Appeal by respondent from Wood, Judge. Order entered in Columbus County District Court on 12 September 1980. Heard in the Court of Appeals 23 September 1981.
Wells, Judge. Chief Judge Morris concurs. Judge Clark dissents.
This appeal involves the question of whether the trial court's findings of fact support his conclusion of law that there has been a material change of circumstances as to Stacy Peal, justifying a change in custody. We hold that the trial court's findings do not support its conclusion of law and reverse.
The factual background leading to the present appeal is substantially as follows. John C. Peal and Nell R. Peal, parents of John, Jr. and Stacy, entered into a separation agreement dated 20 December 1976, in which they agreed that Nell Peal would have primary custody of both children. Problems arose between the parents. A custody order was entered by Judge Wood on 29 July 1977. In that order, Judge Wood found both parents to be fit and proper persons to have custody of the children, but found a substantial change in circumstances sufficient to award primary custody of John, Jr. to his father, petitioner in this appeal. Judge Wood awarded primary custody of Stacy to his mother, respondent in this appeal. The parties were divorced on 20 January 1978. The divorce judgment contains no reference to custody of the children.
In his petition, out of which this appeal grows, John Peal alleged that there had been a substantial change of circumstances as to Stacy, but alleged no factual basis except that Stacy had reached the age of eight. Respondent Nell Peal answered, denying a substantial change as to Stacy, asserting a substantial change
as to John, Jr., and prayed for John, Jr.'s custody during the school year.
Following an extensive hearing at which twenty-one witnesses (including both parents and both children) were heard, Judge Wood entered his order in which he made extensive findings of fact. Those pertinent to our disposition of this appeal are as follows:
3. That at the prior hearing of this action, the minor child, Stacy Brian Peal, did not testify nor express any desire to the Court concerning his preference for custody and residence.
4. That this Motion in the Cause in this matter filed by John Charles Peal was filed by the said John Charles Peal at the express request of the child Stacy Brian Peal who told his father that he wanted to live with him on a permanent basis and he wanted to live with his brother and he desired that his father file this Motion.
5. That in July of 1977 the said Stacy Brian Peal was five years of age and at the time of this hearing he is nine years of age. That the said Stacy Brian Peal does not have a preference as to with whom he desires to live but he has a strong desire to live with his brother, John Charles Peal, Jr. That the said child John Charles Peal, Jr. has a strong desire to live with his father, John Charles Peal and with his brother, Stacy Brian Peal.
7. That the two minor children have a close relationship but the only significant time that the children now spend together is on weekend visitation.
8. That the said Stacy Brian Peal, at the time of the prior Order was not in school and since the date Order (sic) in 1977 has attended the first and second grades at the Cerro Gordo Elementary School and has attended the third grade and is now attending the fourth grade at the Chadbourn Elementary School. That John Charles Peal, Jr. also attends the Chadbourn School. That the said Stacy Brian Peal is usually left alone after school for approximately thirty to forty-five ...