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Green v. Green

Filed: November 17, 1981.

BEVERLY DENISE GREEN
v.
THOMAS MICHAEL GREEN



Appeal by plaintiff from Sherrill, Judge. Judgment entered 22 August 1980 in District Court, Wake County. Heard in the Court of Appeals 2 September 1981.

Morris, Chief Judge. Judges Clark and Wells concur.

Morris

G.S. 50-13.2(a) provides that an order for custody of a minor child "shall award the custody of such child to such person, . . . as will, in the opinion of the judge, best promote the interest and welfare of the child." This provision codified the rule declared many times by the North Carolina Supreme Court that in custody cases the welfare of the child is the polar star by which the court's decision must be governed. In re Cox, 17 N.C. App. 687, 195 S.E.2d 132, cert. denied 283 N.C. 585 (1973); In re Custody of Pitts, 2 N.C. App. 211, 162 S.E.2d 524 (1968). The judgment of the trial court should contain findings of fact which sustain the conclusion of law that custody of the child is awarded to the person who will best promote the interest and welfare of the child. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26 (1977); Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974).

While the welfare of the child is always to be treated as the paramount consideration, Blackley v. Blackley, supra; Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332 (1965); Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871 (1963), wide discretionary power is vested in the trial judge. Blackley v. Blackley, supra; In re Moore, 8 N.C. App. 251, 174 S.E.2d 135 (1970); Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967); Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966). The normal rule in regard to the custody of children is that where there is competent evidence to support a judge's finding of fact, a judgment supported by such findings will not be disturbed on appeal. Powell v. Powell, 25 N.C. App. 695, 214 S.E.2d 808 (1975); Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417 (1971); Swicegood v. Swicegood, supra; see Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133 (1953). The facts found must be adequate for the appellate court to determine that the judgment is substantiated by competent evidence, however. Montgomery v. Montgomery, supra; Savage v. Savage, 15 N.C. App. 123, 189 S.E.2d 545 (1972), cert. denied, 281 N.C. 759, 191 S.E.2d 356 (1972); Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967).

The crucial question presented by this appeal is whether the evidence adduced supports the findings of fact by the trial court and whether those findings form a valid base for the conclusion of law. "[W]hen the court fails to find facts so that this 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, supra, at 238-39, citing Swicegood v. Swicegood, supra. We find that neither the record nor the findings of fact is sufficient satisfactorily to show that the order in this case is supported by the evidence.

There is lack of proof in support of the judge's finding that "[b]oth parties have a basically adequate plan for the care of the minor child." There is abundant evidence to show that plaintiff had a specific and workable plan for the care and supervision of the child. Defendant, on the other hand, indicated only that he would enroll the child in a pre-kindergarten and that he knew of such a facility near his home. There is no evidence that he had made inquiry at that or any other day care center. Unlike plaintiff, defendant has not indicated the existence of any comprehensive

babysitting arrangement even though he works some weekends. Nor is there any evidence to support the judge's finding of fact that "[d]efendant's mother . . . is willing and capable of providing assistance in caring for the child." The only evidence with regard to defendant's mother was that she lives approximately 30 miles from defendant and is a nurse. Although implicit in the court's finding, there is no concrete indication that she assented to take a part in the care of the child or to what extent she was willing to contribute to the youngster's nurture. It follows, based on the evidence adduced, that there is no support for the judge's finding that "[d]efendant's plan for day care for the minor child while he is working is preferable to the plaintiff." Apropos is Darden v. Darden, 20 N.C. App. 433, 201 S.E.2d 538 (1974), in which lack of evidence as the defendant's child care arrangements was a significant element in this court's remand of a decision that granted custody to the defendant.

The trial court found that "[b]ased on the findings of fact above, both the plaintiff and defendant are fit to have custody of Kelly," but found further that the defendant could best promote the interest and welfare of the child. When the court finds that both parties are fit and proper persons to have custody, as it did here, and then adjudges that it is in the best interest of the child for the father to have custody, such holding will be upheld. But it must be supported by competent evidence. See Griffith v. Griffith, 240 N.C. 271, 81 S.E.2d 918 (1954); Gafford v. Phelps, 235 N.C. 218, 69 S.E.2d 313 (1952); McEachern v. McEachern, 210 N.C. 98, 185 S.E. 684 (1936). Our examination and consideration of the record leads us to the conclusion that the findings of fact set out above are not supported by competent evidence, and that the remaining findings of fact are not sufficient to support the conclusion that it was in the child's best interest that her custody be awarded to her father.

The trial judge indicated in his findings that plaintiff's paramour had been living with the plaintiff and minor child since the parties' separation. Such adulterous conduct alone is insufficient to determine custody. The court must consider all the facts of the case and decide the issue in the best interests of the child. Blackley v. Blackley, supra; Pascall v. Paschall, 21 N.C. App. 120, 203 S.E.2d 337 (1974). "[T]he findings bearing on the party's fitness to have care, custody and control of the child and the findings

as to the best interests of the child must resolve all questions raised by the evidence pertaining thereto." In re Kowalzek, 37 N.C. App. 364, 370, 246 S.E.2d 45, 48 (1978), cert. denied, 295 N.C. 734, 248 S.E.2d 863 (1978). We have said that the trial judge is not required to find all the facts shown by the evidence, but only enough material facts to support the judgment. In re Custody of Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971). In the case at bar, however, the judge's findings ignored relevant evidence regarding defendant's lack of visitation with the child, the plaintiff's devotion to the child, the amount of support provided by defendant, alleged physical assault by defendant upon plaintiff, and plaintiff's intention to marry the man with whom she lives. The trial court thus failed to ...


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