Savage v. Savage , 15 N.C. App. 123 ( 1972 )

189 S.E.2d 545 (1972)

Suzanne Simmons SAVAGE
v.
William McDonald SAVAGE.

No. 726DC117.

Court of Appeals of North Carolina.

June 28, 1972. Certiorari Denied August 31, 1972.

W. Lunsford Crew, Roanoke Rapids, for plaintiff-appellee.

Blackwell M. Brogden, Durham, H. Vinson Bridgers, Tarkoro, C. D. Clark, Jr., Roanoke Rapids, for defendant-appellant.

Certiorari Denied by Supreme Court August 31, 1972.

HEDRICK, Judge.

The one assignment of error brought forward and argued in defendant's brief, based on an exception to the order appealed from, challenges the Court's action in awarding the custody of the children to the plaintiff. The one question thus presented is whether the Court made sufficient findings to support its order and whether error of law appears on the face of the record. Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879 (1957); Stancil v. Stancil, 255 N.C. 507, 121 S.E.2d 882 (1961); Prince v. Prince, 7 N.C.App. 638, 173 S.E.2d 567 (1970).

The legal principles regarding child custody were succinctly stated by Judge Britt in In Re Moore, 8 N.C.App. 251, 174 S.E.2d 135 (1970) as follows:

"1. The welfare of the child in controversies involving custody is the polar star by which the courts must be guided in awarding custody. Chriscoe v. Chriscoe, 268 N.C. 554, 151 S.E.2d 33 (1966).

2. While the welfare of a child is always to be treated as the paramount consideration, the courts recognize that wide discretionary power is necessarily vested in the trial courts in reaching decisions in particular cases. Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967).

3. The decision to award custody of a child is vested in the discretion of the trial judge who has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not be upset on appeal absent a clear showing of abuse of discretion. In Re Custody of Pitts, 2 N.C.App. 211, 162 S.E.2d 524 (1968).

4. The findings of the trial court in regard to the custody of a child are conclusive when supported by competent evidence. Swicegood v. Swicegood, supra.

5. When the trial court fails to find facts so that the appellate 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, 272 N.C. 235, 158 S.E.2d 77 (1967)."

We think the trial judge made sufficient findings and conclusions to support the order appealed from, and the findings show clearly why His Honor felt that the interest and welfare of the children would be promoted by awarding their primary custody to the plaintiff. The finding that the plaintiff had been guilty of an indiscretion did not deprive the trial judge of his discretion in determining what arrangements would promote their interest and welfare. In Re McCraw Children, 3 N.C.App. 390, 165 S.E.2d 1 (1969). There is nothing in this record to indicate that the judge abused his discretion, nor does error appear on the face of the record. The order appealed from is

Affirmed.

BRITT and PARKER, JJ., concur.