Stanback v. Stanback, 604

• Decision Date: 20 June 1967
• Docket Number: No. 604,604
• Parties: Fred J. STANBACK, Jr. v. Vanita B. STANBACK.
• Court: North Carolina Supreme Court

Page 221

155 S.E.2d 221

270 N.C. 497

Fred J. STANBACK, Jr. v. Vanita B. STANBACK.

No. 604.

Supreme Court of North Carolina.

June 20, 1967.

Shuford, Kluttz & Hamlin, Salisbury, Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by Robert A. Melott, Winston-Salem, for plaintiff.

Kesler & Seay, Salisbury, Walser, Brinkley, Walser & McGirt, Lexington, George L. Burke, Jr., Salisbury, for defendant.

SHARP, Justice:

We first consider defendant's appeal. Five issues were submitted to the jury in plaintiff's action for divorce from bed and board. The first related to the marriage, which was admitted. The second, third, and fifth issues were answered in defendant's favor; the fourth, in plaintiff's. To obtain a divorce from bed and board, however, the law requires that defendant establish only one of the grounds specified in G.S. § 50--7. Defendant attacks, with 19 assignments of error, the judgment divorcing the parties. Necessarily, these assignments relate only to the fourth issue. Although one or more of the others have substantial merit, it is necessary to consider only the ninth, which relates to the following portion of the judge's charge on the fourth issue:

The constant nagging and berating of the husband by the wife may, under a given factual situation, constitute indignities. A certain amount of nagging and fussing by one's wife is apparently a thing to be taken and borne as part of the 'buyer-beware' marital burden of the male, but when the nagging and criticism of the husband continues practically daily for a long period of time, there is a point reached where patience is no longer a virtue, and the law should afford relief. As the Supreme Court of Georgia so well said, in WILKINSON against WILKINSON, quoting the trial judge: 'From the days of Socrates and Xantippe, men and women have known what is meant by nagging, although philology cannot define it or legal chemistry dissolve it into its elements. Humor cannot soften or wit divert it. Prayers avail nothing and threats are idle. Soft words but increase its velocity and harsh ones its violence. Darkness has for it no terrors, and the long hours of the night draw no drapery of the couch around it. The chamber where love and peace should dwell becomes an inferno, driving the poor man to the saloon, the rich one to the club, and both to the arms of the harlot. It takes the sparkle out of the wine of life and turns at night into ashes the fruits of the labor of the day.' And to this he might well have added the words of Solomon that 'It is better to dwell in the corner of the housetop than with a brawling woman and in a wide house.' (Italics ours.)

The foregoing excerpt from the charge is taken verbatim from 1 Lee, N.C. Family Law § 82, p. 316 (3d Ed., 1963). The portion in quotations is Judge Meldrim's familiar excursus on nagging, which, since Justice Hill of the Georgia Supreme Court included it in his opinion in Wilkinson v. Wilkinson, 159 Ga. 332, 339, 125 S.E. 856, 859, has often reappeared in the picturesque speech columns of both legal and popular periodicals. Judge Meldrim, however, when he delivered his animadversion upon nagging, was overruling a demurrer to a complaint in a divorce action. His philippic was never intended for use by a trial judge in instructing a jury in a jurisdiction where judges are circumscribed by a statute such as G.S. § 1--180. It was Justice Hill, who, after quoting Judge Meldrim, added the words of King Solomon which we have italicized above (Proverbs, 25:24). To the jury, however, it was Judge May who was superimposing Solomon's condemnation upon the excoriation which he had just quoted with approval from the Georgia court. The jurors most certainly understood that his Honor thought the reference to a 'brawling woman' was applicable to defendant and that Judge Meldrim's were words 'fitly spoken' of her. Defendant's Assignment of Error No. 9 is sustained.

G.S. § 1--180 imposes upon the trial judge the duty to state in a plain and correct manner the evidence given in the case and to declare and explain the law arising thereon, Without expressing any opinion on the facts. State v. Benton, 226 N.C. 745, 40 N.E.2d 617. 'There must be no indication of the judge's opinion upon the facts to the hurt of either party, either directly or indirectly, by words or conduct.' Fourth Nat. Bank v. McArthur, 168 N.C. 48, 52, 84 S.E. 39, 41. When such an indication occurs, there must be a new trial. State v. Williamson, 250 N.C. 204, 108 S.E.2d 443; Withers v. Lane, 144 N.C. 184, 56 S.E. 855; Meadows v. Western Union Telegraph Co., 131 N.C. 73, 42 S.E. 534.

Defendant's Assignments of Error three, four, five, and six attack Judge May's judgment granting custody of the parties' two boys, Bradford and Lawrence, to plaintiff.

The familiar rule is that '(t)he welfare of the child should be the paramount consideration which guides the court in making an award of custody.' Gafford v. Phelps, 235 N.C. 218, 222, 69 S.E.2d 313, 316; 3 Lee, N.C. Family Law § 224 (1963); 2 Strong, N.C. Index, Divorce and Alimony § 24 (1959). Which of the two contending parents shall have the custody of their children is a question addressed to the discretion of the trial judge, who must decide the probative force of conflicting evidence and make the difficult and heartrending decision. Once he has made it, it will ordinarily be upheld if supported by competent evidence. Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73; Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133.

Defendant does not controvert this rule. Her contention is that, in awarding custody, the judge did not exercise his discretion, but acted upon the mistaken premise--as shown by his statement made upon the return of the verdict--that the former opinion in this case required him to award custody to the party who won the jury's verdict.

Patently, Judge Walker's order awarding exclusive custody to plaintiff was based upon his finding that defendant had consumed excessive amounts of alcohol over a long period of time. It is equally clear that Judge Gwyn's modification of that order was based on his finding that defendant 'no longer indulged in the use of alcoholic beverages * * * and has regained her normal emotional equilibrium.' In reversing Judge Gwyn's order as having been prematurely made, this Court, speaking through Higgins, J., said: 'This controversy illustrates the difficulty of determining disputed facts from Ex parte affidavits. When this case is heard on the merits, where the witnesses are before the court and subject to cross-examination, the findings thus established will, or may, justify a change in the order.' Stanback v. Stanback, 266 N.C. 72, 77, 145 S.E.2d 332, 335.

Determining the custody of minor children is never the province of a jury; it is that of the judge of the court in which the proceeding is pending. G.S. § 50--13; G.S. § 50--16; G.S. § 17--39; G.S. § 17--39.1; G.S. § 110--21(3); G.S. § 7--103. See 3 Lee, N.C. Family Law § 222 (1963). In the former opinion in this case, we did not say that the custody of the Stanback children Depended upon the jury's findings upon the trial of the issues. The import of the statement therefrom quoted above is this: (1) Judge Walker's award of custody was made Pendente lite upon facts which he found from the Ex parte affidavits which were the evidence before him; (2) Between the date of Judge Walker's order and the trial, sufficient time would have elapsed to evaluate the permanency of the change which Judge Gwyn found had occurred; and (3) At the trial, the judge who heard and saw the witnesses was empowered to alter Judge Walker's order if, after considering all the circumstances and the evidence in the case, he should find a change of custody to be in the children's best interest.

The jury found that defendant never became an habitual drunkard. The judge was required to consider this finding and to evaluate it in its relation to all the other facts and circumstances bearing upon the question of custody. He apparently did consider it, for he found that defendant, as well as plaintiff, was a fit and suitable person to have custody and control of her children. Yet the judge was not required to award defendant the custody of the children upon her exoneration of the charge of habitual drunkenness any more than he was required to deprive her of custody because of the jury's answer to the fourth issue. The crucial question, the best interest of the children, remained for him to determine in the exercise of his sound judicial discretion.

The verdict in a divorce action can be an important factor in the judge's consideration of an award of custody, but it is not legally controlling. It is merely One of the circumstances for him to consider, along with all other relevant factors. In 24 Am.Jur.2d, Divorce and Separation § 788 (1966), it is said that 'a survey of the results of a large number of cases in the majority of states' reveals that the courts do not confine themselves to the practice of awarding custody to the innocent spouse in the divorce action. This is true, of course, because it is possible for a bad wife to...