174 S.E.2d 135 | N.C. Ct. App. | 1970
In re Amy Hope MOORE, a minor.
Court of Appeals of North Carolina.
*137 Frazier T. Woolard, Washington, for petitioner appellant.
Wilkinson & Vosburgh, by John A. Wilkinson, Washington, for respondent appellee.
BRITT, Judge.
Petitioner contends that the trial court erred in signing the order appealed from, arguing that its error was in "failing to act in the best interests" of the minor and in refusing to place the minor with her two sisters in the home of petitioner. We think the trial court erred but for reasons other than those argued.
The following legal principles regarding child custody have been well established in this jurisdiction for many years:
1. The welfare of the child in controversies involving custody is the polar star by which the courts must be guided in awarding custody. Chriscoe v. Chriscoe, 268 N.C. 554, 151 S.E.2d 33 (1966).
2. While the welfare of a child is always to be treated as the paramount consideration, the courts recognize that wide discretionary power is necessarily vested in the trial courts in reaching decisions in particular cases. Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967).
3. The decision to award custody of a child is vested in the discretion of the trial judge who has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not be upset on appeal absent a clear showing of abuse of discretion. In re Custody of Pitts, 2 N.C.App. 211, 162 S.E.2d 524 (1968).
4. The findings of the trial court in regard to the custody of a child are conclusive when supported by competent evidence. Swicegood v. Swicegood, supra.
5. When the trial court fails to find facts so that the appellate court can determine that the order is adequately supported by competent evidence and the welfare of the child subserved, then the order entered thereon must be vacated and the case remanded for detailed findings of fact. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967).
The petition in the case before us was filed 15 December 1969, therefore, was subject to Chapter 1153 of the 1967 Session Laws (G.S. § 50-13.1, et seq.) which became effective 1 October 1967. But, this enactment by the General Assembly did not alter either of the principles above stated. In re Custody of Pitts, supra; Greer v. Greer, 5 N.C.App. 160, 167 S.E.2d 782 (1969). The institution of the present proceeding invoked the jurisdiction of the District Court of Beaufort County to inquire into the custody of Amy Hope Moore, to determine what custodial arrangement would best serve her welfare, to make findings of fact based on competent evidence with respect thereto, and enter an order awarding her custody to such "person, agency, organization or institution as will, in the opinion of the judge, best promote the interest and welfare of the child." G.S. § 50-13.2(a). The order appealed from found no facts; it merely concluded that petitioner's evidence "would not support the relief prayed for and that in the absence of further evidence that the request of petitioner for custody of Amy Hope Moore should be denied and the same is herewith denied and the custody of *138 the child, Amy Hope Moore, is confirmed in her maternal grandparents, Oscar and Mary Woolard."
For the reasons stated, the order appealed from is vacated and this cause is remanded for further proceedings consistent with this opinion. We observe that in the former trial all evidence was presented by affidavits; upon a retrial the judge and counsel would be well advised to consider what was said by this Court in the case of In re Custody of Griffin, 6 N.C.App. 375, 170 S.E.2d 84 (1969).
Error and remanded.
BROCK and HEDRICK, JJ., concur.