the best...