Shepherd v. Shepherd , 273 N.C. 71 ( 1968 )

159 S.E.2d 357 (1968) 273 N.C. 71

Dorothy H. SHEPHERD (now Dorothy H. Barringer)
v.
Ray B. SHEPHERD.

No. 689.

Supreme Court of North Carolina.

February 28, 1968.

Smith, Moore, Smith, Schell & Hunter, Greensboro, for plaintiff.

Perry N. Walker, Greensboro, for defendant.

BRANCH, Justice.

Appellant contends that the trial court erred in modifying the custody order without a finding of fact of any change of circumstances affecting the welfare of the child. This assignment of error is based on exceptions duly noted. Langley v. Langley, 268 N.C. 415, 150 S.E.2d 764.

As a general rule, the court in which a divorce action is instituted acquires jurisdiction over the custody of unemancipated children of the parties, and such jurisdiction continues even after the divorce. This phase of the court's jurisdiction is properly activated by a motion in the cause. Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879. Decrees awarding custody of minor children determine the present rights of the parties, but such decrees are subject to judicial modification upon a change of circumstances affecting the welfare of the children. Thomas v. Thomas, 259 N.C. 461, 130 S.E. 2d 871.

The rationale of modification of custody decrees upon a change of circumstances is stated in Hardee v. Mitchell, 230 N.C. 40, 51 S.E.2d 884, as follows:

"* * * the welfare of the child at the time the contest comes on for hearing is the controlling consideration. * * * It may be well to observe * * * that the law is realistic and takes cognizance of the ever changing conditions of fortune and society. While a decree making a judicial award of the custody of a child determines the present rights of the parties to the contest, it is not permanent in its nature, and may be modified by the court in the future as subsequent events and the welfare of the child may require. * * *"

In the case of Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332, the Court construed the validity of an order of one superior court judge modifying a custody order entered by another superior court judge. Holding that absent evidence of changed conditions the judge was without authority to modify the previous custody order, the Court, speaking through Higgins, J., stated:

"* * * There is no evidence the fitness or unfitness of either party had changed between the hearings. There is no evidence the needs of the boys had changed during that time, or that they were not properly cared for by the father.

"A judgment awarding custody is based upon the conditions found to exist at the time it is entered. The judgment is subject to such change as is necessary to make it conform to changed conditions when they occur. * * *

"* * * Judge Gwyn's finding of changed conditions is not supported by the evidence. Absent evidence of change he was without authority to modify Judge Walker's order. * * *"

Appellee contends that there is no necessity to find facts of changed circumstances affecting the welfare of the minor child, since the judge who originally granted custody signed the order of modification.

"The welfare of the child in controversies involving custody is the polar star by which the courts must be guided in awarding custody." Thomas v. Thomas, supra.

A decree of custody is entitled to such stability as would end the vicious litigation so often accompanying such contests, unless it be found that some change of circumstances has occurred affecting the welfare of the child so as to require modification of the order. To hold otherwise would invite constant litigation by a dissatisfied party so as to keep the involved child constantly torn between parents and in a resulting state of turmoil and insecurity. This in itself would destroy the paramount aim of the court, that is, that the welfare of the child be promoted and subserved.

We hold that there must be a finding of fact of changed conditions before an order may be entered modifying a decree of custody. The jurisdiction is in the courts, and whether the original decree was entered by the same judge of superior court or some other judge of superior court is not controlling. Here, the trial judge did not find sufficient facts to support the judgment.

Appellant contends that the order of the trial court was error because it was based on matters outside the record. The judgment recites:

"* * * that other matters were brought to the attention of the Court, which said matters were known by all of the parties hereto and their respective Counsel, all of which said matters were considered by the Court in arriving at its judgment; * * *."

In re Custody of Gupton, 238 N.C. 303, 77 S.E.2d 716, concerns a custody matter in which the court made "an independent investigation of the private and home life of the parties to the controversy" through the instrumentality of "an officer of the law." "In so doing, the judge acted on his ``own motion and without the knowledge of the litigants or their attorneys.'" The petitioner in that action excepted to the judgment and appealed, asserting that the judgment was based upon evidence and matters not in the record. In setting the judgment aside, the Court stated:

"The law of the land clause embodied in Article I, Section 17, of the North Carolina Constitution guarantees to the litigant in every kind of judicial proceeding the right to an adequate and fair hearing before he can be deprived of his claim or defense by judicial decree. Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717; National Surety Corp. v. Sharpe, 232 N.C. 98, 59 S.E.2d 593.

"Where the claim or defense turns upon a factual adjudication, the constitutional right of the litigant to an adequate and fair hearing requires that he be apprised of all the evidence received by the court and given an opportunity to test, explain, or rebut it. In re Edwards' Estate, 234 N.C. 202, 66 S.E.2d 675; State v. Gordon, 225 N.C. 241, 34 S.E.2d 414; Interstate Commerce Commission v. Louisville & N. R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431.

"The judgment sets at naught the petitioner's constitutional right to an adequate and fair hearing. It deprives him of his claim to the custody of his daughter upon a factual adjudication based in substantial part upon evidence of an unrevealed nature gathered by the presiding judge in secret from undisclosed sources without his knowledge or that of his counsel."

See also In re Gibbons, 245 N.C. 24, 95 S.E. 2d 85.

The judgment on its face shows that it was partially based "on matters brought to the attention of the court * * * all of which matters were considered by the court in arriving at its judgment." The record fails to show whether the judgment entered was based substantially on evidence received outside the record, and the record shows that parties and counsel were cognizant of the matters referred to. This assignment of error, standing alone, is not prejudicial error, but we observe that it is the better procedure (absent consent of all parties) in hearings of this nature for the trial court to base its factual adjudication upon evidence received by it in open court, so as to give all parties opportunity to test, explain, or rebut it.

The condition of the record as to the remaining assignments of error is such that we would ordinarily remand so that the case might be properly settled by the judge. McDaniel v. Scurlock, 115 N.C. 295, 20 S.E. 451. It appears from the record that the case on appeal was accepted by the attorney for appellee on 6 October 1967, and that no objections or countercase has been returned by appellee. The case on appeal was not settled by the trial judge. Rather, it appears that the parties agreed to the case on appeal. However, upon an examination of the record itself we find constant contradictions as to matters decisive of the remaining assignments of error.

Although we do not deem it necessary to consider the remaining assignments of error, we note that this Court has held that the trial judge may question a child in open court in a custody proceeding, but he cannot do so privately except by consent of the parties. Raper v. Berrier, 246 N.C. 193, 97 S.E.2d 782; In re Gibbons, supra. Further, in a proceeding involving final custody the trial court should permit oral evidence when properly tendered and the exercise of the right of cross-examination when requested. Stanback v. Stanback, supra; 27B C.J.S. Divorce § 315, p. 496; Harriet Cotton Mills v. Local Union No. 578, 251 N.C. 218, 111 S.E.2d 457, 79 A.L. R.2d 646.

For the reasons stated, the judgment of the trial court is vacated and this cause is remanded to the end that there may be a hearing de novo according to the principles herein enunciated.

Error and remanded.

HUSKINS, J., took no part in the consideration or decision of this case.