Todd v. Todd, 18 N.C. App. 458

18 N.C. App. 458 | N.C. Ct. App. | 1973

BRITT, Judge.

• Plaintiff contends that the trial court erred in entering the order modifying a previous custody order without a finding of substantial change in circumstances affecting the welfare of the child. The contention has merit.

G.S. 50-13.7(a) provides: “An order of a court of this State for custody or support, of both, 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.” Our courts have held that before a custody order may be altered a substantial change of circumstances must be shown. Crosby v. Crosby, 272 N.C. 235, 158 S.E. 2d 77 (1967) ; Rothman v. Rothman, 6 N.C. App. 401, 170 S.E. 2d 140 (1969).

We do not think the trial court made sufficient findings of substantial change of circumstances to support the order transferring custody of the child from plaintiff to defendant. While the court found that plaintiff had allowed a male friend to spend numerous nights and weekends in her home and “in the presence of” the child, the court found that plaintiff had permitted visitations by her male friend prior to the former order and failed to find that there was any adulterous relationship between plaintiff and said friend. In its previous order the court found that both plaintiff and defendant were fit and proper persons to have custody of the child; in the order appealed from the court made no finding that plaintiff had become an unfit person to have custody of the child.

For the reasons stated, the order appealed from is vacated and this cause is remanded for further proceedings not inconsistent with this opinion.

Remanded.

Judges Hedrick and Baley concur.