Almond v. Almond , 42 N.C. App. 658 ( 1979 )

257 S.E.2d 450 (1979) 42 N.C. App. 658

Mary Francis Ingram ALMOND
v.
Larry Joe ALMOND.

No. 7820DC1035.

Court of Appeals of North Carolina.

August 21, 1979.

Hopkins, Hudson & Tucker by Elton S. Hudson, Albemarle, for plaintiff-appellee.

Wesley B. Grant, Concord, for defendant-appellant.

HARRY C. MARTIN, Judge.

Defendant argues three assignments of error on appeal. The first two assignments challenge the trial court's conclusions that plaintiff was a fit and proper person to have custody and that it was in the best interest of the minor children for them to be placed in plaintiff's custody. Defendant contends these findings were in error in light of plaintiff's open and continuous cohabitation with another male person.

"[T]he welfare of the infants themselves is the polar star by which the discretion of the courts is to be guided" in determining questions of their custody. In re Lewis, 88 N.C. 31, 34 (1883). The trial court has wide discretionary power in reaching decisions in particular cases. Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967). The decision must be made in light of all the circumstances of the case. Harrington v. Harrington, 286 N.C. 260, 210 S.E.2d 190 (1974). The trial judge must make findings of fact adequately supported by competent evidence that the order entered is in the best interest and welfare of the children. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967).

We now review the factors considered by the trial court in awarding custody to plaintiff. The foremost factor challenged by defendant is the cohabitation by plaintiff with a male person in the presence of the children. Although cohabitation by unmarried persons of the opposite sex is not condoned by this Court, nor by the laws of this state, evidence of cohabitation alone is not always sufficient to support a finding that a party is not a fit and proper person to have custody of minor children. "The establishment of adultery does not eo instanti juris et de jure render the guilty party unfit to have custody of minor children." In re McCraw Children, 3 N.C.App. 390, 395, 165 S.E.2d 1, 5 (1969). Adulterous conduct is only one of numerous factors to be considered by the court in determining the fitness of a party.

Among other factors considered by the court, was the evidence of the poor relationship between the father and the children as indicated in the above stated facts. Additionally, the court considered the wishes of the children that they preferred to reside with their mother, the plaintiff. "The wishes of a child of sufficient age to exercise discretion in choosing a custodian is entitled to considerable weight when the contest is between parents, but is not controlling." James v. Pretlow, 242 N.C. 102, 105, 86 S.E.2d 759, 761 (1955). Two factors in this case require that great weight be given the wishes of the children. First, from the evidence it appears the children, fourteen and ten years old, are of an age to exercise discretion in choosing a custodian. Secondly, it is evident that the parties gave considerable weight to the wishes of the children when they stipulated in the separation agreement that defendant should have custody of the children. The children lived with their father for approximately three months following the separation agreement. After the experience of living with their father, they then chose to live with their mother. At the time of the hearing they had been living with their mother for over two months and still indicated that it was their preference to reside with her. We find the court properly gave considerable weight to the wishes of the children in this case.

Where the trial court finds that both parties are fit and proper persons to have custody of the children and finds that it is in the best interest of the children that one particular parent have custody, such holding will be upheld if it is supported by competent evidence. Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966). In such case, the trial court has wide discretionary power. Swicegood v. Swicegood, supra. Where there are adverse circumstances affecting both parties that do not justify taking the children away from the parents, the court may rely upon the guidance of the old adage that it must choose the lesser of two evils. For the foregoing reasons, the order awarding plaintiff custody of the minor children is sustained.

Defendant's third and final assignment of error challenges the trial court's denial of defendant's plea to enjoin further criminal cohabitation of plaintiff and the male person in the presence of the two minor children. The trial court judge properly denied defendant's plea for injunctive relief. The violation of a criminal statute does not invoke the equitable jurisdiction of the court. Yandell v. American Legion, 256 N.C. 691, 124 S.E.2d 885 (1962). Injunctive relief is not available to restrain the violation of a criminal statute where the remedy of criminal prosecution affords relief. Id. In this assignment, we find no merit.

Affirmed.

PARKER and ERWIN, JJ., concur.