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In re Custody of John Charles Peal

Filed: May 4, 1982.

IN THE MATTER OF THE CUSTODY OF JOHN CHARLES PEAL, JR. AND STACY BRIAN PEAL


Appeal by the petitioner (father) pursuant to G.S. 7A-30 (2) from the decision of the Court of Appeals (Judge Wells, with Chief Judge Morris concurring, and Judge Clark dissenting), reported at Copeland, Justice.

Copeland

The sole issue for our review is whether Judge Wood abused his discretion in concluding that a change in the custody of Stacy Brian Peal was legally warranted in 1980. We hold that the able and experienced district judge did not exceed the bounds of his discretion in this regard and therefore reverse the decision of the Court of Appeals. In so doing, we affirm the sound reasoning expounded by Judge Clark in his dissent at the Court of Appeals. See 54 N.C. App. at 569-70, 284 S.E.2d at 350-51.

Unfortunately, child custody disputes are often hotly-contested, bitter affairs in which the innocent children in issue suffer as confused and unwilling pawns. The totality of the matters which the trial judge must evaluate in such cases is not susceptible of a complete accounting on the printed page of a record on appeal. See Wilson v. Wilson, 269 N.C. 676, 678, 153 S.E.2d 349, 351 (1967). Consequently, our Court has repeatedly held that the presiding judge, who has the unique opportunity of seeing and hearing the parties, witnesses and evidence at trial, is vested with broad discretion in cases concerning the custody of children. See, e.g., Hamlin v. Hamlin, 302 N.C. 478, 276 S.E.2d 381 (1981); Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974). This discretion is expressly recognized in G.S. 50-13.2(a) which provides that the custody of a child shall be awarded to the person, agency, organization or institution who "will, in the opinion of the judge, best promote the interest and welfare of the child." (Emphases added.) Thus, under our law, the trial judge is entrusted with the delicate and difficult task of choosing an environment which will, in his judgment, best encourage full development of the child's physical, mental, emotional, moral and spiritual faculties. Blackley v. Blackley, supra. In making this weighty choice, the judge may properly consider the preference or wishes of a child of suitable age and discretion. Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966); James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759 (1955); see 3 Lee, N.C. Family Law § 224 (4th ed. 1981); 27B C.J.S. Divorce § 309(3) (1959). However, as indicated in G.S. 50-13.2, supra, the "paramount consideration" and "polar star," which have long governed and guided the discretion of our trial judges in such matters, are the welfare and needs of the child, not the persons seeking his or her custody, and even parental love must yield to the promotion of those higher interests. {PA}

Page 646} See Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967); Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133 (1953); Story v. Story, 221 N.C. 114, 19 S.E.2d 136 (1942); In Re Lewis, 88 N.C. 31 (1883). Applying these principles to the case at bar, it is clear that Judge Wood did not abuse his discretion in ordering what he considered to be best for Stacy Peal in 1980.

The 1977 custody decree was, of course, subject to future modification by further orders of the district court upon a showing of changed circumstances which materially affected the welfare of the children. Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871 (1963); Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857 (1962). As recognized by the Court of Appeals' majority, Judge Wood's findings of fact at the subsequent hearing held in 1980, supra, were amply supported by competent evidence and thus were conclusive on appeal. 54 N.C. App. at 567, 284 S.E.2d at 349; see Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Thomas v. Thomas, supra. Contrary to the Court of Appeals' opinion, we believe that those factual findings speak for themselves and, on their face, were entirely sufficient to authorize a conclusion by the trial judge that a substantial change in circumstances bearing upon Stacy's welfare had occurred since the entry of his prior order in 1977 which, in his opinion, required a transfer of custody to the father in the promotion of the child's overall best interests. We are especially pursuaded by findings 1, 2, 3, 4, 5, 7, and 13, supra, that Judge Wood properly reached that legal conclusion.

Judge Wood presided over the custody actions involving the children of these parties in 1977 and 1980. He was thoroughly acquainted with the whole situation and was therefore well qualified to determine what the best interests of both children required. It is important to note that the fitness of either parent was not in serious question here -- both parents were equally capable of providing their minor children with suitable care, training and affection. The heart of the matter was quite simply, as Judge Wood found, that the welfare of the children did not favor a split in their custody between the mother and the father. The boys had a close relationship and needed to live in the same household in order to spend significant time together. Because of this, Judge Wood made it plain in the 1980 order that he would have awarded both children to the father in 1977, instead of just

John, Jr., if Stacy had not been so young then. In light of that, Stacy's increased age at the time of the 1980 hearing, which was instituted by the father at the request of the child himself, certainly constituted a material change in circumstances. The 1980 custody hearing was also significantly different in that Stacy testified in court and informed Judge Wood directly about his strong desire to live with his brother.

In conclusion, we hold that Judge Wood's 1980 custody order was legally sound in view of the facts he found, and our review discloses no compelling basis for disturbing that order. Moreover, as Stacy has been living at his father's residence since the order's entry more than one and a half years ago, it would seem most harsh and cruel to uproot the child and separate him from his brother again.

The decision of the Court of Appeals is reversed, and the 6 October 1980 Order of the Columbus County District Court shall be reinstated. This cause is remanded to the Court of Appeals for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Disposition

Reversed and ...


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