Tyner v. Tyner

• Decision Date: 20 June 1934
• Docket Number: 581.
• Citation: 175 S.E. 144,206 N.C. 776
• Parties: TYNER v. TYNER.
• Court: North Carolina Supreme Court

175 S.E. 144

206 N.C. 776

TYNER v. TYNER.

No. 581.

Supreme Court of North Carolina

June 20, 1934

Appeal from Superior Court, Rockingham County; Alley, Judge.

Motion by Mrs. C. V. Tyner against Dr. C. V. Tyner to have the custody and maintenance of her minor children determined. From a judgment awarding custody of the children to the defendant, plaintiff appeals.

Affirmed.

STACY C.J., and BROGDEN, J., dissenting.

Generally father has paramount right of custody and control over his minor children, as against mother and third persons.

This action was instituted by the plaintiff for a divorce a mensa et thoro, for custody of her two children and for maintenance for herself and children. The parties to this action entered into a consent judgment on December 18, 1933, before Clement judge, which contained the following provision: "That this judgment shall not affect the right of the parties hereto in respect to the custody of their children but shall operate as a final determination of all matters in the pleadings except the custody of said children, and either party to this action may, upon notice to the other or to counsel for the other, by motion in the cause herein have the custody of said children determined at any time without prejudice on account of this judgment." After notice and in accord with the foregoing provision of the judgment and the statute, the plaintiff lodged this motion, which came on to be heard by Alley, judge, then holding the courts of the Eleventh district, who, after hearing a large number of affidavits and privately examining the children themselves found the facts, declared the law, and signed judgment awarding the custody of the children to the defendant. Plaintiff excepted and appealed.

Sharp & Sharp, of Reidsville, and Harry L. Fagge, of Leaksville, for appellant.

Brown & Trotter and Glidewell & Gwyn, all of Reidsville, and Varser, McIntyre & Henry, of Lumberton, for appellee.

SCHENCK Justice.

The appellant makes six assignments of error which we will discuss seriatim.

"1. That his Honor erred in signing the judgment set out in the record." In plaintiff's brief she takes the position that the court was without jurisdiction in this action to determine the custody of the children. We think this untenable. The plaintiff instituted this action under section 1664, Consolidated Statutes, which provides that, in actions for divorce, either absolute or from bed and board, the judge both before and after final judgment may make orders respecting the care and custody of children. The court acquired jurisdiction of the children upon the institution of this action, and was not divested thereof by the consent judgment, and especially is this so since the very judgment itself provides that "either party to this action may * * * by motion in the cause herein have the custody of said children determined at any time without prejudice on account of this judgment."

"2. That his Honor erred in holding that the consent judgment entered into between the parties was a full settlement of any claim which the plaintiff may have against the defendant for maintenance for any child or children which might be awarded to the plaintiff temporarily or otherwise." We are inclined to the opinion that his honor's construction of the contract between the parties, evidenced and sanctioned by the consent judgment, is a correct one, but, since the custody of the children was not awarded to the plaintiff, the question presented becomes immaterial.

"3. That his Honor erred in finding as a fact that Dr. Tyner is a capable, fit, and suitable person to have the custody, care, maintenance, and education of his minor children." While there is evidence to the contrary, there is an abundance of evidence to sustain the finding of fact of which the plaintiff in this assignment complains.

"4. That his Honor erred in failing to find as a fact that Mrs. Tyner is a fit, suitable and proper person to have the custody, care, and education of her minor children." While there is much evidence tending to show that Mrs. Tyner was a proper person to have the custody and care of her children, there was evidence to the contrary, and his honor, upon careful consideration of all the evidence, viewed with its local coloring, failed to find that she was such a person, and went only so far as to find "That the plaintiff, Mrs. C. V.

Tyner, is also a woman of good character and reputation; that she is a fit, suitable and proper person for said children to know and associate with, and the court further finds as a fact that they be permitted to know and to associate with their mother."

"5. That his Honor erred in finding that Mrs. Tyner is able to provide for and maintain said children during such times as they may visit her and be in her custody." Since the plaintiff would not be required to provide for or maintain the children during such time as they may "visit" her, and since the custody of the children has not been awarded her, the question raised by this assignment likewise becomes immaterial.

"6. That his Honor erred in finding that it is to the best interest of said two minor children that their custody and care and education be awarded to their father, Dr. Tyner." There is much evidence to sustain this finding, and much to the contrary. The conscientious judge heard it all, took it under advisement for many days and nights, interviewed privately the children themselves, and doubtless after much travail made this finding, which was the crucial one in the case."

The findings of fact by the court, there being evidence on both sides, is binding and conclusive on appeal. Shoaf v. Frost, 127 N.C. 307, 37 S.E. 271; Daugherty v. Com'rs, 183 N.C. 152, 110 S.E. 853; In re Hamilton, 182 N.C. 44, 108 S.E. 385.

Upon the findings of fact that the defendant was a proper person to have the custody of the children, and that it was to the best interest of the children that he have such custody, the court properly concluded and adjudged that the defendant was entitled to the custody of the two minor children; especially was this so in view of the failure of the court to find that the plaintiff was a proper party to have such custody, and of the general and common-law rule that the father has the prior right of custody. We are glad, however, that the court softened the rigor of its judgment by providing that the mother is to have the right to visit her children and to have access to their place of abode and to associate with them, so long as she does not attempt to take them from the state beyond the jurisdiction of its courts.

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.

The law applicable...