Appeal by plaintiff from Jones, Judge. Judgment entered 10 April 1978 in District Court, Wayne County. Heard in the Court of Appeals 22 May 1979.
Vaughn, Judge. Judge Carlton concurs. Judge Clark dissents.
Much of the argument in the briefs is directed to whether there was evidence of a substantial change of circumstances so as to warrant a modification of the earlier "decree of custody." Neither the separation agreement nor the divorce decree was made a part of the record on appeal. We are advised only that "the divorce decree incorporated the separation agreement by reference." There is no indication, however, that the question of custody was litigated and decided by the judge after hearing evidence tending to show the circumstances as they then existed relating to the best interest of this child. It appears, therefore, that the court merely approved the contract made between the parties. It is clear, however, that "Parties may never withdraw children from the protective supervision of the court." Bunn v. Bunn, 262 N.C. 67, 69, 136 S.E.2d 240 (1964).
"No agreement or contract between husband and wife will serve to deprive the court of its inherent as well as statutory authority to protect the interests and provide for the welfare of infants. They may bind themselves by separate agreement or by a consent judgment . . . but they cannot thus withdraw children of the marriage from the protective custody of the court. . . . The child is not a party to such agreement and the parents cannot contract away the jurisdiction of the court which is always alert in the discharge of its duty toward its wards -- the children of the State whose personal or property interests require protection. . . . In such case the welfare of the child is the paramount consideration to which even parental love must yield, and the court will not suffer its authority in this regard to be either withdrawn or curtailed by any act of the parties." Story v. Story, 221 N.C. 114, 116, 19 S.E.2d 136 (1942) (citations omitted).
We need not tarry long then on the question of whether there has been a "change of circumstances" or whether the same
circumstances existed at the time of the divorce. The duty of the trial judge was to enter such order respecting the child as he felt would best promote the interest and welfare of the child, a question that had not previously been decided by a court on the basis of evidence tending to show the environment in which the child was being kept. The reason behind the often stated requirement that there must be a change of circumstances before a custody decree can be modified is to prevent relitigation of conduct and circumstances that antedate the prior custody order. It assumes, therefore, that such conduct has been litigated and that a court has entered a judgment based on that conduct. The rule prevents the dissatisfied party from presenting those circumstances to another court in the hopes that different conclusions will be drawn. For instance, the rule was applied in Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332 (1965), where one Superior Court judge entered an order placing the children with their father. Sixteen days later, the mother sought a different result before a different judge. A hearing was held where essentially the same conduct was litigated. That judge reached a different conclusion. The Supreme Court reversed, noting that there could be no appeal from one Superior Court judge to another and that the dissatisfied parent should have either appealed the first order or awaited a more favorable factual background. The rule is designed to prevent constant relitigation of the same questions with the resulting turmoil and insecurity. Shepherd v. Shepherd, 273 N.C. 71, 159 S.E.2d 357 (1968).
When, however, as in the present case, facts pertinent to the custody issue were not disclosed to the court at the time the original custody decree was rendered, courts have held that a prior decree is not res judicata as to those facts not before the court. Thus, in Stewart v. Stewart, 86 Idaho 108, 383 P. 2d 617 (1963), the Court stated that where facts affecting a child's welfare existed at the time of the entry of a custody decree but were not disclosed to the court, especially in default cases, these facts may be considered in a subsequent custody determination. Accord, Boone v. Boone, 150 F.2d 153 (1945); Perez v. Hester, 272 Ala. 564, 133 So. 2d 199 (1961); Henkell v. Henkell, 224 Ark. 366, 273 S.W. 2d 402 (1954); Weatherall v. Weatherall, 450 P. 2d 497 (Okla. 1969). See generally, Annot. 9 A.L.R. 2d 623 (1950).
Suppose, for instance, it should appear that, unknown to the first judge, the child had been regularly confined to a closet for long periods of time or otherwise abused, but these facts are made known to the second judge. Surely it could not be said that the second judge is powerless to act merely because the circumstances are the same in that the abuse is no greater or the environment no worse than before. Moreover, evidence of the abusive environment that existed prior to the first hearing (but unknown to the judge who conducted that hearing) could properly be considered by the judge conducting the second hearing in deciding what disposition of the case would be in the best interest of the child.
The statute requires that the judge shall award "the custody of such child 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) (emphasis added). The judge obviously entered the order that in his judgment or his opinion was in the best interest of the child. The question is, therefore, whether we in the appellate division must reverse that judgment and hold that, as a matter of law, the trial judge was obliged to have reached a different opinion. Decisions in custody cases are never easy. The trial judge has the opportunity to see the parties in person and to hear the witnesses. He can detect tenors, tones and flavors that are lost in the bare printed record read months later by appellate judges. His decision should not be reversed in the absence of a clear showing of abuse of discretion. In re Custody of Pitts, 2 N.C. App. 211, 162 S.E.2d 524 (1968):
"When the court finds that both parties are fit and proper persons to have custody of the children involved, as it did here, and thus finds that it is to the best interest of the children for the father to have custody of said children, such holding will be upheld when it is supported by competent evidence." Hinkle v. Hinkle, 266 N.C. 189, 196, 146 S.E.2d 73 (1966).
In summary, the majority of this panel of judges concludes that, although there was evidence to support the judge's finding that there had been a material change of circumstances, the finding was unnecessary in this case for the reasons we have stated. The statute requires the judge to enter such order which in his Page 427} opinion best promotes the interest and welfare of the child. Surely no one could contend that Judge Jones did otherwise in this case. Finally, the order should be reversed only if an abuse of discretion has been found and the majority of this panel finds none. There is certainly an abundance of evidence to support the critical finding that the environment in which plaintiff has placed the child is not in ...