Finley v. Sapp , 238 N.C. 114 ( 1953 )

76 S.E.2d 350 (1953) 238 N.C. 114

FINLEY
v.
SAPP.

No. 748.

Supreme Court of North Carolina.

June 12, 1953.

Deal, Hutchins & Minor, Winston-Salem, for petitioner appellee.

F. L. Paschal, Robert H. McNeely, Greensboro, Hayes, Hatfield & McClain and James M. Hayes, Jr., Winston-Salem, for respondent appellant.

DEVIN, Chief Justice.

The parents of the child whose custody is now being contested were divorced by decree of an appropriate court in the State of Arkansas where petitioner was then residing. All the parties are now residents of North Carolina. Hence the procedure for determining the custody of the child is governed by the statute G.S. § 50-13. Hardee v. Mitchell, 230 N.C. 40, 51 S.E.2d 884.

The able and experienced judge who heard all the evidence found the facts and thereupon adjudged that the custody of the little girl be awarded the mother who was found to be a woman of good character and fit and suitable to have the custody of her child. The court further found it would be for the child's best interest and general welfare to be with her mother. Provisions were made for the child to be with her father during school vacation. There was evidence to support these findings and the judgment based thereon.

The statute G.S. § 50-13, specifically provides that the court "may commit their custody and tuition to the father or mother, as may be thought best". And in Walker v. Walker, 224 N.C. 751, 32 S.E. 2d 318, 320, Justice Winborne, speaking for the Court, used this language: "Applying this statute, the decisions of this Court hold that the question of granting the custody and tuition of the child to the father or mother is discretionary with the court. (Citing authorities.) The welfare of the child is the paramount consideration, or, as stated In re Lewis, 88 N.C. 31, ``the polar star by which the discretion of the courts is to be guided.'" In re Alderman, 157 N.C. 507, 73 S.E. 126, 39 L.R.A.,N.S., 988; Brake v. Brake, 228 N.C. 609, 46 S.E.2d 643; Hardee v. Mitchell, supra; Gafford v. Phelps, 235 N.C. 218, 69 S.E.2d 313.

The appellant assigns error in the judgment on the ground that the court having found that the father was also a fit and suitable person to have custody of the child, the paramount right to the custody of his child was in him, citing Tyner v. Tyner, 206 N.C. 776, 175 S.E. 144, and Patrick v. Bryan, 202 N.C. 62, 162 S.E. 207, 211.

The Patrick case was a suit to recover damages for injury to a child, and the matter to which the decision related was the validity of a settlement agreed to by the father. In that connection it was said in the opinion of the Court that the father "is the guardian by nature of [his] child."

In Tyner v. Tyner, supra, the trial judge had found that the father was the proper person to have custody of his children, and that it was to the best interests of the children that he have such custody. This Court affirmed, and in the opinion was quoted the following from Newsome v. Bunch, 144 N.C. 15, 56 S.E. 509: "The father is, in the first instance, entitled to the custody of his child. But this rule of the common law has more recently been relaxed, and it has been said that, where the custody of children is the subject of dispute between different claimants, the legal rights of parents and guardians will be respected by the courts as being founded in nature and wisdom * * *, still, the welfare of the infants themselves is the polar star by which the courts are to be guided to a right conclusion, and therefore they may, within certain limits, exercise a sound discretion for the benefit of the child".

Neither of these cases supports the view that the natural right of a father to the custody of his child should override the finding of the judge that the best interests of a little girl would be served by awarding her custody to her mother.

It also appears that in the case at bar the father does not propose to take the child into his own home but thinks her best interests would be served by permitting her to continue to reside with her grandparents. It cannot be said that the facts were found by the judge below under a misapprehension of the law. Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133.

The fact that petitioner agreed when the separation took place between her and her husband in 1949 that the custody of the child should remain with the father is not binding on the Court. In re Alderman, 157 N.C. 507, 73 S.E. 126, 39 L.R.A.,N.S., 988; State v. Duncan, 222 N.C. 11, 21 S.E.2d 822; Gafford v. Phelps, 235 N.C. 218, 69 S.E.2d 313. Doubtless there were other considerations than lack of maternal love which brought about this agreement on her part at that time.

We conclude that the findings below are supported by the evidence, and that the judgment thereon must be in all respects

Affirmed.