In Re Morrison , 6 N.C. App. 47 ( 1969 )

169 S.E.2d 228 (1969) 6 N.C. App. 47

In the Matter of Saundra LyNeise MORRISON.

No. 6921DC408.

Court of Appeals of North Carolina.

August 27, 1969.

Richard C. Erwin, Winston-Salem, for petitioner-appellant.

Barbara C. Westmoreland, Winston-Salem, for respondent-appellee.

HEDRICK, Judge.

The appellee filed a motion in this Court to dismiss the appeal for that the appellant failed to comply with the provisions of Rule 19(f) of the Rules of Practice in the Court of Appeals of North Carolina. The motion to dismiss was denied and the Court proceeded to decide the case on its merits.

The appellant's sole assignment of error, based on the single exception in the entire record, challenges the entry of the order of Judge Alexander of the District Court of Forsyth County dated 21 April 1969. In Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 274 N.C. 362, 163 S.E.2d 363, Parker, C. J., said:

"This sole assignment of error to the signing of the judgment presents the face of the record proper for review, but review is limited to the question of whether error of law appears on the face of the record, which includes whether the facts found or admitted support the judgment, and whether the judgment is regular in form."

The only question before this Court is whether Judge Alexander's findings of fact support his judgment. G.S. § 50-13.2(a) provides that the court shall award custody of a minor 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." Our courts have consistently held that the child's welfare is the principal consideration in determining custody matters. Greer v. Greer, 5 N.C.App. 160, 167 S.E.2d 782; In re Custody of Owenby, 3 N.C.App. 53, 164 S.E.2d 55; In re Custody of Pitts, 2 N.C.App. 211, 162 S.E.2d 524; Holmes v. Sanders, 243 N.C. 171, 90 S.E.2d 382; Holmes v. Sanders, 246 N.C. 200, 97 S.E.2d 683; In re Coston, 187 N.C. 509, 122 S.E. 183.

In the instant case the mother and father gave the child to the paternal grandmother in May, 1968, pending settlement of their marital difficulties. The record does not disclose that these difficulties have been settled; moreover, the findings of fact indicate that the mother and father are living in a state of separation, and that the mother is a resident of the State of Texas, and that the child has been at all times supported by the father. Since the mother voluntarily gave the child to the grandparents in May, 1968, it can be assumed that she has never and does not now question their fitness to have the custody of the child, or their ability to provide for her. Because the father supports the child and remains a resident of North Carolina, and appeared and participated in the hearing, it may be assumed that he is satisfied that the best interests of the child will be served if she remains in the custody of the grandparents.

In Greer v. Greer, supra, Morris, J., speaking for the Court said:

"In upholding the order of the trial court we recognize that custody cases generally involve difficult decisions. The trial judge has the opportunity to see the parties in person and to hear the witnesses. It is mandatory, in such a situation, that the trial judge be given a wide discretion in making his determination, and it is clear that his decision ought not to be upset on appeal absent a clear showing of an abuse of discretion."

In the case before us there is no showing that the trial judge abused his discretion. Judge Alexander's findings of fact are sufficient to support his order.

Since there was no exception to the finding of fact with respect to the order dated 14 August 1968 of the Domestic Relations Court of Forsyth County, the question of the jurisdiction of that court to enter its order is not before this Court. The order of the District Court of Forsyth County dated 21 April 1969 is affirmed.

MALLARD, C. J., and MORRIS, J., concur.